In re VMS Securities Litigation

136 F.R.D. 466, 1991 U.S. Dist. LEXIS 3960, 1991 WL 45832
CourtDistrict Court, N.D. Illinois
DecidedMarch 27, 1991
DocketNo. 89 C 9448
StatusPublished
Cited by45 cases

This text of 136 F.R.D. 466 (In re VMS Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re VMS Securities Litigation, 136 F.R.D. 466, 1991 U.S. Dist. LEXIS 3960, 1991 WL 45832 (N.D. Ill. 1991).

Opinion

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

In this consolidated class action and shareholder derivative suit, plaintiffs are disappointed purchasers of securities issued by one or more of five real estate investment trusts and three real estate limited partnerships (collectively, “the funds”). The funds were allegedly sponsored by defendant VMS Realty Partners (“Realty Partners”). In connection with their investments in these funds, plaintiffs charge forty-seven defendants with securities fraud, breach of fiduciary duty and breach of contract. Defendants include the funds, their officers and directors, the selling agents, Realty Partners and various affiliated companies. Plaintiffs move for class certification pursuant to Fed.R.Civ.P. 23. For the reasons that follow, plaintiffs’ motion is granted in part and denied in part.

BACKGROUND

A. The Funds

Defendant Realty Partners is an Illinois general partnership engaged in real estate investment and development. Third Consolidated and Amended Complaint (“Complaint”) ¶¶ 6; ll(i). Over a period of several years, Realty Partners and its affiliates created a “vast real estate empire,” by raising close to $2.5 billion from thousands of investors. Id. ¶ 6. As part of this empire, Realty Partners sponsored and managed the eight funds that are the subject of this litigation: VMS Mortgage Investment Fund (“MIF”); VMS Mortgage Investors L.P. (“L.P.”); VMS Mortgage In[472]*472vestors L.P. II (“L.P. II”); VMS Mortgage Investors L.P. Ill (“L.P. Ill”); VMS Strategic Land Trust (“SLT”); VMS Strategic Land Fund II (“SLF II”); VMS Short Term Income Trust (“Short Term Trust”); and VMS Hotel Investment Fund (“Hotel Fund”) (collectively, “the funds”). Id. TO 5-6.

The funds w,ere created and offered to investors over a period of approximately four years, beginning in November 1984 with the Short Term Trust. Id. 1111(a). Shares in each fund were initially sold to the public through public offerings. Id. ¶ ll(a-h). At the close of the funds’ initial public offering periods, the funds’ securities traded on the American Stock Exchange, NASDAQ and the New York Stock Exchange. Id.

The funds made mortgage loans primarily to affiliates of Realty Partners. Id. 116. Realty Partners managed the properties and developments that secured the funds’ mortgage loans. Id. 1122. In addition, Realty Partners provided the funds’ investors with guarantees that the borrowers would meet their debt obligations to the funds. Id. Realty Partners frequently advanced cash to the affiliated borrowers so that they could make their debt payments to the funds. Id. 1123. Thus, the success of each fund was closely linked to the financial stability of Realty Partners. Id. 111122-23.

In essence, plaintiffs claim that the funds suffered from gross mismanagement and that the defendants committed securities fraud by misrepresenting to investors the nature of the funds’ business practices, loan portfolios, and financial well-being. Id. 117. Defendants are also charged with wrongfully failing to disclose the liquidity problems experienced by Realty Partners, and the troubled financial condition of many of the funds’ borrowers. Id. The financial instability of the VMS empire was allegedly concealed from investors until November 14, 1989, when Realty Partners finally began to disclose the empire’s problems. Id. 118. The market price of the funds’ securities dropped substantially in reaction to this news. Id. On February 13, 1990, Realty Partners announced that it would terminate its practice of advancing money to affiliated borrowers to enable them to meet their debt obligations to the funds. Id. Again, the market price of the funds’ securities declined dramatically. Id.

B. Procedural History

On December 22, 1989, plaintiffs David and llene Albert filed a class action on behalf of all investors in MIF. The Alberts sued some, but not all, of the forty-seven defendants in the present case. Over twenty other class action suits were subsequently initiated. The first class action to sue all the funds on behalf of investors in all the funds was filed on January 11,1990, and named twenty-seven defendants. On April 30, 1990, all pending cases were consolidated into this single class action on behalf of investors in all eight funds against forty-nine defendants.

Plaintiffs’ original consolidated class action complaint was dismissed on October 19, 1990, for failure to comply with the statute of limitations, failure to plead fraud with particularity, and failure to state a claim for which relief could be granted. In re VMS Securities Litigation, 752 F.Supp. 1373 (N.D.Ill.1990). The present complaint was filed on December 21, 1990. Plaintiffs’ proposed class is comprised of:

all persons who purchased the securities of the Funds during the period from December 22, 1986 through February 13, 1990, inclusive (the “Class Period”) ... Excluded from the Class are the defendants, members of the immediate family of each of the individual defendants, the officers and directors of the defendant corporations, any entity in which any of the defendants has a controlling interest, and the legal representatives, heirs, successors and assigns of any of the defendants.

Complaint 1113. Plaintiffs also seek to certify eight subclasses, each subclass being comprised of investors in a particular fund. Each of the thirty-nine counts of the complaint is brought on behalf of a particular subclass, except count nine states a cause of action on behalf of the entire class for violations of §§ 10(b) and 20(a) of the Secu[473]*473rities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5.

DISCUSSION

Representatives may sue on behalf of a class if (1) class members are so numerous that joinder of all members is impracticable; (2) questions of law or fact are common to the class; (3) claims or defenses of the representatives are typical to those of class members; and (4) the representatives will fairly and adequately protect the interests of the class. Fed.R. Civ.P. 23(a). Additionally, plaintiffs must satisfy one of the elements of Fed.R.Civ.P. 23(b). Because plaintiffs seek certification under Rule 23(b)(3), the court must find that (1) common questions of law or fact predominate, and (2) that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(b)(3); Alexander v. Centrafarm Group, N.V., 124 F.R.D. 178, 182 (N.D.Ill.1988). The party seeking class certification bears the burden of demonstrating that certification is proper. Trotter v. Klincar,

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Bluebook (online)
136 F.R.D. 466, 1991 U.S. Dist. LEXIS 3960, 1991 WL 45832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vms-securities-litigation-ilnd-1991.