In re Winstar Communications Securities Litigation

290 F.R.D. 437, 2013 WL 1700993, 2013 U.S. Dist. LEXIS 55800
CourtDistrict Court, S.D. New York
DecidedApril 17, 2013
DocketNo. 01 Civ. 3014(GBD)
StatusPublished
Cited by18 cases

This text of 290 F.R.D. 437 (In re Winstar Communications Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Winstar Communications Securities Litigation, 290 F.R.D. 437, 2013 WL 1700993, 2013 U.S. Dist. LEXIS 55800 (S.D.N.Y. 2013).

Opinion

[440]*440 MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, District Judge:

Before the Court is the Motion for Class Certification of Lead Plaintiffs BIM Intermobiliare SGR (“BIM”), Robert Ahearn, and DRYE Custom Pallets (“DRYE”). Plaintiffs allege that the accounting firm Grant Thornton (“GT”) committed securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder, and made [441]*441false and misleading statements in an audit opinion letter included in Winstar’s 1999 Form 10-K filing. Lead Plaintiffs seek to certify a class of “all persons and entities that purchased the common stock or publically traded bonds of Winstar ... during the period from March 10, 2000 until April 2, 2001.” Pl. Mem. of Law in Support of Class Cert., ECF No. 141, at 1. Lead Plaintiffs’ motion is GRANTED, to the extent that this Court certifies a class of plaintiffs that includes purchasers of common stock from March 10, 2000 to April 2, 2001 and purchasers of certain bonds from October 16, 2000 to April 2, 2001.

Background1

Winstar was a rising telecommunications company that provided wireless broadband Internet connectivity to businesses. Building its network was expensive, and Plaintiffs allege that Winstar’s expenses far exceeded its actual revenue in the late 1990s. Plaintiffs allege that Winstar’s management, in concert with its accountant GT, concealed this from current and potential investors through irregular accounting practices.2 These irregular accounting practices allegedly allowed Winstar to continue to raise money in the form of debt and equity to further build its network.

In 1999 and 2000, Winstar reported strong financial results that appeared to corroborate rosy statements by its management that the company was doing well. Plaintiffs allege that these reported results were nothing more than the product of smoke, mirrors, and massive securities fraud. Plaintiffs allege that Winstar manipulated its financial results via one-time, sparsely-documented equipment sales at the end of reporting periods, dubious bifurcated accounting methods that improperly recognized revenue too early, and “round-trip” transactions through which Winstar booked revenue that did not actually come in.

Plaintiffs’ complaint concerns the unqualified audit opinion that was included in Wins-tar’s publically filed 1999 10-k. Plaintiffs allege that GT was “in” on all of Winstar’s improper accounting schemes. They allege that despite knowledge of and active participation in them, GT issued an audit opinion letter that stated that Winstar’s 1999 financial statements accurately reflected its financial position, and complied with Generally Accepted Accounting Principles (“GAAP”). Plaintiffs claim that this audit opinion letter helped conceal that Winstar’s revenue was overstated by over $400 million, and its expenses were understated by $600 million. Although Winstar reported a net loss for 1999 of $1.5 billion, Plaintiffs claim that the true loss was in the neighborhood of $2.4 billion, and that had Winstar revealed its true financial health, it would never have been able to raise additional money, and would have gone bankrupt much sooner than it did in April, 2001.

There are currently three Lead Plaintiffs: BIM, Robert Ahearn, and DRYE. BIM is an Italian asset management firm and wholly owned subsidiary of an Italian bank. PL Mem. at 6. BIM purchased Euro-denominated Winstar bonds (that are not the subject of this class certification motion) as well as common shares for its mutual funds. It alleges that the funds suffered a loss of approximately four million dollars. Shalov Reply Decl., ECF No. 190, Bailarán Depo., Ex. L at 54. Robert Ahearn is a Boston-based businessman who invested in Winstar shares on both his own behalf and in his capacity as administrator of two corporate profit sharing plans. PL Mem. at 6. Ahearn claims to have purchased Winstar common shares during the class period and suffered a loss of approximately $825,962.63. Id. ¶ 6. DRYE Custom Pallets is a Michigan corporation that made investments in Winstar shares through its corporate investment account. DRYE claims that it purchased Winstar com[442]*442mon shares during the class period and suffered a loss of approximately $586,042.00. Id. ¶ 7.

Lead Plaintiffs seek a class composed of all purchasers of Winstar’s common stock and certain U.S. dollar-denominated bonds from March 10, 2000 through April 2, 2001. Throughout this period, Winstar’s stock was publically listed on the NASDAQ exchange and there were over 85 million shares outstanding. Shalov Deck, ECF No. 142, Ex. 3, Report of Candace L. Preston (“Preston Report”), ¶ 16. Plaintiffs seek to include purchasers of three of Winstar’s U.S. dollar-denominated bonds in their class: purchasers of the 12/6% bonds due April 2008 (CUSIP 975515BD8), the 12%% bonds due April 2010 (CUSIP 975515AY3), and the 14%% bonds due April 2010 (CUSIP 975515AZ0).3 These bonds were initially issued on March 27, 2000 as a private placement pursuant to Rule 144A.4 Hakemi Deck, ECF No. 188, Ex. G, Affidavit of Andrew S. Carron (“ASCI”) ¶ 6. They were rated B3/B-/B- by Moody’s, Standard & Poor’s, and Fitch, respectively, which are below investment grade or “junk” ratings. Id. ¶ 17. The bonds were initially not publically registered and had limited trading in relatively small numbers directly to a few financial institutions. The bonds were not publically registered until October 13, 2000, after which the volume of bonds traded and number trades significantly increased.5

Lead Plaintiffs Have Met the Requirements of Rule 23

Legal Standard

“The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.2010). This Court must undertake “a rigorous analysis” and resolve any relevant factual disputes. In re Am. Int’l Grp. Secs. Litig., 689 F.3d 229, 238 (2d Cir.2012). The Rule 23 inquiry may overlap with that of the merits, although courts are not permitted to engage in “free-ranging merits inquiries at the certification stage.” Wal-Mart Stores v. Dukes, __U.S.__, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011); Amgen Inc. v. Conn. Ret. Plans & Trust Funds, __U.S.__, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013).

Rule 23(a) has four threshold requirements: (1) numerosity (“the class is so numerous that joinder of all members is impracticable”), (2) commonality (“there are questions of law or fact common to the class”), (3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”), and (4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Fed.R.Civ.P. 23(a). Once the Plaintiff has demonstrated that its proposed class meets these four requirements, this Court must determine whether the action can be maintained under one of the three subsections of Rule 23(b). Fed.R.Civ.P. 23(b).

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Bluebook (online)
290 F.R.D. 437, 2013 WL 1700993, 2013 U.S. Dist. LEXIS 55800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-winstar-communications-securities-litigation-nysd-2013.