Kaplan v. Gelfond

240 F.R.D. 88, 2007 U.S. Dist. LEXIS 4446, 2007 WL 162488
CourtDistrict Court, S.D. New York
DecidedJanuary 18, 2007
DocketNos. 06 Civ. 6128(NRB), 06 Civ. 6235(NRB), 06 Civ. 6313(NRB), 06 Civ. 6349(NRB), 06 Civ. 6449(NRB), 06 Civ. 6693(NRB), 06 Civ. 7057(NRB), 06 Civ. 7162(NRB)
StatusPublished
Cited by122 cases

This text of 240 F.R.D. 88 (Kaplan v. Gelfond) 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
Kaplan v. Gelfond, 240 F.R.D. 88, 2007 U.S. Dist. LEXIS 4446, 2007 WL 162488 (S.D.N.Y. 2007).

Opinion

MEMORANDUM AND ORDER

BUCHWALD, District Judge.

This matter involves eight related cases brought against the IMAX Corporation (“IMAX”), a Canadian company, and three of its high level executives,1 on behalf of a purported class of investors who purchased IMAX stock during the class period.2 Seven sets of investors each filed motions to consolidate the actions, to be appointed as lead plaintiff, and to designate their lawyers as lead counsel. These include: (1) Westchester Capital Management, Inc. (‘Westchester Capital”), acting as the investment advisor for five different investment funds3 (“five funds”); (2) Snow Capital Investment Partners, L.P. (“Snow Capital”); (3) the Steelworkers Pension Trust (“Steelworkers Pension”); (4) Y Lu; (5) Paul Witt, Gerald Nash, Michael Pemberton, and Stacey Shehorn (collectively, the “IMAX Investor Group”); and (7) Jay M. Spritzler.4 For the reasons set forth below, we consolidate the above-captioned actions pursuant to Fed. R. Civ. Proc. 42(a), appoint Westchester Capital as lead plaintiff, and designate the law firm of Abbey Spanier Rodd Abrams & Paradis, LLP, as lead counsel.

DISCUSSION

I. Consolidation of the Actions

Rule 42(a) of the Federal Rules of Civil Procedure provides as follows:

When actions involving a common question of law and fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions; it may order all the actions con[91]*91solidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary cost or delay.

Under Rule 42(a), we have broad discretion to determine whether to consolidate actions, and in making this determination, we are to consider whether judicial economy favors consolidation. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir.1990), cert, denied 498 U.S. 920, 111 S.Ct. 297,112 L.Ed.2d 250 (1990). When a court is presented with securities actions in which the complaints are based on the same “public statements and reports,” consolidation is appropriate if the actions present common questions of law and fact and if the parties will not be prejudiced. Werner v. Satterlee, Stephens, Burke & Burke, 797 F.Supp. 1196, 1211 (S.D.N.Y.1992) (consolidation in securities actions appropriate in cases where complaints are based on “overlap[ping]” public statements and reports and where there are common questions of law and fact). However, “each case in which it may appear to be desirable to consolidate complaints in different actions must be evaluated on its own facts with close attention to whether the anticipated benefits of a consolidated complaint outweigh potential prejudice to the parties.” Id. (quoting Katz v. Realty Equities Corp., 521 F.2d 1354, 1360 (2d Cir.1975)).

Here, all plaintiffs and movants allege that defendants violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, by issuing public statements and reports which misrepresented the financial standing of IMAX. All plaintiffs and movants also agree that the relevant class period ended on August 9, 2006. See supra note 2. On that day, IMAX announced: (1) that the SEC was investigating the timing of its revenue recognition practice, which segregated and recognized revenue in different financial quarters; (2) that it had uncovered a material weakness in its accounting which affected revenues; and (3) that a previously announced potential sale of the company was not progressing. This news precipitated a drop in the price of IMAX stock. See, e.g., Kaplan v. Gelfond, No. 06 Civ. 6128, Class Action Complaint for Violation of Federal Securities Laws ¶¶ 23-48. However, there is disagreement as to when the class period began, thus resulting in two different class periods alleged by the plaintiffs and the movants. The shorter of the two alleged class periods, which is relied upon by seven complaints and three of the seven movants, starts on February 17, 2006, when IMAX announced its anticipated 2005 financial results in a press release. Between February 17,2006 and August 9, 2007, IMAX made several additional public announcements about the well-being of the company, which resulted in a rise in the price of IMAX stock. The longer alleged class period, found in one of the eight complaints and relied upon by four of the seven movants, starts on October 28, 2004, sixteen months prior to the specified start of the shorter period. The parties who allege this period claim that the series of IMAX misrepresentations began with an October 28, 2004 press release, in which IMAX reported its third quarter 2004 financial results. See, e.g., Caiafa v. IMAX Corp., No. 06 Civ. 7057, Complaint for Violation of the Federal Securities Laws ¶¶ 118-31.

Despite the different start dates for the class period, we believe that consolidation is appropriate here. At the outset, we note that all the movants support consolidation and that no party objects, a consideration which weighs heavily against the potential for prejudice. See, e.g., Olsen v. New York Community Bancorp, Inc., 233 F.R.D. 101, 104-105 (E.D.N.Y.2005) (“[I]t is apparent that no party will suffer prejudice from consolidation, a fact confirmed by the complete absence of any opposition thereto.”). However, since consolidation issues directly involve the court’s supervision of these litigations, we nevertheless address how the parties’ disagreement regarding the appropriate start date for the period class period affects our Rule 42(a) analysis.

Differences in causes of action, defendants, or the class period do not render consolidation inappropriate if the cases present sufficiently common questions of fact and law, and the differences do not outweigh the interests of judicial economy served by consolidation. See, e.g., Pinkowitz v. Elan Corp., Nos. 02 Civ. 862(WK) et al., 2002 WL 1822118, at *3-4 (S.D.N.Y. July 29, 2002). In [92]*92this case, the difference in start dates results in parties’ reliance upon different financial statements in their pleadings. Of course, to the extent that the class periods overlap, the factual allegations overlap. However, even for the non-overlapping period, all plaintiffs and movants rely on a common pattern in their allegations: that defendants’ statements to the investing public misrepresented or omitted to state material facts about the financial status of IMAX. Further, these matters share a common legal question: whether defendants’ misrepresentations violated federal securities laws. In other words, the actions are all “securities fraud claims that arise from a common course of conduct. The dates on which the misrepresentations occurred do not change their nature.” In re Cendant Corp. Lit., 182 F.R.D. 476, 478 (D.N.J.1998) (noting that “[cjourts which have addressed the issue have held that differing class periods alone will not defeat consolidation or create a conflict”); see also In re Olsten Corp. Sec. Litig., 3 F.Supp.2d.

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240 F.R.D. 88, 2007 U.S. Dist. LEXIS 4446, 2007 WL 162488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-gelfond-nysd-2007.