Kirby v. Cullinet Software, Inc.

116 F.R.D. 303, 1987 U.S. Dist. LEXIS 5507
CourtDistrict Court, D. Massachusetts
DecidedJune 18, 1987
DocketCiv. A. No. 85-3204-WF
StatusPublished
Cited by41 cases

This text of 116 F.R.D. 303 (Kirby v. Cullinet Software, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirby v. Cullinet Software, Inc., 116 F.R.D. 303, 1987 U.S. Dist. LEXIS 5507 (D. Mass. 1987).

Opinion

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY OF CASE

The plaintiffs allege that during the period May 30, 1985 to August 5, 1985, Cullinet Software, Inc. (“Cullinet”) and its president, Robert M. Goldman, engaged in a common course of conduct designed to inflate the market price of Cullinet stock. The plaintiffs rely on three alleged misrepresentations made on May 30, June 17, and during the week of July 15, 1985. The plaintiffs have moved for class certification.

The proposed class representatives are Roger W. Kirby, Albert F. Kinzinger, Jr., Willard Davis, and Albert M. Toll, C.P.A., P.C. Pension Plan Trust. The court finds [304]*304that the requirements of Fed.R.Civ.P. 23(a) and 23(b)(3) are met with regard to the plaintiffs Kirby, Kinzinger, and Davis, but not for Toll. Toll’s son is one of the class counsel, and Toll appears to rely heavily on him. A finding that Toll is an inadequate class representative will not prejudice the interests of the class, which can go forward without him.

Because none of the plaintiffs purchased after the misrepresentation made during the week of July 15, 1985, the defendants have proposed shortening the class period accordingly. The court finds however that earlier purchasers can properly represent later purchasers where the basis of the class claim is the type of common course of conduct that is alleged in the instant case. Nevertheless the court does not find the class certified to encompass purchasers whose claim is based exclusively on the alleged misrepresentation that occurred during the week of July 15, 1985. The plaintiffs have not contended and the court has not concluded that the plaintiffs are adequate representatives with claims typical of those purchasers relying exclusively on the statement made during the week of July 15, 1985.

II. FACTUAL BACKGROUND

The plaintiffs identify three statements to support their contention that Cullinet engaged in a course of conduct designed to inflate the market price of its stock. The first statement is a May 30, 1985 press release announcing that Cullinet “expects to grow in its first quarter of fiscal 1986 [May 1 to July 31, 1985] by 30% to 40%” and that it “expects to meet Cullinet’s traditional 20% operating margin goal for the quarter—” Complaint ¶15. Aff. of Parkinson, Exhibit A.

The second statement is a June 17, 1985 press release in which Cullinet reported that it had achieved 50% sales growth in the fourth quarter of fiscal 1985 and quoted Robert Goldman as saying, “[B]ased on the excellent fourth quarter and fiscal 1985 results, we are confident that in fiscal 1986 Cullinet will continue to exceed industry growth rates.” Aff. of Parkinson, Exhibit B. The plaintiffs do not appear to be contesting the accuracy of the 1985 results.

The third statement occurred at a meeting of stock market analysts during the week of July 15, 1985. Although not specifically identified, this statement—or possibly statements—to the stock market analysts was alleged to have “led analysts to continue to believe that Cullinet's first quarter fiscal 1986 revenues would increase 30% to 40% over the prior year’s first quarter revenues, that operating margins would be 20% of revenues, and that first quarter fiscal 1986 earnings would increase.” Complaint 1Í17. At the meeting, the 20% operating margin was allegedly characterized as “sacred.” Id.

The plaintiffs contend the statements were false and misleading:

The Company did not have sufficient information to justify the 30% to 40% revenue growth projection originally announced on May 30, 1985; rather, the information it did have indicated this projection would not be met____ It was made, reinforced, and never changed throughout the Class period in reckless disregard of significant indications of a considerable decline and slowdown in sales and orders facing the software industry as a whole and Cullinet in particular and an awareness that customers were delaying orders.

¶19.

On August 6,1985, Cullinet revealed that estimated revenues for the fiscal quarter that ended July 31, 1985 had increased 4-5% as compared to the first quarter of the prior fiscal year, and that operating margins would be 13-14%. ¶20. Aff. of Parkinson, Exhibit C.

The day after this disclosure, the market price of Cullinet stock fell from $24 to $18. Aff. of Parkinson, Exhibit E.

The complaint alleges securities fraud in violation of § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5. 17 C.F.R. 240. 10b-5. Defendant Goldman is charged as a “con[305]*305trolling person” of Cullinet within the definition of § 20 of the Exchange Act, 15 U.S.C. § 78t.

The plaintiffs proposed class is defined as follows:

All persons who purchased Cullinet Software, Inc. ... common stock in the period May 30, 1985 and August 5, 1985, inclusive, and who were damaged as a result thereof, excluding Cullinet and defendant Goldman and officers, directors and senior management employees of Cullinet, and members of their immediate families.

Plaintiff’s Memorandum of Law In Support of Joint Motion for Class Certification at 1. At the hearing on the motion for class certification plaintiffs’ counsel made clear that the class is alleging injury based on a common course of conduct.

As alleged in the complaint, during the class period Cullinet had over 30 million shares of stock outstanding, held by over 3000 shareholders, geographically dispersed. Complaint ¶12(a). Trading in the class period is alleged to have been “very active.” ¶12. More than nine million shares of Cullinet common stock were allegedly traded. ¶12.

There are four proposed class representatives. Plaintiff Roger W. Kirby purchased 500 shares of Cullinet stock on July 12, 1985 at $25% per share. ¶7. Kirby Dep.Tr. at 6; Kirby Dep.Tr. exhibits, doc. 16. He based his purchase on two reports published by his broker Morgan, Stanley. Kirby Dep.Tr. at 13. He did not rely directly on any materials or statements issued by Cullinet. Id. at 19. Kirby is an attorney with experience litigating securities fraud class actions. According to his affidavit, neither he nor his firm have ever been co-counsel nor have they had a fee sharing arrangement with the plaintiffs' law firms, although “there have been a few cases proceeding on a consolidated or coordinated basis in which my firm and the Pomerantz Levy firm [putative class co-counsel] have each represented our own respective clients____” Kirby Affidavit ¶3.

Albert Toll, C.P.A., P.C. Pension Plan Trust, purchased 1000 shares of Cullinet stock on June 11, 1985 at $23V2, 1000 shares on June 12, 1985 at $23 and 1000 shares on June 12 at $23V4. Complaint ¶ 7. Toll Dep.Tr. at 76, 89. Toll exhibit n. 14. It is unclear what Toll relied on to make his purchases. It was market information from either his broker Prudential Bache, a news wire, or Cullinet. See Toll Dep.Tr. at 29.

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Bluebook (online)
116 F.R.D. 303, 1987 U.S. Dist. LEXIS 5507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-cullinet-software-inc-mad-1987.