Laven v. Flanagan

120 F.R.D. 629, 1988 U.S. Dist. LEXIS 6737
CourtDistrict Court, D. New Jersey
DecidedMay 24, 1988
DocketCiv. A. Nos. 84-5092, 85-0075, 85-0238, 85-0623 and 85-0624
StatusPublished
Cited by14 cases

This text of 120 F.R.D. 629 (Laven v. Flanagan) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laven v. Flanagan, 120 F.R.D. 629, 1988 U.S. Dist. LEXIS 6737 (D.N.J. 1988).

Opinion

OPINION

GERRY, Chief Judge.

This is a civil securities fraud action alleging violations of the Securities Act of 1933, 15 U.S.C. § 77a et seq., (the “1933 Act” or the “Securities Act”) and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., (the “1934 Act” or the “Exchange Act”). Plaintiffs, past and present shareholders of defendant Western Union Corporation, hope to bring a class suit against that corporation, the CurtissWright Corporation, various directors and officers of these companies, and investment bankers Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”).

I. FACTUAL BACKGROUND

According to plaintiffs’ consolidated amended complaint (hereinafter referred to as “the complaint”), defendant Western Union offered for sale to the general public 5,000,000 depository preferred shares pursuant to a registration statement and prospectus effective April 16, 1984, and two prospectus supplements effective April 17 and 27, 1984. One putative class (“Class I”) is said to have purchased these shares during the period extending from April 16, 1984, through and including November 27, 1984. A second putative class (“Class II”) is averred to have purchased these shares from defendant Merrill Lynch during the [632]*632above mentioned period. Plaintiffs state that at least 4,000,000 depository preferred shares were in fact sold to the public pursuant to the issued prospectus; of these, 1,665,000 are said to have been sold by Merrill Lynch. A third putative class (“Class III”) is set out as having purchased over 1,000,000 shares of Western Union common stock from March 19, 1984, through and including July 13, 1984.

Plaintiffs Arnold I. Laven, Andrew H. Sharpe, John A. Pimm, Clayton P. Spitz, Fred Kornick, and Friedrich E. Neumann allege violations of Sections 11 and 15 of the Securities Act against all defendants on behalf of themselves and the Class I members. More specifically, they contend that Western Union’s prospectus contained untrue statements and omissions of material facts concerning the alleged “serious and devastating financial condition of Western Union” (Complaint, 11105) in violation of Section 11 of the 1933 Act. Many examples of the alleged differences between the true financial health of Western Union and how the company was represented in the prospectus are detailed in the complaint. Once these misrepresentations and omissions were revealed, plaintiffs state, Western Union’s depository preferred shares suffered a substantial decline in value, in part due to the company’s announcement on November 27, 1984, that it would not pay a dividend on its preferred stock. As lead underwriter of the depository preferred offering, Merrill Lynch is said to have assisted in the preparation of the prospectus in question, and failed to investigate with due diligence the representations contained in the prospectus.

These same representative plaintiffs also charge, on behalf of themselves and all Class II members, that all defendants violated Sections 12(2) and 15 of the Securities Act in the manner set forth above. As seller of a certain portion of depository preferred shares, defendant Merrill Lynch is charged with a violation of Section 12(2) of the 1933 Act. Western Union is said to have aided and abetted this violation, and defendant Curtiss-Wright is averred to be liable as a controlling person under Section 15 of the Securities Act.

Finally, plaintiff David Jaroslawicz asserts claims on behalf of himself and the Class III members against certain defendants for violations of Sections 10(b) and 20 of the Exchange Act of 1934, as well as Rule 10b-5 promulgated under this Act. Defendants are averred to have made false and misleading statements, as well as omissions of material fact, in Western Union’s 1983 annual report and in the above mentioned prospectus and registration statement. Certain of these statements/omissions are set out in plaintiffs’ complaint. Resulting from these representations, we are told, the market price of Western Union securities was artificially inflated during the “Class III period.”

In a stipulation and order dated September 20, 1985, we conditionally certified the following three classes. Class I consists of all persons other than defendants and any relative, subsidiary, officer, director, employee or affiliate of any defendant who purchased Western Union depository preferred shares during the period from April 16, 1984, through and including November 27, 1984, pursuant to Western Union’s registration statement and prospectus effective April 16, 1984, and the prospectus supplements effective April 17 and 27, 1984, and who sustained damage as a result of such purchase. This claim is brought pursuant to Section 11 of the Securities Act of 1933. Class II includes all persons who purchased the above shares directly from defendant Merrill Lynch during the above period of time and sustained damage as a result. This claim is brought pursuant to Section 12(2) of the Securities Act. Class III is composed of all persons who purchased Western Union common stock during the period from March 19, 1984, through and including July 13, 1984, and who sustained damage as a result of such purchase. Section 10(b) of the Securities Exchange Act of 1934 is the basis for this class’ claim. The order specifically provides that it is conditional in nature, and can be “altered, amended, or vacated as may be warranted by the more fully developed record.”

[633]*633Defendants now move the court to decertify the conditional classes. Both sides also desire a reassessment of the length of the class periods.

II. LEGAL ANALYSIS

A. Certification of Class III Plaintiffs

Defendants challenge the continued certification of Class III, contending that those plaintiffs fail to meet various requirements set forth in Rule 23 of the Federal Rules of Civil Procedure. Subsection (a) of that rule denotes the following four prerequisites to a class action:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

We begin by analyzing each in turn.

No serious argument is advanced that the class is not so numerous that joinder of all members would be impracticable. Plaintiffs state in the complaint their “belief” that purchases of more than 1,000,000 shares were made by more than 1,000 persons during the Class III class period. As defendants do not take issue with this contention in their submissions, we find that plaintiffs continue to satisfy this prong of Rule 23(a).

The moving parties similarly do not seem to push the argument that there are no questions of law or fact common to this class of plaintiffs, the next step in the Rule 23(a) analysis.

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Bluebook (online)
120 F.R.D. 629, 1988 U.S. Dist. LEXIS 6737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laven-v-flanagan-njd-1988.