Lerch v. Citizens First Bancorp, Inc.

144 F.R.D. 247, 1992 U.S. Dist. LEXIS 16714, 1992 WL 313126
District Court, D. New Jersey·Decided October 28, 1992·No. Civ. A. No. 90-3538·Published·Cited by 23 cases

Opinion

OPINION

HAROLD A. ACKERMAN, District Judge.

This matter comes before the court upon a motion by plaintiffs for Class Certification pursuant to Fed.R.Civ.P. 23. In this action, plaintiffs allege that defendants engaged in securities fraud, violating federal and state laws, and causing damages to the plaintiffs. The class they seek to represent consists of:

all persons or entities who purchased the common stock of Citizens First Bancorp, Inc. on the open market during the period October 19, 1989 through October 4, 1990, inclusive (the “class period”). Excluded from the Class are the defendants, members of their immediate families and any subsidiary, affiliate or controlled person of any such defendant.

The Defendants, consisting of Citizens First Bancorp, Inc. (“Citizens”), several Citizens executives (the “Individual Citizens Defendants”) and Coopers & Lybrand (“Coopers”), the accounting firm conducting Citizens’ audits, do not oppose the motion in its entirety. Rather, they argue in response that the class period proposed by plaintiffs is too broad, that a separate subclass should be created to cover claims made against defendant Coopers, and that the plaintiffs’ pendent state claims should not be certified.

For the reasons detailed below, plaintiffs’ motion to certify this matter as a class is granted, regarding both the federal and state claims. Defendants’ motions to create a subclass, to amend the starting date of the class period, and to deny certification of the pendent state claims are denied. Their motion to amend the ending date of the class period is, however, granted.

I. BACKGROUND

Defendant Citizens is a financial corporation that conducts a general banking business through its subsidiary, Citizens First National Bank of New Jersey. Citizens’ securities are registered with the Securities and Exchange Commission (“SEC”) and its common and preferred stock are traded on the American Stock Exchange. Plaintiffs, who held shares of Citizens common stock, allege that defendants fraudulently misrepresented Citizens’ financial situation, artificially raising the price of Citizens stock and causing plaintiffs to invest in the company and suffer serious financial loss.

Specifically, plaintiffs’ Complaint alleges the following wrongdoing:

—Citizens and the individual Citizens defendants misrepresented information about Citizens’ financial policies and its provisions for loan losses, causing Citizens’ stock price to be artificially inflated and violating federal securities laws and state common law of misrepresentation, fraud and deceit;

—Defendant Coopers & Lybrand, Citizens’ auditing firm, aided and abetted Citizens and conspired with Citizens to commit this alleged fraud;

—Coopers violated federal securities laws and state common laws of fraud, misrepresentation and deceit by failing to disclose that it was not an independent auditor of Citizens, when in fact a Coopers partner in a secondary review capacity of the Citizens’ audit was in default of hundreds of thousands of dollars in loans from Citizens;

[250]*250The matter began as two separate cases, Lerch v. Citizens Bancorp, et al., and Roth v. Kelley, et. al., but the two were consolidated in an Order of January 16, 1991. Defendants’ motions to dismiss the Complaints pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b) were denied in an Opinion and Order issued by this Court on August 11, 1992. This Opinion addresses plaintiffs’ motion to certify the matter as a Rule 23 class.

II. DISCUSSION

In order to certify a matter as a class action, a plaintiff must demonstrate that the proposed class meets the requirements of Fed.R.Civ.P.Rule 23(a), and that it is a permissible class under Rule 23(b).

As noted above, defendants do not contest that plaintiffs generally have met the specific Rule 23 requirements with regard to the federal claims. However, they contend that the proposed class period is too broad, and that a separate sub-class should be created for those who intend to pursue claims against Coopers. Defendants then argue that a class should not be certified on the pendent state law claims.

In light of this series of arguments, I first will address the federal claims under Rule 23’s requirements. Then, I will turn to defendants’ particular responses to the class period as to the federal claims. Finally, I will turn to the state law claims.

A. Federal Fraud Claims

1. Rule 23

Certification of a class pursuant to Rule 23 is particularly appropriate in cases alleging violations of securities laws, since class certification facilitates the policies behind the laws. See Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.), cert denied sub nom. Wasserstrom v. Eisenberg, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985); see also In re Laidlaw Securities Litigation, 1992 WL 68341 at 2, 1992 U.S.Dist. LEXIS 4977 at 9 (E.D.Pa. March 31, 1992). A court should err in favor of allowing the action to be certified. Laidlaw 1992 WL 68341 at 2, 1992 U.S.Dist. LEXIS 4977 at 9. Still, a court must rigorously assess whether the proposed certification complies with the dictates of Rule 23, see General Telephone Co. of South West v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982), and the moving party bears the burden of proof as to each of Rule 23’s requirements. Vargas v. Calabrese, 634 F.Supp. 910, 920 (D.N.J.1986) (Debevoise, J.). I address, then, subsection (a) and subsection (b) of Rule 23.

a. Rule 23(a)

Rule 23(a) requires the movant to demonstrate that:

(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.

These factors are ordinarily referred to as “numerosity”, “commonality”, “typicality” and “adequacy”. I address these in turn.

(i) Numerosity

In order to survive this prong of Rule 23, the plaintiff must demonstrate that the proposed class is so numerous that joinder is impracticable. Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 405 (D.N.J.1990) (Report and Recommendation by Magistrate Judge Stanley R. Chesler) (citing Vargas v. Calabrese, 634 F.Supp. 910, 918 (D.N.J.1986). Impracticability does not mean impossibility, but rather that the difficulty or inconvenience of joining all members of the class calls for class certification. Zinberg at 406 (quoting Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir.1964).

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Lerch v. Citizens First Bancorp, Inc., 144 F.R.D. 247, 1992 U.S. Dist. LEXIS 16714, 1992 WL 313126 (D.N.J. 1992).

144 F.R.D. 247 (Lerch v. Citizens First Bancorp, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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