Lerner v. Haimsohn

126 F.R.D. 64, 14 Fed. R. Serv. 3d 891, 1989 U.S. Dist. LEXIS 6764, 1989 WL 65102
CourtDistrict Court, D. Colorado
DecidedJune 14, 1989
DocketCiv. A. Nos. 87-C-182, 87-C-183
StatusPublished
Cited by12 cases

This text of 126 F.R.D. 64 (Lerner v. Haimsohn) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lerner v. Haimsohn, 126 F.R.D. 64, 14 Fed. R. Serv. 3d 891, 1989 U.S. Dist. LEXIS 6764, 1989 WL 65102 (D. Colo. 1989).

Opinion

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

In these consolidated actions, the plaintiffs have filed two motions for class certification requesting that they be allowed to represent a class consisting of all persons who purchased the common stock of Pace Membership Warehouse (“Pace”) during the period of June 20, 1985 through July 11, 1986, excluding the defendants and certain of the defendants’ affiliates.1

Plaintiffs Lemer and Minchau allege that Pace, its officers and directors, two lead underwriters, and its public auditors, violated Sections 11, 15, and 17(a) of the Securities Act of 1933 [15 U.S.C. §§ 77k, 77o, 77q(a)] and Sections 10(b) and 20 of the Securities Exchange Act of 1934 [15 U.S.C. §§ 78j(b), 78t]. Specifically, the complaints allege that the defendants were responsible for issuing the Registration Statements and Prospectuses that contained the misrepresentations in connection with Pace’s initial and second public offerings. Plaintiffs also allege that the defendants knowingly and recklessly made misleading statements that artificially inflated the market price of Pace stock throughout the class period.

Jurisdiction is asserted under § 22 of the Securities Act of 1933 [15 U.S.C. § 77v] and § 27 of the Securities and Exchange Act of 1934 [15 U.S.C. § 78aa].

Plaintiffs accurately state that the United States Court of Appeals for the Tenth Circuit has endorsed class actions as an appropriate means to resolve claims under the federal securities laws. See, e.g., T.J. Raney & Sons, Inc. v. Fort Cobb, Okla. Irrigation Fuel Auth., 717 F.2d 1330 (10th Cir.1983), cert. denied 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984). Further, the plaintiffs assert that the requirements of numerosity, commonality, typicality, and adequacy of representation, as required under Rule 23(a), Fed.R.Civ.P., are satisfied by the facts supporting the proposed class. They contend that the factors set forth in Rule 23(b)(3) concerning the predominance of common questions of law or fact over individual issues and the question of class action as a superior litigation method are also met.

Defendants have responded by opposing the plaintiffs’ motions. All issues have been fully briefed and oral argument would not assist my decision.

I. Requirements of Rule 23(a).

A. Numerosity.

Plaintiffs assert that over 5.9 million shares of Pace common stock were sold during the class period and that the stock has been actively traded on the over-the-counter market. Defendants do not address the numerosity issue in their opposition memorandum, and it thus appears that this issue is not seriously disputed.

B. Commonality.

The commonality required under Rule 23(a)(2) is addressed by the plaintiffs in tandem with the predominance requirement of Rule 23(b)(3). Plaintiffs contend that the questions common to the class which predominate over the questions affecting individual class members . include: (1) whether the statements made by the defendants were materially misleading; (2) whether defendants acted with scienter; and (3) whether the open-market price of the Pace stock was artificially inflated, and if so, by what amount. Plaintiffs conclude [66]*66that the alleged misleading statements and omissions occurred in a limited number of similar corporate reports and press releases issued throughout the thirteen month class period, and that the differences in the misstatements are insignificant. Finally, the plaintiffs assert that the questions affecting individual class members such as reliance or damages will be minimal, and in any event, are irrelevant to the class certification issue.

Defendants also have combined the commonality issue with the Rule 23(b)(3) predominance question in their response, and assert that the common questions of law do not predominate over individual issues for two reasons: (a) the plaintiffs’ proposed thirteen month class period involves over thirty alleged misrepresentations and omissions that are not interrelated, and (b) the plaintiffs have ignored the individual issues of reliance and possible arbitration of other class member claims.

Numerous securities class actions have involved more documents and longer class periods than those at issue here. See e.g., Blackie v. Barrack, 524 F.2d 891, 902 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976) (class certification granted in action involving 27 month class period with more than 45 documents, including two annual reports, six quarterly reports and various press releases). Moreover, allegations of repeated misrepresentations will satisfy the common question requirement. Blackie, 524 F.2d at 902. The fact that questions peculiar to each individual class member may remain after the common questions have been resolved does not dictate the conclusion that a class action is impermissible. Esplin v. Hirschi, 402 F.2d 94, 100 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969).

Plaintiffs appear to have alleged a “common course of conduct” in the various misstatements and omissions allegedly made by Pace. Allegations of a common course of conduct will satisfy the predominance requirement of Rule 23(b)(3). See e.g., Muth v. Dechert, Price & Rhodes, 70 F.R.D. 602, 607 (E.D.Pa.1976); In re Data Access Systems Securities Litigation, 103 F.R.D. 130, 139 (D.N.J.1984). Plaintiffs’ allegations generally point to a common scheme of misrepresentations by Pace regarding its current financial performance and future financial prospects in an effort to deceive the investing public.

Defendants’ second argument concerning individual questions of reliance in a fraud on the market claim has been rejected by Judge Matsch of this district at least twice. See Steiner v. Ideal Basic Industries, 127 F.R.D. 192, 194 (D.Colo.1987) (“proof of subjective reliance on particular misrepresentations is .unnecessary to establish a Rule 10b-5 claim”); In re Storage Technology Corp. Securities Litig., 113 F.R.D. 113, 114 (D.Colo.1986) (fraud on the market theory in an open market context does not require individual reliance).

Finally, the possible arbitration of some class member claims will not, by itself, defeat class certification. As the plaintiffs indicate, not only is the defendants’ question of arbitration hypothetical and proffered without any evidence, arbitration does not affect any Section 11 claims nor most of the Section 10(b) claims. Thus, even if arbitration were an individual issue, only a small percentage of the total claims would actually be affected—hardly a predominant number. I note that the arbitration argument was flatly rejected in Shankroff v. Advest, Inc., 112 F.R.D. 190, 194 (S.D.N.Y.1986).

C. Typicality.

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Bluebook (online)
126 F.R.D. 64, 14 Fed. R. Serv. 3d 891, 1989 U.S. Dist. LEXIS 6764, 1989 WL 65102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerner-v-haimsohn-cod-1989.