Lumen v. Anderson

280 F.R.D. 451, 2012 U.S. Dist. LEXIS 16833, 2012 WL 444019
CourtDistrict Court, W.D. Missouri
DecidedFebruary 10, 2012
DocketNo. 08-0514-CV-W-HFS
StatusPublished
Cited by10 cases

This text of 280 F.R.D. 451 (Lumen v. Anderson) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumen v. Anderson, 280 F.R.D. 451, 2012 U.S. Dist. LEXIS 16833, 2012 WL 444019 (W.D. Mo. 2012).

Opinion

ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’MOTION TO CERTIFY CLASS AND (2) DENYING MOTION TO STRIKE

HOWARD F. SACHS, Senior District Judge.

Pending is Plaintiffs’ Motion to Certify Class. Also pending — although not fully briefed — is Defendants’ Motion to Strike. For the following reasons, latter motion (Doc. # 114) is denied and the former motion (Doc. # 66) is granted in part and denied in part.

I. BACKGROUND

This case alleges violations of the Securities Exchange Act on the part of FCStone and certain of its officers and directors. A Consolidated Complaint was filed on September 25, 2009. In my November 2010 Order I addressed the three claims presented at that time: (1) false reassurances in April 2008 about a hedging arrange[455]*455ment, (2) failure to reveal the Cotton bad debt expense in March 2008, and (3) misstatements and concealments involving the Scott Adams account. Only the third of these claims was held to satisfy the Private Security Litigation Reform Act’s (“PSLRA’s”) pleading requirements. Specifically, I held the ease could proceed on the theory that “the Adams bad debt situation was willfully minimized on November 3 and 4, 2008,” and in a footnote “reserve[d] a final ruling on whether actionable misrepresentation before November is alleged regarding” the Adams debt. I am now required to consider this issue because Plaintiffs are asking that the class period commence on April 14, 2008. Specifically, Plaintiffs suggest the following class definition:

All persons or entities who purchased or otherwise acquired publicly traded securities of FCStone Group, Inc. from April 14, 2008 through February 24, 2009, inclusive.1

Plaintiffs’ proposed definition is not binding, and I am free to modify it if I deem it necessary to do so. E.g., In re Monumental Life Ins. Co., 365 F.3d 408, 414 & n. 7 (5th Cir.), cert. denied, 543 U.S. 870, 125 S.Ct. 277, 160 L.Ed.2d 117 (2004) (citing cases).

II. DISCUSSION

A. Class Definition and the PSLRA

The class definition must be ascertained before addressing Rule 23’s requirements, and ascertaining the class definition requires consideration of the PSLRA. I previously held the statements made on November 3 and November 4, 2008, satisfied the pleading requirements. The statements made on that date announced FCStone’s exposure on the Adams account but understated the extent of that exposure. I noted a more accurate — but still incomplete — statement was made on February 24, 2009. Plaintiffs propose February 24, 2009, as the date upon which corrective information was disclosed, and this is acceptable — but Plaintiffs also propose a beginning date that is well before the date when incorrect information was publicized. Plaintiffs justify this approach based on public statements made in April and July 2008— statements that were not specifically pled as connected to the Adams debt until after I issued the November 2010 ruling. Therefore, unlike the November 2008 statements I have already considered, the April and June statements have not been held to be sufficient to maintain a cause of action. Plaintiffs insist the length of the class period is a merits question, but (1) before it can be a merits question it must be properly pled, (2) the class period cannot begin before an actionable statement or concealment occurs, and (3) I must make a preliminary inquiry to ascertain the class period to determine whether a class can even be certified and to insure that proper notices can be distributed.

The PSLRA “dictates a modified analysis due to its special heightened pleading rules.” Kushner v. Beverly Enterprises, Inc., 317 F.3d 820, 824 (8th Cir.2003). The heightened pleading standard is intended to eliminate abusive securities litigation and put an end to the practice of pleading “fraud by hindsight.” In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 889 (8th Cir.2002). The PSLRA requires plaintiffs “to specify each misleading statement or omission and specify why the statement or omission was misleading.” Kushner, 317 F.3d at 826 (citing 15 U.S.C. § 78u-4(b)(l)). “The PSLRA requires that the complaint state ‘with particularity’ facts giving rise to a ‘strong inference’ that the defendants acted with the scienter required for the cause of action.” In re Navarre Corp. Sec. Litig., 299 F.3d 735, 745 (8th Cir.2002) (quoting 15 U.S.C. § 78u-4(b)(2)). “Scienter can be established in three ways: (1) from facts demonstrating a mental state embracing an intent to deceive, manipulate, or defraud; (2) from conduct which rises to the level of severe recklessness; or (3) from allegations of motive and opportunity.” Cornelia I. Crowell GST Trust v. Possis Medical, Inc., 519 F.3d 778, 782 (8th Cir.2008).

I conclude the class period cannot commence in April or June 2008. Plaintiffs allege that on April 14, 2008, FCStone filed with the SEC a Form 10-Q describing the company’s business. The Form 10-Q ex[456]*456plained that “[a]s a clearing broker, we act on behalf of our customers for all trades consummated on exchanges. Accordingly, we are responsible for our customers’ obligations with respect to these transactions. We attempt to mitigate our credit risk by requiring sufficient margining or security deposits.” Similar statements were made in next quarter’s Form 10-Q, filed on July 15. Nothing about these statements suggests an intent to defraud, and Plaintiffs have failed to suggest any basis for believing an intent to defraud exists. All Plaintiffs have done is (1) identify a general statement about business operations, (2) allege the efforts described as an “attempt to mitigate risk” failed, and (3) conclude that this constitutes fraud. The allegations fall short of what is necessary under the law. “Congress did not merely require plaintiffs to provide a factual basis for their scienter allegations, ie., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a strong — ie., a powerful or cogent — inference.” Tellabs, 551 U.S. at 310, 127 S.Ct. 2499 (internal citations and quotations omitted). The Court must determine “ ‘whether all of the facts, taken collectively, give rise to an inference of scienter’ ” that is “ ‘cogent and at least as compelling as any opposing inference one could draw from the facts alleged.’ ” In re NVE Corp. Sec. Litig., 527 F.3d 749, 752 (8th Cir.2008) (quoting Tellabs, 551 U.S. at 321-24,127 S.Ct. 2499). At most, Plaintiffs allege Defendants’ hope that they had adequately protected FCStone from risk proved incorrect — but bad business decisions do not constitute securities fraud. K-tel Int’l, 300 F.3d at 891; see also Santa Fe Indus, v. Green, 430 U.S. 462, 474-80, 97 S.Ct.

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Bluebook (online)
280 F.R.D. 451, 2012 U.S. Dist. LEXIS 16833, 2012 WL 444019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumen-v-anderson-mowd-2012.