Rishcoff v. Commodity Fluctuations Systems, Inc.

111 F.R.D. 381, 1986 U.S. Dist. LEXIS 22868
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 14, 1986
DocketCiv. A. No. 85-4597
StatusPublished
Cited by19 cases

This text of 111 F.R.D. 381 (Rishcoff v. Commodity Fluctuations Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rishcoff v. Commodity Fluctuations Systems, Inc., 111 F.R.D. 381, 1986 U.S. Dist. LEXIS 22868 (E.D. Pa. 1986).

Opinion

MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

Plaintiff Bernardine Rishcoff seeks certification of a class of investors who purchased defendant Commodity Fluctuations Systems, Inc.’s, “Extended Futures Account” and suffered a loss thereby between February 10, 1982, and November 17, 1983. Rishcoff requests class certification pursuant to Fed.R.Civ.P. 23(a) and (b)(3). The named plaintiff and putative class representative alleges violations of various provisions of The Commodity Exchange Act, 7 U.S.C. §§ 6b(A), 6f(l), 6o (1) as well as other federal and state statutes.

Defendant Commodity Fluctuations Systems, Inc., (CFS) functioned as commodity trading advisor (CTA) throughout the class period, with defendant Karen Genovese as its president and majority shareholder. Defendant D.E. Jones Commodities, Inc., (Jones) was the futures commission merchant (FCM) through which CFS purchased its commodity futures contracts. Defendant Jones opposes certification of a class of investors represented by the named plaintiff for three principal reasons: because the named plaintiff’s claims are not typical of the putative class; because common questions of law and fact are not predominant; because the claims of most putative class members are barred by the statute of limitations.

Defendant Jones’ objections to class certification are based upon (1) subsection (a) and (b)(3) of Rule 23, and (2) the statute of limitations. Before making the findings required by Rule 23 for certifying a class, we will deal with the statute of limitations argument.

Other courts have considered this issue and have held that such a contention cannot serve to bar a class certification in that an inquiry into a claimed affirmative defense impermissably allows an issue going to the merits of the litigation to intrude upon the class certification analysis required by Rule 23. See, Fickinger v. C.I. Planning Corp., 103 F.R.D. 529 (E.D.Pa. 1984), and cases cited therein. It is well settled that the issue of class certification is separate and distinct from questions involving the likelihood of success on the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Thus, we, too, conclude that issues relating to whether certain claims may be barred by the statute of limitations are irrelevant to the question of whether a class should be certified and will not be considered in determining the propri[383]*383ety of allowing the case to proceed as a class action.

Before considering whether this case is appropriate for class certification under Rule 23(b)(3), the Court must first determine that all the requirements of subsection (a) of Rule 23 have been satisfied.

The familiar requirements for class certification under Rule 23(a) are as follows:

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

Professor Moore has suggested an analytical framework which is helpful in structuring the Court’s inquiry into the four general class certification requirements. See, 3 Moore’s Federal Practice ¶ 23.06-2 at 23-191. (2d Ed.1985). He suggests that the four requirements be approached by means of four questions: (1) “Who are the proposed class?”, (2) “What are the claims of the class?”, (3) “What is the individual claim of the class representative?”, (4) “Who. is the representative?”.

Applying the foregoing structure, we conclude that the numerosity requirement has certainly been met in this case. Supporting documentation provided by the plaintiff and not challenged by the defendant reveals that six hundred fifty (650) accounts were opened on behalf of putative class members during the class period and that approximately ninety-five per cent (95%) of those accounts lost money. (See, Exh. 45 to Affidavit in Support of Plaintiff’s Reply Memorandum in Support of Her Motion for Class Certification, Doc. # 15). While the class is large enough for the Court to conclude that joinder would be impracticable, it is not so large as to be unmanageable should a class be certified.

Plaintiff, on behalf of the putative class, alleges that defendants engaged in material misrepresentations in violation of the Commodity Exchange Act in order to induce unsophisticated investors to enter into commodity futures trading. Plaintiff further alleges that she and other class members, relying upon defendants’ oral and written misrepresentations, invested in commodity futures and subsequently lost all or most of the money invested. Thus, there are common questions of law to be resolved. Specifically, the plaintiff must demonstrate that the Commodity Exchange Act has been violated by defendants’ actions. Obviously, if the same information was disseminated by defendants and is found to be in violation of the law, that conclusion will apply to all class members.

Defendant Jones contends that our answer to the next question, “What is the claim of the class representative?”, will lead to the conclusion that her claims are not typical of the class. Jones argues that the named plaintiff had a prior relationship with the broker who contacted her and persuaded her to invest with CFS before receiving any written promotional material which other putative class members may have received and upon which they may have relied. According to Jones, this unique circumstance renders the plaintiff’s claims atypical.

This case is unusual in that the Court has access to the claims of many of the putative class members through the records of an enforcement proceeding brought by the Commodity Futures Trading Commission (CFTC) in the United States District Court for the Southern District of New York. Copies of complaints received by the CFTC, which presumably prompted the court action, and transcripts of testimony at the hearing reveal that most, if not all, putative class members were solicited to invest by telephone contact from CFS brokers before seeing any written materials prepared or distributed by defendants. While there does not appear to have been any other instance of a prior relationship of trust and confidence between the broker and the customer, it does appear that CFS brokers were unusually successful in soliciting accounts by [384]*384telephone. In each instance, the investor agreed to open a CFS account with Jones as a result of telephone conversations with a CFS broker. Moreover, each putative class member, including the named plaintiff, executed an identical account application on D.E. Jones forms and was urged to return it immediately. Many investors, including the named plaintiff, had their applications picked up by Federal Express for overnight delivery at the instigation of the broker who solicited the account.

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Bluebook (online)
111 F.R.D. 381, 1986 U.S. Dist. LEXIS 22868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rishcoff-v-commodity-fluctuations-systems-inc-paed-1986.