Scholes v. Stone, McGuire & Benjamin

143 F.R.D. 181, 1992 U.S. Dist. LEXIS 12173, 1992 WL 193287
CourtDistrict Court, N.D. Illinois
DecidedAugust 11, 1992
DocketNo. 90 C 7201
StatusPublished
Cited by43 cases

This text of 143 F.R.D. 181 (Scholes v. Stone, McGuire & Benjamin) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 1992 U.S. Dist. LEXIS 12173, 1992 WL 193287 (N.D. Ill. 1992).

Opinion

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

I. Background

This action is brought by Steven S. Scholes (“Scholes”), not individually but solely as Receiver for D & S Trading Group, Ltd. (“D & S”), Analytic Trading Systems, Inc. (“AT Systems”), Analytic Trading Service, Inc. (“AT Service”), and by John and Pamela LaVinka (the “LaVinkas”), individually and on behalf of a putative class of investors in D & S, AT Systems, and AT Service, against defendants Stone, McGuire & Benjamin (“SMB”), Howard L. Stone, a partner of SMB, Michael L. Siegel, a non-equity partner of SMB, Rosenthal and Schanfield, P.C. (“R & S”), William P. Rosenthal, a senior shareholder of R & S, and Leslie J. Weiss, an attorney employed by R & S.1 This action arises out of certain fraudulent schemes perpetrated by Michael S. Douglas (“Douglas”), for which Douglas pleaded guilty and is cur[183]*183rently incarcerated. The LaVinkas assert civil cases of action against the attorneys who allegedly assisted Douglas in carrying out his illegal schemes.

The LaVinkas’ complaint consists of eight counts. The LaVinkas have alleged claims for violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against SMB (Count III) and R & S (Count VIII). In addition, the LaVinkas have alleged supplemental claims for legal malpractice— negligence against SMB (Count I) and R & S (Count V), breach of fiduciary duty against SMB (Count II) and R & S (Count VI), and common law fraud against SMB (Count IV) and R & S (Count IX).2 The LaVinkas now move to certify a class on behalf of all persons or entities who were investors in D & S, AT Systems or AT Service and who have lost some or all of their investments. Excluded from the class are those investors who are defendants in class actions instituted by either the LaVinkas or by Harris and Diane De-Jong. For the following reasons, the court will certify the class proposed by the LaVinkas, reserving the right to alter, amend or modify the class pursuant to Federal Rule of Civil Procedure 23(c).

II. Class Certification

The LaVinkas bear the burden of demonstrating that all four prerequisites of Rule 23(a) are satisfied as well as one of the three categories of Rule 23(b). See Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984). Class certification under Rule 23(a) is appropriate when: “(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.” Fed.R.Civ.P. 23(a). Equally important, because the LaVinkas wish to certify a class pursuant to Rule 23(b)(3) they must also demonstrate that “questions of law or fact common to the members of the class predominate over questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).

The defendants contend that none of the four prerequisites are met. We address each essential element of Rule 23(a) in turn. Thereafter, we consider the requirements of Rule 23(b)(3).

A. Numerosity

According to Rule 23(a) the proposed class must be so numerous that joinder of all members is impracticable. The LaVinkas seek to represent a class of 1293 to some 300 persons geographically dispersed throughout the United States. In fact, the complaint alleges that over 300 account holders in the various Douglas entities lost in excess of 24 million dollars as a result of Douglas’ fraudulent conduct.

Defendants advance several challenges to the numerosity requirement. First, R & S states that it is unclear whether the LaVinkas have divided the class into subclasses which parallel those classes set forth in the SEC’s Plan of Distribution. Next, R & S argues that the LaVinkas have not identified which investors would not be included in the class because they allegedly participated in Douglas’ scheme. Along this same line, SMB contends that the LaVinkas may not rely on conclusory allegations to demonstrate that joinder is impracticable. Finally, defendants assert that it is unlikely the LaVinkas will satisfy the numerosity requirement in light of two other pending lawsuits in this district: [184]*184Chemco, Inc., et al. v. Stone, McGuire & Benjamin, et al., No. 91 C 5041 (Norgle, J.) and Agnes, et al. v. Weiss, et al., 91 C 5880 (Zagel, J.).

R & S’s initial argument merits no extended discussion. The LaVinkas are not seeking to certify subclasses in conformance with the SEC’s Plan of Distribution. For that matter, we cannot fathom how subclasses would be appropriate in this case.

Second, contrary to SMB’s assertion, the LaVinkas are not relying on conclusory allegations of numerosity. The complaint need not allege the exact size of the proposed class nor the identity of the class members. See Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989); In re VMS Securities Litigation, 136 F.R.D. 466, 472 (N.D.Ill.1991). A finding of numerosity may be supported by “common sense assumptions.” Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). In this court’s view, the numerosity element is easily satisfied based on common sense assumptions and public documents. See, e.g., Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978), cert. denied, 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 373 (1979). The LaVinkas seek to represent a class of investors based largely on the SEC’s modified Plan of Distribution. The SEC’s modified Plan identifies more than 100 injured account holders by name. As a result, we reject SMB’s argument as wholly without merit.4

Finally, we categorically reject SMB’s and R & S’s arguments that joinder of 129 investors in a single suit is practicable. Defendants rely on the fact that ten claimants filed a class action against SMB and R & S in the Chemco litigation pending before Judge Zagel5 and that approximately 72 investors joined together individually against R & S and Leslie Weiss in the Agnes litigation pending before Judge Norgle. According to defendants’ logic, because many of these investors are the same individuals the LaVinkas desire to represent, the class the LaVinkas seek to certify before this court could be as little as forty claimants.6

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Bluebook (online)
143 F.R.D. 181, 1992 U.S. Dist. LEXIS 12173, 1992 WL 193287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scholes-v-stone-mcguire-benjamin-ilnd-1992.