Scholes v. Tomlinson

145 F.R.D. 485, 1992 U.S. Dist. LEXIS 19445, 1992 WL 378744
CourtDistrict Court, N.D. Illinois
DecidedDecember 18, 1992
DocketNo. 90 C 1350
StatusPublished
Cited by9 cases

This text of 145 F.R.D. 485 (Scholes v. Tomlinson) 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. Tomlinson, 145 F.R.D. 485, 1992 U.S. Dist. LEXIS 19445, 1992 WL 378744 (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 Harris and Diane DeJong (the “De-Jongs”), individually and on behalf of a putative class of investors in D & S, AT Systems, and AT Service, against defendants Robert G. Tomlinson, Darlene Tomlinson, George Edgar Tomlinson, Jr., and Tomlinson Enterprises, Ltd. This action arises out of certain fraudulent schemes perpetrated by Michael S. Douglas (“Douglas”), for which Douglas pleaded guilty and is currently incarcerated. In the present case, the DeJongs assert civil causes of action against alleged co-conspirators of Douglas who allegedly assisted in carrying out his illegal schemes.

[488]*488The DeJongs’ second amended complaint consists of twelve counts on behalf of the class. The DeJongs have alleged claims against Robert G. Tomlinson and Tomlin-son Enterprises, Ltd. for violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder (Count I), violations of Section 12(2) of the Securities Act of 1933 (Count II), aiding and abetting violations of Section 10(b) and Rule 10b-5 (Count III), violations of Section 1962(a) of RICO (Count V) 1, violations of Section 1962(b) of RICO (Count VI), violations of Section 1962(c) of RICO (Count VII), violations of Section 1962(d) of RICO (Count VIII), violations of Sections 25110, 25400(d) and 25401 of the California Corporate Securities Law of 1968 (Counts IX and X), aiding and abetting such laws (Count XI), and common law fraud (Count XII). The DeJongs 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 putative class are those investors who are defendants in related class actions instituted by either the DeJongs or John and Pamela LaVinka. Both parties fully briefed the issues and a decision was imminent when the defendants filed a supplement, on or about September 9, 1992, to their response to the DeJongs’ motion for class certification. Following closely was the DeJongs’ supplemental reply in support of their original motion for class certification. After reviewing the voluminous materials submitted by both parties, for the following reasons the court will partially certify the class proposed by the DeJongs.

II. Class Certification

The DeJongs 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 DeJongs wish to certify a class pursuant to Rule 23(b)(3)2 they must also demonstrate that “questions of law or fact common to the members of the class predominate over any 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). Lastly, when deciding a motion for class certification, this court must accept the well-pled facts as true. Maloney v. Washington, 584 F.Supp. 1263, 1265 (N.D.Ill.1984); Jennings v. Emry, 910 F.2d 1434, 1436 n. 1 (7th Cir.1990).

In opposition to class certification, the defendants initially advance four arguments. The defendants contend that the class should not be certified because the DeJongs have no standing to raise the claims of the putative class, that the De-Jongs failed to show that the putative class has numerous members sharing common claims, that the facts do not support any claims against the defendants, and that the secondary liability claims are conclusory and do not support class certification. In the supplement to their original memorandum in opposition, defendants argue that the class should not be certified because the investor class members who were allegedly defrauded by the defendants have either settled all claims in the suit, represent[489]*489ed that they will opt out if a class is certified, or have no claim against these defendants. These arguments will be addressed in turn.

As an initial matter, this court will not address the merits of the plaintiff’s underlying claims at this point. The court will, thus, not address the arguments that plaintiffs failed to state a claim because of either insufficient factual or conclusory allegations. The court will, however, look into the factual and legal arguments insofar as they concern class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974) (rejecting inquiry into merits in a motion for class certification); Halverson v. Convenient Food Mart, Inc., 458 F.2d 927, 932 (7th Cir.1972). Therefore, defendants’ standing argument will be discussed only in light of the requirements of class certification. We now address each relevant argument, and the requirements of Rule 23, in turn.

A. Numerosity

According to Rule 23(a) the proposed class must be so numerous that joinder of all members is impracticable. The De-Jongs seek to represent a class of 129 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 30 million dollars as a result of Douglas’ fraudulent conduct.

Defendants, however, probably based on our earlier order in a companion case, did not initially challenge the numerosity requirement. See Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181 (N.D.Ill.1992) (order granting class certification based on similar numerosity claims). In their supplemental response to plaintiff’s motion, however, defendants submit affidavits and/or settlement agreements of eight individual investors who either settled all claims with the Tomlinson defendants or stated their intentions of opting out of the class, and argue that this defeats class certification. This argument is flawed. First, defendants’ argument is based on the premise that the DeJongs “rely entirely on allegations of material misrepresentations and omissions Robert G.

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Cite This Page — Counsel Stack

Bluebook (online)
145 F.R.D. 485, 1992 U.S. Dist. LEXIS 19445, 1992 WL 378744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scholes-v-tomlinson-ilnd-1992.