Schwartz v. Celestial Seasonings, Inc.

185 F.R.D. 313, 44 Fed. R. Serv. 3d 1300, 1999 U.S. Dist. LEXIS 2769, 1999 WL 137922
CourtDistrict Court, D. Colorado
DecidedMarch 2, 1999
DocketNo. Civ.A. 95-K-1045
StatusPublished
Cited by5 cases

This text of 185 F.R.D. 313 (Schwartz v. Celestial Seasonings, Inc.) 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
Schwartz v. Celestial Seasonings, Inc., 185 F.R.D. 313, 44 Fed. R. Serv. 3d 1300, 1999 U.S. Dist. LEXIS 2769, 1999 WL 137922 (D. Colo. 1999).

Opinion

MEMORANDUM OPINION AND ORDER ON MOTION AND CROSS-MOTION CONCERNING CLASS NOTICE

KANE, Senior District Judge.

Plaintiffs, a certified class of shareholders in Defendant Celestial Seasonings, Inc.’s stock sue the corporation, along with underwriters and individual members of the corporation for violations of securities laws. Plaintiffs seek damages under §§11 and 15 of the Securities Act of 1933, §§ 10(b) and 20 of the Securities Exchange Act of 1934, Rule 10b-5 of the Securities and Exchange Commission Rules, the Colorado Securities Act, and the common law.

Arthur M. Schwartz was the original and only Plaintiff in this action. His pension plan, the “Arthur M. Schwartz, PC, Employees Pension Trust,” purchased 500 shares of Celestial Seasonings stock in the IPO. Schwartz was later joined by additional Plaintiffs, Marnette Ritter, and the company of which she is a director, Marnie’s Crewel Studio, who together purchased a total of 250 shares of the stock in the secondary market. On March 31, 1998, I certified the class under Federal Rule of Civil Procedure 23(b)(3), and dismissed Marnie’s Crewel Studio as a class representative.

Plaintiff class is comprised of an unknown number of purchasers of Celestial Seasonings stock acquired either during the Initial Public Offering (“IPO”) on July 12, 1993, or the Secondary Public Offering (“SPO”) on January 25, 1994. Pending are Plaintiffs’ Motion for Entry of Notice Order, and Defendants’ Cross-Motion for Leave to Include Questionnaire With Class Notice. For convenience, I attach a copy of the proposed questionnaire.

I. Plaintiff Class’ Motion For Entry of Notice Order

The parties have agreed to the form of notice attached to the Motion for Entry of Notice Order. The only matter in dispute is whether to include Defendants’ proposed questionnaire with the notice. I grant Plaintiffs’ Motion for Entry of Notice Order with the proviso that Defendants’ proposed questionnaire is to accompany the notice.

II. Defendants’ Cross-Motion for Leave to Include Questionnaire With Class Notice

Defendants move to include a short questionnaire with the Notice of Pendency of the Class Action, on the grounds that it is necessary for a determination of damages, for discovery regarding Plaintiffs’ reliance claims under Colorado law and the common law, and to facilitate settlement. Plaintiffs assert the questionnaire amounts to harassment of the absentee class members, and a thinly veiled attempt to decertify the class or limit it in size. They state that “[i]t is clear if defen[316]*316dants are ever allowed to seek discovery from the class, it can only be after trial, not as a part of a Notice of Pendency.” (Pis.’ Mem. Opp’n Defs.’ Mot. Leave to Include Questionnaire at 5-6). While this may be true in the case of a bifurcated trial, it is not always the ease. As discussed below, courts have allowed such questionnaires for limited purposes.

In M. Berenson Co., Inc. v. Faneuil Hall Marketplace, Inc., 103 F.R.D. 635, 637 (D.Mass.1984), the court allowed discovery of unnamed class members where the questions were relevant to the decision of common questions, the questions were asked in good faith, the discovery method was not unduly burdensome, and the answers were not available from the represented parties. See also, Brennan v. Midwestern United Life, 450 F.2d 999, 1005 (7th Cir.1971) (allowing questioning of absentee members where there was no evidence of any party trying to take “undue advantage” of the class members); Manual For Complex Litigation § 30.232 at 232 (3rd ed.1995) (citing Clark v. Universal Builders, Inc., 501 F.2d 324, 340-41 n. 24 (7th Cir.1974) (stating that some courts also look at the necessity of members to obtain legal or technical counsel to respond to the questionnaire, which is seen as burdensome to class members)). Similarly, the court in Transamerican Refining Corp. v. Dravo, 139 F.R.D. 619, 621 (S.D.Tex.1991) allowed limited discovery of absentee class members if the criteria in Berenson were met, and if the questions were clear and concise and not misleading or confusing. Additionally, the Transamerican court stipulated that the questions must only relate to the defendants’ defenses and the plaintiffs’ claims. Id.

Discovery of absentee or unnamed class members is “neither prohibited nor sanctioned explicitly” by the Federal Rules of Civil Procedure. Krueger v. New York Tel. Co., 163 F.R.D. 446, 450 (S.D.N.Y.1995). It is within “the court’s discretion to utilize this procedure except when it only will confuse the absentees, some class members can demonstrate that it will prejudice their rights, it will be employed prematurely or administered in an inappropriate fashion, or it will serve only to reduce the efficiencies of the class action.” 7B Charles Alan Wright et al., Federal Practice and Procedure § 1787 at 218-19 (2d ed.1986). The party moving to include the questionnaire has the burden of proving necessity. While some courts require a “strong showing” to discharge this burden, see, e.g., Enterprise Wall Paper Co. v. Bodman, 85 F.R.D. 325, 327 (S.D.N.Y. 1980); Krueger, 163 F.R.D. at 451, others do not and simply decide the issue on the basis of judicial discretion. See, e.g., In re United States Fin. Sec. Litig., 69 F.R.D. 24, 52-54 (S.D.Cal.1975) (allowing the use of a “Proof of Claim” form after examining the particular facts of the suit). I examine the factors to be considered in determining whether to allow discovery of unnamed class members.

A. Common Questions

Here, the questions in the proposed questionnaire are common to both sides. They relate to damages issues which must be proved by Plaintiffs at trial, and must be addressed by Defendants to allow them to formulate defenses. In addition, damages issues are relevant to assist both parties to engage in meaningful settlement negotiations. The reliance issues addressed in the questionnaires likewise relate to both Plaintiffs’ claims (Colorado and common law), and to Defendants’ defenses (rebutting a presumption of reliance in a 10b-5 claim and refuting reliance claims under Colorado law and the common law). Clearly common issues are present.

B. Good Faith

Notwithstanding Plaintiffs’ claims to the contrary, I find no evidence of any bad faith or improper motive of Defendants in proposing the questionnaire.

C. Undue Burden

The proposed questionnaire is only three pages long and consists of short answers and boxes for the class members to check. The question of whether class members will need to obtain legal or technical help in order to complete the questionnaires is arguable. Defendants insist the questionnaire is simple enough only to require class members to look to tax records in order to complete it. This, [317]*317they say, would have to be done at some point during the trial.

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185 F.R.D. 313, 44 Fed. R. Serv. 3d 1300, 1999 U.S. Dist. LEXIS 2769, 1999 WL 137922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-celestial-seasonings-inc-cod-1999.