Schwartz v. Harp

108 F.R.D. 279, 1985 U.S. Dist. LEXIS 19287
CourtDistrict Court, C.D. California
DecidedMay 31, 1985
DocketNo. CV 84-4235 PAR
StatusPublished
Cited by89 cases

This text of 108 F.R.D. 279 (Schwartz v. Harp) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwartz v. Harp, 108 F.R.D. 279, 1985 U.S. Dist. LEXIS 19287 (C.D. Cal. 1985).

Opinion

ORDER CERTIFYING CLASS

RYMER, District Judge.

This is a securities fraud action brought by three purchasers of Vector Graphics common stock: Arthur Schwartz, Robert [281]*281Greco, and LouAnn Greco. Plaintiffs allege that defendants violated Rule 10b-5 when they failed to disclose material adverse facts in their Prospectus and Registration Statement effective October 14, 1981 (Complaint, HIT 25, 26, 35); in their Second Quarter Report issued February 17, 1982 (Complaint, . HH 28, 35); and in their Third Quarter Report issued on or about May 12, 1982 (Complaint, Till 29, 35). Plaintiff Schwartz purchased 100 shares of Vector stock on November 2, 1981, and sold his shares on December 22, 1981. See complaint, 1T 5(a); Schwartz Depo., pp. 8-9. The Grecos purchased 200 shares of Vector stock on October 14, 1981, and sold their stock on October 14, 1982. See Complaint, IT 5(b); Greco Depo., p. 14.

Currently before the Court is plaintiffs’ motion for class certification. Pursuant to Fed.R.Civ.P. 23(a) and (b)(3), plaintiffs seek an order certifying that they may prosecute their action on behalf of a class composed of all persons who purchased Vector stock during the period October 14, 1981 to August 6, 1982 and were injured thereby. Having carefully considered the memoranda, declarations, and other exhibits submitted by the parties, as well as the arguments made by the parties at the hearing on plaintiffs’ motion, the Court concludes that plaintiffs’ certification motion should be granted.

DISCUSSION

In making a class determination in a securities case, the requirements of Rule 23 should be liberally construed in recognition of the rule’s policy in favor of class actions. Blackie v. Barrack, 524 F.2d 891, 903 (9th Cir.1975), cert, denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). This liberal policy is based upon the belief that class actions are particularly suited to serving as private policing weapons against corporate wrongdoing. Ridings v. Canadian National Bank, 94 F.R.D. 147 (N.D.Ill. 1982).

Despite this liberal policy favoring securities class actions, the burden is on the plaintiff to show compliance with Rule 23. Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339, 343 (N.D.Ill.1978). In making this determination, the court should not consider the merits of the underlying controversy, Eisen v. Carlisle-Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974), and it is bound to take the substantive allegations of the complaint as true. Blackie, 524 F.2d at 901 n. 17. On the other hand, the court must have sufficient material before it can rule on compliance with the Rule’s requirements:

“The Court is bound to take the substantive allegations of the complaint as true, thus necessarily making the class order speculative in the sense that the plaintiff may be altogether unable to prove his allegations. While the court may not put the plaintiff to preliminary proof of his claim, it does require sufficient information to form a reasonable judgment. Lacking that, the court may request the parties to supplement the pleadings with sufficient material to allow an informed judgment on each of the Rule’s requirements.”

Id.

Rule 23(a) has four separate requirements: 1) a sufficiently numerous class; 2) questions of law or fact that are common to the class; 3) representatives whose claims or defenses are typical of the class; and 4) representatives who will fairly and adequately protect the interests of the class. Two further requirements are added by Rule 23(b)(3): 5) the individual member’s interests do not predominate over the common interests; 6) the class action is superior to other means of adjudicating the controversy.

1. Numerosity.

Plaintiffs have alleged that 1,000,-000 shares of Vector stock were sold at the initial offering, and further allege on information and belief that there are over one thousand members in the class. Complaint, ¶ 20. A failure to state the exact number in the proposed class does not defeat class certification, Siegel v. Realty Equities Corp., 54 F.R.D. 420, 424 (S.D.N.Y.1972), and plaintiff’s allegations plainly [282]*282suffice to meet the numerosity requirement of Rule 23. See Hochschuler, 82 F.R.D. at 343; Grossman v. Waste Management, Inc., 589 F.Supp. 395 (N.D.Ill.1984) (court is entitled to make “common sense assumptions” in order to support a finding of numerosity).

2. Commonality.

Commonality has also been adequately demonstrated. Where the same scheme operates on a class of open market purchasers for an extended period of time, the requirement of (a)(2) has been satisfied. Green v. Wolf Corp., 406 F.2d 291 (2d Cir.1968), cert, denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). Plaintiffs have alleged a failure to disclose the company’s growing past-due accounts receivable, difficulties in finding a replacement for its European distributor, and repeatedly overoptimistic evaluations, all of which persisted throughout the period. There is no indication that defendants’ misrepresentations or omissions changed materially during this time, see Grossman, and thus the class appears to be bound by a common interest in determining whether defendants’ conduct is actionable. Blackie; Hochschuler.

3. Typicality.

A plaintiff’s claim meets this requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory. The test generally is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87 (S.D.N.Y.1981). Factual differences do not defeat certification in securities actions where the claims arise from the same legal theory.

Defendants argue that Schwartz is not typical because he sold early, before disclosure of the misrepresentations; and because his position as an early “in and out” places his interest in conflict with those of subsequent purchasers. Both arguments have been considered and rejected by a number of courts. On the issue of standing, the early seller’s damages may be reduced but his standing to sue is not affected nor is his status as a representative plaintiff of a class of all purchasers throughout the period. See, e.g., Blackie; Grossman; Saxon Securities Litigation [Am.Tr. Binder] Fed.Sec.L.Rptr. ¶ 99,691 (S.D.N.Y.1984); Handweren v. Ginsbey, 1974-75 Fed.Sec.L.Rptr. ¶ 99,934 (S.D.N.Y. 1974); Koenig v. Smith, 88 F.R.D. 604 (E.D.N.Y.1980); Nor do potential conflicts arising from differences in the date of purchase and therefore in proof of damages preclude plaintiff’s representative status at this point. In Blackie,

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Bluebook (online)
108 F.R.D. 279, 1985 U.S. Dist. LEXIS 19287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-harp-cacd-1985.