Schwartz v. Novo Industri A/S

119 F.R.D. 359, 1988 U.S. Dist. LEXIS 2282, 1988 WL 23612
CourtDistrict Court, S.D. New York
DecidedMarch 21, 1988
DocketNo. 85 Civ. 5500 (KC)
StatusPublished
Cited by11 cases

This text of 119 F.R.D. 359 (Schwartz v. Novo Industri A/S) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schwartz v. Novo Industri A/S, 119 F.R.D. 359, 1988 U.S. Dist. LEXIS 2282, 1988 WL 23612 (S.D.N.Y. 1988).

Opinion

OPINION AND ORDER

CONBOY, District Judge:

Plaintiff applies for an order and judgment, pursuant to Fed.R.Civ.P. Rule 23(e), approving the proposed settlement of a securities fraud class action lawsuit. The proposed settlement is on behalf of a class consisting of all persons who purchased or otherwise acquired American Depository Shares of the Class B stock of Novo Industri A/S (“Novo”) between November 15, 1983 and October 12, 1984, inclusive (the “class period”), except Novo, its agents and nominees, and persons within Novo’s control. The settlement fund is $425,000. Plaintiff’s counsel seeks the award of legal [361]*361fees in the amount of $127,500, and $5,000 reimbursement for expenses.

THE LITIGATION

Novo, the sole defendant, is a Danish pharmaceutical company. Its securities are traded in the United States in the form of American Depository Shares. Plaintiff purchased sixty Novo American Depository Shares on or about August 3, 1984. On August 23, 1984, and again on October 12, 1984, Novo made disclosures that reflected adversely on its profitability.

After plaintiffs counsel reviewed Novo’s public filings and statements, the characteristics of the markets for Novo’s products, and the nature of Novo’s industry and competitive environment, plaintiff decided to bring this class action under the federal securities laws. The complaint, filed July 18, 1985, alleged violations of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 (1987). The complaint alleged Novo knew or was reckless in not knowing, and failed to disclose adverse information regarding sales of one of its products, and that Novo misrepresented the company’s ability to obtain approval of a new product from the Food and Drug Administration.

On October 4, 1985, Novo moved to dismiss the complaint pursuant to Fed.R.Civ. P. Rules 9(b) and 12(b)(6). Plaintiff’s motion for certification as class representative, made prior to that date, was adjourned by the parties pending resolution of the motion to dismiss. In an opinion dated June 16, 1986, this court granted Novo’s motion under Rule 9(b), and granted plaintiff leave to replead within twenty days from that date.

Plaintiff filed an amended complaint on July 7,1986. Plaintiff contended Novo was at least reckless in making a public projection of its future growth based on sales to its major customer, when that customer was increasing its internal production of Novo’s product. Plaintiff contended further that Novo was at least reckless in making a public projection based on sales of its new and as-yet-unapproved product, and that Novo was at least reckless in making a public projection that failed to take into account over-stocking by certain of Novo’s distributors, and in making such a projection without disclosing the fact of over-stocking.

On August 15, 1986, Novo moved to dismiss the amended complaint pursuant to Rules 9(b) and 12(b)(6). In an opinion dated April 24, 1987, 658 F.Supp. 795, this court granted Novo’s motion. Final judgment was entered in Novo’s favor on April 29, 1987.

On May 6, 1987, plaintiff appealed to the United States Court of Appeals for the Second Circuit from the judgment of dismissal entered in this court. Prior to a hearing, the parties agreed in principle to the settlement presented to this court in a stipulation of settlement. Plaintiff withdrew his appeal, and this court vacated the judgment for defendant, on joint application, on September 4, 1987. On that date, the court certified plaintiff as class representative and certified plaintiff’s counsel as class counsel. The parties have agreed that if the settlement is not approved by this court, the court may re-enter judgment for Novo and plaintiff may reinstate his appeal.

The stipulation provides that Novo establish the settlement fund of $425,000. Twenty-five thousand dollars of this amount has been allocated toward paying the costs and expenses associated with identifying class members, notifying them of the proposed settlement, and otherwise administering the settlement. Whatever part of this twenty-five thousand dollars is spent for such purposes reduces the proceeds available for distribution to class members accordingly.

Mailings of the notice of settlement, together with proofs of claims, were made on September 16, 1987 to three hundred twenty-nine purchasers of record during the class period, and a summary notice appeared in the national edition of the Wall Street Journal, also on September 16, 1987. As a result of inquiries, approximately six thousand additional copies of the notice and proof of claim have been [362]*362sent to potential class members. No class member has objected to either the proposed settlement or to counsel’s application for an award of fees and expenses. The opt-out period lasted from September 16 to December 1, 1987. A hearing to consider objections to the fairness and adequacy of the settlement was scheduled for January 5, 1988. No objection was then raised, and none has been received by the court since that date.

EVALUATION OF THE SETTLEMENT

The function of the court on this application for approval of the settlement is a “delicate one,” Levin v. Mississippi River Corp., 59 F.R.D. 353, 361 (S.D.N.Y.) (quoting Newman v. Stein, 464 F.2d 689, 691 (2d Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972)), aff'd mem. sub nom. Wesson v. Mississippi River Corp., 486 F.2d 1398 (2d Cir.), cert. denied, 414 U.S. 1112, 94 S.Ct. 843, 38 L.Ed.2d 739 (1973), requiring “a balancing of likelihoods rather than an actual determination of the facts and law in passing upon whether the proposed settlement is fair, reasonable and adequate to” the class and the defendant. Id. Proponents of the settlement have the initial burden of demonstrating 1) the settlement is not collusive but was reached after arm’s length negotiation; 2) the proponents are counsel experienced in similar cases; 3) there has been sufficient discovery to enable counsel to act intelligently; and 4) the number of objectors or their relative interest is small. Desimone v. Industrial Bio-Test Laboratories, 83 F.R.D. 615, 618 (S.D.N.Y.1979). If the proponents establish these propositions, the burden shifts to any objectors. Id. Finally, the court must approve the settlement only after finding it to be reasonable when viewed against the class’s ultimate probability of success in the lawsuit. Id.

First, the proposed settlement is not collusive. The negotiations took place— and the settlement in principle was reached—with the assistance of Staff Counsel in the Second Circuit, who met with the parties individually and together. See Plaintiff's Memorandum of Law in Support of Proposed Settlement and Award of Attorney’s Fees and Expenses at 8. Second, both plaintiff’s counsel, Abbey & Ellis, and defendant’s counsel, Rosenman & Colin, are experienced in similar cases. See, e.g., Weiss v. Drew Nat’l Corp., 465 F.Supp. 548, 550 (S.D.N.Y.1979) (Abbey & Ellis’s predecessor, Law Firm of Arthur N.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re American Bank Note Holographics, Inc.
127 F. Supp. 2d 418 (S.D. New York, 2001)
In re PaineWebber Ltd. Partnerships Litigation
171 F.R.D. 104 (S.D. New York, 1997)
Mautner v. Hirsch
831 F. Supp. 1058 (S.D. New York, 1993)
Chatelain v. Prudential-Bache Securities, Inc.
805 F. Supp. 209 (S.D. New York, 1992)
Berg v. Gackenbach
800 F. Supp. 1091 (E.D. New York, 1992)
In Re Bolar Pharmaceutical Co., Inc., SEC. Lit.
800 F. Supp. 1091 (E.D. New York, 1992)
Kronfeld v. Transworld Airlines, Inc.
129 F.R.D. 598 (S.D. New York, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
119 F.R.D. 359, 1988 U.S. Dist. LEXIS 2282, 1988 WL 23612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-novo-industri-as-nysd-1988.