Seidman v. American Mobile Systems, Inc.

157 F.R.D. 354, 1994 U.S. Dist. LEXIS 13983, 1994 WL 541081
CourtDistrict Court, E.D. Pennsylvania
DecidedSeptember 30, 1994
DocketCiv. A. No. 92-1782
StatusPublished
Cited by22 cases

This text of 157 F.R.D. 354 (Seidman v. American Mobile Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seidman v. American Mobile Systems, Inc., 157 F.R.D. 354, 1994 U.S. Dist. LEXIS 13983, 1994 WL 541081 (E.D. Pa. 1994).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

This is a consolidated action brought by disappointed investors under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 (the “Exchange Act”), and Rule lob-5, as adopted by the Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act. Presently before the Court is plaintiffs’ renewed motion for class certification (Docket No. 42). Frank and Kathleen Seidman (the “Seidmans”) claim that they suffered economic damages when they purchased 1,000 shares of the common stock of defendant American Mobile Systems, Inc. (“AMS”) at $9.00 per share on December 11, 1991.1 They seek to represent a class containing hundreds, possibly thousands, of investors who acquired AMS’s stock during the period from July 1, 1990 through March 24, 1992 (the “class period”). Plaintiffs allege that they were harmed by certain omissions and misrepresentations of material fact contained in AMS’s financial statements that were audited by Deloitte & Touche (“De-loitte”), and filed with the SEC or distributed to the public by AMS and its chief executive officer, William J. Young (“Young”). For the reasons that follow, the Court shall grant the motion and certify the proposed class, with the Seidmans acting as class representatives.

I. BACKGROUND

AMS is a corporation located in Woodland Hills, California that provides mobile telephone and radio dispatch services to businesses. On March 24, 1992, at the close of trading on the National Association of Securities Dealers’ Automated Quotation System (“NASDAQ”), AMS’s stock closed at a price of $6.00 per share. The next day, March 25,-1992, AMS issued a press release, announcing that it had suspended its president and chief executive officer, William J. Young, and was investigating approximately $4.1 million of unauthorized transfers by Young from AMS’s bank accounts to other Young-controlled companies during the period from July 1,1990 until March 24,1992. AMS also announced that the unauthorized transfers may have caused it to breach covenants con[357]*357tained in certain of its loan agreements.2 That same day, there was an unusually large volume of trading in AMS’s stock and it closed at $4,625 per share.

Thereafter, AMS’s board of directors hired Arthur Andersen & Co. (“Arthur Andersen”) to conduct an investigation into the unauthorized transfers. Arthur Andersen’s objectives were to determine the nature and dollar amount of the transfers and whether the annual and quarterly financial statements that AMS had filed with the SEC during the class period were materially misstated as a result of the transfers.3

On June 15, 1992, AMS filed a Form 8-K amendment to its December 31, 1991 Form 10-Q report. The 8-K contained an entry in the amount of $2,279,000 which was described as “a receivable from Autotel Capital Partnership (“ACP”), an entity controlled by [Young].” The 8-K also stated that the col-lectibility of the receivable was uncertain at that time.

In its Form 10-K report for the year ended June 30, 1992,4 AMS disclosed that from July 1, 1990 to March 31, 1991, Young, through a series of more than 400 transactions, transferred in excess of $100 million back and forth between AMS bank accounts and non-AMS bank accounts controlled by Young. According to the 10-K report, the volume and magnitude of the transactions were made possible because the principal bank at which AMS did business allowed Young to overdraft AMS’s accounts and the accounts of other Young-controlled companies at the bank almost daily. The bank assessed a monthly “account analysis” charge which was apparently based on the aggregate overdraft position of all accounts at the bank controlled by Young. A portion of this charge was allocated to AMS’s account and reflected as a bank entry on AMS’s bank statement.

In March, 1991, the bank closed AMS’s accounts and other accounts controlled by Young, and required AMS, Young and the other Young-controlled companies to execute promissory notes representing the overdrafts then existing in their respective accounts. AMS executed a short-term unsecured promissory note in the amount of approximately $1.2 million.

AMS also reported in the June 30, 1992 10-K that from April 1, 1991 until March 31, 1992, Young transferred approximately $5.8 million from AMS’s accounts to the accounts of other companies he controlled. Young apparently used this money to pay the promissory notes that his non-AMS companies had executed to AMS’s former bank, and to finance his acquisition of partnership interests in a company called Sigma Telecommunications.

After AMS suspended Young from his positions in late March, 1992, its board of directors obtained a promissory note from him in the amount of approximately $4.1 million, representing the final receivable for the unauthorized transfers. AMS also secured liens on substantially all of Young’s assets, including his home. Young resigned on April 29, 1992. AMS reported in its June 30, 1992 10-K that it was charging $3.7 million of the [358]*358$4.3 million Young debt5 against its income as a reserve for uncollectibility.

On August 13, 1992, AMS discharged De-loitte & Touche, who had filed the company’s financial reports during the period when the unauthorized transfers took place. On September 2, 1992, Deloitte sent a letter to the SEC, stating that it had recently been discharged as AMS’s independent auditor and, after reviewing AMS’s August 20,1992 Form 8-K, it had informed AMS that certain matters related to the unauthorized transfers constituted reportable events. It also stated that AMS’s audit procedures for its 1992 financial statements needed to be expanded to include, among other things, an evaluation of the recoverability of the approximately $4.4 million that AMS alleged to be due from Young and the non-AMS companies that he controlled, and a review of the report anticipated from Arthur Andersen.

On October 8, 1992, Arthur Andersen delivered its report to AMS’s board of directors. The report contained the following findings: during the fiscal year ended June 30, 1991, Young caused AMS to transfer $102,152,153 out of AMS’s bank accounts to companies controlled by Young while only $101,011,409 was transferred back; the Form 10-Q that AMS filed with the SEC for the quarter ended December 31,1991, understated the receivables due to AMS from non-AMS Young-controlled companies by $2.2 million and overstated the company’s cash position by $2.2 million; the Form 10-Q that AMS filed with the SEC for the quarter ended September 30, 1990, may have understated the receivables due to AMS from non-AMS Young-controlled companies by $675,-000 and overstated its cash position by $675,-000; AMS’s 10-K reports for the fiscal years ended June 30, 1990, and June 30, 1991, and its 10-Q reports for fiscal 1991 and 1992 contained inadequate disclosures relating to the Young banking arrangements; Deloitte was aware of Young’s activities, but failed to quantify or analyze them.

II. PROCEDURAL HISTORY

On March 26, 1992, the Seidmans filed this action against AMS and Young, alleging that the defendants violated Sections 10(b)6 and 20(a)7 of the Exchange Act, and SEC Rule 10b-5,8

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Bluebook (online)
157 F.R.D. 354, 1994 U.S. Dist. LEXIS 13983, 1994 WL 541081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seidman-v-american-mobile-systems-inc-paed-1994.