Shiring v. Tier Technologies, Inc.

244 F.R.D. 307, 2007 U.S. Dist. LEXIS 53377, 2007 WL 2126858
CourtDistrict Court, E.D. Virginia
DecidedJuly 23, 2007
DocketNo. 1:06cv1276
StatusPublished
Cited by28 cases

This text of 244 F.R.D. 307 (Shiring v. Tier Technologies, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shiring v. Tier Technologies, Inc., 244 F.R.D. 307, 2007 U.S. Dist. LEXIS 53377, 2007 WL 2126858 (E.D. Va. 2007).

Opinion

MEMORANDUM OPINION

ELLIS, District Judge.

An important issue, appropriately addressed early in this securities fraud action brought pursuant to the Private Securities Litigation Reform Act (“PSLRA”),1 is whether the alleged class of plaintiffs merits certification pursuant to Rule 23, Fed.R.Civ.P. For the reasons that follow, class certification is unwarranted because lead plaintiff, Jeff Shiring, has failed to satisfy the typicality and adequacy requirements of Rule 23.

I.

On December 14, 2005, Tier Technologies, Inc. (“Tier”), a NASDAQ-listed company and a national provider of transaction services, software, and systems integration services, announced to the investing public that it would delay filing its annual report for the fiscal year ending September 30, 2005 and that it expected to restate its historical financial results from September 30, 2002 to June 30, 2005. Following this announcement, Tier’s stock price fell from a December 14th closing price of $7.93 per share to a December 15th closing price of $6.96 per share, a 12.2% drop in share value. Thereafter, Tier retained an independent law firm to conduct an investigation of restatement-related issues. On October 24, 2006, following completion of this independent investigation, Tier published its restated historical financial statements for the fiscal years ending September 30, 2001, 2002, 2003, 2004, and for interim quarterly financial statements. Specifically, Tier restated its net annual income or loss for four fiscal years as follows:

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As often occurs when public companies restate earnings, Tier’s restatement of earnings promptly spawned a securities fraud class action lawsuit. On November 9, 2006, only two weeks after Tier’s restatement, plaintiff filed a complaint (the “First Complaint”) alleging that Tier’s original financial statements for fiscal years 2001 through 2004 contained fraudulent misrepresentations, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, promulgated thereunder. In particular, plaintiff alleges that for each of the fiscal years in issue Tier and the individual defendants materially misrepresented Tier’s financial condition to investors and failed to prepare its financial statements in accordance with Generally Accepted Accounting Principles (“GAAP”). In this regard, plaintiff contends that “[t]he sheer volume of the accounts that were adjusted in violation of GAAP, coupled with [Tier’s] admission of ‘earnings management’ demonstrates a deliberate intention on the part of Tier management to manipulate earnings.” Compl. 11151. This, plaintiff alleges, resulted in Tier falsely over-reporting net income and under-reporting net losses in both press releases and filings with the Securities and Exchange Commission. As required by the PSLRA, 15 U.S.C. § 78u-4(a)(2),2 plaintiff filed a sworn [310]*310certification together with the First Complaint, stating, inter alia, that he had purchased 3,000 Tier shares on June 15, 2005 at a stock price of $8.50 per share. On the basis of this certification and the allegations contained in the First Complaint, plaintiff moved for certification of a plaintiff class encompassing all persons or entities who acquired Tier stock from November 29, 2001, the date Tier initially published its September 30, 2001 financial statement, to October 26, 2006, the date Tier announced its financial restatement. Additionally, plaintiff filed a motion for appointment as lead plaintiff, which was granted, pursuant to 15 U.S.C. § 78u-4(a)(3), as no other individual or entity had sought appointment as lead plaintiff or objected to plaintiffs appointment as lead plaintiff. Shiring v. Tier Technologies, Inc., No. 1:06cv1276 (E.D.Va. Jan. 26, 2007) (Order). By the same Order, plaintiffs attorneys, the Rosen Law Firm, P.A. and John C. Pasierb, PLC, were approved as lead counsel and local counsel, respectively, all pursuant to 15 U.S.C. § 78u-4(a)(3)(B). Id.

Thereafter, plaintiff filed a First Amended Complaint omitting one defendant, Tier’s current Chief Financial Officer, and reducing the proposed class period by several months to November 29, 2001 through May 24, 2006, the date Tier announced it had been de-listed from NASDAQ. Based on this reduced class period, plaintiff alleged that he suffered $8,310 in actual damages as a result of Tier’s material misrepresentations.3 In addition, to reflect the reduced class period, plaintiff filed an amended motion for class certification and appointment as class representative, seeking to certify a class, pursuant to Rules 23(a) and (b)(3), Fed.R.Civ.P., consisting of:

All persons or entities who purchased or otherwise acquired the Class B common stock of Tier Technologies, Inc. between November 29, 2001 and May 24, 2006 and who were damaged thereby.

Appended to this motion was plaintiffs PSLRA sworn certification, stating that he had purchased 3000 Tier shares on June 15, 2005 at a stock price of $8.50 per share.

In the course of class certification discovery plaintiff testified that he is currently employed by Enviro Solutions, Inc., a waste management company, as the Vice President of Financial Reporting, in which capacity he is responsible for generating financial reports and preparing the company’s financial statements. Plaintiff further testified that he purchased his Tier stock on May 25, 2005, at a price of $8.46 per share, acknowledging that the two sworn certifications previously filed in this matter were inaccurate; he had certified in each of these that he had purchased his Tier stock on June 15, 2005 at a stock price of $8.50 per share. Additionally, plaintiff, in his deposition testimony also explained the circumstances of his Tier stock purchase. In this respect, plaintiff testified that in May 2005 he began to research Tier on the web, in particular examining its financial statements and earning history. Plaintiff then revealed that on May 5, 2005, twenty days prior to his Tier stock purchase, he had applied for a financial consultant position at Tier. Plaintiff also disclosed that on May 6, 2005, the day following his application to Tier for a financial consultant position, he interviewed with several Tier employees, including David Fountain, Tier’s Chief Financial Officer. Specifically, plaintiff admitted that the information he learned about Tier during this Tier interview played a part in his decision to purchase Tier stock, stating in particular as follows:

Q. Did the information that you learned as part of this interview process and so on, did that play a part in your decision to purchase Tier stock?

[311]*311A. It did, specifically my conversation with David [Fountain].

Shiring Dep. 52:10-15, Mar. 10, 2007. Plaintiff further testified that he met with Fountain “several times” and spoke “about the value of the stock and where it was going,” and that Fountain “did a good job of presenting the strengths of the company, of which, of course, was the balance sheet, their great cash position, and their limited debt.” Id. at 52:19-22, 61:11-12, 62:17.4

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Bluebook (online)
244 F.R.D. 307, 2007 U.S. Dist. LEXIS 53377, 2007 WL 2126858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shiring-v-tier-technologies-inc-vaed-2007.