Simpson v. Specialty Retail Concepts

149 F.R.D. 94, 1993 WL 198839
CourtDistrict Court, M.D. North Carolina
DecidedJanuary 14, 1993
DocketNo. C-88-100-WS
StatusPublished
Cited by17 cases

This text of 149 F.R.D. 94 (Simpson v. Specialty Retail Concepts) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simpson v. Specialty Retail Concepts, 149 F.R.D. 94, 1993 WL 198839 (M.D.N.C. 1993).

Opinion

MEMORANDUM OPINION

TILLEY, District Judge.

Plaintiff Bobby Simpson (“Simpson”) filed this lawsuit against Defendants Specialty Retail Concepts, Inc. (“SRC”), Alan R. Klein-maier, David N. Kleinmaier, C. Banks Finger, Stuart F. Vaughn, and Deloitte, Haskins & Sells (“DH & S”) (collectively referred to as “Defendants”) alleging federal and North Carolina securities violations and certain state claims in connection with the purchase [97]*97of common stock of the Defendant SRC. Pursuant to Fed.R.Civ.P. 23, Simpson has moved for class certification against all the defendants except SRC1. DH & S vigorously resists this motion. For the reasons stated hereinafter, Simpson’s class certification motion will be GRANTED.

I.

When considering a class certification motion, the allegations of the complaint must be taken as true. Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). See Kirschner 139 F.R.D. at 81. Taking the allegations of the third amended complaint as true, the facts may be stated as follows:

SRC, a company whose stock is publicly traded on NASDAQ, is a national franchisor and owner of specialty food-related retail stores located in enclosed shopping malls. SRC’s 1986 Annual Report and 10-K2 included financial statements, certified by SRC’s independent auditor DH & S, inaccurately reporting the 1986 fiscal year net income to be significantly higher than it had actually been. A similar disparity in reported and actual income occurred for fiscal year 1987 as well.

In September 1987, DH & S notified the Securities and Exchange Commission (“SEC”) that it had resigned as SRC’s auditor and the 1986 financial statements should not be relied upon. Allegedly, the other defendants attempted to minimize the significance of DH & S’s notification, suggesting that DH & S’s concerns were insubstantial.

It was ultimately revealed by SRC in December 1987, that during 1986 and 1987, defendants had substantially inflated the value of company-owned retail stores and misrepresented the collectibility of certain accounts and notes receivable. It is alleged that DH & S knew or was reckless not to know of the deceptions when the misrepresentations were first made in the 1986 financial statements. It is further alleged that DH & S had actual knowledge of the inaccuracy of the 1986 financial statements in early 1987 (no later than April 1987), but kept silent until August 1987.3 On December 30, 1987, SRC issued a press release disclosing for the first time SRC’s true financial condition. Three months later, SRC filed for bankruptcy.

Simpson filed this lawsuit in February 1988. In his third amended complaint, Simpson alleges that all the defendants violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b); Rule 10b-5, 17 C.F.R. § 240.10b-5; § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77Z (2); § 18 of the Exchange Act, 15 U.S.C. § 78r; North Carolina Securities Act, §§ 78A-8 and 78A-56; and that each defendant is also liable under North Carolina common law for the tort of negligent misrepresentation. In addition, Simpson alleges that DH & S is liable for the common law tort of negligent accounting and auditing. Finally, Simpson alleges that the individual defendants violated § 15 of the Securities Act, 15 U.S.C. § 77o; § 20 of the Exchange Act, 15 U.S.C. 78t; aided and abetted in the violations of federal securities laws; and breached their fiduciary duties.

Simpson has moved for class certification against all defendants except SRC. He seeks to represent all individuals, excluding SRC, its subdivisions, affiliates, and divisions, and the individual defendants and their immediate families, who purchased shares of SRC common stock during the period from February 10, 1986, through December 29, 1987. February 10, 1986 is the date that Simpson first bought his stock in SRC. December 30, 1987 is the date that SRC issued a press release disclosing for the first time SRC’s true financial condition.

DH & S has resisted this motion, arguing that Simpson is not an adequate representa[98]*98tive because he is subject to unique defenses and that Simpson’s theories of recovery fail to meet the commonality required of class claims.

II.

It is well-recognized that alleged violations of federal securities laws are particularly well suited for class action proceedings and that Rule 28 is to be construed liberally to effectuate that end. Kahan v. Rosenstiel, 424 F.2d 161, 169 (3rd Cir.1970), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Green v. Wolf Corp., 406 F.2d 291, 298 (2nd Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); In re Kirschner Medical Corp. Sec. Litig., 139 F.R.D. 74, 77 (D.Md.1991).

To maintain a class action, the Court must find that the four prerequisites set forth in Rule 23(a) and at least one of the requirements enumerated in Rule 23(b) are met. Rule 23(a) states that one or more members of a class may sue or be sued as representative parties of all only if: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims and defenses of the class; and, 4) the representative parties will fairly and adequately protect the interests of the class. In order to met the Rule 23(b) requirements, Simpson argues that this case qualifies for certification under both subsection 23(b)(1) and 23(b)(3). Subsection 23(b)(3) requires that common questions of fact or law predominate and that a class action be superior to other methods of adjudication. Because the Court finds Rule 23(b)(3) dispositive, only the issues under that subsection will be analyzed.

A. Numerosity

To meet the numerosity requirement, a plaintiff “ ‘need not demonstrate with precision the number of persons in the purported class to satisfy the requirement that joinder be impracticable where such a conclusion is clear from reasonable estimates.’ ” Garfinkel v. Memory Metals, Inc., 695 F.Supp. 1397, 1401 (D.Conn.1988) (quoting Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178, 1190 (S.D.N.Y.1982)). See also In re Kirschner Medical Corp. Sec. Litig., 139 F.R.D. 74, 78 (D.Md.1991).

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Bluebook (online)
149 F.R.D. 94, 1993 WL 198839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-specialty-retail-concepts-ncmd-1993.