South Carolina National Bank v. Stone

139 F.R.D. 325, 23 Fed. R. Serv. 3d 191, 1991 U.S. Dist. LEXIS 18327, 1991 WL 217961
District Court, D. South Carolina·Decided August 20, 1991·No. Civ. A. No. 7:88-791-17·Published·Cited by 24 cases

Opinion

[328]*328ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

This matter is now before the court on the Plaintiffs’ motion to certify a plaintiff class.1 A hearing on this motion was held on this and numerous other motions before the Honorable Matthew Perry on July 19-20, 1989. On October 12, 1989, before Judge Perry ruled on the class certification motion, he recused himself from the case and the case was transferred to me. Because of the transfer, the case file was moved from Columbia to Greenville. On October 24, 1989, Magistrate Judge Catoe entered an order granting the class certification on the record before him, but he then learned that not all the briefs and other submissions had been transmitted from the Clerk’s Office. Accordingly, on November 14, 1989, Magistrate Judge Ca-toe withdrew and vacated his order granting class certification and directed that discovery be completed before ruling upon the class certification motion. The motion is now properly before this court. Additional memoranda have been received by the court and- the parties were heard on this issue again on August 12, 1991. For good cause shown, this motion is hereby granted.

GENERAL CLASS ACTION PRINCIPLES

Violations of federal securities laws are particularly well suited for class action treatment. Dolgow v. Anderson, 43 F.R.D. 472, 488 (E.D.N.Y.1968), (citing Advisory Committee Notes to Rule 23, 39 F.R.D. 73, 102-103); Unicorn Field, Inc. v. Cannon Group, Inc., 60 F.R.D. 217, 221 (S.D.N.Y.1973). Actions based upon securities fraud are among the most usual class actions brought under Rule 23(b)(3). Such suits commonly involve large numbers of investors, each with a small individual claim, who, without the class action device, might have no practical recourse due to the high costs of litigation. For this reason, class actions are the most efficient way of enforcing the securities regulations, and courts have tended to be liberal in certifying them. 3B Moore and Kennedy, Moore’s Federal Practice ¶ 23.02 [2.-19] (2d ed. 1987). Due to the importance of the class action device in the context of suits by aggrieved purchasers of securities, “the interests of justice require that in a doubtful case ... any error, if there is to be one, should be committed in favor of allowing the class action.” Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969); see also Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766.

THIS ACTION MEETS THE RULE 23 PREREQUISITES FOR CLASS CERTIFICATION

Fed.R.Civ.P. 23 establishes a two part test for class action certification: the action must satisfy all four subparts of Rule 23(a) and it must also satisfy the additional prerequisites of either Rule 23(b)(1), 23(b)(2) or 23(b)(3). Plaintiffs seek certification of a plaintiff class pursuant to Rule 23(b)(3).

A. Initial Requirements of Rule 23(a)

Rule 23(a) provides in pertinent part: One or more members of a class may sue or be sued as representative parties on behalf 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 or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.

1. Proposed Class is so Numerous that Joinder of all Members is Impracticable—Rule 23(a)(1)

The trustee bank’s bondholder list contains the names of approximately 1,765 [329]*329bondholders. This large number of bond purchasers clearly satisfies the requirement of “numerosity.”

2. There are Questions of Law and Fact Common to all the Potential Class Members—Rule 23(a)(2)

This securities fraud action is based primarily on omissions of material facts, a fraudulent course of conduct, a fraud on the undeveloped market, aiding and abetting liability, and controlling person liability, theories which necessarily involve common questions of both law and fact. There are numerous questions of law and fact common to all the class members presented in this case, the most important of which include whether the alleged omitted facts were, in fact, omitted, whether they were material and whether the named plaintiffs can satisfy the elements of the claims asserted. These common issues are sufficient to satisfy the requirement of Rule 23(a)(2) that there be some issue of law or fact common to all the class members.2

3. Claims of the Representative Plaintiff are Typical of the Claims of the Potential Class Members—Rule 23(a)(3)

Properly considered, “a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his claims are based on the same legal theory.” 1 H. Newberg, New-berg on Class Actions § 3.13, at 167 (2d ed. 1985). Typicality is rarely lacking in securities class actions. Miller v. Central Chinchilla Group, Inc., 66 F.R.D. 411, 414 (S.D.Iowa 1975). Allegations that the plaintiffs’ securities purchases arose out of the defendants’ common course of conduct satisfy the typicality requirement. See, e.g., Kaufman v. Lawrence, 76 F.R.D. 397 (S.D.N.Y.1977); Epstein v. Weiss, 50 F.R.D. 387, 390 (E.D.La.1970). Clearly, the plaintiffs’ purchases arose out of a common course of conduct on the part of the defendants. The actions complained of preceded or occurred simultaneously with the closing of the bond issue, and accordingly, were the same vis-a-vis the entire class.

Named plaintiffs, Gordon K. Billipp and Elizabeth W. Billipp, bought Skylyn Hall bonds. They still own their bonds, and they have suffered a loss on their bonds. They testified that, like most investors, they relied on the integrity of the market in purchasing their bonds, and they relied on the Preliminary Official Statement (POS) both directly (by reading it) and indirectly (through their broker’s reliance on the POS). They are not “insiders” and have no particular “ax” to grind, other than their desire to recover their losses. These named plaintiffs are “typical” of the class members as a whole.

4. Named Plaintiffs and Their Chosen Counsel will Fairly and Adequately Protect the Interests of the Class— Rule 23(a)(Ji)

Contrary to defendants’ assertion, the extent of the named plaintiff’s knowledge of securities law and the legal niceties of his claims is not relevant to determining whether the plaintiff can adequately represent the class. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Lewis v. Curtis, 671 F.2d 779, 789 (3d Cir.1982), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982). Similarly, the named plaintiff’s willingness, or lack thereof, to advance the full costs of the litigation or of class notice is irrelevant. Rand v. Monsanto Co., 926 F.2d 596, 599 (7th Cir.1991).3

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South Carolina National Bank v. Stone, 139 F.R.D. 325, 23 Fed. R. Serv. 3d 191, 1991 U.S. Dist. LEXIS 18327, 1991 WL 217961 (D.S.C. 1991).

139 F.R.D. 325 (South Carolina National Bank v. Stone) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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