Steiner v. Ideal Basic Industries, Inc.

127 F.R.D. 192, 1987 U.S. Dist. LEXIS 14849, 1987 WL 58060
CourtDistrict Court, D. Colorado
DecidedOctober 21, 1987
DocketCiv. A. No. 86-M-456
StatusPublished
Cited by9 cases

This text of 127 F.R.D. 192 (Steiner v. Ideal Basic Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steiner v. Ideal Basic Industries, Inc., 127 F.R.D. 192, 1987 U.S. Dist. LEXIS 14849, 1987 WL 58060 (D. Colo. 1987).

Opinion

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The plaintiffs in these consolidated actions allege that the defendants, during the period March 27, 1981 through March 3, 1986, defrauded the market by making public statements misrepresenting Ideal Basic Industries’ (Ideal) condition, and by failing to disclose material information with respect to the irreparable operational and economic problems which beset Ideal’s $350 million Cris Dobbins plant on the Alabama Gulf Coast, and Ideal’s $54 million renovation of its Boettcher plant. The claims are under Sections 10(b) and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78t (the Exchange Act), and Rule 10b-5 promulgated by the Securities and Exchange Commission.

This court certified a settlement class, consisting of all persons and entities, other than defendants and their immediate families, who purchased or otherwise acquired shares of the common stock of Ideal from March 27, 1981 through March 3, 1986, inclusive, and approved a settlement between class plaintiffs and Ideal, Eugene H. Adams, Phillip F. Anshutz, G.B. Aydelott, Harry Blundell, William R. Bond, D.R.C. Brown, C.B. Flick, Stephen H. Hart, Mort Lowenthal, D.J. McGanney, John C. Mitchell, Richard de J. Osborne, Herbert C. Pinder, Mayfield R. Shilling, Donald S. Stubbs and Russell Thorstenberg (the settling defendants). The plaintiffs now seek class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure to proceed against the remaining defendants.

Considering the plaintiffs’ motion for class certification, the defendants’ response and the hearing held in this matter on June 18, 1987, this court finds that the prerequisites to a class action required by Rule 23(a) have been met.

First, it is clear that the class is so numerous that joinder of all the members would be impracticable. The plaintiffs mailed more than 24,000 notices to members of the settlement class. The settlement class is identical to the class the plaintiffs now seek to certify.

Second, there are questions of law or fact common to the class. The common question of fact is whether the common stock of Ideal was traded at artificially high prices throughout the class period because the defendants made or caused Ideal to make false or unrealistic statements during the class period concerning the value, prospects, operations and financial condition of Ideal resulting from its capital expenditure program on the Cris Dobbins and Boettcher plants. The common question of law is whether the defendants’ conduct violated the securities laws.

The third requirement under Rule 23(a) is that the claims of the representative parties must be typical of the claims of the class. The defendants argue that the [194]*194named plaintiffs are subject to unique defenses rendering their claims atypical. Specifically, they argue that the claims of Aaron Twersky and Frederick Rand, who purchased their stock in 1985, are not typical of earlier investors like William Steiner, who purchased in 1981 or 1982, when Ideal was just starting up the Chris Dobbins plant. The defendants also assert that the named plaintiffs are sophisticated investors, subject to unique defenses. As this court explained in In re Storage Technology Corp. Securities Litigation, 630 F.Supp. 1072 (D.Colo.1986), proof of subjective reliance on particular misrepresentations is unnecessary to establish a Rule 10b-5 claim in a fraud on the market case. “The fraud on the market theory allows a plaintiff to rely on the integrity of the market rather than requiring direct reliance on the defendant’s conduct. It is grounded on the assumption that the market price reflects all known material information and that material misinformation will cause the artificial inflation or deflation of the market price.” Id. at 1077. The plaintiffs allege that the defendants made numerous false statements throughout the entire class period with respect to Ideal’s capital expenditure program, and that as a result Ideal’s common stock was traded at artificially high prices throughout the five year class period. Although the plaintiffs may have purchased their stock at different times, and relied upon different sources of public information in making their investment decisions, those variations are insufficient to defeat the class on typicality grounds. See, e.g.,. In re Storage Technology Corp. Securities Litigation, 113 F.R.D. 113, 117 (D.Colo.1986).

Rule 23(a) also requires that the representative parties will fairly and adequately represent the interests of the class. Adequate representatives are necessary to protect the due process interests of class members. In re Storage Technology Corp. Securities Litigation, 113 F.R.D. at 117. A class representative must be aware of his obligations to pay notification and other costs, and to pursue class claims diligently. A class representative cannot have interests antagonistic to the class. The plaintiffs seek to have the following serve as class representatives:

a. William Steiner: The defendants argue that Steiner would make a poor representative because he is essentially a professional plaintiff, having filed 15 to 20 lawsuits. They note that Steiner is uncertain about the status of many of those cases. However, Steiner is knowledgeable about the status of this action and his responsibilities as a class representative. Mr. Steiner is aware that the consolidated complaint has a different class period than his original complaint, that he represents people who purchased stock between March 1981 and March 1986, and that as a class representative he is responsible for costs. Mr. Steiner reviewed the partial settlement and is aware of the material terms. Accordingly, this court finds that Mr. Steiner is an adequate class representative.

b. Aaron Twersky: The defendants argue that Twersky places undue emphasis on his lawyer in conducting the litigation and demonstrates an alarming unfamiliarity with this lawsuit. The defendants state that Twersky’s limited personal knowledge of the facts underlying this suit, as well as his apparently superfluous role in this litigation to date, demonstrate his inadequacy as class representative. Twersky read the complaint before it was filed, he knows it was originally filed in Alabama, and then filed in Colorado. He said “That the officers were misleading and not telling the truth about the facts which they were aware of many years before they came out into the open. And the news broke down that the plant is no good... People who are responsible with such a big project of hundreds of millions of dollars should know what they are doing. They build a plant and say it will cost $250 million. Then they overran $350 million.” Deposition of Aaron Twersky, p. 24. Twersky knows what a class action is, and the responsibilities of class representatives. He knows the material terms of the partial settlement, including the fact that by settling, the plaintiffs agreed to forego their right to pursue the personal assets of the settling defendants. [195]*195Mr. Twersky will serve as an adequate representative.

c.

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Bluebook (online)
127 F.R.D. 192, 1987 U.S. Dist. LEXIS 14849, 1987 WL 58060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steiner-v-ideal-basic-industries-inc-cod-1987.