Trief v. Dun & Bradstreet Corp.

144 F.R.D. 193, 24 Fed. R. Serv. 3d 1275, 1992 U.S. Dist. LEXIS 14249, 1992 WL 308998
CourtDistrict Court, S.D. New York
DecidedSeptember 22, 1992
DocketNo. 89 Civ. 1741 (DNE)
StatusPublished
Cited by91 cases

This text of 144 F.R.D. 193 (Trief v. Dun & Bradstreet Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 24 Fed. R. Serv. 3d 1275, 1992 U.S. Dist. LEXIS 14249, 1992 WL 308998 (S.D.N.Y. 1992).

Opinion

[195]*195OPINION & ORDER

EDELSTEIN, District Judge:

Plaintiffs have brought this suit pursuant to Rule 23 of the Federal Rules of Civil Procedure (the “Rules”) on behalf of a class consisting of all persons who purchased Dun & Bradstreet Corporation common stock between October 2, 1986 and November 15, 1989 (the “Class Period”). Plaintiffs assert that defendants Dun & Bradstreet Corporation (“D & B”), Charles W. Moritz and Robert B. Weissman violated Sections 20(a) and 10(b) of the Securities Exchange Act of 1934 (the “1934 Act”), Securities and Exchange Commission (“SEC”) Rule 10b-5, and committed common law fraud and negligent misrepresentation. This case is before the Court on a motion for class certification and a related motion by William M. Feldman to intervene both individually and on behalf of the class, pursuant to Rule 24(b)(2).

BACKGROUND

The Dun & Bradstreet Corporation is a Delaware corporation with its principal place of business in New York. Charles Moritz is the Chairman and Chief Executive Officer of D & B. Robert E. Weiss-man is D & B’s President and Chief Operating Officer. D & B is a holding company whose operations are divided into three segments: (1) Business and Information Services, which includes Dun & Bradstreet Credit Services (“D & B Credit Services”); (2) Publishing Services; and (3) Marketing Services. As of February 17, 1989, D & B had 187,177,507 shares of common stock outstanding, which were held by approximately 15,956 shareholders of record. D & B common stock is listed and traded on the New York Stock Exchange, as well as on several other domestic and international stock exchanges.

[196]*196Plaintiffs’ suit is based on the alleged unlawful practices of D & B Credit Services. D & B Credit Services supplies credit information to approximately 62,000 customers. It maintains an extensive data base containing financial, credit, and marketing information on more than thirteen million companies located in the United States and abroad. Through this data base, which is the largest of its kind in the world, D & B Credit Services controls approximately 90 per cent of the market for corporate credit information.

During the Class Period, D & B’s SEC filings, other publicly available documents, and statements to the public indicated that D & B’s earnings were growing and that D & B had complete confidence that its earnings would continue to grow. Meanwhile, according to plaintiffs, D & B developed a sales plan (the “Sales Plan”) designed to defraud its customers. Plaintiffs contend that this Sales Plan led to an artificially inflated price for D & B stock.

The Sales Plan required those who wished access to D & B’s credit reports to purchase and prepay for an annual subscription of “units” from D & B. The prepaid units were then traded for D & B credit reports. Plaintiffs allege that D & B deliberately encouraged customers to over-order units. For example, the Sales Plan placed a substantial premium on additional units ordered by a customer after the customer exhausted the initial allotment of units.

After inducing its customers to purchase more units than they might need, plaintiffs allege that D & B limited, refunds and credits for those prepaid units that remained unused at the end of the year. Moreover, according to plaintiffs, D & B had full knowledge of every customer’s unit usage, but as a matter of company policy it misled or failed to inform customers as to the amount of units they had consumed. Plaintiffs aver that, as a result of this scheme, customers were led to believe that they had used more units than they actually did, which induced them to renew their annual subscription of units in amounts greater than they would have had D & B provided accurate information.

Plaintiffs allege that as a consequence of the Sales Plan, D & B obtained hundreds of millions of dollars from defrauded customers, which artificially inflated D & B’s earnings and revenues. Plaintiffs assert that, absent this scheme, D & B’s net earnings during the Class Period would have been materially lower or nonexistent. The increased revenues resulting from the fraudulent activities had the accompanying effect of artificially inflating the price of D & B’s common stock. As a result of this scheme, plaintiffs claim that they were fraudulently induced to purchase D & B stock and were subsequently economically harmed when the stock price fell.

In 1989, dissatisfied D & B customers began to complain that they had been charged for services that they had neither ordered nor received. On March 2, 1989, The Wall Street Journal published a front-page investigative article detailing allegations made by former D & B salesmen concerning misconduct in connection with the sale of units to customers. A number of D & B customers filed lawsuits against D & B. Defendants continued to deny any wrongdoing.1 On June 23, 1989, D & B agreed to pay $18 million to settle a number of the lawsuits brought by D & B customers alleging fraud in connection with D & B Credit Services.

Plaintiffs further allege that throughout the period March 2, 1989 through November 15, 1989, D & B successfully withheld from the public the depth and nature of the consumer fraud scandal. Moreover, plaintiffs contend that D & B failed to reveal the true costs and impact that customer suits would impose upon D & B. On November 15, 1989, D & B disclosed for the first time that its earnings per share would [197]*197fall; D & B blamed the fall on, inter alia, the March 2, 1989 Wall Street Journal article. After D & B’s November 15, 1989 announcement, D & B’s common stock traded at a substantially lower price than it had prior to the announcement.

Following this series of events, numerous suits were filed against D & B in courts throughout the country. By order of the Judicial Panel on Multi-District Litigation dated August 14, 1989, related actions against D & B, pending in other Federal District Courts, were consolidated in this Court. A single consolidated complaint was filed in this Court on August 24, 1989.

DISCUSSION

A. Class Certification

In evaluating whether class certification is appropriate, the Court must consider the factors enumerated in Rule 23 of the Federal Rules of Civil Procedure. In light of the importance of the class action device in the context of securities fraud litigation, the Second Circuit has held that these factors are to be construed liberally. Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 179 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991) (citing Green v. Wolf Corp., 406 F.2d 291, 295, 298 (2d Cir.1968),

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Bluebook (online)
144 F.R.D. 193, 24 Fed. R. Serv. 3d 1275, 1992 U.S. Dist. LEXIS 14249, 1992 WL 308998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trief-v-dun-bradstreet-corp-nysd-1992.