Wagner v. Barrick Gold Corp.

251 F.R.D. 112, 2008 U.S. Dist. LEXIS 15811, 2008 WL 465115
CourtDistrict Court, S.D. New York
DecidedFebruary 15, 2008
DocketNos. 03 Civ. 4302(RMB), 03 Civ. 5059(RMB), 03 Civ. 5104(RMB), 03 Civ. 5856(RMB), 03 Civ. 6089(RMB)
StatusPublished
Cited by16 cases

This text of 251 F.R.D. 112 (Wagner v. Barrick Gold 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
Wagner v. Barrick Gold Corp., 251 F.R.D. 112, 2008 U.S. Dist. LEXIS 15811, 2008 WL 465115 (S.D.N.Y. 2008).

Opinion

DECISION AND ORDER

RICHARD M. BERMAN, District Judge.

1. Background

In this action, filed on or about June 12, 2003, Richard Wagner, Muriel P. Engelman, Philip Sehechter, Ira Gaines, C.H. Smith, and Stanley D. Cohen (collectively, “Plaintiffs”), on behalf of a putative class, allege that Barrick Gold Corporation (“Barrick”), Randall Oliphant, John K. Carrington, and Jamie C. Sokalsky (collectively, “Defendants”) violated Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5, and Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), by, among other things, “issufing] false and misleading statements.”1 (3d Am. Compl., dated Jan. 6, 2005, ¶ 18.)

On or about August 13, 2007, Plaintiffs moved to certify a class “consisting of all purchasers of [Barrick] securities on the New York Stock Exchange (‘NYSE’) and/or the Toronto Stock Exchange (‘TSE’) between February 14, 2002 and September 26, 2002, inclusive, ... and who were damaged thereby,” and to appoint Stanley D. Cohen (“Cohen”), Anton Del Fomo (“Del Fomo”), and Yvette T. Houle (“Houle”) as class representatives, and the law firms of Schiffrin Barroway Topaz & Kessler, LLP (“Schiffrin Barroway”) and Brower Piven, A Professional Corporation (“Brower Piven”), as class counsel.2 (Pis. Notice of Mot. for Class Certification, dated Aug, 13, 2007, at 1.) Plaintiffs argue that this case “presents a prototypical situation for class treatment under Rule 23 [of the Federal Rules of Civil Procedure],” and that Plaintiffs have met “all four perquisites of Rule 23(a)” and satisfied the standard for class certification under Rule 23(b)(3). (Pis. Mem. of Law in Supp. of Mot. for Class Certification, dated Aug. 13, 2007 [115]*115(“Pls.Mem.”), at 1-2, 4.)3 On or about September 13, 2007, Defendants opposed certification of the class on several grounds, arguing, among other things, that “[e]ach of the proposed class representatives ... is subject to unique defenses and therefore inadequate to represent the class”; “individual issues of reliance would predominate over common issues at trial”; the “Court lacks subject matter jurisdiction over [the Canadian] investors”; and “the class period proposed by Plaintiffs ... is too long.” (Defs. Opp’n to Pis. Mot. for Class Certification, dated Sept. 13, 2007 (“Defs.Mem.”), at 3, 14, 21.)4

Oral argument was held on February 24, 2008. (See Tr. of Proceedings, dated Feb. 14, 2008.).

For the reasons that follow, the Court grants Plaintiffs’ motion for class certification.

II. Legal Standard

To succeed on a motion to certify a class, plaintiffs first must satisfy the prerequisites set forth in Rule 23(a) of the Federal Rules of Civil Procedure:

(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 interests of the class.

Fed.R.Civ.P. 23(a). “Second, plaintiffs must show that the putative class falls within one of the three categories set forth in Rule 23(b).”5 In re AMF Bowling Sec. Litig., No. 99 Civ. 3023(DC), 2002 WL 461513, at *3 (S.D.N.Y. Mar. 26, 2002). A class can be certified under Rule 23(b)(3) if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3); see also In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395-96 (S.D.N.Y.2008).

“Plaintiffs bear the burden of showing that their proposed class actions meet the four prerequisites of Rule 23(a) and the ‘predominance’ and ‘superiority’ requirements of Rule 23(b)(3).” Fosamax, 248 F.R.D. at 395-96. “A court must conduct a ‘rigorous analysis’ to determine if those requirements are met, resolving any factual disputes relevant to the Rule 23 analysis.” Id. (citing In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 29 (2d Cir.2006)). “In considering whether to certify a class, a court may not address the merits of the action except to the extent that the merits issue overlaps with a Rule 23 requirement.” Id. (citing Initial Pub. Offering, 471 F.3d at 41).

III. Analysis

Rule 23(a)(1): Numerosity

“Plaintiffs believe that there are at least hundreds, and likely thousands of members of the class.” (3d Am.Compl. ¶ 50.) According to Plaintiffs, during the class period, “Barrick had approximately 543 million [116]*116shares of common stock outstanding which were actively traded on the [NYSE],” (3d Am.Compl. ¶ 50), and the “average daily trading volume ... was 3,983,826 shares.” (Hakala Decl. ¶ 6.) Defendants do not appear to dispute that the proposed class is numerous (and that joinder would be impractical). (See Defs. Mem. at 1-25.) “In securities fraud class actions relating to publicly owned and nationally listed corporations, the numerosity requirement may be satisfied by a showing that a large number of shares were outstanding and traded during the relevant period.” In re Vivendi Universal, S.A. Sec. Litig., 242 F.R.D. 76, 84 (S.D.N.Y.2007) (quoting Teachers’ Ret. Sys. of La. v. ACLN Ltd., No. 01 Civ. 11814(LAP), 2004 WL 2997957, at *3 (S.D.N.Y. Dec. 27, 2004)). “Class certification is frequently appropriate in securities fraud cases involving a large number of shares traded publicly in an established market.” In re Deutsche Telekom Ag Sec. Litig., 229 F.Supp.2d 277, 280-81 (S.D.N.Y.2002) (citing In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 123 (S.D.N.Y.1997)).

Rule 23(a)(2): Commonality

Plaintiffs assert that common legal and factual issues include, among others, “whether Defendants violated the federal securities laws” and “whether statements made by Defendants to the investing public ... misrepresented or omitted to disclose material facts about the business and operations of Barrick.” (Pls. Mem. at 6.) Defendants do not appear to dispute commonality. (See Defs. Mem. at 1-25.) Rule 23(a)(2) “does not require that every question of law or fact be common to each class member.”

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Bluebook (online)
251 F.R.D. 112, 2008 U.S. Dist. LEXIS 15811, 2008 WL 465115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-barrick-gold-corp-nysd-2008.