Wenderhold v. Cylink Corp.

188 F.R.D. 577, 1999 U.S. Dist. LEXIS 14040, 1999 WL 706027
CourtDistrict Court, N.D. California
DecidedSeptember 3, 1999
DocketNos. C 98-4292 VRW, C 98-4-296 VRW, C 98-4360 VRW, C 98-4536 VRW, C 98-4603 VRW, C 98-4673 VRW, C 98-4757 VRW
StatusPublished
Cited by30 cases

This text of 188 F.R.D. 577 (Wenderhold v. Cylink Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wenderhold v. Cylink Corp., 188 F.R.D. 577, 1999 U.S. Dist. LEXIS 14040, 1999 WL 706027 (N.D. Cal. 1999).

Opinion

WALKER, District Judge.

The above are seven related securities class actions filed against Cylink Corporation and certain of its officers and directors. The plaintiffs in each of these actions allege violations of the Securities Exchange Act of 1934 and SEC Rule 10b-5, 15 U.S.C. § 78j(b), 17 CFR § 240.10b-5. The purported class consists of purchasers of Cylink common stock during various class periods. Some of the named plaintiffs in the seven cases along with two purported class members who have not filed complaints seek as a group to be designated lead plaintiffs (Cylink Shareholder Group) pursuant to section 21D(a)(3)(B), the lead plaintiff provisions of the Private Securities Litigation Reform Act amend-[579]*579merits to the Exchange Act. The Cylink Shareholder Group seek to appoint a consortium of law firms to serve as co-lead counsel for the class. Confronted with this multiparty bid for designation, the court addresses the following issues: provisional certification of lead plaintiff(s), provisional class certification, appointment of class counsel and consolidation.

I

As a preliminary matter, the court must consider whether notice was adequate under the PSLRA notice provisions. The undersigned addressed this issue extensively in Ravens v. Iftikar, 174 F.R.D. 651 (N.D.Cal.1997). Notice adequate under the PSLRA must “identify the claims alleged in the lawsuit and the purported class period and inform potential class members” of their right to intervene in the litigation. House Conf. Rep. No. 104-369, 1§95 U.S.C.C.A.N. at 732. Furthermore, the description of the claims in the notice must be congruent with the claims as alleged in the pleadings. See Ravens, at 656-661.

If, for example, the complaint alleges a uniform inflation in the price of the security throughout the class period due to a single misstatement or misleading omission, then a notice which described the alleged misstatement or omission and set forth the dates of the class period would probably suffice under the PSLRA. Few securities class action complaints are so limited. Typically, the pleadings allege multiple misstatements or omissions each of which allegedly affects the trading price of the security. In such an case, the differing effects of each misstatement or omission must be set forth in the notice.

This requirement stems from the different and conflicting interests of the class with respect to the evidence in the litigation and possible settlement strategies.1 That evidence may well be subject to different interpretations, each of which would generate a different degree of price inflation. Because ty fraud-on-the-market theory of liability upon which securities class actions are predicated collapses liability and damages into one inquiry, see Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), a class member who purchased at a time when one misstatement or omission affected the price of the security may well have interests antagonistic to a class member who purchased at another time during the class period. See Ravens at 671-675.

The defendants at bar contend that the notices here are inadequate. Plaintiffs respond that defendants lack standing to raise this issue, citing language of the PSLRA that states that a challenge to the adequacy of the putatively “most adequate plaintiff’ shall be made “only upon proof of a member of the purported class.” 15 U.S.C. § 78u-4(a)(3)(iii)(II). This provision does not foreclose a challenge by defendants to the adequacy of the notice, only to the selection of the most adequate lead plaintiff.

Adequacy of the notice, after all, is not a matter of concern only to class members. Defendants also have an interest in adequate notice.

Defendants’ interest in an adequate notice stems from the relationship between the notice and the class period which the notice defines. That relationship can affect defendants’ interests in at least two possible ways. One possibility is that some class members may seek to lengthen or shorten the class period in order, respectively, to maximize the overall exposure of defendants or the individual recoveries of certain class members. Defendants may find this serves or disserves their interests as it produces a corresponding reduction in overall liability. Another possibility is that some plaintiffs may seek to lengthen the class period, a position that defendants may find serves their interests because it maximizes the release which defendants may obtain through settlement or judgment. The class period most advantageous to defendants is closely tied to the peculiar facts of each case. In one case, the [580]*580class period most advantageous to defendants may be a lengthy one or it may be a short one or it may one that includes or excludes a time when a certain event occurred. A notice that alerts potential claimants to their claims may, therefore, be in defendants’ interests. Similarly, and counter-intuitive as it may seem, a notice which lulls certain troublesome potential claimants into inaction may be in the interests of the purported lead plaintiffs at bar, their counsel, or both.

The point is that excluding defendants from the discussion of what notice is adequate would not serve to bring to light the range of considerations the court should have in view when deciding upon notice. To be sure, defendants’ interest is a self-interested one, but so of course is that of plaintiffs. The court therefore rejects plaintiffs’ suggestion that the defendants at bar lack standing to comment on the adequacy of PSLRA notice.

Furthermore, certain class members may remain shareholders and this holding forms their larger interest in the controversy at bar, outweighing their interest in a potential recovery. Given adequate notice, therefore, such class members may actually express support for defendants’ position in the litigation. Inadequate notice makes this less likely. For this reason, too, defendants have an interest in notice which will bring forth any such class members. In any event, whether defendants have “standing” to challenge notice or not, the court bears an obligation to ensure that the “best notice practicable” be given to the class and must, therefore scrutinize the notice with care. See F.R.C.P. 23(c)(2).

Turning to the section 78u-4(a)(3) notices in this litigation, nine law firms “published” such notices over the Internet.2 See Nikkho Deck Exs. 4-60. All but one or perhaps two of these notices appear inadequate under the standards articulated in Ravens. The notice of Goodkind, Labaton, Rudoff & Sucharow, for example, states:

Plaintiff alleges, inter alia, that documents disseminated during the Class Period relating to the Company’s results for its 1998 first and second fiscal quarters deceived the investing public concerning the Company’s revenues and earnings for those periods.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Amadeck v. Capital One Financial Corp.
80 F. Supp. 3d 781 (N.D. Illinois, 2015)
In Re Bp, Plc Securities Litigation
758 F. Supp. 2d 428 (S.D. Texas, 2010)
Zhu v. UCBH Holdings, Inc.
682 F. Supp. 2d 1049 (N.D. California, 2010)
Tanne v. Autobytel, Inc.
226 F.R.D. 659 (C.D. California, 2005)
Meyer v. Paradigm Medical Industries
225 F.R.D. 678 (D. Utah, 2004)
In Re Synthroid Marketing Litigation
201 F. Supp. 2d 861 (N.D. Illinois, 2002)
In Re: Cendant Corp.
Third Circuit, 2001
Armour v. Network Associates, Inc.
171 F. Supp. 2d 1044 (N.D. California, 2001)
In Re Lucent Technologies, Inc. Securities Litigation
221 F. Supp. 2d 472 (D. New Jersey, 2001)
In re Quintus Securities Litigation
201 F.R.D. 475 (N.D. California, 2001)
Holley v. Kitty Hawk Inc.
200 F.R.D. 275 (N.D. Texas, 2001)
California Public Employees' Retirement System v. Chubb Corp.
127 F. Supp. 2d 572 (D. New Jersey, 2001)
In re Auction Houses Antitrust Litigation
197 F.R.D. 71 (S.D. New York, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
188 F.R.D. 577, 1999 U.S. Dist. LEXIS 14040, 1999 WL 706027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wenderhold-v-cylink-corp-cand-1999.