Zinberg v. Washington Bancorp, Inc.

138 F.R.D. 397, 1990 U.S. Dist. LEXIS 20019, 1990 WL 304363
CourtDistrict Court, D. New Jersey
DecidedJune 8, 1990
DocketCiv. A. No. 88-5174 (HAA)
StatusPublished
Cited by38 cases

This text of 138 F.R.D. 397 (Zinberg v. Washington Bancorp, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 1990 U.S. Dist. LEXIS 20019, 1990 WL 304363 (D.N.J. 1990).

Opinion

OPINION

HAROLD A. ACKERMAN, District Judge.

Ms. Randi Zinberg brought this class-action complaint on behalf of herself and all other persons or entities who purchased common stock in Washington Bancorp, Inc. (“WBI”) between March 18, 1988 through November 17,1988, against WBI, Washington Savings Bank (“WSB”), and Mr. Anthony D. Calabrese, Mr. Paul C. Rotondi, Ms. Gwendolyn Connors, Mr. Diodato J. Morin, Mr. Thomas Bingham and Mr. Anthony Cardino, former WBI and WSB officers, alleging violations of the Securities and Exchange Act, Section 10(b), codified at 15 U.S.C. § 78j(b), and Securities and Exchange Rule 10b-5, and a pendent state-law claim of negligent misrepresentation. On August 16, 1989, the plaintiff filed an amended class-action complaint and jury demand. On September 11,1989, the plaintiff filed a notice of motion for class certification. I referred this application to United States Magistrate Stanley R. Chesler for his report and recommendation (“R & R”). He heard oral argument on February 26, 1990. On April 19, 1990, he filed a report, recommending that the plaintiffs motion be granted, and that the class of “all persons or entities who purchased the common stock of Washington Bancorp., Inc. during the period of March 18, 1988 through November 17, 1988 inclusive (the “class period”)” should be certified for both federal and state pendent claims presented. The defendants WBI and WSB have raised objections to certain portions of Judge Chester’s report. I will review them now.

STANDARD OF REVIEW

The Federal Magistrate’s Act of 1968, as amended, 28 U.S.C. § 636(b)(1)(B) and General Rule 40(D)(5) provide that this court can refer certain dispositive motions to a United States Magistrate for an R & R. This delegation of judicial power does [401]*401not violate Article III of the United States Constitution so long as this court ultimately decides the referred matter. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). For this reason, the standard of review for such a report is de novo consideration of all portions of the report to which the parties object, if the subject of the report is a dispositive motion. See, e.g., United Steelworkers of America, AFL-CIO v. New Jersey Zinc Co., 828 F.2d 1001 (3rd Cir.1987). A motion for class certification is such a dispositive motion. See General Rule 40(A)(2) of the General Rules for the United States District Court for the District of New Jersey. I will therefore review the obected-to portions of the instant report on a de novo basis.

BACKGROUND

The plaintiff filed an action “on behalf of herself and all other persons or entities who purchased securities of Washington Bancorp, Inc. (“WBI”) ... within the Class period [between March 18, 1988 through November 17, 1988],” to recover damages arising out of the defendants’ purported federal-securities-law and New Jersey common-law violations (amended complaint ¶ 1). Her amended complaint states that she purchased 650 shares of common stock from WBI during the class period. Apparently, the plaintiff bought these shares from a relative. The plaintiff alleges certain WBI public documents intentionally and recklessly misrepresented WBI’s actual loan policies and procedures and omitted other material facts. WBI’s peak market value was $19.50 on August 18, 1988. After the misrepresentations and omissions were revealed, in November, 1988, apparently the value of the stock plummeted to $11.75 per share. The plaintiff avers that such action, in violation of federal securities law and state common law, caused her, and others like her, monetary harm. After filing the complaint, and the complaint completely surviving a Rule 9(b) and 12(b)(6) attack, see Zinberg v. Washington Bancorp., Inc., Civ. A. No. 88-5174, transcript of opinion (D.N.J. April 24, 1989) (unpublished), the plaintiff filed a motion for class certification. As I stated above, I referred this motion to Judge Chesler for his R & R.

On April 19, 1990, Judge Chesler filed an R & R. Initially, Judge Chesler noted that the main thrust of the defendants’ opposition to the plaintiff’s motion concerned the plaintiff’s alleged inability to meet the “typicality” standard for class certification. R & R, at 3.1 Before treating the “typicality” requirement, he found that the plaintiff had demonstrated that the proposed class was so numerous that joinder would be impracticable. Id. at 4. He further concluded that common questions of law and fact existed among the class. Specifically, he explained, “whether or not defendants, in fact, made misrepresentations to the public is a question of fact which is common to all class members. Likewise, the legal effect of such statements, i.e. whether a fraud upon the market theory is applicable to these facts is common to all class members." Id. at 5.

With respect to typicality, Judge Chesler explained that “[t]he typicality requirement is satisfied as long as plaintiff and the Class ‘point to the same broad course of alleged fraudulent conduct’ to support a claim for relief.” Id. at 7 (quoting In re Electro-Catheter Securities Litig., [1987— 88 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 93,643, at 97,931, 1987 WL 47375 (D.N.J.1987)). Judge Chesler dismissed the defendants’ contention that the plaintiff’s claims were not typical of the class because the plaintiff had access to inside information since she bought the stock through a relative. Judge Chesler reasoned that merely having a close relative as a broker [402]*402did not indicate access to inside information. Judge Chesler thus concluded that the plaintiff satisfied the typicality requirement. He also concluded that the plaintiff would fairly and adequately represent the class. Id. at 9.

Having found that the plaintiff satisfied all the requisites of Fed.R.Civ.P. 23(a), he then turned to whether the plaintiff had satisfied the requirements of Fed.R.Civ.P. 23(b)(3) — whether common issues of law and fact predominated and whether a class action was a superior way to adjudicate the controversy.2 With respect to these requisites, Judge Chesler noted that the defendants argued that reliance on misrepresentations and omissions could not be presumed in this case; that some of the class may have relied on oral representations rather than documents; and that the plaintiff was an insider by way of her relationship to her broker. Apparently, the defendant submitted that these contentions demonstrated that common questions of law and fact did not predominate, and, therefore, that class certification should not adhere based on these grounds.

Judge Chesler, however, disagreed with the defendants. He observed that the plaintiff(s) need not prove individual reliance with regard to the federal claim because the “fraud-on-the market theory eliminated “the need for a direct causal link between every class member.” Id. at 13.

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Cite This Page — Counsel Stack

Bluebook (online)
138 F.R.D. 397, 1990 U.S. Dist. LEXIS 20019, 1990 WL 304363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zinberg-v-washington-bancorp-inc-njd-1990.