In re Crazy Eddie Securities Litigation
MEMORANDUM AND ORDER
This action has been the subject of several Memorandum and Orders, familiarity with all of which are assumed. Plaintiffs now move for class certification. Defendants cross-move for leave to send an information statement to class members.
Plaintiffs ask the court to certify, under Rule 23(a) and 23(b)(3), a class of all persons and entities who purchased Crazy Eddie, Inc. (“Crazy Eddie”) securities during the period from September 13, 1984, through January 18, 1988. They seek to exclude from the class the defendants, the immediate family members of the individual defendants, any entity in which any defendant has a controlling interest, and the legal representatives, heirs, successors or assigns of any such excluded party.
I
(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.
Admittedly at least thousands of persons purchased Crazy Eddie securities during the class period. The proposed class clearly meets the numerosity requirement. See Klein v. A.G. Becker Paribas Inc.,
Questions of law and fact common to the class exist. They include the following: 1) Did the defendants violate federal securities laws? 2) Were Crazy Eddie securities issued pursuant to defective, false, and misleading Registration statements and prospectuses? 3) Were Crazy Eddie certified financial statements, annual reports and public statements false and misleading? 4) Did class members sustain damages? and 5) If so, do they have a remedy for those damages?
Plaintiffs’ claims are typical of those of absent class members. They allege injury resulting from the same course of conduct that injured the absent class members and are based on the same theories of recovery. See Krome v. Merrill Lynch & Co.,
Defendants claim only that John Pastamatakis is an inadequate class representative. They point to his trouble with the English language and to statements made during his deposition in which he expressed a certain confusion about the facts of the case and his duties to the absent class members. Plaintiffs’ counsel in turn direct the court to other statements in the deposition in which Pastamatakis provides an adequate account of the case and of his responsibilities.
A class representative must be “aware of the basic facts underlying the lawsuit” and must not be likely to “abdicate his obligations to fellow class members.” Michaels v. Ambassador Group Inc.,
II
A proposed class must also meet the requirements of one of the subsections of 23(b). Common questions must predominate and a class action must be shown superior to other alternatives for full and fair adjudication.
The predominant issue in this lawsuit will be whether defendants committed the course of conduct alleged by the plaintiffs — did they or did they not disseminate false and misleading information which affected the price of Crazy Eddie securities? Other issues will be subsidiary.
Defendants argue that common questions do not predominate with respect to the plaintiffs’ common-law claims of fraud, negligent misrepresentation and professional malpractice. They point to the national membership of the class and say that application of choice of law rules will result in the application of many different state laws to these claims, especially with regard to the necessity of proving reliance. Individual questions, defendants contend, will predominate. Their brief cites a number of cases in which courts refused to certify common-law claims which implicated the laws of multiple states. See, e.g. Sanders v. Robinson Humphrey/American Express,
Along with other district courts in this circuit, this court declines to decide choice of law issues on a class certification motion and holds, that the application of the laws of different states, if necessary, does not preclude class action litigation of this case. See In Re Lilco Securities Litigation,
Defendants also claim that common questions will not predominate if the class includes takeover participants, speculators, insiders, and tippees. These plaintiffs assert claims which raise the same common and predominating issue of defendants’ liability. While defendants may have defenses against them lacking against other class members,
The proposed class also includes the plaintiffs in a separate action against defendants in this court, Oppenheimer-Palmieri Fund, L.P., v. Peat Marwick Main & Co. Defendants seek to exclude the plaintiffs in that action on the ground that they have indicated that they will opt-out of this action. The court sees no reason to exercise the opt-out election for them. If they wish to opt-out they will notify the court.
The court concludes that plaintiffs have met their burden of showing that common issues predominate and finds that due to the likelihood of an extremely large number of fairly small claims, a class action is the superior method of adjudicating this controversy.
III
Defendants seek to send an information statement to putative class members. The statement would elicit detailed information concerning the member’s purchase or sale of Crazy Eddie securities. Defendants propose to make return of the statement mandatory — failure to return it without good cause would result in the court barring a class member from collecting damages.
Defendants argue that use of the information statement would serve two purposes. First, putative class members who fell into the categories defendants sought to exclude from the class could be identified. The court has obviated that rationale by declining to exclude any of these categories of class members. Second, the parties could use the responses to estimate potential damages.
An important principle underlying
Circumstances may require a court to depart from the spirit of the Federal Rules and impose what amounts to an opt-in requirement. Those special circumstances are not present in this case.
Plaintiffs motion is granted. Defendants motion is denied.
So ordered.