Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD Document 91-5 Filed 05/20/2004 Page 1 oi)2g€ 2 Of?)
W H _ KK ki . 0.
1997 WL 792955 Page 1
(Cite as: 1997 WL 792955 (S.D.N.Y.))
H In their post-conference correspondence, counsel
Only the Westlaw citation is currently available. for defendants initially argued that individuals who
are not among the original nine named plaintiffs
cannot be designated as class representatives, and
accordingly their depositions could not be taken
United States District Court, S.D. New York. within the context of the certification issue, until
plaintiffs had made a formal motion under Rule
Thomas ROHRER et al.,Plaintiffs, l5(a), Fed.R.Civ.P., to amend their complaint yet
v. again. That contention was not well founded.
FSI FUTURES, INC., etal., Defendants.
It is true, as defendants point out, that as one of the
No. 94 Civ. 6345(CSH). prerequisites to a class action under Rule 23(a), the
proponents of class certification must be able to
Dec.23, 1997. demonstrate that "the claims or defenses of the
representative parties are typical of the claims or
defenses of the class." Rule 23(a)(3). It follows
MEMORANDUM AND ORDER that a class representative must be a party to the
action at the time the class is certified. But this
HAIGHT, J. case is not presently at that stage. On the contrary,
the parties are about to embark upon discovery
*1 The Court scheduled the status conference held intended to assist the Court in determining whether
on December 9, 1997 in the hope and expectation or not to certify the class, an issue upon which I
that at the end of that conference the decks would intimate no present view. At the end of that
be cleared for a swift voyage of discovery on issues discovery process, it will be incumbent upon the
relevant to class certification. proponents of class certification to identify an
individual or individuals [FN1] whose claims are
That hope and expectation have been dashed by the typical of those of the class. If at the end of class
profiision of counsel’s letters in the wake of the certification discovery, the plaintiffs fail to make
December 9 conference. This Opinion resolves all that showing, then certification will be denied on
issues addressed at the December 9 conference and that ground. But while discovery on this issue is
in the ensuing correspondence of counsel. proceeding-—and it has only just began-- plaintiffs
may designate such potential class representatives
1. The current amended complaint names nine as they choose and then submit those individuals to
residents of Germany as plaintiffs. The complaint the discovery process. Eventually such individuals _
and plaintiffs' counsel profess that the claims of must be confirmed in their role as class
those nine individuals are typical of a class of some representatives by being made named parties to the
1,500 individual investors, all resident in Germany. action, either by stipulation or motion under Rule
Plaintiffs seek certification of that class. l5(a), thereby satisfying the requirement of Rule
23(a)(3).
At the December 9 conference, plaintiffs' cotmsel
stated an intention to designate four individuals as
class representatives. Only one of those FNI. Nor do I intimate any present view as
individuals, Schenek, is a present plaintiff. The to whether, in this case, a single class
other three proposed class representatives are representative would be sufficient.
named Niedermeyer, Denzler, and Neubauer. It
was at the December 9 conference that, for the first
time, these three individuals graduated from the *2 Counsel for defendants now say that they will
chorus and saw their names in lights. consent to a proceeding with class action discovery
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Case 3:03-cv-00945-CFD Document 91 -5 Filed 05/20/2004 Page 2 oi):2gc 3 Of3
1997 WL 792955 Page 2
(Cite as: 1997 WL 792955 (S.D.N.Y.))
of the existing plaintiff, Schenek, and of the three documents described in paragraphs 1-6, 8, 9, 11-16,
proposed new plaintiffs, if but only if plaintiffs 20, and 21 of plaintiffs document production
agree that they will not at any subsequent time seek request. In their post-conference letter
"to revive" any of the other existing eight plaintiff submissions, defendants' counsel say that they may
as class representatives. For the reasons given in wish to oppose discovery of doctunents falling
the preceding analysis, I decline to impose that within one or more of those categories, on the
condition upon the plaintiffs. ground that such discovery would subject
defendants to "undue burden or expense," that being
2. Plaintiffs request, that depositions of these four one of the grounds for a protective order under Rule
individuals proceed at this time on issues 26(c).
conceming both class certification and merits
discovery, is denied. Depositions of the proposed Plaintiffs counsel say that defendants have waived
class representatives should proceed on issues any right to object on this ground, but I do not think
concerning class certification only. The Court that is a fair characterization of the record.
recognizes that to some degree class certification Accordingly defendants may, if so advised, apply
issues and merits issues overlap. Such depositions for relief on that ground to Magistrate Judge
will not preclude defendants from further discovery Andrew Peck, to whom the case is being referred by
of these individuals on merits issues, should that separate order for supervision of discovery. In
prove necessary after resolution of the class such event, it would be defendants' burden to
certification issue. persuade Judge Peck that documents of the sort
determined by this Court to be relevant to the issues
3. As to the appropriate issues for discovery by would be unduly burdensome or expensive to
defendants at this time, I make the following produce.
directions:
*3 The timing of discovery will be detemrined by
(a) Defendants may seek discovery conceming the Judge Peck in consultation with counsel. This
level of sophistication of the proposed class Court would hope that discovery on the certification
representatives to determine whether the class issue can be completed by February 28, 1998, but
representatives' investment backgrounds give rise to Judge Peck has the discretion to fashion his own
any unique defenses. time timetable.
(b) Defendants may inquire into how the Judge Peck is respectfully requested to inform this
representation of plaintiffs came about. If Court when all class certification discovery has
defendants are so advised, they may pursue within been completed.
reason an inquiry into the fmancial resources of the
plaintiffs. Any inquiry into the litigiousness of The foregoing is SO ORDERED.
plaintiffs is limited to securities matters.
1997 WL 792955, 1997 WL 792955 (S.D.N.Y.)
This is not an exhaustive list of discoverable facts
on the class certification issue. These rulings do END OF DOCUMENT
not more than resolve disputes revealed by the
parties' pre-conference submissions.
4. As to plaintiffs reciprocal discovery requests,
discovery at this time is again limited to issues
relevant to class certification. Defendants are to
produce Michael Thomas and Robin Rodriguez for
depositions.
5. The depositions of Thomas and Rodriguez will
be proceeded by defendants‘ production of
documents relevant to class certification issues.
The Court identifies as relevant for that purpose the
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