United States Court of Appeals
Fifth Circuit
REVISED NOVEMBER 10, 2005 F I L E D
October 24, 2005
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 05-40636
MICHAEL FEDER, ET AL.,
Plaintiffs,
versus
ELECTRONIC DATA SYSTEMS CORPORATION;
JAMES E. DALEY, Executive Vice President
and Chief Financial Officer; RICHARD H. BROWN,
Chairman of the Board and Chief Executive Officer,
Defendants-Appellants,
versus
DEPARTMENT OF THE TREASURY OF THE STATE
OF NEW JERSEY, Division of Investment on
behalf of Common Pension Fund A.,
Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Appellants-defendants, Electronic Data Systems, Inc. (EDS),
James E. Daley, and Richard H. Brown, appeal the certification of
a Rule 23(b)(3) plaintiff class in this securities class action.
A panel of this court granted defendants’ petition for permission
to appeal and we have jurisdiction to hear this interlocutory
appeal under 28 U.S.C. § 1292(e) and Rule 23(f). Finding no abuse
of discretion by the district court, we affirm the class
certification.
Facts and Proceedings Below1
EDS is a Fortune 100 company that provides information
technology outsourcing. On October 6, 2000, the United States Navy
awarded a $6.9 billion contract to EDS to create a global intranet,
known as the Navy Marine Corps Intranet (NMCI). To account for the
NMCI contract, as well as other long-term contracts, EDS used the
"percentage of completion" (POC) method of accounting, under which
income is recognized as work on a contract progresses. On
September 19, 2002, following a revised-earnings announcement by
EDS made after the close of trading on September 18, EDS’s stock
price dropped from a September 18 close of $36.46 to a September 19
close of $17.20. This drop in price resulted in a one-day market
loss of $9.7 billion. Securities holders thereafter brought
1
More information about the facts of this case can be found in the district
court’s Practice and Procedure Order No. 20, granting class certification. See
In re Elec. Data Sys. Corp. Securities Litig., 226 F.R.D. 559 (E.D.Tex.2005).
See also In re Elec. Data Sys. Corp. Securities and “ERISA” Litig., 298 F. Supp.
2nd 544 (E.D. Tx. 2004) (denying defendants’ Rule 12(b)(6) motion).
2
several class actions alleging, among other things, that EDS knew
of serious problems with the NMCI contract and improperly used POC
accounting to hide these problems and inflate the price of EDS
stock. In addition, the securities class action plaintiffs allege
that EDS made material misrepresentations of its progress on the
NMCI contract in filings with the Securities and Exchange
Commission and in its press releases and that appellants Brown and
Daley, EDS’s former CEO and CFO, respectively, were responsible for
the scheme to artificially inflate EDS stock price. In addition to
the suits filed by the securities holders, participants in EDS’s
retirement savings plans brought related suits alleging on a
similar basis violations of the Employee Retirement Income Security
Act (ERISA). On March 7, 2003, the Multidistrict Litigation Panel
transferred all related actions to the district court below for
consolidated pretrial proceedings. On May 5, 2003, the district
court consolidated all of the securities actions brought against
EDS and separately consolidated all of the related ERISA actions.
Also on May 5, 2003, the Department of the Treasury of the State of
New Jersey, including its Division of Investment on behalf of
Common Pension Fund A (New Jersey), was appointed Lead Plaintiff
under the Private Securities Litigation Reform Act of 1995 (PSLRA).
This appointment of New Jersey as Lead Plaintiff was made subject
to reconsideration at the class certification stage.
New Jersey engaged retired New Jersey Superior Court Judge C.
Judson Hamlin (Hamlin) to oversee securities class actions in which
3
New Jersey was involved, including this one. Hamlin is counsel at
a private law firm, Purcell, Ries, Shannon, Mulcahy & O’Neill. To
enable Hamlin to oversee and coordinate its class actions, New
Jersey delegated certain responsibilities to Hamlin, and Hamlin
serves as New Jersey’s principal liaison with class counsel. Even
though New Jersey has engaged Hamlin to fulfill this role, it is
the class counsel for each class action case that is responsible
for paying Hamlin’s fees, not New Jersey. It is the New Jersey
Attorney General, however, who approves the payment of Hamlin’s
fees, and class counsel is required to pay all fees so approved.
Hamlin’s fees are paid during the course of the case, and his fees
are not contingent — Hamlin is paid the same amount whether or not
New Jersey prevails.
On February 11, 2005, the district court certified the class
pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil
Procedure and named New Jersey as class representative.2
Appellants bring this interlocutory appeal, focusing primarily on
New Jersey’s arrangement with Hamlin and claiming error by the
2
The February 11 order defines the certified class as follows:
“All persons and entities who purchased or otherwise acquired the
securities of Electronic Data Systems Corp. (“EDS”) between February
7, 2001 through and including September 18, 2002 (the “Class
Period”), and who were damaged thereby. Excluded from the Class are
defendants, members of the familiies of each the Individual
Defendants, any parent, subsidiary, affiliated, partner, officer,
executive, director of any defendant, any entity in which any such
excluded person has a controlling interest, and the legal
representatives, heirs, successors, and assigns of any such excluded
person or entity.” Certification Order, 226 F.R.D. at 572.
4
district court in its decisions regarding adequacy, typicality, and
superiority under Rule 23.
Discussion
Rule 23(a) provides four prerequisites to a class action: “(1)
numerosity (a ‘class [so large] that joinder of all members is
impracticable’); (2) commonality (‘questions of law or fact common
to the class’); (3) typicality (named parties’ claims or defenses
‘are typical ... of the class’); and (4) adequacy of representation
(representatives ‘will fairly and adequately protect the interests
of the class’).” Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231,
2245 (1997). In addition to these prerequisites, a party seeking
class certification under Rule 23(b)(3) must also demonstrate “both
(1) that questions common to the class members predominate over
questions affecting only individual members, and (2) that class
resolution is superior to alternative methods for adjudication of
the controversy.” Bell Atlantic Corp. v. AT&T Corp., 339 F.3d 294,
301 (5th Cir. 2003). In certifying the class and naming New Jersey
the class representative, the district court found that New Jersey
met all of these requirements. In re Electronic Data Systems Corp.
Securities Litigation, 226 F.R.D. 559 (E.D.Tex. 2005) (hereinafter
“Certification Order”).
I. Standard of Review
We review a district court’s class certification decision for
abuse of discretion. Berger v. Compaq Computer Corp., 257 F.3d
5
475, 478 (5th Cir. 2001) [Berger I]. “‘Whether the district court
applied the correct legal standard in reaching its decision on
class certification, however, is a legal question that we review de
novo.’” Id. at 479 (quoting Allison v. Citgo Petroleum Corp., 151
F.3d 402, 408 (5th Cir. 1998)). “A district court that premises
its legal analysis on an erroneous understanding of the governing
law has abused its discretion.” Unger v. Amedisys Inc., 401 F.3d
316, 320 (5th Cir. 2005).
II. Adequacy
Appellants’ principal argument on appeal is that New Jersey is
not a proper class representative because it does not meet the
“adequacy” prerequisite of Rule 23(a)(4). Appellants challenge New
Jersey’s adequacy on three independent grounds. First, Appellants
make a novel two part argument centered around Hamlin’s role in the
litigation and his unusual fee arrangement. Second, Appellants
assert that New Jersey has a conflict of interest with the class
because the accounting firm KPMG is New Jersey’s auditor and was
also EDS’s auditor at the time of the alleged fraud. Third,
Appellants assert that New Jersey has a conflict of interest with
certain class members who are also members of a class suing EDS
separately for violations of ERISA.
We have identified a “generic standard” for the adequacy
requirement, noting that “the class representatives [must] possess
a sufficient level of knowledge and understanding to be capable of
6
‘controlling’ or ‘prosecuting’ the litigation.” Berger I, 257 F.3d
at 482–83. We have also noted that “the PSLRA raises the standard
adequacy threshold” with its “requirement that securities class
actions be managed by active, able class representatives who are
informed and can demonstrate they are directing the litigation.”
Id. at 483. Although we noted that the PSLRA raises the adequacy
threshold, we have “not, however, created an additional requirement
under rule 23(a)(4) that . . . the putative class representative
possess[] a certain level of experience, expertise, wealth or
intellect, or a level of knowledge and understanding of the issues,
beyond that required by our long-established standards for rule 23
adequacy of class representatives.” Berger v. Compaq Computer
Corp., 279 F.3d 313, 313–14 (5th Cir. 2002) [Berger II]. The
“long-established standard” for the adequacy determination on which
we principally relied in Berger I requires “‘an inquiry into [1]
the zeal and competence of the representative[s’] counsel and . .
. [2] the willingness and ability of the representative[s] to take
an active role in and control the litigation and to protect the
interests of absentees[.]’” Berger I, 257 F.3d at 479 (quoting
Horton v. Goose Creek Independent School Dist., 690 F.2d 470 (5th
Cir. 1982)). In addition to determining the proposed class
counsel’s zeal and competence and the proposed class
representative’s willingness and ability, the district court’s
“adequacy inquiry also ‘serves to uncover conflicts of interest
7
between the named plaintiffs and the class they seek to
represent.’” Id. at 479–80 (quoting Amchem Prods., 521 U.S. at
625, 117 S.Ct. at 2236).
A. Hamlin’s effect on New Jersey’s adequacy
Regarding Hamlin, Appellants argue (1) that the district court
found New Jersey adequate only because of Hamlin’s involvement, and
(2) that New Jersey should not be allowed to rely on Hamlin to
establish its adequacy because Hamlin is not New Jersey’s employee,
but is instead an independent lawyer engaged by New Jersey and,
moreover, because Hamlin’s fees are paid not by New Jersey, but by
class counsel. As discussed below, both arguments fail.
1. The district court’s finding of New Jersey’s adequacy
The district court found that “New Jersey has proven that it
is ‘willing and able to take an active role in and control the
litigation and to protect the interests of absentees.’”
Certification Order, 226 F.R.D. at 567 (quoting Berger I, 257 F.3d
at 479).
The district court also noted that “New Jersey, through its
representative, Judge Hamlin, is taking an active role in the
litigation, affirming its adequacy in protecting the absent class
members.” Id. The district court’s choice of the verb “affirming”
indicates that it believes that New Jersey had already established
that it would fairly and adequately protect the interests of the
plaintiff class. The district court also noted that “Hamlin’s
8
presence helps New Jersey prove it has adequate involvement in the
litigation and gives New Jersey the legal muscle a class
representative should possess to actively and willingly control the
litigation, which is exactly what the Private Securities Litigation
Reform Act envisions.” Id. at 568 (citing Berger I, 257 F.3d at
483). On this issue, the district court concludes, “In short, the
arrangement with Judge Hamlin enhances New Jersey’s ability to
control the litigation.” Id. Here again, the district court’s
choice of the words “helps” and “enhances” demonstrates that it did
not, as appellants claim, find that New Jersey is adequate “solely”
due to Hamlin's involvement.
In support of their argument, appellants point to the
following statement by the district court: “Hamlin allows New
Jersey to fill the ‘unoccupied space’ the Fifth Circuit envisions
between the two extremes of expecting non-legal personnel to master
every legal detail and otherwise legally uninformed plaintiffs
deferring every decision to counsel.” Certification Order, 226
F.R.D. at 568 (citing Berger I, 257 F.3d at 483). Appellants
equate this statement to a holding that Hamlin, and Hamlin alone,
“allows” New Jersey to qualify as adequate and “allows” New Jersey
to fulfill its responsibilities. While this statement is somewhat
helpful to Appellants’ argument, it cannot carry the weight they
place on it, especially as it is immediately followed by the
statement identified earlier that “In short, the arrangement with
9
Judge Hamlin enhances New Jersey’s ability to control the
litigation.” Certification Order, 226 F.R.D. at 568. Finally,
appellants claim that “the District Court found that New Jersey has
‘only generalized knowledge of the case.’” The district court
would be surprised to learn of this “finding.” Actually, the
district court wrote: “Defendants argue that John McCormac, the
Treasurer of New Jersey, Peter Langerman, the Director of the New
Jersey Division of Investment, and other high ranking government
officials have only generalized knowledge of the case.”
Certification Order, 226 F.R.D. at 568. Appellants’
characterization of the district court’s summary of their argument
as a finding that their argument is correct is, at best, wholly
lacking in merit.
Appellants also argue that the record compels a holding that,
if New Jersey meets the Rule 23(a)(4) adequacy requirements, it is
based solely on Hamlin. Appellants point to testimony in the
record that they claim demonstrates the inadequacy of the actual
New Jersey employees. For example, appellants rely on deposition
testimony by Peter Langerman, New Jersey’s Director of the Division
of Investment, that “I do tend to accept at face value what my
lawyers tell me. If that’s an [infirmity], I guess that’s a
problem. But I do rely on my lawyers.” As we noted in Berger,
however, class representatives are entitled to rely to some extent
10
on counsel, although they should “know more than that they were
‘involved in a bad business deal.’” Berger I, 257 F.3d at 483.
New Jersey, on the other hand, points to deposition testimony
showing that Langerman understood the fraud-on-the-market theory of
this case and that the focus of the suit is the improper booking of
revenues, pursuant to the POC accounting system, under the NMCI
Contract. Unlike the unsophisticated plaintiff in Berger,
Langerman is an accountant with significant experience in investing
and accounting, so there is no reason to suspect that his knowledge
was derived solely from counsel (e.g. that he did not know himself
what POC accounting was and why it was improper in this case).
There is no abuse of discretion in making the judgment that, given
his testimony and expertise, Langerman probably had an
understanding of these issues that was not derived solely from
counsel. Appellants also point to testimony where they say New
Jersey State Treasurer John “McCormac admitted he does not review
briefs or know any of the issues regarding class certification.”
As with Langerman, however, New Jersey is able to point to
testimony reflecting McCormac’s proper understanding of the case
(McCormac’s testimony summarizing the complaint: “The allegations
are that the company improperly used a method of accounting known
as percentage of completion, and as a result, financial results
were misrepresented and fraud was perpetrated on the investors of
the securities.”). Furthermore, there is evidence that New Jersey
11
exercised control over the litigation. McCormack testified that
the class period and the decisions to add potential defendants were
made by Hamlin and the Attorney General’s office, and that he had
input into those decisions before the suit was filed.
Additionally, Hamlin testified that he sends the Attorney General
and two other people in his office every pleading filed in the
case. Most importantly, the Attorney General’s office would be
involved directly in any settlement. In sum, there is evidence in
the record to support a determination that New Jersey meets the
adequacy requirements even without Hamlin.
2. Can New Jersey rely on Hamlin to establish its adequacy?
We turn now to appellants’ argument that New Jersey’s reliance
on Hamlin violates the Rule 23(a)(4) guidance we provided in Berger
I. Appellants claim that this “class certification ruling patently
conflicts with Berger.” We disagree.
a. Hamlin’s status as an outside lawyer
Appellants note that Hamlin is an “outside lawyer” for New
Jersey, and they claim that his involvement violates Berger I. In
discussing the adequacy standards of Rule 23 in Berger I, however,
we addressed the relationship between the class representative and
the class counsel. We did not address the present situation in
which another attorney, not affiliated with class counsel, is
engaged by the class representative to assist it in its monitoring
12
of class counsel.3 The guidelines in Berger I do not prevent a
proposed class representative from hiring an outside attorney (not
affiliated with class counsel) to help the class representative in
carrying out its role as such and in overseeing proposed class
counsel, as long as that outside attorney has no conflicts with the
class.4
While appellants correctly point out that class counsel cannot
also serve as the class representative, the cases they cite do not
reach the present situation. In Zylstra v. Safeway Stores, Inc.,
578 F.2d 102 (5th Cir. 1978), cited by appellants, we emphasized
the potential conflicts between the class counsel and the class
itself, explaining:
“We reach that conclusion because of the conflict of
interest which is inherent in such a situation. An
attorney whose fees will depend upon the outcome of the
case and who is also a class member or closely related to
a class member cannot serve the interests of the class
with the same unswerving devotion as an attorney who has
no interest other than representing the class members.”
Id. at 104.
3
Although our opinion in Berger I refers to "counsel," "lead counsel,"
"their counsel," "representatives’ counsel," "plaintiffs’ counsel," and
"lawyers," all of these terms are used as synonyms for "class counsel." One
modifier for counsel that we did not employ in the Berger I opinion is "outside."
While Hamlin is admittedly an "outside lawyer," he is not class counsel.
4
As the district court here observed, additional outside counsel with no
potential conflicts with the class (i.e. counsel whose fees are not contingent
upon the outcome of the litigation or on approval of class counsel) can help the
class representative. In Berger I we noted that “class representatives need not
be legal scholars and are entitled to rely on [class] counsel.” 257 F.3d at 483.
However, as we noted in Berger I, there are limits to this position because too
much reliance by the class representative on class counsel shifts the balance of
power and brings to the fore the potential conflicts of interest between class
counsel and the class. As the class representative becomes more competent in
legal matters, it becomes less reliant on class counsel.
13
Similarly, in Matassarin v. Lynch, 174 F.3d 549 (5th Cir. 1999),
also cited by appellants, we rejected an attorney’s attempt to
serve as both class counsel and class representative, noting that
“her duty to represent class interests would impermissibly conflict
with her chance to gain financially from an award of attorneys’
fees.” 174 F.3d at 559. The principal concern underlying the
adequacy guidelines in Berger I is the protection of the due
process rights of the absent members of the class. 257 F.3d at
480. In Berger I, as in Zylstra and Matassarin, we sought to avoid
any conflict with the interests of the absent class members. Id.
(citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)).
With Hamlin and New Jersey, the district court properly found no
potential conflicts with the interests of the absent class members.
Certification Order, 226 F.R.D. at 567.
b. The fact that Hamlin’s fees are borne by class counsel
The district court did “recognize[] that it would be troubling
if Judge Hamlin, like outside counsel, was only paid if New Jersey
prevailed, but this is not the case.” Id. at 568. The district
court reviewed the relevant features of Hamlin’s compensation:
“Judge Hamlin was retained by the Attorney General of New
Jersey, and it is the Attorney General, not outside
counsel, who can terminate his services. His
compensation is determined by the Attorney General, not
outside counsel. The Attorney General reviews and
approves each bill Judge Hamlin submits, and only after
the Attorney General reviews and approves the bill does
outside counsel transfer payment to Judge Hamlin. . . .
14
Judge Hamlin's compensation is assured for as long as he
performs in a manner deemed satisfactory by the Attorney
General of New Jersey. Judge Hamlin has great incentive
to act objectively in protecting the interests of New
Jersey and the class of plaintiffs, and little incentive
to take actions adverse to New Jersey's interests.” Id.
at 567–68.
The evidence supports these findings and appellants do not serously
argue otherwise. We agree with the district court’s finding that
Hamlin’s pay arrangement does not create a conflict of interest
with the class members. Hamlin is not a puppet of class counsel,
and he does not answer to class counsel. On the contrary, Hamlin
answers to the New Jersey Attorney General. Hamlin’s pay is not
contingent on the outcome of the class action, nor is it contingent
on any approval thereof by class counsel or on keeping class
counsel happy. Hamlin’s interests are fully aligned with those of
New Jersey, which are fully aligned with those of the absent
members of the class.5
As part of their argument regarding Hamlin’s pay, appellants
claim that New Jersey, by requiring class counsel to pay Hamlin’s
fees, has established a “pay to play” arrangement in violation of
the PSLRA and, therefore, should be deemed an inadequate class
representative. For support, appellants point to the PSLRA
requirement that the class representative file a sworn
5
Even if these payments reduce New Jersey’s litigation costs, they do not
affect New Jersey’s interest in a high settlement. New Jersey has every
incentive to recover every penny of its more than $40 million in losses, which
translates into a proportionally high recovery for the class. Thus, New Jersey’s
interests are aligned with those of the class.
15
certification that “states that the plaintiff will not accept any
payment for serving as a representative party on behalf of a class
beyond the plaintiff’s pro rata share of any recovery, except as
ordered or approved by the court in accordance with paragraph (4).”
15 U.S.C. § 78u-4(a)(2)(A)(vi).6
Although appellants attempt to characterize this arrangement
as some sort of bribe to the state by describing it as, in effect,
“giving New Jersey thousands of dollars for the right to represent
the State,” we find nothing improper about the actual arrangement.
In this case, thousands of dollars are not being given to New
Jersey, nor are thousands of dollars being given to a state
official to influence his or her decision to hire class counsel.
Instead, the requirement to pay Hamlin’s compensation was an open
part of the general proposal process for all law firms seeking to
represent New Jersey in securities class actions. From the
beginning, this was an understood uniform, specified cost of
undertaking this legal work on a contingency basis. As New Jersey
points out, “In contingent fee cases, counsel routinely agree to
advance the value of their time and other expenses directly related
6
Section 78u-4(a)(4) provides:
“(4) Recovery by plaintiffs
The share of any final judgment or of any settlement that is
awarded to a representative party serving on behalf of a class shall
be equal, on a per share basis, to the portion of the final judgment
or settlement awarded to all other members of the class. Nothing in
this paragraph shall be construed to limit the award of reasonable
costs and expenses (including lost wages) directly relating to the
representation of the class to any representative party serving on
behalf of a class.”
16
to the litigation.” The payments provided for clearly do not
involve New Jersey receiving more than its portion, on a share
basis, of any final judgment or settlement of the action so as to
violate the first sentence of section 78u-4(a)(4); nor does the
court’s approval of the arrangement violate the second sentence of
that section (see note 6 supra). The evidence does not establish
that this is a “payment for serving as a representative party” such
that the PSLRA precludes the district court’s approval of the
arrangement and appointment of New Jersey as class representative.
B. New Jersey’s alleged conflict with the class due to KPMG
Appellants claim that New Jersey’s failure to name KPMG as a
defendant in this case, coupled with the fact that KPMG is New
Jersey’s auditor, demonstrates a conflict of interest with the
class that should disqualify New Jersey from serving as class
representative. KPMG was EDS’s outside auditor during the class
period. Because plaintiffs allege fraudulent behavior primarily
associated with revenue reporting under the NMCI contract,
appellants argue that “KPMG is a prime candidate to be a defendant
in this case.” Appellants claim that “a class representative who
fails to sue a potential defendant with which it has a professional
or personal relationship is presumptively inadequate.” Id. We
reject appellants’ contentions in this respect.
Appellants rely on Paper Systems, Incorporated v. Mitsubishi
Corporation, 193 F.R.D. 601 (E.D. Wis. 2000), to support their
17
claim of presumptive inadequacy. In Paper Systems, the proposed
class representative, Paper Systems, “caused its largest supplier
to be dismissed as a defendant at the behest of Paper Systems’
president, on the ground that he had ‘a good relationship with
them.’” Id. at 611. The Paper Systems court began its analysis
with the observation that “generally, failure to join all
defendants is a strategy choice, and except for a showing of unique
circumstances, is probably not a ground for finding inadequacy.”
Id. (emphasis added). The court held that “Paper Systems’ conduct
in dismissing Appleton can in no way be considered a strategic
decision on behalf of the class members it purported to represent.
Paper Systems’ actions appear to betray a conflict of interest
between named parties and the class they seek to represent.” Id.
The court found Paper Systems’ conduct to be proof of the unique
circumstances needed for finding that Paper Systems was an
inadequate class representative. Id.
Appellants’ next authority is Dubin v. Miller, 132 F.R.D. 269
(D. Colo. 1990), where the court found that “Plaintiff's personal
relationship with former director Dale Tower casts a further cloud
upon plaintiff's suitability to fulfill his fiduciary role. Tower
was a director for thirteen months during the class period, yet he
has not been named as a defendant. . . . The omission to sue a
potential defendant cannot but prejudice the class.” Id. at 272.
The Dubin court continued, however, noting that “While the
18
authorities cited by plaintiff do stand for the proposition that a
class plaintiff need not join every possible defendant, plaintiff
is obligated to supply a persuasive reason for the non-joinder.”
Id. at 273.
The final authority cited for appellants’ proposition is Kolin
v. American Plan Corporation, No. CV-84-3183, 1986 WL 36311
(E.D.N.Y. Apr. 3, 1986), where the court found inadequate a class
representative who, due to family ties with potential defendants,
was “unable to examine certain potential claims of the class.” Id.
at *8. The Kolin court noted: “The crux of the Rule 23(a)(4)
requirement is that plaintiffs and plaintiffs’ counsel not have any
interests antagonistic to those of the class.” Id.
We essentially agree with the statement in Paper Systems that
“generally, failure to join all defendants is a strategy choice,
and except for a showing of unique circumstances, is probably not
a ground for finding inadequacy.” 193 F.R.D. at 611. Even if
these cases do support a presumption of inadequacy against a class
representative who fails to sue a potential defendant, it is not a
particularly strong presumption, and it is certainly not an
irrebuttable one. In this case, any such presumption was rebutted
by New Jersey. The district court found that “New Jersey has no
self-interest in protecting KPMG,” and “New Jersey has shown its
zeal in pursuing class interests, even when those interests
conflict with KPMG's interests.” Certification Order, 226 F.R.D.
19
at 570. Moreover, the district court noted that “New Jersey has
also stated that it is willing to sue all viable defendants, even
KPMG, if the facts lead there; thus far, the facts have not led to
suing KPMG.” Id. New Jersey also explains that its “decision not
to sue KPMG was not based on any relationship it had with KPMG.
Rather, New Jersey’s decision was based on the fact that EDS
concealed its fraud from the market and from KPMG.” There are also
valid strategic reasons for New Jersey to not name KPMG as a
defendant. We agree with the district court’s conclusion on this
issue: “New Jersey is only a client of KPMG – not vice versa – so
it has no self-interest in appeasing KPMG. . . . New Jersey would
not necessarily benefit financially by maintaining a good
relationship with KPMG. Thus, the Court does not believe there are
unique circumstances here that threaten adequacy.” 226 F.R.D. at
570.
C. New Jersey’s alleged conflict with certain class members
due to the ERISA class action
Appellants claim that New Jersey has a disqualifying conflict
of interest with the interests of certain members of the proposed
class who are also participants in EDS’s 401(k) plan and, as such,
have an ERISA class action pending against the same defendants.
The disqualifying conflict with the 401(k) participants, according
to appellants, is that “the ERISA case is based on a broader theory
of loss causation than the securities case and the two cases
involve different measures of damages.” Certification Order, 226
20
F.R.D. at 568 (footnote omitted). Because the theory of loss
causation in the ERISA action is broader than the theory of loss
causation in this securities case, appellants claim that the 401(k)
participants will be judicially estopped from asserting their
theory in the ERISA action. We disagree. “Judicial estoppel
‘prevents a party from asserting a position in a legal proceeding
that is contrary to a position previously taken in the same or some
earlier proceeding.’ The purpose of the doctrine is to prevent
litigants ‘from “playing fast and loose” with the courts . . . .’”
Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir.
2003) (quoting Ergo Science, Inc. v. Martin, 73 F.3d 595, 600 (5th
Cir. 1996)). Before a party can be judicially estopped, however,
“it must be shown that ‘the position of the party to be estopped is
clearly inconsistent with its previous one; and . . . that party
must have convinced the court to accept that previous position.’”
Id. (quoting Ahrens v. Perot Systems Corp., 205 F.3d 831, 833 (5th
Cir. 2000)). Here, the district court hearing both cases explained
how the position of the plaintiffs in the ERISA class is
complementary with the position taken by the plaintiffs in the
securities class. 226 F.R.D. at 569. Although the theories in
each action are different, they are not mutually exclusive. Id.
For these reasons, we find that the district court applied the
correct legal standard to its Rule 23(a)(4) adequacy determination
and it did not abuse its discretion in finding that New Jersey will
21
fairly and adequately protect the interests of the absent class
members.
III. Typicality
The Appellants claim error by the district court in finding
that New Jersey met the typicality requirement of Rule 23(a)(3).
According to Appellants, New Jersey’s claims are not typical of the
claims of the class because there are three unique defenses
applicable to New Jersey’s claims.
A. The effect of an “arguable” unique defense on class
certification
According to appellants, “[a] class representative who could
‘arguably’ be subject to unique defenses is both an inadequate and
atypical class representative under Rule 23.” Appellants’
authorities, however, do not support this proposition. In each of
the cases cited by appellants, the court of appeals upheld the
district court’s denial of class certification based on an arguable
unique defense. What does not follow from these decisions,
however, is that a court of appeals should usually reverse a
district court’s decision to certify a class after the district
court considered and rejected defendant’s arguable “unique defense”
contention. On the contrary, these cases demonstrate the
deferential review that courts of appeals give to the district
22
court’s decisions regarding class certification.7 Had the district
court here denied class certification based on the unique defenses
allegedly faced by New Jersey, then appellants’ authorities would
be helpful in showing how such a decision should not be overturned.
But that is not the case, and we reject appellants’ claim that the
presence of an arguable unique defense necessarily destroys
typicality.
B. The arguable “unique defenses” to New Jersey’s claims
1. New Jersey’s post-disclosure purchases of EDS stock
The first “unique defense” raised by Appellants is the fact
that New Jersey purchased shares of EDS stock after the disclosure
7
In Warren v. Reserve Fund, Inc., 728 F.2d 741 (5th Cir. 1984), we upheld
the district court’s refusal of class certification, noting that, “While the
availability or ultimate success of this [unique] defense . . . is not certain,
we have held in the past that the presence of this characteristic peculiar to the
named plaintiff does present a sufficient question of typicality to justify a
district court's decision to deny class certification.” Id. at 747 (footnote
omitted). We also noted that “[t]he rationale behind this hesitance is a concern
that representation of the class will suffer if the named plaintiff is
preoccupied with a defense which is applicable only to himself.” Id.
Significantly, for the purposes of appellants’ argument here, we then repeated
our standard of review on class certification: “‘The decision to grant or deny
certification is initially committed to the sound discretion of the district
judge and will not be overturned except for abuse of discretion.’” Id. (quoting
Redditt v. Mississippi Extended Care Centers, Inc., 718 F.2d 1381, 1387 (5th Cir.
1983)). Finding no abuse, we affirmed the district court. Id. Appellants’
other authorities provide the same result. See J. H. Cohn & Co. v. American
Appraisal Associates, Inc., 628 F.2d 994, 999 (7th Cir. 1980) (“Under the
circumstances, we cannot say that [the district court] arbitrarily refused to
certify the class.”); Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222
F.3d 52, 59 (2d Cir. 2000) (“We conclude that the district court did not abuse
its discretion when it denied Dorflinger's motion to intervene as class
representative.”).
23
of EDS’s alleged fraud.8 The district court addressed this
argument, noting that “New Jersey was not alone in purchasing EDS
securities after the September 18th [2002] announcement. Other
institutional investors, including several that may be members of
this class, made similar purchases. Like New Jersey, they felt EDS
stock had hit a bottom and was thus a good buy at that point in
time.” Certification Order, 226 F.R.D. at 565. Nonetheless,
appellants insist that a plaintiff who purchases a security after
receiving notice of alleged fraud, as New Jersey did, is subject to
a unique defense and is therefore necessarily atypical for purposes
of Rule 23(a)(3). We reject this argument.
In support of their proposition, appellants cite Rolex
Employees Retirement Trust v. Mentor Graphics Corp., 136 F.R.D. 658
(D.Or. 1991). In Rolex, the district court found that “Rolex has
not met its burden of satisfying Rule 23(a)(3) because the defenses
Rolex must prepare to meet are not typical of the defenses which
may be raised against the other members of the proposed class.” Id.
at 664. Specifically, the district court noted that Rolex
continued to trade in Mentor Graphics stock after the alleged
misrepresentations and concluded that “Rolex may ultimately devote
great effort toward the arguable defenses that arise from these
facts. Therefore, there is a substantial likelihood that if Rolex
8
New Jersey purchased some 17,000 shares September 20, 2002, 2,000 shares
September 24, 2002, and some 500,000 shares in March 2004.
24
is named as the representative of the proposed class, defenses
unique to Rolex could become the focus of the litigation to the
detriment of the class.” Id. While the holding in Rolex—that
purchases of a company’s stock after the disclosure of alleged
fraud defeats typicality—is helpful to appellants’ argument, it is
not generally accepted.9
9
A number of cases on both sides of the argument are identified in Rosen
v. Textron, Inc., 369 F.Supp.2d 204 (D.R.I. 2005). In Rosen, as in this case,
the defendants claimed that typicality was not met because the proposed class
representative had made post-disclosure purchases of defendants’ stock. Id. at
208.
“To support this proposition, Defendants cite In re Safeguard
Scientifics, 216 F.R.D. 577, 582 (E.D.Pa.2003) (concluding lead
plaintiff was subject to unique defenses in part because he
‘increased his holdings in Safeguard stock even after public
disclosure of the alleged fraud’); Kovaleff v. Piano, 142 F.R.D. 406,
408 (S.D.N.Y.1992) (finding unique defense where ‘plaintiffs
increased their holdings of Mizlou common stock after disclosure of
the alleged fraud’); Rolex, 136 F.R.D. at 664 (concluding plaintiff
was subject to unique defense where he ‘continued to trade in the
stock in Mentor Graphics after he learned of the alleged
misrepresentations of defendants’); and Epstein [v. American Reserve
Corp], 1988 WL 40500, at *3-4 [N.D.Ill. Apr. 21, 1988] (‘The problem
in this case, however, is that Herb Jablin is subject to unique lack
of reliance defenses. First, and most striking, is the fact that
purchases of ARC securities were made in both the Epstein and Wenger
accounts after the alleged fraudulent information had become
known.’).” 369 F.Supp.2d at 208–09.
The Rosen court then listed the cases that reject this proposition:
“Plaintiffs, however, counter with several recent cases from many of
the same jurisdictions, which they describe as constituting the
majority view. See In re Rent-Way Sec. Litig., 218 F.R.D. 101, 114
(W.D.Pa.2003) (‘[T]hese purchases, having occurred after the
putative class period, are irrelevant to the instant litigation.’);
In re Nortel Networks Corp. Sec. Litig., No. 01 Civ. 1855(RMB), 2003
WL 22077464, at *3 n. 4 (S.D.N.Y. Sept. 8, 2003) (rejecting argument
that plaintiff’s purchase of defendant's stock ‘well after the
alleged “fraud” was “exposed”’ makes plaintiff atypical of class);
In re Frontier Ins. Group, Inc. Sec. Litig., 172 F.R.D. 31, 42
(E.D.N.Y.1997) (‘The fact that Taub attempted to recoup her losses
25
We have not yet decided whether the purchase of a company’s
stock after disclosure of alleged fraud necessarily presents a
unique defense against that purchaser such that Rule 23(a)(3)
typicality is categorically precluded. In addition to the district
court in this case, other district courts in this circuit have
rejected this argument. See, e.g., Lehocky v. Tidel Technologies,
Inc., 220 F.R.D. 491, 501–02 (S.D. Tex. 2004) (finding that “courts
have ruled that purchases of stock by the class representatives
after negative announcements during the class period or even after
the close of the class period do not destroy typicality” and that
“the key typicality inquiry is whether a class representative would
be required to devote considerable time to rebut Defendants'
claims.”); In re FirstPlus Fin. Group, Inc., 2002 WL 31415951, at
*6 (N.D. Tex. Oct. 28, 2002) (“The Court disagrees with Defendants
that this issue will present a sufficient distraction to render
Doremus atypical.”). We reject the argument that a proposed class
representative in a fraud-on-the-market securities suit is as a
matter of law categorically precluded from meeting the requirements
of Rule 23(a) simply because of a post-disclosure purchase of the
by continuing to purchase Frontier stock after the disclosure of the
alleged misrepresentations has no bearing on whether or not she
relied on the integrity of the market during the class period.’); In
re Bally Mfg. Sec. Corp. Litig., 141 F.R.D. 262, 269 n. 7
(N.D.Ill.1992) (‘Bally’s contention that plaintiff Karinsky’s claims
are atypical because he purchased stock after the proposed class
period is unavailing.’) (emphasis in original).” 369 F.Supp.2d at
209.
26
defendant company’s stock. Reliance on the integrity of the market
prior to disclosure of alleged fraud (i.e. during the class period)
is unlikely to be defeated by post-disclosure reliance on the
integrity of the market. This seems particularly so after the
stock price has been “corrected” by the market’s assimilation of
the new information. As the district court noted, “both the high
[pre-disclosure] and low [post-disclosure] prices were assumed
accurate since the stocks were traded on an efficient market.”
Certification Order, 226 F.R.D. at 566.
2. New Jersey’s questionable performance as a fund manager
Appellants claim that New Jersey’s mismanagement of its
investment funds subjects it to a unique defense and thereby
renders it atypical. The district court, however, flatly rejected
this argument as having “little bearing on New Jersey’s ability to
prosecute the losses specific to this case.” Id. We generally
agree with the following statement from Cromer Finance Ltd. v.
Berger, 205 F.R.D. 113, 129 n.19 (S.D.N.Y. 2001): “Even where an
investor seeks a risky investment and losses are foreseeable, he is
still entitled to truthful and accurate information in making
investment decisions. . . . All persons entering into financial
transactions are entitled to accurate information in assessing
risk.” Whether or not New Jersey mismanaged its funds, it was
“entitled to accurate information” from the market, and so the
class’s fraud-on-the-market claim will not suffer from any claims
27
of mismanagement. As the district court noted, “While New Jersey’s
pension fund may have made some poor investments, here New Jersey
only seeks recovery for losses caused by EDS’s conduct.”
Certification Order, 226 F.R.D. at 566.
3. New Jersey’s relationship with KPMG
Appellants claim that New Jersey is rendered atypical because
of the unique defense that its auditor is KPMG, and KPMG was also
EDS’s auditor during the class period. Appellants’ theory is that
“Defendants will be able to cross-examine New Jersey about why it
feels comfortable relying on KPMG as its own auditor, and
defendants can be expected to use that testimony to argue that they
reasonably relied on KPMG as well.” The district court rejected
this argument, noting that “reliance on audits from a ‘Big Four’
accounting firm like KPMG does not alone make one subject to unique
defenses.” Certification Order, 226 F.R.D. at 565. As applied in
this context, we agree with the district court.
We find that the district court did not abuse its discretion
in finding that New Jersey’s claim is typical of the claims of the
class.
IV. Superiority
Appellants claim that the superiority requirement of Rule
23(b)(3) is not met because New Jersey has not provided a trial
plan, and that the district court’s certification order in the
absence of trial plan violates our holding in Robinson v. Texas
28
Automobile Dealers Association, 387 F.3d 416 (5th Cir. 2004). We
did not hold in Robinson, however, that the submission of a trial
plan was a prerequisite for a finding of superiority. Instead, we
stated that “[a] court must consider ‘how a trial on the alleged
causes of action would be tried.’” 387 F.3d at 425 (quoting Castano
v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996)). In Robinson,
the district court conditionally certified a plaintiff class and we
held that “[t]he district court abused its discretion by finding
that ‘this class action is the superior method for adjudicating
this controversy’ and by not conducting any kind of analysis or
discussion regarding how it would administer the trial.” 387 F.3d
at 425. The potential trial complications presented in Robinson,
however, are quite different from those in this case. Robinson was
an anti-trust case involving “[p]otentially, millions of consumers”
and “over a thousand defendants.” Id. at 420. Because the
proposed class in Robinson included anybody who had purchased a new
or used car in Texas between 1994 and 2003, the district court
should have considered how it would find jurors who were not
members of the class. Id. at 426. In addition, the district court
in Robinson did not certify a defendant class, with the result that
several hundred defendants (or more), each with the “absolute right
to individually defend itself by presenting direct evidence,” would
expect to “offer a witness or two.” Id. This securities fraud
class action with three defendants does not present similar
29
challenges for the district court. In addition, unlike Robinson.
the district court “has carefully considered any possible
difficulties in a trial on the alleged cause of action.”
Certification Order, 226 F.R.D. at 571. Thus, as the district
court found, “Robinson is inapplicable and New Jersey does not need
to submit a trial plan to establish superiority.” Id. The
district court premised its legal analysis of this question on a
correct understanding of the governing law, and it did not abuse
its discretion in finding that New Jersey was not required to
submit a trial plan as a prerequisite for finding that this class
action meets the superiority requirement of Rule 23(b)(3).
V. The aggregate effects of Appellants’ arguments
Finally, appellants claim that “The rigorous Rule 23(a)
analysis requires courts to consider arguments against class
certification in the aggregate. . . . The District Court failed to
make such a determination here, analyzing each argument
individually and certifying the class despite substantial questions
regarding New Jersey’s adequacy and typicality.” There is no
indication that the district court believed it could not or should
not consider appellants’ arguments in the aggregate. Moreover, it
is not clear why appellants claim that the district court did not
consider the cumulative effect of their arguments, other than the
fact that it rejected all of them. It is certainly not unusual
that the district court’s certification order addressed appellants’
30
arguments one by one. Appellants appear to be arguing that the
district court, after rejecting each of appellants’ arguments, must
then also explicitly state that it considered the failed arguments
in the aggregate and state whether they fail in the aggregate.
This argument is without merit.
Conclusion
For the foregoing reasons, the certification order of the
district court is
AFFIRMED.10
10
Appellee’s motion to supplement the record on appeal is denied.
31