93 F.R.D. 128 (S.D.N.Y. 1982), 80 Civ. 2221, Kline v. Wolf

Docket Nº:80 Civ. 2221, 80 Civ. 2364.
Citation:93 F.R.D. 128
Opinion Judge:EDWARD WEINFELD, District Judge.
Party Name:Fay M. KLINE, Plaintiff, v. Emanuel L. WOLF, Jay N. Feldman, C. Ray Holloway, William V. Lurie, Carl Prager, Julio Proietto, Jack M. Sattinger and Price Waterhouse & Co., Defendants. Paul BLOCK, Plaintiff, v. Emanuel L. WOLF, Jay N. Feldman, C. Ray Holloway, William V. Lurie, Carl Prager, Julio Proietto, Jack M. Sattinger and Price Waterhouse & Co.
Attorney:Kass, Goodkind, Wechsler & Labaton by Stuart D. Wechsler, Patricia Avery, Joseph Sternberg, New York City, for plaintiff Kline. A. Arnold Gershon, New York City, for plaintiff Block. Jacobs, Persinger & Parker by Irving Parker, Joseph N. Salomon, William Lasher, New York City, for defendants Wolf...
Case Date:January 05, 1982
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 128

93 F.R.D. 128 (S.D.N.Y. 1982)

Fay M. KLINE, Plaintiff,

v.

Emanuel L. WOLF, Jay N. Feldman, C. Ray Holloway, William V. Lurie, Carl Prager, Julio Proietto, Jack M. Sattinger and Price Waterhouse & Co., Defendants.

Paul BLOCK, Plaintiff,

v.

Emanuel L. WOLF, Jay N. Feldman, C. Ray Holloway, William V. Lurie, Carl Prager, Julio Proietto, Jack M. Sattinger and Price Waterhouse & Co., Defendants.

Nos. 80 Civ. 2221, 80 Civ. 2364.

United States District Court, S.D. New York.

January 5, 1982

Consolidated actions were commenced as class actions on behalf of purchasers of corporate stock, based upon alleged misrepresentations in and omissions from corporation's annual report. The United States District Court for the Southern District of New York, Edward Weinfeld, J., 88 F.R.D. 696, denied motion for class certification. Defendants moved, simultaneously with tender offer, for order entering judgment in favor of plaintiffs in amount of tender offers, dismissing each action with prejudice on ground that judgment so entered mooted individual claims, and, in event tenders were rejected, for leave to deposit rejected tenders with court and have stay of all discovery, and plaintiffs orally reapplied for class certification. The District Court, Edward Weinfeld, J., held that: (1) tender to named plaintiffs of amounts claimed in their individual capacities and motion by defendants for judgment in favor of plaintiffs in such amounts did not justify entry of judgment in plaintiffs' favor, where tender offer was " without waiver of any defenses or making any admissions in respect of any matters alleged in the complaints," plaintiffs had declined to accept offer since it was conditional, and substantive claim of each plaintiff for damages allegedly sustained would preclude appeal from final judgment with respect to that aspect of their claim, even though they would still retain their right to take appeal of class certification order, and (2) in absence of any new factual situation, reasons that led to denial of prior motion for class certification remained, and thus oral reapplication for class certification would be denied.

Ordered accordingly.

Page 129

Kass, Goodkind, Wechsler & Labaton by Stuart D. Wechsler, Patricia Avery, Joseph Sternberg, New York City, for plaintiff Kline.

A. Arnold Gershon, New York City, for plaintiff Block.

Jacobs, Persinger & Parker by Irving Parker, Joseph N. Salomon, William Lasher, New York City, for defendants Wolf, Feldman, Lurie, Proietto and Sattinger in the Kline action; and for defendant Proietto, Feldman and Sattinger in the Block action.

Davis Polk & Wardwell by Bartlett H. McGuire, Ogden N. Lewis, Emily E. Berger, Jamie E. Stern, New York City, for Price Waterhouse in both actions.

MEMORANDUM

EDWARD WEINFELD, District Judge.

These two consolidated actions were commenced as class actions on behalf of purchasers of Allied Artists Industries, Inc. stock for the period August 18, 1978 to April 4, 1979 upon claims of violations of section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934.1 The claims allege misrepresentation in and omissions from Allied's 1978 Annual Report. This Court denied plaintiffs' application for class action certification. Familiarity is assumed with its opinion with respect thereto.2

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