UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
July 17, 1968
ARTHUR J. HOHMANN, PLAINTIFF, APPELLANT,
PACKARD INSTRUMENT COMPANY, INC., AN ILLINOIS CORPORATION, ET AL., DEFENDANTS-APPELLEES. CHARLES ASHBROOK ET AL., PLAINTIFFS-APPELLANTS, V. PACKARD INSTRUMENT COMPANY, INC., AN ILLINOIS CORPORATION, ET AL., DEFENDANTS-APPELLEES
Hastings, Swygert and Cummings, Circuit Judges.
SWYGERT, Circuit Judge.
These are consolidated appeals from an interlocutory order entered by the district court, striking the class action allegations of two complaints seeking damages for alleged violations of the federal security laws.
The defendants (common to both suits) are the Packard Instrument Company, Inc., an Illinois corporation located in Brookfield, Illinois; its president, Lyle E. Packard; A. G. Becker & Co., Incorporated, of Chicago, which underwrites and sells securities; and Joseph J. Levin, chairman of the Executive Committee of A. G. Becker and a director of Packard Instrument. Packard Instrument is engaged in the business of the development, manufacture, and sale of scientific instruments, principally for the detection and measurement of radioactivity.*fn1
Pursuant to a public offering of 100,000 shares of the common stock of Packard Instrument made in February 1963, the plaintiff in the first suit, Arthur J. Hohmann, purchased 500 shares of the stock. The plaintiff in the second suit, Charles Ashbrook, purchased 200 shares of the stock, and his coplaintiff, Burman Investments, a partnership, purchased 175 shares of the stock.*fn2 The plaintiffs in each suit based their respective actions for damages on alleged violations of the antifraud provisions of the federal securities laws,*fn3 claiming that a prospectus or registration statement issued by Packard Instrument in connection with the public offering of its stock omitted material facts. The actions were brought on behalf of the named plaintiffs and on behalf of a class of persons similarly situated.
After the suits were started in 1963, the parties undertook extensive discovery. Final preparation for trial was under way when, on July 1, 1966, the amendment to Rule 23 of the Federal Rules of Civil Procedure took effect.*fn4 Shortly thereafter, on the motions of the defendants, the district court struck the class allegations of the two complaints. From this order, these consolidated interlocutory appeals were granted.
In reaching his decision, the district judge thought that Rule 23 as amended should govern the disposition of the motions to strike the class allegations of the complaints. In so doing he referred to the Supreme Court's order approving the recommended amendments to the Federal Rules of Civil Procedure, 383 U.S. 1031, (February 28, 1966), and in particular, that part of the order providing that the amended rules "shall govern * * * in all further proceedings in actions then pending." The plaintiffs contend, however, that Rule 23 as it read before the 1966 amendment should be applied. Although this contention is arguable in light of the savings provision of the Supreme Court order,*fn5 we believe the district judge was correct in applying the amended rule to the facts before him since the court had made no determination whether these were or were not proper class actions before the effective date of the amendment. Nonetheless, we are of the opinion that the district judge erred in holding that these suits were not maintainable as class actions.
In essence the district judge's error resided in his reasoning that a quantitative test should be applied to the rule's requirement that the plaintiff "fairly and adequately protect the interests of the class." In his decision, the judge referred to the fact that only two out of over eight hundred purchasers of the stock in question had filed actions. He also alluded to the fact that no additional members of the alleged class had sought to intervene during the pendency of the suits. Finally, the judge mentioned that "less than 30 per cent of a select mailing group have responded favorably to a letter holding out the possibility of a favorable verdict with no assumption of any personal obligation."
The Second Circuit, in the recent case of Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968), discussed the question of how to determine the adequacy of representation and rejected the idea that "quantitative elements," such as those enumerated by the judge in the instant case, should be relied upon. We are in agreement. With respect to intervention, the Second Circuit pointed out:
If we have to rely on one litigant to assert the rights of a large class then rely we must. The dismissal of the suit out of hand for lack of proper representation in a case such as this is too summary a procedure and cannot be reconciled with the letter and spirit of the new rule. 391 F.2d at 563.
We agree that whether other members of the class have sought to intervene is not determinative of the question whether the plaintiffs are qualified to act in behalf of the absent members of the class. Even one member of a large number of claimants can provide the kind of representation for all which might otherwise be unattainable if each claimant had to act individually. In this case, there is no indication that the plaintiffs or their counsel will not make the vigorous, conscientious, and undivided effort required to "fairly and adequately protect the interests of the class."
Of course, as the defendants argue, the avoidance of a multiplicity of litigation is one consideration in deciding whether a class action should be allowed.*fn6 But it does not follow, as they further argue, that when there seems to be no threat of such multiplicity, there is no need for a class action. The prevention of multiplicity of suits is not the framers of the amended rule for determining whether a class action is maintainable when there are, as here, "questions of law or fact common to the class" and when the class is "so numerous that joinder of all members is impracticable."*fn7
As a further reason for refusing to allow these suits to proceed as class actions, the district judge said, "Under the circumstances present here, this court cannot find 'that a class action is superior to other available methods for the fair and efficient adjudication of the controversy,'" as required by amended Rule 23(b) (3).*fn8
In determining that a class action was not superior to other available methods, the district judge indicated that the instant situation was similar to that in Berger v. Purolator Products, Inc., 41 F.R.D. 542 (S.D.N.Y.1966). In light of the result in Eisen v. Carlisle & Jacquelin, supra, we think the Berger decision is of doubtful authority on this point. Moreover, the district judge did not suggest what other method for resolving the present controversy might be superior to a class action. Presumably, he had in mind individual actions, joint or several, by the purchasers of Packard Instrument stock. But this alternative would run counter to one of the purposes of a class action. As we said in Weeks v. Bareco Oil Co., 125 F.2d 84, 88, 90 (7th Cir. 1941):
[Rule 23] * * * should be construed to permit a class suit where several persons jointly act to the injury of many persons so numerous that their voluntarily, unanimously joining in a suit is concededly improbable and impracticable.
To permit the defendants to contest liability with each claimant in a single, separate suit, would, in many cases give defendants an advantage which would be almost equivalent to closing the door of justice to all small claimants. This is what we think the class suit practice was to prevent.
Professor Benjamin Kaplan, who was the Reporter of the Advisory Committee on Civil Rules, has voiced a similar view in a recent article. In discussing a situation which might dicate the rejection of a class action -- a situation not present here -- he observed:
The rule sets out a number of matters pertinent to the (b) (3) findings, and among them "the interest of members of the class in individually controlling the prosecution or defense of separate actions." This interest can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theretic where the individual stake is so small as to make a separate action impracticable. Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (1), 81 Harv.L.Rev. 356, 391 (1967).
The present actions*fn9 appear to us to present a classic type of situation discussed by the Advisory Committee. The Committee said in notes accompanying the amended rule: "Subdivision (b) (3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results."
The order of the district court, striking the class action allegations of the plaintiffs' complaints, is reversed.