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GAVIN v. AT&T CORP.

United States District Court, N.D. Illinois, Eastern Division


October 19, 2005.

LILA T. GAVIN, Plaintiff,
v.
AT&T CORP. and GEORGESON SHAREHOLDER COMMUNICATIONS, INC., Defendants.

The opinion of the court was delivered by: JOHN GRADY, District Judge

MEMORANDUM OPINION

Before the court is plaintiff Lila T. Gavin's motion for leave to contact putative class members to seek a substitute class representative. For the reasons stated below, the motion is denied.

DISCUSSION

  We presume familiarity with the facts and procedural history of this case. See Gavin v. AT&T Corp., No. 01 C 2721, 2005 WL 1563122 (N.D. Ill. June 7, 2005); Gavin v. AT&T Corp., No. 01 C 2721, 2003 WL 22849128 (N.D. Ill. Dec. 1, 2003).

  On June 7, 2005, we entered summary judgment for defendants on all claims except the claim that Georgeson violated Rule 10b-5 when its telephone agents allegedly misrepresented to US West shareholders that it provided the exclusive means of exchanging their shares. The result of our opinion was that Gavin, the only named plaintiff, had no claim because she did not make any telephone inquiries of Georgeson. Gavin therefore was not suited to be lead plaintiff of any alleged class.*fn1 This led to the present motion by Gavin's counsel for leave to contact putative class members to find a new class representative.

  The crux of Gavin's counsel's motion is simple — since Gavin does not have a claim, he wants to find another plaintiff who can represent the alleged class. The problem, however, is that after our ruling on the summary judgment motions, it is clear that there is no viable class. Gavin's second amended complaint ("SAC") alleges two separate classes. The first is the "US West class," defined as:

All residents, or persons or legal entities deemed to be residents of the fifty states and the District of Columbia, other than employees, officers, and directors of AT&T Corp. and Georgeson Shareholder Communications, Inc. who were charged a per-share fee by Georgeson Shareholder Communications, Inc. for exchanging their certificates or shares of U.S. West Media Group for certificates or shares of AT&T and cash.
(SAC, ¶ 7.) The only individuals in this class who may have claims are those who telephoned Georgeson and still ended up paying a fee. Georgeson has submitted an uncontested affidavit stating that there are only 16 such people (who paid fees totaling $6,884.50). One of the prerequisites for class certification under Rule 23(a) is that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). The facts are relatively simple, and we see nothing about the case that would make joinder of a maximum of 16 plaintiffs "impracticable." The numerosity requirement therefore cannot be satisfied.*fn2

  The SAC alleges a second class consisting of:

All residents, or persons or legal entities deemed to be residents of the fifty states and District of Columbia, other than employees, officers and directors of Georgeson Shareholder Communications, Inc., who were charged a per-share fee by Georgeson Shareholder Communications, Inc. upon the reissuance of certificates under Georgeson's "post-merger cleanup" program.
(SAC, ¶ 7.) This proposed class attempts to corral any shareholder who has ever paid a fee under one of Georgeson's post-merger cleanup ("PMC") programs. This class is pulled from thin air. The complaint alleges no facts regarding any Georgeson PMC program other than the one performed in connection with the US West transaction. This case is, and has always has been, solely about that transaction.*fn3

  In sum, the proposed US West class cannot meet Rule 23(a)'s numerosity requirement, and the alternative "any shareholder" class has absolutely no factual basis in the complaint. Because we see no prospect of a class certification in this case, Gavin's counsel's motion for leave to find a substitute class representative is denied. This, of course, leaves us with only an individual action on which judgment has been entered. Accordingly, we will enter a Rule 58 judgment terminating this case.

  CONCLUSION

  For the foregoing reasons, Gavin's motion for leave to contact putative class members to seek a substitute class representative [116-1] is denied.

20051019

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