UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
May 9, 2007
IN RE METLIFE DEMUTUALIZATION LITIGATION
The opinion of the court was delivered by: Platt, District Judge.
MEMORANDUM and ORDER
Defendant Metropolitan Life Insurance Company ("MetLife") asks this Court to reconsider its July 19, 2005 Order certifying a class in this action, in light of a recent Second Circuit opinion changing the rules for certifying classes.*fn1 MetLife makes three arguments why this Court should deny class certification upon consideration of the merits of plaintiffs' claims insofar as they overlap with class certification requirements. First, four of the class representatives' deposition testimony shows that they did not rely on the alleged misrepresentations and omissions.*fn2 Second, individual issues of reliance and differences in dividend treatment between individual and institutional policyholders are likely to predominate over common issues. Third, plaintiffs are not adequate class representatives because many of the class members benefitted from the inclusion of a ten-share fixed allocation, about which plaintiffs complain.
As the Court sees it, the most significant factor in the class certification analysis is that this is a case primarily involving omissions, and individual proof of reliance is not required under the circumstances. Hence, the Court finds no basis on which to change its prior decision.
In cases primarily involving omissions, as here*fn3 , the law is clear that proof of individual reliance does not impair class certification. See Affiliated Ute, 406 U.S. 128, 153-54 (1972)(stating, in the context of determining whether a Rule 10b-5 violation occurred, that "[u]nder the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision."); Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 446 (E.D.N.Y. 1995), citing Fisher v. Plessey Co. Ltd., 103 F.R.D. 150, 156 (S.D.N.Y. 1984) (stating that the "existence of the reliance element is presumed without positive proof where, as here, the alleged violation consists of withholding material information."). Thus, in this case, the Court finds the alleged omissions and misstatements in the Prospectus to be material in the sense that a reasonable investor might have considered them important in making his or her decision.*fn4 See Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 362-65 (2d Cir. 1973) (discussing materiality and finding certain omissions in registration statement to be material).
Moreover, MetLife's assertion that the testimony of four named plaintiffs indicates that they did not rely on the alleged misstatements or omissions is irrelevant here because the demutualization was the result of a majority vote where nearly 2,800,000 policyholders voted. See Amended Compl. at ¶ 41. Hence, lack of reliance by a few individuals is inconsequential. See Herbst v. Int'l Tel. and Tel. Corp., 495 F.2d 1308, 1316 (2d Cir. 1974) (stating, in authorizing the maintenance of a class action, that "[h]ere as in Chris-Craft and Mills the reliance of the individual shareholder is irrelevant. Here as in those cases plaintiff was damaged only if significant numbers of shareholders might have acted differently if they had known the truth.") In the event MetLife may be able to rebut the presumption of reliance as to specific class members, the Court at a later stage has the option of ordering separate hearings on that particular issue.*fn5 See, e.g., Walsh, 162 F.R.D. at 446-47; Dura-Bilt, 89 F.R.D. at 98. Therefore, MetLife is incorrect when it re-argues that issues of individual reliance predominate over common issues to impair class certification.
Equally unavailing is MetLife's assertion that plaintiffs are not adequate class representatives because many of the class members benefitted from the inclusion of a ten-share fixed allocation, about which plaintiffs complain. As the Court previously held in a similar context, this allegation does not impede class certification, because "[t]he proper inquiry is whether the members of the class have the same or similar injury, ... and whether other class members have been injured by the same course of conduct," and not whether there exist potential differences in the amount of damages.*fn6 Walsh, 162 F.R.D. at 447, quoting Dura-Bilt, 89 F.R.D. at 99.
Indeed, the Second Circuit and the courts within that umbrella have consistently held that a difference in the amount of damages does not impede class certification. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001) (noting that a potential difference in the damages awarded to class members is not a bar to class certification); In re Arakis Energy Corp. Sec. Litig., 1999 U.S. Dist. LEXIS 22246 at *36 (E.D.N.Y. 1999) (finding that "any potential antagonism within the proposed class regarding damages is outweighed by the shared interest of potential class members in demonstrating fraud on the part of defendants"); Dura-Bilt, 89 F.R.D. at 99 (stating that "a difference in the amount of damages, date, size, or manner of purchase, the type of purchaser, and even the specific document influencing the purchase will not render the claim atypical in most securities actions.")
In any event, as we previously held in our prior decision certifying the class, should the need arise to partition the separate claims or damages, the Court may employ at a later time several devices, such as "the possibilit[y] of bifurcating liability and damage trials, decertifying the class after the liability trial, and creating subclasses." See July 19, 2005 Opinion at 28, quoting In re Visa Check/MasterMoney, 280 F.3d at 145.
For the foregoing reasons, MetLife's motion to vacate this Court's July 19, 2005 Order certifying a class in this action must be and is hereby DENIED in all respects.
Thomas C. Platt, U.S.D.J.