Stanford University Law School - Securities Class Action Clearinghouse

GOLD BENNETT & CERA LLP
SOLOMON B. CERA (99467)
GARY A. GARRIGUES (148667)
595 Market Street, Suite 2300
San Francisco, CA 94105
(415) 777-2230

BERGER & MONTAGUE, P.C.
SHERRIE R. SAVETT
MERRILL G. DAVIDOFF
SUSAN SCHNEIDER THOMAS
1622 Locust Street
Philadelphia, PA 19103
(215) 875-3000

Attorneys for Plaintiff And
All Others Similarly Situated

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

 
JOANNE HOFFMAN, On Behalf of Herself
and All Others Similarly Situated,

                      Plaintiff,

           v.

AVANT! CORPORATION; GERALD C.
HSU; YUN-CHUNG "ERIC" CHO; YUH-
ZEN LIAO; and STEPHEN TZYH-LIH
WUFF,

                      Defendants.
______________________________________

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)		 Case No. C-97-20698-RMW
[filed Sep. 4, 1998]

Class Action

PLAINTIFF'S REPLY BRIEF 
IN SUPPORT OF MOTION 
FOR CLASS CERTIFICATION

DATE: October 9, 1998
TIME: 9:00 a.m.
CTRM: Hon. Ronald M. Whyte

TABLE OF CONTENTS

TABLE OF AUTHORTIES

INTRODUCTORY STATEMENT

CONCLUSION

TABLE OF AUTHORITIES

In re Adobe Systems Sec. Litig.,
     139 F.R.D. 150 (N.D. Cal. 1991)

In re Amerifirst Sec. Litig.,
     139 F.R.D. 423 (S.D. Fla. 1991)

Basic v. Levinson,
     485 U.S. 224 (1988)

Blackie v. Barrack,
     524 F.2d 891 (9th Cir. 1975),
     cert. denied, 429 U.S. 816 (1976)

County of Suffolk v. Long Island Lighting Co.,
     710 F. Supp. 1407 (E.D.N.Y. 1989)

Eggleston v. Chicago Journeymen, Plumbers Local Union,
     657 F.2d 890 (7th Cir. 1981),
     cert. denied, 455 U.S. 1017 (1982)

Eisen v. Carlisle & Jacquelin,
     417 U.S. 156 (1978)

Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
     122 F.R.D. 177 (E.D. Pa. 1988)

Greenfield v. Flying Diamond Oil Corp.,
     Fed. Sec. L. Rep. (CCH) ¶97,942 (S.D.N.Y. 1981)

Hanon v. Dataproducts Corp.,
     976 F.2d 497 (9th Cir. 1992)

In re KMart Corp. Securities Litig.,
     Fed. Sec. L. Rep. (CCH) ¶99,511 (E.D. Mich. 1996)

Kirkpatrick v. J.C. Bradford & Co.,
     827 F.2d 718 (11th Cir. 1987)

Koening v. Benson,
     117 F.R.D. 330 (E.D.N.Y. 1987)

Kolin v. American Plan Corp.,
     Fed. Sec. L. Rep. (CCH) ¶92,728 (E.D.N.Y. 1986)

Kreindler v. Chemical Waste Management, Inc.,
     877 F. Supp. 1140 (N.D. Ill. 1995)

Lerner v. Harmosohn,
     126 F.R.D. 64 (D. Colo. 1989)

Lewis v. Curtis,
     671 F.2d 779 (3d Cir. 1988)

Moskowitz v. Lopp,
     128 F.2d 624 (E.D. Pa. 1989)

In re PizzaTime Theatre Sec. Litig.,
     112 F.R.D. 15 (N.D. Cal. 1986)

Prostic v. Xerox Corp.,
     Fed. Sec. L. Rep. (CCH) ¶96,197 (D. Conn. 1991)

Rubenstein v. Collins,
     162 F.R.D. 534 (S.D. Tex. 1995)

Schwartz v. System Software Associates, Inc.,
     138 F.R.D. 105 (N.D. Ill. 1991)

Schlanger v. Four-Phase Systems, Inc.,
     555 F. Supp. 535 (S.D.N.Y. 1982)

Sosna v. Iowa,
     419 U.S. 393 (1975)

South Carolina Nat'l Bank v. Stone,
     139 F.R.D. 325 (D.S.C. 1991)

In re Southeast Hotel Props. Ltd. Partnership Inc. Litigation,
     151 F.R.D. 597 (W.D.N.C. 1993)

Stastny v. Southern Bell Tel. & Tel. Co.,
     628 F.2d 267 (4th Cir. 1980)

Surowitz v. Hilton Hotels Corp.,
     383 U.S. 363, reh'g denied, 384 U.S. 915 (1966)

In re Technical Equities Securities Litigation,
     Fed. Sec. L. Rep. (CCH) ¶94,093 (N.D. Cal. 1988)

In re United Energy Corp. Sec. Litig.,
     122 F.R.D. 251 (C.D. Cal. 1988)

In re VMS Securities Litigation,
     136 F.R.D. 466 (N.D. Ill. 1991)

Weinberg v. Jackson,
     102 F.R.D. 839 (N.D. Cal. 1984)

Wells v. HBO & Co.,
     Fed. Sec. L. Rep. (CCH) ¶96,009 (N.D. Cal. 1991)

Welling v. Alexy,
     155 F.R.D. 654 (N.D. Cal. 1994)

OTHER AUTHORITIES

Newberg & Conte, Newberg on Class Actions (1992)

INTRODUCTORY STATEMENT

This is a brief that should not have had to be written. Defendants' challenges to plaintiff Joanne Hoffman as a class representative are petty, disregard the multitude of cases establishing the criteria for a class representative, and graphically demonstrate the oft-repeated adage that allowing defendants to challenge plaintiff representatives is "a bit like permitting a fox, although with a pious countenance, to take charge of the chicken house." Eggleston v. Chicago Journeymen, Plumbers Local Union, 657 F.2d 890, 895 (7th Cir. 1981).1

1. Plaintiff Hoffman Will Be An Excellent Class Representative

Joanne Hoffman is a school teacher who has invested in the stock market an inheritance she received upon her grandfather's death. A single mother of minor children, she has relied heavily upon her father, a stockbroker, to recommend investments to her and to maintain her investment file. Tr. 25:22-26:5; 45:22-46:17 ("Tr." references are to the transcript of the deposition of Joanne Hoffman, a copy of which was attached to Defendants' Memorandum In Opposition To Class Certification).

Ms. Hoffman acquired her Avant! stock in a merger in late 1996 between Meta-Software, Inc. and Avant!. She had purchased 300 shares of Meta-Software stock upon her father's recommendation. Tr. 20:8-22 She became aware of the merger from her father and knew that her 300 shares of Meta had been exchanged for 131 shares of Avant!. Tr. 44:21-45:14 Knowing of her investment with Avant!, Ms. Hoffman's attention was caught one day when she read an article, she believes in the Wall Street Journal, discussing the criminal indictment of Avant! and its senior executives. Tr. 49:19-50:4; 56:8-19 Ms. Hoffman questioned her father about the matter, and he looked into it for her, in part, by contacting Mr. Davidoff of Berger & Montague to see whether there was any recourse for shareholders. Tr. 58:16-62:4 Ms. Hoffman was familiar with Berger & Montague and its specialization in the field of securities litigation because she had retained the firm some years before to represent her in another matter. Tr. 34:14-35:8

Ms. Hoffman testified that she felt that she and other shareholders had been defrauded by defendants' denials of the accusations that had been made against Avant! by Cadence:

 
Q.  Ms. Hoffman, what is it that you claim Avant! did or didn't do that gave rise to why you're suing them?
A. My claim is they defrauded the class and the subclass by their denial of what they -- I believe that they had done based upon what I've read.
Q. What have you read?
A. I've read somewhat about them in the Wall Street Journal. I can't recall exactly, but that's where it came to light to me.

I've read in the Complaint about Cadence. I've read the D.A. investigating them. And I think when I read about the D.A. investigating them, that lent more credence for me to believe that, in fact, it was not just a friendly competition between Cadence and Avant!, that there was more to it.
Tr. 49:13-50:4.

She demonstrated an understanding of defendants' misconduct and explained that she felt an obligation to come forward on behalf of the class:

 
Q.  What is your understanding of the current state of the Cadence Avant! litigation?
A. Cadence is suing Avant! for stealing of trade secrets. That's specifically Cadence.
Q. What else do you know about that lawsuit?
A. That's what I know, that they're alleging that specific -- and I don't recall what it's called, root, the chip root and something that were stolen from them, were taken by officers of their company that then formed Avant! and utilized.
Q. Do you know whether Avant! is suing Cadence?
A. I don't know.
Q. What event triggered you to file this lawsuit?
A. Well, after reading this and discussing this, I guess it's the sort of person I am, I felt defrauded. I feel that I should be able to purchase stock, even though it was purchased as Meta and became Avant!, in good faith without, you know -- and believe in the market in some respect.

I mean you do take a risk. I understand you take a risk when you purchase stock, but I don't believe that you should have to have -- you should be defrauded, lied to.2

And that incited me. And I did it just morally to represent the class and the subclass of which I'm a member.
Q. Who do you believe defrauded you?
A. The defendants in this case from Avant!.
Q. How did they defraud you?
A. They stole trade secrets and they denied it.
Q. Anything else?
A. They misrepresented --

I felt I was defrauded by the defendants, by the fact in reading the Complaint, in reading what I had read in the Wall Street Journal and reading that there was an investigation, that there was some credence to the fact that they had stolen trade secrets from their competitors and possibly could not deliver what they said they could deliver and were not truthful to the stockholders.
Tr. 54:23-56:19.

Ms. Hoffman has no personal connections with Avant! or the defendants, making her claims typical of other class members' claims, and she can adequately represent the subclass of persons who acquired their Avant! stock in the Meta merger because her stock was similarly acquired.

Ms. Hoffman has engaged competent counsel, as already determined by the Court's designation of her counsel as lead counsel; reviewed and authorized the filing of her complaint on behalf of the class, Tr. 87:13-19; understands the nature of her claims, Tr. 54:23-56:19; is committed to pursuing this litigation on behalf of the class and subclass, Tr. 80:12-81:9; and is willing to be available for trial. Tr. 81:14-19 In short, she bears no resemblance to the "striking unfamiliarity" standard relied on by defendants; instead, she is an ideal representative for the class.3

2. There Is Nothing Atypical Or Disabling About Ms. Hoffman's Reliance Upon Her Father, A Stockbroker, To Recommend Investments

Reading defendants' brief in opposition to class certification is rather like being in a time warp. Defendants appear to be unaware of the entire fraud-on-the-market doctrine that has defined class certification jurisprudence for over a decade. Under that doctrine, adopted by the Ninth Circuit in Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975), and by the Supreme Court in Basic v. Levinson, 485 U.S. 224 (1988), it is of absolutely no importance whether a class plaintiff made her own investment decisions or relied upon a investment advisor,4 read the materials disseminated by the defendants or was aware at the time of the fraudulent statements made by the defendants,5 was a passive investor,6 or even chose stock "by means of a ouija board or by throwing darts at the list."7

The crux of the fraud-on-the-market doctrine is that virtually every investor relies upon the price of a stock as having been fairly set by the market and not wrongfully impacted by fraudulent misrepresentations or omissions. The fact that some members of a class may have read and relied directly on statements made by defendants, while others will have relied indirectly upon advisors who relied directly, and still others will have no demonstrable chain of reliance directly to defendants' statements at all, is an undeniable facet of every securities fraud class ever certified. Since a plaintiff's reliance is presumed under Basic, however, it is obvious that a class representative can satisfy the requirements of typicality and adequacy no matter where she falls in the continuum. Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) (reliance is presumed, thus not necessary to show individual reliance); In re Technical Equities Sec. Litig., [1988-89 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶94,093, at 91,110 (N.D. Cal. Oct. 3, 1988) (same); In re Amerifirst Sec. Litig., 139 F.R.D. 423, 429 (S.D. Fla. 1991) (representative's degree of reliance will not preclude satisfaction of the typicality requirement on a motion for class certification).8

Similarly, some class members will be sophisticated institutional investors, some experienced professionals, and others unsophisticated and relatively uninformed small investors. The sophistication or motivation of the individual purchaser does not defeat the presumption of reliance or preclude the plaintiff from fulfilling the typicality requirement.

It can be stated without fear of gainsay that the shareholders of every large, publicly traded corporation includes institutional investors, short-sellers, arbitragers, etc. The fact that these traders have divergent motivations in purchasing shares should not defeat the fraud-on-the-market presumption absent convincing proof that price played no part in their decision making.
Moskowitz v. Lopp, 128 F.R.D. 624, 631 (E.D. Pa. 1989).

It is only when it can be demonstrated that a plaintiff was unconcerned about price, and undaunted by fraudulent inflation of price, that the plaintiff is deemed not to have relied on price and the integrity of the market. Basic v. Levinson, 485 U.S. 224, 227 (1988). Under Basic, to rebut the presumption that an investor relied on the integrity of the market, defendants would have to show that plaintiff either knew of the fraud or would have invested even if she knew of the fraud. This is a very heavy burden, reflecting the common sense proposition that few, if any, investors would wittingly buy into a fraud: "[I]t is hard to imagine that there ever is a buyer or seller who does not rely on market integrity. Who would knowingly roll the dice in a crooked crap game?" Schlanger v. Four-Phase Systems, Inc., 555 F. Supp. 535, 538 (S.D.N.Y. 1982), quoted at Basic, 485 U.S. at 246-47.

Even if defendants could produce credible evidence of plaintiff's lack of reliance on the integrity of the market, moreover, lack of reliance is not an appropriate basis on which to challenge a proposed class plaintiff and cannot even be considered in the context of class certification since it is a merits-based argument. Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992); KMart Sec. Litig., [1997 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶99,511 at 97,474 (E.D. Mich. Dec. 16, 1996); In re PizzaTime Theatre Sec. Litig., 112 F.R.D. 15, 22 (N.D. Cal. 1986). Defendants herein have made no showing of non-reliance, it is not an appropriate matter to consider at this juncture in any event, and the bulk of their argument against class certification has been an exercise in futility.

3. Plaintiff Hoffman Is Aware Of And Has Fulfilled To Date Her Duties As A Class Representative

Defendants' argument that plaintiff is unqualified as a class plaintiff because she did not participate in the preparation of her complaint is equally unavailing. Ms. Hoffman testified that the genesis of this lawsuit was her reading of an article about the indictment of Avant! and its senior executives and her outrage about what they were accused of having done, followed by an investigation of the matter by her attorneys. Tr. 49:13-50:4; 58:8-59:8.9 As would be expected since plaintiff is a school teacher and not an attorney, she did not personally review all available information about Avant! and compare it with the public statements defendants made, but instead retained experienced attorneys to investigate and evaluate the situation for her. Nor, of course, did she draft her own complaint or supply the factual information about defendant's misconduct. It is not clear what mileage defendants seek to gain from these facts, however, since court after court has acknowledged that this is the expected scenario and has absolutely no bearing on a plaintiff's adequacy to serve as a class representative: As a leading commentator on class actions has stated, "inadequacy challenges based on personal qualifications of a representative plaintiff who is not required to have a detailed understanding of the securities field are generally unwarranted and serve only to burden unduly the class determination process." 4 Newberg on Class Actions §22.24 at 22-103 (3d ed.) (footnote omitted).

Defendants' remaining efforts to besmirch plaintiff as not having been sufficiently involved with this lawsuit are also without merit. Defendants' insinuation that Hoffman only "remembered" having reviewed the complaint after a discussion with her counsel is unfounded. Ms. Hoffman clearly testified that she remembered reviewing the complaint (A: "I reviewed it."); her only uncertainty was when (Q: "Before or after it was filed?" A: "That I don't remember. I would probably say after it was filed.") Upon discussion with her attorneys and review of her signed certification filed with the complaint, however, Ms. Hoffman was able to resolve her initial uncertainty during the deposition as to whether she had reviewed the complaint before or after it was filed. Consistent with her previous certification that she had reviewed the complaint and authorized its filing, Ms. Hoffman testified that she had indeed reviewed the complaint prior to its filing and that she had simply had a minor lapse of recollection earlier in the deposition when she testified that she had reviewed the complaint but she had not been able to recall with certainty the timing of her review.10

Defendants' other primary point about plaintiff's inadequacy due to her uninvolvement in her lawsuit -- bulleted at p. 2 of their brief -- is also untrue. Defendants stated that "all the key decisions and actions to institute this lawsuit ... [Hoffman] leaves to her father." Defendants are deliberately attempting to mislead the Court here. Plaintiff's testimony could not have been more clear on the points that she read an article that led her to believe something was amiss about Avant!, Tr. 49:12-22; 58:7-15; she questioned her father, leading him to look into it for her; 59:25-62:4; she "made the decision [to file this lawsuit] on my own," Tr. 58:18-21; her father did not suggest that she file this lawsuit, Tr. 58:16-18; she reviewed the complaint and authorized its filing, Tr. 87:13-19; she testified that she understood what a class action was and her obligation as a class plaintiff, Tr. 80-81; she appeared to testify at her deposition without having discussed with her father how to answer questions, the substance of the case, or the parties in the case, Tr. 8:13-9:5; and there "was nothing that I felt I needed to discuss with [my father]. You know, I -- anything I needed to discuss, I did it with the attorneys." Tr. 84:9-13. The facts that her father first called Mr. Davidoff, after plaintiff questioned him about Avant! and expressed her outrage, Tr. 61:7-62:4, and that her father provided responsive documents to plaintiff's counsel because he maintains all of plaintiff's investment files, Tr. 10:3-10, are quite inconsequential and are merely a reflection of the working arrangement that plaintiff has with her father/stockbroker.11

The true issues under the adequacy prong of Rule 23 are an absence of interests that are antagonistic to the interests of the class, and the qualifications of plaintiff's counsel. See, e.g., Sosna v. Iowa, 419 U.S. 393, 403 (1975); Blackie v. Barrack, 524 F.2d at 909; Weinberg v. Jackson, 102 F.R.D. 839, 844-45 (N.D. Cal. 1984); Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 726 (11th Cir. 1987). Wells v. HBO & Co., [1991 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶96,009, at 90,053 (N.D. Ga. April 24, 1991). Defendants have not challenged plaintiff on any of these grounds and the factual record would not support any such challenge.

4. Plaintiff's Motion For Class Certification Was Timely

Defendants' footnote argument that class certification should be denied because plaintiff's motion was not filed soon after the case was begun is a recycled version of an issue that this Court has twice decided contrary to defendants' position. Defendants acknowledge that the reason for the delay in filing the class motion was a result of the delay occasioned by the lead plaintiff proceedings mandated by the PSLRA. (Defendants' Br. at 7 n.1). Defendants protest that this "excuse" is unacceptable because part of the delay in determining lead plaintiff arose from the need for plaintiff to republish the lead plaintiff notice due to deficiencies identified by the Court. Both in the initial lead plaintiff decision denying appointment with leave to re-move upon proper notice, and in the decision on the renewed motion by plaintiff, this Court rejected defendants's argument that there should be draconian penalties inflicted upon plaintiff for not having met the requirements of a new and non-specific statute the first time around. To now deny class certification due to delay would be totally nonsensical. Plaintiff Hoffman filed her motion for class certification less than two months after the lead plaintiff motion was ultimately decided. She also produced documents and appeared for deposition upon less than two weeks' notice. No inadequacy can be attributed to her with regard to the timing of the class certification proceedings.

CONCLUSION

For the foregoing reasons and as set forth in plaintiffs' Memorandum in Support of Class Certification, the Court should certify the class and certify Joanne Hoffman as its representative.
 
Dated: September 4, 1998 BERGER & MONTAGUE, P.C.

           /s/
____________________________
Susan Schneider Thomas
1622 Locust Street
Philadelphia, PA 19103
(215) 875-3000

GOLD BENNETT & CERA LLP
Solomon B. Cera
Gary A. Garrigues
595 Market Street, Suite 2300
San Francisco, CA 94105
(415) 777-2230

Attorneys for Plaintiff And
All Others Similarly Situated

1 Defendants here do not challenge, and, therefore, apparently concede that the numerosity and commonality requirements of Rule 23(a), and the predominance and superiority requirements of Rule 23(b)(3), are met. Moreover, since class determination is made at the commencement of the action, the allegations of the complaint, including the class action allegations, are accepted as true for the purposes of the class certification motion. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1978); Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 275 (4th Cir. 1980).
2 Interestingly, plaintiff's understanding mirrors almost exactly the description of the federal securities laws recently stated within this district: "The federal securities laws aim to insure that no investor, regardless of individual risk preferences, has to risk fraud." In re Adobe Systems Sec. Litig., 139 F.R.D. 150, 154 (N.D. Cal. 1991).3 Defendants' reliance on Welling v. Alexy, 155 F.R.D. 654 (N.D. Cal. 1994) is misplaced. The plaintiff in Welling was deemed unqualified because he had been a frequent plaintiff for the same attorney (14 cases) and his testimony suggested that the plaintiff himself did not take his own role as a class plaintiff seriously. Id. at 659 (only role with respect to filing case was to call attorney and tell him he "has a case for him").4 In re Southeast Hotel Props. Ltd. Partnership Inc. Litig., 151 F.R.D. 597, 605-06 (W.D.N.C. 1993); Prostic v. Xerox Corp., [1991 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶96,197, at 91,039 (D. Conn. July 19, 1991); Lerner v. Harmosohn, 126 F.R.D. 64, 67 (D. Colo. 1989); In re United Energy Corp. Sec. Litig., 122 F.R.D. 251, 255 (C.D. Cal. 1988); Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 122 F.R.D. 177, 181 (E.D. Pa. 1988) ("fact that plaintiff bagged her [bonds] with the assistance of her husband does not distinguish her claim against Merrill Lynch from the claims of class members whose husbands were more or less astute -- or ... who managed their own affairs"). 5 Schwartz v. System Software Associates, Inc., 138 F.R.D. 105, 108 (N.D. Ill. 1991) ("most investors do not read the documents or hear the speech alleged to be fraudulent," but fraud on the market doctrine allows these investors to sue due to "reliance on integrity of market price rather than reliance on challenged disclosure"); In re Amerifirst Sec. Litig., 139 F.R.D. 423, 429 (S.D. Fla. 1991) (plaintiff need not establish reliance on specific representations); In re VMS Sec. Litig., 136 F.R.D. 466, 475 (N.D. Ill. 1991) (plaintiffs typical although some purchased in IPOs, some read different prospectuses, and other did not review any documents); See also In re KMart Corp. Sec. Litig., [1997 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶99,511, at 97,474 (E.D. Mich. Dec. 16, 1996) (certifying investor who based his decision to purchase Kmart stock on his own experience as a KMart shopper).6 In re VMS Sec. Litig., 136 F.R.D. 466, 477 (N.D. Ill. 1991) (passive purchasers through dividend reinvestment plan were not atypical); Greenfield v. Flying Diamond Oil Corp., [1981 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶97,942, at 90, 808 (S.D.N.Y. March 30, 1981) (plaintiff who was forced to sell shares in merger was adequate representative of those who voluntarily tendered).7 Kolin v. American Plan Corp., [1986-1987 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶92,728, at 93,542 (E.D.N.Y. April 8, 1986).8 Defendants' reliance, Defs Mem. at 8, on Koening v. Benson, 117 F.R.D. 330, 338 (E.D.N.Y. 1987) for its discussion of "secondary source" reliance is difficult to comprehend since no such reliance need be shown under the fraud on the market theory adopted in Basic.9 Tellingly, plaintiff Hoffman was also able to describe the basic contours of the earlier case she had brought, despite the fact that the case was from a number of years ago:

As I remember, and it was a number of years ago, it was also a technology or computer corporation that claimed to be putting out products, that in fact, they were unable to deliver within the time span that they said they would deliver it and, therefore, defrauded the stockholders, of which I was a stockholder.
Tr. 36:17.
10 Plaintiff's testimony on examination by her counsel after reviewing her certification was as follows:
 
Q. If you could please read the beginning and tell me whether that causes you to change or add to any of the testimony that you gave earlier?
A. Okay. "I reviewed the Complaint in the above entitled action and authorized it's filing."

So I did review it prior to its filing. I said I had not. I had.

* * *

It's just at the time when you asked the question, I just gave you the wrong answer. I didn't recall -- but I did review it. That was it and I made that mistake.
Ms. Thomas: The answer that she had given, as I recall, was that she wasn't certain whether it was -- 
Mr. Aronson: Well, we have a record.
Ms. Thomas: That's on the record.
The Witness: But I did review it. I definitely reviewed it, okay.
Tr. 87:7-89:8
11 Even if plaintiff had relied primarily upon her father, this would not be an impediment to her certification as a class representative. See, e.g., Surowitz v. Hilton Hotels, supra, 383 U.S. at 367 (accepting plaintiff who relied entirely upon son-in-law with regard to matters related to the lawsuit); Schwartz v. Systems Software Associates, Inc., 138 F.R.D. 105, 107 (N.D. Ill. 1991) (plaintiff who did not know case was pending in her name, had not read complaint until after it was filed and could not identify all defendants, was certified as class representative where she gave a one-line layperson's description of her claims and she had discussed the filing of the suit with her husband, whom she authorized to seek counsel); Rubenstein v. Collins, 162 F.R.D. 534, 538 (S.D. Tex. 1995) (certifying plaintiff who did not fully understand why she was a party, could not name defendants, had short term memory problems due to a stroke and brought action upon suggestion of her son).

Source: Diskette and paper copy from Gold Bennett & Cera LLP