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51 F.R.D. 263

Percodani v. Riker-Maxson Corp.

U.S. District Court

Decided December 15, 1970

U.S. District Court · decided 1970-12-15

Key passage — most relied on by later courts

“(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.”

quoted by 1 later decision, including In Re Air Crash Disaster at Florida Everglades on December 29, 1972. Dorothy Gordon, Etc., Joseph Mazur and Rose Mazur, Meryl Adrienne Rubin, Etc., and Fuchsberg & Fuchsberg, Their Attorneys v. Eastern Air Lines, Inc., Steve N. Minguzzi, and Landes, Wingate & Shamis, Their Attorneys v. Eastern Air Lines, Inc., and "Plaintiffs' Committee,"

“this Court sees no reason to saddle the plaintiff class with the burden of additional counsel fees and the added confusion which the appointment of co-lead counsel would bring”

quoted by 1 later decision, including In re Baan Co. Securities Litigation

Relies on Percodani v. Riker-Maxson Corp.

Good law ✅— No negative treatment on recordhow we know

Decided 1970-12-15

How this case has been cited

Cited by 8 later decisions — most recently April 1999

2 federal appellate · 1 district · 1 state decisions

40197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CROAKE, District Judge.

¶1MEMORANDUM

¶2This court has before it three motions in the above matter. The case arose out of five shareholder actions brought against defendants in the early months of 1969. On August 7, 1969, these five actions were consolidated, and the firm of Kaufman, Taylor, Kimmel & Miller was designated as lead counsel for plaintiffs by Judge Bonsai of this court. On January 9, 1970, it was ordered that the consolidated action be maintained as a class action. Subsequent to this, agreement on a proposed settlement of the litigation was reached between lead counsel for plaintiffs and counsel for the various defendants but, on October 7, 1970, D.C., 50 F.R.D. 473, court approval of the settlement was denied.

¶3The first motion is one for summary judgment brought on behalf of plaintiffs Ellen Farber and Malcolm Clare by their attorney Norman Annenberg (“the Annenberg motion”). The second has been made by the firm of Kaufman, Taylor, Kimmel & Miller as lead counsel, asking that Mr. Annenberg be restrained and prohibited from taking any further action in the proceedings in violation of the August 7, 1969 order by Judge Bonsai appointing lead counsel (“the Kaufman motion”). In the third, the Court has been asked to modify Judge Bonsai’s order so as to designate the firm of Sachnoff, Schraeger, Jones & Weaver as co-lead counsel (“the Sachnoff motion”).

¶4I

¶5We first consider the Kaufman motion.

¶6Rule 23(d) (1) of the Federal Rules of Civil Procedure states—

“In the conduct of actions to which this rule applies, the court may make appropriate orders determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument.”

¶7Pursuant to this provision, Judge Bonsai, on August 7, 1969, ordered the actions consolidated for all purposes with, as noted, the firm of Kaufman, Taylor, Kimmel & Miller designated as *265lead counsel for all plaintiffs in the action as consolidated. It was also ordered that “all pleadings, papers and notices of any kind, nature or description to be served hereafter by or upon the defendants in the consolidated action shall only be issued by or served upon said lead counsel.” (Order of Judge Bonsai dated August 7, 1969.)

¶8The action of Mr. Annenberg in moving for summary judgment is in direct violation of this order, and it is essential that he be stayed from further conduct of a like nature lest the door be opened to a floodgate of motions by other attorneys initially involved in the proceedings such as would lead to the disintegration of this class action into chaos to the very real prejudice of the entire plaintiff class. Accordingily.

¶9Norman Annenberg, Esq., shall be and is restrained and prohibited from taking any further action in violation of the order by Judge Bonsai, including the making of motions or service of process where such action would violate the aforementioned order.

¶10At the same time it is understood that lead counsel will keep Mr. Annenberg advised of all developments in the litigation.

¶11II

¶12The Kaufman motion having been granted, the Court now finds that Mr. Annenberg has no standing to bring a motion for summary judgment on behalf of any of the plaintiffs in this action. Accordingly, it follows that it will not entertain the Annenberg motion for summary judgment.

¶13III

¶14The Court now turns its attention to the Sachnoff motion that, pursuant to Rule 23(d) (1) of the Federal Rules, it modify Judge Bonsai’s order so as to appoint the firm of Sachnoff, Schraeger, Jones & Weaver as co-lead counsel with Kaufman, Taylor, Kimmel & Miller. It was Mr. Sachnoff, as counsel for plaintiffs Wolfe and Manilow, and Mr. Annenberg who first questioned the settlement as running counter to the best interests of the plaintiff class of Maxson shareholders, and it was the Sachnoff firm which brought to the attention of the Court several documents which were considered in its decision to deny approval of the proposed settlement. However, his presence as co-lead counsel is unnecessary.

¶15The overriding interest of the Court in designating lead counsel in an action of this nature is the vigorous protection of the rights of the plaintiff class of shareholders. This requires representation of the highest caliber, but it is our belief that such representation already exists. And to this it must be added that, if co-lead cousel are named here because approval of the proposed settlement was denied, then lead counsel named in other matters may well be deterred from advocating settlements in the future—a development which would run directly contrary to the stated policy of this Court. Also, this Court sees no reason to saddle the plaintiff class with the burden of additional counsel fees and the added confusion which the appointment of co-lead counsel would bring.

¶16Thus, with all due respect to the abilities of Mr. Sachnoff and his firm, his motion for designation as co-lead counsel in this case is denied.

¶17So ordered.

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