Opinion · District Court, S.D. New York

Herbst v. Able

Herbst v. Able, 49 F.R.D. 286 (District Court, S.D. New York 1970)

Type: Opinion
Court: District Court, S.D. New York
Jurisdiction: New York
Date: 1970-01-21
Topic: general

How later courts describe this case

"(T)he names and last known addresses (of the entire class of 1500 certificate holders
Plaintiffs ordered to mail individual notice to class members whose names and addresses are identifiable from defendants’ records.

Citator

UpLaw has not yet analyzed Herbst v. Able. The absence of a flag is not a finding that it is good law.

Cited by: 8 opinions

HERBST v. ABLE, (S.D.N.Y. 1970)

49 F.R.D. 286

Mac HERBST, Sylvia Herbst et al., Plaintiffs, v. Charles R. ABLE et al.,

Defendants. Harry H. LEVY et al., Plaintiffs, v. DOUGLAS AIRCRAFT COMPANY,

Inc., et al., Defendants. Lawrence J. BEECHER et al., Plaintiffs, v.

Charles R. ABLE et al., Defendants. Lillian GOTTESMAN, Plaintiff, v. A.V.

LESLIE et al., Defendants. Lawrence KOBRE, Plaintiff, and Oscar Moses and

Authony Crasa, Intervenor-Plaintiffs, v. Wellwood E. BEALL et al.,

Defendants.

Nos. 66 Civ. 3216, 66 Civ. 3382, 66 Civ. 3471, 66 Civ. 3775, 68 Civ. 4141.

United States District Court, S.D. New York.

January 21, 1970.

West Page 287

Pomerantz, Levy, Haudek Block, New York City, for Mac Herbst, Sylvia Herbst, Jack Heidenberg, Lawrence J. Beecher and others.

Bergerman Hourwich, New York City, for Harry Levy, Jack H. Lieb, Rosamond E. Lieb, Samuel Axelrod, Joseph M. Newmark and Hoda Corp.

Gordon Wexler and Lawrence Milberg, New York City, for Lillian Gottesman.

White Case, New York City, for all defendants except Merrill Lynch, Pierce, Fenner Smith, Inc. and Ernst Ernst.

Brown, Wood, Fuller, Caldwell Ivey, New York City, for Merrill Lynch, Pierce, Fenner Smith, Inc.

Davis, Polk, Wardwell, Sunderland Kiendl, New York City, for Ernst Ernst.

Weinstein Levinson, New York City, for Lawrence Kobre, Oscar Moses and Anthony Crasa.

Memorandum Opinion

CONSTANCE MOTLEY, Senior District Judge

On December 15, 1969 a further hearing was held in the above-entitled cause at the request of plaintiff Levy, on the matter of notice ordered by this court on March 10, 1969, as amended by orders dated April 21, and May 9, 1969.

By order of April 21, 1969, this court directed that all plaintiffs participate in the publication of three joint notices, the size of one half page, placed in the national edition of theWall Street Journaland in the financial section of theNewYork Times,divided into three parts, one relating toHerbst,one relating toLevy, Beecher,andGottesman,and one relating toKobre.

At the hearing on December 15, 1969, it was alleged that because of financial considerations and difficulties, plaintiffs had not complied with the court's order as to notice by publication.

Plaintiffs urged that the requirement of notice by publication be postponed until the results of individual notice by mail have been ascertained as was done in Berland v. Mack,48 F.R.D. 121(S.D.N.Y. 1969).

The requirement of notice by publication at this early stage will not be postponed. This court is still of the view that notice by publication combined with individual mail notices where possible, is `the best notice practicable under the circumstances' of these five cases which arise essentially out of the same alleged wrongful conduct of defendants. Rule23(c), Fed.R.Civ.P.

This court agrees with Judge Mansfield that the requirements as to notice in these class actions under Rule 23(b)(3) must necessarily differ with the varying factual circumstances of each case. Berland v. Mack, supra.

However, this court believes that the judges in this District should seek to effect some measure of uniformity in the requirements as to notice by publication. Judge Mansfield, in his well-reasoned and carefully considered opinion, concluded that a newspaper notice of one-eighth (1/8) of a newspaper page was of sufficient size to be noticed by the investors and the investment community for whom the notice is intended.

This court, accordingly, now adopts that view as to the size of the requiredWest Page 288notice by publication, and amends its order of April 21, 1969 by the issuance of a new order of this date to require such notice by publication and to fix new dates for preparing and sending individual notices and for notice by publication.

So ordered.Page 1