January 27, 2012

The Little Birdy Sings A Different Tune

The use (and sometimes abuse) of confidential witnesses in securities cases is a contentious issue. Prior to full discovery, what remedy does the defendant have if a confidential witness was misquoted in the complaint? One possibility, recently approved by the Second Circuit, is to allow the witness to be deposed prior to the filing of a motion to dismiss. A recent decision from the D. of Minn. suggests another possible tactic, although the defendants were ultimately unsuccessful.

In Minneapolis Firefighters Relief Assoc. v. Medtronic, Inc., 2011 WL 6962826 (D. Minn. Dec. 12, 2011), the court considered the issue of class certification prior to the completion of discovery. In opposition to certification, the defendants argued that the plaintiffs could not adequately represent the class "because of alleged misrepresentations counsel made in the Amended Complaint regarding the testimony of the confidential witnesses." The defendants presented the court with declarations from thirteen of the fifteen confidential witnesses cited in the complaint. In their declarations, the witnesses took issue with how they were quoted, ranging from complaints about the plaintiffs' interpretation of their statements to an assertion by one witness that the statements attributed to him were "fabrications."

The court found that "the inquiry Defendants urge the Court to undertake - whether Plaintiffs misrepresented what the confidential witnesses said - is premature." In particular, the court noted that "[c]ounsel-drafted declarations are not a substitute for deposition testimony" and it declined to come to any conclusion about the conduct of plaintiffs' counsel until discovery was complete. The court therefore found that the plaintiffs were adequate class representatives and granted class certification.

Posted by Lyle Roberts at January 27, 2012 11:26 PM | TrackBack
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