Class certification sought in seven-year-old bonds slugfest

Steve Korris Feb. 21, 2008, 11:29pm

Judge Stack

Madison County Circuit Judge Daniel Stack must decide whether to sustain a seven year slugfest of strangers in his court.

Stack has set a Feb. 27 hearing on summary judgment motions from defendants in a proposed class action over bond issues that didn't pay off.

The case has no connection to Madison County, except that Edwardsville attorney William Lucco represents the investors seeking class certification.

The bonds built nursing homes in Indiana, Wisconsin and Michigan.

The 649 investors live in 38 states.

Plaintiffs Al Kellerman and Lillard Hedden live in Illinois, though not in Madison County, and plaintiff William Tennison lives in Arkansas.

Lucco argues that Madison County can take jurisdiction because the conspiracy that harmed the class centered in Illinois.

The plaintiffs sued in 2001, naming 27 defendants.

They claimed that banks, brokers, lawyers, accountants, a Chicago nonprofit group and various individuals defrauded them into buying bonds from 1996 to 1998.

The case has run hot and cold, and in recent weeks defendants have turned up the heat with summary judgment motions and briefs opposing class certification.

Smaller defendants have joined the briefs and motions of big defendants Wells Fargo Bank and Fifth Third Bank.

"Plaintiffs are attempting to force additional duties upon Wells Fargo that are not specifically set forth within the applicable trust indentures," David Wells of St. Louis wrote Jan. 15.

The indentures impose no duty that plaintiffs allege was breached, he wrote.

Wells Fargo made no statements of material fact to any plaintiff, he wrote, and the bank had no obligation to review the transaction for fairness or fraud.

Wells noted that in depositions, Hedden said he knew the bonds were unrated and risky, Kellerman said he didn't know what role Wells Fargo played, and Tennison said he didn't read all the prospectuses.

Wells associate Catherine Schroeder opposed class certification Jan. 18, arguing that bondholders could protect their rights as individuals.

She figured that alleged damages exceed $60,000 per bondholder.

She told Stack he'd have to apply laws of 38 states.

"Plaintiffs assert – without any real analysis – that Illinois law should be applied to the claims of all putative class members," Schroeder wrote.

"Even assuming that Defendants entered into a 'scheme' in Illinois," she wrote, "any such scheme was carried out in the bondholders' 38 states of residence, where the bondholders received the alleged written misrepresentations."

She predicted that individual negligence questions would swamp common questions.

Also on Jan. 18, Michael Nester of Belleville opposed class certification on behalf of Fifth Third Bank.

"Plaintiffs seek to ignore residency and choice of law and instead urge the Court simply to apply Illinois law across the board to the claims of all class members regardless of where they reside or where the relevant purchases took place," Nester wrote.

"Though perhaps convenient to Plaintiffs," he wrote, "such an approach is sufficiently arbitrary and unfair as to exceed constitutional limits."

He wrote, "Plaintiffs' conclusory allegations that Illinois was the 'center of the scheme' do not make class certification any more appropriate."

To prove negligence or fraud, he wrote, plaintiffs would have to show that defendants caused their harm through misrepresentation.

"Plaintiffs cannot establish causation on a class wide basis," Nester wrote. "Plaintiffs' complaint does not even try."

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Wells Fargo
402 Montgomery Street
San Francisco, CA 94104

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