United States District Court, D. South Carolina, Rock Hill Division
KBC ASSET MANAGEMENT NV, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
3D SYSTEMS CORPORATION, ABRAHAM N. REICHENTAL, DAMON J. GREGOIRE, and TED HULL, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING KBC'S
MOTION FOR CLASS CERTIFICATION, TO CERTIFY KBC AS THE CLASS
REPRESENTATIVE, AND TO APPOINT MOTLEY RICE AND ROBBINS GELLAR
AS CLASS COUNSEL
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
a federal securities action. Plaintiff KBC Asset Management
NV (KBC), individually and on behalf of all others similarly
situated, brought this lawsuit against Defendants 3D Systems
Corporation (3D Systems), Abraham N. Reichental, Damon J.
Gregoire, and Ted Hull under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, 15 U.S.C. §§
78j(b) and 78t(a), and Security Exchange Commission Rule
10b-5, promulgated thereunder. See 17 C.F.R. §
240.10b-5. The Court has jurisdiction over the matter in
accordance with 28 U.S.C. § 1331 and Section 26 of the
Exchange Act, 15 U.S.C. § 78aa.
before the Court is KBC's motion as per Rules 23(a) and
23(b)(3) of the Federal Rules of Civil Procedure asking the
Court to certify this lawsuit as a class action on behalf of
a class comprised of all persons or entities who, between
October 29, 2013, and May 5, 2015 (the Class Period),
purchased or otherwise acquired common stock of 3D Systems
and were damaged as a result (the Class). Excluded from the
Class are: Defendants, the officers and directors of 3D
Systems, members of their immediate families and their legal
representatives, heirs, successors, or assigns, and any
entity in which the defendants have or had a controlling
interest. KBC also moves the Court to certify it as the Class
Representative and appoint Motley Rice and Robbins Gellar as
Class Counsel for this litigation.
considered the motion, Defendants' response, KBC's
reply, the record, and the applicable law, the Court will
grant the motion (1) for class certification, (2) to certify
KBC as the class representative, and (3) to appoint Motley
Rice and Robbins Gellar as class counsel.
factual and procedural history of this action is well known
to the parties. For the one who is unfamiliar, the
information is available in the Court's order denying
Defendants' motion to dismiss: KBC Asset Mgmt. NV v.
3D Sys. Corp., No. 0:15-CV-02393-MGL, 2016 WL 3981236,
at *1-2 (D.S.C. July 25, 2016). After the Court denied that
motion, KBC filed this one.
Court, having been fully briefed on the pertinent issues,
will now explain why it concludes KBC's motion should be
STANDARD OF REVIEW
Fourth Circuit has long “stressed . . . it is not the
defendant who bears the burden of showing that the proposed
class does not comply with Rule 23, but that it is the
plaintiff who bears the burden of showing that the class does
comply with Rule 23.” Thorn v. Jefferson-Pilot Life
Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006). Coupled
with “the plaintiffs' burden to demonstrate
compliance with Rule 23 [is] the district court['s]
independent obligation to perform a rigorous analysis to
ensure that all of the prerequisites have been
satisfied.” EQT Prod. Co. v. Adair, 764 F.3d
347, 358 (4th Cir. 2014).
class-action device, which allows a representative party to
prosecute his own claims and the claims of those who present
similar issues, is an exception to the general rule that a
party in federal court may vindicate only his own
interests.” Thorn, 445 F.3d at 318. The
“class representative must be part of the class and
possess the same interest and suffer the same injury as the
class members.” Amchem Prod., Inc. v. Windsor,
521 U.S. 591, 625-26 (1997) (citation omitted) (internal
quotation marks omitted) (alteration omitted).
be certified, a proposed class must satisfy Rule
23(a).” Gunnells v. Healthplan Servs., Inc.,
348 F.3d 417, 423 (4th Cir. 2003). “The requirements of
Rule 23(a) are familiar: numerosity of parties, commonality
of factual or legal issues, typicality of claims and defenses
of class representatives, and adequacy of
representation.” Thorn, 445 F.3d at 318.
addition to meeting the requisites of Rule 23(a), the movant
“must also satisfy through evidentiary proof at least
one of the provisions of Rule 23(b).” Id.
Here, KBC seeks to fulfill the mandate of Rule 23(b)(3),
“which requires a court to find that the questions of
law or fact common to class members predominate over any
questions affecting only individual members.”
Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432
(2013) (internal quotation marks omitted).
predominance criterion in Rule 23(b)(3) “is even more
demanding than Rule 23(a). Rule 23(b)(3), as an adventuresome
innovation, is designed for situations in which class-action
treatment is not as clearly called for.” Id.
That may account for “Congress's addition of
procedural safeguards for (b)(3) class members beyond those
provided for (b)(1) or (b)(2) class members (e.g., an
opportunity to opt out), and the court's duty to take a
close look at whether common questions predominate over
individual ones.” Id.
Court will “take a close look at the facts relevant to
the certification question and, if necessary, make specific
findings on the propriety of certification.”
Thorn, 445 F.3d at 319 (internal quotation marks
omitted). “Such findings can be necessary even if the
issues tend to overlap into the merits of the underlying
case.” Id. “The likelihood of the
plaintiffs' success on the merits, however, is
[ir]relevant to the issue of whether certification is
Fourth Circuit has counseled the district courts to construe
Rule 23 liberally. Gunnells, 348 F.3d at 424.
Nevertheless, it remains true the appellate court accords
this Court “broad discretion in deciding whether to
allow the maintenance of a class action.” Brown v.
Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009) (quoting
Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir.
1976) (internal quotation marks omitted); Gunnells,
348 F.3d at 434 (The Fourth Circuit “accord[s] the
district court's class certification decision substantial
with any other decision that appellate courts review for
abuse of discretion, [the Fourth Circuit will] affirm a
certification decision even if it is convinced that
‘reasons clearly existed for taking the other
course.'” Brown, 785 F.3d at 929 (quoting
Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 564
abuse-of-discretion standard represents “one of the
most deferential standards of review.” Matthew
Bender & Co. v. West Publ'g Co., 240 F.3d 116,
121 (2d Cir. 2001). “Under it, the appellate court may
reverse only when ‘the [trial] court's exercise of
discretion, considering the law and the facts, was arbitrary
and capricious.'” Brown, 785 F.3d at 928
(quoting United States v. Mason, 52 F.3d 1286, 1289
(4th Cir. 1995)). The Fourth Circuit will “act only
when the decision could not ‘have been reached by a
reasonable jurist, ' or when [it] may call it
“fundamentally wrong, ” “clearly
unreasonable, arbitrary, or fanciful.” Id.
(quoting Bluestein v. Cent. Wis. Anesthesiology,
S.C., 769 F.3d 944, 957 (7th Cir. 2014)).
of class action manageability are properly committed to the
district court's discretion, because that court
‘generally has a greater familiarity and expertise'
with the ‘practical . . . and primarily . . .
factual' problems of administering a lawsuit ‘than
does a court of appeals.'” Cent. Wesleyan Coll.
v. W.R. Grace & Co., 6 F.3d 177, 185 (4th Cir. 1993)
(quoting Windham v. Am. Brands, Inc., 565 F.2d 59,
65 (4th Cir. 1977) (en banc)).