Rocco Catena, on Behalf of Himself and All Others Similarly Situated v. Capitol Industries, Inc., a New York Corporation

Catena appeals from an order of the district court prescribing the form of the notice to be sent to all members of the plaintiff class. We conclude that the order is not appealable and dismiss the appeal.

Catena brought the underlying action on behalf of himself and all others who purchased Capitol Industries stock between June, 1969 and December, 1971. He alleged that Capitol, its officers and directors, and its parent corporation, EMI, Ltd., fraudulently manipulated the company’s reserve accounts in order to inflate its reported earnings, and in so doing violated the Securities and Exchange Act of 1934 and Rule 10(b)(5) of the Securities and Exchange Commission. He further alleged that this manipulation induced investors to buy stock in Capitol which fell in price from $56.00 per share to $6.00 per share between June, 1969, and December, 1971, resulting in a $40 million loss to the minority shareholders.

The district court provisionally certified the action as a class action under F.R.Civ.P. 23(a) and (b)(3). It ordered that the notice sent to class members include a demand for information concerning individual losses sustained by each shareholder and a provision that anyone…