162 F.R.D. 271 | S.D.N.Y. | 1995
OPINION AND ORDER
The above-captioned action is a complex securities fraud case that has been pending before us since October 1990. We describe here only those circumstances relevant to the decision of the application presently before us.
BACKGROUND
On September 26, 1991, we “so ordered” a stipulation certifying this case as a class action under Fed.R.Civ.P. 23(b)(3) and defining the plaintiff classes as (1) all persons who purchased common stock in Del-Val Financial Corp. (“Del-Val”) between March 30, 1989, and October 19, 1990, and (2) all persons who held common stock in Del-Val on October 22, 1990. No Notice of Pendency was sent to the potential class members at the time the stipulation was signed.
On September 10, 1993, plaintiffs’ counsel signed a Stipulation of Settlement with the Del-Val defendants.
Plaintiffs’ counsel proceeded with the action against the remaining defendants — De-loitte & Touche (“D & T”), Interstate/Johnson Lane (“I/JL”), a defendant class of underwriters represented by I/JL, and Martin Wright. In May 1995, plaintiffs’ counsel signed Stipulations of Settlement with both I/JL and D & T. The terms of those proposed settlements state that they do not apply to individuals who requested exclusion from the classes in 1993. A Notice of Proposed Settlements of Class Action and Settlement Hearing was mailed to the class members on May 26, 1995. We held a hearing to approve the settlements on July 7, 1995.
The putative class members appeared at that hearing. They raised no objection to the fairness, reasonableness, or adequacy of the settlements, but instead sought an order modifying the proposed settlements to permit them to participate in the distribution of the proceeds of the settlements with D & T and I/JL. The putative class members did not seek to withdraw their exclusion from the Del-Val settlement.
We indicated at the hearing our willingness to approve the settlement as fair, reasonable, and adequate, as required under Fed.R.Civ.P. 23(e). We deferred the entry of judgment, however, to permit the parties to brief the issue of whether the putative class members should be permitted to participate in the settlements with D & T and I/JL, while remaining excluded from the settle
DISCUSSION
With respect to exclusion from a class certified under Rule 23(b)(3), Rule 23(c)(2) provides that:
the court shall direct to the members of the class the best notice practicable under the circumstances____ The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.
Fed.R.Civ.P. 23(c)(2). Rule 23 contains no provision that expressly permits an individual to exclude herself from the class with respect to some defendants but to remain in the class with respect to others. Rule 23 does, however, confer broad discretion on the courts to alter or amend the class at any time before decision on the merits. See Fed. R.Civ.P. 23(c)(1).
The putative class members cite only one case, In re Electric Weld Steel Tubing Antitrust Litigation, 1982 WL 1873 (E.D.Pa. June 30, 1982), as authority for their contention that we may permit them to participate in the settlements with D & T and I/JL, while remaining excluded from the settlement with the Del-Val defendants. In that ease, the court had certified a temporary settlement class
Meanwhile, after the first settlement was approved but before the second was reached, Master Juvenile had filed an action against the defendants involved in the first settlement. As part of the settlement of that action, those defendants and Master Juvenile agreed that Master Juvenile should be allowed to withdraw its exclusion from the settlement class. See id. Relying on Rule 23(c)(1) and acting over the objections of plaintiffs’ counsel, the court reinstated Master Juvenile as a settlement class member. See id., at *3.
The primary problem with the putative class members’ reliance on Electric Weld is that it simply does not support their position. Contrary to the putative class members’ assertion, the court did not grant Master Juvenile leave “to re-enter the settlement class for purposes only of participating in the second settlement.” Putative Class Members’ Memorandum of Law, at 6. Instead, the court specifically noted that Master Juvenile had requested leave to withdraw its exclusion from the first settlement. See Electric Weld, at *1. The court granted that request, thereby permitting Master Juvenile to reenter the settlement class and to participate in the distribution of the proceeds of both settlements. Far from granting the type of relief the putative class members seek from us, the Electric Weld court never even considered allowing Master. Juvenile to reenter the settlement class for the purpose of participating in the second settlement while remaining excluded from the first.
Lacking any case law to support their application, the putative class members must base their application solely on an appeal to equity. The putative class members argue that the Notice and the attached Proof of
To explain the basis of their belief that they merely opted out of the settlement with the Del-Val defendants, the putative class members point to references in the Notice and the Proof of Claim to the “Settling Class Members” or “Settlement Class.”
We recognize that “Settling Class Members” and “Settlement Class” are potentially confusing terms. The Proof of Claim especially, uses these terms quite freely
Our conclusion that the import of the Notice and Proof of Claim is sufficiently clear to a careful reader is bolstered by an examination of the first page of the Notice. The opening paragraphs of the Notice indicate that it is addressed to all persons who purchased Del-Val common stock between March 30, 1989, and October 19, 1990 (Class I), and all persons who held Del-Val common stock as of October 22, 1990 (Class II). The notice then states: “This notice relates to a proposed partial settlement of this class action and, if you are a class member, contains important information as to your rights concerning the settlement as further described below.” Notice, at 1. The Notice then defines who is a class member by stating that “[i]f you purchased Del-Val common stock during the Class Period (Class I) or owned Del-Val common stock on October 22, 1990 (Class II) you will be deemed to be a member of such Classes unless you request to be excluded from the Classes.” Id. The notice then describes the procedure for opting out of the classes. See id.
The Notice does not state or imply, anywhere in these crucial provisions, that the classes exist only for the purposes of the settlement with the Del-Val defendants or that individuals who meet the class definition may opt out only for the purposes of that settlement. Instead, it describes the typical class action procedure under Rule 23 in which a class is certified for the purposes of litigating the class claims and potential class members are given the opportunity, before the resolution of any of the class claims, to opt out of the class. It is axiomatic that an individual who requests exclusion from a class certified for the purposes of litigation is opting out of the entire litigation. See Fed. R.Civ.P. 23(c)(2); Manual for Complex Litigation 2d § 30.231 (1985). Accordingly, we find no reasonable basis for the putative class members’ belief that they requested exclusion only from the settlement with the Del-Val defendants. On the contrary, the putative class members’ request for exclusion from the classes had the effect of excluding them from the entire litigation.
Moreover, even if the putative class members succeeded in convincing us that the Notice created the misleading impression that the classes to which it referred were certified only for purposes of the settlement with the Del-Val defendants, it is by no means certain that we could or should award the putative class members the relief they seek. As we indicated above, no precedent exists for permitting class members to opt out of a class, whether certified for purposes of settlement or otherwise, with respect to some defendants or claims but not others. While we have broad discretion under Rule 23(e)(1) to amend or alter classes at any time before a decision on the merits, we must use that discretion to further the policies underlying Rule 23.
The procedures outlined in Rule 23 are carefully crafted to protect the rights of class members while promoting the efficient and final resolution of claims against class action defendants. See In re General Motors, 55 F.3d at 783-85. We believe that the balance struck by Rule 23 would be upset if individuals could choose to participate in a class for the purposes of settlement with some defendants, but to exclude themselves from the settlement with other defendants. Rule 23 requires potential class members to make a trade-off: an individual either decides to remain a class member, bound by any and all judgments rendered in the class action but spared the expense of litigating on her own behalf, or she elects exclusion. If she chooses exclusion, she is required to expend her own resources to bring her claims against the defendants, but she may potentially be rewarded by receiving a larger recovery. Permitting an individual eligible to be a class
Despite the lack of support for the putative class members’ belief that they could exclude themselves from the settlement with the Del-Val defendants only, they have maintained this position consistently since receiving the Notice. The letter by which the putative class members opted out requested “exclusion from the proposed settlement.” Letter of Charles J. Hecht, dated October 29, 1993, attached as Exhibit 2 to Dannenberg Affidavit. A later letter, sent by Mr. Hecht on behalf of one of the putative class members, stated that she had previously requested “exclusion from the proposed settlement.” Letter of Charles J. Hecht, dated November 22, 1994, attached as Exhibit 6 to Dannen-berg Affidavit.
We believe that the putative class members were clearly mistaken in their interpretation of the Notice. However, in the interests of equity and so as not to penalize the putative class members for what seems to have been a genuine misunderstanding, we will exercise our discretion under Rule 23(c)(1) to permit them to reenter the classes, if they so choose.
CONCLUSION
For the foregoing reasons, the application of the putative class members is denied. Within 10 days of the date of this order, the putative class members shall inform the court and plaintiffs’ counsel whether or not they choose to reenter the classes and participate on the same terms as other class members in the settlements with the Del-Val defendants, Deloitte & Touche, and Interstate/Johnson Lane.
SO ORDERED.
. The Del-Val defendants are Del-Val, Kenbee Management Inc. (Del-VaTs parent), and all of the officers and directors of Del-Val who were named as individual defendants, except defendant Martin Wright.
. The putative class members have brought an action in the Chancery Court of Delaware against several of the Del-Val defendants. That case is currently pending. They have made no claims against D & T or I/JL in that or any other action.
. Although Rule 23 does not expressly authorize the "settlement class” device, a number of courts have used their discretion to issue an order conditionally certifying a class for purposes of facilitating settlement. Settlement classes are certified only when the settlement is about to be finally approved, thus binding the interests of the members of the class to the settlement. If the settlement is not approved, the class may cease to exist. See Manual for Complex Litigation 2d § 30.45 (1985); see also In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 786 (3d Cir.1995).
. The putative class members do not argue that the classes were in fact certified only for purposes of the settlement with the Del-Val defendants. Indeed, there is no doubt that the classes were certified for general litigation purposes. First, the stipulation of class certification was signed almost two years before the plaintiffs settled with the Del-Val defendants. Furthermore, the stipulation explicitly provided that it was "solely for the purpose of resolving the issue whether the claims asserted in the Consolidated Amended Class Action Complaint may be maintained as a class action____” See Stipulation and Order Re Plaintiff Class Certification, dated September 26, 1991, at ¶ 7, attached as Exhibit 3 to Affidavit of Richard B. Dannenberg, dated July 13, 1995.
. The putative class members also rely on a statement in the Notice that plaintiffs' counsel would continue to pursue the remaining claims against D & T and I/JL, see Notice, at 1, attached as Exhibit 4 to Dannenberg Affidavit; and on a provision in the Proof of Claim stating that the undersigned claimant "settle[s], discharge[s], and release[s] all Settled Class Claims against the Settling Defendants only, as those terms are defined in the Notice.” Proof of Claim, at 7, attached as Exhibit 4 to Dannenberg Affidavit.
We find nothing misleading in these statements, which merely state the obvious. When claims against some defendants in an action are settled while claims against others are not, it is hard to conceive of a more accurate statement than that the action will terminate against the settling defendants and continue against the non-settling defendants.
The putative class members also point to references in the Notice and the Proof of Claim to the "Settled Class Claims.” We fail to see how the use of this term could have misled the putative class members. "Settled Class Claims” are defined quite clearly as the claims that have been or could be brought by class members against the Del-Val defendants. See Notice, at 5. The term is merely used as a shorthand to distinguish those class claims that would be dismissed as a result of the approval of the settlement with the Del-Val defendants from those claims that remained pending against D & T and I/JL.
. E.g., the Proof of Claim states that "[i]f you are NOT a member of either of the Settlement Classes as defined in the [Notice], or you requested exclusion from Class I and/or Class II, DO NOT submit a Proof of Claim and Release Form.” Proof of Claim, at 6. This statement seems to suggest that the "Settlement Classes” are distinct from "Class I and/or Class II." A look at the definition of "Settlement Classes,” however, reveals that both terms refer to the same group of people. See Notice, at 5.
. The Proof of Claim refers the reader to the list of definitions in the Notice for the meanings of certain capitalized terms. See Proof of Claim, at 6.
. Plaintiffs’ counsel and counsel for the Del-Val defendants have indicated that they do not object to the putative class members reentering the classes, so long as they participate in and are bound by all three settlements. We have received no objections from D & T or I/JL.