In Re Drexel Burnham Lambert Group, Inc.
In re the DREXEL BURNHAM LAMBERT GROUP, INC.; Drexel
Burnham Lambert Trading Corporation; Drexel Burnham Trade
Finance, Inc.; Drexel Burnham Lambert Incorporated; BRR
Incorporated; Deauville United Corporation; Double Oil &
Gas Incorporated; Drexel Burnham Lambert (Asia) Ltd.;
Drexel Burnham Lambert C.P. Inc.; Drexel Burnham Lambert
Capital Group, Inc.; Drexel Burnham Lambert Caribe
International Incorporated; Drexel Burnham Lambert
Commercial Paper Incorporated; Drexel Burnham Lambert
International Inc.; Drexel Burnham Lambert Investors Corp.;
Drexel Burnham Lambert MBI Corp.; Drexel Burnham Lambert
Products Corp.; Drexel Investment Holdings Inc.; First DBL
Corporation; Drexel Burnham Lambert Government Securities
Inc.; Drexel Burnham Lambert Realty Corp., Debtors.
SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee,
v.
The DREXEL BURNHAM LAMBERT GROUP, INC.; Drexel Burnham
Lambert Trading Corporation; Drexel Burnham Lambert Trade
Finance, Inc.; Drexel Burnham Lambert Incorporated; BRR
Incorporated; Deauville United Corporation; Double Oil &
Gas Incorporated; Drexel Burnham Lambert (Asia) Ltd.;
Drexel Burnham Lambert C.P. Inc.; Drexel Burnham Lambert
Capital Group, Inc.; Drexel Burnham Lambert Caribe
International Incorporated; Drexel Burnham Lambert
Commercial Paper Incorporated; Drexel Burnham Lambert
International Inc.; Drexel Burnham Lambert Investors Corp.;
Drexel Burnham Lambert MBI Corp.; Drexel Burnham Lambert
Products Corp.; Drexel Investment Holdings Inc.; First DBL
Corporation; Drexel Burnham Lambert Government Securities
Inc.; Drexel Burnham Lambert Realty Corp., Defendants-Appellees,
Securities Litigation Claimants; Subclass A
Representatives; Subclass B Representatives; Federal
Deposit Insurance Corporation; Resolution Trust
Corporation; Official Creditors Committee of Drexel Burnham
Lambert Group, Inc.; Official Creditors Committee of Drexel
Burnham Lambert Incorporated; Official Creditors Committee
of Drexel Burnham Lambert Trading Corporation; Equity
Committee of the Drexel Burnham Lambert Group, Inc., Appellees,
Hart Holding Company, Inc.; Reeves Industries, Inc.;
Liggett Group Inc.; Liquid Green Trust; William Fries, II;
John Lippitt; Jacquelyn Tribolet; William Nelson Harris,
on behalf of themselves and all members of the Pacific
Lumber Company shareholder plaintiff class; Citibank; Den
Danske Bank; Lloyds Bank P.L.C.; Canadian Imperial Bank of
Commerce, Appellants.
Nos. 813, 814 and 816, Dockets 91-5092, 91-5094 and 91-5102.
United States Court of Appeals,
Second Circuit.
Argued Jan. 27, 1992.
Decided March 27, 1992.
Dennis J. O'Brien, Pittsburgh, Pa. (Joseph M. Ramirez, Eckert Seamans Cherin & Mellott, Pittsburgh, Pa., David S. Elkind, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for appellants Liggett Group Inc., and Liquid Green Trust.
David T. Eames, New York City (Bodian & Eames, New York City, of counsel), for appellants Citibank, Den Danske Bank, Lloyds Bank PLC and Canadian Imperial Bank of Commerce.
Whitton E. Norris, III, Boston, Mass. (Jerome Gotkin, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Mass. and Mark Parry, Moses & Singer, New York City, of counsel), for appellants Hart Holding Co., Inc., and Reeves Industries, Inc.
Peter Gruenberger, New York City (Ira M. Millstein, Weil, Gotshal & Manges, New York City, of counsel), for defendants-appellees.
Melvyn I. Weiss, New York City (Milberg Weiss Bershad Specthrie & Lerach, New York City, Thomas D. Barr, Cravath, Swaine & Moore, New York City, David Berger, Berger & Montague, Philadelphia, Pa., Stanley Nemser, Wolf Popper Ross Wolf & Jones, New York City, of counsel), for appellees.
Richard Kirby, Washington, D.C. (Bruce McNally and Judith Starr, Washington, D.C., of counsel), for plaintiff-appellee S.E.C.
Before: ALTIMARI, WALKER and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge:
Appellants are three members of a proposed class of plaintiffs that have asserted claims against defendants-appellees Drexеl Burnham Lambert Group, Inc. and its subsidiaries (collectively "Drexel"). Appellants ask us to reverse an order entered in the United States District Court for the Southern District of New York (Milton Pollack, Senior District Judge ) certifying the proposed class and two subclasses, and approving a settlement agreement (the "Settlement Agreement") of the class' claims. We find that the district court did not err in certifying the class and subclasses and in approving the Settlement Agreement, and therefore affirm.
BACKGROUND
The events сausing the demise of Drexel are well-documented, and need not be recounted here. We summarize only the facts that are necessary to understand the dispute before us.
In September 1988, the Securities and Exchange Commission ("SEC") filed a civil enforcement action against Drexel and several of its top-ranking officials, alleging that Drexel had violated federal law in various securities transactions. After intense negotiations, Drexel agreed to create a $350 million fund to be administered by the SEC (the "SEC Fund") in exchange for dismissal of the complaint. The SEC was to distribute the Fund to the victims of Drexel's illegal transactions in "junk bonds."
Drexel paid $200 million into the SEC Fund in September 1989, and agreed to pay the remaining $150 million in two installments over the next three years. However, in February 1990 (before Drexel had paid any of the remaining $150 million), Drexel filed a petition for relief under
To facilitate settlement, Judge Pollack withdrew the Securities Claims from the bankruptcy court pursuant to
The parties negotiated throughout January and February. On February 18, 1991, the SLCG advised the district court that the parties had agreed to the broad framework of a settlement. The parties then engaged in round-the-clock negotiations over the next three months to flesh out the terms of the settlement.
On May 3, 1991, the parties arrived at the Settlement Agreement at issue here, an agreement as intricatе as it is lengthy. It contains thirty-three single-spaced pages painstakingly describing the settlement method. The Agreement requires the 850 securities claimants to be certified as a mandatory, non-opt-out class, which in turn is divided into two subclasses. The principal members of subclass A include several failed banks currently administered by the FDIC or the RTC, and the Derivative Plaintiffs. Subclass B consists primarily of the Boesky Litigation Plaintiffs.
Under the Settlement Agreement, Drexel must pay the $150 million balance it owes the SEC Fund. The $350 million SEC Fund will then be divided between the subclasses, with subclass A receiving seventy-five percent ($262.5 million) and subclass B twenty-five percent ($87.5 million). The entire class will also receive a share of Drexel's remaining assets (the "Class Assets"), which will be divided between the subclasses in the same 75%-25% ratio as the SEC Fund. Subclass A's total recovery from the SEC Fund and the Class Assets is estimated at $600 million, while subclass B's total recovery is estimated at $200 million. Finally, the Settlement Agreement provides for subclass A and Drexel to "pool" their recovery from lawsuits thеy have brought against Drexel's former directors and officers (the "Pooled Recovery").2 The Settlement Agreement does not contain any provision enabling subclass B to share in the Pooled Recovery, and enjoins members of subclass B from bringing any future actions against the directors and officers.
The district court scheduled an August 9, 1991 hearing on the fairness of the Settlement Agreement. Notice of the hearing was sent to each of the securities claimants, and was published in six different newspapers throughout the United States. Only eight of the 850 proposed class members filed objections. After listening to their challenges, the district court issued an order certifying the class and approving the Settlement Agreement.
Three of the eight objecting class members now appeal from the district court's order. Appellants first contend that the district court erred in certifying the mandatory non-opt-out class and subclasses. Second, they maintain that the district court erroneously approved the Settlement Agreement. We reject both arguments, and thus affirm the order of the district court.
DISCUSSION
I. Appealability
Drexel has moved to dismiss this appeal, claiming that the district court's order is not final. In support of its motion, Drexel points to the district court's order, which states:
By conclusively resolving the Securities Litigation Claims, the Settlement eliminates one of the most significant hurdles standing in the way of resolution of these Chapter 11 cases. In the absence of the Settlement, there could be no [reorganization] Plan and indеed, no successful and prompt resolution of these Chapter 11 cases.
. . . . .
[However, t]he Settlement, which sets forth the requisite elements to be contained in the [reorganization] Plan, does not "lock up" the terms of the Plan because ... the Settlement is conditioned upon confirmation of the Plan....
In re Drexel Burnham Lambert Group, Inc.,
While Drexel's point might be well-taken in the ordinary realm of civil litigation, it must be emphasized that this appeal arises in a bankruptcy context. We have traditionally accorded a more flexible definition to concepts of finality and appealability in bankruptcy cases. In re Sonnax Industries, Inc.,
a bankruptcy proceeding is umbrella litigation often covering numerous actions that are related only by the debtor's status as a litigant and that often involve decisions that will be unreviewable if appellate jurisdiction exists only at the conclusion of the bankruptcy proceeding.
Id. at 1283 (citations omitted). We held in Sonnax that an order in a bankruptcy case is appealable if the order "finally disposes of [a] discrete dispute [ ] within the larger case." Id. (emphasis in original) (citаtions omitted). There is no question that the order approving the Settlement Agreement addresses a "discrete dispute;" as the district court noted, the Settlement Agreement conclusively resolves the Securities Claims. See Drexel I,
Under Sonnax, our determination of the finality of the district court's order depends on whether appellants will have another chance to assert their objections to the Settlement Agreement. After careful scrutiny, we find that appellants will not have that second chance. They will be unable to participate further in Drexel's reorganization proceedings.
The bankruptcy code allows a claimholder to participate in a debtor's reorganization plan if the claimholder's interests are "impaired" by the plan.
Here, the district court found that Drexel's reorganization would not alter or otherwise infringe the class members' rights, and that the Settlеment Agreement "establishe[d] the legal, equitable and contractual rights of all [c]lass members" regarding Drexel. Drexel I,
II. Class Certification
In determining whether a class should be certified, a district court must first consider each of the factors set forth in
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately proteсt the interests of the class.
If each element of
A.
1. Impracticability of Joinder
The proposed class is clearly so numerous that joinder is impracticable. The entire class comprises nearly 850 claimants dispersed throughout the United States. Subclass A consists of more than 600 claimants, while subclass B consists of over 160 claimants. Individual adjudication of each claim would take many years, and would drastically increase the legal expenses for all of the parties. Joinder of all claims into one proceeding would be expensive, time-consuming, and logistically unfeasible. Thus,
2. Common Questions of Law or Fact
As the district court noted, there are several questions that are common to each class and subclass member. Among these questions are:
1) Whether Drexel is liаble under federal or state securities laws for its role in buying, selling and underwriting securities to the putative class and subclasses;
2) Whether the putative class and subclass members were damaged by Drexel's conduct;
3) The status of the putative class and subclass members' claims relative to the claims of Drexel's Fixed Creditors.
See Drexel I,
3. Typicality
Despite this strong showing of typicality, appellant Liggett Group Inc. ("Liggett") challenges the district court's finding. Liggett points out that it is ineligible to share in the distribution of the SEC Fund because its claims against Drexel do not arise from transactions involving junk bonds, but rather are based solely on Drexel's allegedly fraudulent sale of commercial paper to Liggett. Thus, Liggett argues that its claims are not typical of other members of subclass B, who may draw from both the SEC Fund and the Class Assets. Essentially, Liggett fears that because it cannot share in the SEC Fund it will obtain a lesser recovery than other members of subclass B. We find that Liggett's qualms are premature.
The Settlement Agreement earmarks twenty-five percent of both the SEC Fund and the Class Assets for subclass B, as a whole. The Agreement does not require that each subclass member receive the same percentage as his fellow subclass members from the SEC Fund and the Class Assets. Indeed, the Agreement does not address the rights of individual subclass members. Moreover, the Settlement Agreement does not provide for immediate distribution of the subclass' recovery to individual subclass members. Actual distribution will occur only after Drexel's reorganization is completed, and will be supervised by the district court. At that time, Liggett can seek a higher percentage of the Class Assets to compensate for its inability to share in the SEC Fund. Accordingly, we reject Liggett's argument that the Settlement Argument manifests a lack of typicality within the class.
4. Adequacy of Representation
Under
Aside from Liggett's flawed argument that it will necessarily obtain a smaller recovery than other subclass B members, appellants have not offered any proof that their interests are antagonistic to the remainder of subclass B. To the contrary, the record unequivocally indicates that all members of subclass B (including appellants) share a common interest in showing that Drexel violated federal and state securities laws. All members of subclass B similarly wish to obtain the highest possible recovery for that subclass. In the absence of a showing of a genuine conflict between appellants and subclаss B, we reject appellants' argument that
B.
Having found that the prerequisites to a class action prescribed by
We recognize that the limited fund here is quite different from the limited fund present in most class actions under
For the same reasons that we find that the class can be maintained under
We are not unaware of the Supreme Court's statement in Phillips Petroleum Co. v. Shutts,
III. Approval of the Settlement Agreement
We will ordinarily defer to a district court's approval of a class action settlement unless there is a "clear showing" that the district court abused its discretion. E.g., TBK Partners, Ltd. v. Western Union Corp.,
The district court must consider many factors, including the complexity of the litigation, comparison of the proposed settlement with the likely result of litigation, experience of class counsel, scope of discovery preceding settlement, and the ability of the defendant to satisfy a greater judgment. Id.; see also Grinnell,
This is a complex case. There are many plaintiffs trying to maximize their own recovery, and there is a defendant with a limited fund to satisfy all claims. Prolonging the negotiation process will increase Drexel's litigation costs, with a consequent decrease in the size of the fund. Class counsel are amply experienced in complex securities cases, and have analyzed countless documents and depositions to determine the amount of Drexel's assets and the strength of the class' claims. The negotiation process involved lengthy arms-length discussions between the class counsel, Drexel, and Drexel's Fixed Creditors. The district court extensively supervised the negotiations. Finally, it is doubtful that Drexel сould withstand greater exposure than that already enumerated in the Settlement Agreement. Accordingly, we believe that the Weinberger test has been met.
We need not toil over appellants' argument that their absence from the negotiations irreparably tainted the settlement process. Had the district court permitted each securities claimant to take part in the negotiations, it is unlikely that any agreement at all could have been reached. We will defer to thе district court's management of the case, particularly because the district judge has had substantial experience in supervising complex securities cases. He has presided over both the SEC action against Drexel, and other cases involving Drexel and its former officers and directors. He knows the difficulties the class has had in proving its claims, and is aware of Drexel's financial straits. Thus, we will not second-guess his decision to allow the SLCG alone to negotiate with Drexel.
Finally, appеllants argue that the district court should have stricken the provisions of the Settlement Agreement that (a) enjoin subclass B from bringing any future actions against Drexel's directors and officers, and (b) allow only subclass A and Drexel to share in the Pooled Recovery. Again, we are not persuaded.
In bankruptcy cases, a court may enjoin a creditor from suing a third party, provided the injunction plays an important part in the debtor's reorganization plan. See In re: A.H. Robins Co.,
We rejеct appellants' argument that they should be permitted to share in the Pooled Recovery. When approving a settlement of a class action, a district judge need not ensure that the defendant designate a particular source of its assets to satisfy the class' claims. Rather, the district court need only examine whether the amount recovered by the class was fair in light of the Weinberger and Grinnell factors that we have already discussed. Because we find that these factors have been satisfied, we hold that the district court did not err in denying appellants' request to share in the Pooled Recovery.
CONCLUSION
The district court properly certified the mandatory non-opt-out class and subclasses in accordance with
AFFIRMED.
Notes
On March 9, 1992, the District Court approved a global settlement (the "Global Settlement") of these lawsuits. The Global Settlement provides for a total Pooled Recovery of $1.3 billion. We take judicial notice of the District Court's order approving the Global Settlement pursuant to