Blank v. Jacobs et al

Filing 335

MEMORANDUM & ORDER granting in part 324 Motion for Disbursement of Funds. For the foregoing reasons, Plaintiffs' motion for distribution of the Settlement Funds is GRANTED IN PART. Accordingly, it is hereby: ORDERED that the administrative determinations of the Claims Administrator accepting the claims shown an Exhibit C to the Amended Rosenbaum Affidavit, with the exception of certain claims submitted after January 12, 2011, as specified above, are approved, and said claims are here by accepted; and it is further ORDERED that the administrative determinations of the Claims Administrator rejecting the claims shown on Exhibits D and E to the Amended Rosenbaum Affidavit are approved, and said claims are hereby rejected; and it is f urther ORDERED that Berdon Claims Administration LLC be paid the sum of $99,583.40 from the Gross Settlement Fund for the balance of its fees and expenses incurred and to be incurred in connection with the services performed and to be performed in giving notice to the Class, preparing tax returns for the Gross Settlement Fund, processing the Proofs of Claim, and administering and distributing the Net Settlement Fund; and it is further ORDERED that the balance of the Gross Settlement Fund, after deducting the payments previously allowed and set forth herein (the "Net Settlement Fund"), shall be distributed to the Authorized Claimants in accordance with this Memorandum and Order in proportion to the Recognized Claim allocable to each such eligible claimant as shown on such printout; and it is further ORDERED that the payments to be distributed to the Authorized Claimants shall bear the notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION 180 DAYS AFTER ISSUE DATE." Plaintiffs' Counsel and the Claims Administrator are authorized to take appropriate action to locate and/or contact any eligible claimant who has not cashed his, her, or its distribution within said time; and it is further ORDERED t hat all persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration or taxation of the Gross Settlement Fund or the Net Settl ement Fund are released and discharged from any and all claims arising out of such involvement, and all Class Members, whether or not they are to receive payment from the Net Settlement Fund, are barred from making any further claim against the Net S ettlement Fund or the released persons beyond the amount allocated to them pursuant to this Memorandum and Order, and it is further ORDERED that the Claims Administrator is hereby authorized to discard paper or hard copies of the Proofs of Claim and supporting documents not less than one year after the initial distribution of the Net Settlement Fund to the eligible claimants and electronic or magnetic media data not less than three years after the initial distribution of the Net Settlement Fund to the eligible claimants; and it is further ORDERED that this Court shall retain jurisdiction over any further application or matter which may arise in connection with this action; and it is further ORDERED that no claim submitted after the date of this Memorandum and Order may be accepted by the Claims Administrator. So Ordered by Judge Joanna Seybert on 3/27/2013. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------x
BARRY BLANK, on behalf of himself
and all others similarly situated,
WILLIAM D. WITTER PARTNERS, LP;
ROBERT D. HERPST; DAVID HUST; REG
PARTNERS, LLP; CHARLES PAUL COCO;
EDWARD J. DESAUTELS; CAROL B. HABA;
KELEL YETEVE D’JERUSALEM,
individually and behalf of all
others similarly situated; B & E
EIDORFER FOUNDATION, individually
and on behalf of all others similarly
situated,

MEMORANDUM & ORDER
03-CV-2111(JS)(WDW)

Plaintiffs,
-againstVICTOR JACOBS; HERMAN JACOBS; DAVID
SHAMILZADEH; JACK JACOBS; JEFFREY
RABINOVICH; SOL NAIMARK; JEFFREY
BERG; STUART GLASSER; KPMG LLP;
MAYER RISPLER & COMPANY, P.C.; and
ARTHUR ANDERSON LLP,
Defendants.
-----------------------------------------x
APPEARANCES
For Plaintiffs and the
Class:
Stephen T. Rodd, Esq.
Stephanie Amin Giwner, Esq.
Orin Kurtz, Esq.
Nancy Kaboolian, Esq.
Abbey Spanier, LLP
212 East 39th Street
New York, NY 10016
For Plaintiffs:
Blank1:

1

Samuel Kenneth Rosen, Esq.
Harwood Feffer LLP
488 Madison Avenue, 7th Floor
New York, NY 10022

Specified appearances are in addition to those of class
counsel.

William D. Witter
Partners, LP; Herpst;
and Hust:

Mark Casser Gardy, Esq.
Gardy & Notis, LLP
440 Sylvan Avenue, Suite 110
Englewood Cliffs, NJ 07632

Coco:

David A. Rosenfeld, Esq.
Robbins Geller Rudman & Dowd, LLP
58 South Service Road, Suite 200
Melville, NY 11747

Desautels:

Steven D. Resnick, Esq.
Barroway Topaz Kessler Meltzer &
Check LLP
280 King of Prussia Road
Radnor, PA 19087

Haba:

Patrick A. Klingman, Esq.
Shepherd Finkelman Miller & Shah, LLC
65 Main Street
Chester, CT 06412

D’Jerusalem and
B & E Eidorfer
Foundation:

Eric J. Belfi, Esq.
Labaton Sucharow & Rudoff LLP
100 Park Avenue
New York, NY 10017

For Defendants:
Victor Jacobs,
Herman Jacobs,
David Shamilzadeh,
Jack Jacobs, Jeffrey
Rabinovich, Sol Naimark,
Jeffrey Berg, Stuart
Glasser, KPMG LLP:
Steven G. Schulman, Esq.
Milberg Weiss Bershad & Schulman LLP
One Pennsylvania Plaza
New York, NY 10119

2

Jeffrey Rabinovich:

Joseph Ted Donovan, Esq.
Finkel Goldstein Rosenbloom & Nash LLP
26 Broadway, Suite 711
New York, NY 10004

Sol Naimark, Jeffrey
Berg and Stuart
Glasser:

Gregory G. Ballard, Esq.
Gregory A. Markel, Esq.
Ronit Setton, Esq.
Cadwalader, Wickersham & Taft, LLP
One World Financial Center
New York, NY 10281

Mayer Rispler &
Company, P.C.:

Benjamin Zelermyer, Esq.
Steinberg & Cavaliere, LLP
50 Main Street, 9th Floor
White Plains, NY 10606

KPMG LLP:

Kevin A. Burke, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019

Arthur Andersen LLP:

Christopher Harris, Esq.
Robert John Malionek, Esq.
Nia J.C. Castelly, Esq.
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, NY 10022

SEYBERT, District Judge:
This case involves a securities class action brought
on behalf of all purchasers of the Class A Common Stock of Allou
Health & Beauty Care, Inc., (“Allou”) between June 22, 1998 and
April 9, 2003.

Pursuant to Rule 23(e) of the Federal Rules of

Civil Procedure, Lead Plaintiffs REG Partners, LLP, and Robert
D.

Herpst,

Representatives

and

Proposed

Charles

Paul

Lead
Coco
3

Plaintiffs
and

Edward

and
J.

Class

Desautels

(collectively “Plaintiffs”), move this Court for entry of an
Order: (1) directing distribution of the Net Settlement Fund,
after

deduction

Proofs

of

of

Claim

certain
have

payments,

been

to

Class

Members

(2)

approving

accepted;

whose
the

administrative determinations of Berdon Claims Administration,
LLC

(“Berdon”),

rejecting

the

submitted

Claims
claims;

Administrator,
and

(3)

accepting

directing

and

payment

of

$99,583.40 out of the Gross Settlement Fund to Berdon for fees
and expenses incurred and to be incurred in connection with
services performed and to be performed in giving notice to the
Class, preparing tax returns for the Gross Settlement Fund, and
processing

the

Proofs

of

Claim.

For

the

reasons

set

forth

Memorandum

and

Order

below, Plaintiffs’ motion is GRANTED IN PART.
BACKGROUND
The

Court’s

November

29,

2012

(the “November Order” Docket Entry 327) sets forth in detail the
procedural and factual background of this action, with which
familiarity is presumed.
Briefly, on May 1, 2003, Plaintiff Barry Blank brought
an

action

alleging

against

claims

various

under

the

(Complaint,

Docket

Entry

consolidated

with

several

directors

and

Securities

Exchange

1.)

Thereafter,

other

actions

auditors
Act

this

filed

of

in

Allou

of

1934.

action
the

was

United

States District Court for the Eastern District of New York as
4

class actions brought on behalf of all purchasers of the Class A
Common Stock of Allou between June 22, 1998 and April 9, 2003
(the “Class Period”), alleging claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder.

(Court Order dated July 8, 2003, Docket

Entry 29.)
Throughout
entered

into

Defendants.

the

several

course

of

partial

litigation,

settlements

Plaintiffs

with

certain

First, Plaintiffs settled with Defendants Stuart

Glasser, Jeffrey Berg, and Sol Naimark, and the Court entered an
Order of Final Judgment and Dismissal on October 19, 2006.

(See

Docket

with

Entry

Defendant

152.)

Mayer

Subsequently,

Rispler

approved

on

November

Finally,

Plaintiffs

&

16,

entered

Plaintiffs

Company,
2009.

P.C.,
(See

into

settled

which

Docket

settlements

the

Court

Entry

255).

with

Defendants

Arthur Andersen LLP and KPMG LLP, which the Court approved on
November

19,

2010.

(See

Docket

Entry

321.)

Thereafter,

Plaintiffs agreed to dismiss their claims against the remaining
Defendants.
The proceeds from all four of the settlements have
been placed into a single fund (the “Settlement Fund”) totaling
approximately

$1,750,000.

(Memo.

Settlement, Docket Entry 296.)

in

Supp.

of

Motion

for

Currently pending before the

5

Court is Plaintiffs’ motion for distribution of the Settlement
Fund.
In the November Order, however, the Court requested
additional information in order to rule on Plaintiffs’ motion.
Plaintiffs

have

since

filed

the

necessary

information,

and

Plaintiffs’ motion is ripe for review.
DISCUSSION
Federal

Rule

of

Civil

Procedure

23

provides

that

“[t]he claims, issues, or defenses of a certified class may be
settled,

voluntarily

court’s approval.”

dismissed,

or

compromised

FED. R. CIV. P. 23(e).

only

with

the

Although Plaintiffs’

motion is unopposed, the Court “sits . . . as a guardian.”

RMED

Int’l, Inc. v. Sloan’s Supermarkets, Inc., No. 94-CV-5587, 2003
WL

22251323,

quotations

at

marks

*1
and

(S.D.N.Y.
citation

Sept.

omitted).

30,

2003)

(internal

Further,

settlement

administration under Rule 23 “often requires courts to use their
equitable powers . . . A primary use of these equitable powers
is balancing the goals of expedient settlement distribution and
the consideration due to late-arriving class members.”

In re

Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, 321 (3d
Cir. 2011).
Plaintiffs

request

that

the

Court

approve

the

decisions and fees and expenses of Claims Administrator, Berdon.

6

The Court will first address Berdon’s decisions before turning
to its fees and expenses.
I.

Berdon’s Decisions
Berdon made the following determinations: (1) to allow

properly documented claims to share in the settlement, including
claim forms that were received after the filing deadline; (2) to
tentatively

reject

undocumented

claim

completely
eligible

reject

inadequately
forms

subject

duplicate

transactions

in

documented
to

claims

Allou

or

correction;

and

Class

claims
A

completely
and

stock.

to

with

forms

(3)

no

(See

Am.

Rosenbaum Decl. ¶ 9.)
A.

Properly Documented Claims
The

Court

APPROVES

of

Berdon’s

decision

to

accept

properly and timely filed claims forms.
Properly documented claim forms that were postmarked
after the cut-off date of January 12, 2011, however, require
some additional inquiry.

As this Court noted in its November

Order, there are four factors to address in considering whether
to accept untimely claims in a class action settlement.
factors

(the

“Pioneer

factors”)

include:

“1)

the

These

danger

of

prejudice to the nonmovant; 2) the length of the delay and its
potential effect on judicial proceedings; 3) the reason for the
delay, including whether it was within the reasonable control of
the movant; and 4) whether the movant acted in good faith.”
7

In

re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d at 322-23
(citing Pioneer Inv. Servs. v. Brunswick Assoc. Ltd. P’ship, 507
U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)); accord
In re Oxford Health Plans, Inc., 383 F. App’x 43, 45 (2d Cir.
2010); In re Visa Check/Mastermoney Litig., No. 96-CV-2538, 2009
WL 7230400, at *1 (E.D.N.Y. Nov. 19, 2009).

Especially relevant

to this determination is the reason for the delay and whether it
was in the claimants’ control.

See In re Oxford Health Plans,

Inc., 383 F. App’x at 45 (“[B]ecause in the ordinary case there
will be little prejudice or disruption caused by allowing a
late-submitted
reason

for

claim,

the

we

focus

claimant’s

our

delay”);

analysis
see

on

also

the
In

asserted
re

Gilat

Satellite Networks, Ltd., No. 02-CV-1510, 2009 WL 803382, at *6
(E.D.N.Y. Mar. 25, 2009) (“Because there is no showing of delay
or prejudice, the late filed claims should be included in the
class for settlement disbursement.”).

Some courts have likened

this inquiry to a showing of “excusable neglect.”

See In re

Auction Houses Antitrust Litig., No 00-CV-0648, 2004 WL 3670993,
at *4 (S.D.N.Y. Nov. 17, 2004).
The
claims

would

Court
not

finds

that

prejudice

inclusion

Defendants.

of

the
Here

late-filed
the

Gross

Settlement Fund consists of a fixed amount with no reversionary

8

interest

to

Defendants.

(Supp.

Br.

at

6-7.2)

Therefore,

inclusion of late-filed claims will have no impact upon the
amount of settlement funds Defendants will ultimately need to
pay.

See In re Orthopedic Bone Screw Prods. Liab. Litig., 246

F.3d

at

323-24

defendant’s

(finding

liability

was

little

to

capped);

no

contra

prejudice
Dahingo

because
v.

Royal

Carribean Cruises, Ltd., 312 F. Supp. 2d 440, 447 (S.D.N.Y.
2004) (prejudice found where defendant was entitled to receive
back any excess not paid out for claims, attorneys’ fees and
costs, or administrative expenses).
In addition, there is nothing to suggest that any of
the claimants acted with less than good faith in failing to
timely submit their claim forms.

In re Orthopedic Bone Screw

Prods. Liab. Litig., 246 F.3d at 329 (“No party has alleged that
Sambolin exhibited less than good faith in seeking redress for
his injury.”).
Thus, the Court focuses on the length and reasons for
delay.

In response to the Court’s November Order, Plaintiffs

submitted a supplemental memorandum of law and the Declaration
of Orin Kurtz in which Plaintiffs include twelve declarations
from late-filing Class members.

The Court will consider each of

these in turn.
2

“Supp. Br.” refers to Plaintiffs’ Supplemental Memorandum of
Law in Support of Motion For Distribution of Net Settlement
Fund, Docket Entry 329.
9

First,

the

Court

APPROVES

of

Berdon’s

decision

to

allow the claims of Lead Plaintiff REG Partners, LLP (“REG”).
Richard E. Greulich, President and CEO of REG Capital, attempted
to obtain brokerage statements for trades in Allou stock at
least two months in advance of the cut-off date.
Decl. ¶ 6.3)

The broker who executed the trades, however, would

not release records regarding REG’s trades in Allou.
Decl. ¶ 6.)
from

the

(Greulich

(Greulich

Mr. Greulich then attempted to obtain the records
accounting

(Greulich Decl. ¶ 6.)

firm

that

performed

audits

of

REG.

The accounting firm was able to obtain

the requested documentation, but only after a manual search.
(Greulich Dec. ¶¶ 6-7.)

Mr. Greulich then immediately forwarded

the records to counsel, and REG’s claims form was postmarked
February 9, 2011.

(Greulich Decl. ¶ 8.)

The Court finds that

under the circumstances as Mr. Greulich describes, REG has shown
excusable neglect.

See In re Authentidate Holding Corp. Sec.

Litig., No. 05-CV-5323, 2013 WL 324153, at *2 (S.D.N.Y. Jan. 25,
2013)

(claimant’s

maintained

by

explanation

third

that

parties,

transaction

combined

with

records
the

lack

were
of

prejudice, persuaded court that there was excusable neglect); In
re Auction Houses Antitrust Ltig., 2004 WL 3670993, at *8 (late
filing was excusable where claimant acted promptly); In re Crazy

3

The Greulich Declaration is Exhibit B to the Kurtz Declaration,
filed at Docket Entry 331.
10

Eddie

Sec.

(allowing

Litig.,

claims

906

where

F.

Supp.

reasons

840,

for

847

lateness

(E.D.N.Y.
involved

1995)

factors

beyond the control of the claimant).
Second,

the

Court

APPROVES

of

Berdon’s

decision

to

include the claims of Gregory S. Golczewski, on behalf of the
TRP Total Equity Market Index Fund, and William T. Salem.

Mr.

Salem lives in a retirement community and, although Mr. Salem
signed his claim form on January 12, 2011 and timely left his
mail for pickup, his claim form was not postmarked until January
18,

2011.

(Kurtz

Decl.

Ex.

C.)

Similarly,

Mr.

Golczewski

submitted a claim form postmarked January 20, 2011 due to a
tracking error.

(Kurtz Decl. Ex. M.)

These delays were minimal

and tardiness due to a mistake such as postal and mailing error
is excusable.
(finding

See In re Crazy Eddie Litig., 906 F. Supp. at 847

excusable

neglect

where

claimant

asserted

mailing

mistake or computer error).
Third,

the

Court

APPROVES

of

Berdon’s

decision

to

include the late-filed claims of Mark Chaffins and Roy O. Brady,
Jr.

Mr. Chaffins’ claim form was postmarked within a month of

the cut-off date and Mr. Brady’s form was postmarked by March 2,
2011.

(Supp. Br. at 4.)

In addition, in both instances, the

respective class members did not know or receive notice of the
settlement through no fault of their own.
H.)

(Kurtz Decl. Exs. G,

As such, they have demonstrated excusable neglect.
11

See In

re Auction Houses Antitrust Litig., 2004 WL 3670993, at *6 (late
claimant that likely did not receive notice met its burden of
showing excusable neglect).
Fourth, Cecilia Ness experienced a series of health
issues which prevented her from filing the claim form until
approximately April 4, 2011.

(Kurtz Decl. Ex. I.)

As health

and medical issues constitute excusable neglect, see In re Crazy
Eddie Sec. Litig., 906 F. Supp. at 847, the Court APPROVES of
inclusion of her claim.
Finally, however, the Court DENIES Berdon’s decision
to include the remaining late claims.
Heisman,

who

filed

claims

More specifically, Daniel

postmarked

on

July

22,

2011

for

himself as well as for Daniel E. Heisman SEP IRA and the Daniel
E. Heisman Rollover IRA, accidentally misplaced the notice and
claim form.

(Kurtz Decl. Exs. D, E, F.)

Although excusable

neglect is an “elastic concept,” see Pioneer Inv. Servs., 507
U.S.

at

392,

misplacement

of

the

forms

without

any

further

explanation other than believing it would not be problematic to
submit

a

late

particularly
Auction

claim

given

Houses

a

does

not

delay

of

Antitrust

constitute
over

Litig.,

six
2004

excusable

months.
WL

neglect,

See

3670993,

In

re

at

*9

(secretary’s misplacement of the claim forms, along with other
reasons, was insufficient to demonstrate excusable neglect).

12

Likewise, Keen Vision Fund I LP, Keen Vision Fund II
LP, and Keen Microcap Value Fund LLP submitted claims postmarked
August 19, 2011 because “the client did not have a class action
program in place” until May 27, 2011.
L.)
of

(Kurtz Decl. Exs. J, K,

This reasoning, however, does not provide any explanation
lateness

outside

of

the

claimants’

control

or

why

the

information could not have reasonably been obtained prior to the
cut-off date.

See In re Oxford Health Plans, Inc., 383 F. App’x

at 46 (finding that District Court did not abuse its discretion
in denying claim where “[i]t was entirely within [claimant’s]
‘reasonable control’ to file a timely claim with respect to its
holdings in the Berger funds.”).
limit

its

inquiry

solely

to

Although the Court does not

whether

the

circumstances

were

beyond the claimant’s control, see Pioneer Inv. Servs., 507 U.S.
at

392,

failure

to

have

a

“class

action

program”

in

place,

culminating in a seventh month delay, does not alone constitute
excusable neglect.
Plaintiffs have not provided the length or reason for
delay with respect to any additional claimants, and the Court
therefore

cannot

excusable neglect.
B.

determine

whether

they

have

demonstrated

Accordingly, such claims are DENIED.

Claims Not Documented
The Court APPROVES of Berdon’s decision to reject any

claims not properly documented unless any of those claimants has
13

been able to cure the deficiencies prior to this Memorandum and
Order.

(See Am. Rosenbaum Decl. § 9(b).)

See Dahingo, 312 F.

Supp. 2d at 449 (claimants who submitted unsigned forms must be
given

the

opportunity

supplemental
made.

to

memorandum

cure

notes,

the
no

defect).

such

As

Plaintiffs’

corrections

have

been

Of course, there must eventually be some finality to

these inquiries, and accordingly such claims are not included in
distribution.

See In re Crazy Eddie Sec. Litig., 906 F. Supp.

at 846 (“However, as a matter of judicial administration and
fairness to all parties, even this concern for protecting class
members must give way to finality.”).
C.

Ineligible Claims
Moreover, the Court APPROVES of Berdon’s decisions to

reject

any

duplicate

claims

or

claims

transactions in Allou Class A common stock.
Decl. § 9(c).)

with

no

eligible

(See Am. Rosenbaum

Rejection of such claims is appropriate and they

should not be included in the settlement distribution.
Shields

v.

Goldome,

No.

88-CV-4765,

1991

WL

113263,

See
at

*2

(S.D.N.Y. June 20, 1991).
II.

Berdon’s Fees and Expenses
As Claims Administrator, Berdon was responsible for,

inter alia, printing and mailing notice to the Class for each of
the

four

settlements,

effecting

publication

of

the

Summary

Notice of Settlement for each settlement, processing the claims,
14

preparing

Fund,

and

distributing the Net Settlement Fund to accepted claimants.

The

Court

the

has

tax

returns

reviewed

for

the

the

Gross

affidavits

of

Settlement

Michael

Rosenbaum,

Managing Director of Berdon, and the accompanying invoices which
detail the various services that Berdon provided and out-ofpocket expenses incurred.
G., Docket Entry 330)
accord

with

the

(See, e.g., Am. Rosenbaum Aff. Ex.

Berdon’s services were appropriate and in

types

of

services

for

which

courts

circuit have approved claims administrators’ fees.

in

this

See RMED

Int’l, Inc., 2003 WL 22251323, at *2 (finding Berdon’s fees and
expenses for services nearly identical to the case at hand to be
reasonable); Presidential Life Ins. Co. v. Miliken, No. 92-CV1151, 1997 WL 727497, *5-6 (S.D.N.Y. Nov. 20, 1997) (claims
administrator’s
processing

services

proofs

of

included,

claims,

among

assisting

in

other

things,

administering

the

fund, and calculating taxes); Genden v. Merrill Lynch, Pierce,
Fenner

&

Smith,

Inc.,

741

F.

Supp.

84,

88

(S.D.N.Y.

1990)

(approving a total of $507,684.45 to settlement administrator
for

services

Accordingly,

in

Berdon

administering
is

entitled

to

$99,583.40 for its fees and expenses.

15

the
the

settlement
requested

fund).

amount

of

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for
distribution of the Settlement Funds is GRANTED IN PART.
Accordingly, it is hereby:
ORDERED that the administrative determinations of the
Claims Administrator accepting the claims shown an Exhibit C to
the Amended Rosenbaum Affidavit, with the exception of certain
claims submitted after January 12, 2011, as specified above,
are approved, and said claims are hereby accepted; and it is
further
ORDERED that the administrative determinations of the
Claims Administrator rejecting the claims shown on Exhibits D
and E to the Amended Rosenbaum Affidavit are approved, and said
claims are hereby rejected; and it is further
ORDERED that Berdon Claims Administration LLC be paid
the sum of $99,583.40 from the Gross Settlement Fund for the
balance of its fees and expenses incurred and to be incurred in
connection with the services performed and to be performed in
giving notice to the Class, preparing tax returns for the Gross
Settlement

Fund,

processing

the

Proofs

of

Claim,

and

administering and distributing the Net Settlement Fund; and it
is further
ORDERED that the balance of the Gross Settlement Fund,
after deducting the payments previously allowed and set forth
16

herein (the “Net Settlement Fund”), shall be distributed to the
Authorized

Claimants

in

accordance

with

this

Memorandum

and

Order in proportion to the Recognized Claim allocable to each
such eligible claimant as shown on such printout; and it is
further
ORDERED that the payments to be distributed to the
Authorized

Claimants

shall

bear

the

notation

“CASH

PROMPTLY,

VOID AND SUBJECT TO RE-DISTRIBUTION 180 DAYS AFTER ISSUE DATE.”
Plaintiffs’ Counsel and the Claims Administrator are authorized
to take appropriate action to locate and/or contact any eligible
claimant who has not cashed his, her, or its distribution within
said time; and it is further
ORDERED

that

all

persons

involved

in

the

review,

verification, calculation, tabulation, or any other aspect of
the

processing

involved

in

of

the

the

claims

submitted

administration

or

herein,

taxation

or
of

otherwise
the

Gross

Settlement Fund or the Net Settlement Fund are released and
discharged

from

any

and

all

claims

arising

out

of

such

involvement, and all Class Members, whether or not they are to
receive payment from the Net Settlement Fund, are barred from
making any further claim against the Net Settlement Fund or the
released persons beyond the amount allocated to them pursuant to
this Memorandum and Order, and it is further

17

ORDERED

that

the

Claims

Administrator

is

hereby

authorized to discard paper or hard copies of the Proofs of
Claim and supporting documents not less than one year after the
initial distribution of the Net Settlement Fund to the eligible
claimants and electronic or magnetic media data not less than
three years after the initial distribution of the Net Settlement
Fund to the eligible claimants; and it is further
ORDERED that this Court shall retain jurisdiction over
any further application or matter which may arise in connection
with this action; and it is further
ORDERED that no claim submitted after the date of this
Memorandum

and

Order

may

be

accepted

by

the

Claims

Administrator.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
27 , 2013
Central Islip, New York

18