Saltzman et al v. Citigroup Inc. et al
Filing
355
OPINION & ORDER re: (334 in 1:07-cv-09901-SHS) MOTION for Permanent Injunction . filed by Charles O. Prince, Gary L. Crittenden, Citigroup Inc., Citigroup Global Markets Inc., Sallie L. Krawcheck, Vikram Pandit. The Court grants Citi group's motion to enjoin claimants from now arbitrating their claims. It is hereby ORDERED that Gary L. Burgess and Joseph Icon are permanently enjoined from pursuing the arbitration captioned Burgess et al. v. Citigroup, Inc., et al., FINRA Case No. 13-03237. (Signed by Judge Sidney H. Stein on 7/21/2014) (kgo)
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DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 7/21/2014
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
09‐Md‐2070 (SHS)
IN RE CITIGROUP INC. SECURITIES
LITIGATION
This document relates to:
07‐Cv‐9901 (SHS)
OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
This class action concluded with a $590 million settlement between
defendants (Citigroup Inc. and several of its officers, directors, and agents)
and plaintiffs’ class (acquirers of Citigroup common stock between
February 26, 2007 and April 18, 2008). Defendants agreed to pay that
substantial price in exchange for the class’s release of fraud claims relating
to the subprime meltdown of the last decade. Notwithstanding that
release, claimants Gary L. Burgess and Joseph Icon have now asserted
essentially the same fraud allegations against Citigroup in an arbitration
proceeding before the Financial Industry Regulatory Authority
(“FINRA”). As a result, Citigroup has applied to this Court for an order
enjoining claimants’ arbitration as foreclosed by the class settlement in this
action.
Claimants offer a plethora of reasons why the settlement’s release
should not bind them. Burgess attempts to escape class membership by
pointing to his failed request to opt out of the class, and Icon urges that he
misunderstood the release. Neither excuse is availing: Burgess’s earlier
request was riddled with inaccuracies, and Icon’s misunderstanding was
unreasonable based on the ample notice provided to the class as a whole.
Although claimants are begrudging members of the settlement class,
they are members nonetheless. Accordingly, the Court grants Citigroup’s
motion to enjoin claimants from now arbitrating their claims.
I.
BACKGROUND
A. The Securities Class Action and Settlement
The Court assumes familiarity with the facts and history of the class
action underlying this motion, which are fully set forth in a trilogy of
opinions: In re Citigroup Inc. Securities Litigation, 753 F. Supp. 2d 206
(S.D.N.Y. 2010) (“Citigroup Securities I”); In re Citigroup Inc. Securities
Litigation, 965 F. Supp. 2d 369 (S.D.N.Y. 2013) (“Citigroup Securities II”); and
In re Citigroup Inc. Securities Litigation, No. 07 Civ. 9901, 2014 WL 2445714
(S.D.N.Y. May 30, 2014) (“Citigroup Securities III”). In short, the class
alleged that, in the period leading up to the subprime meltdown of the last
decade, Citigroup and several of its directors, officers, and agents
fraudulently misled investors by materially understating the value of
collateralized debt obligations (“CDOs”) backed by subprime mortgages.
Specifically, from February 26, 2007 to November 4, 2007, Citigroup
allegedly “gave the impression that [it] had minimal, if any exposure to
CDOs when, in fact, it had more than $50 billion in exposure.” Citigroup
Securities I, 753 F. Supp. 2d at 235. Those CDOs were backed by subprime
mortgages and improperly valued at par despite objective indications that
such mortgage‐backed CDOs had lost value by February 2007. “On
November 4, 2007, Citigroup disclosed that it held $43 billion of super
senior CDO tranches simultaneously with the fact of their writedown by
an expected $8‐$11 billion.” Id. at 239‐40. Even that disclosure allegedly
overstated the CDOs’ value (thus understating the loss) and omitted $10.5
billion in hedged CDOs. Id. at 240. According to plaintiffs’ class,
Citigroup’s disclosures continued to overstate the value of the CDOs until
a final corrective disclosure on April 18, 2008. Id. The effect of the alleged
fraud, for purpose of the class action, was massive overvaluation of
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Citigroup common stock. Class members are those who acquired or held
stock based on this artificially inflated market price.
The parties ultimately settled the litigation for $590 million, entering
into a Stipulation of Agreement and Settlement on August 28, 2012.
Plaintiffs then moved for—and the Court granted—preliminary approval
of the settlement and certification of the class for settlement purposes. (See
Order Preliminarily Approving Proposed Settlement and Providing for
Notice, Aug. 29, 2012, Dkt. No. 156 (“Preliminary Approval Order”).) The
Court set forth a schedule for providing notice to the class and procedures
by which class members were to either submit claim forms, object to the
proposed settlement, opt out of the class, or appear at a fairness hearing.
(Id.)
The notice to the class set forth the background of the litigation, details
of the settlement, and instructions for submitting claims, objecting to the
settlement, or opting out of the class. (Preliminary Approval Order Ex. 1
(“Class Notice”).) The document set forth the definition of the settlement
class, including:
all persons who purchased or otherwise acquired common stock
issued by Citigroup during the period between February 26, 2007
and April 18, 2008, inclusive, or their successor in interest, and
who were damaged thereby. . . . [T]he Settlement Class includes
persons or entities who acquired shares of Citigroup common
stock during the Class Period by any method.
(Class Notice ¶ 24.) Alongside that definition appeared the following
warning: “If you are a member of the Settlement Class, you are subject to
the Settlement, unless you timely request to be excluded.” (Id.)
The notice also contained a section titled “WHAT RIGHTS AM I
GIVING UP BY REMAINING IN THE SETTLEMENT CLASS?,” with a
highlighted border surrounding the heading, which was set in all capital
letters. (Id. at 13.) That section of the notice includes the settlement’s
release language under the boldfaced and underlined heading “Released
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Claims.” (Id. ¶ 49.) The scope of the release, as provided in the notice,
extended to:
all claims . . . arising out of or relating to investments in
(including, but not limited to, purchases, sales, exercises, and
decisions to hold) Citigroup common stock through April 18,
2008, including without limitation all claims arising out of or
relating to any disclosures, registration statements or other
statements made or issued by any of the Citigroup Defendants
concerning subprime‐related assets, [CDOs], residential
mortgage‐backed securities, . . . or structured investment vehicles.
(Id.)
On August 1, 2013, after the period for objections and exclusions had
concluded and after a fairness hearing had taken place, this Court
approved the settlement as fair, reasonable, and adequate. See Citigroup
Securities II, 965 F. Supp. 2d at 401‐02. Among the many findings that
supported approval, the Court specifically found “that the claims
administrator provided individual notice to those class members who
could ‘be identified through reasonable effort.’” Id. at 380 (quoting Fed. R.
Civ. P. 23(c)(2)(B)). The Court further found “that the notice here complied
with Rule 23 and due process.” Id. Finally, the Court dismissed the
litigation, while “retain[ing] continuing jurisdiction” to implement,
distribute, and enforce the settlement. (Final Judgment & Order of
Dismissal with Prejudice, August 1, 2013, Dkt. No. 276 (“Final Judgment
Order”) ¶ 23.)
Since then, class members have submitted at least 670,869 claims to the
claims administrator, and the claims administrator has calculated
approximately $3.3 billion in recognized losses from those claims. See
Citigroup Securities III, 2014 WL 2445714, at *1. On the basis of those claims
and the exhaustive work of the claims administrator in processing them,
the Court authorized distribution of the net settlement fund. See id. at *4.
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B. Burgess and Icon’s FINRA Arbitration
Burgess and Icon are former employees of a division of Citigroup who
acquired and held Citigroup common stock during the class period, both
in the open market and as part of their compensation packages. (See
Claimants’ Mem. of Law in Response to Respondents’ Mot. For a
Permanent Injunction, filed July 15, 2014, Dkt. No. 349 (“Claimants’
Mem.”), Ex. B. (“Burgess Decl.”) ¶¶ 9‐10; Claimants’ Mem. Ex. C. (“Icon
Decl.”) ¶¶ 3‐4.) According to these claimants they entered “numerous
annual [a]greements, which . . . force arbitration as ‘the required and
exclusive resolution of all employment disputes.’” (Claimants’ Mem. at
17.)1
More than four months after the Court approved the class settlement
and dismissed the action, Burgess and Icon commenced an arbitration
before FINRA. They jointly filed a Statement of Claim on December 18,
2013. (Tannenbaum Decl., June 11, 2014, Dkt. No. 336, Ex. A (“FINRA
Claim”).) The arbitral complaint names as respondents Citigroup, Inc.,
Citigroup Global Markets, Inc., Charles Prince, Gary Crittenden, Sallie L.
Krawcheck, and Vikram Pandit. (Id. at 1.) Claimants are former employees
of a Citigroup division, and their “compensation package included . . .
equity awards.” (Id. ¶¶ 2‐3, 13, 15.)
Claimants’ allegations describe a “cover‐up scheme” to mislead
stakeholders with respect to Citigroup’s “reckless investment scheme
focused on non‐prime related financial instruments”—especially CDOs.
(Id. ¶¶ 24‐25.) Specifically, in the alleged fraud scheme, respondents
“deliberately concealed the scope of ownership of toxic assets such as
Although claimants refer extensively to these agreements and even purport to quote
from them, the record does not contain the agreements or any sworn statements
regarding their existence. Nonetheless, the parties agree that each claimant signed an
agreement containing an arbitration clause at some point. (See Claimants’ Mem. at 15‐
18; Reply Mem. in Further Support of Mot. for a Permanent Injunction, filed July 7,
2014, Dkt. No. 345, at 4.)
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CDOs backed by non‐prime mortgages as well as the heightened risks
associated with such ownership.” (Id. ¶ 29.) That fraud scheme, according
to Burgess and Icon’s Statement of Claim in the arbitration, gives rise to
several causes of action: breach of contract (id. at 13), breach of the
covenant of good faith and fair dealing (id.), breach of fiduciary duties (id.
at 15‐16), unjust enrichment (id. at 19), negligent misrepresentation (id. at
20), fraud (id. at 21), and prima facie tort (id. at 22).
II. LEGAL STANDARD
“An injunction is a matter of equitable discretion.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). Nonetheless, a party seeking a
permanent injunction generally must show first, “that it will be irreparably
harmed if an injunction is not granted,” and second, “actual success on the
merits.” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294
(2d Cir. 2011) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546
n.12 (1987); Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 348‐49 (2d
Cir. 2003)) (internal quotation marks omitted).
III. DISCUSSION
A. The jurisdictional question and the merits question depend on
the same analysis; therefore, this Court has jurisdiction if the
motion is meritorious.
“A federal court does not automatically retain jurisdiction to hear a
motion to enforce or otherwise apply a settlement in a case that it has
previously dismissed.” In re Am. Express Fin. Advisors Secs. Litig., 672 F.3d
113, 134 (2d Cir. 2011) (“Am. Express”) (internal quotations omitted).
Because respondents now ask this Court to enforce the class settlement in
the dismissed Securities litigation, the threshold question is whether the
Court has jurisdiction to do so.
“[A] federal court always has jurisdiction to determine its own
jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002). Thus, when a
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jurisdictional issue and a merits issue merge, it is “necessary for the [court]
to address the merits” at the same time as deciding whether the case is
properly before it. Id.
Jurisdiction to enforce a class settlement after dismissal of the class
action is defined by the court’s pre‐dismissal orders:
[W]here . . . the court makes the parties’ obligation to comply with
the terms of the settlement agreement . . . part of the order of
dismissal—either by separate provision (such as a provision
‘retaining jurisdiction’ over the settlement agreement) or by
incorporating the terms of the settlement agreement in the order—
the proper forum for litigation of a breach is that same federal
court. . . . A district court therefore has the power to enforce an
ongoing order against relitigation so as to protect the integrity of a
complex class settlement over which it retained jurisdiction.
Am. Express, 672 F.3d at 134.
When this Court dismissed the class action it explicitly “retain[ed]
continuing jurisdiction over . . . all parties hereto for the purpose of
construing, enforcing and administering the Stipulation.” (Final Judgment
Order ¶ 23.) Citigroup’s motion is properly before the Court only if it falls
within this jurisdictional provision. Accordingly, the Court has jurisdiction
to enforce the settlement (including the release of claims) against claimants
only if claimants were “parties hereto” (id.) when the Court dismissed the
class action.
To determine whether the Court has jurisdiction is to address the
merits of Citigroup’s motion. After all, if claimants were parties to the class
action such that the Court has jurisdiction, then claimants were parties to
the class action such that they released their claims against Citigroup. As
explained below, the Court concludes that claimants were members of the
class, so the Court has jurisdiction to decide Citigroup’s motion and the
motion should be granted.
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B. Claimants, as members of the class, released the claims that
their arbitration now asserts against Citigroup.
When a class action resolves by a settlement, each class member is
“required to opt out at the class notice stage if it [does] not wish to be
bound.” Wal‐Mart Stores, Inc. v. Visa USA, Inc., 396 F.3d 96, 115 (2d Cir.
2005). Only in two situations may a class member avoid the binding nature
of the class settlement: (1) a showing of “excusable neglect for failure to
timely opt out,” or (2) “a violation of due process.” Am. Express, 672 F.3d at
129. Burgess contends that his failure to opt out was a product of excusable
neglect and Icon contends that he was deprived of due process. Neither
contention survives analysis.
1.
Burgess’s manifold errors in attempting to opt out were not
excusable neglect; the class settlement therefore binds him.
Burgess in fact did attempt to exclude himself from the settlement
class, but two critical errors impeded his attempt: (1) his submission
contained incorrect numbers describing his Citigroup securities, such that
his request for exclusion was invalid, and (2) he provided a return address
that was not his own, as a result of which the claims administrator’s
explanation of the substantive inaccuracies never reached him. Because it
was Burgess’s own inexcusable neglect that prevented him from opting
out of the class, he is subject to the class’s release.
Excusable neglect is an equitable determination. Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993). Courts consider four
factors in connection with this determination: “(1) ‘the danger of prejudice’
to the party opposing the extension; (2) ‘the length of the delay and its
potential impact on judicial proceedings’; (3) ‘the reason for the delay,
including whether it was within the reasonable control’ of the party
seeking the extension; and (4) whether the party seeking the extension
‘acted in good faith.’” Am. Express, 672 F.3d at 129 (quoting Pioneer Inv.
Servs. Co., 507 U.S. at 395). In the Second Circuit, the analysis is “focused
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on the third factor: the reason for the delay, including whether it was
within the reasonable control” of the party claiming excusable neglect.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366‐67 (2d Cir. 2003).
In the case of Burgess’s failure to opt out, it was his own errors—and
nobody else’s—that derailed his attempt to exclude himself from the class.2
On November 28, 2012, Burgess mailed to the claims administrator two
separate requests for exclusion. (Burgess Decl. ¶ 3.) As he admits, Burgess
did not report accurately his positions in Citigroup common stock. (Id. ¶¶
8‐10.) His request for exclusions took the form of two separate letters, one
for each of two claim numbers. (Id. ¶ 8; see Tannenbaum Decl. Ex. 7 at 1, 3.)
On his first letter he listed acquisitions during the class period amounting
to 1,199 shares and sales of 6,925 shares. (Tannenbaum Decl. Ex. 7 at 1.)
His second letter listed different transactions during the class period:
acquisitions totaling 11,145.6 shares and no sales. (Id. at 3.) Yet the letters’
accounts of Burgess’s holdings at the beginning and end of the class period
listed his combined holdings—16,409.29 shares held at the beginning and
20,721.61 shares held at the end—not separated to reflect the distinctions
between the letters. (Id. at 1, 3.) As a consequence, the arithmetic in
The class notice explained the requirements for opting out as follows:
2
Each Request for Exclusion must (1) state the name, address and telephone
number of the person or entity requesting exclusion; (2) state that such
person or entity “requests exclusion from the Settlement Class . . .”; (3) state
the date(s), price(s) and number of shares of Citigroup common stock that
the person or entity requesting exclusion purchased or otherwise acquired
and sold during the period February 26, 2007 through and including July 17,
2008; (4) state the number of shares held at the start of the Class Period; (5)
state the number of shares held through the close of trading on July 17, 2008;
and (6) be signed by such person or entity requesting exclusion or an
authorized representative. A request for Exclusion shall not be valid and
effective unless it provides all the information called for in this paragraph
and is received within the time stated above, or is otherwise accepted by the
Court.
(Class Notice ¶ 58.)
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Burgess’s letters did not balance on either letter: the shares held at the
beginning of the class period plus shares acquired during the class period
minus shares sold during the class period did not equal shares held at the
end of the class period. As an additional error, Burgess recalls that he
erroneously “included a purchase of 1170 shares on November 20, 2008,
which was outside of the Class Period.” (Burgess Decl. ¶ 8; Tannenbaum
Decl. Ex 7 at 1.)
As a result of these errors, the claims administrator sent Burgess two
Notices of Deficient Request for Exclusion, explaining the incongruities in
detail and providing instructions for Burgess to “cure this deficiency by
providing . . . the requested information” in a corrected request for
exclusion. (Tannenbaum Decl. Ex. 8 at 1‐2; see Burgess Decl. ¶ 4.) But
Burgess never received those notices because, he has forthrightly concedes,
he “mistakenly included the wrong address” on the face of both of his
requests for exclusion. (Id. ¶ 5.) Unsurprisingly, then, the claims
administrator “sent the Notices to the incorrect address contained on the
face of the Letters.” (Id.) Burgess’s blunder effectively foreclosed his
opportunity to correct his request for exclusion, because he learned neither
of the deficiencies in his first request nor of his opportunity to cure those
deficiencies
While Burgess’s neglect was both entirely in his control and
unfortunate, it is respondents who would bear the brunt of the prejudice if
Burgess could now relocate himself outside of the settlement class.
Respondents would be forced to arbitrate Burgess’s claims—claims they
reasonably believed Burgess to have released. And the prejudice would
extend beyond Citigroup’s renewed liability: if Burgess’s errors were to
free him from the class settlement, the systemic interest in class actions
and class settlements would suffer. “As a general matter, the more loose
ends that remain after the [class] litigation has been resolved, the less
successful the process has been.” Am. Express, 672 F.3d at 134. The benefits
of class action settlements and the safeguards of the class’s interests
10
depend on accurate calculations of a settlement’s value, including the
parties’ estimation of how much the class’s release is worth and the court’s
analysis of whether the settlement is fair, reasonable, and adequate to the
class members who will divide the settlement fund. To be sure, a class
member’s later evasion of the settlement’s constraints diminishes the
accuracy of those calculations.
Even accepting as true Burgess’s account of the facts, his failure to opt
out was not excusable neglect. Having considered Burgess’s errors, the
delays that they caused, and the potential prejudice to the parties and the
judicial system, the Court concludes that Burgess remains bound by the
class settlement.
2.
Icon had notice that the class settlement encompassed all of
his claims against Citigroup and therefore cannot assert
those claims in a separate arbitration.
Icon never even attempted to exclude himself from the settlement
class. He now contends that he misunderstood the settlement class and
release as excluding some of his potential claims. This misunderstanding is
not objectively reasonable. Icon had ample, clear, explicit notice that the
class definition encompassed all of his Citigroup common stock holdings
and that the class settlement released all of his claims against Citigroup.
He is therefore bound by the full extent of the release.
“[A]dequacy of notice to the class as a whole determines the binding
effect of a class settlement on an individual class member.” In re Prudential
Secs. Inc. Ltd. P’ships Litig., 164 F.R.D. 362, 368 (S.D.N.Y. 1996) (emphasis
added) (internal quotation marks omitted), aff’d 107 F.3d 3 (2d Cir. 1996).
Accordingly, an absent class member receives due process even without
receiving actual notice so long as there has been a “reasonable effort”
made to notify the class as a whole. Id. (citing Weinberger v. Kendrick, 698
F.2d 61, 71 (2d Cir. 1982)).
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A notice of class settlement must reasonably put class members on
notice of the scope of the settlement’s release provision. The U.S. Court of
Appeals for the Second Circuit opinion in National Super Spuds v. N.Y.
Mercantile Exchange, 660 F.2d 9 (2d Cir. 1981), deftly illustrates this
principle. In that case, the class definition was limited to those “who
liquidated their long positions” in certain potato futures, yet the release
applied to both liquidated and unliquidated futures. Id. at 20‐21. The
settlement notice defined the class but did not mention the broader scope
of the release, and the Second Circuit appropriately concluded that “[w]ith
respect to claims on unliquidated contracts, the notice did not fairly
apprise the [] members of the class of the terms of the settlement.” Id. at 21
(internal quotation omitted).
In this case, Icon reports that he believed the class settlement and its
release did not pertain to claims arising from Citigroup stock that he either
(a) acquired as part of his compensation package, rather than in open
market purchases, or (b) acquired prior to the class period and held during
the class period. (Icon Decl. ¶¶ 4‐5.) He asserts that he would have opted
out of the class if he had understood the true breadth of the release. (Icon
Decl. ¶¶ 8‐9.) Finally, he contends that his errors resulted from a due
process violation, because he “was never put on notice by anyone” that the
release encompassed those shares. (Claimants’ Mem. at 8.)
This argument ignores the unambiguous statements in the class notice.
Unlike the class in National Super Spuds, Icon and his fellow class members
received a notice that detailed both the class definition and the scope of the
release. (See Class Notice ¶¶ 24, 49.) While Icon believed the release
applied only to stock purchases during the class period, the notice explicitly
warned that the settlement released “any and all claims that . . . relate[] to
or arise out of Plaintiffs’ or any other Settlement Class Member’s purchase,
acquisition, holding or sale or other disposition of Citigroup common stock
during the Class Period.” (Id. at 30 (emphasis added).)
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Because Icon’s misunderstanding ignored explicit language in the
notice, his mistake was not objectively reasonable. The settlement notice
afforded him the benefit of due process. He cannot now take refuge in a
subjective and unsupported misunderstanding of the notice.
C. The claims released by Burgess and Icon arise from the same
facts as the claims they have brought in their FINRA arbitration.
Class members bound by a settlement—such as Burgess and Icon—
may not thereafter relitigate claims that the settlement has released. See,
e.g., In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 248
(2d Cir. 2011). The release can extend beyond the precise claims alleged in
the class action, limited by the principle that “[a]ny released claims not
presented directly in [a class action] complaint . . . must be based on the
identical factual predicate as that underlying the claims in the settled class
action.” Id. Accordingly, “[c]lass actions may release claims, even if not
pled, when such claims arise out of the same factual predicate as the
settled class claims.” Wal‐Mart Stores, Inc., 396 F.3d at 108.
A comparison of this class action with claimants’ FINRA allegations
reveals the exact same underlying factual predicate. The crux of claimants’
FINRA arbitration is that Citigroup “deliberately concealed the scope of
ownership of toxic assets such as CDOs backed by non‐prime mortgages
as well as the heightened risks associated with such ownership.” (FINRA
Claim ¶ 29.) The class action’s predicate allegation was the same, namely
that “Citigroup responded to the widely‐known financial crisis by
concealing both the extent of toxic assets—most prominently, CDOs
backed by nonprime mortgages—and the risks associated with them.”
(Am. Consolidated Class Action Compl., Dkt. No. 74, ¶ 1.) The identity of
these factual predicates is obvious. The class action and the FINRA
arbitration are directed to the same alleged facts.
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D. In the absence of an injunction, Citigroup will suffer
irreparable harm.
A party suffers irreparable harm when it is “forced to expend time
and resources arbitrating an issue that is not arbitrable, and for which any
award would not be enforceable.” Merrill Lynch Inv. Managers v. Optibase,
Ltd., 337 F.3d 125, 129 (2d Cir. 2003) (quoting Md. Cas. Co. v. Realty Advisory
Bd. on Labor Relations, 107 F.3d 979, 985 (2d Cir. 1997). By prosecuting
released claims in their FINRA arbitration, claimants are attempting to
force Citigroup to do exactly that. Ongoing arbitration would impose
irreparable harm upon respondents.
E.
Claimants’ arbitration agreements do not undercut their class
membership.
Claimants argue that the class settlement cannot preclude their
arbitration because they had previously entered employment‐related
agreements that provided for arbitration as their exclusive recourse for
dispute resolution. (See, e.g., Claimants’ Mem. at 17‐18.) Such a contention
is bootless. It is settled law that class membership can release all claims,
including arbitration claims, notwithstanding a class member’s earlier
arbitration agreement. See, e.g., Am. Express, 672 F.3d at 133 (“[W]here a
party initially consents . . . to arbitrate certain types of claims, but later
enters into a settlement agreement that releases claims that had been
subject to the initial consent to arbitrate, the claims that have been released
by such a settlement are no longer subject to arbitration.”) As members of
the settlement class, claimants entered a new agreement with Citigroup—
the Settlement Agreement—thereby displacing their arbitration
agreements. The arbitration agreements do not alter the Court’s conclusion
that claimants are bound by the settlement’s release.
IV. CONCLUSION
Although Burgess and Icon released certain claims against
respondents, they now endeavor to avoid the ramifications of that release.
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