Anwar et al v. Fairfield Greenwich Limited et al
Filing
1554
DECISION AND ORDER: For the reasons stated above, it is hereby ORDERED that the request of the Representative Plaintiffs on their own behalf and on behalf of the Settlement Class (collectively, "Anwar Plaintiffs") to reject eight requests for exclusion from the Citco Final Judgment and Order of Dismissal (Dkt. No. 1457) that were received by the Claims Administrator after the deadline for requesting exclusion (Dkt. No. 1552) is GRANTED. (Signed by Judge Victor Marrero on 3/11/2016) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
PASHA ANWAR, et al.,
Plaintiffs,
DECISION AND ORDER
- against FAIRFIELD GREENWICH LIMITED,
et al.,
Defendants.
-----------------------------------x
VICTOR MARRERO, United States District Judge.
On
August
13,
2015,
this
Court
issued
an
order
preliminarily approving a partial settlement of this action
("August
13
(Dkt.
Order")
No.
1402),
resolving
claims
asserted by the Representative Plaintiffs on their own behalf
and on behalf of the Settlement Class (collectively,
"Anwar
Plaintiffs") against Citco Fund Services (Europe) B.V., Citco
(Canada) Inc., Citco Bank Nederland N.V. Dublin Branch, Citco
Global Custody N.V., Citco Fund Services (Bermuda Limited),
The Citco Group Limited,
(collectively,
Stipulation
"Citco
of
Brian Francoeur,
Defendants"),
Settlement
as
("Citco
and Ian Pilgrim
embodied
in
the
Stipulation
of
Settlement") . (Dkt. No. 1398.)
In the August
Hearing
for
13
November
Order,
20,
2015
the
to
Court
set
determine
a
Settlement
"whether
the
proposed partial Settlement of the Action on the terms and
conditions
provided
for
in
the
[Citco
Stipulation
of
is
Settlement]
fair,
reasonable,
and
adequate
to
the
Settlement Class and should be approved by the Court; whether
a Final Judgment and Order of Dismissal with Prejudice .
as
provided
Settlement]
in
Exhibit
B
to
the
[Citco
should be entered herein;
Stipulation
of
whether the proposed
Plan of Allocation should be approved; to determine the amount
of fees and expenses that should be awarded to Plaintiffs'
Counsel; and to rule upon such other matters as the Court may
deem appropriate."
(Dkt.
No.
1402 at 3-4.)
The Court also
indicated that "[a]ny request for exclusion [from the Citco
Stipulation of Settlement] must be in the form of a written,
signed
statement
and
received
by
the
Claims
Administrator at the address designated in the Notice on or
before 35 days prior to the Settlement Hearing[.]" (Id. at 67.)
Therefore,
all
requests
for
exclusion from
the
Citco
Stipulation of Settlement were due no later than October 16,
2015.
On November 20, 2015, the Court held a Settlement Hearing
(see Dkt.
Minute Entry for Nov.
2,
2015)
and subsequently
issued a Final Judgment and Order of Dismissal with Prejudice
("Final Judgment," Dkt. No. 1457) listing the members of the
Settlement Class who had requested exclusion from the Citco
Stipulation of Settlement on Exhibit 1.
(Dkt. No. 1457, Ex.
1, filed under seal.) All of the exclusions were affiliated
2
with Deminor Recovery Services
( "Deminor" ) .
(See Dkt.
No.
1552 at 2, Dkt No. 1445 at 2.)
By letter dated February 18,
2016
("Anwar Plaintiffs
Letter"), the Anwar Plaintiffs requested permission to file
a motion to reject eight requests for exclusion from the Final
Judgment that were received by the Claims Administrator on
December 28, 2015. 1 (Dkt. No. 1552.) These eight requests were
all affiliated with Deminor, and the Anwar Plaintiffs argue
that Deminor "provided no reason or explanation for the late
submissions."
(Id.
at 2.)
The Court instructed the Claims
Administrator to respond to the Anwar Plaintiffs Letter by
February 23, 2016.
(Id. at 3.)
On February 22,
Consul ting,
indicated
responded
that
it
2016,
to
the Claims Administrator,
the
Anwar
"customarily does
Plaintiffs
not
take
Rust
Letter and
a
position
whether a late request for exclusion should be accepted or
rejected."
(Dkt.
No.
1553 at 1.)
Rather,
it
"reports
the
submission of late requests to counsel and counsel addresses
the appropriate treatment with the Court."
(Id.)
Rule 60 (b) of the Federal Rules of Civil Procedure ("Rule
60(b)") enumerates the reasons for which a court may relieve
A total of nineteen late requests for exclusion were received. However,
eleven requests were identified as duplicates of requests that were
already identified as being excluded from the Citco Stipulation of
Settlement. Therefore, only eight new requests for exclusion were
remaining. (See Dkt. No. 1552 at 2, Dkt. No. 1553 at 2.)
1
3
a party from a final judgment.
Rule 60 (b)
See Fed.
R.
Civ.
provides an equitable remedy that
P.
60(b).
"preserves a
balance between serving the ends of justice and ensuring that
litigation reaches an end within a finite period of time."
Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir.
1994)
(internal citation and quotation marks omitted). As an
equitable remedy, Rule 60(b) "confers broad discretion on the
trial court to grant relief when appropriate to accomplish
justice [and]
it constitutes a grand reservoir of equitable
power
justice
to
do
in
a
particular
LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)
case."
Matarese
v.
(internal citations
and quotation marks omitted) .
Although
not
addressed
by
Deminor
in
identifying the late requests for exclusion
1552,
Ex.
2),
its
letter
(see Dkt.
the Court finds that subsection
(1)
No.
to Rule
60(b) is the likely basis for relief. Under Rule 60(b) (1), a
Court may relieve a party from final judgment due to "mistake,
inadvertence, surprise, or excusable neglect." Fed. R. Civ.
P.
60(b) (1).
requests
Given
that
Deminor
had
submitted
several
for exclusion prior to the deadline and did not
indicate that it failed to do so for these eight investors
due to its own mistake, inadvertence, or surprise, the Court
will
analyze
whether
Deminor's
constitute "excusable neglect."
4
delay
was
sufficient
to
Factors to be considered in evaluating excusable neglect
include "[l]
[2] the
the danger of prejudice to the
length of
the
judicial proceedings,
delay and
its
[non-movant] ,
potential
impact
on
[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." Silivanch v.
Celebrity Cruises,
Inc.,
(citing Pioneer Inv.
333 F.3d 355,
Servs.
Co.
v.
366
(2d Cir.
2003)
Brunswick Assocs.
Ltd.
P'ship, 507 U.S. 380, 395 (1993)). Based on the above factors,
the
Court
investors
is
not
now
persuaded
requesting
that
Deminor
exclusion
and
have
the
eight
demonstrated
excusable neglect under Rule 60(b) (1).
First, "failure to follow the clear dictates of a court
rule will generally not constitute such excusable neglect."
Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250
(2d
Cir.
Settlement
1997).
Class
Here,
the
to opt
deadline
out
of
the
for
members
of
the
Citco Stipulation of
Settlement was "clear and unambiguous." In re Glob. Crossing,
Ltd.
Sec.
Litig.,
No.
02 CIV.
910,
2004 WL 2584874,
at *2
(S.D.N.Y. Nov. 12, 2004). As in In re Global Crossing, Ltd.
Securities Litigation, the deadline was not set by a general
court rule but rather by a specific order in this case, the
August 13 Order,
which directed members of the Settlement
Class "to take action by a particular date,
5
and specifying
the consequences that would ensue from failing to do so." Id.
("Indeed, in this case the deadline was set not merely by a
general
court
overlook,
but
Nachom' s
rule,
case,
letter
from
by
a
which
Court
even
Order
diligent
counsel
specifically
entered
and the notice was provided not
an
adversary,
but
by
an
Order
might
in
simply by
specifically
addressed to Nachom by the Court, specially tailored to his
case,
advising
him of
the
Court's
requirements,
directly
ordering the plaintiff to take action by a particular date,
and specifying the consequences that would ensue from failing
to do so.").
Second, the length of the delay counsels against finding
excusable neglect.
In In re
u. s.
Paine Webber Short Term
Government Income Fund Securities Litigation, the court found
excusable neglect when a party's official notice of opt-out
was received one day late. No. 94 CIV. 3820, 1995 WL 512703,
at
*3
(S.D.N.Y.
Aug.
29,
1995).
In
doing
so,
the
court
distinguished other cases in which "a party's notice of intent
to be excluded from a class arrived a substantial amount of
time [such as one month] after the court-established deadline
or settlement
conference"
Id.;
see,
~'
In re Adelphia
Commc•ns Corp. Sec. & Derivatives Litig., 271 F. App'x 41, 44
(2d
Cir.
neglect
2008)
("Elkmont
because,
despite
did
the
6
not
fact
demonstrate
it
was
excusable
aware
of
the
settlement only one day after the opt out deadline, it still
waited a full month to file its motion for an extension of
time."); Supermarkets Gen. Corp. v. Grinnell Corp., 59 F.R.D.
512, 514 (S.D.N.Y. 1973) aff'd sub nom. Manhattan-Ward, Inc.
v. Grinnell Corp.,
request
for
490 F.2d 1183
extension
under
(2d Cir.
Rule
neglect when counsel was aware
1974)
6(b) (2)
(denying a
for
excusable
of the settlement hearing and
did not file the instant motion until two weeks after the
completion of the hearings) .
Third, Deminor provides no reason for the delay and does
not appear to have acted in good faith.
See In re Adelphia
Commc'ns Corp. Sec. & Derivatives Litig., 271 F. App'x at 44
("To establish excusable neglect, however, a movant must show
good
faith
and
a
reasonable
basis
for
noncompliance.")
(citing In re PaineWebber Ltd. P'ships Litig., 147 F.3d 132,
135 (2d Cir. 1998)). Deminor was affiliated with all of the
exclusions that were filed prior to the deadline of October
16,
2015.
Therefore,
(See Dkt.
No.
1552 at 2,
Dkt.
No.
1445 at 2.)
Deminor was aware of the relevant deadline and
failed to request exclusion for these eight investors in a
timely manner.
In
addition,
in
its
letter
to
the
Anwar
Plaintiffs, Deminor stated that it informed counsel for Citco
Bank Nederland N.V., Citco Fund Services (Europe) B.V., and
Citco Global Custody N.V. in the Dutch proceedings that "all
7
investors who are involved in the Dutch proceedings did not
(and still do not)
consider themselves to be bound by the
provisions of the class settlement in the US class action,
regardless of whether they would be part of the 'Settlement
Class'
and/or would
letter
requesting
Settlement."
(not)
their
(Dkt.
No.
have
(timely)
exclusion
1552,
Ex.
filed an exclusion
from
2.)
the
Citco
Furthermore,
Class
Deminor
stated that even though the eight relevant investors "would
not
(timely)
have
excluded
settlement in the US,
an acceptance,
an
from
the
class
[it] cannot be considered by Citco as
even implicit,
Settlement] .
where
themselves
of the
[Citco Stipulation of
. The only exception we could think of is
investor
would
have
voluntarily
and
formally
accepted to be bound by the [Citco Stipulation of Settlement]
in the US." (Id.) These statements are in direct contradiction
with
the
August
13
Order
which
indicated
that
"[a]ll
Settlement Class Members shall be bound by all determinations
and
judgments
Stipulation
of
in
this
Action
Settlement] ,
concerning
unless
such
the
[Citco
Persons
request
exclusion from the Settlement Class in a timely and proper
manner."
(Dkt.
No.
1402 at 6.)
Thus,
the Court finds that
there was no good-faith reason for the delay in requesting
exclusion.
8
Therefore, since Deminor has not demonstrated excusable
neglect
under
Rule
60 (b) (1),
the
Court
grants
the
Anwar
Plaintiffs request to reject the eight untimely requests to
be excluded from the Final Judgment.
ORDER
For the reasons stated above, it is hereby
ORDERED
that
the
request
of
the
Representative
Plaintiffs on their own behalf and on behalf of the Settlement
Class
(collectively,
"Anwar
Plaintiffs")
to
reject
eight
requests for exclusion from the Citco Final Judgment and Order
of Dismissal (Dkt. No. 1457) that were received by the Claims
Administrator after
the
deadline
for
requesting exclusion
(Dkt. No. 1552) is GRANTED.
SO ORDERED.
Dated:
New York, New York
11 March 2016
z
Victor Marrero
U.S.D.J.
9
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