Willis et al v. Morgan Keegan & Company, Inc. et al

Filing 344

ORDER. Signed by Judge Samuel H. Mays, Jr on 07/26/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

In re REGIONS MORGAN KEEGAN )
SECURITIES,
DERIVATIVE
and )
)
ERISA LITIGATION
)
)
This Document Relates to:
)
In re Regions Morgan Keegan )
)
Closed-End Fund Litigation,
)
)
No. 2:07-cv-02830-SHM-dkv

No. 2:09-2009 SMH V

ORDER
Before the Court is Kenneth E. Naglewski’s (“Naglewski”) May
13, 2013 Request for Exclusion from the Class.
ECF No. 331-1.)

(Req. for Excl.,

On May 24, 2013, the Lion Fund, L.P., Dr. J.

Samir Sulieman, and Larry Lattimore, on behalf of the Class
(collectively the “Lead Plaintiffs”), filed a Response in
opposition to Naglewski’s request.

(Resp., ECF No. 331.)

For the following reasons, Naglewski’s Request for Exclusion
is GRANTED.
I.

Standard of Review

The availability of exclusion from the Class is governed by
the Court’s Preliminary Approval Order.
276.)

(Prelim. Order, ECF No.

The Order states in relevant part:

A Class Member wishing to make an exclusion request shall mail
a written request to the address designated in the Notice for
such exclusions, such that it is received no later than March

22, 2013.... The request for exclusion shall not be effective
unless it provides all of the required information and is made
within the time stated above, or the exclusion is otherwise
accepted by the Court or allowed by Lead Counsel and counsel
for the Morgan Keegan Defendants and RFC.
(Id. ¶ 10.)
II.

Analysis

Naglewski acknowledges that his Request is untimely but asks
that the Court grant it because he did not receive notification
of the Preliminary Approval of the Class Action and Settlement
and, accordingly, of the opt-out requirements, until after the
opt-out deadline had passed.

(Req. for Excl.)

Naglewski

contends that he maintains two homes, one in Tennessee and one in
Illinois.

(Id.)

He contends that at the time the Class Action

notifications were distributed, he was in residence at his home
in Tennessee, but had arranged for all of his mail to be
forwarded to his home in Illinois.

(Id.)

He contends that he

did not return to his home in Illinois and, as a result, did not
have the opportunity to review the Class Action notification and
to opt out of the Class, until after the opt-out deadline had
passed.

(Id.)

The Lead Plaintiffs argue that Naglewski’s

Request is untimely and should be denied.

(Resp.)

The parties agree that Naglewski’s Request is untimely.
However, the Court has discretion to determine whether
nonconforming requests should be allowed.

(Prelim. Order ¶ 10.)

The Lead Plaintiffs do not object to the form or content of
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Naglewski’s Request.

(See Resp.)

It appears that Naglewski

attempted in good faith to comply with the requirements of the
Preliminary Approval Order.

Because the only objection to

Naglewski’s Request is its untimeliness, it does not appear that
any prejudice would result to the Lead Plaintiffs if his Request
were granted.

This result is also consistent with the reasoning

adopted in the Court’s May 17, 2013 Order on Requests for
Exclusion.

(May 17 Order 6, ECF No. 330.)

Naglewski’s Request for Exclusion is GRANTED.
III. Conclusion
For the foregoing reasons, Naglewski’s Request for Exclusion
is GRANTED.

Naglewski is deemed excluded from the Class.

So ordered this 26th day of July, 2013.
s/ Samuel H. Mays, Jr.____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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