articles contained in The New York Times and The San Diego Union Tribune.
25. Except for the SEC Claims Resolution process, none of the previous limited partnership-related class actions against PSI excluded PSI sales employees such as Movant from participating in the settlement, nor did the instant Class Settlement. The VMS settlement excluded executive officers of the defendants; movant was not an executive officer of PSI.
26. Moreover, neither Movant nor any of his co-declarants was able to identify an authoritative and objective source of a "policy" at PSI which precluded its employees from participating in class actions against PSI. Movant's own witness Mr. Tremblay testified that he in fact participated in the Energy Income class action settlement against PSI. No notice of any of the class action settlements by its terms precludes brokers from participating.
PSI Relied To Its Detriment On Movant's Failure Either to Object or to Opt Out In a Timely Manner
27. The Court finds that it was the reasonable expectation of PSI and the other Settling Defendants that the $ 110 million Class Settlement would have the effect of providing a total and final resolution of all limited partnership-related claims against them, except as to opt outs who made themselves known by October 30, 1995 in the manner specified in the Notice.
28. As set forth more fully in this Court's February 1, 1996 Opinion, the PSI Settling Defendants bargained for the inclusion in the Settlement Agreement of a "blow" provision. It was stipulated as part of the proposed Settlement that if $ 10 million in claims which could be counted for that purpose timely excluded themselves, PSI had the right to walk away from (or "blow") the $ 110 million Settlement. The counted claims that opted out exceeded $ 10 million. PSI, after evaluating all claims, elected not to "blow" the settlement.
29. In making its decision whether or not to exercise its rights under the "blow" provision, PSI considered the quantity and quality of the opt outs timely received and regarded all other pending litigations and arbitrations of Class Members, like Movant, as encompassed within the $ 110 million Settlement.
30. PSI was entitled to and did rely to its detriment on Movant's failure to opt out or to object in a timely manner.
31. Movant has not identified any interest that he holds which has not been represented adequately by the representative plaintiffs and Class Counsel.
32. The foregoing shall constitute this Court's findings of fact.
CONCLUSIONS OF LAW
33. In a Rule 60(b) motion, the burden of proving sufficient grounds for relief from the Final Judgment is on the movant, and Rule 60(b) relief will only be granted upon a showing of extraordinary circumstances.
Movant has failed to demonstrate that such circumstances exist here.
34. The Court concludes that because the Court-approved Notice program met and exceeded all requirements of Federal Rule of Civil Procedure 23(c)(2) and due process, Movant is bound by the Judgment, and his request for relief from the Judgment is inadequate as a matter of law. The sufficiency of the notice program is illustrated by the extensive Published Notice in which the notice was published on two occasions in each of The New York Times, Wall Street Journal and U.S.A. Today and the more than 274,000 notices mailed to prospective class members, as well as by the nearly 5800 opt outs and the 99,000 proofs of claim that were ultimately filed in this matter and the nationally widespread newspaper and other sources of financial comment on the settlement and its opt-out feature.
35. As this Court held in the February 1, 1996 Opinion, a class action settlement is binding on an absent class member if the notice program is procedurally adequate, even if the absent class member does not receive personal written notice.
36. Movant's argument that the Class Notice and the Published Notice were inadequate because they did not inform him that he was releasing his "employment claims" is without merit for the reasons set forth in the February 1, 1996 Opinion. Likewise, Movant's assertion that the notice program was inadequate because the class representatives failed to send him a copy of the Notice is without merit. The notice program, which employed PSI's Direct Investment Group account records as the source for class members addresses, was procedurally adequate.
37. Although the procedural adequacy of the notice program makes it unnecessary to do so for these purposes, the Court concludes further that the record establishes that Movant and his counsel had both actual and constructive notice of the Class Settlement and Movant's rights with respect thereto.
38. Rule 60(b) relief is particularly inappropriate where the relevant challenge is to a class action settlement.
In light of the procedural adequacy of the notice program, and especially given Movant's actual and constructive notice of the Settlement in time for him to have met the opt-out deadline, and PSI's reasonable reliance on his failure to have done so, the Court finds that the interests of finality (and the other interests analyzed in this Court's February 1, 1996 Opinion) outweigh Movant's objections. Accordingly, the Court denies Movant's request for Rule 60(b) relief.
39. The foregoing shall constitute this Court's conclusions of law.
Dated: December 9, 1996
New York, New York
Senior United States