The opinion of the court was delivered by: POLLACK
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Michael Piscitelli was a broker with PSI ("Prudential Securities Incorporated") who has been on disability leave since May 1993. He is the owner of limited partnerships sold by PSI and has instituted an arbitration proceeding before the New York Stock Exchange Arbitration tribunal asserting therein that he sustained reputation and business injury to his reputation as a broker for PSI through marketing their Limited Partnership products.
On November 20, 1995, an Order and Final Judgment were entered settling this Class action between the plaintiff Class and the PSI Settling Defendants. On May 15, 1996, a member of said Class, movant Michael J. Piscitelli, sought relief under Rule 60(b), Fed. R. Civ. P., from said Order and Final Judgment on the grounds that he was not within the scope of the settlement and that he did not personally receive notice thereof and did not know about it. In view of the dubious character of those claims in light of the movant's connection with PSI, the Court ordered discovery and the Movant was examined under oath and his examination and cross-examination were videotaped and documentary evidence was adduced and furnished to the Court.
Having duly considered the proofs submitted and having evaluated the issues of credibility with the benefit of the videotaped session which the Court reviewed in detail and having heard the argument of counsel, the Court denies the motion and sets forth herein its Findings of Fact and Conclusions of Law in connection with its Opinion and Decision on the matters involved in denying said motion.
1. The partial settlement in this class action lawsuit arose out of an alleged fraudulent scheme during the 1980s undertaken by Prudential Securities Incorporated ("PSI") and its affiliates to uniformly organize, market, sell and operate approximately 700 Limited Partnerships. The representative plaintiffs in the consolidated actions filed a Consolidated Complaint dated June 8, 1994 asserting claims under RICO as well as various common law claims.
2. On August 9, 1995, the PSI Settling Defendants entered into a Settlement Agreement with the putative class of purchasers of Limited Partnerships. The Settlement Agreement provided for a $ 110 million recovery for the plaintiff Class in return for a broad release from settling Class Members.
3. On August 29, 1995, this Court entered a Preliminary Order and issued an opinion in connection therewith which preliminarily approved the proposed Settlement and preliminarily certified a Class of plaintiffs consisting of all persons or entities who: "purchased Units in any of the Partnerships or other entities . . . between January 1, 1980 and June 8, 1994." The proposed Class definition excluded, inter alia, persons or entities whose claims had been released, the Partnerships, defendants and the individual defendants' immediate families.
4. Movant, by virtue of his purchase of Units in several of the Partnerships, is a Class Member.
5. This Court's August 29, 1995 Preliminary Order also approved of the form and content of the Notice to be provided to absent Class Members. The Court also approved the procedure for the dissemination of the Notice which included: 1) mailing the Notice to all Class Members who could be identified with "reasonable effort" by Lead Class Counsel with the cooperation of the PSI Settling Defendants by making their books, records and information available to Lead Class Counsel ("Class Notice"); and 2) publishing the Notice in the national editions of The Wall Street Journal, The New York Times and U.S.A. Today twice within ten days of the Class Notice mailing ("Published Notice").
6. Both the Class Notice and Published Notice informed Class Members of the necessity to opt out by October 30, 1995 if a Class Member desired to proceed individually with his or her claims against any of the Settling Defendants or Released Parties. Approximately 5800 Class Members opted out of the Class Settlement. Movant did not opt out.
7. On November 17, 1995, this Court conducted a Fairness Hearing to determine the fairness, reasonableness and adequacy of the Settlement. Neither Movant nor his counsel appeared at the Fairness Hearing or otherwise raised any objection to the Settlement at that time.
8. On November 20, 1995, this Court made Findings of Fact and Conclusions of Law regarding the Settlement which are incorporated herein. In the November 20, 1995 Facts and Conclusions, this Court determined that certification of the Settlement Class was appropriate because the Class satisfied each element of Federal Rule of Civil Procedure 23(a) including the Rule's requirements of adequate representation and typicality, as well as those of Federal Rule of Civil Procedure 23(b)(3).
9. Also on November 20, 1995, this Court entered its Order and Final Judgment (1) finally certifying a Settlement Class against the PSI Settling Defendants and Released Parties; 2) approving the Settlement Agreement; 3) dismissing all Settled Claims by Class Members against the PSI Settling Defendants and Released Parties on the merits and with prejudice; and 4) enjoining Class Members from instituting, commencing or prosecuting any ...