The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
AGS Specialist Partners ("AGS") seeks by letter, treated as a motion, to be considered as a non-institutional claimant under the Notice and Plan of Distribution entered into as part of the settlement of this class action. The application has been opposed by the Claims Administrator, and it is denied for the reasons set forth below.
A Notice and Proposed Plan of Distribution were mailed to all claimants on June 11, 1999, and the Plan was approved on January 12, 2000. The Notice stated:
Each claim will be assigned a weighting factor as
follows: If the Claimant is an Institution within the
meaning of the NASD Manual — Conduct Rules, Rule
3110(c)(4), the weighting factor shall be 1. Otherwise,
the weighting factor shall be 1.5.
AGS filed no objection to the Plan.
AGS submitted claim # 855304770 and affidavits to the Claims Administrator seeking treatment as a non-institution. On March 16, 2001, the Claims Administrator advised the attorney for AGS that because its balance sheet indicated total assets of over $50 million, it would be treated as an institution in connection with the weighting factor resulting in a payment of $3,123,221.79. Correspondence ensued resulting in the submission of a recommendation by class counsel adopting the position of the Claims Administrator which was so ordered by the Court on October 21, 2002.
By letter of November 6, 2002, counsel for AGS sought a ruling from the Court rejecting the position of the Claims Administrator. Further correspondence and affidavits were submitted by counsel for AGS and the class, and the application was heard and marked fully submitted on April 7, 2003.
AGS is a partnership that acts as an equity and options specialist on the trading floor on the American Stock Exchange. A major part of its business has been the purchase and sale of securities that were traded in the NASDAQ marketplace. These securities were bought and sold in an effort to offset AGS's risk in options contracts. When trading in NASDAQ securities, AGS essentially acted like a small broker/dealer. From time to time AGS borrowed assets in excess of $50 million, and the majority of its assets were financed with offsetting liabilities.
Total Assets Under The Plan
It is the position of AGS that the "Total Assets" under the Plan should in its case be interpreted as net assets and that it should be treated as a non-institutional claimant, the result of which would increase the payment of its claim by some $1.5 million.
The approved Plan of Distribution states, in part, that "If the Claimant is an institution within the meaning of the NASD Manual — Conduct Rules, Rule 3110(c)(4), the weighting factor shall be 1. Otherwise, the weighting factor shall be 1.5."
The Claims Administrator has advised that more than a million claims have been processed under the interpretation of total assets under the NASD Manual — Conduct Rules, Rule 3110(c) A).
As pointed out by counsel to AGS, prior to 1989, the definition of "institutional investor" in Article III, Section 1 of the NASD Rules of Fair Practice utilized the term "gross assets." This Article was the ...