United States District Court, S.D. New York
January 26, 2004.
IN RE WORLDCOM, INC. SECURITIES LITIGATION, This Document Relates to: 02 Civ. 3288 (DLC); ALASKA ELECTRICAL PENSION FUND, Plaintiff -v- CITIGROUP, INC., et al., Defendants; ALASKA PERMANENT CAPITAL MANAGEMENT COMPANY, Plaintiff -v- CITIGROUP, INC., et al., Defendants; LOCALS 302 AND 612 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS-EMPLOYERS CONSTRUCTION INDUSTRY RETIREMENT TRUST, Plaintiff -v- BERNARD J. EBBERS, et al., Defendants;ALASKA TEAMSTER-EMPLOYER PENSION TRUST, Plaintiff -v- CITIGROUP, INC., et al., Defendants; DISTRICT NO. 9, I.A. OF M. & A.W.PENSION TRUST and DISTRICT NO. 9, I.A. OF M. & A.W. WELFARE TRUST, Plaintiffs -v- BERNARD J. EBBERS, et al., Defendants; THE NATIONAL ASBESTOS WORKERS PENSION FUND, Plaintiff -v- BERNARD J. EBBERS, et al., Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
Plaintiffs in six actions ("Plaintiffs" and "Six Actions") filed by
Milberg Weiss Bershad Hynes & Lerach ("Milberg Weiss") request the
voluntary dismissal of their actions in order to participate in the
securities class action arising out of the collapse of WorldCom, Inc.
("WorldCom"). On January 20, 2004, the defendants' motions to dismiss the
Six Actions in their entirety as barred by the statute of limitations
were granted. For the following reasons, the Plaintiffs' requests for a
voluntary dismissal are granted, and these actions will be dismissed with
prejudice with the following exception. Plaintiffs will be permitted to
remain as members of the WorldCom class action without prejudice with
respect to any claims brought on behalf of the class.*fn1
The following presents the background to this litigation relevant to
the statute of limitations issues that affect these Six Actions and to
the pending motions for their voluntary dismissal. On June 25, 2002,
WorldCom declared that it would undertake a massive restatement of its
financial statements for 2001 and the first quarter of 2002. Beginning
with the June 25 announcement, a series of public disclosures revealed,
in essence, that WorldCom had misrepresented its financial condition
since 1999. See In re WorldCom, Inc. Sec. Litig., No. 02 Civ.
3288 (DLC), 2003 WL 21219049, at *4 (S.D.N.Y. May 19, 2003)(opinion
denying, in large part, motions to dismiss the class action complaint).
By late July 2002, WorldCom had filed the largest bankruptcy in United
Even before the June 25 announcement, the first class action alleging
WorldCom claims had been filed in this district. The class actions were
consolidated by an Order of August 15, 2002. Numerous actions alleging
individual, as opposed to class, claims ("Individual Actions") were also
filed in venues across the country, many by Milberg Weiss ("Milberg Weiss
The Judicial Panel on Multi-District Litigation ("MDL Panel")
transferred WorldCom litigation pending in other federal district courts,
either because it was filed there originally or because it was removed by
defendants to federal court, to this Court for pretrial proceedings. This
Court's Order of December 23, 2002 found that the Individual Actions and
the securities class actions (collectively, Securities
Litigation) involve common questions of law and fact, and that
consolidation of these actions for pretrial proceedings was necessary.
See In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288 (DLC),
2002 WL 31867720 (S.D.N.Y. Dec. 23, 2002). A Consolidation Order of May
28, 2003, set out the framework for consolidation, and provided that "the
requirement that any defendant named and served in an Individual Action
must move, answer, or otherwise respond in that action is stayed."
In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288 (DLC), 2003
WL 21242882, at *2 (S.D.N.Y. May 29, 2003).
The first Milberg Weiss Action was filed on July 5, 2002. Each Milberg
Weiss Action was filed in a state court and pleaded solely federal
securities law claims under the Securities Act of 1933 ("Securities
Act"). By the Fall of 2003, Milberg Weiss had filed at least forty-seven
Individual Actions on behalf of over one hundred and twenty pension
funds, many of them public employee or union pension funds. All of the
Milberg Weiss Actions were removed by defendants on the ground that they
were related to the WorldCom bankruptcy. While six of the removed Milberg
Weiss Actions were remanded before their transfer to this
Court by the MDL Panel, the rest were transferred and have been
consolidated in the Securities Litigation for pre-trial
purposes. The Six Actions were each filed more than one year after the
June 25, 2002 WorldCom announcement. The first of the Six Actions was
filed on June 27, 2003; the last on August 13.*fn2
On May 19, 2003, the motions to dismiss the class action were largely
denied. In re WorldCom, Inc. Sec. Litig., 2003 WL 21219049. An
amended consolidated class action complaint was filed on August 1. The
class action complaint in the Securities Litigation pleads
claims under both the Securities Act and the Securities Exchange Act of
1934. By October 14, 2003, virtually all defendants had filed answers to
the amended consolidated class action complaint. The motion to certify a
class was granted on October 24, 2003. In re WorldCom, Inc. Sec.
Litig., No. 02 Civ. 3288 (DLC), 2003 WL 22420467 (S.D.N.Y. Oct. 24,
A Clarification Order of November 5, provided that "for purposes of
Rule 41(a) only, defendants are deemed to have filed an answer in each
Individual Action as of the date the Individual
Action arrives on this Court's docket." In re WorldCom, Inc.
Sec. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 22508508 (S.D.N.Y.
Nov. 5, 2003). Parties were given until November 21 to object to the
Clarification Order. None of the Milberg Weiss Actions made any
objection. The objections that were made were denied. In re
WorldCom, Sec. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 23095478
(S.D.N.Y. Dec. 1, 2003).
At a conference on September 12, defendants gave notice of an intent to
bring, in two tranches, motions to dismiss claims common to many
Individual Actions. Among the grounds they identified was the contention
that some Securities Act claims were barred by the applicable statute of
limitations and would not be able to rely on American Pipe
tolling. See American Pipe & Construc. Co. v. Utah,
414 U.S. 538 (1974). At a conference on September 22, the Court proposed and
the parties agreed that the defendants would initially address their
motions to dismiss to one or two of the complaints among the Individual
Actions. The plaintiffs in those actions would oppose the motions and the
plaintiffs in other Individual Actions would be permitted to file a
single, joint amicus brief in opposition. An Order of September 22
provided that when a decision on the motion to dismiss was issued, the
parties in the other Individual Actions in which the same legal issue
arose would be given an opportunity to show cause "why the decision does
not apply to those actions." ("September 22 Order"). See In re
WorldCom, Inc. Sec. Litig.,
No. 02 Civ. 3288 (DLC), 2004 WL 77879, at *3 (S.D.N.Y. Jan. 20,
2004)(describing procedure for motion practice).
The first motion to dismiss, filed on October 3, included a motion
addressed to a single, representative Milberg Weiss Action, an action
which has been described as the MW Alaska Action. It sought dismissal of
certain claims on the ground, inter alia, that they were barred
by the statute of limitations contained in the Securities Act.
On October 29, the Lead Plaintiff in the WorldCom securities class
action advised the Court that it had reason to believe that Milberg Weiss
was soliciting absent class members with misleading statements about the
Securities Litigation. It submitted solicitation materials from
Milberg Weiss in support of its accusation. At a hearing held on November
13, the Court gave its preliminary observations and findings based on the
submissions received from Milberg Weiss and Lead Plaintiff. Of particular
pertinence to the instant motion are the following:
Every investor has a right to bring an
individual action if it chooses to do so. Every
investor will have the right to opt out of the
certified class action.
Milberg Weiss has engaged in an active campaign
to encourage penion funds not to participate in
the class action and instead to file Individual
Actions with Milberg Weiss as their
counsel. . . . Milberg Weiss has targeted a
relatively sophisticated audience with important
and serious fiduciary duties to its membership and
beneficiaries. . . . There is no reason to
believe that the funds that have filed Individual
Actions have done so with any but the best of
intentions to obtain the maximum recovery for
their constituency. . . . [B]ehind the lawyers
and the pension fund officers stand the many
individual state, local,
public and private employees whose lost
retirement savings and benefits the funds seek to
recover. . . .
The communications with Milberg Weiss have
resulted in some confusion and misunderstanding of
the options available to putative class
members. . . . Milberg Weiss does not appear to
have presented a forthright description of the
advantages and disadvantages of both the
individual action and class action options. . . .
The potential statute of limitations
impediments to bringing certain of the more
recently filed Individual Actions do not appear to
have been described. This could be a very serious
problem for a litigant who chooses to opt out of
the class, only to learn that the Individual
Action it had filed was barred by the statute of
limitations and it had lost all right to recovery.
This very issue in now sub judice. . . .
See In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288
(DLC), 2003 WL 22701241, at *6-7 (S.D.N.Y. Nov. 17, 2003)(describing
hearing and the findings)(emphasis supplied).
Milberg Weiss made no objection at the hearing to any of the findings
and endorsed the Court's solution,*fn3 which was to send a separate,
curative notice to all plaintiffs who had filed Individual Actions, in
addition to the notice to be provided to all class members to advise them
of their right to opt out of the WorldCom securities class action
(respectively "Individual Action Notice" and "Class Notice").*fn4 At
the hearing held on November
13, Milberg Weiss advised the Court that it would immediately send
a copy of the transcript of the hearing to each of its clients.
A November 21 Opinion resolved the October 3 motions to dismiss claims
in the MW Alaska Action based, inter alia, on the statute of
limitations that applies to Securities Act claims. In re WorldCom,
Inc. Sec. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 22738546
(S.D.N.Y. Nov. 21, 2003) ("November 21 Opinion"). The November 21 Opinion
held that the statute of limitations contained within the Securities Act
governed the Section 11 Securities Act claim. That limitations period is
a one year/three year regimen. The Opinion also held that "[t]here can be
no doubt that at least as of WorldCom's announcement on June 25, 2002
that it would have to restate its publicly reported financial
results for 2001 and the first quarter of 2002 by $3.8 billion
plaintiffs were on inquiry notice of their" Securities Act claims.
Id. at *14. The November 21 Opinion rejected the argument that
an action that files independently of the class before a determination on
class certification could benefit from American Pipe tolling.
Id. at *15.
During the period that followed the November 13 hearing, the Court and
counsel drafted the notices. See In re WorldCom, Inc. Sec.
Litig., No. 02 Civ. 3288, 2003 WL 22852660 (S.D.N.Y. Dec. 2,
2003) (circulating Court's redraft of notices based on parties'
submissions). On December 11, 2003, the Court approved the two
notices. The Individual Action Notice was mailed on December 12, and the
Class Notice was mailed and posted on December 15.
The Class Notice advised all WorldCom investors that the period to opt
out of the securities class action ends on February 20, 2004. It also
advised them that fact discovery was scheduled to close on June 18, 2004,
and the class action trial was to begin January 10, 2005.
The Individual Action Notice provided complainants with important
information to help them make an informed choice as to whether to opt out
of the class action. It identified one important issue for their
consideration as the "timeliness" of their action. The Individual Action
Notice described the rulings in the November 21 Opinion, the fact that
based on those rulings, defendants were filing motions to dismiss with
prejudice some or all of the claims brought in many Individual Actions,
and that the opposition to these motions was due December 23. It further
advised, "[i]f the claims are dismissed with prejudice, then the
defendants take the position that the plaintiffs in these Individual
WorldCom Actions will lose forever their right to recover for any
WorldCom losses covered by the dismissed claims." The Individual Action
Notice also stated that the November 21 Opinion had explained that "there
is `no authority' that would support the refiling of claims, for instance
after the certification of a class action, where those claims have been
dismissed on the ground that they were barred by the statute of
The Individual Action Notice added that the Lead Plaintiff in the class
action takes the position that if a plaintiff requests a dismissal of
their action, then the Court can
exercise its discretion to condition the dismissal
on an agreement that the dismissal is with
prejudice to the refiling of the Individual
WorldCom Action, but without prejudice to the
plaintiff participating as a Class member. . . .
The defendants have indicated that they
will oppose any such conditional or voluntary
dismissal. . . . No motion has been made by
any Individual WorldCom Plaintiff whose claims may
be subject to dismissal or by any other party
before the Court and, as a result, the Court has
made no determination in this regard.
Pursuant to the Scheduling Order of September 22, plaintiffs in other
Individual Actions, including the Six Actions, were given an opportunity
to show why the November 21 Opinion did not require the dismissal of some
or all of their Securities Act claims as a result of motions to dismiss
that the defendants filed against their actions on or about December 2.
Through the December 2 motions to dismiss, the defendants sought the
dismissal of the Six Actions in their entirety.*fn5
served their opposition to the motion to dismiss on December 22. Their
opposition did not raise the issue of the voluntary
dismissal of their lawsuits.*fn6
The opposition presented on
behalf of the Milberg Weiss Actions did, however, present new arguments
not made in opposition to the motion to dismiss the MW Alaska Action or
in the motion for reconsideration addressed to the November 21 Opinion.
On January 20, 2004, those new arguments were rejected and the motions to
dismiss with prejudice various Securities Act claims in twenty-six
Individuals Actions and nine Milberg Weiss Actions in their entirety,
including the Six Actions, were granted.*fn7
See, e.g., In re
WorldCom, Inc. Sec. Litig., 2004 WL 77879 ("January 20 Opinion").
Meanwhile, between January 9 and January 13, the Plaintiffs filed
motions seeking voluntary dismissal of their actions on the condition
that they will not opt out of the class action. The motions were fully
submitted on January 23. The Lead Plaintiff in the class action submitted
a brief in support of allowing the movants to dismiss their Individual
Actions and to remain members of the class pursuant to Rule 41(a)(2),
Fed.R. Civ. P.*fn8 Arthur
Anderson, the Underwriter Defendants*fn9 and the Salomon Smith
Barney Defendants oppose the motions.
Each of the Plaintiffs in the Six Actions requests that it be permitted
pursuant to Rule 41(a)(2),*fn10 Fed.R. Civ. P., to dismiss its
Individual Action without prejudice "on the condition that it be
permitted to remain a member of the [WorldCom] class for all claims
asserted in that case."*fn11 "Once a defendant has answered a complaint
a plaintiff may no longer dismiss his suit as a matter of right."
D'Alto v. Dahon California, Inc., 100 F.3d 281, 283 (2d Cir.
1996). Rule 41(a)(2), Fed R. Civ. P., provides that except where parties
agree to a stipulation of dismissal, "an action shall not be dismissed at
instance save upon order of the court and upon such terms and
conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). "It is
within the district court's sound discretion to deny a Rule 41(a)(2)
motion to dismiss." Catanzano v. Wing, 277 F.3d 99, 109 (2d
Cir. 2001) (citing Zacrano v. Fordham Univ., 900 F.2d 12, 14
(2d Cir. 1990)).
" A district court may allow a plaintiff to dismiss an action if the
defendant will not be prejudiced thereby." Correspondent Services
Corp. v. First Equities Corp. of Florida, 338 F.3d 119, 126 (2d Cir.
2003) (citation omitted). D'Alto observed that
"Starting a litigation all over again does not
constitute legal prejudice. However . . .
[there is] an exception to the rule; namely when
the cause has proceeded so far that the defendant
is in a position to demand on the pleadings an
opportunity to seek affirmative relief and he
would be prejudiced by being remitted to a
separate action. Having been put to the trouble of
getting his counter case properly pleaded and
ready, he may insist that the cause proceed to a
D'Alto, 100 F.3d at 283 (citing Jones v. Securities
& Exchange Commission, 298 U.S. 1
, 19 (1936)). Among the factors
relevant to a court's decision are
 the plaintiff's diligence in bringing the
motion;  any `undue vexatiousness' on
plaintiff's part;  the extent to which the suit
has progressed, including the defendant's effort
and expense in preparation for trial;  the
duplicative expense of relitigation; and  the
adequacy of plaintiff's explanation for the need
Catanzano, 900 F.2d at 109-110 (citing Zagano,
900 F.2d at 14).
Diligence in bring the motion
Whether the Plaintiffs have been diligent in bringing their motions to
dismiss their actions voluntarily depends on the point at which one
starts the analysis. Their counsel have been on notice of the defendants'
intent to raise the statute of limitations bar since September 2003. The
defendants gave notice in a September 12 conference of their intent to
move to dismiss Individual Actions based on the statute of limitations.
The motion was made on October 3 and fully described the defendants'
theory. The motion brought against the test case a Milberg Weiss
Action whose complaint is indistinguishable from the Plaintiffs'
complaints in every material aspect was granted on November 21.
The motions to dismiss the Six Actions in their entirety were made on
December 2. The Plaintiffs opposed these motions on December 22. At no
point during those three months, including in their opposition to the
motions to dismiss, did the Plaintiffs seek to dismiss their actions
On the other hand, the Six Actions were transferred by the MDL Panel at
various points throughout the Fall. Moreover, the curative, Individual
Action Notice was not mailed until December 12. This notice allowed the
Court to explain the implications of the statute of limitations
litigation directly to each plaintiff who had filed an Individual
Action.*fn12 The Plaintiffs brought
their motions to dismiss their actions voluntarily between January
9 and January 13.
Undue Vexatiousness by Plaintiffs
With the possible exception of the new arguments presented in
opposition to the December 2 motions to dismiss,*fn13 the Plaintiffs
have not been unduly vexatious. As previously noted by this Court, there
is "no reason to believe that the funds that have filed Individual
Actions have done so with any but the best of intentions to obtain the
maximum recovery for their constituency." In re WorldCom, Inc. Sec.
Litig., 2003 WL 22701241, at *6.
The defendants contend that the Plaintiffs have been unduly vexatious
because they have participated with the other Milberg Weiss Actions in a
coordinated "de facto class action". See In re WorldCom
Sec. Litig., 2003 WL 22701241, at *6. The defendants recite that
this campaign has resulted in a significant expenditure of the parties'
resources, duplicative litigation,
and waste. While it is true that the burden on the parties*fn14
and the court system from this strategy of conducting a parallel, quasi
class action has been enormous, that is an entirely separate issue from
the filing, and now dismissal, of a time-barred lawsuit. The law
protects the right of investors to opt out of securities class actions
and to pursue their own independent lawsuits. So long as a lawsuit
otherwise conforms to the requirements of the law, it cannot be labeled
vexatious simply because it is duplicative litigation.
Progress in the Suit
The WorldCom Securities Litigation is in the midst of fact
discovery; fact discovery is due to close on June 18, 2004. Settlement
discussions have been ongoing since last Winter, but to date no
settlement agreement has been announced.*fn15 Discovery on behalf of
the class is being conducted by Lead Counsel for the
Class. The Individual Actions are participating fully in the
discovery process through a consolidation order and with the assistance
of a Liaison Counsel. See In re WorldCom, Inc. Sec. Litig., No.
02 Civ. 3288 (DLC), 2003 WL 21219037 (S.D.N.Y. May 22, 2003)(explaining
the reasons for the consolidation of all the Securities
Litigation actions for pretrial proceedings). Allowing plaintiffs
who have filed Individual Actions to join the class action will have no
adverse effect on the progress of discovery in the Securities
The opt out period for the class action does not expire until February
20, 2004. After that date, it will be clearer to all which parties have
finally decided to pursue Individual Actions, and the potential size of
the class. That information can be expected to facilitate the ongoing
settlement discussions, to permit all parties to focus their efforts more
effectively on the litigation, and to assist in the management of the
litigation. A motion by Plaintiffs to dismiss their Individual Actions
before the close of the opt out period is helpful in this regard and
Duplicative Expense of Relitigation
Permitting the Plaintiffs to remain full participating members of the
class action will not result in any duplicative expense of relitigation.
Indeed, permitting such participation may reduce the burden of collateral
litigation. For instance, by
remaining in the class action, the Plaintiffs are foregoing their
right to appeal the January 20 dismissal of their actions.
Plaintiffs' Explanation of the Need to Dismiss
The Plaintiffs' reason for requesting a voluntary dismissal of their
actions is readily apparent. The applicable statute of limitations
presents an insurmountable barrier to the maintenance of the Six Actions.
This barrier, which would exist whether their actions were remanded to
state court or whether they remain in federal court, prevents them from
obtaining any recovery for their losses from WorldCom investments.
Public Policy Considerations
In addition to the Zagano factors, it is appropriate in this
case to consider issues of public policy. The defendants urge that the
Court deny this application for a conditioned voluntary dismissal because
to do so would "fatally undermine the rationale of the American
Pipe tolling doctrine". The defendants contend that plaintiffs will
be encouraged to file preemptive suits, knowing that they can opt out of
any adverse decisions in their individual cases and simply join the class
without any penalty, and with great cost to the defendants and the court
system. They assert that the motions are not brought in good faith since
the Plaintiffs waited to see if the Court would rule in the defendants'
favor on the first tranche of the motions to dismiss. Among the
authorities that defendants cite to support their
argument that plaintiffs cannot participate in a class action after
they have filed time-barred claims are In re Heritage Bond
Litig., 289 F. Supp.2d 1132, 1150, 1154 (C.D. Cal. 2003); In
re Brand Name Prescription Drugs Antitrust Litig., Nos. 94 C 897,
MDL 997, 1998 WL 474146, at *8 (N.D. Ill. Aug. 6, 1998); and
Patterson v. Alaska Airlines, Inc., 756 F. Supp. 476, 478 (W.D.
The defendants' argument has force. It is a particularly compelling
argument in the context of these Six Actions. The statute of limitations
barrier at issue here should have been readily apparent to each of the
Plaintiffs when they filed their lawsuits. Even if they thought that the
law was unsettled, it is difficult to understand how, as fiduciaries, the
Plaintiffs could run the risk of losing all right to pursue recovery for
their participants and beneficiaries when there were alternatives readily
available to them that did not present that risk. They could simply have
waited to see whether it was in their interest to join the class action,
and if they concluded that it was not, they could have opted out of the
class action and filed their own individual action. A suit filed after a
decision has been made on class certification can take advantage of
American Pipe tolling, and their claims would not have been
vulnerable to dismissal simply because they were filed more than a year
after June 25, 2002.
As noted, however, each of the Plaintiffs is a fund with many
participants who depend upon the fund to guard and preserve
assets intended for their benefit. To the extent that the
Plaintiffs lost assets invested in WorldCom securities through violations
of the federal securities laws, there is a strong public interest in
favor of allowing them and those to whom they owe a fiduciary duty to
participate in any recovery that may be received through the
Securities Litigation. Innocent beneficiaries should not
suffer because of flawed legal advice. The penalty imposed upon them by
filing untimely lawsuits is, in effect, the loss of the opportunity to
pursue an Individual Action. As this Court has stated repeatedly,
investors have the right to bring individual actions and to opt out of a
certified class action. This is a "bedrock truth." In re WorldCom
Sec. Litig., 2003 WL 22701241, at *6. With the filing of their
motions for voluntary dismissal, Plaintiffs acknowledge that they are
giving up that right.
Timing of January 20 Opinion
Plaintiffs complain that this Court issued the January 20 Opinion on
the statute of limitations issues before reaching their motions for a
voluntary dismissal.*fn16 The Plaintiffs are six of the thirty-six
actions affected by the December 2 motions
to dismiss. It is essential that each of those actions have as much
guidance as quickly as possible about the fate of their cases. Milberg
Weiss' opposition to the December 2 motions raised new arguments that it
had not made in its opposition to the October 3 motions to dismiss the
representative Milberg Weiss Action. To the extent that it believed that
those new arguments deserved serious consideration and could affect the
outcome of that motion practice, it was critical that each of their
affected clients have an analysis of those arguments in order to assist
them in making a better informed decision about what course to follow,
including whether to seek to remain in the class by moving voluntarily to
dismiss their action, or to continue with their Individual Action and opt
out of the class.*fn17 Simply put, deferring a decision on the December
2 motions would have left each of the actions subject to those motions
with less information as they faced the February 20 opt out deadline.
In sum, weighing each of the factors described above, and considering
them as a whole, the Plaintiffs have shown that their application for the
voluntary dismissal of their actions in order to permit them to be full
participants in the WorldCom class
action should be granted.*fn18 The judgments to be entered in
defendants' favor pursuant to the January 20 Opinion, therefore, shall be
entered with prejudice for all purposes except allowing Plaintiffs to
remain members of the WorldCom class action and participate fully in any
recovery obtained by the class.
The motions by plaintiffs in 03 Civ. 8269, 03 Civ. 8923, 03 Civ. 9168,
03 Civ. 9400, 03 Civ. 9401, and 03 Civ. 9402 to dismiss their actions
voluntarily is granted with the condition that they not opt out of the
class or seek in any way to continue their Individual Actions.*fn19 No
order giving effect to the
decisions of January 20 will be executed before February 12,