The opinion of the court was delivered by: Denise Cote, District Judge
The Lead Plaintiff and the Garden City Group ("GCG") have applied for approval of a final distribution to the WorldCom class in the Securities Litigation. This Order addresses the GCG recommendation that 83 claims be rejected because they were filed by or on behalf of persons or entities for whom a timely request for exclusion was received that was not timely retracted.
A class in this litigation was certified on October 24, 2003, and members of the WorldCom securities class action were given an opportunity to opt out of the class action, at first by February 20, 2004, and then by September 1, 2004. They were also given "clear and fair notice" of an opportunity to revoke any prior exclusion request by September 1, 2004; late-filed revocations were accepted so long as they were postmarked no later than February 19, 2005. In re WorldCom, Inc. Secur. Litig., 237 F.R.D. 541, 544 (S.D.N.Y. 2006). Between March 2 and March 16, 2005, the underwriter defendants in this litigation settled with the class for an aggregate amount of over $2 billion. A Fairness Hearing on the settlement of the class action with the underwriter and other defendants was held on September 9, 2005. Class members were permitted to submit proofs of claim until August 26, 2005, a few weeks before the Fairness Hearing. See id. The importance of adhering to a schedule in this litigation has been previously emphasized:
The management of a class action, particularly one as sprawling and substantial as the WorldCom class action, requires a Court to set an appropriate and clear schedule for the litigation and to enforce the deadlines to which the parties have been required to adhere. This permits the litigation to move forward, promotes respect for the judicial process, and allows the parties to plot their litigation strategy efficiently. If the parties cannot rely on the schedule, then they waste resources preparing for an unknown or uncertain future.
Id. at 544. Rejecting a late-filed proof of claim, the same Opinion also explained why enforcing these opt-out deadlines is important to protect the expected recoveries of class members remaining in the class and to allow the defendants and the class to ascertain an appropriate settlement figure:
The WorldCom Securities Litigation was unusual in several respects, one of them being the number of opt outs from the class . . . . When the Lead Plaintiff and the Citigroup defendants settled in May 2004 they did not know the extent to which class members would opt out, since the opt-out deadline of February 20, 2004 had been vacated. As a result they agreed on a maximum settlement figure and a procedure for reducing that figure once the scope of the opt outs became known. Following the close of the opt-out period on September 1, 2004, they analyzed the situation and negotiated a reduction. When the Underwriter defendants settled with the class in early 2005, their payments were calibrated against the Citigroup settlement . . . all class members and defendants have relied on the schedule set in this litigation.
On April 21, 2009, GCG advised claimants who disputed the reasons GCG had given for the rejection of their claims that they did not need to respond in order to obtain Court review of their claim, but if they did want to respond, they had to mail their submission to Lead Counsel and the Court no later than May 15, 2009. Several persons have mailed submissions to the Court to explain why they disagree with GCG's determination that they may not participate in the class action recovery because of their timely requests for exclusion.*fn1 This Opinion addresses those objections which require discussion.
Richard Kiegler asserts that, in his "opinion" the writing on the request for exclusion form is not his handwriting. (GCG had sent Mr. Kiegler a copy of the form when it explained its basis for denying his claim.) Mr. Kiegler adds that "I cannot reason why I would have asked to be excluded."
The Kiegler request for exclusion is dated August 31, 2004. The names Dorothy and R. Kiegler are printed in the space for contact information, next to the typed name of their attorney, Adam M. Fetterman, and Mr. Fetterman's Florida address. The request bears the signature "Richard Kiegler". Mr. Kiegler has submitted an annotated copy of the exclusion request with his current objection. He writes on that copy that he never prints "g" and "r" the way they appear in his printed name where the contact information is listed. He adds, however, that the "Signature [on the exclusion form] looks closer" to his writing. Indeed, the signature appears identical to that on his present objection letter.
Mr. Kiegler's objection to the denial of his claim is denied. Although Mr. Kiegler may not presently remember that he submitted the request to opt-out of the class, the evidence indicates that he did do so. He does not flatly deny that he signed the request for exclusion or that Mr. Fetterman was his attorney. Both Messrs. Fetterman and Kiegler live in Florida, and as noted, Mr. Kiegler's signature on the exclusion form and on his objection to the denial of his claim appear identical. Without a firmer assertion of forgery, and a denial that he authorized Mr. Fetterman to submit the exclusion form on his behalf, his claim must be rejected.
Wayne Mercier requested exclusion from the class on February 21, 2004. Mr. Mercier was sent the August 2, 2004 special notice advising class members how they could revoke their exclusion requests. Mr. Mercier did not revoke his request, but he did file a claim on February 28, 2005. GCG notified Mr. Mercier on June 12, 2006 that his claim was being rejected. In a November 21, 2006 letter Mr. Mercier explains that he requested exclusion from the class because he intended to have an attorney represent him. He assures GCG that he never retained an attorney and reports that GCG assured him in his many telephone calls to inquire about his claim number that everything was in order "on my claim." In his May 1, 2009 letter to the Court, he repeats that he never retained an attorney and placed many telephone calls to GCG, but spoke to a different person every time. GCG has records of telephone calls with Mr. Mercier on five occasions between June 2006 and January 2007.
Mr. Mercier's objection is denied. There is no dispute that Mr. Mercier requested exclusion and did not revoke that request in writing by February 19, 2005. His telephone calls with GCG referred to his claim, and took place after the time permitted to revoke an exclusion request. Therefore, even if those telephone calls could be construed as revocation requests, and they cannot, they are untimely. Mr. Mercier's claim is denied.
Gregory Motlow requested exclusion from the class on February 4, 2004. In a letter of April 27, 2009, he explains that he made a "terrible mistake by accidentally" excluding himself, that he never pursued a lawsuit with his attorney, and that he is sorry for his error. The exclusion form includes his and his attorney's contact information, and is signed by Mr. Motlow. GCG properly excluded Mr. Motlow from the class. Given that Mr. Motlow does not deny that it is his signature on the exclusion form, and that he authorized his attorney to submit it on his behalf, the ...