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In Re Vivendi Universal

February 6, 2012


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Before the Court is the plaintiffs' motion for entry of judgment as to the claims of ordinary-share purchasers pursuant to Federal Rule of Civil Procedure 54(b), filed on April 8, 2011. For the reasons stated herein, the plaintiffs' motion is DENIED.


On March 22, 2007, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, the Court granted in part a motion to certify a class "consisting of all persons from the United States, France, England, and the Netherlands who purchased or otherwise acquired ordinary shares or American Depository Shares of Vivendi Universal, S.A. [("Vivendi" or "Company")] . . . ." In re Vivendi Universal, S.A. Sec. Litig., 242 F.R.D. 76, 109 (S.D.N.Y. 2007) ("Vivendi I"). The certified class ("Class Plaintiffs") proceeded to litigate a class action ("Class Action"), resulting in a three-month-plus jury trial before the Court during late 2009 and early 2010. See In re Vivendi Universal, S.A. Sec. Litig., 765 F. Supp. 2d 512, 523--24 (S.D.N.Y. 2011) ("Vivendi II"). After trial, the jury found that the defendants had violated Section 10(b) of the Securities Exchange Act of 1933, 15 U.S.C. § 78j(b), as to all fifty-seven misstatements alleged in the Class Plaintiffs' complaint. See id. at 524. After the jury rendered its verdict, the parties commenced preparation for the claims process, which remains pending. See Mot. to Approve Post-Verdict Class Notice and Claims Administration and to Require Vivendi to Pay for Those Procedures (Sept. 21, 2011) (ECF No. 1100).

Several months later, on June 24, 2010, the Supreme Court issued its opinion in Morrison v. National Australia Bank Ltd., --- U.S. ---, 130 S. Ct. 2869 (2010). The Morrison Court "concluded that Section 10(b) [of the Exchange Act] does not apply extraterritorially," Vivendi II, 765 F. Supp. 2d at 526, and held that "Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States," Morrison, 130 S. Ct. at 2888. On February 17, 2011, applying Morrison-which had upended Second Circuit precedent on the issue, see Vivendi II, 765 F. Supp. at 526--27-this Court dismissed the Section 10(b) claims brought by ordinary shareholders of Vivendi securities in the Class Action. See id. at 533--34.

On March 9, 2011, the Class Plaintiffs filed a Rule 23(f) petition with the Second Circuit, seeking leave to appeal the Court's dismissal of the Section 10(b) claims of ordinary shareholders. See Motion for Leave to Appeal, In re Vivendi Universal S.A., No. 11-908 (2d Cir. Mar. 9, 2011) (ECF No. 1). Shortly thereafter, the Class Plaintiffs filed the instant motion with this Court, requesting that, in the event that the Second Circuit concluded "that Rule 23(f) is not the appropriate procedural vehicle for seeking immediate appellate review of this Court's Morrison rulings, . . . the Court enter a Rule 54(b) judgment as an appropriate alternative method of appeal." Mem. in Supp. of Pls.' Mot. for Entry of J. as to the Claims of Ordinary Share Purchasers Pursuant to Fed. R. Civ. P. 54(b) ("Pls.' Mem.") at 4 (Apr. 8, 2011) (ECF No. 1087).

On July 20, 2011, a three-judge Second Circuit motions panel denied the Class Plaintiffs' Rule 23(f) petition, concluding that "the issues raised by the petition do not relate to the class certification requirements of Rule 23 and the petitioners have not demonstrated that the relevant issues are likely to escape effective review after entry of final judgment, or that the district court's decision is manifestly erroneous." Order ("R. 23(f) Order") at 2, In re Vivendi Universal S.A., No. 11-908 (2d Cir. July 20, 2011) (ECF No. 19).

The Second Circuit's decision leaves the instant motion as the Class Plaintiffs' lone remaining procedural vehicle for challenging the Court's application of Morrison before entry of final judgment on all claims, which will take place only after the conclusion of the claims process. The motion being fully briefed,*fn1 the Court now turns to its resolution.


Rule 54(b) of the Federal Rules of Civil Procedure provides that "[w]hen an action presents more than one claim for relief . . . , the court may direct entry of a final judgment as to one or more, but fewer than all, claims . . . only if the court expressly determines that there is no just reason for delay." Fed. R. Civ. P. 54(b). "Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims . . . does not end the action as to any of the claims . . . ." Id. The Second Circuit has explained that Rule 54(b) is "an exception to th[e] general principle" that, "in the federal district courts, the entry of a final judgment is generally appropriate 'only after all claims have been adjudicated.'" Novick v. AXA Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011) (quoting Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991)); accord Curtiss-Wright Corp. v. Gen. Electric Co., 446 U.S. 1, 8 (1980) (discussing the "historic federal policy against piecemeal appeals" (internal quotation marks omitted)). The Second Circuit has cautioned that the district court's discretion under Rule 54(b) to grant the entry of a "final judgment before the entire case is concluded, thereby permitting an aggrieved party to take an immediate appeal, [should] be exercised sparingly." Novick, 642 F.3d at 310 (internal quotation marks omitted).

In addition to Rule 54(b)'s requirements that there be multiple claims and that at least one of those claims have been finally determined, a party seeking relief under the Rule must demonstrate that there is no just reason for delay. Uni-Rty Corp. v. Guandgdong Bldg., Inc., 249 F.R.D. 149, 151 (S.D.N.Y. 2008). In order to provide an "express determination that there is no just reason for delay," Novick, 642 F.3d at 310 (internal quotation marks omitted), "the court must provide a 'reasoned,' even if brief, 'explanation' of its considerations," taking into "account . . . both the policy against piecemeal appeals and the equities between or among the parties," id. (quoting Harriscom, 947 F.2d at 629). "It [i]s therefore proper for the District Judge . . . to consider such factors as whether the claims under review [a]re separable from the others remaining to be adjudicated and whether the nature of the claims already determined [i]s such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Curtiss-Wright, 446 U.S. at 8. "In applying these principles," the Second Circuit has "repeatedly noted that the district court generally should not grant a Rule 54(b) certification if the same or closely related issues remain to be litigated," and that "[i]t does not normally advance the interests of sound judicial administration or efficiency to have piecemeal appeals that require two (or more) three-judge panels to familiarize themselves with a given case in successive appeals from successive decisions on interrelated issues." Novick, 642 F.3d at 311 (internal quotation marks omitted) (citing Harriscom, 947 F.2d at 629, 631). "Finally, . . . it is incumbent upon a party seeking immediate relief in the form of a Rule 54(b) judgment to show not only that the issues are sufficiently separable to avoid judicial inefficiency but also that the equities favor entry of such a judgment."*fn2 Id. at 314.


I. Policy Against Piecemeal Appeals

The Class Plaintiffs argue that the "ordinary share purchasers' claims have been fully adjudicated and are ripe for appellate review," and that therefore their motion should be granted. Pls.' Mem. at 5. They cite a Seventh Circuit case, Nat'l Metalcrafters v. McNeil, 784 F.2d 817 (7th Cir. 1986), for the proposition that "'[a]n order that disposes finally of a claim against one party to the suit can be certified for an immediate appeal under the rule even if identical claims remain pending between the remaining parties.'" Pls.' Mem. at 5--6 (brackets in original) (quoting McNeil, 784 F.2d at 821). But while the plaintiffs might prefer Seventh Circuit law, the Second Circuit is ...

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