CME Group, Inc. v. Chicago Board Options Exchange, Inc.
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EFiled: Jul 7 2009 3:39PM EDT Transaction ID 25987156 Case No. 2369-VCN COURT OF CHANCERY OF THE STATE OF DELAWARE 417 SOUTH STATE STREET DOVER, DELAWARE 19901 TELEPHONE: (302) 739-4397 FACSIMILE: (302) 739-6179 JOHN W. NOBLE VICE CHANCELLOR July 7, 2009 Kenneth J. Nachbar, Esquire Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market Street Wilmington, DE 19801 Edward P. Welch, Esquire Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, DE 19801 Andre G. Bouchard, Esquire Bouchard, Margules & Friedlander, P.A. 222 Delaware Avenue, Suite 1400 Wilmington, DE 19801 Samuel A. Nolen, Esquire Richards, Layton & Finger, P.A. One Rodney Square Wilmington, DE 19801 Richard I. G. Jones, Jr., Esquire Ashby & Geddes 500 Delaware Avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899-1150 Re: CME Group, Inc. v. Chicago Board Options Exchange, Inc. C.A. No. 2369-VCN Dear Counsel: I write to address the recent application of Geneva Trading USA, LLC ( Geneva ) to be classified as a Participating Group B Settlement Class Member. July 7, 2009 Page 2 In due course, Geneva filed a Group A claim form. The Court recently determined that it did not qualify for Group A participation.1 Geneva did hold an Exercise Right Privilege ( ERP ) and, thus, had the right to seek to participate in the Group B Settlement, but, unlike others who were uncertain as to their Group A status, it did not file a protective Group B claim around the time of the settlement hearing. Instead, it waited until last week to file such a claim. Class Counsel opposes Geneva s participation as a Group B member because of the delay in the filing of Geneva s claim. Class Counsel and Geneva debate (i) who told whom what about the filing of a protective claim and (ii) who bears ultimate responsibility for the delay. The Court need not resolve these factual disputes. Geneva timely filed a claim to participate in Group A. Class Counsel opposed Group A participation, but there was no dispute about Geneva s holding of one common prerequisite for both Group A and Group B membership: an ERP. Thus, one who held an ERP, but did not properly qualify to be a member of Group A, such as Geneva, also, almost by definition, qualified for Group B, except for the absence of a claim form that would have contained the same material information as set forth in the Group A claim form. 1 CME Group, Inc. v. Chicago Bd. Options Exch., Inc., 2009 WL 1856693, at *6 (Del. Ch. June 25, 2009). July 7, 2009 Page 3 The Court acknowledges the concerns of Class Counsel with respect to the obvious delay in Geneva s filing of a Group B claim form. Whether it was entitled to participate as a member Group A was far from clear.2 Under the circumstances, amidst the uncertainty, Geneva, otherwise entitled to participate in Group B, should be allowed to do so now, notwithstanding the tardiness of its filing of a Group B claim form. Accordingly, Geneva may participate in the Group B settlement. Very truly yours, /s/ John W. Noble JWN/cap cc: Nathan A. Cook, Esquire John H. Williams, Jr., Esquire Melanie K. Sharp, Esquire Vernon R. Proctor, Esquire Michael A. Weidinger, Esquire Paul A. Fioravanti, Jr., Esquire Henry E. Gallagher, Jr., Esquire Joseph A. Rosenthal, Esquire Patricia R. Uhlenbrock, Esquire Carolyn S. Hake, Esquire 2 Denise S. Kraft, Esquire David S. Eagle, Esquire Daniel B. Rath, Esquire Kevin J. Mangan, Esquire Lewis H. Lazarus, Esquire Martin S. Lessner, Esquire David A. Jenkins, Esquire Arthur L. Dent, Esquire Register in Chancery-K See id. at *7 n.29 (recognizing that the line separating Group A membership from Group B membership fell on something of a continuum).
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