Eastside Holding Inc. v. The Bear Stearns Companies Inc. et al, No. 1:2008cv02793 - Document 310 (S.D.N.Y. 2013)
Court Description: OPINION & ORDER re: (404 in 1:08-md-01963-RWS) MOTION to Intervene and for Modification of the Court's Order dated September 20, 2013, filed by Cancan Limited. Based on the reasoning given above, Cancan's (i) motion to intervene is granted; and (ii) motion to modify the approval order is granted. It is so ordered. (See Order). (Signed by Judge Robert W. Sweet on 12/11/2013) Filed In Associated Cases: 1:08-md-01963-RWS, 1:08-cv-02793-RWS(ja)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------ ------X IN RE THE BEAR STEARNS COMPANIES, INC. SECURITIES, DERIVATIVE, AND ERISA LITIGATION, OPINION & ORDER MDL No. 08-1963 ------------ --- ---- ---- -X A P PEA RAN C E S: ,I UOClJMENT .' .. ,*:~" n \; .:; _A_t_ _-,,-_ _r_M_o_v_a_n_t_C_a_n_c_a_n__ l_im_l_'t_"MAYER BROWN LLP 1675 Broadway New York, NY 10019 Jonathan C. Medow, Esq. Brian J. Massengill, Esq. ,~ ' ~.........!!~_~: ELECTRONICALLY FILED DOC#: __~~~~ DATE FILED: Attorneys for Respondent Lead Plaintiff State of Michigan Retirement Systems and Class Counsel r the Settlement Class LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 By: Thomas A. Dubbs, Esq. James W. Johnson, Esq. Nicole M. Zeiss, Esq. BERMAN DEVALERIO One California St., Suite 900 San Francisco, CA 9411 By: Joseph J. Tabacco, Jr., Esq. Patrick T. Egan, Esq. 1 . c""T\'N'Y ,;J Sweet, D. J. Absent moved for purpose Class (i) of settlement seeking and September 20, Cancan (ii) 2013 to participate to Rule Limited this intervention pursuant Procedure Member 24 in of modification instant the the of ("Approval Order") ("Cancan") action previously Federal the Rules Court's has for the approved of Civil Order dated pursuant to Rule 60 (b) of the Federal Rules of Civil Procedure and the Court' s equitable powers. Lead Plaintiff The State of Michigan Retirement Systems ("Lead Plaintiff") R. Civ. P. 23 (e). opposes the instant motion pursuant to Fed. For the reasons set rth below, Cancan's motions are granted. I. Prior Proceedings The facts and procedures underlying scussed in this Court's November 9, 2012 opi this on, case In re Bear 909 F. 2d 259 (S.D.N.Y. 2012). Accordingly, only is Supp. cts relevant to this motion will be provided below. By order dated August 18, 2008, the MOL Panel assigned to this Court a number of actions 2 filed in the United States District Courts York arising in March for the from the consolidating all and lead actions comprising securit s claims, 6, Janua of counsel and Eastern Districts of New collapse of investment bank Bear On 2008. Southern these actions. for plaintif the (2) an 2009, The each Order of consolidated Order the was issued appointed three (1) set: rns lead species those of asserting those asserting derivative claims and (3) those asserting ERISA claims. On securities filed a alleging, actions, Lead of Michigan State class inter al I' that law in that overstating the risks The 2009, consolidated securities the 27, February action (i ) entailed in those assets; had olated assets and the Systems, ("Complaint" ) defrauded value of Bear Stearns' for Retirement compla Defendants 1 they Plaintiff federal investors by and understating (ii) sled investors concerning the company's liquidity problems. In previously May stalled 2012, in assistance of a mediator, had been reached with settlement November 2009 discussions were and by June 2012, both t Bear revived that with proposed settlements Stearns Defendants The Bear Stearns Defendants are: (i) The Bear Stearns Co~paniesi and (ii) James E. , Alan D. Schwartz, Warren J. or, Alan C. Greenberg, Sareuel L. Molinaro, Jr., Michael Alix, and M. Farber. 1 3 had and (lithe Settlement 11). Delo The Settlement called for the Bear Stearns Defendants to pay $275 million and for $19.9 million, r a total (IIS e ttlement Amount ll ) . settlement amount Deloitte to pay of $294.9 Ilion The Court granted preliminary approval to the Settlement via twin preliminary approval orders issued June 13, 2012 (the "Preliminary Approval Orders"). The Court also preliminarily certified the Settlement Class pursuant to Fed. Civ. P. 23 (al proposed and this Court motion for final certification of the class, approved t and (23) (b) (3). found settlement approved the as plan In ERISA led the its Court motion, in modi cation approved requests for action in for limited the of t funds the previously administrated settlement Inc. in the determinations, ir ("Plan of Secs.,. Deri v., and on October 23, (i) approved provisions substantively (S.D.N.Y. 2012). instant motion Cancan this participate Co., 2012, allocation 909 F. Supp. 2d 259, 265 71 Cancan Stearns of Allocation"). In Bear 9, procedurally and propos re On November R. rvention purpose of rected from this seeking Settlement; Approval 2013. and Order payment to (ii) which of and preclude Cancan from receiving payment net in the forthcoming second distribution of proceeds. Lead Plaintiffs have opposed 4 the motion, contending after June 15, the Court barred claims submitt t that the im, signi impact cant on size claims of the Cancan's Court 2013, potentially has already and eligible approved and considerations governing a showing of excusable neglect support denial of Cancan's motion. Oral arguments were held, and the motion was marked fully submitted on December 4, 2013. II. Facts Alleged by Movant Cancan incorporated Geneva, 2007 in is the a British Switzerland. and March Stearns 14, common ign financial rgin (Broens Decl. 2008, stock, ranging from $51.09 per s Islands ~~ company, and managed out three purchases 3,992,499 shares re to $89.46 per share. of at Id. 25, 2008 $12.12 per share. at prices ~ (Id. 5). ranging from $6.31 ~ 4). ~ a Class. Stearns, "those of the 909 F. who, certified Supp. during Settlement 2d at 263 n. 2 the It 2008 share to Cancan's total out-of-pocket loss equals approximately $231 million. member per Bear prices sold those shares in three transactions between March 19, and Ma of 1-3). Between December 21, Cancan made acquiring investment period from 5 6 & Ex. A). See Cancan is In re Bear (Settlement ass includes December 2006 14, through March 14, 2008 acquired (the 'Class Period'), purchased otherwise . Bear Stearns . of . common stock or . and were damaged thereby") . Cancan's of Cede Co. & Brothers"), Odier 'II as the s nominee & istered of Brown bank custodial Hentsche Dar were of Cie the Brothers Cancan's ("Lombard "street Harriman cust ("Brown an, Odier"). name" Lomba (Broens Decl. 7) ¢ On June 12, 2012, Sett of t approved t which class action. (See Dkts. a among class other member things, "must that send in "[t]o a im," and that "[aJ 11 Proofs of Claim October 25, further ("GCG") 2012." approved (Dkt. 302-2, Ex. A, retention the The Court of to members Preliminary Approval rective of to firms and other persons completed Notice, 'II 'II Garden "nominee 7-9). for Proof at 6). City a of Court Group, Inc. the distribution of the Settlement Class. Orders qualify to be submitted by as Claims Administrator, and orde the Notice ific 288 -8 9). form and content of the negotiated form of Notice, advised, payment," s the Court preliminarily approved the The purchasers (Dkts. Court such incl as 288-89, a brokerage entities who purchased or otherwise acquired the publicly traded securities of Bear Stearns during 6 the Class Period as record owners but not as benefi "[WJithin seven Notice," calendar record such (7) owners Administrator with days of were "the names their and last receipt " "direct known al owners": the provide to of the addresses of the beneficial owners" or "request additional copies of the Notice and and Proof of Claim, within seven (7) calendar receipt of such copies send them by first class mail the benefi 1 owners." The Court Claim submission Administrative Settlement Order"), 2013 t (the initially set In Determinations "Bar approved a Date") an October the a er 2, Corrected and Directing September dat Court of rectly to (Id. en 9). deadl Funds, days 20, final which 2013 Order Approving of Net "Distribution date other Proof of Payment (the cut-off no 2012 of June claims would 15, be accepted. According to GCG's records, mailed to both Brown Brothers ies of the Notice were Odier, and Lomba but "nei t r entity sent back names/addresses of potential class members or requested bulk notices to forward." (Medow Decl. en 6 & As a result, Cancan never received a copy of the Notice. Decl. en en indi vidual 8-10). based Cancan in alleges Geneva that responsible 7 Mr. Peter r mon Ex. (Broens Broens, oring B). the matters relating to Cancan I s 11; <Jl see Dkt. 302-2, published on July 9, that day Decl. 20 in Bear Stearns, 8 <Jl 2012. (notice Broens was away from his office le connectivity. a remote location with 1 d not learn deadline had been until day a cl informed him that another Bear Stearns shareholder September 25, if Upon 2013. (the client) (Id. <Jl Id. 'JI'JI 12-13). had received his k from of Settlement, the Mr. investigated the issue and the terms of the Plan of (Id. <Jl 14). Mr. out a s red a Recogni Proof ng within Counsel a two days, on and termined (term us llion. completed 'JI (Id. Claim Form September 27, simultaneously opments. a. Loss $140.9 submi tted form Cla (Medow Decl. <Jl 4 & to & Ex. the 2013. class advis that B). Cla (Id., Status of the Settlement Distribution filled Cancan had location) Cancan then Administrator <Jl counsel Ex. A). 8 il, in the Plan of 15 Broens location. Broens collected Cancan's trading of On that 13). ng lea cl been establis the settlement. a a settlement approved just asked that (Broens signed had (or likewise ared on July 9, Affidavit of Jose Fraga )). Mr. 11). Mr. Broens <Jl investment publication notice that never saw (Id. past 16 & of Ex. C). t se The t an of locat approved by t Court Is for distribution of the "Net Settlement Funds" to the class. The Net Settlement Funds equal t total Court Ilion, $294.9 ses." (Dkt. has minus all 302-2, Ex. Notice, approved approximately any A, taxes, payments to million, $36.5 leaving at ass costs, 11). and date, To counsel roughly fees the and GCG in $258.4 of Net fore consideration of any investment income Set tlement Funds, and "Settlement Funds, which comb incremental expenses administration, including counsel and GCG may incur. whatever additional fees of See Dkts. 334 35 and 390). At Settlement least Funds are complete, paid out currently known <JI<JI 48 (a) (1) and three 90% first Claimants." (D claimant Each distribution, Claimants. " Id. 48 (a) <JI Net ion, Funds 379, to now "15,695 Zuena received s, Declo her or calculated "by comparing Claimant's Recognized Loss to the tot all Authori of distr of the Net Settlement Authori (5)). distributions planned. its pro rata share of t separate Recognized Losses of (l) ). Claimants whose pro rata share entitled them to less than $10 did "not receive any payment from the Net Settlement Funds." <JI 48(a) (2); see Dkt. 302-2, Ex. 9 A, (Dkt. 379, Notice, Zuena Declo at 11 ( "No distributions to Authorized than $10.00 will be made, Claimants given the claimants, those entitled to rece "will but " distribut get no would receive After eliminating additional (Dkt. 379, Zuena Declo, Court entered Broens' y client before Mr. check. (Medow Decl. <JI funds in subs 48 (a) (4)). <JI t Approval was asked Order if he and had a second, in-Process, Zuena days received dist "CIa <JI or "Reserve 48(a)(5)). of the 10% approved and any The reserve ss Claims contingencies." Reserve str (Dkt. ion is 379, the fund created to compensate the Court. by was held stribution to -in-Process" that were not paid in t ously his 3). Disputed Claims Decl. 2013, a The remaining 10% of the Net Settlement back se ss than $100 were paid in first distribution was made on September 20, the less administrative expenses of ling such checks.")). processing full, who "1,140 Claims-in- parties intend to distribute the "same pro rata share as a rcentage of each imant's Recognized Loss the first distribut Senior Director of as (Id. (Id., are 10). Process and 22 Disputed aims." There stribution Order awarded <JI to Authorized Claimants" 48 (a) (6)). ions at GCG, 10 <JI Mr. Jason Zuena, a did not provide a specific estimate or range might be the claims to be paid in the second round, associated wi of the Recognized Losses that but he assured the Court that "GCG has carefully and conservatively reserve estimated Net Settlement claimants counsel than will Cla -in-Process deemed el agreed that sufficient" e for or this to that cover Disput p a ymen t . " the propo r confident sufficient Funds with ultimately amount and is holdback 10% (Dkt. purpose. payments Claims ( I d. , of 10% that are C1 ass 11). ':IT to should "more Plaintiff's 380, Memorandum, at 11). A third that "often checks ':IT remain or tax 48 (a) (7) after refunds." & n.5 undeliverable) ), certa distribution Such a is Zuena ':IT 379, may r also funds i ified .. in an equitable and economic fashion." igible for their $100 ks payment will in t prior will with rounds, 2013, and 11). see 11; id. returned as be distributed to previous (Id. (b) uncashed be in claimants who (and, thus, were not paid in Through June 15, deal because (checks Authorized Claimants to distribution (Dkt. le planned ':IT rounds 48 (a) (9) ), Those (a) actually cashed were paid at least (Id,), GCG accept 15,695 Proo of Claim representing total Recognized Losses of $3,488,306,082.92, 11 which down broken can $3,337,302,445.62 from into 15,341 Recognized timely Proofs Losses of Claim and of Recognized Losses of $151,003,637.30 from 354 late but otherwise elig Proofs of Claim postmarked on or be (approx Y 4.3% of total Recogniz re June 15, Losses). 2013 (Zuena 39, 41.). <JI<JI On CIa September 27, 2013, Counsel. to Co approximately $141 (Cirami October 41). in Recogni 9.). If of Loss of its claim receive a (Id. <JI9). "were 2012 Proof is Lead Counsels because, I the Authori distribution Claim 25, This among first t of Proo <JI Proof Treatment of Late-Filed Claims Included payment Decl. a Cancan could have expected to payment in excess of $9 million. b. submitt Cancan may have a million. were timely and val Cancan postmarked aim of as were GCG has 2013, not "late but otherwise 12 eligible imants for whose Court-established submission aim solely based on its late submission." These 354 after of July 11, instructions, Claimants deadline." (Id. "[p] ursuant to Co <JI rej ected any Proof of (Id.). eligible Proofs of Claim" for approximately 2.2% of the 15,695 account r payment associated in the with with round, them the but therefore, them) to combination, first were Recognized the $151 IJl 41), th Recognized Losses on ind eligible Proofs Ex. 379-3, aim" IJl 9), ranging Schedule B-2, amounts of Losses distributed In la late filed on exceeded of Recognized disproportionately Losses id. million, the aims scheduled 4.3% of the cia total, idual "late but up to Late But rwise million. $46.6 Otherwise (id., (D Eligible imants) . GCG had no obj ections. material judice persons and partic e to the entities in the "GCG believes there will be no Settlement Class submitted se that Distribution in that in allowing late the the claims amount to that will not be materially reduced Authorized Claimants will rece from what he or she would have received if the late claimants were excluded." (Dkt. 379, Court the same thing. 7 Zuena Decl. IJl 41). Class counsel told (Dkt. 380, aintiff's Memorandum, at ("the payment of these late cl will not materially dilute the recoveries of timely Authorized aimants")). Counsel argued that eligib "it would be un ir to deny claim received while cia payment of an otherwise were still being process because it was submitted after the Court-approved claims 13 ling (Id.). " deadl stinction No late claimants who had a was apparently drawn between "good reason" for being late and those who did not. GCG June 15, neverthe 2013 be ss est ished after June 15, rece "accepted for (Dkt. 380, ordered. recommended and that that a new "[a] 11 deadline Proofs of of Claim 2013" be "rejected as untimely" and not any reason." Plaintiff's Id. 48 (b) ). <.ll Memorandum, (Dkt. 390, Approval Order <.ll at Class 13), counsel and the ed Court so 5). III. Discussion a. Cancan's Motion to Intervene is Granted Cancan Ru court 24(a) (2) rmit must rest relat subj ect of t provides anyone to action, the to that n[o]n intervene property or and is so situat timely motion, who aims transaction that dispos on may as a practical matter impair or impede ility to adequately protect its sent that interest, erest." 14 ss the existing an is the of the movant's parties Intervention as of right under Rule 24 (a) (2) is granted when all four of the following conditions are met: (1) the motion is timely; (2) the applicant asserts an interest re ing to the property or transaction that is the subj ect of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) applicant's interest is not adequately represented by the other parties. MasterCard Int I 1 Inc. 377, 389 (2d Cir. v. Visa Int' 1 Serv. 2006). Cancan has Ass' n, satisfied Inc., 471 F. 3d t elements se under Rule 24 (a) (2) . rst, whether Cancan's mot by "(1) how long made the applicant had notice of the interest be motion to intervene; parties resulting from any delay; if the motion militating Assn. for Inc. 837565, at *7 is timely is determined is or denied; against and a (2) (3) (4) udice prej udice to t any finding of unusual 6, 2013) 1994)). circumstances of learning 2013 25 F.3d 66, Cancan filed its motion of the settlement) 15 Polo WL (granting intervention and within days that it could not reach agreement with class counsel weeks U. S. C I V 947 6, quoting United St Cir. sting applicant timeliness." 09 v. (S.D.N.Y. Mar. to and Brown of 70 (2d learning (and within Brothers' and Lombard Odier's constitutes collective "unusual finding of t 1 circumstances if transmit Notice a r militating SS.l1 Moreover, negligib to fai the Cancan prej is to ce all to existi intervene parties at this is time. Defendants will not suffer as their exposure is both capped and fixed. s De have been released from liability and cannot be asked to fund additional consideration. CV- 2111 (JS) (WDW) , 2013 WL 1310503, at Jacobs, v. * 3 (E. D. N. Y. Ma r . 03 27, 2013) . The al overwhelming bulk the first dist is members included of Cancan's the members rema in than 4% overall, this the may circumstance, the or a second round recover allowed. of class has However, class would payments. lly the less ultimate justi claimants id cents are not and timely-filed Certain money dilution suffer would be reduction of class members of per claimants if the no more lar. prej they are obligated to share a fixed recovery with entitled been the remaining class members even if class claim is the ion, and there is ample money over to cover the cIa Cancan of In since equally have no able expectation of any particular payout. See Dahingo v. 16 ribbean (S. D. N. Y. 2004) settl 312 Cruises not udice "the plaintiffs who had in Supp. 2d 440, 446 (allowing late-filed claims to participate in a does expectation F. any those who t filed ly led timely claims had no icular pay-out") 689 F. because justifiable (citing Supp. 1250, 1263 (E.D.N.Y. 1988)); accord, 246 F.3d 315, 324 (3d Cir. 2001) ("It cannot be maintained t timely registrants are more dese ng of remedy, equity, th the than tardy to failure registrants ister late excluding registrants would on was t registrants receive similar what claims, indeed from is the late 11 wi Antitrust ("courts is not essentially Lit ., are of this normally ernal F. ly Ch. 11," "wind . the loss of a said t 2d 144, 2007) ly registrants is not considered prej ce for inquiry. sumed All equally omitted); 25, 2009) the mere (D.N.J. 154 of money citation June ly In re ec. Carbon s --------------------------------- Supp . CIV.A. (Del. a t reduction have lable to t purposes 622 the would be owed to istrants prej udicial. "); presuming blameless. class, comprised of some portion of the recovery the otherwise des for purposes of legitimate members entitled CME Grp. 2369-VCN, ("Even 17 to share Inc. 2009 though WL other of in v. the class recovery") Chicago 1856693, Group at Bd. *3 A Member from p fi the settlement pool they would receive if late rs were excluded is simply a windfall."). the Indeed, acceptance and class that 379, Zuena less Court led total ¢ only Cancan's motion Second, a resulting what both GCG t was acceptable claims <JI Recognized from when paid in the Losses sharing 1 in from $3.337 billion to $3.488 billion. ing Cancan to participate now 9). 3.9% rise. Thus, the Court finds r intervention is timely. Cancan res Stearns thus the 350 Y 4.5%, cause Cancan over the recovery by would dilution ance of the late- filed cIa increased (Okt. told counsel first round. round potential of Cancan's claim would be recommending Bear additional diminished somewhat ions will distr and "asserts an see as money a member interest it lost of relating from the s Settlement to the transaction that is the subj ect of the action." Fed. of C ss. prope or R. P. C 24(b)(2). ird, as a member of the certified Settlement Class, Cancan has an "interest relating to the property or transaction that is subject of action." If 18 Court were to cline to intervene, Cancan's compensation, interest would be extinguished would eliminate Cancan's whi s interest. See In re Cmt (3d Cir. 2005) 418 F.3d 277, nk of N. Vi ("In t rd prongs of t ve class action context, Rule 24 (a) (2) no iIi ty to protect ----------~------------------~---- 314 for second and inquiry are satisfi by the nature of Rule 23 representative litigation."). Finally, the Cancan lacks representation Defendants have no rties to the action. instant motion, adequate and the other members of t erest in the class would likely fer to exclude Cancan since that would increase Cancan does not have anyone in the among act who its yout. could or would adequately represent its interests. Given the above, the Court intervene pursuant to Fed. R. Civ. P. the 24, Adv. right Committee Notes to inadequacy representat of intervene t in will class representation Cancan to P. 24 (a) (2). See Fed. R. Civ. ("a member of a a permit action of if class he should have can his interest that the show the by parties before the court"). Intervene Al ternati vely, Cancan contends 19 Court should grant Cancan Under Fed. R. rmi t court may defense law Civ. its 24 (b) (1) (B), with Rule " exercis P. Rule "[0] n t discretion, her p the court must des that " [i] n consider whether the adj udication of 1 parties' rights." As discuss Rule im or common question of intervention will unduly delay or prejudice t the or motion, has a the main action a 24(b) (3) 24 (b) (1) (B) . ly anyone to intervene who shares or under intervent permiss 24 (a) and, above, thus, 24 (b) (1) (B). 499 F. (timel ss under Rules 24 (a) rs). same prej ce distr to And as Cancan's motion is "timely" under Supp. In 2d 415, also scussed ies. made; ion has re 418 and 24 (b) (1) (B) original t See above, Initial (S.D.N.Y. are j 2007) by the there rmore, Pub. 11 be no first t second is fast approaching; the incremental time necessary to process Cancan's claim, and which covers only three purchases and three offsetting sales of common stock, is de nimis. --.---- intervention would not Cancan's mot ion P. r As such, granting cause undue delay, permiss Cancan's Motion to Modify the 20 rmissive and the Court grants intervention under 24 (b) (1) (B). b. Cancan R. Civ. Approval Order Is Granted Cancan pursuant powers. to Fed. R. order, surprise, also moved P. C 60(b) Ru judgment, has allows or to modify 60(b) relief or to Co., a Fed. R. igant' s from C equitable a "final inadvertence, P. 60 (b) (1). "In ims on the me U.S. ts against the Fidelity & Guar. 1987). Such decisions are squarely within the discretion of the court. Id. When assessing claims of "excu e factors: "( 1) (2d Cir. party Order must balance the policy in favor of finality." Kotlicky v. 817 F.2d 6,9 Court's "mistake, deciding a Rule 60(b) motion, a policy Approval the proceeding" or excusable neglect." favor of hearing a 1 t neglect," the Court must the (3) delay and t its reason Servs. Co. F.3d v. 355, 366 (2d Cir. Brunswick Assocs. previously Cancan's motion the llowing [non-movant J, impact on (2) judicial including whether it of the movant, and (4) whether to other 2003) Ltd. 113 S. Ct. 1489, 123 L. Ed. 2d 74 As at good faith." Silivanch v. Celebrity Cruises, the movant acted 333 potential the delay, was within the reasonable cont Inc., look the danger of prej udice to the of proceedings, the noted, Pioneer 507 U.S. P' 380, Inv. 395, (1993)) the claimants 21 (quoting prejudice would be in granting negligible. While October 25, three 2012 months ine, filing after the Approval Order would t to not 2013 occur, its Claims Form 1 Bar Date. significantly Administrator wi thin two days, month, Mr. impact in discovery of fai its good the any the of the c j 1 Form to the Claims and the Broens Further, and modification . Cancan also submitted its proceedi acted Cancan 15, second distribution has a year after t instant mot s claim and Cancan fil ant motion settlement. attempt r a Cancan thus inclusion in the for the Settlement. However, delay, the Court must look at the reason including whether it was within the reasonable control of movant. Pioneer Inv. Servs. Co. 333 class members of the Settlement, noti F.3d indivi the Settlement were mailed to more than 230,000 Members and nominees ficial owners), Court in the Prel Notice and c ients' names as brokers and 366. In 1 notice of ential Class custodians of (Zuena Declaration '1I5), and a summary notice ished in Investor I s internet. All bro (such at Business Dail and disseminated on rs and nominee holders were ructed by nary Approval Orders to either directly im form to and address 1 ir clients or to provide their to Claims Administrator. 288 '1I 9; 289 '1I 9.) GCG did not exclude Cancan 22 (Dkt. its mailings; i ties connected with Cancan. notice was mailed to Decl. ~4). Cancan's custodians Settlement no later than June 27, Those custodians never Cancan's identity, nor expl by Cancan, d rece 2012. alerted filed timely a notice (Cirami Claims aim (See Cirami of ~~ 1. the 3-4). Administrator Cancan, for of as did not directly notify and, as ordered by the Court. While it of the settlement failure worst. to is arguable sooner find news t via on the Cancan should have the public Settlement notices, constitutes Ie Cancan's neglect at Excusable neglect "is not limited strictly to omiss by beyond the r Rule circumstances Inv. Servs. 60 (b) , Co. Ie 507 U.S. neglect' at is control 392. under of movant. H the H[F]or s purposes to of encompass situations in which the failure to comply with a filing is attributable to negligence. H Id. at 394. instance of an inadvertent or negligent most natural meaning of the word 'ne H[E]xclud[ing] every omission would ect.'" Id. "The word [ne ect] therefore encompasses both simple, omissions act and, to more commonly, care essness. H Id. at 388. 23 omissions ignore at 394 -95. Itless caused by Whi "[t]here is no question t in the stribution of a large class action settlement fundi 'a cutoff date is essential and at some point matter must be terminat '" application of this pr iple must not be so rigid as to preclude recovery by a deserving imant. In re 246 F.3d at 329 (citations omi Court does not suchl IV. ). The lieve that a rigid cutoff date is essential. As Cancan's motion to modi is grant Conclusions Bas on motion to intervene approval the reasoning is granted; and given (ii) above l Cancan's motion to modi r is granted. It is so orde New York l NY December /1 I 2013 U.S.D.J. 24 (i) the
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