08-5341-cv
In re Telik Inc. Securities Litigation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUM ENT FILED W ITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21 st day of June, two thousand ten.
PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
Andrew R. May,
Plaintiff-Appellant,
Policeman’s Annuity and Benefit Fund of Chicago, et al.,
Plaintiffs-Appellees,
v. 08-5341-cv
Telik, Inc., et al.,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: A NDREW R. M AY, pro se, Fairfax, Virginia.
FOR PLAINTIFFS-APPELLEES
POLICEMEN’S ANNUITY AND
BENEFIT FUND OF CHICAGO: S TANLEY D. B ERNSTEIN , Timothy J. MacFall,
Ann Lipton, and Joseph R. Seidman, Jr.,
Bernstein Liebhard LLP, New York, New York.
FOR DEFENDANTS-APPELLEES
TELIK, INC., MICHAEL M.
WICK, AND CYNTHIA M.
BUTITTA: J AMIE A. L EVITT, Morrison & Foerster LLP,
New York, New York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (McMahon, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be and it hereby is AFFIRMED.
Appellant Andrew R. May, proceeding pro se, appeals the district court’s order
approving the settlement of a class action. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Federal Rule of Civil Procedure 23(e) requires court approval of any settlement
that effects the dismissal of a class action. Before such a settlement may be approved, the
district court must determine that a class action settlement is fair, adequate, and
reasonable, and not a product of collusion. See, e.g., D’Amato v. Deutsche Bank, 236
F.3d 78, 85 (2d Cir. 2001) (citing County of Suffolk v. Long Island Lighting, 907 F.2d
1295, 1323 (2d Cir. 1990)). This Court reviews a district court’s decision to approve a
proposed settlement of a class action for abuse of discretion. See id. (citing City of
Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir. 1974), abrogated on other grounds
by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000)). The trial judge’s
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views are accorded “great weight . . . because he is exposed to the litigants, and their
strategies, positions and proofs. . . . Simply stated, he is on the firing line and can evaluate
the action accordingly.” Grinnell, 495 F.2d at 454 (internal quotation marks omitted).
Here, an independent review of the record and relevant case law reveals that the
district court properly approved the settlement and certified the class for the purpose of
the settlement. We affirm for substantially the same reasons stated by the district court in
its thorough September 10, 2008 order.
Appellant argues that he was entitled to review documents that Lead Plaintiff had
described as providing a factual basis for the settlement. Appellant, who was represented
by counsel in the district court proceedings, did not file a motion in the district court for
limited discovery of these documents. This Court has explained that “[g]enerally, such a
discovery request depends on ‘whether or not the district court had before it sufficient
facts intelligently to approve the settlement offer. If it did, then there is no reason to hold
an additional hearing on the settlement or to give appellants authority to renew
discovery.’” Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 120 (2d Cir. 2005)
(quoting Grinnell, 495 F.2d at 462-63). Even assuming that Appellant’s discovery claim
were not waived, it is meritless because the district court had sufficient facts before it to
make an informed decision to approve the settlement offer.
We have considered all of Appellant’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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