In re Telik Inc. Securities Litigation

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

2
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