In re CRAZY EDDIE SECURITIES LITIGATION.
Nos. 87 CV 0033, 91 CV 4450 and 90 CV 3181.United States District Court, E.D. New York.
November 8, 1995.*841 *842 Sirota & Sirota, New York City (Howard B. Sirota, of counsel), for plaintiffs.
Shearman & Sterling, New York City (Irene Chang, Joseph T. McLaughlin, of counsel), for defendant Peat Marwick LLP.
MEMORANDUM AND ORDER
NICKERSON, District Judge:
In an Report and Recommendation dated August 11, 1995 Magistrate Judge Marilyn Dolan Go recommended that the court allow late claims (1) mailed on or before September 30, 1993; (2) mailed late due to lack of notice on or before August 11, 1995; (3) delayed by factors beyond the claimants' control; or (4) "set in motion" promptly after notice was received. Magistrate Judge Go further recommended that the court reject late claims mailed after September 30, 1993 without a letter of explanation or where the only excuse was that the claimant was away for a short time around the filing deadline.
No party filed objections. The court approves and adopts the Report and Recommendation.
So ordered.
REPORT AND RECOMMENDATION REGARDING LATE CLAIMS
GO, United States Magistrate Judge:
All remaining matters in this consolidated class action have been referred to me for supervision of post-settlement issues or, in the case of dispositive matters, to report and recommend. The class plaintiffs have moved for an order allowing the claimants who failed to file timely proofs of claim to participate in the distribution of settlement funds pursuant to a settlement approved by this Court on June 13, 1993. For the following reasons, I respectfully recommend that all of the late claims be allowed or rejected, as specified in the schedule of Allowed and Rejected Late Claims annexed hereto.
BACKGROUND
Many of the facts pertinent to this motion are set forth in the decision of the Honorable Eugene H. Nickerson dated June 11, 1993 approving the Stipulation of Settlement dated March 22, 1993, as amended on June 7, 1993, (the "Settlement") settling all the claims of the class action plaintiffs against all defendants, except Eddie Antar. In re Crazy Eddie Securities Litigation, 824 F.Supp. 320 (E.D.N.Y.1993). Familiarity with this *843 decision and prior decisions in this action is assumed.
Under the terms of the Settlement, the settling defendants agreed to establish a fund of $42 million for payment of class claims, attorneys' fees and expenses. Class members of the submitting class would receive approximately 6% of the amount of their losses, a percentage which would vary depending on the amount of claims made and attorneys' fees award. Id. at 323. Any amount not distributed would revert to the settling defendants. Settlement, ¶ 18(f).
Paragraph 21(b) of the Settlement required that all proofs of claim must be filed by a date specified in a notice of the proposed settlement of class actions, unless extended by agreement of the Plaintiffs' Executive Committee and counsel for the Settling Defendants. By order dated March 30, 1993, Judge Nickerson scheduled a hearing to determine the fairness of the Settlement and directed, inter alia, that the deadline for submitting proofs of claim be 90 days after the hearing. The actual notice of the proposed settlement (the "Notice") and form proof of claim sent to class members established August 25, 1993 as the deadline for submitting proofs of claim, requiring all mailed proofs of claim to be postmarked no later than August 25, 1993. See Exhibit B attached to the affidavit of Joseph T. McLaughlin dated November 21, 1994 ("McLaughlin Aff.") in opposition to the instant motion.
The Notice and form proof of claim were mailed to class members by April 30, 1993. In re Crazy Eddie, 824 F.Supp. at 324. Besides widespread media coverage of the Settlement, class members were notified of the agreement by notices published in the national editions of the New York Times and Wall Street Journal advising them of the deadlines for objecting to the Settlement and filing proofs of claim. Id. After the court approved the settlement on June 11, 1993, the Plaintiffs' Executive Committee apparently sent a further notice advising class members of the approval. See Exh. E to McLaughlin Aff.
The Claims Administrator received over 13,000 proofs of claim, of which 257 valid claims were postmarked after the August 25, 1993 deadline ("late claims"). See Affidavit of Brad Heffler dated October 28, 1994 ("Heffler Aff.") at ¶ 4 attached as Exhibit A to the affidavit of Howard Sirota dated October 31, 1994 submitted in support of the instant motion. The amount of "recognized losses", as defined by the Settlement, declared in valid and timely proofs of claim totaled $231,212,431.41 and the valid late claims included recognized losses of $9,890,000. Id.
Copies of the letters of the late claimants explaining why they did not file their claims on time are attached as exhibits to the Heffler Aff. Defendants agreed on the record at oral argument to accept the veracity of the explanations contained in these letters.
By letter dated December 16, 1994, plaintiffs' counsel, Howard Sirota, Esq., submitted a list containing the names of all claimants with valid late claims and the postmark date of their submissions. The vast majority of the claims (187) were submitted within two months after the filing deadline, 60% (158) of which were submitted within the first month.
DISCUSSION
The determination of whether to allow the participation of late claimants in a class action settlement is essentially an equitable decision within the discretion of the court. See Zients v. LaMorte, 459 F.2d 628, 629-30 (2d Cir.1972); In re Agent Orange Prod. Liab. Litig., 611 F.Supp. 1396, 1417 (E.D.N.Y.1985). As the Second Circuit explained in Zients, "a court supervising the distribution of a trust fund has the inherent power and duty to protect unnamed, but interested persons." 459 F.2d at 630. See also Alexander v. Chicago Park Dist., 927 F.2d 1014 (7th Cir.1991), cert. denied, 503 U.S. 905, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992); In re Gypsum Antitrust Cases, 565 F.2d 1123, 1127 (9th Cir.1977).
Accordingly, this court must make its determination after "taking account of all relevant circumstances surrounding the party's omissions." Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380, 394-95, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74 (1993). *844 The Supreme Court in Pioneer observed that such an equitable inquiry cannot be limited to consideration of the movant's culpability and reasons for delay. Id. at 395, n. 13, 113 S.Ct. at 1498, n. 13. Thus, any strict requirement that a late claimant must demonstrate "good cause" for delay in filing a proof of claim in a class action settlement, see In re Gypsum, 565 F.2d at 1127,[1] is clearly inappropriate when the court is exercising its equitable power in this context.
Although Pioneer dealt with interpretation of Rule 9006 of the Federal Rules of Bankruptcy Procedure which permits late filing of proofs of claim upon a showing of "excusable neglect," the Pioneer analysis is clearly applicable here. Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir.1994) (Pioneer applicable outside the bankruptcy context). Here, as in Pioneer, the proper inquiry is necessarily an equitable one. The role of bankruptcy courts in supervising Chapter 11 reorganizations is not dissimilar from the role of the Court in this class action both courts are "entrusted with broad equitable powers to balance the interests of affected parties...." Pioneer, 507 U.S. at 389, 113 S.Ct. at 1495 (citation omitted).
Moreover, since the deadline for filing proofs of claims was first set by Judge Nickerson in his order of March 30, 1993, the instant motion is essentially a request for an enlargement of time with respect to a court ordered deadline. It should thus be considered under the "excusable neglect" standard pursuant to Fed.R.Civ.P. 6(b)(2).
As the Supreme Court in Pioneer emphasized, "excusable neglect" under Rule 6(b) is a "somewhat `elastic concept' and not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer, 507 U.S. at 392, 113 S.Ct. at 1496 (quoting 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 479 (2d Ed.1987)). Since "neglect" ordinarily also encompasses inadvertence or negligent omission, a court should not automatically rule out delay caused by such conduct, but rather, must examine whether the conduct is "excusable". Id. at ___, 113 S.Ct. at 1498. A court should therefore weigh "all relevant circumstances" in determining whether to permit a late claim, including the following factors:
the danger of prejudice to [other parties], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.
Pioneer, 507 U.S. at 395, 113 S.Ct. at 1498.
The question of prejudice to other parties lies at the heart of the dispute in this case. Since the defendants have a reversionary interest in the settlement funds, the exclusion of the valid late claims will substantially increase the funds returned to defendants from approximately $12 million to over $12.6 million.[2] While not an insubstantial sum, the $600,000 represents 1.4% of the maximum settlement amount that defendants agreed to pay.
Defendant KPMG Peat Marwick LLP argues that the Settlement makes absolutely no allowance for late claims; thus permitting late claimants now to participate in the Settlement would violated a negotiated term in the Settlement. See In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 144-45 (2d Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987) (a district court should generally not modify the terms of a settlement agreement except in limited circumstances). However, I cannot conclude, from a review of the record before me and the terms of Settlement, that the August 25, *845 1993 deadline is an integral part of the bargain. Other than stating that the deadline for submission shall be a date specified in the proof of claim, Paragraph 21(b) does not provide any guidance for determining the deadline. The form Proof of Claim attached as Exhibit 4 simply contains a blank where the date should be inserted. Paragraph 21(b) also permits the time period to be extended by the parties and bars class members who fail to file a timely claim "from receiving any payment from the Settlement Fund (except by Order of the Court)" (emphasis added). The anticipated flexibility in processing claims is also apparent in paragraph 21(d), which permits the Claims Administrator to give class members with deficient claims an opportunity to cure, apparently without regard to the submission deadline.
The only document directing a deadline for submission is the court's order of March 30, 1993, which set a date for the fairness hearing and required the deadline for submitting proofs of claim to be 90 days later. This order presumably was proposed by the parties in their joint application for approval of the Settlement, as required by paragraph 20, a submission made after entry into the Settlement. Viewed in the context of the Settlement agreement and proceedings in this case, defendant's claim of prejudice is reduced simply to a question of money, rather than reliance on the underlying negotiation process.
A second factor for consideration is the potential impact on judicial proceedings. Defendant KPMG argues, and courts have certainly agreed, that "a cutoff date is essential and at some point the matter must be terminated." In re Gypsum, 565 F.2d at 1127; see also In re Wirebound Boxes, 993 F.2d 152 (8th Cir.1993). While a bright line approach is appealing, judges in the Second Circuit generally have not considered the certainty afforded by a rigid rule to be of paramount importance. See Zients v. LaMorte, 459 F.2d at 629-30; Duban v. Diversified Mtg. Investors, 87 F.R.D. 33, 43 (S.D.N.Y.1980); In re Agent Orange Prod. Liab. Litig., 611 F.Supp. at 1417; see also In re SmithKline Beckman Corp. Secs. Litig., No. 88-7474, 1992 WL 111381, *1-2, 1992 U.S. Dist. LEXIS 6778, *3 (E.D.Pa. May 15, 1992) (Broderick, J.).
The submission of late claims has had little impact on judicial proceedings in this case, since much of the court's time has been taken up with other matters. Certainly, that is frequently the case in class actions involving a large number of members and complex issues. In fact, in the most recent edition of the Manual for Complex Litigation, there is an implicit recognition that late claims should ordinarily be considered in the administration of a settlement. Id. (Third Edition 1995) § 30.47 at 248 ("Adequate time should be allowed for late claims before any refund or other disposition of settlement funds occurs.").
The last two factors focus on the conduct and motive of the claimants. Good faith is not disputed, so the only issue is the reason given for tardiness. The persuasiveness of the reason may vary depending on the length of the delay. The various categories of explanations are discussed below and weighed against other pertinent factors.
Many of the late claimants, particularly the ones who mailed their proofs of claim within one month of the August 25, 1993 deadline, allege, inter alia, postal error in delivering the claim, a failure on the part of brokers to send the necessary information, problems in locating records, and simply being away. Since notice of approval of the Settlement was not sent until after June 11, 1993, the period between the notice and the August deadline fell during the summer months when people are more likely to be away on vacation, including brokers who may have originally received the notices for forwarding or who may have necessary information for completing proofs of claim.
The problem that claimants would have in submitting appropriate documentation with the proofs of claim was recognized in the Settlement, which provided allowance for "a reasonable time for deficiencies which are curable to be remedied." However, the Notice of Claim did not advise claimants of the right to cure and the importance of simply filing a claim within the original deadline, even if the claim were incomplete. Moreover, *846 there is no compelling reason for observing a strict deadline on the facts of this case. The equities weigh substantially in favor of leniency in allowing late claims, and, for these reasons, I recommend that all valid proofs of claim mailed on or before September 30, 1993 be allowed.
Defendant asks this Court to distinguish between institutional investors and non-institutional investors and hold institutional investors to a higher standard of conduct. Accordingly, I specifically address two claimants submitting claims by the September 30, 1993 extension date I recommend. M.D. Sass Investors Services ("M.D. Sass") filed sixteen claims (20150, 20152, 20153, 20154, 20157, 20157, 20159, 20160, 20161, 20164, 20165, 20167, 20168, 20169, 20170 and 20173) approximately two weeks late. M.D. Sass alleges that it was given an extension of time to file by Howard Sirota, Esq., plaintiff's counsel, and that it filed late due to a change in personnel and the large number of claims. While in some circumstances it may be appropriate to charge a professional investors' service, which should be familiar with the logistics of processing claims, with greater accountability than individual investors, such a rule in this context would serve to preclude all institutions from offering almost any explanation for delay, thereby eviscerating the "excusable neglect" standard as to them.[3] Also weighing in favor of allowing these claims is the fact that M.D. Sass would not directly bear the loss of a contrary ruling. Given the minimal delay and the personnel problems encountered in dealing with the large number of claims, the delay here is certainly excusable.
Similarly excusable are the seven claims filed by Society National Bank (20183, 20184, 20185, 20186, 20188, 20189, 20190) approximately three weeks late because it was in the process of merging with Ameritrust Company National Association. Since a merger is one of the most significant and uncommon events to affect businesses, neglect to file proofs of claim which are not part of a bank's ordinary functions is excusable.
A number of claimants stated that they were late because they did not timely receive the proofs of claim or know about the Settlement. This is understandable given the substantial length of time that elapsed between the start of the class period on September 13, 1984 and the time the Notice was sent out in April 1993. While the defendants are correct that they should not be charged with the onus of locating class members, that is a different matter from whether the failure of a class member to submit a timely claim because of a lack of notice constitutes "excusable neglect." Clearly it does under Pioneer. Most of the claimants in this category who filed well past the deadline seemed to be relatively unsophisticated investors whose small investments in Crazy Eddie securities represented significant amounts in their portfolios. Given the negligible prejudice to defendants with respect to these few claims, I recommend that all claims filed due to lack of notice be included. However, as a matter of judicial administration and fairness to all parties, even this concern for protecting class members must give way to finality. I therefore recommend that August 11, 1995 be the final deadline for acceptance of such proofs of claim and that all claims postmarked after that date be disallowed.
Last, I recommend that other late claims submitted after September 30, 1993 with explanations other than failure to receive notice be treated as follows. I recommend *847 that all claims mailed after September 30, 1993 where the claimant failed to submit a letter of explanation be disallowed since there is no way of determining whether the tardiness is due to "excusable neglect." Claims where the only excuse given was that the claimant was on vacation or was away for a short period of time around the filing deadline are disallowed unless the explanation indicates that the claimant was away for an extended period of time.
I also recommend that the following categories of claims be allowed since the reasons involve factors beyond the control of the claimant: (a) claims filed late because of a mistake in the mails or computer error (e.g., #20244, 20264, 20276 and 20290); (b) claims where it is alleged that the claim was filed on time but somehow lost (e.g., #20347, 20348, 20362 and 20363); (c) medical reasons (e.g., #20238, 20240, 20357 and 20394); (d) extenuating personal or business circumstances (e.g., #20245 and 20377); and (e) difficulty in obtaining documentation or other information from third parties (e.g., #20289, 20328).
Finally, I recommend that certain late claims be allowed where a combination of the above circumstances, including late notice, relocation, and difficulty in obtaining documentation, demonstrates that the claimant "set in motion" whatever was necessary to complete a proof of claim promptly after receipt of notice (e.g., #20388, 20231-20234, and 20293). Cf. In re Gypsum, 565 F.2d at 1128 (showing of efforts made prior to deadline constituted "good cause"). A critical factor in evaluating these explanations is the lateness of the claimthe later the claim, the greater the explanation required.
CONCLUSION
For the foregoing reasons, I recommend that the late claims be allowed or rejected according to the following schedule attached.
A copy of this Report and Recommendation is being mailed to the parties on this date. Any objections must be filed with the Clerk of the Court, with a copy to the undersigned, by August 28, 1995. Failure to file objections within the specified time waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Dated: Brooklyn, New York August 11, 1995
SCHEDULE OF ALLOWABLE LATE CLAIMS
CLAIM
NO. NAME POSTMARK
ALLOWED CLAIMS MAILED ON OR BEFORE SEPTEMBER 30, 1993
20001 HROVATIN DAVID R JUSTINA HROVATIN 19930826
20003 LAI CHUI H 19930826
20004 LILLY STUART M 19930826
20005 PACIFIC GAS & ELECTRIC 3719 METER & CO 19930826
20007 GREEN KIM A 19930825
20008 HOOSTE EDMUND A DOROTHY I HOOSTE 19930826
20009 FARKAS MICHEAL MARIA FARKAS 19930826
20010 FELDMAN DAVID BARBARA FELDMAN 19930826
20011 POPPAS PHILLIP H 19930826
20020 DILIS, JR PETER A ALICE DILIS 19930826
20021 CHEN TONY L 19930826
20023 GLUCK LISA 19930826
20024 C & S/SOVRAN CO UAW EMORY UNIV TRUST 19930826
20026 DANA ALEC C 19930826
20032 SILBERMAN ART 19930826
20033 FOREM JACK D 19930828
20034 ALVINO DANIEL W FLORENCE ALVINO 19930826
20036 GATES THOMAS W 19930827
20037 RADATZ, JR RICHARD R KATHY U RADATZ 19930826
20040 DAUB CATHERINE 19930826
20041 HEALION MARILYN RIRA BEAR STEARNS, CUST 19930828
20042 HEALION MICHAEL JIRA BEAR & STEARNS CO, CUST 19930828
20043 WOOLLACOTT DALLAS RIRA MERRILL LYNCH, CUST 19930826
20045 BROWN, JR CARLTON M VERLAINE S BROWN 19930827
*848
CLAIM
NO. NAME POSTMARK
20046 PIOTROWSKI RAYMOND P 19930827
20047 REIS ANNE L 19930828
20049 CAMPBELL JEFFREY L 19930827
20050 AGUILAR ROBERT
20051 BARTHOLOMEW KAREN A 19930826
20052 HESSENBRUCH JOHN 19930826
20054 STEIN PHILIP 19930827
20056 FELD JULIUS 19930827
20058 EMERSON DONALD LIRA DEAN WITTER, CUST. 19930827
20060 HUGGINS CLARENCE LIRA CHARLES SCHWAR, CUST 19930826
20061 PERITO PATRICIA A 19930827
20062 KRANS ADOLFO 19930827
20063 LOBELLO FRANCIS M 19930827
20065 COM OF PA STATE EMP SYSTEM RETIRE PNC BANK 19930826
20066 IDS TRUST 19930826
20067 ZDEP STANLEY J 19930827
20068 DEMBSKI HELEN G 19930826
20069 BLAU ROSE FAY BLAU 19930830
20070 NAMM MICHAEL 19930830
20071 PAMANI ASHOK 19930827
20072 BRANDES LOUIS 19930826
20073 KHATRI TULSI L 19930830
20075 TANZILLO JAMES V 19930827
20076 MACNEIL JOHN HIRA FIDELITY INVESTMENTS, CUST. 19930826
20077 TIERNAN JAMES F 19930831
20078 HOLT CAROLYN V 19930830
20080 MICHAELS CHARLOTTE SEYMOUR MICHAELS 19930831
20081 BROCK HELEN 19930831
20082 GREENBAUM MARTIN MARJORIE GREENBAUM 19930831
20083 TAKES WILLIAM MARY TAKES 19930831
20084 GELMAN MONEY PURCHASE PEN PL 19930901
20085 BRADLEY EUGENE EILEEN BRADLEY 19930831
20087 CONNER HERBERT J 19930830
20088 JAUW MONIQUE 19930830
20090 MOY EDWARD 19930830
20091 NUGENT MARY ELLEN 19930901
20092 MARGOLIES MARC S 19930826
20094 ASHE VICTOR H 19930831
20095 TURNER HERVE J 19930901
20096 SLADE ANDREW T 19930831
20098 KOBA ASSOC INC PLAN RETIRE 19930901
20099 ESTEFAN NABIL FADIA E ESTEFAN 19930831
20100 MONTELEONE JOSEPH P 19930830
20102 HUGHES BARBARA A 19930826
20103 CHAWLA VIRENDRA K 19930831
20108 PAVLATOS BOBBY JOYCE PAVLATOS 19930903
20110 FOSTER MICHAEL 19930901
20111 SAUNDERS HARRY EIRA MERRILL LYNCH, CUST 19930901
20112 REITER DONALD S 19930902
20113 GLOMSTAD GARY B KG ENTERPRISES 19930830
20114 WEISER SR. CHRIS A LUCILLE BARNEY 19930902
20117 REMCO AGENCY INC. TRST RETIRE 19930902
20118 NADERY GARY G
20119 URSCHEL CHARLES J ELISABETH H. URSCHEL 19930901
20121 CAMPANELLA JR. JOSEPH A 19930901
20122 LAGAIPA FRANK 19930903
20123 DEAN ROBERT IRA 19930902
20124 HABER IKE 19930902
20126 POLAK SHLOMO 19930903
20128 DUCHESNEAN LUC 19930906
20130 RINEHART KENNETH L 19930904
20131 KANTOR LEE 19930904
20133 BARNETT GLENN 19930830
20134 MILELLI MARIO M 19930907
20136 JOHNSTON EDWARD VESTATE 19930903
20137 KACZAK ROBERT JACQUELINE KACZAK 19930907
20140 SCHAUMAN RICHARD CUST KIMBERLY SCHAUMAN 19930908
20141 SCHAUMAN RICHARD CUST TODD L. SCHAUMAN 19930908
*849
CLAIM
NO. NAME POSTMARK
20142 CZEIZLER ALAN R GAYLE L. CZEIZLER 19930908
20143 CHENG KEITH CCUST ANTHONY M. CHENG 19930909
20144 IRIZARRY HECTOR 19930905
20145 BERNARDO FELIX 19930908
20146 SILVERMAN ROY EILEEN HATTON 19930908
20150 STAR INDUSTRIES MD SASS INVESTORS SVCS, IN
20151 BEACON LOOMS PENSION TRUST MD SASS INVESTORS SVCS INC 19930913
20152 SADINOFF JONATHAN MD SASS INVESTORS SVCS INC 19930913
20153 SADINOFF DANIEL SASS INVESTORS SVCS INC 19930913
20154 ASBESTOS WKERS LOCAL 32 PEN FD MD SASS INVESTORS SVCS INC 19930913
20157 WHITE WILLIAM P MD SASS INVESTORS SVCS INC 19930913
20159 KILBERG SELMA TRUST MD SASS INVESTORS SVCS INC 19930913
20160 KILBERG SELMA F MD SASS INVESTORS SCVS INC 19930913
20161 BOILERMAKERS-LOCAL 28 PENSION MD SASS ASSOCIATES INC. 19930913
20164 KILBERG THOMAS MD SASS INVESTORS SVCS INC 19930913
20165 BOILERMAKERS-LOCAL 28 WELFARE MD SASS ASSOCIATES INC. 19930913
20167 WHITE JEAN W MD SASS INVESTORS SCVS INC 19930913
20168 SADINOFF KENNETH MD SASS INVESTORS SCVS INC 19930913
20169 KILBERG JANE MD SASS INVESTORS SCVS INC 19930913
20170 KILBERG JAMES MD SASS INVESTORS SCVS INC 19930913
20173 SADINOFF CHILDREN M.D. SASS INVESTORS SERVICES 19930913
20174 GRUTMAN KENNETH L 19930911
20175 COOPER CHRIS 19930910
20176 PARIS MARVIN VIRGINIA PARIS 19930909
20178 BACHI JOSEPH BEATRICE BACHI 19930913
20180 WOOD RONALD L ROBERTA A. WOOD 19930910
20181 KOPPELMAN MURRAY 19930910
20183 SOCIETY NAT. BK SUCR BY MERGER AMERITRUST TTEE FOR ALLTEL COR 19930914
20184 SOCIETY NAT BK SUCC BY MERGER AMERITRUST TTEE FOR NACCO IND 19930914
20185 SOCIETY NATL BK SUCC BY MERGER AMERITRUST TTEE FOR LEASEWAY 19930908
20186 SOCIETY NAT. BK SUCC BY MERGER AMERTRUST TTEE U/A/W 19930908
20188 SOCIETY NAT BK SUCC BY MERGER AMERITRUST FIDUCIARY OF PERSON 19930908
20189 SOCIETY NAT. BK SUCC BY MERGER AMERITRUST FIDUCIARY FOR 19930908
20190 SOCIETY NAT BK SUCC BY MERGER AMERITRUST CUST FOR NAT. HEALT 19930908
20192 BARAGLIA THEODORE 19930908
20193 KOZUCH STEPHEN 19930913
20194 WALKER MARY ELLA 19930913
20196 DOMIAN SIDNEY L 19930910
20199 POWELL DENNIS 19930914
20201 PERRETTA LAWRENCE ROSEMARIE T PERRETTA 19930915
20202 TSAI ERIC P 19930914
20203 SALVANI KATHLEEN 19930916
20205 REPPUCCI BARBARA
20206 TEBELE CHARLES 19930914
20207 SKENAZY LEMORE VIRA CHARLES SCHWAB, CUST 19930915
20208 CASTRO CLAUDE ELSA D HAFT TIC 19930915
20210 PULVERMACHER ARCHIE R 19930903
20211 CONNELLY JAMES 19930909
20212 NASSIMI ALBERT
20213 CASOLARI BRUNO D 19930920
20215 WHITMAN ROBERT S 19930921
20216 GADZINSKI CHRISTINE 19930922
20218 KOSBERG SARANNE 19930927
20220 ROSS LAURENCE J 19930928
20221 KABBANI FALAK 19930920
20222 MOUNAJED RHAGDA 19930923
20223 PARRELLA MICHAEL J 19930927
20226 HUDAK THOMAS F DOROTHY A HUDAK 19930920
20235 SHERMA M.D. KAMLESH K 19930917
20239 SILVERMAN JOYCE IRVING SILVERMAN 19930918
20344 EFFECTENBELFGGING BV ENNIA 19930923
20263 PAPASTAMATIKS JOHN HARRIETT PAPASTAMATIKS 19930824
20264 LEBOFF SHELLEY 19930902
20313 DEAN ROBERT 19930902
20332 CAMPBELL JEFFREY LIRA FAHNESTOCK & CO., CUST. 19930827
20368 DENICKER WARREN 19930907
20372 STASSI JAMES TRUST LYNN E. BARBATO 19930908
20374 STASSI JAMES 19930908
*850
CLAIM
NO. NAME POSTMARK
20379 EMERSON DONALD L 19930827
20382 FOGEL ROBERT A DEPT OF MINERAL SCIENCES 19930826
CLAIMS ALLOWED DUE TO LACK OF NOTICE
20237 REUNIS RICHARD E JACQUELINE REUNIS 19931004
20242 FORMAN DARRYL 19931005
20243 ELLIOTT MICHAEL W DEBBIE S. ELLIOTT 19931011
20271 SALIS HERBERT N SANDRA SALIS 19931022
20279 SALIS LAURA HEIDI SALIS 19931027
20292 WEINBERG LENA 19931102
20296 TANZLER CLIFFORD E 19931008
20307 ROTROSEN SAMUEL 19931110
20322 WAXMAN JOANNE LIRA MOORE & SCHULEY, CUST 19931210
20323 LIVINGSTON PHILIP 19931210
20350 THARANI SHERIE CUST QOMIL THARANI 19931130
20353 PAGE REGINA M RICHARD C PAGE 19940211
20355 WANG TIEN S LOUISE L LI 19940219
20356 LI LOUISE JEN FU WANG 19940219
20378 DENNEHY MARY EIRA A G EDWARDS, CUST. 19940414
20380 HICKSON BILL 19940503
20381 WILMAR ASSOC, INC. H.S. DIE & ENGRL SALES INC. 19940503
20282 CHUNG ANTHONY 19931028
20383 SILPE DONALD LINDA SILPE 19940513
20387 WEBER RICHARD E 19940513
20389 CAPPUCCIO TONI A 19940503
20390 DUBITSKY DOUG 19940510
20392 HEMPHILL JANE M 19940512
20393 HEMPHILL JUDITH L 19940520
20401 SALTZMAN HERBERT TRUST FIRST TRUST NUEP., TTEE 19940622
20402 BOGERT TRUDY T 19940615
20403 MYERSON PAUL A 19940624
20404 ORLANDO JOHN 19940624
20411 PERLOW VALERIE 19940719
NOTES
[1] This standard apparently has been followed by several other courts. See Grace v. Detroit, 145 F.R.D. 413, 416 (E.D.Mich.1992) and cases cited therein.
[2] The amount of the Net Settlement Fund for payment to claimants is $25,800,000. By my calculations using the formulas in paragraph 18, if all the late claims are excluded, the authorized class claimants will receive approximately 5.68% of their recognized losses, for a total of approximately $13,100,000. If all the late claims are allowed, the authorized class claimants will receive approximately 5.71% of the their recognized losses for a total of approximately $13,750,000.
[3] Greater flexibility in treatment of claims irrespective of the status of the investor is warranted precisely because this action is brought as a class action on behalf of an estimated 50,000 members. Although counsel for the plaintiff class has attempted to address the concerns of individual class members in this motion, counsel's primary role has been to represent the class as a whole. None of the claimants has directly appeared in this action through counsel or otherwise, nor has any apparently retained counsel in this matter. Thus the higher standard of conduct expected of parties represented by counsel and, likewise, by institutions who in most other court proceedings would have counsel, should not be imposed here. Cf. Pioneer, 507 U.S. at ___, 113 S.Ct. at 1499; U.S. v. Hooper, 43 F.3d 26, 29 (2d Cir.1994) (attorney ignorance of rule not excusable where attorney represented client before the court in all prior proceedings): Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir. 1994).