Drexel Burnham Lambert Group Inc. v. Identified on Schedule 1 (In re Drexel Burnham Lambert Group Inc.)

995 F.2d 1138, 1993 U.S. App. LEXIS 12445
CourtCourt of Appeals for the Second Circuit
DecidedMay 26, 1993
DocketNos. 317-319, Docket 92-5032, 92-5034, 92-5036
StatusPublished
Cited by23 cases

This text of 995 F.2d 1138 (Drexel Burnham Lambert Group Inc. v. Identified on Schedule 1 (In re Drexel Burnham Lambert Group Inc.)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drexel Burnham Lambert Group Inc. v. Identified on Schedule 1 (In re Drexel Burnham Lambert Group Inc.), 995 F.2d 1138, 1993 U.S. App. LEXIS 12445 (2d Cir. 1993).

Opinion

CARDAMONE, Circuit Judge:

This appeal concerns a $1.3 billion global settlement of civil claims that arose as a result of Michael Milken’s illicit activities as head of Drexel Burnham Lambert Group’s High Yield and Convertible Bond Department. Milken, who pioneered the use of low-grade, high-yield junk bonds to finance takeovers and leveraged buyouts while serving as head of Drexel’s junk bond group, had his office in Beverly Hills, California, far removed from and independent of Drexel’s New York City headquarters. He became the leading disciple of the theory that sheer greed is what drives our national securities markets, and along the way created an enormous cash cow that yielded him monopoly profits in the hundreds of millions of dollars — $500 million, reportedly, in a single year.

The violations of the securities laws that led to Milken’s meteoric rise to fame and his inevitable downfall are not the subject of this writing, although the settlement resulting from that fall is the subject of this appeal. Suffice it to say that while acting as a market professional Milken sought to exclude competition from the high-yield junk bond market and as a result of his control over entry to that market extracted monopoly profits from it illegally. Geographically removed from governance by the Drexel firm, and acting as principal, not as an agent, Milken fed securities into investment partnerships he controlled (not telling the issuers or sponsors) thereby earning vastly greater returns than he would have earned were he acting simply as an investment banker. In this display of avarice, Milken plainly thought of money and of his own gain first, leaving integrity and his clients’ interests a distant second. Such conduct contravened the fundamental notion that public securities markets are governed by principles of “fair and honest” dealing and should be “free and open” to competition. The proof of Milken’s guilt was strong enough to force him to plead guilty in April 1990 to six serious felony charges including conspiracy to violate federal securities laws, securities fraud, mail fraud, and filing false tax returns. In conjunction with his guilty plea Milken agreed to pay a $200 million criminal fine and to establish a $400 million civil restitution fund with the Securities and Exchange Commission (SEC).

The global settlement before us involves hundreds of private parties, including Milken’s former employer, the now bankrupt Drexel Burnham Lambert. In an order entered March 10, 1992, Senior Judge Milton Pollack of the United States District Court for the Southern District of New York approved Drexel’s participation in this agreement and certified Milken’s entitlement to a release from any further liability to those who participated in the settlement. Gemini Overseas Corp., Commercial Union Assurance Co., Pic., and three limited partnerships (collectively, Gemini Group or appellants) contend the district court’s order approving the settlement was issued without proper notice or a hearing, violates the terms of the $400 million SEC restitution fund and the final judgment embodying it, and represents an abuse of the court’s discretion.

FACTS

A. Drexel Burnham Bankruptcy

The events surrounding Michael Milken and his employer Drexel Burnham are well-documented, widely known, and need not be repeated in detail. We recount only those facts essential to understanding the instant appeal.

In February 1990 Drexel Burnham filed a voluntary petition for Chapter 11 bankruptcy relief. Over 15,000 parties immediately filed claims against the estate, some 850 of which arose out of Drexel Burnham’s actions in buying, selling, and underwriting securities. To encourage settlement of these claims the district court withdrew them from the bankruptcy court’s jurisdiction pursuant to 28 U.S.C. § 157(d). In March 1991, after months of round-the-clock negotiations, the securities claimants reached a complex agreement with Drexel Burnham known as [1142]*1142the Securities Litigation Claims Settlement Agreement (Drexel Burnham-SLC Agreement), which we approved in In re Drexel Burnham Lambert Group, Inc. (Drexel I), 960 F.2d 285, 293 (2d Cir.1992), cert. dis-missedi — U.S. -, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993). Its provisions were incorporated in Drexel Burnham’s bankruptcy reorganization plan.

For purposes of later discussion we mention two central elements of the Agreement: the so-called Pooling Arrangement and the Injunction-Release provisions. The Pooling Arrangement required that Drexel Burnham and a sub-class of its securities claimants “pool” their recovery from lawsuits brought by Drexel 'Burnham against its former directors and officers. See id. at 288-89. Among claims subject to such pooling were causes of action against Michael Milken and certain related parties. The Federal Deposit Insurance Company (FDIC), the Resolution Trust Company (RTC), and a law firm representing Drexel Burnham shareholders were named Pool Administrators, with responsibility for deciding how best to pursue or settle these claims. Drexel Burnham and the Pool Administrators are the appellees on this appeal.

The Injunction-Release provision stated that individuals settling with the Pool Administrators would be released from liability to all parties to the Drexel Burnham-SLC Agreement. Persons and entities benefiting from this release are referred to as Identified Settling Parties. This provision, which covers claims brought after May 3,1991, was found in Drexel I to be “a key component” of the Drexel Burnham-SLC Agreement because it allows directors and officers to settle suits with Pool Administrators “without fear that future suits will be filed” by other Drex-el Burnham-SLC parties. Id. at 293.

B. SEC Disgorgement Fund

On April 24, 1990 Milken plead guilty, as noted, to the six-count information and was sentenced to a ten-year prison term. At the same time he settled a civil action brought against him by the SEC. Under the terms of his plea and settlement, he agreed, as earlier stated, to pay a $200 million criminal fine and to establish a $400 million civil claim fund that was called the SEC Disgorgement Fund.

This Disgorgement Fund was set up to compensate private parties with claims against Milken arising out of his illicit activities at Drexel. The assets of the fund, minus certain administrative expenses, are to be distributed pursuant to a plan or plans proposed by the SEC and approved by the district court, or to parties making “valid claims” against Milken. Milken may make application to the court for payment of such valid claims, which are defined in the judgment establishing the Disgorgement Fund as claims arising out of a) bona fide final judgments against Milken; b) bona fide court approved settlements with Milken; and c) agreements reached in good faith to settle “any bona fide claim for compensatory damages ... arising out of Drexel-related Activities.” Milken retains the right to pay out these valid claims “in connection with a joint settlement with Drexel.”

The establishment of the SEC Disgorgement Fund was not intended to limit Milken’s liability to injured persons, and distributions from the fund are not conditioned on the claimants’ release of Milken from liability.

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Bluebook (online)
995 F.2d 1138, 1993 U.S. App. LEXIS 12445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drexel-burnham-lambert-group-inc-v-identified-on-schedule-1-in-re-drexel-ca2-1993.