In re Baldwin-United Corp.

105 F.R.D. 475, 1 Fed. R. Serv. 3d 1589, 1984 U.S. Dist. LEXIS 21691
CourtDistrict Court, S.D. New York
DecidedNovember 28, 1984
DocketMDL No. 581-CLB
StatusPublished
Cited by27 cases

This text of 105 F.R.D. 475 (In re Baldwin-United Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Baldwin-United Corp., 105 F.R.D. 475, 1 Fed. R. Serv. 3d 1589, 1984 U.S. Dist. LEXIS 21691 (S.D.N.Y. 1984).

Opinion

MEMORANDUM AND ORDER

[Motion for Tentative Class Certification for Purpose of Settlement Hearing, and Notice of Proposed Settlement]

BRIEANT, District Judge.

These consolidated cases, transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation on February 27, 1984, arise out of the sale by insurance company subsidiaries of Baldwin-United Corporation of certain contracts known to the Court as single premium deferred annuities (“SPDAs”). These SPDAs were issued principally between 1979 and May 1983 by National Investors Life Insurance Company, an Arkansas insurance corporation, and University Life Insurance Company of America, an Indiana insurance corporation. The annuities were sold to the public on a nation-wide basis through various broker-dealers and other entities.

In July 1983, the two issuing insurance companies, as well as four companies which reinsured the SPDAs in part, were placed in rehabilitation. The ultimate corporate parent of these six companies, Baldwin-United Corporation, entered bankruptcy proceedings pursuant to voluntary and involuntary petitions for reorganization filed on September 26, 1983. During 1983 and 1984 SPDA purchasers filed more than 90 federal civil actions alleging fraud and/or violations of the federal and state securities laws and other pendent state law claims. Finding that the initial forty actions' before it involved common questions of fact, the MDL Panel ordered that they be transferred to this district court for coordinated or consolidated pre-trial proceedings pursuant to 28 U.S.C. § 1407. In re Baldwin-United Corporation Litigation, No. 581, 581 F.Supp. 739 (J.P.J.L. 1984).

This Court held a pre-trial conference on April 3, 1984 and thereafter entered pre-trial orders approving the creation of a plaintiff’s steering committee and providing, among other things, for the filing of sepa[478]*478rate consolidated class complaints with respect to each of the unrelated broker-dealer defendants. Since that time, liaison counsel for plaintiffs and for defendants have been engaged actively in pursuing the litigation goals of the parties and have appeared frequently before the Court for coordination of pre-trial proceedings. Familiarity of the reader with all such prior proceedings is assumed.

A recent significant event with which the within motion is concerned is the filing beginning on September 21, 1984 of fourteen stipulations of settlement between plaintiffs and the defendants in fourteen of the actions (the “settling actions”). The parties to the proposed settlements now request the Court (1) to certify tentative or conditional classes solely for the purpose of considering the proposed settlement; (2) to conduct a fairness hearing on whether the proposed settlements should be approved; and (3) to order that notice of the hearing be sent to members of the proposed class and to resolve issues affecting the content of such notice.

Class Certification

Whether this Court should certify a conditional settlement class solely for purposes of approving or disapproving a settlement already formulated by the parties is a controversial issue. On one hand, the current edition of the Manual for Complex Litigation, § 1.46 (5th ed. 1982) (“Manual”), concludes that tentative classes for the purpose of settlement ordinarily should not be formed. Id. at 60. Similarly there is an apparent inconsistency between the language of Rule 23, F.R.Civ.P., and a mechanism whereby formal class certification would be bypassed until a date when first notice of the pendency of a class action and notice of a proposed settlement are sent simultaneously to prospective class members. In re Franklin National Bank Securities Litigation, 574 F.2d 662, 671-72, n. 6, modified, 599 F.2d 1109 (2d Cir.1978). Since Rule 23(c) requires that class certification take place “as soon as practicable after the commencement of an action,” the practice of bypassing pre-set-tlement formal class certification is a subject of concern.1 On the other hand, many courts have employed this practice in the name of judicial efficiency in order to facilitate apparently beneficial settlement proposals.2

For the reasons set forth below, this Court finds that under the circumstances of the cases at bar, tentative class certification for settlement purposes only is appropriate at this time and is in the interests of Justice.

The current edition of the Manual lists nine policy reasons in support of its conclusion that settlement classes ought not be certified:

“(1) Rule 23 does not expressly authorize formation of tentative classes for the purpose of settlement. (2) There usually can be no assurance that the class members will be adequately represented in the settlement negotiations until the court makes the findings, which are a condition precedent to the formation of a [479]*479class, after an opportunity for an eviden-tiary hearing. Formation of a tentative class for the purpose of settlement, with a requirement that the class members accept the settlement or opt out and. litigate independently, might deny the members of the class the opportunity to show the inadequacy of the representation of the class by the representative party or parties agreeing to the settlement and their counsel. (3) The appropriate membership of the class and the identity of the members ordinarily should not be determined in the absence of an opportunity for hearing and judicial findings of fact and conclusions of law. Nor can there usually be any assurance that the tentative class will be composed of members without conflicting interests. Absent such findings and conclusions, it may be difficult to determine how many members there are in a class, who they are, the aggregate of claims of all members of the class, the amount of the individual claim of each member in relation to the total claims of all members of the class and, therefore, the amount of money that will be payable to each member of the class. This information would seem to be essential for a member to make any rational choice between whether to remain in the class and accept the benefits of the settlement or to opt out. (4) If the information relevant to liability, damages, and the expenses of preparation for trial and of trial is not developed, there usually cannot be a fair recognition in settlement negotiations of the potential liability of the party or parties opposing the class and the potential damages that might be recovered for the class. (5) Formation of a tentative class for the purpose of settlement preempts determination of the question whether the claim for relief should be litigated for the members of the class or should be the subject of further pretrial preparation, with a view toward securing a better settlement or a trial on the merits. It also preempts the question of which parties and counsel should represent the tentative class, since there must be an unofficially negotiated earlier settlement for the purpose of the formation of the tentative class. (6) The formation of a tentative class for the purpose of settlement denies the class member the choice, contemplated by amended Rule 23, to become a member of the proposed class for the purpose of litigation, with adequate representation as a member of litigating class.

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Bluebook (online)
105 F.R.D. 475, 1 Fed. R. Serv. 3d 1589, 1984 U.S. Dist. LEXIS 21691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-baldwin-united-corp-nysd-1984.