In re Citigroup Inc. Securities Litigation

199 F. Supp. 3d 845, 2016 U.S. Dist. LEXIS 105106, 2016 WL 4198194
CourtDistrict Court, S.D. New York
DecidedAugust 9, 2016
Docket07-Cv-9901 (SHS)
StatusPublished
Cited by9 cases

This text of 199 F. Supp. 3d 845 (In re Citigroup Inc. Securities Litigation) 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 Citigroup Inc. Securities Litigation, 199 F. Supp. 3d 845, 2016 U.S. Dist. LEXIS 105106, 2016 WL 4198194 (S.D.N.Y. 2016).

Opinion

[846]*846OPINION

SIDNEY H. STEIN, United States District Judge.

This securities fraud class action arose out of last decade’s great recession. The action was litigated vigorously over the course of several years by experienced and skilled counsel. The parties ultimately entered into a settlement agreement that provided principally for the class members to receive $590 million. Essentially all of that has already been distributed and the Court recently granted lead plaintiffs’ motion for final distribution of the settlement fund, including $374,820 to three not-for-profit cy pres designees.

Class member Theodore H. Frank has now moved for reconsideration of this Court’s order granting lead plaintiffs’ motion for final distribution of the settlement funds and cy pres designation. The Court grants the motion to reconsider and upon reconsideration adheres to its earlier decision on the grounds that the three entities selected by lead counsel are appropriate cy pres designees.

I. Background

Plaintiffs are current and former Citigroup shareholders who brought a number of securities fraud actions on behalf of a class of Citigroup investors against Citigroup and fourteen of its officials. In re Citigroup Sec. Litig., 753 F.Supp.2d 206, 212 (S.D.N.Y.2010). The actions were consolidated and the consolidated class action complaint charged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Id. In essence, plaintiffs claimed that Citigroup “knowingly understated the risks it faced and overstated the value of the assets it possessed” with regard to its exposure to various financial instruments prevalent prior to the financial crisis. Id. Plaintiffs claimed they suffered serious damage “when the truth about Citigroup’s assets was finally revealed.” Id.

After several years of active litigation, the parties settled them claims, and the Court approved the settlement agreement in 2013. In re Citigroup Inc. Sec. Litig., 965 F.Supp.2d 369, 385 (S.D.N.Y.2013). As part of the settlement, defendants agreed to create a fund of $590 million to compensate the class as well as to pay the costs and attorneys’ fees incurred in maintaining the action. (Stip. & Agreement of Settlement, Ex. 1 to Deck of Ira M. Press dated Aug. 29, 2012 at 12, Dkt. No. 155.) The settlement agreement established that a plan to distribute the $590 million to the class would be submitted to the Court at a later date. (Id. at 25.) The agreement also set forth what the parties were to do with any unclaimed funds:

In the event that Lead Counsel determines that further redistribution of any balance remaining ... is no longer feasible, thereafter Lead Counsel shall donate the remaining funds, if any, to a non-sectarian charitable organization(s) certified under the United States Inter[847]*847nal Revenue Code § 501(c)(3), to be designated by Lead Counsel and approved by the Court.

(Id, at 26.) The parties thus agreed that, even when it was “no longer feasible” to distribute remaining funds to the class, no funds would revert to Citigroup but would rather be donated to one or more nonsectarian, not-for-profit organizations. .•

When the Court preliminarily approved the settlement agreement, it authorized lead counsel to retain Garden City Group, Inc., (“GCG”) to administer the settlement fund. (Order dated Aug. 29, 2012 at 5, Dkt. No. 156.) GCG subsequently distributed $483,091,186.61 to 258,524 claimants. (Aff. of Stephen J. Cirami dated Jan. 20, 2016, ¶ 3, Dkt. No. 376.) See In re Citigroup Inc. Sec. Litig., No. 07-cv-9901, 2014 WL 2445714 (S.D.N.Y. May 30, 2014). An additional $611,840.77 was distributed to 61 claimants in late 2014. (Cirami Aff. ¶ 5; Order Authorizing Distribution of the Reserve Fund dated Dec.' 29, 2014, Dkt. No. 365.) After these distributions, GCG worked diligently, as the settlement agreement required, to ensure distribution checks would be cashed, including “imple-mentpng] a calling campaign to follow up with Authorized Claimants whose checks were initially uncashed.” (Cirami Aff, ¶ 6.) If needed, GCG reissued checks to ensure claimants would receive their due. (Id. at ¶ 7.)

As of July 2015, some $27 million remained in the settlement fund. (Id. ¶ 8.) Consequently, GCG made a second distribution of $26,779,189.30 to 55,345 claimants. (Id. ¶ 10.) Essentially all of those checks were cashed. (Id. at ¶ 12.) After this distribution, some $735,780 remained in the fund, though a large percentage of that remainder was designated for “estimated administrative fees and expenses.” (Id, at ¶ 13.)

On February 5, 2016, class counsel notified the Court that $374,820 designated for the class remained undistributed in the settlement fund, that it was no longer feasible to make further distributions, and that further efforts to do so would not be effective. (Cirami Aff. ¶¶ 16-17; Deck of Peter S. Linden dated Feb. 5, 2016, Dkt. No. 375.) The $374,820 constitutes 0.064 percent of the original $590 million fund. Lead plaintiffs designated three nonprofit organizations to receive the remaining funds: South Brooklyn Legal Services; the National Consumers League; and the Consumer Federation of America. (Linden Deck ¶4.) In February 2016, the Court granted lead plaintiffs’ motion. (Order dated Feb. 16, 2016, Dkt. No. 377.)

Three days later, Frank moved the Court to reconsider its determination. Frank is a Senior Attorney with the Competitive Enterprise Institute—an organization that states is “dedicated to advancing the principles of limited government, free enterprise, and individual liberty”1—and the Director of the Center for Class Action Fairness, which sets forth on its website that it “represents class members against unfair class action procedures and settlements.”2 Ted Frank, Competitive Enterprise Institute, https://cei.org/content/ted-frank (last visited Aug. 8, 2016), He is also a class member in this litigation, (Deck of Theodore H. Frank dated Dec. 20, 2012 ¶3, Dkt. No. 182; Stip. & Agreement of Settlement, Ex. 1 to Press Deck at 12), and participated in the settlement approval process, objecting vigorously to counsel’s request for fees and expenses. See In re Citigroup Inc. Sec. Litig., 965 F.Supp.2d [848]*848at 379. Neither Frank nor any other class member objected to the cy pres procedure set forth in the settlement agreement.

Shortly after receiving Frank’s motion to reconsider, the Court stayed its February 16 order granting the cy pres distribution; (Order dated March 21, 2016, Dkt. No. 383), and, to the Court’s knowledge, none of the residual funds have been distributed to the three proposed nonprofit donees. No one contests that it is no longer “feasible” to distribute the remaining settlement funds to class members nor does anyone dispute that the distribution of funds to one or more cy pres designees is now appropriate. The parties disagree solely as to whom those funds should be distributed.

II. Discussion

Pursuant to the parties’ settlement agreement, lead plaintiffs seek to donate the remaining $374,820 of the $590,000,000 settlement fund to three nonprofit desig-nees. The donation of residual settlement funds is often referred to as a “cy pres”

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199 F. Supp. 3d 845, 2016 U.S. Dist. LEXIS 105106, 2016 WL 4198194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-citigroup-inc-securities-litigation-nysd-2016.