In re Foundation for New Era Philanthropy Litigation

175 F.R.D. 202, 39 Fed. R. Serv. 3d 1070, 1997 U.S. Dist. LEXIS 12373, 1997 WL 490645
CourtDistrict Court, E.D. Pennsylvania
DecidedAugust 13, 1997
DocketMDL 1127. Civil Action Nos. 96-7035, 96-3554, 96-4271
StatusPublished
Cited by4 cases

This text of 175 F.R.D. 202 (In re Foundation for New Era Philanthropy Litigation) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Foundation for New Era Philanthropy Litigation, 175 F.R.D. 202, 39 Fed. R. Serv. 3d 1070, 1997 U.S. Dist. LEXIS 12373, 1997 WL 490645 (E.D. Pa. 1997).

Opinion

MEMORANDUM

DALZELL, District Judge.

The parties in this multidistrict litigation have moved for approval of a proposed settlement agreement resolving these cases, which arose out of the collapse of the ill-fated Foundation for New Era Philanthropy (“New Era”).

Plaintiffs Rescue Mission Alliance of Syracuse, Inc., Sacred Works, Inc., and Wesley Skinner (collectively, the “Class Representatives”) and defendant Prudential Securities Incorporated (“PSI”) in Civil Action No. 96-7035 (the “Action”), together with other parties in litigation against PSI also concerning New Era, on June 9, 1997 entered into a settlement agreement that memorializes an agreement reached in principle in November of 1996.1 We shall in this Memorandum, and in our Order and Final Judgment, adopt through our use of capitalized terms the meanings ascribed to those terms in the Settlement Agreement filed of record.

The Class Representatives filed the Action on behalf of a class of claimants, and the proposed settlement embodied in the Settlement Agreement (the “Settlement”) contemplates certification of a mandatory settlement class. Accordingly, the Class Settlement Parties have filed a motion for (1) final approval of the Settlement, (2) final certification of the mandatory Settlement Class, (3) a declaration that the Class Settlement Notice [204]*204was fair, reasonable and adequate under the circumstances, and (4) dismissal with prejudice of the Action.

On August 12, 1997, we held a hearing, after notice to all members of the Settlement Class, regarding the motion. We have carefully reviewed and considered the motion and supporting documents, including the uncontested declaration of Robert D. Greenbaum (“Greenbaum Decl.”). It is important to note that no objections have been filed or voiced to the Settlement Agreement or to the certification of the Settlement Class as a Mandatory Class, either with this Court or with the United States Bankruptcy Court for the Eastern District of Pennsylvania (“Bankruptcy Court”), which is presiding over the bankruptcy case of New Era under Chapter 7 of the United States Bankruptcy Code (the “Bankruptcy Case”) and has jurisdiction over certain aspects of this settlement.

On July 24, 1997, Judge Bruce Fox of the Bankruptcy Court held an evidentiary hearing concerning the motion to approve the Settlement Agreement and approved the Settlement Agreement.2 Judge Fox was required to examine the Settlement in light of many of the same standards we must apply. See In re Martin, 91 F.3d 389, 393 (3d Cir.1996). Judge Fox found that the Trustee had appropriately exercised his fiduciary duties to all the creditors in the Bankruptcy Case, and that the Settlement was within the range of reasonableness from the standpoint of the Bankruptcy Estate as Martin requires, 91 F.3d at 394. See Judge Fox’s Order of July 29, 1997 in the Bankruptcy Case, which is now final. The creditors of the Bankruptcy Estate in the Bankruptcy Case include members of the Settlement Class.

The Settlement Agreement provides for the class settlement proceeds to be distributed through the Bankruptcy Estate in an equitable manner based on (a) the extent to which members of the Settlement Class have allowed claims in the Bankruptcy Case, (b) the priorities established by law under the Bankruptcy Code, and (c) the previously-negotiated agreement of most members of the Settlement Class with respect to claims in the Bankruptcy Case as reflected in the Group Settlement. All injured parties thus enjoy an opportunity to obtain a fair, reasonable recovery without the confusion, inconsistency, expense, delay and potential for unfairness presented in fragmented or individualized settlement discussions and negotiations, or in continued individualized litigation.

Although the Supreme Court in Amchem Products, Inc. v. Windsor, — U.S.—, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), recently rejected the settlement class in that case, the principles announced therein support certification of the mandatory Settlement Class here. Among other things, Amchem clarified Third Circuit precedent to the extent those decisions suggested that the requirements for class certification must be analyzed without taking into account the proposed settlement. The Supreme Court in Amchem instead held that “settlement is relevant to a class certification”, Op. at-, 117 S.Ct. at 2247, for the reason that amicable resolution means “there [will] be no trial”, id.. The absence of a trial obviates the need to canvass trial management issues under Fed. R.Civ.P. 23(b)(3)(D), which would have been a concern here given the wide variety of contact, or lack of it, with PSI by individual Settlement Class members.

In Amchem, the Supreme Court determined that a proposed opt-out settlement class involving current and future personal injury claims did not satisfy the requirements of Rule 23. That class included claimants who had manifested numerous varying forms of asbestos-related injury, as well as people who had not yet manifested any injuries at all (“exposure-only future claimants”). The named Amchem representatives included no such exposure-only future claimants and there were no proposed subclasses. Most importantly, the proposed settlement provided less favorable economic terms to exposure-only future claimants than to present claimants, and a number of class mem[205]*205bers objected to the proposed settlement .and class certification. The Supreme Court expressed great concern with the inescapable reality that notice could not effectually be given to the exposure-only future claimants. Amchem, at---, 117 S.Ct. at 2249-52.

None of these concerns applies here. Indeed, these same factors support certification of this Settlement Class. Unlike Amchem, the claims here are exclusively for economic injury, as a result of money lost through New Era’s alleged operation of a Ponzi scheme. Moreover, the amended class complaint alleges securities fraud, a type of claim that Amchem noted “readily met” the requirement for predominance of common questions. Amchem, at -, 117 S.Ct. at 2250.

Class counsel here implemented an all-encompassing notice program. In fact, the notice provided went beyond the requirements of our preliminary order and included notice not only by individual mail and publication in The Chronicle of Philanthropy (whose most recently reported circulation is to 38,016 of the relevant community), but also published notice in The Wall Street Journal (circulation 1,841,188)3. This Settlement Class does not include any future claimants, and no concerns are implicated regarding the adequacy of notice to a class of future claimants.

We have carefully considered the factors our Court of Appeals enunciated in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975) and In re General Motors Corp. PickUp Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768 (3d Cir.), cert. denied sub nom. General Motors Corp. v. French, — U.S. —, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995).

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175 F.R.D. 202, 39 Fed. R. Serv. 3d 1070, 1997 U.S. Dist. LEXIS 12373, 1997 WL 490645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-foundation-for-new-era-philanthropy-litigation-paed-1997.