In re Prudential Securities Inc. Ltd. Partnerships Litigation

164 F.R.D. 362, 1996 U.S. Dist. LEXIS 1060, 1996 WL 46742
District Court, S.D. New York·Decided February 1, 1996·No. MDL Docket No. 1005; M21-67 (MP)·Published·Cited by 31 cases

Opinion

[364]*364 OPINION

MILTON POLLACK, Senior District Judge:

Before the Court are various motions by Class Members for the Court to use its discretionary power under Fed.R.Civ.P. 6(b), 60(b) and 23(d) to allow them additional time to opt-out from the class and/or declare them excluded from the Class.1

Background

On April 14, 1994, the Judicial Panel on Multidistriet Litigation (“JPML”) entered an order transferring to this Court several class actions which arose out of the alleged fraudulent marketing and sale of limited Partnership interests by Prudential Securities Incorporated (“PSI” or “Prudential”).

On May 19, 1994, this Court entered an order which consolidated the Constituent Actions for pre-trial purposes and authorized the plaintiffs to serve a consolidated complaint.

On June 8,1994 plaintiffs served a detailed multi-volume Consolidated Complaint, which asserted numerous RICO claims, as well as state law claims. The Consolidated Complaint alleged that approximately 700 limited Partnerships were uniformly organized, marketed, sold and operated as part of a massive and continuing scheme to defraud investors. PSI and its co-sponsors allegedly marketed and sold the Partnerships as safe, conservative investments suitable for Individual Retirement Accounts, elderly and retired investors and those investors who sought safety of principal as a primary investment objective despite the known investment risks.

On December 20, 1994, in connection with a Motion to Dismiss Plaintiffs’ Consolidated Complaint, PSI submitted an extensive brief which included prospectuses and summaries of prospectuses, purporting to show that all of the risks of investment were disclosed. PSI argued that investors were on inquiry notice from the outset of their investments and that most claims were, therefore, time-barred. PSI also argued, inter alia, that the “bespeaks caution” doctrine required dismissal of the Consolidated Complaint. Among the legal issues raised by the various motions to dismiss and plaintiffs’ responses were: statute of limitations, equitable tolling, laches, the “bespeaks caution” doctrine and inquiry notice. These issues created risks on both sides of the litigation.

On October 21, 1993, the SEC had filed a complaint against PSI in the United States District Court for the District of Columbia, and simultaneously PSI consented to the entry of a final order by that court.

The final order in the SEC’s proceeding required PSI to pay compensatory damages for all valid claims presented through a court-supervised Claims Resolution Process. PSI consented, among other things, to pay $330 million to establish a fund (“The SEC Fund”) for the benefit of defrauded investors and to pay all additional claims in excess of the $330 million in the SEC Fund. The SEC Fund was placed under the general supervision of the United States District Court for the District of Columbia to be administered by its court-approved Claims Administrator.

The Claims Resolution Process had two parts. The first part of the process required eligible investors to submit claims directly to PSI. Pursuant to that process, PSI was obligated either to offer the claimant a monetary settlement or reject the claim. Investors who were not satisfied with PSI’s offers of compensation, or whose claims were rejected, had the option to pursue their legal rights in other forums. Alternatively, they could enter the second part of the process: the mandatory arbitration referred to as “EDAP” (Expedited Dispute Arbitration Procedure). Election to participate in and the results of the mandatory arbitration were to be final and binding on the parties. Investors who were members of previously certi[365]*365fied class actions were not permitted to participate in the SEC Fund.

As an essential feature of the SEC Claims Resolution Process, PSI agreed not to assert any statute of limitation defenses with respect to any claims submitted on behalf of eligible investors. This was a significant agreement in that many of the purchases involved went back 10 or more years from the date of the litigation. Even those investors who would be time-barred from bringing a securities action for compensatory damages in another forum were allowed to submit claims within the Claims Resolution Process, including the EDAP. However, investors who wished to avail themselves of the SEC Fund process had to fill out a detailed questionnaire and file it with PSI in the Claims Resolution Process on or before January 10, 1995.

While the SEC Claims Resolution Process provided a valuable and (because statute of limitations defenses were waived, although other defenses were not) virtually riskless means of recovery for many injured limited Partnership investors who had not previously settled with PSI or otherwise had their claims adjudicated, or who had had their claims against PSI previously dismissed solely on statute of limitations grounds, many investors chose not to participate. Some of the reasons suggested were that the personal information requested by PSI in order to determine a claimant’s suitability was viewed by some as a burdensome intrusion, and that others may have found the claim forms and procedure intimidating. Some investors were offered little or nothing in the way of compensation by PSI, which determined, under the Claims Administrator’s oversight, that these investors were sophisticated, that the investments were suitable or that the investor was otherwise undeserving of compensation. Some investors, faced with a choice between what they regarded as an unacceptably low offer from PSI and the prospect of possibly hiring counsel and proceeding to EDAP, simply declined to proceed. Other investors either failed to learn of the SEC Claims Resolution Process, or missed the deadline. Those limited partnership investors whose claims remained unresolved were included in the Settlement Class in MDL 1005 and were eligible participants in the Settlement with which we are involved herein if their claims were still extant after the SEC Claims Resolution Process (and any other settlements) had not terminated their claims. The Settlement in this case represented the only last ditch available remedy for claims which would not have any value but for the threat perceived by PSI to have resulted from plaintiffs’ counsel’s exceptional efforts to reach the Settlement herein.

On August 9, 1995, after several failed starts, the parties hereto finally negotiated remaining details and executed a Stipulation of Settlement which was the culmination of the negotiation process begun long before.

The Stipulation entered into on August 9, 1995, provided that the PSI Settling Defendants will pay $110 million into a Settlement Fund for the benefit of the Class. The Stipulation provided that the claims of all Class Members relating in any way to the marketing, purchase, sale, or holding of units, or other interests in, or to the operation, oversight, monitoring or management of any of the Partnerships, would be released and dismissed on the merits and with prejudice as against the PSI Settling Defendants and other Released Parties. The litigation was to continue against the Non-Settling Defendants.

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In re Prudential Securities Inc. Ltd. Partnerships Litigation, 164 F.R.D. 362, 1996 U.S. Dist. LEXIS 1060, 1996 WL 46742 (S.D.N.Y. 1996).

164 F.R.D. 362 (In re Prudential Securities Inc. Ltd. Partnerships Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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