Savoie v. Merchants Bank

166 F.3d 456, 1999 WL 35172
Court of Appeals for the Second Circuit·Decided January 28, 1999·No. Nos. 171, 356, Dockets 97-9032, 97-9414·Published·Cited by 39 cases

Opinion

JACOBS, Circuit Judge:

In this putative class action, filed in 1994, plaintiff Leon Savoie1 sued defendants Merchants Bank and various related entities (collectively, “Merchants”) in connection with their ruinous investment of customer funds in the Piper Jaffray Institutional Government Income Portfolio (“Piper Fund”). Shortly after commencement of suit, Merchants paid $9.2 million to reimburse customers for their losses in the Piper Fund investment. In an order that the defendants have not appealed, the United States District Court for the District of Vermont (Murtha, Ch. J.) concluded that Savoie’s counsel was entitled to attorneys’ fees because the suit was a substantial cause of Merchants’ $9.2 million payment. On appeal, Savoie contends that the district court erred by (1) calculating the $98,605.62 fee award according to the lodestar method rather than as a percentage of the fund; (2) declining to award fees for the period following Merchants’ announcement that the $9.2 million payment would be made; (3) determining that one of the lawyers was entitled to an hourly rate of $200 per hour; and (4) refusing to award interest on the award. Savoie also contends that the clerk of the court for the District of Vermont erred by entering judgment dismissing the action “with prejudice” when, in ordering the entry of judgment, the district court stated only that dismissal was warranted because the action is moot. Merchants cross-appeals from the dismissal of its motion to add new plaintiffs.

We affirm in all respects except that we remand to correct the judgment, which the clerk of court should not have entered “with prejudice.”

BACKGROUND

In 1993, Merchants invested money it held in trust for its customers in shares of the Piper Fund. After the investment suffered substantial losses, Savoie — one of Merchants’ customers — filed this action against Merchants, alleging that, by investing in the Piper Fund, Merchants had, inter alia, violated federal securities laws and the Racketeer Influenced and Corrupt Organizations Act.2 Savoie’s complaint was filed on October 25, 1994. On November 28, 1994, Merchants announced that it intended to pay its customers $9.2 million in an effort to restore the losses they sustained as a result of Merchants’ investment in the Piper Fund. Merchants maintained, however, that the payment was not being made in settlement of Savoie’s class action. Rather, according to Merchants, the reimbursement of its customers was prompted by its business decision to “restore trust and confidence” in Merchants.

After the announcement, Savoie promptly asked the district court to order Merchants to place $500,000 of the $9.2 million in escrow to assure that funds would be available if the court were later to determine that the lawsuit was a substantial cause of the $9.2 million payment and that Savoie therefore was entitled to an award of attorneys’ fees. Magistrate Judge Jerome J. Neidermeier conducted a hearing, and on December 16, 1994 recommended that the district court grant Savoie’s request for injunctive relief.

On January 3, 1995, Merchants filed an objection to the recommendation, advising the district court that the issue was moot because — after the recommendation was issued — Merchants disbursed all of the promised $9.2 million to the members of the class. Judge T.F. Gilroy Daly — a judge of the District of Connecticut who was sitting by designation in Vermont and had temporary responsibility for the action — summoned the parties to an emergency status conference at which the judge expressed displeasure with Merchants for “unilaterally disobey[ing] and disregard[ing]” Magistrate Judge Neidermeier’s recommendation, and ordered Merchants to place $500,000 in escrow by noon the [459]*459following day. In a later order, Judge Daly adopted Magistrate Judge Neidermeier’s conclusion that Savoie was entitled to injunc-tive relief.

On May 9,1996, this Court affirmed Judge Daly’s adoption of Magistrate Judge Neider-meier’s recommendation. See Savoie v. Merchants Bank, 84 F.3d 52 (2d Cir.1996) (“Sa-voie I”). We acknowledged that a party that has secured a benefit on behalf of itself and others is entitled to recover costs, including attorneys’ fees, from the common fund, see id. at 56; reasoned that the district court’s preliminary injunction would have been affirmable if it had been issued before the distribution of the $9.2 million, see id. at 58; and concluded that no different result was required by the fact that Merchants distributed the money “after the injunction was sought and recommended by the Magistrate Judge but before it was ordered by the District Court,” id. at 58, 60. We therefore affirmed entry of preliminary relief and remanded for a determination as to whether Savoie’s lawsuit was a substantial cause of the $9.2 million payment, in which case Sa-voie would be entitled to an award of fees. See id. at 60-61.

During the pendency of the Vermont litigation, a federal securities class action suit against Piper Jaffray, Inc. was commenced by Piper Fund shareholders in the United States District Court for the District of Minnesota. When the Piper litigation settled, Merchants — one of the plaintiffs — announced that, having already reimbursed its own customers by its $9.2 million payment, it intended to keep its award under the settlement.

In November of 1995, Savoie, acting on his own behalf and on behalf of those who purchased shares in the Piper Fund through Merchants, appeared in Minnesota and objected to the proposed Piper settlement on the ground that Merchants’ $9.2 million payment had not made its customers whole, and that the proceeds of the Piper settlement should be paid directly to Merchants’ customers rather than to Merchants itself. In August 1996, five additional Merchants customers — also represented by Savoie’s counsel-joined in Savoie’s objection.

Merchants responded to the objections of the additional five customers by moving to join them in the Vermont litigation. Magistrate Judge Neidermeier recommended that the joinder motion be denied, and Chief Judge Murtha adopted that recommendation.

On February 18,1997, the district court in Minnesota entered its final order in the Piper litigation, ruling that the Piper settlement proceeds were properly paid to Merchants, that Merchants however would receive the money in its capacity as its customers’ trustee, and that the court would decline to exercise jurisdiction over the question of who, under “state law of trusts and breach of fiduciary duty,” would ultimately keep the money — Merchants or its customers. Savoie and the five other objectors appealed, and the Eighth Circuit affirmed. See In re Piper Funds, Inc. Institutional Gov’t Income Portfolio Litig., No. 97-2132, 1998 WL 413986, at *1 (8th Cir. July 24, 1998) (per curiam).

Magistrate Judge Neidermeier issued a Report and Recommendation in March 1997, concluding (after a hearing) that “the Savoie lawsuit was a cause, and a substantial cause, of the payment of the funds.” Magistrate Judge Neidermeier recommended that the district court award Savoie attorneys’ fees in the amount of 5.5 percent of the fund, plus interest accrued during escrow.

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Savoie v. Merchants Bank, 166 F.3d 456, 1999 WL 35172 (2d Cir. 1999).

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