Subclasses I, II, III v. Fox & Co.

794 F.2d 318, 1986 U.S. App. LEXIS 26069
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 11, 1986
DocketNos. 85-5425, 86-5012
StatusPublished
Cited by1 cases

This text of 794 F.2d 318 (Subclasses I, II, III v. Fox & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Subclasses I, II, III v. Fox & Co., 794 F.2d 318, 1986 U.S. App. LEXIS 26069 (8th Cir. 1986).

Opinion

ARNOLD, Circuit Judge.

This is an appeal from orders of the District Court1 approving a series of settlements made in the Flight Transportation Corporation class-action securities litigation. We hold that the District Court did not abuse its discretion, that it committed no error of law, and that its findings of fact are not clearly erroneous. We therefore affirm.

The background facts are given in our previous opinion, In re Flight Transportation Corp. Securities Litigation, 730 F.2d 1128 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985). There, we affirmed with some modifications an order of the District Court approving the “Sharing Agreement,” a document which provides for the distribution of money among the creditors and securities holders of Flight Transportation Corporation (FTC), which is in bankruptcy. FTC’s securities holders were certified as a class, and [319]*319this class was divided into five subclasses. Subclass IV, members of which are appellants before us in the present appeal, consisted of purchasers of FTC units, including debentures and stock warrants, under a registration statement dated June 4, 1982. We shall refer to this subclass as Unithold-ers.

After approval of the Sharing Agreement as modified, the FTC-related litigation proceeded in the District Court. The focus of the litigation, as our previous opinion explains, is a charge of fraud or culpable negligence against FTC and others in connection with certain of FTC’s securities issues. Vigorous efforts were made to settle remaining claims against groups of defendants. Before us in the present case are proposed settlement agreements between the plaintiffs and five defendants or groups of defendants: (1) Alexander & Alexander, Inc., Alexander & Alexander Services, Inc. (FTC’s aircraft insurance carrier), Evanston Insurance Company (FTC’s directors’ and officers’ insurance carrier), and FTC’s outside directors; (2) Opperman & Paquin (FTC’s outside counsel), American Home Assurance Company (Opperman & Paquin’s insurance carrier), and related parties; (3) Norwest Bank Minneapolis, N.A., FTC’s primary lender, an affiliate of Norwest Bank, and St. Paul Fire & Marine Insurance Company; (4) Fox & Co. (FTC’s auditor) and related parties; and (5) Reavis & McGrath (legal counsel to certain underwriters for FTC public offerings).

Subclass IV, the appellant Unitholders, object to the District Court’s order approving these settlements primarily because of a provision obligating the plaintiffs to indemnify and hold harmless the settling defendants against any judgments that may be obtained against them arising out of matters which formed the basis of this litigation. We do not agree that the inclusion of this provision in the settlement agreements in question required the District Court to disapprove them.

In the first place, only two of the settlement agreements, those with Fox & Co. and Reavis & McGrath, contain true indemnity provisions. The other agreements include only a “judgment reduction” provision. In such a provision, a settling plaintiff agrees, in order to settle an action with defendant A, that any later judgment obtained against defendant B will be automatically reduced by any amount which B recovers over against A by cross-claim or separate action for contribution or indemnity. To this sort of judgment-reduction provision Subclass IV does not seem really to object. Its concern, instead, may be that the District Court’s opinion approving the settlements, In re Flight Transportation Corp. Securities Litigation, Master Docket No. 4-82-874 (D.Minn. October 17,1985), seems to treat all of the settlement agreements as containing an indemnity provision properly so-called, that is, a provision which would require a settling plaintiff to indemnify a settling defendant for any recoveries secured against that defendant arising out of the underlying controversy, whether or not the amount of those recoveries exceeded the amount paid by the settling defendant to the settling plaintiff in order to obtain the settlement agreement, or the amount that the settling plaintiff may recover from someone else who in turn recovers over against the settling defendant. To the extent that this is Subclass IV’s fear, we can allay it. Except for the Fox & Co. and Reavis & McGrath agreements, we construe the settlement agreements not to contain this kind of indemnity properly so-called, but, rather, to be limited to a simple judgment-recovery mechanism. Such a limited obligation Unit-holders seem to concede was within the discretion of the District Court. Appellees class plaintiffs and FTC’s receiver agree with this limiting interpretation. Brief of Appellees Class Plaintiffs and the Receiver 5 n.4.

As to the agreements with Fox & Co. and Reavis & McGrath, which do go beyond a simple judgment-recovery mechanism,2 the District Court found as follows:

[320]*320The Court recognizes the concern that counsel for subclass IV ... have for the provisions of the settlements which require the plaintiffs to defend and indemnify the defendants for all claims related to matters which formed the basis of the FTC litigation. But while one can conceivably spin out scenarios which would require these provisions to be invoked (the objectors have not done so), the possibility of such scenarios reaching fruition is remote. This litigation has been in progress for well over three years and has been the subject of much public attention. Thus, there is little likelihood that new claims will be asserted. More importantly, however, the proposed settlements, as previously mentioned, call for the defendants to assign to the plaintiffs all claims, cross-claims, etc. that are asserted or may be asserted by the defendants. The claims that will be assigned to the plaintiffs represent a significant portion of the universe of all claims which could be brought against the defendants. This provides real and substantial protection to the plaintiff class members against the possibility of the indemnification provisions being invoked.

Slip op. 7-8. This finding that the risk to which the indemnity provisions expose Subclass IV (and, for that matter, all other members of the plaintiff class) is tolerable, is not clearly erroneous, and we therefore accept it.

Subclass IV objects that the risk which it is being required to assume must be worth something, else settling defendants would not have insisted on the inclusion of this provision in the settlement agreements. Appellants further assert that the settlement agreements confer no benefit whatsoever on them, because they have already received, as a result of the Sharing Agreement and related negotiations, almost all of their claims. No additional cash payments, they say, will be forthcoming for them as a result of the settlement agreements. Accordingly, they characterize the agreements as requiring Subclass IV to give up something of value, the indemnification provisions, while receiving nothing whatever in return. This, they say, cannot be fair.

We disagree with this characterization of the lawsuit. The present settlement agreements may not be considered in isolation. They are merely the latest chapter, perhaps the last, in a complex series of suits and negotiations.

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794 F.2d 318, 1986 U.S. App. LEXIS 26069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/subclasses-i-ii-iii-v-fox-co-ca8-1986.