Kevin Kloster v. John M. Koehler , 350 F.3d 747 ( 2003 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    __________
    No. 02-3780
    __________
    In re: BankAmerica Corporation              *
    Securities Litigation                       *
    *
    ____________________                  *
    *
    Kevin Kloster, Joseph Hempen,               *
    * Appeal from the United States
    Plaintiffs - Appellees,        * District Court for the Eastern
    * District of Missouri.
    John M. Koehler, David P. Oetting,          *
    *
    Plaintiffs - Appellants,       *
    *
    Selma Kaiser, Brian Markee, Walter          *
    E. Ryan, Jr.,                               *
    *
    Plaintiffs - Appellees,        *
    *
    Ernesto Gumapas, Sydney Sorkin,             *
    Herman Shyken, Carol Mackay,                *
    Executrix of the estate of Joseph I. Sir,   *
    *
    Intervenors Below -            *
    Appellees,                     *
    *
    Robert A. Hepworth,                         *
    *
    Plaintiff - Appellee,          *
    *
    v.                                *
    *
    Hugh L. McColl, Jr., James H. Hance, *
    Jr., David A. Coulter, Michael E.       *
    O’Neill, John J. Higgins, Marc D. Oken, *
    Bank of America,                        *
    *
    Defendants - Appellees,    *
    *
    Allison Desmond,                        *
    *
    Objector,                  *
    *
    JAS Securities, LLC, Milberg, Weiss, *
    Bershad, Hynes & Lerach, LLP,           *
    Wachovia Bank National Association, *
    *
    Movants Below.             *
    ___________
    Submitted: June 11, 2003
    Filed: December 2, 2003 “Corrected 12/8/03"
    ___________
    Before MELLOY, HANSEN, and SMITH, Circuit Judges.
    ___________
    MELLOY, Circuit Judge.
    In this class action under the Private Securities Litigation Reform Act of 1995,
    15 U.S.C. § 78u-4 (the “Act”), the district court1 determined that it possessed the
    1
    The Honorable John F. Nangle, Senior United States District Judge for the
    Eastern District of Missouri.
    -2-
    authority to approve a global settlement involving all plaintiff classes notwithstanding
    the fact that some members of a lead plaintiff group for one of four certified plaintiff
    classes objected to the settlement. We affirm.
    I. Background
    The plaintiffs in this class action alleged losses caused by misrepresentations
    and omissions surrounding the 1998 merger of NationsBank and BankAmerica to
    form Bank of America. After consolidating numerous state and federal actions from
    multiple jurisdictions, the district court certified four plaintiff classes: the
    NationsBank and BankAmerica, Holder and Purchaser classes. Membership in the
    classes depended on whether plaintiffs held or purchased NationsBank or
    BankAmerica shares during designated periods of time. As required under the Act,
    the district court appointed lead plaintiffs or lead plaintiff groups who in turn selected
    class counsel. See 15 U.S.C. § 78u-4(a)(3)(B)(i) and (v). The district court also
    designated some of these lead plaintiffs as class representatives under Fed. R. Civ.
    P. 23.
    The district court appointed a seven-member lead plaintiff group to represent
    the NationsBank classes. Members of this group included Earl J. Gates, Robert
    Hepworth, Pamela Wootton, Appellees Joseph Hempen and Kevin Kloster, and
    Appellants John M. Koehler and David P. Oetting. The district court appointed a six-
    member lead plaintiff group to represent the BankAmerica classes. Members of this
    group included David Fike, Elizabeth Menkes, Patricia A. Thomas, and Appellees
    Selma Kaiser, Brian Markee, and Walter E. Ryan, Jr. No members of the lead
    plaintiff groups were large institutional investors nor did they have relationships with
    one another prior to this litigation. The lead plaintiffs for the NationsBank classes
    owned, collectively, less than one tenth of one percent of the outstanding shares in
    NationsBank. Institutional investors owned more than forty percent of NationsBank,
    but no institutional investor came forward to serve as a lead plaintiff.
    -3-
    Shortly before trial, class counsel, defendants, and some members of the lead
    plaintiff groups participated in a mediation that led to the signing of a memorandum
    of understanding with the defendants regarding a $490 million global settlement of
    all claims. Under the global settlement, Bank of America was to pay the NationsBank
    classes approximately $333 million and the BankAmerica classes approximately $157
    million. While many of the circumstances and statements surrounding the mediation
    are disputed, it is undisputed that class counsel signed the memorandum of
    understanding with the defendants after members of the lead plaintiff group for the
    NationsBank class left the mediation.
    In response to a motion for the district court’s approval of the global
    settlement, three members of the NationsBank lead plaintiff group, Appellants
    Oetting and Koehler and Appellee Kloster, filed objections. They alleged that class
    counsel instructed them to leave the mediation because it was futile, but that class
    counsel remained and reached the proposed global settlement for an amount far below
    that which they had authorized. Based on these allegations, they argued that the
    district court should not approve the global settlement because: class counsel
    negotiated the settlement without their approval as lead plaintiffs; the settlement
    provided inadequate compensation to the NationsBank classes; and the settlement
    improperly structured compensation to be paid in cash rather than stock thus resulting
    in adverse tax consequences and a depletion of the cash reserves of the new, merged
    bank (in which most plaintiffs owned shares).
    After sending notice to, and soliciting objections from, the hundreds of
    thousands of eligible class members, the district court received a total of ten
    objections. No institutional investors objected. The joint objection from Appellants
    Oetting and Koehler and Appellee Kloster was the only objection filed by any
    members of the NationsBank lead plaintiff group. Regarding the other NationsBank
    lead plaintiffs, Appellee Hepworth supported the global settlement; Gates died prior
    -4-
    to the mediation; Hempen was not available for comment; and Wootton stated that
    she would defer to the decision of the group.
    Faced with the fractured positions of the NationsBank lead plaintiff group, the
    lack of a singular voice to advocate a position for the group, and the lack of clear
    guidance in the Act regarding the power of a fraction of one lead plaintiff group to
    disapprove settlement, the district court looked to cases under Fed. R. Civ. P. 23 to
    determine the proper weight to place on the objections from Oetting, Koehler, and
    Kloster. The district court held a fairness hearing and issued an order in which it
    determined, inter alia, that it had the authority to approve the settlement even over the
    objections raised by the three members of the NationsBank lead plaintiff group.
    In determining that it had the authority to conduct a fairness/adequacy review
    and approve the settlement over Appellants' objections, the district court emphasized
    its duty to act in the best interest of class members. It noted that Appellants’
    estimations of the settlement value of the case were so high as to be “bordering on
    fantasy.” It expressed concern that, because the global settlement amount far
    exceeded what had been previously offered to the separate classes, the Appellants
    potentially were jeopardizing a favorable settlement. The district court was intimately
    familiar with the case, having spent over three years with the case prior to ruling on
    the settlement. In light of this familiarity, the district court clearly expressed its
    opinion that, based on working with the attorneys in the case, this was not the kind
    of lawyer-driven, lawyer-initiated lawsuit that fails to protect class interest and that
    Congress targeted with the Act.
    Ultimately, the district court approved the settlement as fair and adequate by
    applying those factors we have listed as relevant in the context of Rule 23 fairness
    determinations. See Van Horn v. Trickey, 
    840 F.2d 604
    , 607 (8th Cir. 1988). In
    particular, the district court noted the adequacy of the settlement in light of the
    apparent merits of the plaintiffs’ cases and in light of the risks and the high level of
    -5-
    uncertainty that the litigation would entail if allowed to proceed to trial. The district
    court further noted the absence of objections from institutional investors and the
    relatively slight number of shares owned by the objecting lead plaintiffs.
    On appeal, Appellants Koehler and Oetting argue that we should reverse the
    district court’s decision and hold that the district court erred as a matter of law in
    approving the global settlement over their objections. They interpret the Act as
    prohibiting the district court from approving a settlement unless the district court
    either receives approval from the lead plaintiff, or lead plaintiff group, or disqualifies
    the lead plaintiff for acting in a manner inimical to class interests. All parties concede
    that the Act does not expressly provide for such a requirement, and Appellees argue
    that we should not read such a requirement into the Act.
    Alternatively, Appellees argue that we are not required to address the broader
    issue of how much power the Act grants to lead plaintiff groups to control and settle
    litigation. Appellees characterize the narrow issue presented for review as relating
    only to whether the district court abused its discretion when it acted to approve a
    settlement over objections from some members of a fractured lead plaintiff group that
    failed to speak with one voice. In other words, Appellees argue that this case does
    not concern the relative roles that class counsel, lead plaintiffs and the supervising
    district court should play under the Act, but rather, is simply a case about how a
    district court is to deal with a fractured lead plaintiff group.
    We note that NationsBank lead plaintiff group member Kloster changed his
    position after the district court proceedings and now appears before us as an appellee
    to argue in support of the global settlement. Further, as expressly conceded by
    Appellants during oral argument, the district court’s findings of fairness and adequacy
    are not contested on appeal. Therefore, the only issue on appeal is whether the
    district court properly determined that it had the authority, over the objections of
    Koehler and Oetting, to review and approve the settlement.
    -6-
    II.
    Congress enacted the Private Litigation Securities Reform Act of 1995 to
    address problems related to class action securities litigation. In particular, Congress
    sought to create mechanisms to ensure the protection of class members’ interests in
    securities litigation that was widely perceived as being lawyer-instituted and lawyer-
    driven. See In re Cendant Corp. Litig., 
    264 F.3d 210
    , 254-68 (3rd Cir. 2001)
    (providing a discussion of the history behind the adoption of the Act and the
    potentially conflicting interests of class counsel and class members). One way in
    which the Act provides this protection is by requiring the district courts to appoint a
    lead plaintiff or lead plaintiff group to represent aggrieved shareholders and requiring
    these lead plaintiffs to select counsel. See 15 U.S.C. § 78u-4(a)(3)(B)(i) (“the court
    shall . . . appoint as lead plaintiff the member or members of the purported plaintiff
    class that the court determines to be most capable of adequately representing the
    interests of class members . . . the ‘most adequate plaintiff’”); 15 U.S.C. § 78u-
    4(a)(3)(B)(v) (“The most adequate plaintiff shall, subject to the approval of the court,
    select and retain counsel to represent the class.”). To further ensure that class
    members’ interests and not the interests of class counsel drive the litigation, the Act
    contains a rebuttable presumption that the most adequate plaintiff is the “person or
    group of persons that . . . has the largest financial interest in the relief sought by the
    class.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)(bb).2
    While the Act is explicit on the lead plaintiff’s authority to select and retain
    counsel, it is silent on the other responsibilities and rights that lead plaintiffs have to
    2
    Although we noted that the lead plaintiffs in this case are not institutional
    investors and do not have the largest financial interest in the relief sought by the
    classes, the district court’s selection of lead plaintiffs is not the subject of this appeal.
    -7-
    control, direct, and manage class action securities litigation. In particular, the Act
    says nothing about whether the lead plaintiff must either approve a settlement or be
    replaced for actions inimical to class interests before a district court may review and
    approve a proposed settlement. In addition, it says nothing regarding how a district
    court should deal with a fractured lead plaintiff group that advocates inconsistent
    positions.
    We agree with Appellees that the present case does not squarely present the
    broad question of whether the Act grants a lead plaintiff or lead plaintiff group
    sufficient control over litigation to block a district court’s approval of a proposed
    settlement. Looking at the narrow issue that is presented, namely, what weight a
    district court must give to objections from a fraction of a fractured lead plaintiff
    group, we find no guidance in the Act and find that the district court properly relied
    on decisions under Rule 23 when it determined that it possessed the necessary
    authority to approve the settlement.
    “Under Rule 23(e) the district court acts as a fiduciary who must serve as
    guardian of the rights of absent class members.” Grunin v. Int’l House of Pancakes,
    
    513 F.3d 114
    , 123 (8th Cir. 1975). It is appropriate for the district court to serve this
    role as guardian for absent class members because the district court is heavily
    involved in the management of class actions and, therefore, “‘is exposed to the
    litigants, and the strategies, positions and proofs.’” 
    Id.
     (quoting Ace Heating &
    Plumbing Co. v. Crane Co., 
    453 F.2d 30
    , 34 (3d Cir. 1971)). In light of this exposure
    to the litigants and litigation, we defer to district courts’ approvals of settlement
    agreements in class actions under an abuse of discretion standard:
    Our review of the settlement approved by the district court in this case
    is guided by the principle that: Such a determination is committed to the
    sound discretion of the trial judge. Great weight is accorded his views
    because he is exposed to the litigants, and their strategies, positions and
    proofs. He is aware of the expense and possible legal bars to success.
    -8-
    Simply stated, he is on the firing line and can evaluate the action
    accordingly.
    Elliot v. Sperry Rand Corp., 
    680 F.2d 1225
    , 1227 (8th Cir. 1982) (per curiam)
    (internal citations omitted).
    We believe this abuse of discretion standard is also appropriate for our review
    of the district court’s decision to approve the global settlement over the objection of
    Appellants Koehler and Oetting. The Act does not expressly divest the district court
    of its Rule 23(e) authority or discretion by explicitly granting a veto power to lead
    plaintiffs. Further, it seems clear that the Act was intended to supplement rather than
    replace Rule 23. This strongly suggests that Congress did not intend to remove
    discretion from the district courts or usurp the district courts’ traditional
    responsibility to guard the interests of absent class members.
    Reviewing the district court’s decision only for abuse of discretion, then, we
    find that the district court, which was intimately familiar with this lengthy and
    complex matter, did not abuse its discretion in overruling the objections of a fraction
    of the NationsBank lead plaintiff group. The district court properly determined that
    it bore a responsibility to safeguard the interests of class members, expressly noted
    that this case was not lawyer-driven, understood the risks attendant to trial and the
    strengths and weaknesses of the plaintiffs’ cases, and emphatically noted what it
    viewed as the unrealistic expectations of the objecting lead plaintiffs. In light of
    these determinations and the absence of guidance in the Act, it was not an abuse of
    discretion for the district court to proceed under Rule 23 and approve the settlement
    over Appellants’ objections. We leave for another day a determination of how much
    control over litigation the Act confers on a singular lead plaintiff or unified lead
    plaintiff group.
    Accordingly, the judgment of the district court is affirmed.
    ______________________________
    -9-
    

Document Info

Docket Number: 02-3780

Citation Numbers: 350 F.3d 747

Judges: Melloy, Hansen, Smith

Filed Date: 12/2/2003

Precedential Status: Precedential

Modified Date: 10/19/2024