Opinion
MASTER FILE All Cases 00 Civ. 0648 (LAK).
April 17, 2001.
ORDER
The Fataihi Company and Swicorp, S.A. move for reconsideration of the April 13, 2001 memorandum opinion.
Movants — whose application for leave to intervene was denied some time ago — claim that the Court "overlooked" an alleged conflict on the part of Plaintiffs' Lead Counsel as well as "the threshold question of Lead Counsel's inability to agree" to an order preserving the auction houses' right to seek to appeal with respect to the propriety of the original release is completely without merit. Inasmuch as most of their papers consist of quotations from the Court's rulings on these issues, it is perfectly clear to movants that the Court "overlooked" neither. They simply want another bite at the apple in light of the Court's disagreement with their position.
The plain facts are these: It was entirely within the appropriate scope of Plaintiffs' Lead Counsel's activities to negotiate the original release. The Court conditioned its approval of the settlement on deletion of one term of the original release because it felt obliged as a matter of law to do so, notwithstanding its view that (a) defendants' insistence on the objectionable term was entirely reasonable, (b) National Super Spuds, the case which the Court construed as requiring it to act as it did, arguably is distinguishable, and (c) the value of the objectionable term — the venue-limiting term as applied to claims based on foreign auctions — was very small, perhaps even de minimis. It is entirely sensible to permit defendants to try to appeal the issue, given their agreement to abide by the settlement irrespective of the outcome. And the suggestion that Plaintiffs' Lead Counsel sold out the class to preserve the settlement is fatuous — any acquiescence by lead counsel in defendants' desire to attempt to preserve an appeal on the scope of the release as a condition of holding the deal together was in the class's interests. The long and short of it is that the movants are trying to gain the benefit of a disputed interpretation of National Super Spuds by foreclosing an appeal — a benefit to which they manifestly would not be entitled if the Court of Appeals disagrees with this Court's reading of its previous decision.
Motion denied.