Opinion
MASTER FILE 02 Civ. 3288 (DLC).
October 11, 2005
Bryan F. Alstock, Justan G. Witkin, Aylstock, Witkin Sasser PLC, Pensacola, FL, For Richard Ungar.
Martin London, Richard A. Rosen, Brad S. Karp, Eric S. Goldstein, Joyce S. Huang, Susanna M. Buergel, Paul, Weiss, Rifkind, Wharton Garrison LLP, New York, New York, Peter K. Vigeland, Wilmer, Cutler, Pickering, Hale Dorr LLP, New York, New York, For the Citigroup Defendants.
MEMORANDUM OPINION AND ORDER
On July 21, 2005, class member Richard Ungar ("Ungar") filed a motion to confirm his status as having excluded himself from the class action. For the reasons stated below, his motion is denied. Background
Ungar contends that he opted out of the WorldCom class action in January 2004. He has submitted copies of his exclusion form, dated January 15, 2004, and a January 20, 2004 letter from Ungar to The Garden City Group, Inc. ("GCG"), the class action claims administrator, stating his intention to opt out. He attests that he mailed these documents via U.S. Mail no later than January 21, 2004, but provides no proof of mailing.
Ungar also represents in his brief that his attorneys sent a letter reiterating his intent to opt out to GCG on September 1, 2004, the opt-out deadline in the class action (the "September 1 Letter"). No copy of this letter, proof of mailing, or affidavit from Ungar's counsel attesting to the mailing is included with Ungar's papers. In his brief, Ungar mentions that "By conversation, the claims administrator confirmed that that [September 1 Letter] was received, postmarked September [stet] 2, 2004" — the day after the opt-out deadline. No date is given for this conversation; nor is it mentioned in Ungar's sworn declaration.
On April 8, 2005, counsel for Ungar mailed a letter to GCG disputing GCG's position that Ungar had not timely opted out of the class action (the "April 8 Letter"). Ungar's counsel enclosed a proof of claim form with the April 8 Letter "to preserve any and all rights he may have in the Class Action Lawsuit pending a final determination of his opt out status." Ungar has provided the Court with a copy of the April 8 Letter, along with a certified mail receipt. He has not provided a copy of any letter received by GCG. Nothing in the April 8 Letter, or any other submission, supports Ungar's assertion that his lawyers' attempt to opt out on his behalf was made on either September 1 or 2, 2004.
Ungar states in his brief that "Subsequent to Mr. Ungar's April 4, 2005 filing, neither Ungar nor his attorneys have received communication from the Clams Administrator concerning the apparent non-receipt of Mr. Ungar's January 2004 opt-out requests." (Emphasis added.)
Analysis
The December 11, 2003 Notice of Class Action, which Ungar does not dispute having received, specified that the exclusion form "must be mailed by certified or overnight mail" to GCG. A recent Opinion in this case addressed a similar contention by a class member. It stated that, to establish opt-out status, a class member needed to prove "that notice was effectively and timely communicated." In re WorldCom, Inc. Sec. Litig., No. 02 Civ. 3288 (DLC), 2005 WL 1048073, at *4 (S.D.N.Y. May 5, 2005) ("May 5 Opinion"). Further,
Ungar notes in his reply that the Citigroup Settlement Notice, sent out on August 2, 2004, does not specify a method of mailing. Because his opt-out request was mailed in January 2004, however, Ungar may not attribute his failure to use certified or overnight mail to the wording of a notice that did not yet exist.
the testimony of a class member, without some documentary proof of mailing, will seldom, if ever, be sufficient to meet the burden of showing a timely request to opt out. This is particularly true when, as here, the court-approved notice to the class prescribed methods of mailing that would have provided compelling proof of mailing.Id. The May 5 Opinion also expressed the concern that, in a case in which numerous arbitration claimants against the Citigroup Defendants have not opted out of the class action, a failure to require proof of mailing would invite false testimony.See id. at *5. It noted that "[c]ertified or overnight mail would have provided a class member with documentation of an exclusion request with minimal cost and effort." Id.
Although, unlike the class member whose contention was the subject of the May 5 Opinion, Ungar has provided copies of the documents that he claims to have mailed in January 2004, there is no compelling basis in this instance to depart from a rule requiring proof of mailing to substantiate a class member's claim to have timely opted out of the class action. The May 5 Opinion made clear that a photocopy of a completed form would not be sufficient to establish an attempt to opt out. See id. at *4 n. 6. Unnotarized forms and letters should be given little evidentiary weight in determinations like this one, because they are easily falsified. In sum, Ungar has not met his burden to establish that he timely communicated his desire to opt out of the class action.
Ungar also argues that a finding of excusable neglect is warranted. The law of excusable neglect was described in the May 5 Opinion, and that discussion is incorporated by reference here. See id. at *6. Ungar establishes no basis for a finding of excusable neglect. He argues that the Court should excuse his delay in opting out because "[t]he only reason these requests for exclusion were not received must have been either one of mistake or clerical error after the letters left Mr. Ungar's control." Because, as discussed above, no finding that Ungar actually mailed his exclusion form prior to the opt-out deadline can be made based on the evidence submitted, Ungar's contention that his request was lost due to factors outside of his control cannot be used as a basis for granting him another opportunity to opt out.
Conclusion
Ungar's motion to confirm his status as having excluded himself from the class action is denied.
SO ORDERED.