Opinion
Master File No. 02 Civ. 3288 (DLC).
February 1, 2005
ORDER
WHEREAS plaintiff class members Steven D. Roberts, individually and as Trustee for the Wendy Jean Roberts Trust, and Margot B.J. Roberts ("Claimants") did not request exclusion from the plaintiff class in the above-referenced action by the September 1, 2004 deadline established by this Court;
WHEREAS on November 12, 2004, this Court issued a Judgment Approving Settlement and Dismissing Action Against the Citigroup Defendants (the "Judgment") in the above-referenced action, which released and dismissed certain defined Released Claims against certain defined Released Parties, and which permanently barred and enjoined class members from instituting, commencing, or prosecuting any Released Claims against any Released Parties;
WHEREAS on January 6, 2005, Claimants submitted to an NASD arbitration panel a Request for NASD to Confirm Right to Proceed in Arbitration seeking an order declaring that Claimants, notwithstanding their admitted failure to request exclusion from the plaintiff class, would be permitted to proceed to arbitrate the claims asserted in their December 31, 2002 Statement of Claim against Respondents Salomon Smith Barney Inc., Jack Grubman, Paul Olson, William Olson, and David Olson;
WHEREAS on January 14, 2005, the Citigroup Defendants applied to this Court seeking enforcement of the release and injunction contained in the Judgment as against the claims asserted by Claimants in their Statement of Claim;
WHEREAS on January 17, 2005 and on January 21, 2005, this Court issued two Orders, instructing Claimants to show cause why they should not be enjoined from arbitrating the claims asserted in their Statement of Claim against one or more of the Citigroup Defendants;
WHEREAS on January 21, 2005, Claimants submitted a Memorandum of Law in Response to Order to Show Cause, and the supporting affidavits of Steven M. Phillips and Shannon C. Benson;
WHEREAS on January 26, 2005, the Citigroup Defendants submitted a Reply Memorandum of Law in Further Support of Their Application for Enforcement, as Against the Entenmann and Roberts Claimants, of the Court's Judgment Approving Settlement and Dismissing Action Against the Citigroup Defendants, and the supporting declaration of Eric S. Goldstein;
WHEREAS a hearing on Claimants' application was held on January 27, 2005; and,
WHEREAS the Court has considered all of the arguments presented by Claimants and the Citigroup Defendants in the above-described submissions;
IT IS HEREBY ORDERED that for the reasons stated on the record at the January 27 hearing, Claimants have failed to demonstrate excusable neglect for their failure to request exclusion from the plaintiff class by the September 1, 2004 deadline;
IT IS HEREBY FURTHER ORDERED that for the reasons stated on the record at the January 27 hearing, NASD rule 10301 does not operate in any way to relieve Claimants from the effect of the Judgment;
IT IS HEREBY FURTHER ORDERED that for the reasons stated on the record at the January 27 hearing, all other arguments offered by Claimants as to why the Judgment should not be enforced against them to preclude further prosecution of the claims asserted in their Statement of Claim are without merit;
IT IS HEREBY FURTHER ORDERED that for the reasons stated on the record at the January 27 hearing, pursuant to the Judgment, Claimants are permanently barred and enjoined from instituting, commencing or prosecuting in arbitration, either directly or in any other capacity, all claims of every nature and description, known and unknown, arising out of or relating to investments (including, but not limited to, purchases, sales, exercises, and decisions to hold) in securities issued by WorldCom, and/or in options or derivative instruments based in whole or in part on the value of securities issued by WorldCom (including Targeted Growth Enhanced Terms Securities with respect to MCI WorldCom, Inc. and GOALs issued by UBS AG), including without limitation all claims arising out of or relating to any analyst research reports or other statements made or issued by the Citigroup Defendants concerning WorldCom, any disclosures, registration statements or other statements by WorldCom, as well as all claims asserted by or that could have been asserted by Plaintiffs or any member of the Class in the Action against the Citigroup Releasees, and that such barred and enjoined claims include, but are not limited to, the claims asserted by Claimants in their Statement of Claim.
SO ORDERED.