Opinion
No. 06-5636-cv.
March 27, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the district court judgment is AFFIRMED.
Joseph L. Clasen (Thomas J. Donlon, on the brief), Robinson Cole LLP, New York, New York, for Plaintiffs-Appellants.
John A. Valentine (Andrew Weismann, on the brief), Wilmer Cutler Pickering Hale and Dorr, Washington D.C., for Credit Suisse Securities (USA) and Credit Suisse, New York Branch, for Defendants-Appellees.
Arthur N. Abbey, Abbey Spanier Rodd Abrams Paradis, LLP (Judith L. Spanier, Richard B. Margolies, Abbey Spanier Rodd Abrams Paradis, LLP, Jeffrey H. Squire, Richard L. Stone, Mark A. Strauss, Kirby McInerney Squire, LLP, on the brief), New York, NY, for Lead Plaintiffs-Appellees.
Mitchell A. Lowenthal (Joon H. Kim, David Bober, on the brief), Cleary Gottlieb Steen Hamilton, LLP, New York, New York, for Thirty-Two Bank Defendants-Appellees.
PRESENT: Hon. B.D. PARKER, Hon. RICHARD C. WESLEY, Hon. DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Appellants Leonard Tow, Claire Tow, the Claire Tow Trust, the Leonard and Claire Tow Charitable Trust, Inc., the Tow Foundation Inc., and the Tow Charitable Remainder Unitrust # 1 ("the Tow appellants") appeal from a judgment of the United States District Court for the Southern District of New York (McKenna, J.). The district court approved a partial settlement of a securities class action brought on behalf of investors in the Adelphia Communications Corporation ("Adelphia") against various investment and lending banks, including Credit Suisse Securities LLC ("CS"). The consolidated class action complaint alleged that the banks were complicit in a series of financial irregularities that led to the collapse of Adelphia.
In March 2004, the Tow appellants sued CSFB and Donaldson, Lufkin Jenrette Securities Corporation ("DLJ Securities"), alleging that DLJ Securities, which had been acquired by CS, knowingly issued a false fairness opinion to Century Communications Corp., an entity controlled by the Tow appellants, in connection with the sale of Century to Adelphia. The Tow appellants' action was transferred by the Panel on Multi-District Litigation to the Southern District of New York, where the consolidated class action that was brought on behalf of Adelphia investors was pending. After considerable litigation, a settlement was reached. A class, which included the Tow appellants' claims, was certified for settlement purposes. The proposed settlement contemplated a comprehensive release of claims relating to the Adelphia fraud against the banks, including CS. It is not disputed that the Tow appellants' claims against DLJ Securities would be covered by the release. At this point, the Tow appellants were confronted with the option of remaining in the class and participating in the settlement or opting out and pursuing their claims against DLJ Securities in a separate action. The Tow appellants did not opt out but objected to the settlement. The district court approved the settlement and this appeal followed. We assume familiarity with the underlying facts and procedural history of this case, as well as the issues on appeal.
DISCUSSION
On appeal, the Tow appellants argue that the district court abused its discretion in rejecting their objections to the settlement. Their main contention is that the release in the settlement was overly broad and improperly released their claims against DLJ Securities because they did not share an identical factual predicate with the claims of other class members. The Tow appellants also maintain that the lead plaintiff's did not adequately represent their interests since the Tow appellants were among the largest losers as a result of the Adelphia fraud but were the only plaintiff's who received, and were injured by, DLJ's fairness opinion. We disagree.
The district court's approval of the class action settlement is reviewed for abuse of discretion. Wal-Mart Stores Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 106 n. 12 (2d Cir. 2005). As to the claimed overbreadth of the release, "[t]he law is well established in this Circuit and others that class action releases may include claims not presented and even those which could not have been presented as long as the released conduct arises out of the `identical factual predicate' as the settled conduct." Id. at 107 (citation omitted).
The district court acted within its sound discretion in finding that the Tow appellants' claims concerning the fairness opinion related to investment losses arising from Adelphia's fraudulent activity and were based on the same core of facts as the claims in the consolidated class litigation. The class plaintiff's and the Tow appellants both alleged that financial institutions misled investors by disseminating false statements about Adelphia. Both sets of plaintiff's alleged that the banks learned about Adelphia's fraud in the course of providing it investment banking and lending services. The district court's conclusion that these similarities were sufficient to satisfy the Wal-Mart test fell within its discretion.
The Tow appellants' contention that their receipt of the fairness opinion requires proof of additional facts such that their claims do not share an identical factual predicate with those of the class is unpersuasive. Whether the plaintiff's were misled by the fairness opinion, the Adelphia financial statements (on which the fairness opinion depended), or the integrity of the market that itself relied on Adelphia's disclosures, the fact remains that the investment losses suffered by all class members share a common factual predicate, even if the particular losses were the result of reliance on different documents. As Wal-Mart makes clear, "[a] court may release not only those claims alleged in the complaint and before the court, but also claims which could have been alleged by reason of or in connection with any matter or fact set forth or referred to in the complaint." Id. at 108 (internal quotation marks omitted).
Finally, we are not persuaded that the class plaintiff's do not adequately represent the Tow appellants even though none of those plaintiffs made a claim specifically related to DLJ Securities' fairness opinion. The district court found that the claim of inadequate representation fails due to the inclusion as class representatives of Maud Eichel and Robert Lowinger, two Century shareholders who acquired their Adelphia securities after receiving the same fairness opinion as the Tow appellants. We find no abuse of discretion in this conclusion. Both the class representatives and the Tow appellants pursued Adelphia's banks for their alleged complicity in Adelphia's fraud, sought the same relief — damages for investment losses in Adelphia securities — and therefore shared a common interest in maximizing their recovery for losses attributable to the bank defendants' alleged fraud. The interests of class members need only be substantially similar, not identical. See id. at 111.
We have considered the remainder of the Tow appellants' claims and find them to be without merit. Accordingly, the judgment of the district court is affirmed.