Contant v. Bank Of America Corporation

USONUITTEHDE RSTNA DTIESST RDIICSTT ROIFC TN ECWOU YROTR K

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:

JAMES CONTANT, et al., :

Plaintiffs, :

: 17 Civ. 3139 (LGS)

-against- :

: ORDER

BANK OF AMERICA CORPORATION, et al., :

Defendants. :

:

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LORNA G. SCHOFIELD, District Judge:

WHEREAS, on September 23, 2021, Class Counsel filed a letter requesting review of an

unresolved dispute with Claimant AMA Capital LLC (“AMA”) and stating Class Counsel’s

position on the dispute (Dkt. No. 490);

WHEREAS, on October 7, 2021, AMA filed a response in opposition (Dkt. No. 497);

WHEREAS, on October 18, 2021, Class Counsel filed a reply (Dkt. No. 503);

WHEREAS, Class Counsel advanced four reasons for denying AMA’s claim:

(1) untimeliness, (2) insufficient documentation, (3) failure to meet the class definition, including

through purchase of access to a trading platform and use of a prime broker and (4) the potential

for duplicate recovery of claims submitted in this case and in In re Foreign Exchange Benchmark

Rates Antitrust Litigation, No. 13 Civ. 7789 (“FOREX”) (Dkt. No. 490);

WHEREAS, the Order dated October 29, 2021, rejected Class Counsel’s timeliness

argument, accepted Class Counsel’s documentation argument, ordered Class Counsel to accept

any of AMA’s claims that had already been accepted and ordered Class Counsel, settling

defendants and AMA to submit further briefing (Dkt. No. 516);

WHEREAS, Class Counsel, settling defendants and AMA filed letters on November 12,

2021 (Dkt. Nos. 522, 525 and 526);

WHEREAS, based on these submissions, the Order dated November 16, 2021, denied the

claims denied by Class Counsel because they all lack detailed transactional records as required by

the settlement (Dkt. No. 531);

WHEREAS, AMA filed a motion for reconsideration of the November 16, 2021, Order on

November 22, 2021 (Dkt. No. 534);1

WHEREAS, Plaintiffs filed a motion for disbursement of settlement funds on November

30, 2021 (Dkt. No 538); AMA filed the only opposition to the motion on December 7, 2021 (Dkt.

No. 551); and Plaintiffs filed a reply memorandum of law in support of their motion for

disbursement on December 14, 2021 (Dk. No. 555);

I. Motion for Reconsideration

WHEREAS, “[a] motion for reconsideration should be granted only when the [movant]

identifies an intervening change of controlling law, the availability of new evidence, or the need

to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc.

v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted);

accord Lewis v. Nissan N. Am. Inc., No. 04 Civ. 562, 2021 WL 807126, at *1 (S.D.N.Y. Mar. 3,

2021). The standard “is strict, and reconsideration will generally be denied unless the moving

party can point to controlling decisions or data that the court overlooked.” Cho v. Blackberry

Ltd., 991 F.3d 155, 170 (2d Cir. 2021) (internal citation omitted). A motion for reconsideration is

1 After filing its motion to reconsideration, AMA filed a notice of appeal. That notice does not

divest this Court of jurisdiction because the notice of appeal is held in abeyance until the motion

for reconsideration is resolved. See Banks v. Braun, No. 19 Civ. 6591, 2019 WL 6050426, at *1

(S.D.N.Y. Nov. 15, 2019); Coan v. Kaufman, 349 F.Supp.2d 271, 273 n.1 (D. Conn. 2004) (“This

filing [of a notice of appeal] does not divest this Court of jurisdiction to rule on Plaintiff’s Motion

for Reconsideration. Instead, the notice of appeal is held in abeyance until the motion for

reconsideration is resolved.”), aff’d, 457 F.3d 250 (2d Cir. 2006).

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“not a vehicle for relitigating old issues, presenting the case under new theories, securing a

rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc.

v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks omitted);

accord Dill v. JPMorgan Chase Bank, N.A., No. 19 Civ. 10947, 2021 WL 3406192, at *11

(S.D.N.Y. Aug. 4, 2021). “It is black letter law that a motion for reconsideration may not be used

to advance new facts, issues or arguments not previously presented to the Court . . . .” Nat’l

Union Fire Ins. Co. of Pittsburg, PA v. Las Vegas Prof’l Football Ltd. P’ship, 409 F. App’x 401,

403 (2d Cir. 2010) (summary order) (internal quotation marks omitted); see also Tonga Partners,

L.P., 684 F.3d at 52;

WHEREAS, AMA is not entitled to reconsideration. AMA does not identify any change

of controlling law, any new evidence, the need to correct a clear error or prevent injustice, but

rather rehashes arguments already briefed and rejected by the Court.

As an initial matter, the Court declines to consider AMA’s additional evidence submitted

with its motion for reconsideration. AMA provides no basis for presenting this evidence on a

motion for reconsideration, such as its prior unavailability. The evidence should have been

presented previously if AMA wanted the Court to consider it. See Sinrich v. Fernwood Enters.,

No. 09 Civ. 688, 2009 WL 3109824, at *3 (S.D.N.Y. Sept. 28, 2009) (citing Shrader v. CSX

Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995)).

AMA seeks reconsideration on the basis that the Court overlooked its submission of

additional transaction data after Class Counsel formally rejected its claim. This data was not

overlooked. AMA argues that such transaction data should have been considered by the Claims

Administrator and it is unjust for the Court not to order the Claims Administrator to do so. The

settlement agreements require that

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of claim submitted. The Claims Administrator shall notify, in a timely fashion and in

writing, all claimants whose proofs of claim it proposes to reject, in whole or in part,

setting forth the reasons therefore, and shall indicate in such notice that the claimant

whose claim is to be rejected may seek review by the Court as provided below.

(E.g. Dkt 420-2 § XI(d)(iv)). The settlement agreements then explain that,

[i]f any claimant whose claim has been rejected, in whole or in part, desires to contest

such rejection, the claimant must, within twenty (20) days after the date of mailing of the

notice required in subparagraph 11(d)(iv) above, serve upon the Claims Administrator a

notice and statement of reasons indicating the claimant’s grounds for contesting the

rejection along with any supporting documentation.

(E.g. Dkt 420-2 § XI(d)(v)). AMA argues that the Claims Administrator should have accepted

new detailed transactional records after completing the Claims Assessment and rejecting a

portion of the claim. AMA’s argument is incorrect. The settlement agreements clearly state that

prior to rejection of a proof of claim, “the Claims Administrator shall communicate with the

claimant in order to remedy the curable deficiencies in the proofs of claim submitted.” Here,

there is no dispute that the Claims Administrator (1) took steps to communicate with AMA to

remedy the curable deficiencies prior to rejection, (2) provided AMA an opportunity to revise its

proof of claim and (3) reviewed AMA’s revised proof of claim and transaction records prior to

formally rejecting a portion of AMA’s claim. AMA argues that the Claims Administrator was

then obligated to review new documentation and transaction records after rejecting the claim

because the settlement agreements state that a claimant contesting a rejection must “serve upon

the Claims Administrator a notice and statement of reasons indicating the claimant’s grounds for

contesting the rejection along with any supporting documentation.” (Dkt 420-2 § XI(d)(v)). But,

nothing about “supporting documentation” suggests that the process for contesting rejected

claims should permit yet another bite at the apple to remedy deficiencies in the proof of claim

submitted. Instead, the process of contesting a rejected claim, where as here, the claimant is

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provided with an opportunity to supplement its submission prior to rejection, should be viewed as

the functional equivalent of a motion for reconsideration and not a chance to reopen the claims

process in its entirety by permitting the submission of new evidence previously available to the

claimant.

Even if AMA were entitled to submit additional new documentation following the

rejection of its claim by the Claims Administrator, AMA still does not meet its burden for

reconsideration because AMA failed to identify the duplicate transactions it submitted in FOREX,

an additional reason that AMA’s claims were denied for lack of detailed records. Any such

claims belong either in the FOREX class settlement as direct trades, or the settlement here. AMA

is not entitled to duplicate recovery on any claim, as the settlement classes and covered

transactions in the two cases are mutually exclusive.

II. Motion for Disbursement of Settlement Funds

WHEREAS, an order approving disbursement of settlement funds is appropriate at this

juncture. Class Counsel and the Claims Administrator have diligently and fairly performed their

roles in overseeing the direct implementation of the Settlements. Class Counsel and the Claims

Administrator made significant efforts to ensure that class members filed claims and were aware

of the claims filing deadline, including sending personalized emails and letters to certain potential

claimants and handling nearly 4,000 phone calls and over 700 emails from members of the

Settlement Classes. Class Counsel and the Claims Administrator also exercised their discretion

to process 963 late claims. This work was completed significantly under budget, with

$122,683.24 of the funds for notice and settlement administration remaining after review of the

claims.

As Class Counsel points out, judicial economy is served by granting the motion for

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disbursement. Resolving AMA’s claimant dispute and the motion for disbursement will allow

any objections to the Court’s decision on either issue to proceed in tandem on appeal. Otherwise,

class members would need to wait for the claimant dispute to be resolved and then potentially

wait for any subsequent disputes and appeals of the disbursement motion to be resolved before

receiving their portion of the settlement funds.

AMA’s arguments in opposition to the motion for disbursement are unavailing. First,

AMA argues that the motion for disbursement should be denied because the settlement does not

permit the distribution of funds until after all timely objections to rejected claims are resolved and

all appeals therefrom have been resolved. However, approval of the disbursement motion does

not require immediate distribution of the settlement funds. The disbursement motion can be

granted with the distribution to proceed later after AMA’s appeal, in accordance with the

settlement terms and the decision on appeal. Second, AMA argues a $50,000 reserve would

violate the settlement and would be inadequate to provide for AMA’s claim should AMA prevail

on its appeal. Because settlement funds will not be distributed until after AMA’s appeal is

resolved, the size of the reserve is immaterial. If AMA prevails, there will be no distribution

under the current motion for disbursement and a new motion for disbursement will need to be

filed. Third, AMA argues vaguely without reference to case law that Class Counsel is not

distributing the funds in a fair and reasonable way. Other than identifying a minor scrivener’s

error, which Class Counsel explains had no material outcome on the calculation of claimants’

pro-rata shares of the settlement funds, AMA points to no issues with the request for

disbursement or claims administration process. AMA seeks to litigate its objection to the

rejection of its claim as an issue of fairness, but points to no evidence that it was treated

differently from any other similarly-situated class member. For example, that Class Counsel

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recommends accepting late claims that 1t could process in a timely manner but argued against

acceptance of AMA’s late claim, which could not be processed as quickly, provides no basis for

finding that Class Counsel has not been fair. The Court declines to transform the motion for

disbursement into an opportunity for the sole objecting claimant to scrutinize and seek

justification for every decision made by Class Counsel and the Claims Administrator in the

administration of the settlement;

WHEREAS, all of the specific relief sought by the motion for disbursement is warranted

except for revisions necessitated by the dispute with AMA and its pending appeal. An order

granting the motion for disbursement will issue separately. It is hereby

ORDERED that AMA’s motion for reconsideration is DENIED. It is further

ORDERED that the motions to seal filed in connection with the motion for

reconsideration and motion for disbursement at Dkt. Nos. 533, 545, 550 and 554 are GRANTED

for the reasons identified at Dkt. No. 501.

The Clerk of Court is respectfully directed (1) to maintain the documents at Dkt. No. 534

under seal with access limited to the individuals listed in the appendix at Dkt. No. 533, (2) to

maintain the document at Dkt. No. 546 under seal with access limited to the individuals listed in

the appendix at Dkt. No. 545, (3) to maintain the documents at Dkt. No. 551 under seal with

access limited to the individuals listed in the appendix at Dkt. No. 550, (4) to maintain the

document at Dkt. No. 555 under seal with access limited to the individuals listed in the appendix

at Dkt. No. 554 and (5) to close the motions at Dkt. Nos. 533, 534, 535, 538, 545, 550 and 554.

Dated: January 5, 2022

New York, New York

UNITED STATES DISTRICT JUDGE