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In re Bank of America Corp.

United States District Court, E.D. Missouri, Eastern Division

July 31, 2017

IN RE BANK OF AMERICA CORP. SECURITIES LITIGATION,

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the pro se motion of David P. Oetting for the issuance or reissuance of several checks to him from the NationsBank classes settlement fund. Responses in opposition have been filed, and the issues are fully briefed.

         I. Background

         The history of this litigation is summarized in In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060 (8th Cir. 2015), and will not be addressed at length here. The present dispute involves Oetting, the representative of the NationsBank classes; former NationsBank classes counsel and now-defunct law firm Green Jacobson, P.C. and its attorneys; and the claims administrator, Heffler, Radetich & Saitta, LLP (Heffler).

         On November 21, 2002, the Court entered a judgment approving a settlement agreement in this case. The judgment provides that class members are:

permanently barred and enjoined, absolutely and forever, from suing upon or asserting, directly or indirectly any and all of the Settled Claims against the Defendants, or any of them, or any of the other Released Persons . . . .

         The stipulation, which was incorporated by reference into the judgment, defines the terms “Defendants” and “Released Persons.” Neither Green Jacobson or its attorneys nor Heffler or its employees fit either definition. Oetting and others immediately appealed the judgment, challenging the settlement agreement on various grounds. The Court of Appeals affirmed. In re BankAmerica Corp. Sec. Litig., 350 F.3d 747 (8th Cir. 2003).

         On June 14, 2004, the Court entered an order that contained the following provision:

All person involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted herein, or otherwise involved in the administration or taxation of the Settlement Fund or the Net Settlement Fund are released and discharged from any and all claims arising out of such involvement, and all Class Members, whether or not they are to receive payment from the Net Settlement Fund, are barred from making any further claim against the Net Settlement Fund or the released persons beyond the amount allocated to them pursuant to this Order . . . .

         Orders containing the same or substantially similar provisions were entered on February 4, 2005, February 22, 2005, and October 4, 2006.

         The First Distribution

         After the settlement was affirmed, the Court approved Green Jacobson's selection of Heffler as claims administrator. With some guidance from the Court, Green Jacobson and Heffler began to distribute the NationsBank classes' settlement fund. As part of that first distribution to the class members, Oetting was issued three checks on July 16, 2004, one check for $10, 177.72 and two checks for $1, 234.02 each. Consistent with the Court's directive, the face of each check (like the checks issued to every other class member) bore the following language:

         Cash promptly, void and subject to re-distribution 180 days after issue date.

         Attached to the checks issued to Oetting and the other class members was a letter from Green Jacobson. The letter included the following statement (hereinafter, the “exculpatory clause”):

The endorsement or deposit of this check is an acknowledgement that the payee has released all persons from all claims in connection with the litigation.

         The exculpatory clause was neither authorized nor approved by the Court.

         Oetting states that he was concerned that if he cashed his checks, he would be subject to the exculpatory clause, the effect of which was unknown at the time. Oetting therefore elected not to cash his checks, which were then void 180 days after they were issued.

         Over the course of several years, the Court authorized the reissuance of checks totaling over $1 million to a number of class members. After evaluating the requests, the Court found the existence of extenuating circumstances warranting reissuance. The recipients ...


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