United States District Court, E.D. Missouri, Eastern Division
IN RE BANK OF AMERICA CORP. SECURITIES LITIGATION,
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
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
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,
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 . . . .
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).
14, 2004, the Court entered an order that contained the
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 .
. . .
containing the same or substantially similar provisions were
entered on February 4, 2005, February 22, 2005, and October
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:
promptly, void and subject to re-distribution 180 days after
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
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.
exculpatory clause was neither authorized nor approved by the
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
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 ...