A District Court Judge in the Southern District of New York has denied the request of KERS & Co. (“KERS”) to permit it to opt-out of the Bank of America Securities Litigation, Case No. 09-MD-2058. According to the Court’s Order, the request for exclusion came 11 months after the date set by the Court for putative class members to request exclusion from the class action.
In its order the Court found that KERS had received notice and was aware of the opt-out procedure. However, the claims administrator had no record of receiving a timely request for exclusion from KERS. After reviewing the record, including affidavits from KERS, the Court found that “KERS has not satisfied its burden of coming forward with evidence establishing that it communicated an intent to opt out of the class.” Additionally, the Court found that KERS failed to establish that the failure to timely file a request for exclusion was the product of excusable neglect stating in relevant part as follows:
[The law firm] primarily blames an administrative assistant’s purported filing mishaps, even though its attorneys apparently showed minimal interest in taking corrective action or even following up on numerous red flags. [The law firm] places additional blame on opposing parties for not more diligently pressing [the law firm] on its failure to file the opt-out request. KERS and [the law firm] have not come forward with any meaningful explanation for the lengthy delay in acting, which was entirely within their control as was the failure to meet the original deadline. As noted, the Second Circuit has stated that the reason for the missing he neglected deadline is the most important factor in considering excusable neglect, and “that the equities will rarely if ever favor a party who fails to follow the clear dictates of a court rule ….” Silvanich, 333 F.3d at 366; see also In re Painewebber, 147 F.3d at 135-36 (movant’s hospitalization does not establish excusable neglect for subsequent nine-month delay in remedy failure to meet opt-out deadline). For the foregoing reasons, KERS has not established excusable neglect for its failure to timely seek exclusion from the class.
See the Order here.