21-3058 (L) Contant v. AMA Cap., LLC

United States Court of Appeals For the Second Circuit August Term 2022 Argued: February 7, 2023 Decided: April 14, 2023 Nos. 21-3058 (L), 22-19 (Con), 22-159 (Con)

JAMES CONTANT, on behalf of themselves and all others similarly situated, MARTIN-HAN TRAN, on behalf of themselves and all others similarly situated, CARLOS GONZALEZ, on behalf of themselves and all others similarly situated, UGNIUS MATKUS, on behalf of themselves and all others similarly situated, JERRY JACOBSON, on behalf of themselves and all others similarly situated, PAUL VERMILLION, on behalf of themselves and all others similarly situated, SANDRA LAVENDER, VICTOR HERNANDEZ, FX PRIMUS LTD., CHARLES G. HITCHCOCK, III, TINA PORTER, Plaintiffs-Appellees, v. AMA CAPITAL, LLC, Movant-Appellant. *

Appeal from the United States District Court for the Southern District of New York No. 17-cv-9934, Lorna G. Schofield, Judge.

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. Before: PARKER, SULLIVAN, MERRIAM, Circuit Judges.

AMA Capital, LLC (“AMA”) is a claimant in an antitrust class-action settlement. The settlement agreement at issue required that each claimant substantiate its claims with such documents as class counsel and the claims administrator, in their discretion, deemed acceptable. The settlement agreement also provided each claimant with the opportunity to (1) remedy deficiencies in its claims before the claims administrator issued its decision, and (2) if the claims administrator rejected its claims in whole or in part, contest the claims administrator’s decision within twenty days of the mailing of the rejection notice. In this case, the claims administrator rejected most of AMA’s claims because, among other things, AMA repeatedly failed to provide the requisite transactional records to support its claims. The district court (Schofield, J.) agreed and also denied AMA’s motion for reconsideration based on documents it submitted subsequent to the claims administrator’s rejection.

On appeal, AMA argues primarily that the district court erred by failing to consider documents it submitted during the post-rejection contest process and by denying its claims on the basis of improper evidentiary requirements. Because we conclude (1) that the claims administrator was not required to accept records during the contest process that were previously available to AMA, which is akin to a motion for reconsideration, and (2) that the district court did not err by denying AMA’s claims, we AFFIRM the orders of the district court on appeal in Nos. 21-3058 and 22-159. Moreover, because AMA has standing as a class member to appeal any denial of its claims, we DISMISS as moot the appeal in No. 22-19, which challenges the district court’s denial of AMA’s motion to intervene.

AFFIRMED IN PART AND DISMISSED IN PART.

SCOTT O. LUSKIN, Payne & Fears LLP, El Segundo, CA (Damian R. Cavaleri, Hoguet Newman, Regal & Kenney, LLP, New York, NY, on the brief), for Movant-Appellant.

2 MICHAEL DELL’ANGELO, Berger & Montague, P.C., Philadelphia, PA (Robert B. McCulley, McCulley McCluer LLC, Charleston, SC; Michael J. Kane, Berger & Montague, P.C., Philadelphia, PA, on the brief), for Plaintiffs- Appellees.

RICHARD J. SULLIVAN, Circuit Judge:

AMA Capital, LLC (“AMA”) is a claimant in an antitrust class-action

settlement. The settlement agreement at issue required that each claimant

substantiate its claims with such documents as class counsel and the claims

administrator, in their discretion, deemed acceptable. The settlement agreement

also provided each claimant with the opportunity to (1) remedy deficiencies in its

claims before the claims administrator issued its decision, and (2) if the claims

administrator rejected its claims in whole or in part, contest the claims

administrator’s decision within twenty days of the mailing of the rejection notice.

In this case, the claims administrator rejected most of AMA’s claims because,

among other things, AMA repeatedly failed to provide the requisite transactional

records to support its claims. The district court (Schofield, J.) agreed and also

denied AMA’s motion for reconsideration based on documents it submitted

subsequent to the claims administrator’s rejection.

3 On appeal, AMA argues primarily that the district court erred by failing to

consider documents it submitted during the post-rejection contest process and by

denying its claims on the basis of improper evidentiary requirements. Because

we conclude (1) that the claims administrator was not required to accept records

during the contest process that were previously available to AMA, which is akin

to a motion for reconsideration, and (2) that the district court did not err by

denying AMA’s claims on the grounds that they lacked the requisite transactional

records, we AFFIRM the orders of the district court on appeal in Nos. 21-3058 and

22-159. Moreover, because AMA has standing as a class member to appeal any

denial of its claims, we DISMISS as moot the appeal in No. 22-19, which

challenges the district court’s denial of AMA’s motion to intervene. 1

I. BACKGROUND

In 2013, individuals and entities who directly purchased foreign-exchange

products from various international banks brought a class action alleging that the

1 We have jurisdiction to review the district court’s orders under the collateral-order doctrine because the orders at issue (1) “conclusively determine[d]” the parties’ dispute over AMA’s denied claims; (2) “resolve[d] an important issue completely separate from the merits of the [underlying class] action”; and (3) were “effectively unreviewable on appeal from a final judgment,” as a final judgment had been entered in the underlying class action from which no appeal had been filed. Am. Plan Admins. v. S. Broward Hosp. Dist.,

(2d Cir. 2022) (stating the requirements for a district-court order to be considered a final decision for purposes of

under the collateral-order doctrine).

4 banks conspired with each other to fix prices in the foreign-exchange market; the

parties ultimately settled that suit in August 2018. See In re Foreign Exch.

Benchmark Rates Antitrust Litig. (FOREX), No. 13-cv-7789 (LGS) (Aug. 6, 2018,

S.D.N.Y.). Separately, in 2017, Plaintiffs – a group of investors in

foreign-exchange products – brought this class action (“Contant”) against the

banks, alleging that through various retail foreign-exchange dealers (“RFEDs”),

Plaintiffs indirectly purchased foreign-exchange products from the banks at prices

that were inflated as a result of the price-fixing conspiracy. By July 2020, the

parties in this action agreed to resolve all indirect claims as part of a $23.6 million

settlement. On November 19, 2020, the district court granted final approval of

the settlement and dismissed the action with prejudice.

As relevant here, the settlement agreement approved by the district court

(the “Settlement Agreement”) defined the class to include “[a]ll persons and

entities who . . . indirectly purchased an [i]nstrument from a [d]efendant or

co-conspirator . . . by entering into an [i]nstrument with a member of the [FOREX

settlement class], where the [FOREX settlement class] member entered into the

5 [i]nstrument directly with a [d]efendant or co-conspirator.” 2 J. App’x at 2098.

To determine a claimant’s class membership and its share of the settlement fund,

the Settlement Agreement required that each claimant “submit a proof of claim”

and provide “such documents or proof as Class Counsel and the Claims

Administrator, in their discretion, may deem acceptable.” 3

. After a

claimant submitted its proof of claim and supporting documents, the Settlement

Agreement authorized “the Claims Administrator” to “determine whether the

proof of claim . . . is in accordance with [the] Settlement Agreement . . . and the

extent, if any, to which each claim shall be allowed, subject to review by the

[district court].”

. Each claimant also had the option of

(1) “[a]uthorizing the Claims Administrator to compute [its] claim based on

records obtained by” Class Counsel,

, or (2) “completing . . . [an] ‘Option

2 The Settlement Agreement also defined “Class Counsel” to include “Berger Montague PC” and “McCulley McCluer PLLC,” and “Claims Administrator” as “Heffler Claims Group.” J. App’x at 2090. 3 Although the Settlement Agreement provided that any claimant who failed to submit a proof of claim before a court-imposed deadline “shall be forever barred from receiving any payment” under the settlement, J. App’x at 2113, the Settlement Agreement also conferred on “Class Counsel . . . the discretion, but not the obligation, to accept late-submitted claims for processing by the Claims Administrator,”

. The district court ultimately imposed a deadline of March 19, 2021, for the submission of a proof of claim.

6 Two Claim Form Spreadsheet’ listing [its] transactions” and “submitting detailed

transactional records to support [its] claim[s],”

.

The Settlement Agreement further stated that “[p]roofs of claim that do not

meet the submission requirements may be rejected,” and required that “[p]rior to

rejection of a proof of claim,” the Claims Administrator “communicate with the

claimant in order to remedy the curable deficiencies in the proofs of claim

submitted.”

. In the event that the Claims Administrator decided to

reject a claim in whole or in part, the Settlement Agreement required the Claims

Administrator to set forth the reasons for its rejection in writing. Any claimant

“desir[ing] to contest such rejection” was then obligated to “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” within

twenty days of “the date of mailing of the [rejection] notice.”

.

Subsequently, “[i]f a dispute concerning a claim [could not] be otherwise

resolved,” Class Counsel was required to “present the request for review to the

[district court].”

AMA submitted its initial proof of claim on May 12, 2021, nearly two

months after the March 19 deadline, but Class Counsel exercised its discretion to

7 accept AMA’s late-submitted claims for processing. In support of its claims,

AMA listed over 17 million transactions in its Option Two Claim Form

Spreadsheet but failed to provide any transactional documents to corroborate

those transactions. Between May 24 and July 8, 2021, Class Counsel repeatedly

informed AMA that its submissions were deficient as they lacked the requisite

account and trade statements to substantiate the trade data provided in its

spreadsheet. Moreover, because AMA had submitted claims in the FOREX

settlement, which included some or all of its transactions submitted in Contant,

Class Counsel also directed AMA to identify duplicate transactions it claimed in

both settlements. In response, AMA only provided “exemplars” of the trade

confirmation messages (known as “FIX messages”) and account statements it

received from various trading venues, which, according to Class Counsel, fell

short of full compliance with its requests.

.

On August 13, based on records submitted by AMA and analyses conducted

by subject-matter experts, the Claims Administrator issued an assessment that

approved in part and rejected in part AMA’s claims. Among other things, the

Claims Administrator found that AMA had not provided documentation

necessary to validate the overwhelming majority of its claims as indirect

8 transactions pursuant to the class definition and failed to identify which

transactions it had submitted for compensation in both this case and FOREX.

Accordingly, the Claims Administrator rejected AMA’s claims with respect to any

transactions that did not qualify as valid indirect purchases or had not been

sufficiently substantiated.

On August 26 and September 2, AMA submitted additional account

statements and FIX messages in response to the Claims Administrator’s

assessment. AMA nonetheless protested that it should not have to spend

innumerable hours locating documents from transactions that were more than a

decade old and disagreed with the Claims Administrator’s conclusion that trades

could not be accepted in both Contant and FOREX. On September 15, after AMA

and Class Counsel attempted but failed to resolve their dispute, Class Counsel

requested the district court’s review pursuant to the Settlement Agreement.

The district court agreed with the Claims Administrator’s assessment,

finding that “all of the claims denied by” the Claims Administrator were “denied

because they all lack[ed] detailed transactional records as required by the

[Settlement Agreement].” Sp. App’x at 5. AMA then moved for

reconsideration, arguing that the district court had overlooked the documents that

9 AMA had submitted during the twenty-day contest period. The district court

denied that motion, explaining that the contest provision in the Settlement

Agreement did not “permit yet another bite at the apple” for AMA “to remedy

deficiencies” in its claims.

. The district court reasoned that “the process

of contesting a rejected claim . . . 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.”

at 17–18. Alternatively, the district court found that “[e]ven if

AMA were entitled to submit additional new documentation following the

rejection of its claim[s] by the Claims Administrator, AMA still [did] not meet its

burden . . . because AMA failed to identify the duplicate transactions it submitted

in FOREX.”

.

AMA separately moved to intervene in the class action under Rule 24(a)(2)

of the Federal Rules of Civil Procedure in order to appeal the district court’s

decisions. Citing Rothstein v. American International Group,

(2d Cir. 2016), the district court denied the motion and found that AMA did “not

need to intervene . . . because, as a class member,” AMA had standing to “appeal

any potential denial of its claim,” Sp. App’x at 8. AMA timely appealed the

10 district court’s rulings on both its claims under the settlement agreement and the

denial of its motion to intervene.

II. DISCUSSION

Because “[d]istrict courts enjoy broad supervisory powers over the

administration of class-action settlements to allocate the proceeds among the

claiming class members equitably,” we ordinarily review the district court’s

“allocations of class settlements” for “abuse of discretion.” In re Agent Orange

Prod. Liab. Litig. MDL No. 381,

(2d Cir. 1987) (internal quotation

marks omitted); see also Masters v. Wilhelmina Model Agency, Inc.,

(2d Cir. 2007) (reviewing “the allocation of funds derived from class settlements”

for “abuse of discretion”); Waldman ex rel. Elliott Waldman Pension Tr. v. Riedinger,

, 147 n.2 (2d Cir. 2005) (“[D]isputes over the valuation of class

members’ shares” are typically left “to the district court and Claims Administrator

to resolve.”). But when an “appeal requires us to consider the district court’s

interpretation of [the] terms of the [s]ettlement [a]greement,” we review the

“district court’s interpretation . . . de novo.” Waldman, 423 F.3d at 148–49.

Moreover, we review a district court’s denial of a motion for reconsideration “for

abuse of discretion” and will affirm its decision unless the movant “can point to

11 controlling decisions or data that the [district] court overlooked.” Van Buskirk v.

United Grp. of Cos., Inc.,

, 53–54 (2d Cir. 2019).

On appeal, AMA argues that the district court erred by (1) failing to consider

documents it submitted during the contest period, (2) rejecting its claims based on

improper evidentiary requirements, and (3) denying its motion to intervene in the

class action for the sole purpose of appeal. 4 Because the district court’s denial of

AMA’s motion to intervene implicates a “jurisdictional standing question,” we

address that argument first “before deciding [the] case on the merits.” Rothstein,

.

A. Motion to Intervene

AMA argues that, to the extent it has no independent standing to pursue

these appeals, the district court erred in denying its motion to intervene. In

Rothstein, we held that a claimant to a class-action settlement fund “should be

considered a party for the purpose of appealing” if it (1) “ha[s] bona fide reasons

to believe” that it is a “member[] of the [s]ettlement [c]lass,” (2) “reasonably relie[s]

4 AMA also attempts to recast its disagreement with the district court’s evidentiary requirement as a due-process challenge. But AMA never argued in the district court that the claims-administration process violated due process. Because we “will not consider an issue raised for the first time on appeal,” Green v. Dep’t of Educ.,

(2d Cir. 2021) – including any unpreserved due process arguments in a class action, see Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,

(2d Cir. 2005) – we decline to consider AMA’s constitutional challenge in the first instance.

12 on claims submitted to [the claims administrator] and [is] given no indication that

they may have been ineligible,” and (3) “most important, . . . ha[s] a concrete and

particularized interest clearly affected by the judgment of the district court.”

.

AMA meets all three criteria. AMA has bona fide reasons to believe that it

is a member of the settlement class because both the district court and Class

Counsel recognized it as such. See Sp. App’x at 8 (the district court characterizing

AMA “as a class member”); J. App’x at 3080 (Class Counsel characterizing AMA

“as an apparent [class] member”). AMA also reasonably relied on the claims it

submitted to the Claims Administrator in asserting its eligibility as a class member.

Moreover, AMA has a concrete and particularized interest in the district court’s

decisions, which determined the extent of its approved claims, and

correspondingly, its pro rata share of the settlement proceeds. We therefore

agree with the district court that AMA has standing “as a class member” to

“appeal without intervening.” Sp. App’x at 8. As such, we “dismiss as moot

[AMA’s] appeal of the district court’s denial of the motion to intervene.”

Rothstein,

.

13 B. Documents Submitted During the Contest Period

Likening the contest process under the Settlement Agreement to a motion

for reconsideration, the district court concluded that AMA had been provided

with an opportunity to “remedy the curable deficiencies prior to rejection” and

therefore declined to consider the “new detailed transactional records” that AMA

submitted after the Claims Administrator’s rejection. Sp. App’x at 17. This

ruling was not in error.

“A settlement agreement is a contract that is interpreted according to

general principles of contract law.” Omega Eng’g, Inc. v. Omega, S.A.,

(2d Cir. 2005). When “a written agreement . . . is complete, clear[,] and

unambiguous on its face,” we must enforce the agreement “according to the plain

meaning of its terms.” In re World Trade Ctr. Disaster Site Litig.,

(2d Cir. 2014). Here, the express terms of the Settlement Agreement permit

claimants the opportunity to “remedy the curable deficiencies” in their claims

“[p]rior to rejection,” J. App’x at 2114, and “to contest such rejection . . . after” the

Claims Administrator issued its assessment, id. at 2115 (emphasis added).

It is significant that the Settlement Agreement uses two different words –

“remedy” and “contest” – to describe the dispute-resolution process before and after

the Claims Administrator issues its assessment. Id. at 2114–15 (emphasis added).

14 In common usage, “remedy” means to “set right []an undesirable situation,”

Remedy, New Oxford American Dictionary (3d ed. 2010), whereas “contest” means to

“oppose []an action, decision, or theory[] as mistaken or wrong,” Contest, New

Oxford American Dictionary (3d ed. 2010). 5 When a claimant seeks to remedy its

claims before the Claims Administrator’s rejection, the claimant may do all things

necessary to “set right” the deficiencies in its claims. Remedy, New Oxford

American Dictionary (3d ed. 2010). But when a claimant seeks to contest the Claims

Administrator’s rejection, that process serves the limited purpose of allowing the

claimant to object to “mistake[s]” and “wrong[s]” committed by the Claims

Administrator. Contest, New Oxford American Dictionary (3d ed. 2010). As the

district court recognized, the contest process under the terms of the Settlement

Agreement is therefore akin to a motion for reconsideration, which may be used

as a vehicle “to correct a clear error or prevent manifest injustice,” Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,

(2d Cir. 2013), but not

5See also Remedy, OED Online, www.oed.com/view/Entry/162130 (“To put right, reform (a state of things); to rectify, make good.”); Remedy, Merriam-Webster.com, https://www.merriam webster.com/dictionary/remedy (“[To] correct[] or counteract[.]”); Contest, OED Online, www.oed.com/view/Entry/40191 (“[T]o argue against, dispute, controvert, call in question.”); Contest, Merriam-Webster.com, https://www.merriam webster.com/dictionary/contest (“[T]o make the subject of dispute, contention, or litigation.”).

15 to “relitigate an issue already decided,” Shrader v. CSX Transp., Inc.,

(2d Cir. 1995).

In this case, before the Claims Administrator issued its assessment, AMA

was given at least four opportunities to cure what Class Counsel had identified as

documentary deficiencies in its proof of claim. AMA nonetheless repeatedly

declined to comply. 6 The Claims Administrator therefore rejected AMA’s claims

because AMA had not provided documentation necessary to validate the

overwhelming majority of its claims. In response, AMA did not “oppose” the

Claims Administrator’s finding that it had not provided the requested

documentation “as mistaken or wrong.” Contest, New Oxford American Dictionary

(3d ed. 2010). Instead, AMA sought to submit records that had been available to

AMA all along, but which AMA had deemed too burdensome to provide. Given

the express terms of the Settlement Agreement and the record before us, we cannot

6 AMA argues that the Settlement Agreement required the Claims Administrator to communicate with the claimants regarding any deficiencies before making a determination, and because “the [C]laims [A]dministrator was [merely] copied on some emails with [C]lass [C]ounsel, but did not communicate or participate [directly] in any discussions” with AMA regarding its claims, the district court’s order “requires reversal.” AMA Br. at 33. We are not persuaded. Nothing in the express terms of the Settlement Agreement requires direct communications between Claims Administrator and the claimants. And even if it did, there is no indication in the record that the outcome for AMA’s rejected claims would have been different if the Claims Administrator, rather than Class Counsel, conducted the communications.

16 conclude that the district court erred by declining to consider the documents that

AMA submitted after the Claims Administrator issued its assessment.

AMA nonetheless contends that the remedy process before the Claims

Administrator’s rejection and the contest procedure thereafter both require that

claimants be given an opportunity “to cure all defects.” AMA Br. at 30 (emphasis

added). We disagree. Under New York law, which governs the Settlement

Agreement, “[t]he use of different terms in the same agreement . . . implies that

they are to be afforded different meanings.” Jin Ming Chen v. Ins. Co. of the State

of Penn.,

, 140 (2020) (alteration in original) (citing Platek v. Town of

Hamburg,

(2015)). To adopt AMA’s interpretation would instead

require us to “run[] afoul of traditional contract principles,” Kelly v. Honeywell Int’l,

Inc.,

(2d Cir. 2019), and “strip” the distinct words in the

Settlement Agreement of their “independent meaning[s],” Christopher v.

SmithKline Beecham Corp.,

, 163 n.20 (2012). We therefore decline to

conflate the contest procedure with the remedy process under the Settlement

Agreement.

C. Evidentiary Standards

Nor do we agree with AMA’s argument that the district court denied its

claims based on improper evidentiary standards. We have long held that “a

17 class-action settlement agreement binds all class members who did not” timely opt

out. In re Am. Exp. Fin. Advisors Sec. Litig.,

(2d Cir. 2011)

(collecting cases). The Settlement Agreement here provided that each claimant

must submit “such documents or proof as Class Counsel and the Claims

Administrator, in their discretion, may deem acceptable.” J. App’x at 2113.

Claimants who chose not to rely on Class Counsel to compute their share of the

settlement fund were thus required to “submit[] detailed transactional records to

support” their own computation. Id. at 2702.

After AMA submitted its claims, Class Counsel repeatedly asked AMA to

provide account or trade statements to substantiate the trade data listed in its

spreadsheet containing over 17 million transactions. Despite Class Counsel’s

repeated requests, AMA refused to comply, arguing that providing

documentation for all trades submitted would be overly burdensome. Based on

the limited records that AMA did provide, the Claims Administrator found,

among other things, that AMA had not provided documentation necessary to

validate the overwhelming majority of its claims and rejected AMA’s claims with

respect to any transactions that had not been sufficiently substantiated.

18 The district court agreed with the Claims Administrator’s determination,

finding that “all of the claims denied by” the Claims Administrator were “denied

because they all lack[ed] detailed transactional records as required by the

[Settlement Agreement].” Sp. App’x at 5. Although the district court’s own

analysis was terse, it relied on the extensive briefings submitted by the parties and

the assessment prepared by the Claims Administrator, which comprehensively

identified the defects in AMA’s claims. Therefore, in agreeing with the Claims

Administrator, the district court properly based its allocation of the settlement

fund on “the comparative strengths and weaknesses of the asserted . . . claims,”

In re Holocaust Victim Assets Litig.,

(2d Cir. 2005), “without

resolving trial-type issues of liability” for each submitted transaction, Agent

Orange,

(alteration and internal quotation marks omitted). For

these reasons, we cannot conclude the district court erred by partially rejecting

AMA’s claims.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s orders on

appeal in Nos. 21-3058 and 22-159 and DISMISS the appeal in No. 22-19 as moot.

19