933 F2d 400 Gaff v. Federal Deposit Insurance Corporation

933 F.2d 400

59 USLW 2757

Joel R. GAFF, on behalf of himself, as a class action on
behalf of all others similarly situated, and as a
stockholder's derivative action for the
benefit of the corporation,
Plaintiff-Appellant,
Federal Deposit Insurance Corporation, in its corporate
capacity, Intervening Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Receiver of National
Bank & Trust Co. of Traverse City, a National Banking
Association, et al.; David E. Pearce; Bruce W. Mann; and
other unknown defendants (88-1566), Defendants-Appellees.
Robert S. COLLINS; Maxine Collins; Mark S. Collins; Karen
Collins Brown; Margaret C. Strong; Carter C. Strong, Jr.;
Brian E. Strong; Nancy R. Strong; Arthur Versluis; Frank
W. Tezak; Donald Arnold; Thereon McGillis; Elizabeth
McGillis; Howard Reenders; Bernard Schiopieray; Virginia
Schiopieray; Keith Rose; Donald G. Jennings; Donald C.
McKenzie; Amber C. Mark; Bernard L. Pleva; Irene Pleva;
Paul Pleva; John R. Pleva; Donna K. Pleva; Vernon
Elzinga; George W. Kelderhouse; Agnes C. Kelderhouse;
Gerald J. Brow; William C. Andresen; Diann Godbold, on
behalf of themselves, and as a class action on behalf of
others, as herein described, defined, similarly situated,
Plaintiffs-Appellants,
v.
Bruce W. MANN; Bernard J. Kroupa; James P. Preuett, and
other unknown defendants (89-1044/1066),
Defendants-Appellees.

Nos. 88-1566, 89-1044 and 89-1066.

United States Court of Appeals,
Sixth Circuit.

May 20, 1991.

ORDER ON MOTION FOR APPROVAL OF SETTLEMENT AND ON PETITION TO REHEAR

Before MERRITT, Chief Judge, NELSON, Circuit Judge, and LIVELY, Senior Circuit Judge.


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1

After issuing its opinion in the Gaff case, No. 88-1566, on November 19, 1990, 919 F.2d 384, the Court requested our Court's Settlement Officer, Mr. Robert Rack, to determine if the Gaff case, No. 88-1566, and the Collins case, Nos. 89-1044 and 89-1066, may be settled in order to avoid the expense of further litigation. As a result the parties to both cases, which arise from a common core of operative facts, have now settled their claims. The settlement includes the reinstatement of the District Court's decision of November 1988 in the Gaff case, No. 88-1566, dismissing the shareholder claims and the dismissal of the Collins appeals. The Court approves the settlement agreement.

2

Accordingly, it is so ORDERED.

3

After considering the settlement process undertaken and the parties' petition to rehear, we modify our opinion in the Gaff case on November 19, 1990, No. 88-1566, by adding at the end of Section III of our opinion the following paragraph:

4

Where settlement of litigation involving FDIC would be facilitated by the prior adjudication of the legal sufficiency of the shareholder claims under Rule 12(b)(6), on summary judgment, or otherwise, the district court may lift the stay on the prosecution of shareholder claims and proceed to determine the sufficiency thereof. As a result of the settlement process and the rehearing petitions, the Court has learned that its prior opinion did not take fully into account the procedural steps needed to facilitate a settlement process in such cases. We therefore make this modification in our earlier opinion.

5

Accordingly, it is so ORDERED.