Silvercreek Management Inc. v. Banc of America Securities LLC

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20026
SILVERCREEK MANAGEMENT INC.;
SILVERCREEK LIMITED PARTNERSHIP;
SILVERCREEK II LIMITED; ONEX INDUSTRIAL PARTNERS LIMITED;
PEBBLE LIMITED PARTNERSHIP,
Plaintiffs-Appellants,
v.
BANC OF AMERICA SECURITIES LLC,
Defendant-Appellee,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Plaintiff-Appellee.
*******************************************
United States Court of Appeals
Fifth Circuit
F I L E D
July 7, 2008
Charles R. Fulbruge III
Clerk

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* District Judge of the Western District of Texas, sitting by designation.
2
SILVERCREEK MANAGEMENT INC.;
SILVERCREEK LIMITED PARTNERSHIP;
SILVERCREEK II LIMITED; ONEX INDUSTRIAL PARTNERS LIMITED;
PEBBLE LIMITED PARTNERSHIP,
Plaintiffs-Appellants,
v.
BANK OF AMERICA CORPORATION,
Defendant-Appellee,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Plaintiff-Appellee.
Appeals from the United States District Court
for the Southern District of Texas
Before SMITH and PRADO, Circuit Judges, and LUDLUM, District Judge.*
JERRY E. SMITH, Circuit Judge:
Silvercreek Management Inc., Silvercreek Limited Partnership, Silver-
creek II Limited, Onex Industrial Partners Limited, and Pebble Limited Part-
nership (collectively“Silvercreek”) appeal the district court’s refusal to extend a
class settlement opt-out deadline as to them. We affirm.

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No. 06-20026
3
I.
Silvercreek sued Banc of America Securities LLC, and Bank of America
Corporation (collectively “BOA”) in two suits for claims arising out of the collapse
of Enron Corporation. Each was consolidated with In re Enron Corp. Securities
Litigation, Newby v. Enron Corp., No. H-01-3624. The Regents of the University
of California (“Regents”) were designated as Lead Plaintiffs.
On January 18, 2005, the Regents filed a motion for preliminary approval
of a $69 million settlement with BOA. All notices, motions, and orders were
served on Silvercreek and other class members through the electronic Enron
securities litigation (“esl”) service system.
The district court issued an order on January 20 setting the briefing sched-
ule, which called for objections by January 26 and replies by February 1. The
preliminary approval hearing was scheduled for February 4.
Silvercreek and its counsel did not attend the hearing. At the preliminary
approval hearing, the court certified a settlement class pursuant to Federal Rule
of Civil Procedure 23(b)(3), preliminarily approved the settlement as fair, and
issued a preliminary order that provided that class members could object to the
settlement by filing a notice of intent to appear at the final approval hearing and
that potential class members could opt out of the settlement class by “timely and
validly request[ing] exclusion.”
The order contained an agreed schedule:
Mailed Notice to be mailed: February 14;
Summary Notice to be published: February 28;
Notices of intent to appear and objections due: March 28;
Final approval hearing: April 11.
The preliminary approval order, which was served on all parties through the esl,
did not list the opt-out date, but the court directed the claims administrator to
fill in the opt-out date, March 28, in the Mailed and Summary notices. The
Summary Notice was to be published in the Investors Business Daily and the

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No. 06-20026
1 At oral argument, Silvercreek argued the addresses in the record are not valid United
States Postal addresses for Toronto, Canada. It is not necessary for us to reach this issue.
4
Houston Chronicle, and the Mailed Notice was mailed to each class member for
whom the Claims Administrator had records.
The preliminary order, which Silvercreek received, directed that all those
“who wish to exclude themselves from the Settlement Class must do so in accord-
ance with the instructions contained in the Mailed Notice;” those “who d[id] not
timely and validly request to be excluded” were to be bound by the settlement
and any applicable releases. The preliminary order was posted to the esl, and
Silvercreek acknowledges receiving it on or around February 4.
The Claims Administrator sent the Mailed Notices and published the Sum-
mary Notices in February. The notices explained the opt-out procedures and
listed March 28 as the opt-out deadline. The Claims Administrator mailed the
notices to various Silvercreek mailing addresses in Toronto, Canada.1
On March 28, State Street Bank and Trust filed a notice of intent to ap-
pear at the settlement hearing in which it noted “the simultaneous deadlines for
returning ‘opt out’ notices and filing objections to the Settlements.” That filing
was served on all parties, including Silvercreek, through the esl. Silvercreek did
not file an objection or a notice of intent to appear at the final approval hearing
by March 28, even though the order it acknowledges it received set that as the
deadline for objecting.
On April 4, 2005, the Claims Administrator submitted a declaration re-
garding the mailing and publication of the notices and attached copies of the fin-
al version of the notice with the opt-out date filled in. That document was served
on all parties through the esl. On the same day, the Regents filed copies of over
two hundred timely opt-out requests, which were also served on Silvercreek
through the esl. Four days later, four parties that had filed separate lawsuits
withdrew their timely opt-out requests.

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No. 06-20026
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Pursuant to the notices, the district court held the final approval hearing
on April 11. Silvercreek did not attend or object in any form. The district court
took the motion for final approval under advisement.
On April 25, Silvercreek checked to see whether it had received the Mailed
Notice and on April 27 filed an opt-out request and moved to extend the opt-out
deadline pursuant to Federal Rule of Civil Procedure 60(b). The district court
denied the motion because Silvercreek had not shown excusable neglect. The
court entered final judgment and dismissed BOA on October 19.
II.
We review the approval of a class settlement for abuse of discretion. New-
by v. Enron Corp., 394 F.3d 296, 308 (5th Cir. 2004). The same standard applies
to an appeal from a rule 60(b) motion. Edward H. Bohlin Co. v. Banning Co.,
6 F.3d 350, 353 (5th Cir. 1993).
To determine whether Silvercreek should have had more time to opt out
on the basis of excusable neglect, we apply the so-called Pioneer factors. La.
Dep’t of Envtl. Quality v. Crystal Oil Co. (In re Crystal Oil Co.), 158 F.3d 291,
298 (5th Cir. 1998). Under Pioneer Investment Services Co. v. Brunswick Associ-
ates L.P., 507 U.S. 380, 395 (1993), the court is to consider prejudice to the op-
posing party, length of the delay, and reason for the delay in determining wheth-
er the claimant’s neglect was excusable and the delay was made in good faith.
Silvercreek incorrectly contends that the district court must rigorously apply
each of these factors in every case.
A court may hold a party accountable for the acts and omissions of its
counsel. Id. at 396-97. In Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d
465, 470 (5th Cir. 1998), we held that counsel’s failure to file a Federal Rule of
Civil Procedure 4(a)(1) notice of appeal on time was not excusable neglect. The
only other Pioneer factor we mentioned was whether the opposing party would

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No. 06-20026
2 In all fairness to Silvercreek, its brief in the district court did contain the term “due
(continued...)
6
be prejudiced. Halicki stands for the proposition that if counsel’s behavior so
thoroughly falls below a certain threshold, a district court’s determination re-
garding excusable neglect will not be disturbed if the court has considered the
moving party’s proffered evidence. Id. at 469.
This case presents a prime example of such conduct. There is no doubt
that Silvercreek’s counsel received the preliminary order through the esl website
and should have noticed the blank space for the opt-out date. Counsel also
should have noticed that the final approval hearing would take place on April 4
and should have inferred that the opt-out date had to be before then.
Even if they could not guess what that date would be, counsel could have
inquired of the court or other counsel as to the opt-out date. Moreover, because
other filings on the esl website explicitly mention the opt-out date, Silvercreek’s
counsel was on notice of that date. The district court did not abuse its discretion
in refusing to extend the opt-out date, because it considered Silvercreek’s prof-
fered evidence and determined that counsel’s performance fell below the thresh-
old required for neglect to be excusable.
III.
Silvercreek urges that the notice procedures implemented by the district
court were inadequate to satisfy due process requirements as to foreign invest-
ors. BOA and the Regents reply that Silvercreek has waived its due process ar-
gument because it did not press it in the district court. We agree.
Failure to raise a due process objection in the district court waives that
objection on appeal. Newby, 394 F.3d at 309. “Litigants must allege constitu-
tional violations with ‘factual detail and particularity.’” Id. Silvercreek did not
do so with respect to its due process claims.2

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No. 06-20026
2 (...continued)
process,” but “due process” is not a magic phrase that preserves every permutation of an ar-
gument.
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In the district court, Silvercreek’s argument was that the opt-out period
was too short for it to exercise that right effectively. On appeal, however, it
claims that the notices were deficient as a matter of due process because they
were not designed to reach foreign class members effectively. These are different
arguments, so the issue is waived.
AFFIRMED.

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