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In re Cendant Corporation Prides Litigation

August 27, 2001

IN RE: CENDANT CORPORATION PRIDES LITIGATION


The opinion of the court was delivered by: Walls, District Judge.

FOR PUBLICATION

OPINION

Before the Court is the renewed motion by Chase Manhattan Bank ("Chase") pursuant to Rule 60(b) for relief from this Court's January 14, 2000 order, which granted Cendant's motion to disallow claims made by Chase on behalf of certain funds, Income Fund of America ("IFA") and Word Growth Fund ("World Growth") to participate in the settlement of this action. The renewed motion also seeks relief from the initial denial by the Claims Administrator, Valley Forge Administrative Services ("Valley Forge") of the claim made by Chase on behalf of its Capital Income Builders ("CIB") fund.

In this Court's June 7, 2000 Opinion (the "June 7 Opinion"), this Court denied Chase's motion and found that Chase had not established the requisite excusable neglect under Rule 60(b) for its late cure of the IFA and World Growth claims and its failure to cure the CIB claim. See In re Cendant Prides Litig., 98 F. Supp.2d 602 (D.N.J. 2000). The Third Circuit reversed and remanded for further findings of fact and additional explanation of the relevant factors for excusable neglect under Pioneer Investment Services, Inc. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993), and its progeny. In re Cendant Corp PRIDES Litig., No. 00-1822, 2000 WL 1770019 (3d Cir. Dec. 1, 2000) ("Prides II"). The motion is again denied.

BACKGROUND *fn1

I. Chase's Proofs of Claim

Chase filed claims on behalf of three funds for which it served as trustee and which held PRIDES as of April 15, 1998: Income Fund of America ("IFA"), World Growth Fund ("World Growth") and Capital Income Builders ("CIB"). Chase had submitted timely Proofs of Claim for each of these three clients, which included computer printouts which listed each fund's purchases of Prides. Valley Forge determined that none of these Proofs of Claim included the proper supporting documentation to establish that each Chase client held Prides as of April 15, 1998, as required by the settlement and the instructions for the Proof of claim forms. The instructions directed that claimants submit either monthly brokerage account statements or other documents maintained in the ordinary course of business which indicated that the Prides were held as of April 15, 1998. Chase argues that all three of its proofs of claim forms were not deficient and that Valley Forge should not have rejected them on the basis that computer screen printouts were not maintained in the ordinary course of business. In addition, Chase argues that even if the Proofs of Claim were deficient, it is entitled to relief under Rule 60(b) for its failure to cure the CIB claim and its late cure of the IFA and World Growth claims.

A. CIB

Cendant contends that Valley Forge sent Chase a request to cure the Proof of Claim for CIB on July 19, 1999. Chase did not respond to the July 19, 1999 request to cure. JA 936. Chase claims that it never received this letter. JA 936. Cendant also claims that because Chase did not respond to this letter, Valley Forge sent an August 17, 1999 letter that advised Chase its CIB claim had been rejected. JA 1051. Chase claims it also did not receive this letter. JA 936. Chase received 145 other rejection letters which properly denied claims on behalf of other Chase-Cendant securities accounts which did not hold Prides. JA 936; 932. Chase was sent an August 5, 1999 letter that also contained a request to cure. The August 5, 1999 letter is stamped "received" by Chase's Class Action Group on November 15, 1999. JA 922. This letter stated:

We have not received your response to our request for additional documentation that indicates holdings in Cendant PRIDES as of 41/15/98. The documentation you provided only indicates purchases as of 3/2/98, please [sic] provide any additional documentation to show all transactions through 4/15/98. . . . JA 992.

The form requested that Chase fill out and sign the bottom of the form which provided a space to fill in the number of PRIDES held as of April 15, 1998. JA 992. It also asked for additional documentation, such as a monthly brokerage statement or "a letter from an authorized representative or your institution showing the necessary information with a signature guarantee." JA 992. Apparently, Alex Marengelli, Second Vice President of Special Services, filled out this form and sent it in to Valley Forge in an envelope post-marked January 4, 2000. See JA 935, at ¶ 20.

Chase asserts that as a result of its failure to receive all of these letters, it remained unaware of the rejection of the CIB claim until it investigated "its failure to receive the Rights due on its claims." See Chase Br., at 7; JA 1040-43.

B. IFA and World Growth

Valley Forge sent two letters to Chase dated July 15, 1999, which requested proper documentation for IFA and World Growth that those accounts held Prides as of April 15, 1998. JA 990-91. Those letters also required a response within twenty days of the date of the letters. Chase claims that the language that references the twenty day deadline was in "non-prominent" print at the bottom of the one-page letter. Chase Br. at 9. Chase asserts that because the letters were not received until July 28, 1999 by Chase's Class Action Group in New York City, an inference can be drawn that the letters were not mailed on July 15, 1999, as indicated on the letters. Chase Br. at 9; JA 937.

Heather Collins, a securities clerk at the Class Action Group, received the July 15 requests to cure on July 28 and states that she began to process them. JA 1031-32. According to her, the request to cure requested either "complete March and April 1998 monthly brokerage statement[s] or complete year-end transaction summary from your brokerage firm" or "Page 1 of your monthly statement or a trade confirmation slip." JA 1032, ¶¶ 5-6. She states that because the PRIDES held by IFA and World Growth were not held in a brokerage account, such records did not exist, and it was unclear to her what records she could submit. Id. at ¶ 9. Furthermore, she would have consulted with her supervisor, Monica Watson, but Ms. Watson was out ill during that week. Id. at ¶ 9. She states that she called various Chase officers to determine what records would qualify and eventually determined that the "TN2 754: Security Holders Report" would suffice. See id. at ¶ 10-11. She argues, however, that because she received the letter on July 28, she had only seven days remaining to respond, two of which were weekend days, and consequently she did not have enough time to respond. Id. at ¶ 12. She eventually faxed the documentation to Valley Forge on August 12, 1999. Id. at ¶ 14. This was technically eight days late according to the July 15 mailing date of the requests to cure, or four days late as a result of the court's addition of the four-day mailing grace period in its January 14 order. Ms. Collins further asserts that on August 12, 1999, she called Valley Forge to confirm that the fax was received. A woman named "Danielle" at Valley Forge informed Ms. Collins that "IFA's and World Growth's Proofs of Claim were now in order." Id. at ¶ 14. Valley Forge approved the IFA and World Growth claims for participation in the settlement. JA 921-923. *fn2

Chase argues that Ms. Collins was unable to respond within the required time because the requests "demanded that Chase provide brokerage statements" for the IFA and World Growth claims, which was impossible. Chase Br. at 9, JA 1033-34. The requests to cure also stated, "These documents must indicate the number of Growth and/or Income Prides held as of April 15, 1998." JA 990-991. Chase argues that the requests to cure did not reference the option of producing other types of records maintained in the ordinary course of business, an alternative explicitly made available in the original instructions to the proof of claim form. JA 409, 938.

Valley Forge sent Chase two follow-up request to cure letters dated August 5, 1999 regarding IFA and World Growth, identical to that sent for the CIB claim. Chase states that it did not receive these two letters at its Class Action Group until November 15, 1999, and the letters both bear stamps with that date. See JA 939-940, at ¶ 33. Alex Marengelli filled out both forms and sent them to Valley Forge in an envelope dated January 4, 2000. See JA 940, at ¶ 34.

Valley Forge claims to have sent to Chase letters dated August 27, 1999 with regard to the IFA and World Growth claims, which advised that Chase should submit excuses for the late cures to the Court by September 6, 1999. Chase responds that it did not receive either August 27 letter. It further argues that the IFA letter must have been misdirected because the wrong control number was contained on the IFA account notice (7808 instead of 7807).

II. Cendant's Motion to Disallow Proofs of Claim

On September 7, 1999, Cendant filed a motion to disallow proofs of claim that were accepted by Valley Forge after the filing deadline or were cured after the deadline to cure deficient Proofs of Claim. Lead Counsel cross-moved on behalf of class members whose claims were disputed for an extension of time to file late claims and late cures under Fed. R. Civ. P. 6(b)(2). On October 21, 1999, this Court denied Cendant's motion and granted Lead Counsel's cross-motion for an extension of time for the "late claim" claimants to submit proofs of claim and for the "late cure" claimants to submit cure documentation. In re Cendant Corp. Prides Litig., 189 F.R.D. 321, 327 (D.N.J. 1999) ("October 21 decision"). The deadline for submission of claims and cure documentation was extended to September 7, 1999. This Court stated that it would review the reasons for each late claim and late cure to determine if the delay was caused by "excusable neglect." Id. The Court further held:

Lead Counsel is invited to submit additional information provided by these claimants to support their disputed claims if such information was sent before the cut-off date of September 7, 1999. The Court will examine these claims for validity at the time it conducts its "excusable neglect" analysis of late claims. Id. at 328. *fn3

On January 14, 2000, this Court finished its analysis of the late claims and late cures and issued an order which allowed certain late claims. See In re Cendant Corp. Prides Litig., slip op. (D.N.J. Jan. 14, 2000) (the "January 14 order"). That decision allowed late cure claimants a four day grace period in addition to the twenty days allotted by the requests to cure. JA 27-32. On February 22, 2000, the Court issued an order that authorized distribution of rights to settling Prides plaintiffs and designated the October 21 and January 14 decisions as final and appealable judgments.

The January 14 order disallowed the claims of 56 "late cure" claimants and those of 30 "late claim" claimants. Among the claims the Court rejected were those submitted by Chase on behalf of IFA and World Growth, because no excuse had been provided by September 7 as required. See JA 32. The decision referred to the IFA claim as "Investment Compa[n]y of America," because it had been listed under this name in Cendant's brief, although both Cendant's brief and the January 14 order listed the correct control number for IFA, 7807. Because the claims administrator had denied the CIB claim due to Chase's failure to provide any cure documentation, that claim was not included either in Cendant's motion or mentioned in the January 14 Order. Lead Counsel wrote to the rejected claimants to inform them their claims had been denied and that they should retain new counsel to pursue any appeal. JA 1023. Lead Counsel sent this letter to Chase by Federal Express to a clerk in a Brooklyn Chase office, at Chase's direction.

III. Chase's Rule 60(b) Motion

On April 24, 2000, Chase moved under Rule 60(b) to modify the Court's January 14 and February 22 Orders, due to "mistake, inadvertence or excusable neglect," to approve its Prides settlement claims. *fn4 It also moved to vacate Valley Forge's denial of the CIB claim.

On June 7, 2000, this Court denied Chase's motion. Under the "excusable neglect" standard, the Court found that Chase had provided an insufficient reason for its delay. It found that the delay was caused primarily by Chase's mail routing system and no one else and that such was not outweighed by factors such as Valley Forge's mistaken identification of Claim 7808 as Income Company of America instead of IFA. See 98 F. Supp.2d at 607-608. Specifically, this Court stated:

The unjustified ineptitude of Chase evidences its neglect to timely file requests to cure, its neglect to participate in the challenges to disputed claims in the fall of 1999, and its failure to file this motion until April 2000 although Lead Counsel had informed it of the rejections in January 2000. These circumstances of neglect are inexcusable. Also the Court has the (circumstantial) sense that Chases's ". . . asserted inadvertence[s] reflect[] an easily manufactured excuse incapable of verification by the court." Id. at. 608, quoting Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988).

This Court also rejected Chase's argument that its due process rights were violated by the 20-day response to cure deadline, because the claim timeline was heavily negotiated by the parties and Chase did not seek to intervene to object to the settlement deadlines. Id. at 608. Moreover, the Court found the 20-day response time reasonable because the Prides claimants already had 30 days to respond to the initial notice, were on notice of the settlement, knew what type of information was required to prove ownership and had already gathered and sent in at least some of the relevant information. See id.

Chase appealed this Court's decision. The Third Circuit remanded and directed this Court to explain in further detail its analysis of the Pioneer factors, which include (1) the danger of prejudice to the non-movant; (2) the reason for the delay; (3) the length of delay and impact of that delay on judicial proceedings; and (4) Chase's good faith in bringing the motion. In re Cendant Corp Prides Litig., 2000 WL 1770019, *3-5 (3d Cir. Dec. 1, 2000) ("Prides II"), citing Pioneer, 507 U.S. at 395. It found that although the Court had discussed the reason for delay with respect to the Growth and IFA claims, it directed this Court to examine "both [Valley Forge's] and [Lead Counsel's] actions in determining whether Chase's delay [was] excusable." Id. at *5. With regard to the prejudice factor, the Circuit referred this Court to the Circuit's earlier opinion which had found that Cendant would not be prejudiced by allowing additional claims to proceed. Prides I, 2000 WL 1741748, at *4 n. 8. Finally, the Third Circuit directed this Court to fill in certain "factual gaps" that it considered necessary to analysis of the Pioneer factors. Id. at *5-6. Although that Court cautioned this list was not "exhaustive," it asked this Court to consider the following:

1. Whether the critical August 27, 1999 letters "were sent, and if so, which party lost them";

2. Whether under the October 21, 1999 order, the Court would have been willing to consider any excuses that were offered after September 7, 1999;

3. Whether it was reasonable for Class counsel to have sent the January notification letter by Federal Express to the Brooklyn address, instead of to the designated P.O. Box by mail, and whether Federal Express delivers to P. O. Boxes; and

4. Whether it was reasonable for Class counsel not to have faxed the January notification letter in addition to the Federal Express copy sent. Id. at *5-6. *fn5

DISCUSSION

Specific Factual Issues: The Letters

The Third Circuit has asked this Court to examine the degree to which the actions of the Settlement Administrator and/or Lead Counsel may have contributed to the various delays that led to the ultimate failure of Chase to provide either its cure documentation for CIB or excuses for its late cure of the IFA and World Growth claims. As directed, this Court will examine each of the four enumerated factual issues in detail. A complete set of factual findings and conclusions of law follows. Specifically, the Third Circuit directed this Court to determine whether the August 27, 1999 letter(s) were actually mailed, and if so, which party lost them, as well as any other important factors. Prides II, 2000 WL 1770019, at *5. In order to evaluate the relative culpability, if any, of Lead Counsel and Valley Forge, as compared to Chase, this Court believes it is necessary to evaluate the circumstances surrounding all of the numerous letters which Chase claims it either did not receive or received late.

Valley Forge claims to have sent request to cure letters to Chase for each of its three funds; follow-up request to cure letters to each of the three; a Notice of Disallowance letter with regard to CIB; and August 27, 1999 letters with regard to IFA and World Growth, which requested that claimants send explanations to the Court as to why claims and/or cure documentation were sent late. To establish that Valley Forge mailed the various letters, Cendant submits two affidavits by Christopher Ewing, Assistant Vice President of Valley Forge. JA 1100, 1243. Ewing was the Assistant Vice President of Valley Forge and was responsible for day-to-day services regarding administration of the Prides settlement. With regard to the specific letters that were sent to Chase, Ewing states:

9. . . . CIB, Control No. 7756, was sent a Request to Cure letter dated July 19, 1999, to the address on the Proof of Claim. . . . No response was received by VFAS to either the July 19th letter or an August 5, 1999 letter that was sent as a second request to cure. Accordingly, VFAS sent to Chase a Notice of Disallowance letter on August 17, 1999 rejecting the CIB claim. . . . The August 17, 1999 letter sent to Chase, as well as all other rejection letters sent by VFAS, clearly indicated that the claim was rejected. Specifically, the rejection letters, including the August 17th letter to Chase, stated that the claimant had the right to seek review of "this decision rejecting your claim" by the Court, and that "[y]ou must file such a request with the Court within 20 days from the date of this rejection notice."

10. On July 15, 1999, VFAS sent to Chase a Request to Cure letter for each of IFA (Control No. 7807) and World Growth (Control No. 8259) . . . . The two letters were sent to the P.O. box identified by Chase in the Proofs of Claim as the address at which to send such materials.

11. On August 12, 1999, Chase sent to VFAS, by fax, copies of the July 15, 1999 Request to Cure letters for IFA and World Growth, indicating by a stamp thereon that they had been received by the Chase Class Action Department on July 28, 1999. . . . The August 12th fax included documentation to support the claims for IFA and World Growth. However, it was sent by Chase more than 20 days after the Request to Cure ha been sent by VFAS, and therefore was considered an untimely response to the cure request.

12. By letters dated August 5, 1999, VFAS had also sent to Chase, on behalf of IFA and World Growth, second Request to Cure letters. Those letters were also sent to the same P.O. box that Chase had listed in its Proofs of Claim. As with the July 15 Request to Cure letters, VFAS had not reason to believe that the August 5 letters did not reach the P.O. box within a day or two of their mailing.

13. On August 27, 1999 the [letters which urged claimants to write to the Court to explain why the Proof of claim was submitted after the June 18, 1999 deadline, or why the cure materials were received after the 20 day deadline, and that such information had to be received by the Court by September 6], were sent to all claimants who had filed late claims or late cures, including to Chase on behalf of IFA and World Growth. The August 27th letters were sent to Chase on behalf of IFA and World Growth because they had filed late cures and the claims were going to be objected to by Cendant. The August 27th letters sent to Chase were sent to the same P.O. box that Chase had listed on its Proof of Claim forms for IFA and World Growth. The August 27th letter was not sent to Chase for CIB because it had not responded to any request to cure.

14. No envelope mailed to Chase was ever returned to VFAS as being undelivered or undeliverable by the U.S. Postal Service.

15. All letters sent to Chase as described in the foregoing paragraphs, were mailed on the dates indicated on the letters. JA 1102-1104 ¶¶ 9-15.

Valley Forge claims to have sent Chase August 27, 1999 letters for both IFA and World Growth which requested that Chase provide explanations to the Court for the late cure of these claims. JA 0148. Those letters stated:

The claim you filed was either received by Valley Forge Administrative Services, Inc. ... after the deadline for filing or your response to the cure notice was received after the 20-day allowable period.

VFAS and class counsel believe that your claim should be accepted as valid. Cendant Corporation's Counsel may object to your claim being approved by the Court.

In many, but not all, instances class counsel for the plaintiffs in this matter will advocate to the court that minor deficiencies are to be resolved in your favor.

We cannot predict the outcome. We urge you to write to the Court explaining why the form was submitted after the June 18, 1999 deadline, or why the cure notice was completed and submitted when it was.

Your letter must be received by the Court by September 6, 1999 JA 1056 (emphasis added).

Ewing describes the following general office procedures with regard to the July 1999 request to cure letters, the August 5, 1999 letters, the August 17, 1999 notices of disallowance, and the August 27, 1999 letters:

7. Each of the types of documents described above were mailed by First Class U.S. Mail on the date reflected on the document. The Request to Cure letters, disallowance letters and August 27 letters were placed in envelopes addressed to the claimants, based upon addresses they had provided on their Proofs of Claim. Each envelope contained a return address that was printed on the envelope. Each envelope contained appropriate First-Class postage. VFAS maintained copies of every letter sent out in connection with its services rendered. . . . JA 1102 ¶ 7 (emphasis added).

Regarding the August 27, 1999 letters, he also asserts, "The name and address of the actual claimant was contained on the mailing label for the envelope into which each of the August 27, 1999 letters were placed." JA 1102 ¶ 6.

Chase argues that it did not receive the CIB request to cure letter or the August 17 rejection letter for CIB. Chase argues that it likely did not receive the letters because they probably were not mailed. Although Christopher Ewing, Valley Forge's former president, previously submitted a sworn statement that all request to cure letters had been mailed on or before July 17, 1999, Chase states that Valley Forge now concedes that the alleged request to cure was sent on July 19, 1999. Valley Forge does not dispute that this request to cure letter was actually sent on July 19 instead of July 17 as originally asserted. *fn6 Chase advances as evidence that those two letters were likely not mailed its receipt of the 145 other rejection letters sent by Valley Forge with regard to Chase's claims on behalf of other funds which held Cendant securities, but not Prides.

Chase asserts that it did not receive the IFA and World Growth request to cure letters until July 28, 1999 at its Class Action Group. Chase submitted an affidavit to claim that it is not unusual for mail to take 10 to 15 days to reach Chase's P.O. Box, due to delays caused exclusively by the U.S. Postal Service. According to Anthony Olszewski, a Chase Vice President in the Risk Management Group, he conducted an investigation of the mail distribution at Chase. He says that ordinarily, it takes only three to four business days for mail to circulate from the P.O. Box to the appropriate person in the Class Action Group, but that sometimes, mail received at the P.O. Box might be postmarked up to 10-15 days before its arrival. See JA 1038; 1241-42. Chase advances that the delays in receipt at its Class Action Group are not due to internal mail distribution delays but are more likely due to long delays by the U.S. Postal Service. Chase Br. at 30. Furthermore, Chase avers that Valley Forge did not consistently mail letters on the dates reflected. It offers as evidence a request to cure letter dated July 7, 1999, which was apparently contained in an envelope dated July 8, 1999. *fn7 See Cendant Br. at 28; JA 1157-58, 1209-10. It also points out that the notice letter which informed Chase incorrectly that it was to receive distribution of Rights on March 14, 2000 was actually postmarked March 16, 2000. See Cendant Br. at 28; JA 1019-1020. Chase maintains that this evidence of some delays in the mailing of requests to cure and other notice letters negates Ewing's assertion of mailing dates. Because, according to Chase, Ewing's assertion that the letters were mailed on the dates indicated does not demonstrate that the IFA and World Growth request to cure letters were actually mailed on those dates, Chase concludes that Cendant has failed to establish that Chase's responses to those letters were in fact late.

Chase also argues that Ms. Collins responded promptly to the request to cure letters once she received them, and contends that eleven days was a reasonable amount of time to respond to what it maintains was a confusing notice. Chase Br. at 31. Furthermore, Chase argues that the 20-day time restriction was unreasonable because it failed to take into account normal potential delays in the arrival of mail and internal distribution. Id.

Chase argues that it did not receive an August 27 letter for any claim because it has no record of receipt of the August 27 letters. See JA 940 ¶ 35. Chase advances the following facts as evidence the letters were not mailed as Valley Forge and Cendant contend:

§ 58 % of the 149 late cure claimants and 56% of the 54 late claim claimants did not provide an excuse to the Court in response to the August 27 letter (Chase Br., at p. 12; JA 1154-56);

§ Valley Forge addressed the letters only to "Claimant" to save space instead of using the full address as it usually did (Chase Br. at 12; JA 1030; JA 1056);

§ Valley Forge omitted contact person names, organizations and account numbers on the envelopes (Chase Br., at 13; JA 1156-57; 1181-1208);

§ the letters were prepared, addressed and mailed during a hurricane when Valley Forge lost electrical power (Chase Br. at 13, 37; JA 1243);

§ because of the power outage, Valley Forge handwrote claimants' names and addresses on 40% of the envelopes, without keeping track of which ones were hand-addressed (Chase Br. at 13, 38; JA 1243); and

§ Valley Forge provided no evidence how its staff reliably accomplished the mailing without lights, how it was able to deliver the letters to the Post Office in the middle of a hurricane, or which 40% were hand addressed and which were not (Chase Br. at 13).

Cendant argues that Ewing's affidavit sufficiently establishes its regular office mail procedures and describes the regular mail procedures used with regard to the August 27 letters. Cendant Br. at 4-5. Chase maintains that this evidence is insufficient to substantiate Valley Forge's claim that it mailed the letters because Ewing did not claim personal knowledge of the mailing of any specific letter. Nor did Cendant submit any records from Valley Forge to corroborate Ewing's declaration, such as mailing receipts, mailing labels or computerized mailing lists. (Chase Br. at 8.) Moreover, says Chase, Valley Forge sent Chase a March 14, 2000 letter which advised that it was about to receive settlement proceeds, indicating that Valley Forge's computer records might contain errors. (Chase Br. at 8.) According to Chase, Valley Forge has never explained this error. (Id.)

With regard to the August 27, 1999 letters, Chase contends that Cendant sets forth no evidence concerning established procedures to address the letters--"how Valley Forge ensured that letters were fully and properly addressed, contained the intended communication, were correctly stamped and were placed in the hands of the Postal Service." Chase Br. at 43-44. It argues that this refutes Valley Forge's "conclusory" assertions that they were mailed or properly addressed. According to Chase, "The 58% response rate indicated that many late cure claimants were totally unaware of the need to submit an excuse." Chase Br., at 39.

Cendant contends that Chase's affidavits which deny receipt of the letters, along with its evidence of regular mail handling procedures, rebut any presumption of receipt of the missing letters or timely receipt of the late-received letters. Mr. Olszewski's declaration details a nine-step mail distribution procedure. He claims that mail typically takes three to four days to be routed to te Class Action Group, but asserts that he has noticed delays as long as ten to fifteen days between the postmark date and date of receipt at the P.O. Box. See JA 1036-39; 1241-42. 1241-42. Chase submits the Declaration of John Hughes, a Senior Vice President in charge of U.S. Securities Operations, which includes the Class Action Group. See JA 930-944. Mr. Hughes declares that (1) Chase has "no record" of receipt of the request to Cure letter for CIB; (2) Chase's Class Action Group did not receive the August 5, 1999 follow-up request to cure letters for CIB, IFA and World Growth until November 15, 1999; (3) Chase's Class Action Group did not receive the request to cure letters for IFA and World Growth until July 28, 1999; and (4) Chase never received any August 27, 1999 letter advising of the need to send an excuse to the Court. See JA 934-941, at ¶¶ 17, 18, 25, 33, 34, 38. Chase also submits the Declaration of Cyril Valdez, a supervisor in the Class Action Group, who states that he had no record of receipt of the August 27, 1999 letters. See JA 1029, ¶ 6. Furthermore, Michael Coyne, Esq., Vice President and Assistant General Counsel of Chase, states in his Declaration that Chase did not receive the July 19, 1999 request to cure the CIB claim or the August 17, 1999 notice of rejection of the CIB claim. JA 1043.

Cendant responds that Chase's own affidavits do not refute the evidence of mailing-and hence the presumption of receipt-because Chase does not submit any affidavit of an employee who works either in the mail department or in the area where the post office box is located. Cendant further states that the two affiants who reference the August 27 letters, John Hughes and Anthony Olszewski, have no personal knowledge of the processing of mail at Chase's P.O. Box. It also contends that Chase has no basis to determine whether the letters were actually received because none of its witnesses has personal knowledge and Chase does not keep a log of incoming mail. See Cendant Br., at 5; JA 1037. Cendant argues that mere declarations of non-receipt are insufficient to rebut the presumption of mailing. See Cendant Br. at 6.

Chase next contends that even if the August 27, 1999 letters had been received, they were purportedly sent before the October 21, 1999 decision by this Court that determined an excusable neglect analysis would be used for late cure and late claims. According to Chase, the letter only states that Cendant might object to certain claims and "merely suggests" that an excuse be provided. See Chase Br. at 11. Because it did not state the claim would automatically be denied, it lulled claimants into the belief that the claims should be accepted and that it was not mandatory to send a letter to the Court. Moreover, says Chase, even if the letters were sent on Friday, August 27, the earliest they could have been received is Monday, August 30. Because Monday, September 6 was Labor Day, the effective deadline was Friday, September 3, leaving a maximum of four days from receipt of the letter until the due date of the response, leading to a one-to-three day turnaround time. See Chase Br., at 40 n. 19. Chase again argues, as it did in June, that the 20-day response time is both inadequate and unconstitutional.

Because of the substantial dispute over the adequacy of the information provided by Valley Forge about the mailing of the August 27 and other disputed letters, and because this Court determined that it would be appropriate to solicit additional information as to what Valley Forge meant by "mailed by U.S. Mail" when describing the procedures used to mail the letters, the Court required Valley Forge to submit an additional affidavit to further explicate the procedures outlined in paragraph 7 of Christopher Ewing's May 10, 2000 Affidavit. *fn8 In response, Valley Forge submitted the January 19, 2001 Affidavit of Kenneth Gross ("Gross Aff."), President of Valley Forge, *fn9 in which Mr. Gross describes the mailing procedures for the Request to Cure letters, disallowance letters, the August 5, 1999 request to cure letters and the August 27, 1999 letters. *fn10 It also submitted the January 18, 2001 Affidavit of Michael Miller, the Senior Claims Administrator at Valley Forge. According to Mr. Gross, the requests to cure and disallowance letters were prepared by attaching a mailing label, with a photocopy of the letter inserted in the claimant's file, and placing the original into an envelope and into a mailing bin. First Class postage was applied in the mailing room, the letter then placed in a letter tray for delivery to the post office in Villanova, Pennsylvania. Valley Forge employees drove that mail to the post office and placed the trays in the sorting room as directed by the Postal Service employees. Gross Aff., at ¶ 3. Mr. Gross confirms Mr. Ewing's assertion that no envelope sent to Chase was ever returned as undeliverable by the postal Service. Gross Aff., at ¶ 4. Mr. Miller confirms that he personally performed many of the tasks described in Mr. Gross's affidavit: he applied mailing labels, made photocopies, stuffed the envelopes, placed letters in letter trays and either drove or rode to the post office to ensure that the letter trays were placed where directed by the postal service employees. See Miller Aff. at ¶4.

With regard to the August 27 letters, Mr. Gross states that a set of labels was generated from the database; a copy of the letter was placed into each envelope; each envelope received a mailing label or was hand addressed due to the power outage; the letters were delivered to the mailroom, postage applied and taken to the Post office by Valley Forge Employees. Gross Aff. at ¶ 4. He further states that no August 27 letter mailed to Chase was ever returned as undeliverable by the Postal Service. Id. Mr. Miller confirms that the procedures described by Mr. Gross were actually used with regard to the August 27 letters. He states that he personally witnessed the application of address labels and hand addressing of the envelopes using the address list provided by Christopher Ewing. Miller Aff. at ¶ 5. He further states that although the addressing was done in a conference room during a power outage, that room receives enough natural light through its large windows that Valley Forge routinely does work in that room without the lights on. Id. Mr. Miller attests that he personally applied postage and sealed the August 27 letters, placed the letters in letter trays, and personally drove the letters to the Post Office, where he placed the trays where directed by the Postal Service employees.

The Court permitted Chase to depose Mr. Miller and Mr. Gross to inquire about the mailing procedures described in their affidavits. At Mr. Gross' deposition, Mr. Gross produced Valley Forge's files for CIB, World Growth and IFA. The CIB file contains copies of the July 19 original request to cure, the August 5 second request to cure, and the August 17 rejection letter. That file does not contain a copy of an August 27 letter. The World Growth file contains a copy of the July 15 original request to cure, the August 5 second request to cure, and the August 27 letter. The IFA file contains a July 16 request to cure, the August 5 second request to cure, and the August 27 letter. Mr. Gross testified that the fact that these letters were kept in the files indicates to him those letters were mailed according to Valley Forge's established office procedures. The IFA file did not contain a copy of a letter marked as Exhibit KG-8, which is a request to cure letter dated July 15 for IFA, which Chase claims it did receive. The July 15 and 16 letters contain slightly different wording but otherwise are the same in substance. *fn11

Also at Mr. Gross's deposition a postage log was produced, which lists the number of pieces of mail sent and total spent on postage for each batch of mail sent out. The log does not identify specific pieces of mail or recipients to whom letters were addressed. The log does not list any pieces of mail having been sent on August 27, 1999. Mr. Gross testified that he believed that because of the power outage and time pressure, the employees wanted to make sure the mail went to the post office and did not have time to log those letters.

Mr. Gross testified that either Mr. Miller or Mr. Ewing determined which claimants were to receive the August 27 letters. Although he was not entirely certain which criteria were used, he understood that if claimants were believed to be subject to disallowance, they were to receive the letters. He did not know which specific claimants were supposed to have received the August 27 letters. In addition, he stated that either Mr. Miller, Mr. Ewing, or another of a handful of employees would have done the hand addressing of the August 27 letters.

Furthermore, Mr. Gross testified that the August 27 letter was not required by the Stipulation of Settlement and was a product of discussions between himself and Mr. Kirby. He testified that the purpose of the letter was to make sure that those claimants whose claims or cures were mailed in late but otherwise were in order should have an opportunity to apply to the court to get their claims approved.

Mr. Miller testified that the reason that the letter marked as KG-8 was not in the original IFA file is that it was probably attached to a previous affidavit that was submitted in this matter with regard to Chase's motion, and that the file probably did not get put together completely again.

Mr. Miller stated that he personally participated in sending out the July request to cure letters and the August 1999 disallowance letters. However, Mr. Ewing sent out the August 5 letters himself. Mr. Miller participated in the placing the July request to cure letters, the August 1999 disallowance letters and the August 27 letters into envelopes, and placed copies of the letters in the files of claimants who received those letters. He did not recall which claimants were supposed to receive the August 27 letters. He stated that Valley Forge worked off a list generated by its database and that Mr. Ewing was responsible for generating the August 27 letter recipient list from that database. According to Mr. Miller, the original list was either lost or destroyed, apparently because Valley Forge decided it did not need to keep the list once the letters were sent. The database apparently had a field code to indicate which claimants had sent in late claims and/or late cures. Those claims which were accepted or rejected had a code so indicating in the same field. Accordingly, one could perform a search on the database to print out a list of all claimants with late claims and/or cures. Unfortunately, once the list was printed, and the claims were ultimately accepted and rejected by this Court, Valley Forge went back into the database and recoded all the claims to indicate whether they had been accepted or rejected. Those claims listed as having had late claims and/or cures in that code field now list either accepted or rejected, so it is not possible for Valley Forge to recreate the list using the same field search to re-generate a list with the names of the intended recipients of the August 27 letter. *fn12

When one party seeks to prove that a letter was received, it is well-settled that if the letter is proved to have been mailed, it is presumed to have been received in the usual course of business. See Rosenthal v. Walker, 111 U.S. 185, 193, 4 S. Ct. 382, 386, 28 L.Ed. 395 (1884); Schutz v. Jordan, 141 U.S. 213, 220, 11 S.Ct. 906, 908, 35 L.Ed. 705 (1891); Hagner v. U.S., 285 U.S. 427, 430, 52 S. Ct. 417, 419, 76 L.Ed. 861 (1932). This presumption is rebuttable. U.S. v. Galiczynski, 44 F. Supp. 2d 707, 714 (E.D. Pa. 1999); Linder v. Trump's Castle, 155 B.R. 102, 104-105 (Bankr. N.J. 1993).

For the presumption to arise, the party must prove that the letter was mailed. See Mosel v. Hills Dep't Store, 789 F.2d 251, 253 n. 2 (3d Cir. 1987); Williams v. Chrysler Corp., 991 F. Supp. 383, 388 n. 6 (D.Del. 1998), citing Tisch Family Foundation, Inc. v. Texas Nat'l Petroleum Co., 326 F.Supp. 1128, 1132 (D.Del. 1971); Philadelphia Reserve Supply Co. v. Zarelli, No. Civ. A. 90-5680, 1993 WL 160119, * 4 (E.D. Pa. May 14, 1993) (Under Pennsylvania law, to establish presumption of receipt, sender must prove it was properly addressed and mailed); Frederick v. T.U.C.S. Cleaning Services, Inc., Civ. A. No. 91-3747, 1991 WL 243538, * 1 (E.D. Pa. Nov. 15, 1991) (presumption arises only upon "proof that the item was properly addressed, had sufficient postage, and was deposited in the mail"); Robinson v. American Int'l Adjustment Co., Civ. A. No. 90-1270, 1990 WL 100309, *4 (D.N.J. Aug. 9, 1990) (receipt of notice is presumed only upon proof of mailing).

To prove that a letter was mailed, one must establish the following: That the envelope was addressed, that the letter was placed in the envelope, that the envelope was metered as to postage, and that it was placed in the mail. Tisch Family Foundation, 326 F. Supp. at 1132, citing I Wigmore, Evidence § 95 at 524; 31A C.J.S. Evidence § 136c. The rebuttable presumption may be established by pointing to circumstantial evidence that the letter has been mailed, such as evidence of standard operating office procedures or business practices regularly used. See McCallum v. United ...


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