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In re Lord Abbett Mutual Funds Fee Litigation

December 28, 2005

IN RE LORD ABBETT MUTUAL FUNDS FEE LITIGATION


The opinion of the court was delivered by: William J. Martini, U.S.D.J.

THIS DOCUMENT RELATES TO: ALL ACTIONS OPINION

This matter comes before the Court on Plaintiffs' Motion for Reconsideration of the Courts' Order Granting in Part and Denying in Part Defendants' Motion to Dismiss the Complaint, and Defendants' Motion for Reconsideration or Modification. There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, Plaintiff's motion is DENIED in its entirety and Defendants' motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The facts of this case are set forth fully in the Court's prior opinion granting in part and denying in part Defendants' motion to dismiss. In re Lord Abbett Mut. Funds Fee Litig., 385 F. Supp. 2d 471 (D.N.J. 2005) [hereinafter, "Lord Abbett" or "the Opinion"]. Familiarity with the facts set forth in the Opinion is presumed.

Plaintiffs raise two reasons why the Court should reconsider its decision in Lord Abbett. First, Plaintiffs argue that the Court overlooked controlling authority in ruling that § 36(b) of the Investment Company Act ("ICA"), 15 U.S.C. 80a-35(b), does not provide a private right of action to assert direct claims. Second, Plaintiffs contend that the Court overlooked the principle that a dismissal under the Securities Litigation Uniform Standards Act ("SLUSA"), 15 U.S.C. § 78bb(f), should be without prejudice as to Plaintiffs' ability to replead state law claims that are not preempted under the act.

Defendants, on the other hand, raise two reasons why the Court should reconsider its decision in Lord Abbett. First, Defendants argue that the Court overlooked controlling authority holding that dismissal of certain claims under SLUSA requires dismissal of the entire action.

Accordingly, Defendants contend that the Court erred in allowing Plaintiffs 30 days to replead their claims under § 36(b) and § 48(a), 15 U.S.C. §§ 80a-47(a), of the Investment Company Act ("ICA"), 15 U.S.C. § 80a-1 et seq. Second, Defendants request that the Court remove dictum from the Lord Abbett decision indicating that certain injuries sustained by Plaintiffs' were direct. Both Defendants and Plaintiffs argue that the Court's decision in Lord Abbett and In re Franklin Mut. Funds Fee Litig., 388 F. Supp. 2d 451 (D.N.J. 2005) [hereinafter, "Franklin Funds"], which were based on materially identical complaints, contradict each other. On this point, the Court agrees.

DISCUSSION

I. Standard of Review

A motion for reconsideration is an extraordinary remedy to be granted "very sparingly." Yurecko v. Port Auth. Trans-Hudson Corp., 279 F. Supp. 2d 606, 608 (D.N.J. 2003). It is improper on a motion for reconsideration to "ask the Court to rethink what it had already thought through - rightly or wrongly." Orianti Sav. & Loan Ass'n v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990). Rather, a motion for reconsideration is reserved for those instances where the Court may have "overlooked" pertinent facts or controlling case law. See D.N.J. Civ. R. 7.1(i). When a matter was considered by the Court, it was not "overlooked." P. Schoenfeld Asset Mgmt. LLC v. Cendent Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001). If the moving party fails to cite pertinent facts or case law that the Court overlooked, then the Court should deny the motion. Egloff v. New Jersey Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988).

II. Plaintiffs' Motion For Reconsideration Is Denied In Its Entirety

A. Section 36(b) Does Not Provide a Direct Right of Action

Plaintiffs disagree with the Court's holding that shareholders of a mutual fund do not have a direct right of action under § 36(b) of the ICA. Plaintiffs argue that this holding contravenes Supreme Court precedents, the plain language of § 36(b), and § 36(b)'s alleged obliteration of the distinction between claims by shareholders and claims by a mutual fund. In doing so, Plaintiffs fail to identify any law the Court overlooked as required by the standard of review on a motion for reconsideration. Moreover, Plaintiffs are mistaken.

First, the Court disposed of the first two arguments in its discussion of the issue. See Lord Abbett, 385 F. Supp. 2d at 488-89. Plaintiffs' reiteration of the very same arguments is no more persuasive the second time around. Supreme Court precedents make clear that the rights asserted in a § 36(b) action are the rights of the company, e.g., the mutual fund, not the individual shareholders. See Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535 ...


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