behind the allegedly improper loans and would have vigorously pursued a contribution action against Gershman and the Popkin and Stern defendants, but for the bankruptcy. He further stated that certain evidence relating to Wyss' third party action against Commonwealth Land Title Insurance Company would have revealed flaws in plaintiff's investigation, possibly weakening its case. Wyss testified during the hearing that, due to an administrative oversight which occurred when WSG&W disbanded in 1985, he is not covered by insurance for this action, and thus his $ 15,000 contribution to the settlement will be derived from his personal assets. Wyss further testified that he has an ownership interest in three closely held businesses, but that all three are struggling and he will have to borrow the money necessary for this settlement. Financial documents provided by Wyss indicate that he has a negative net worth.
The attorney for defendant Noelker stated that his client's liability is based solely upon Noelker's short association with the law firm of Popkin and Stern. He further stated that Noelker was with that firm for less than one year, during which time only one of the transactions at issue took place, and that this transaction did not implicate any liability on the part of the Popkin and Stern defendants. Noelker's attorney stated his assessment that plaintiff was potentially liable for filing an improper claim and that, while Noelker agreed to pay $ 200 as part of the settlement, the thrust of the agreement was the giving of mutual releases by the parties.
Finally, defendant Walters, acting pro se, stated that his portion of the settlement is included in the WSG&W payment. He further stated that he denies any liability for the alleged losses and questions whether he was a partner with WSG&W during any of the periods relevant to plaintiff's suit. Walters also stated that he is without insurance and essentially without assets.
There is absolutely no indication that the settlements at issue were the result of any collusion or side agreements. The foregoing reveals that plaintiff will recover approximately $ 783,000 from the settling defendants, in addition to any judgment obtained against the remaining defendants. In its complaint, plaintiff seeks damages in excess of $ 3.2 million. Although the total settlement represents slightly less than one-third of this amount, the hearing revealed that the settling defendants alone have spent close to $ 200,000 on this case, and that the collectibility of many of the claims is somewhat limited. It further appears that a trial with all the defendants could last up to two weeks, imposing upon both the taxpayers and the private parties involved substantial additional expense. Although plaintiff's chances of victory appear strong, the issues involved are complex, and there appears at least some difference of opinion among the experts as to the standard of care involved. Based upon all of the foregoing, the Court concludes that the settlement agreements at issue were made in good faith and are fair, reasonable, and in the best interests of the public.
Accordingly, plaintiff's motion to approve its settlement agreements with defendants Henry Stern; Gary Heifetz; Ronald Lurie; Alan Popkin; James Chervitz; Jacob Reby; Pat Simons; Stanley Goodkin; Michael Wetmore; Steven Stone; Jeffrey Michelman; Lee Placio, Jr.; Ira Blank; Renee Poe; Douglas Burdette; Timothy Noelker; Harry Meyer; Steven Spewak; Barbara Lageson; Alan Blank; Steven Leyton; Jeffrey Gershman; Emert Wyss; Raymond Stillwell; Arthur Greenwood; Wyss, Stillwell, Greenwood & Walters, an Illinois General partnership; Daniel Platt; and Gerald Walters; (Doc. #354) is GRANTED, and said agreements are hereby APPROVED as made in good faith.
Plaintiff's motion to amend the Court's April 2,1993 Order (Doc. #321) is GRANTED and said Order is hereby AMENDED to provide that this action is DISMISSED with prejudice as to the above-named defendants, without costs and with the right, upon good cause shown within sixty (60) days, to reopen the action if settlement is not consummated; the clerk of the Court is DIRECTED to serve copies of this Order, by United States mail, upon the attorney of record for the parties appearing in this cause.
Plaintiff's motion to impose a pro tanto settlement bar (Doc. #354) is also GRANTED, and this Court's April 2, 1993 Order is further AMENDED to provide that any recovery by plaintiff against the defendants remaining in this case shall be reduced by the total amount of any approved settlements; and further that the above-named settling defendants are DISCHARGED from any further liability to any non-settling defendants for any claims arising out of said non-settling defendants' liability for claims asserted by plaintiff in this case.
The motions of defendants Spencer Smith, Emert Wyss, Arthur Greenwood, Raymond Stillwell, and Wyss, Greenwood, Stillwell & Walters, an Illinois General partnership, to vacate the Court's Order of April 2, 1993 (Docs. #325, #329, #330) are hereby DENIED.
Defendant Jeffrey Michelman's motion to join in Gershman's alternative motion to impose a settlement bar (Doc. #348) is GRANTED. The alternative motion of defendants Jeffrey Gershman and Jeffrey Michelman to impose a settlement bar based upon the proportionate fault rule (Doc. #346) is hereby DENIED.
IT IS SO ORDERED.
DATED: 24 August 1993
William D. Stiehl
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