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White v. General Motors Corporation11/3/2000
well as the existence of CRG as the potential market maker.
In its June 21, 1999 findings of fact, the trial court concluded the inclusion of the cash option letter and $100.00 offer were "critical to the development of a secondary market." Although it may be true that the inclusion of the cash option letter would enhance the development of the secondary market for the certificates, the fact remains that CRG's participation in the certificate redemption process as the "court approved" market maker offering settlement class members a cash option was not addressed in the settlement agreement. If the parties would have agreed to the alternative cash option as opposed to the issuance of certificates, it would have been in the settlement agreement. The record clearly indicates GMC agreed to include language in the final notice informing settlement class members that Class Counsel could provide further information and assistance in transferring or selling their certificates and providing a toll free telephone number where Class Counsel could be reached. However, an agreement to include a telephone number is not an agreement to include a letter offering settlement class members a cash option rather than a certificate. The plain words of the settlement agreement, as well as the background and events surrounding the settlement agreement, indicate there was no such agreement between the parties. The fact that the settlement agreement does not specifically preclude the cash option letter is not an indication that the inclusion of the cash option letter was agreed upon.
The plaintiffs argue the trial court's June 21, 1999 order was a proper exercise of its authority to review the "form and content" of the final notice under Sections VII.7 and XI.4 of the settlement agreement. They contend the settlement agreement lacked "detailed protocol establishing actual mechanisms governing certificate requests, redemptions, and transfers." In support of this argument, plaintiffs refer to a sentence in Section III.D of the settlement which provides that settlement class members "may sell or transfer their entire interest in any or all of their Certificates." When read in isolation, this sentence indeed provides no mechanism dictating how the sale or transfer would occur. However, the remainder of Section D clearly sets forth the mechanism to be used " n the event of such a sale or transfer." And although the mechanism set forth in Section D does not preclude the participation of a market maker in the certificate redemption process, it plainly does not envision the inclusion of a cash option letter in the final notice mail-out, authorizing a market maker's cash option offer to become a court approved alternative to GMC's issuance of certificates to the settlement class members. Thus, the trial court's authority to review the "form and content" of the final notice did not extend to the issuance of an order that changed the terms of the settlement agreement. Under Section XI.1 of the settlement agreement, "any change, modification, amendment, or addition" could only occur with "the express written consent of counsel on behalf of all parties" to the settlement agreement. Such consent was not given in this case. As noted by the United States Supreme Court, "the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed." Evans v. Jefferson D., 475 U.S. 717, 726, 106 S.Ct. 1531, 1537, 89 L.Ed.2d 747 (1986).
Therefore, because the trial court exceeded its authority, the June 21, 1999 order must be reversed to the extent it requires the inclusion of the cash option letter in the final notice m
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