Bank of America, Atlanta. John Disney/ALM

Saying that “after eight years of litigation, enough is enough” in the class-action lawsuit over Bank of America's sale of mortgage-backed securities that fueled the housing bubble of the last decade, U.S. District Judge William Pauley III of the Southern District of New York denied a late attempt by a Gibraltar-based financial firm's to secure a share of the $335 million settlement that's been holding up payouts to class members for months.

Gaia Holdings Ltd. previously moved to intervene in the class action and to extend its time to file a notice of appeal the court's order in October 2018 ratifying claims in the suit.

According to the court, Gaia submitted a valid $1.4 million claim, but one that missed the November 2016 deadline in the case—one of 3,000 or so to do so. An appeal deadline of November 2018 was set shortly after the court ratified the valid claims the month before. Gaia claims to not have learned of the Nov. 13 deadline until the day after, when it checked the settlement website. The company blamed spotty mail delivery in Gibraltar for its failure to be notified by post.

As Pauley noted, for Gaia to win its extension, it needed to show excusable neglect or good cause for its failure to file a timely notice of appeal. The court found that, in both respects, the company came up empty.

First, the company acknowledged that it was in contact with the claims administrator via email, negating any argument that not receiving mail in a timely fashion represented amounted to a valid good-cause argument.

The court noted, then, that the negligent standard required consideration of a number of factors, including two generally in favor of the movant: danger of prejudice to non-movants and the length of the delay. However, “Gaia's motion presents the rare circumstance where those factors do not tip in [its] favor,” Pauley found.

Regarding the first factor—prejudice to non-movants—Gaia had asked for and secured a delay in distributions of the settlement from the claims administrator pending resolution of its motion. This was done without the court's knowledge or approval, according to the court.

“Thus, two months after this Court ordered the initial distribution of over $234 million … and despite eighty inquiries in the interim from claimants about the disbursement schedule, no payments have been made,” Pauley wrote. “The prejudice to class members is obvious.”

While noting the years-long legal battle in the case that has only delayed its resolution further, Pauley said the third factor—the reason for the delay—was “the critical inquiry” that led to denying Gaia's motion. Noting Gaia's willingness to use email to stay in communications with the claims administrator on other related matters, Gaia's decision to “tune out for a month” and not stay on top of the status of the claims process undermined any argument there were legitimate reasons for the delay in notice.

Pauley further argued that Gaia failed the good faith prong, as at one point the company “persisted in arguing” for the reliability of the postal system in Gibraltar, “while acknowledging the opposite in emails to the claims administrator.” The company's finagling of a halt to court-ordered distributions, without the court's knowledge, also did not work in its favor, Pauley said.

“After eight years of litigation, enough is enough,” the judge wrote.

Philadelphia-based Barrack, Rodos & Bacine partner Mark Rosen leads the firm's team representing the lead plaintiffs in the long-standing suit. He did not respond to a request for comment.

New York-based Seward & Kissel partner Mark Kotwick was the point person for Gaia's legal efforts. He likewise did not respond to a request for comment.

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