JOHN W. NOBLE, Vice Chancellor
Dear Counsel:
I write to address the recent application of Geneva Trading USA, LLC ("Geneva") to be classified as a Participating Group B Settlement Class Member.
In due course, Geneva filed a Group A claim form. The Court recently determined that it did not qualify for Group A participation. Geneva did hold an Exercise Right Privilege ("ERP") and, thus, had the right to seek to participate in the Group B Settlement, but, unlike others who were uncertain as to their Group A status, it did not file a protective Group B claim around the time of the settlement hearing. Instead, it waited until last week to file such a claim.
CME Group, Inc. v. Chicago Bd. Options Exch., Inc., 2009 WL 1856693, at *6 (Del.Ch. June 25, 2009).
Class Counsel opposes Geneva's participation as a Group B member because of the delay in the filing of Geneva's claim. Class Counsel and Geneva debate (i) who told whom what about the filing of a protective claim and (ii) who bears ultimate responsibility for the delay.
The Court need not resolve these factual disputes. Geneva timely filed a claim to participate in Group A. Class Counsel opposed Group A participation, but there was no dispute about Geneva's holding of one common prerequisite for both Group A and Group B membership: an ERP. Thus, one who held an ERP, but did not properly qualify to be a member of Group A, such as Geneva, also, almost by definition, qualified for Group B, except for the absence of a claim form that would have contained the same material information as set forth in the Group A claim form.
The Court acknowledges the concerns of Class Counsel with respect to the obvious delay in Geneva's filing of a Group B claim form. Whether it was entitled to participate as a member Group A was far from clear. Under the circumstances, amidst the uncertainty, Geneva, otherwise entitled to participate in Group B, should be allowed to do so now, notwithstanding the tardiness of its filing of a Group B claim form. Accordingly, Geneva may participate in the Group B settlement.
See id. at *7 n. 29 (recognizing that the line separating Group A membership from Group B membership fell on something of a continuum).