           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 27, 2009

                                     No. 09-20106                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CHARLES W BIRKS

                                                   Plaintiff - Appellant
v.

KEITH F. PARK, Esquire; COUGHLIN STOIA GELLER RUDMAN &
ROBBINS LLP; REGENTS OF THE UNIVERSITY OF CALIFORNIA

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                              USDC No. 4:08-CV-2702


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Charles W. Birks invested in Dynegy, Inc. securities and was a class
member in a securities class action filed in 2002 in the Southern District of
Texas. Appellee, The Regents of the University of California, was appointed
Lead Plaintiff for the class; appellee, Coughlin Stoia Geller Rudman & Robbins
LLP was appointed Lead Counsel for the class; and appellee, Keith Park, was



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 09-20106

one of the attorneys at the Coughlin firm. The class action was settled in 2005.
Birks received approximately $15,000 in settlement of his claim for losses which
was calculated at approximately $71,000.
      After receiving and accepting his share of the settlement funds, Birks filed
this suit against the appellees in federal court in West Virginia, asserting claims
for malpractice and fraud. Birks alleged in his complaint that the settlement
notice, which had been approved by the Texas court, was inadequate because it
failed to disclose that the settlement fund would be inadequate to compensate
fully all claimants and failed to disclose the corporate governance provisions of
the settlement, pursuant to which The Regents were given the right to nominate
two members of Dynegy’s Board of Directors. The West Virginia district court
transferred Birks’s action to the Southern District of Texas.
      Judge Lake, who approved the Dynegy class action settlement, granted the
appellees’ motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). The district court held that it had jurisdiction pursuant to the
continuing jurisdiction provision of the final judgment entered in the Dynegy
Securities Litigation, because Birks’s claims – that the Lead Plaintiff and Lead
Counsel in the Dynegy Securities Litigation sent out a deficient notice of the
proposed settlement to the class members and agreed to a settlement that was
unfair – would require the court to rule on matters it had previously ruled on in
the final judgment approving the class action settlement. In a thorough and
well-reasoned opinion, the district court examined Birks’s allegations in detail,
and concluded that his complaint failed to allege any facts that, if true, were
capable of showing that the appellees engaged in any conduct that constituted
malpractice and/or fraud in settling the Dynegy Securities Litigation.
      We have reviewed the record and the arguments of the parties, and we
conclude that the district court did not err in granting the appellees’ motion for
judgment on the pleadings. Accordingly, we affirm, essentially for the reasons

                                        2
                                No. 09-20106

stated in the district court’s opinion. Birks v. Park, No. H-08-2702 (S.D. Tex.
Feb. 12, 2009).
                                                                  AFFIRMED.




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