According to the order granting final approval to the class settlement in the In re Tyco International, Ltd. Multidistrict Litigation, 288 class members excluded themselves from the class action.

The expected and natural result of such exclusions has begun in earnest - the filing of individual or group "opt-out" cases. To date, it appears that only five opt out cases have been filed, but those five complaints cover 88 institutional and high-net worth individual investors. Details on those cases are available here.

What is unclear from the final approval order is whether these institutions, many of whom are related entities, are counted separately or collectively in the total number of exclusions. Depending on the answer to that question, the cases filed to date represent no more than 30.5% of the class members that opted out, but could represent substantially less than 10% of the class members that opted out.

The first opt-out case (that we are aware of) was filed back in September 2007, on behalf of a number of mutual funds from the Franklin Templeton family:

Franklin Mutual Advisers, LLC
Franklin Mutual Beacon Fund
Mutual Beacon Fund
Mutual Beacon Fund (Canada)
Mutual Discovery Fund
Mutual Discovery Securities Fund
Mutual Financial Services Fund
Mutual Qualified Fund
Mutual Shares Fund
Mutual Shares Securities Fund

Of interest, the Franklin complaint was filed by Marc Kramer, a solo practioner in Short Hills, New Jersey. Marc is no stranger to securities litigation, having served as lead counsel in at least two securities class actions - MK Resources Company and Quovadx, Inc.

The next complaint was filed by Bernstein Litowitz Berger & Grossman, LLP in November 2007 on behalf of a fairly diverse group of entities and individuals:

Atticus Global Advisors, Ltd.
Atticus International Fund, Ltd.
Beta Equities, Inc.
Castlerock Asset Management Personal Accounts
Castlerock Fund, Ltd.
Castlerock Partners L.P.
Castlerock Partners II L.P.
Commonfund Asset Management Company, Inc.
Leon G. Cooperman
Toby Cooperman
Michael Scott Cooperman
Fred Alger Management, Inc.
Goldman Sachs Profit Sharing Master Trust
Half Moon Capital Partners, L.P.
Munder Large-Cap Value Fund
NR Securities Limited (f/k/a Dred, Ltd.)
National Bank of Canada
Omega Capital Investors, L.P.
Omega Capital Partners, L.P.
Omega Equity Investors, L.P.
Omega Institutional Partners, L.P.
Omega Institutional Partners II, L.P.
Omega Investors Overseas, L.P.
Omega Overseas Partners, Ltd.
Permal LGC Ltd.
The Ministers And Missionaries Benefit Board Of American Baptist Churches
Teacher Retirement System Of Texas
Watchung Road Associates, L.P.

The third complaint was filed in January 2008, by Lowey Dannenberg, on behalf of a dozen Federated mutual funds:

Federated American Leaders Fund, Inc.
Federated American Leaders Fund II
Federated Bond Fund
Federated Capital Appreciation Fund
Federated Capital Appreciation Fund II
Federated Intermediate Corporate Bond Fund
Federated Large Cap Growth Fund
Federated Mid Cap Growth Strategies Fund
Federated Mid Cap Growth Strategies Fund II
Federated Quality Bond Fund II
Federated Stock Trust
Federated Total Return Bond Fund

The fourth complaint was filed just five days later, by Bressler, Amery & Ross and Lieff Cabraser Heimann & Bernstein, LLP, on behalf of four Nuveen mutual funds:

Nuveen Balanced Stock and Bond Fund
Nuveen Balanced Municipal and Stock Fund
Nuveen Large-Cap Value Fund
Nuveen Rittenhouse Growth Fund

That same day, a fifth complaint was filed by Bressler, Amery & Ross and Lieff Cabraser Heimann & Bernstein, LLP, on behalf of a number of BlackRock funds:

BlackRock Asset Allocation Portfolio (Large Cap Growth) (as Successor in Interest to SSR Asset Allocation LCG)
BlackRock Capital Appreciation Portfolio (as Successor in Interest to SSR Legacy EQ)
BlackRock Global Allocation Fund, Inc.
BlackRock Global Allocation Fund, Inc. (as Successor in Interest to BlackRock Global Balanced Fund)
BlackRock Global Allocation Portfolio
BlackRock Global Allocation V.I. Fund
BlackRock Global Technology Fund, Inc. (as Successor in Interest to Merrill Lynch Internet Strategies Fund)
BlackRock Global Technology Fund, Inc. (as Successor in Interest to Merrill Lynch Internet Strategies Fund)
BlackRock Institutional Equity Funds North American Fund
BlackRock Large Cap Core Fund (as Successor in Interest to BlackRock Investment Trust Portfolio)
BlackRock Large Cap Core Portfolio Master (as Successor in Interest to Merrill Lynch Disciplined Equity Fund)
BlackRock Large Cap Value Fund (as Successor in Interest to BlackRock Large Cap
Value Equity)
BlackRock Large Cap Value-SSR Test (as Successor in Interest to SSR Large Cap Val Eq)
BlackRock Mid Cap Value Opportunities Fund
BlackRock S&P 500 Index Fund
BlackRock Series Fund
BlackRock Select Equity/(Investment Trust) SSR Inv Trust Test (as Successor in Interest to SSR Invest Trust JW)
Black Variable Series Funds, Inc.
BlackRock Variable Series Funds, Inc.
BlackRock World Index Series
DC American Growth Fund
Equity Index Trust Series Master
Master Enhanced S&P 500 Series
Master Large Cap Core Portfolio
Master S&P 500 Index Series
Merrill Lynch Balanced Portfolio Fund
Merrill Lynch Global Balanced Fund
Merrill Lynch Global Equity Fund
Merrill Lynch Institutional FCP Global Equity Ex-Japan Fund
Merrill Lynch International Investment Funds Global Fund Value
Merrill Lynch International Investment Funds U.S. Equity Fund
Merrill Lynch U.S. Dynamic Fund
MLIIF Global Equity Diversified Fund
MLIT Specialists International North America Fund

We will continue to track the Tyco opt out cases, just as we are tracking the Vivendi cases.

As always, readers are encouraged to send in any additional information.