The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 1:19-cv-01704 (JSR)
IN RE GSE BONDS ANTITRUST
LITIGATION
JUDGMENT APPROVING CLASS ACTION SETTLEMENT
WHEREAS, Plaintiffs Joseph M. Torsella, in his official capacity as the Treasurer of the
Commonwealth of Pennsylvania and statutory custodian of all Commonwealth Funds; City of
Birmingham Retirement and Relief System; Electrical Workers Pension Fund Local 103,
I.B.E.W.; and Local 103, I.B.E.W. Health Benefit Plan (“Plaintiffs”) on behalf of themselves and
the other members of the Settlement Class, and Defendants First Tennessee Bank, N.A. and FTN
Financial Securities Corp., (“FTN” and, together with Plaintiffs, the “Parties”) have determined to
settle all claims asserted against FTN, and their predecessors, successors, assigns, subsidiaries, and
affiliates, including First Horizon National Corp., in this Action with prejudice on the terms and
conditions set forth in the Stipulation and Agreement of Settlement dated September 16, 2019 (the
“Stipulation”), subject to approval of this Court (the “Settlement”);
WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall
have the same meaning as they have in the Stipulation;
WHEREAS, by Order dated October 29, 2019 (the “Preliminary Approval Order”), this
Court: (i) preliminarily approved the Settlement; (ii) ordered that notice of the proposed Settlement
be provided to the Settlement Class; (iii) provided Settlement Class Members with the opportunity
to object to the proposed Settlement; (v) provided Settlement Class Members with the opportunity
to exclude themselves from the Settlement Class; and (iv) scheduled a hearing regarding final
approval of the Settlement;
WHEREAS, due and adequate notice has been given to the Settlement Class;
WHEREAS, the Court conducted a hearing on June 9, 2020 (the “Settlement Hearing”) to
consider, among other things, (i) whether the terms and conditions of the Settlement are fair,
reasonable, and adequate to the Settlement Class, and should therefore be approved; and (ii)
whether a judgment should be entered dismissing the Action with prejudice as against FTN; and
WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and
proceedings held herein in connection with the Settlement, all oral and written comments received
regarding the Settlement, and the record in the Action, and good cause appearing therefor;
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:
1. Jurisdiction – The Court has jurisdiction over the subject matter of the Action, and
all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and
each of the Settlement Class Members.
2. CAFA Notice – The notice provisions of the Class Action Fairness Act, 28 U.S.C.
§1715, have been satisfied.
3. Incorporation of Settlement Documents – This Judgment incorporates and makes
a part hereof: (i) the Stipulation filed with the Court on September 24, 2019; and (ii) the Notice
and the Publication Notice, both of which were filed with the Court on September 24, 2019.
4. Class Certification for Settlement Purposes – Pursuant to Rule 23(a) and
23(b)(3) of the Federal Rules of Civil Procedure, and based on the record before the Court, the
Court certifies, for the purposes of settlement only the following Settlement Class:
All persons and entities who or which entered into a GSE Bond Transaction with one
or more Defendants or a direct or indirect parent, subsidiary, affiliate, or division of a
Defendant during the Settlement Class Period. Excluded from the Settlement Class
are: Defendants; direct or indirect parents, subsidiaries, affiliates, or divisions of
Defendants; all federal government entities; and any judicial officer presiding over this
Action and the members of his or her immediate family and judicial staff and any juror
assigned to this Action. Also excluded from the Settlement Class is any person or
entity who or which properly excludes himself, herself, or itself by filing a valid and
timely request for exclusion in accordance with the requirements set forth in the Notice.
5. The Court finds that the requirements of Rule 23(a) and 23(b)(3) of the Federal
Rules of Civil Procedure are satisfied for settlement purposes as follows:
a. Pursuant to Rule 23(a)(1), the Court determines that the Settlement Class
Members are so numerous that their joinder before the Court would be impracticable.
b. Pursuant to Rule 23(a)(2), the Court determines that there are one or more
questions of fact or law common to the Settlement Class.
c. Pursuant to Rule 23(a)(3), the Court determines that Plaintiffs’ claims are
typical of the claims of the Settlement Class.
d. Pursuant to Rule 23(a)(4), the Court determines that Plaintiffs will fairly
and adequately protect the interests of the Settlement Class. Plaintiffs are certified as class
representatives of the Settlement Class.
e. Pursuant to Rule 23(b)(3), the Court determines that common questions of
law and fact predominate over questions affecting only individual Settlement Class Members.
f. Pursuant to Rule 23(b)(3), the Court determines that a class action is
superior to other available methods for the fair and efficient adjudication of this Action.
g. Pursuant to Rule 23(g), Co-Lead Counsel are certified as class counsel for
the Settlement Class.
6. The Court’s certification of the Settlement Class, and certification of Plaintiffs as
class representatives of the Settlement Class, as provided herein is without prejudice to, or waiver
of, the rights of any Defendant to contest any other request by Plaintiffs to certify a class. The
Court’s findings in this Judgment shall have no effect on the Court’s ruling on any motion to certify
any class or appoint class representatives in this litigation, and no party may cite or refer to the
Court’s approval of the Settlement Class as binding or persuasive authority with respect to any
motion to certify such class or appoint class representatives
7. Settlement Notice – The Court finds that the dissemination of the Notice and the
publication of the Publication Notice: (i) were implemented in accordance with the Preliminary
Approval Order; (ii) constituted the best notice practicable under the circumstances;
(iii) constituted notice that was reasonably calculated, under the circumstances, to apprise
Settlement Class Members of (a) the effect of the proposed Settlement (including the Releases to
be provided thereunder); (b) Co-Lead Counsel’s motion for an award of attorneys’ fees and
reimbursement of Litigation Expenses; (c) their right to object to any aspect of the Settlement, the
Plan of Distribution, and/or Co-Lead Counsel’s motion for attorneys’ fees and reimbursement of
Litigation Expenses; and (d) their right to appear at the Settlement Hearing; (iv) constituted due,
adequate, and sufficient notice to all persons and entities entitled to receive notice of the proposed
Settlement; and (v) satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure,
the United States Constitution (including the Due Process Clause), and all other applicable law
and rules.
8. Final Settlement Approval and Dismissal of Claims – Pursuant to, and in
accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and
finally approves the Settlement set forth in the Stipulation in all respects (including, without
limitation, the amount of the Settlement, the Releases provided for therein, and the dismissal with
prejudice of the claims asserted against FTN in the Action), and finds that the Settlement is, in all
respects, fair, reasonable, and adequate to the Settlement Class after considering the factors set out
in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by
Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000) and Rule 23(e)(2) of the Federal
Rules of Civil Procedure.
9. All of the claims asserted against FTN in the Action by Plaintiffs and the other
Settlement Class Members are hereby dismissed with prejudice. The Parties shall bear their own
costs and expenses, except as otherwise expressly provided in the Stipulation.
10. Binding Effect – The terms of the Stipulation and of this Judgment shall be binding
on FTN, the other Settling Defendants, Plaintiffs, and all other Settlement Class Members
(regardless of whether or not any individual Settlement Class Member submits a Claim Form or
seeks or obtains a distribution from the Net Settlement Fund), as well as their respective heirs,
executors, administrators, predecessors, successors, and assigns in their capacities as such. The
persons listed on Exhibit 1 hereto are excluded from the Settlement Class pursuant to request and
are not bound by the terms of the Stipulation or this Judgment.
11. Releases – The Releases set forth in ¶¶3-9 of the Stipulation, together with the
definitions contained in ¶1 of the Stipulation relating thereto, are expressly incorporated herein in
all respects. The Releases are effective as of the Effective Date. Accordingly, this Court orders
that:
(a) Without further action by anyone, and subject to ¶13 of this Order, upon the
Effective Date of the Settlement, Plaintiffs and each of the other Settlement Class Members, on
behalf of themselves, and their respective heirs, executors, administrators, predecessors,
successors, and assigns in their capacities as such, shall be deemed to have, and by operation of
law and of this Judgment shall have, fully, finally, and forever compromised, settled, released,
resolved, relinquished, waived, and discharged each and every of the Settled Claims1 against FTN
and the other Settling Defendants, and shall forever be enjoined from prosecuting any or all of the
Settled Claims against any of the Settling Defendants.
(b) Without further action by anyone, and subject to ¶13 of this Order, upon the
Effective Date of the Settlement, FTN, on behalf of itself, and its respective heirs, executors,
administrators, predecessors, successors, and assigns in their capacities as such, shall be deemed
to have, and by operation of law and of this Judgment shall have, fully, finally, and forever
compromised, settled, released, resolved, relinquished, waived, and discharged each and every
against Plaintiffs and the other Released Plaintiff Parties, and shall forever be enjoined from
prosecuting any or all of the Settling Defendants’ Claims against any of the Released Plaintiff
Parties. This Release shall not apply to any person listed on Exhibit 1 hereto.
12. Although the foregoing release is not a general release, such release constitutes a
waiver of Section 1542 of the California Civil Code and any similar statutes (to the extent they
apply to the Action). Section 1542 provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
1 “Settled Claims” means any and all manner of claims, including Unknown Claims, causes
of action, cross-claims, counter-claims, charges, liabilities, demands, judgments, suits, obligations,
debts, setoffs, rights of recovery, or liabilities for any obligations of any kind whatsoever (however
denominated), whether class or individual, in law or equity or arising under constitution, statute,
regulation, ordinance, contract, or otherwise in nature, for fees, costs, penalties, fines, debts,
expenses, attorneys’ fees, and damages, whenever incurred, and liabilities of any nature
whatsoever (including joint and several), known or unknown, suspected or unsuspected, asserted
or unasserted, choate or inchoate, which the Settling Plaintiff Parties ever had, now have, or
hereafter can, shall, or may have, representatively, derivatively, or in any capacity against the
Settling Defendants that arise from or relate to a factual predicate of the Action including any
amended complaint or pleading therein. Settled Claims shall not include: (i) claims based on
transactions that are outside the extraterritorial reach of the Sherman Act pursuant to Section 6a of
the Sherman Act, 15 U.S.C. §6a; (ii) any claims relating to the enforcement of the Settlement; or
(iii) any claims of any person or entity that submits a request for exclusion in connection with the
Notice whose request is accepted by the Court.
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.
13. Notwithstanding ¶11(a)-(b) of this Order, nothing in this Judgment shall bar any
action by any of the Parties to enforce or effectuate the terms of the Stipulation or this Judgment.
14. Rule 11 Findings – The Court finds and concludes that the Parties and their
respective counsel have complied in all respects with the requirements of Federal Rule of Civil
Procedure 11 in connection with the institution, prosecution, defense, and settlement of the Action.
15. No Admissions – Neither this Judgment, the Stipulation (whether or not
consummated), including the exhibits thereto and the Plan of Distribution contained therein (or
any other plan of allocation that may be approved by the Court), the negotiations leading to the
execution of the Stipulation, nor any proceedings taken pursuant to or in connection with the
Stipulation and/or approval of the Settlement (including any arguments proffered in connection
therewith):
(a) shall be offered against any of the Settling Defendants as evidence of, or
construed as, or deemed to be evidence of any presumption, concession, or admission by any of
the Settling Defendants with respect to the truth of any fact alleged by Plaintiffs or the validity of
any claim that was or could have been asserted, or the deficiency of any defense that has been or
could have been asserted, in this Action or in any other litigation, or of any liability, negligence,
fault, or other wrongdoing of any kind of any of the Settling Defendants or in any way referred to
for any other reason as against any of the Settling Defendants, in any civil, criminal, or
administrative action or proceeding, other than such proceedings as may be necessary to effectuate
the provisions of the Stipulation;
(b) shall be offered against any of the Released Plaintiff Parties, as evidence of,
or construed as, or deemed to be evidence of any presumption, concession, or admission by any of
the Released Plaintiff Parties that any of their claims are without merit, that any of the Settling
Defendants had meritorious defenses, or that damages recoverable under the Complaint or
Consolidated Complaint would not have exceeded the Settlement Amount or with respect to any
liability, negligence, fault, or wrongdoing of any kind, or in any way referred to for any other
reason as against any of the Released Plaintiff Parties, in any civil, criminal, or administrative
action or proceeding, other than such proceedings as may be necessary to effectuate the provisions
of the Stipulation; or
(c) shall be construed against any of the Released Parties as an admission,
concession, or presumption that the consideration to be given under the Settlement represents the
amount which could be or would have been recovered after trial; provided, however, that the
Parties and the Released Parties and their respective counsel may refer to this Judgment and the
Stipulation to effectuate the protections from liability granted hereunder and thereunder or
otherwise to enforce the terms of the Settlement.
16. Retention of Jurisdiction – Without affecting the finality of this Judgment in any
way, this Court retains continuing and exclusive jurisdiction over: (i) the Parties for purposes of
the administration, interpretation, implementation, and enforcement of the Settlement; (ii) the
disposition of the Settlement Fund; (iii) any motion for an award of attorneys’ fees and/or
Litigation Expenses by Co-Lead Counsel in the Action that will be paid from the Settlement Fund;
(iv) any motion to approve the Plan of Distribution; (v) any motion to approve the Settlement Class
Distribution Order; and (vi) the Settlement Class Members for all matters relating to the Action.
17. Separate orders shall be entered regarding approval of a Plan of Distribution and
the motion of Co-Lead Counsel for an award of attorneys’ fees and reimbursement of Litigation
Expenses. Such orders shall in no way affect or delay the finality of this Judgment and shall not
affect or delay the Effective Date of the Settlement.
18. Modification of the Stipulation of Settlement – Without further approval from
the Court, Plaintiffs and FTN are hereby authorized to agree to and adopt such amendments or
modifications of the Stipulation or any exhibits attached thereto to effectuate the Settlement that:
(i) are not materially inconsistent with this Judgment; and (ii) do not materially limit the rights of
Settlement Class Members in connection with the Settlement. Without further order of the Court,
Plaintiffs and FTN may agree to reasonable extensions of time to carry out any provisions of the
Settlement.
19. Termination of Settlement – If the Settlement is terminated as provided in the
Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Judgment shall be
vacated, rendered null and void and be of no further force and effect, except as otherwise provided
by the Stipulation, and this Judgment shall be without prejudice to the rights of Plaintiffs, the other
Settlement Class Members, and FTN, and the Parties shall revert to their respective positions in
the Action as of September 3, 2019, as provided in the Stipulation.
20. Entry of Final Judgment – There is no just reason to delay the entry of this
Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is expressly
directed to immediately enter this final judgment in this Action.
SO ORDERED.
HON. JED S. RAKOFF
United States District Judge
DATED: New York, NY
June 18, 2020
EXHIBIT 1
Exhibit 1
1. Kommunalbanken AS
2. Cory Thorpe
3. Metropolitan Washington Airports Authority
4. Banco de Portugal
5. Universal 1 Credit Union
6. First Community Bank
7. Willett Advisors LLC
8. Federal Home Loan Mortgage Corporation (“Freddie Mac”)
9. Bank of Indonesia
10.Mary Louise Weidinger
11.Barbara J. Karolyi; Donald P. Karolyi; Mary K. Wade; Billy D. Karolyi
12.Kathy Ann Craig
13.Forest A. Benson; Janet V. Benson
14.Jacci Lynn Lackey
15.Richard B. Opsahl
16.William M. Petty
17.Norma E. Hill
18.Walter A. Meller
19.Barbara Lee Sullivan
20.Larry Kleingartner; Marcia Kleingartner
21.Logan County Treasurer Dara Wren
22.Marjorie J. Warsack
23.Beverly L. Traun
24.James A. Traun
25.Holly Yvonne Mayer Educational Trust