The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
METZLER INVESTMENT GmbH, FTC FUTURES
FUND SICAV, and FTC FUTURES FUND PCC LTD.,
ATLANTIC TRADING USA, LLC, 303030 TRADING
LLC, GARY FRANCIS AND NATHANIAL HAYNES, No. 11-md-2262 (NRB)
on behalf of themselves and all others similarly situated, No. 11-cv-2613
Plaintiffs,
-against -
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG,
BANK OF AMERICA CORPORATION, BANK OF
AMERICA, N.A., J.P. MORGAN CHASE & CO., J.P.
MORGAN CHASE BANK, N.A., HSBC HOLDINGS PLC,
HSBC BANK PLC, HBOS PLC, BANK OF SCOTLAND
PLC, CITI BANK PLC, LLOYDS BANKING GROUP
PLC, LLOYDS BANK PLC, PORTIGON AG F/K/A
WESTLB AG, WESTDEUTSCHE IMMOBILIENBANK
AG, UBS GROUP AG, UBS AG, THE ROYAL BANK OF
SCOTLAND GROUP PLC, THE ROYAL BANK OF
SCOTLAND PLC, RBS SECURITIES, INC., DEUTSCHE
BANK AG, DEUTSCHE BANK SECURITIES, INC., DB
GROUP SERVICES (UK) LIMITED, THE
NORINCHUKIN BANK, ROYAL BANK OF CANADA,
RBC CAPITAL MARKETS LLC, THE BANK OF
TOKYOMITSUBISHI UFJ, LTD., COOPERATIVE
CENTRAL RAIFFEISEN-BOERENLEENBANK B.A.,
SOCIÉTÉ GÉNÉRALE S.A., CITIGROUP, INC.,
CITIBANK N.A., CITIGROUP GLOBAL MARKETS,
INC., MERRILL LYNCH INTERNATIONAL, ICAP PLC,
ICAP EUROPE LIMITED, TRADITION (UK) LIMITED,
TULLETT PREBON PLC, and JOHN DOES 4-25,
Defendants.
[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL AND FINAL
APPROVAL OF EXCHANGE-BASED PLAINTIFFS’ CLASS ACTION SETTLEMENT
WITH JPMORGAN AND BANK OF AMERICA
This matter came for a duly-noticed hearing on September 17, 2020 (the “Fairness
Hearing”), upon the Exchange-Based Plaintiffs’ Motion for Final Approval of Class Action
Settlements with Defendants Bank of America1, Barclays Bank plc, Citi, Deutsche Bank, HSBC
Bank plc, JPMorgan2, and Société Générale in the above-captioned action (the “Action”). Due
and adequate notice of the Stipulation and Agreement of Settlement with JPMorgan and Bank of
America (together, the “Settling Defendants”) entered into on June 14, 2018 [ECF No. 2728-5]
(the “Settlement Agreement”) having been given to the members of the Settlement Class, the
Fairness Hearing having been held, and the Court having considered the Settlement Agreement
and all papers filed and proceedings had herein and otherwise being fully informed in the
premises, and good cause appearing therefore,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. Incorporation of Settlement Documents – This Final Judgment and Approval
Order hereby incorporates by reference the definitions in the Settlement Agreement and in the
Court’s March 2, 2020 Order (1) Preliminarily Approving Settlements with Defendants Bank of
America, Barclays Bank plc, Citi, Deutsche Bank, HSBC Bank plc, JPMorgan and Société
Générale; (2) Approving the Proposed Form and Program of Notice; and (3) Scheduling a
Fairness Hearing, In re LIBOR-Based Fin. Instruments Antitrust Litig. (No. 11 Md. 2262), 2020
WL 1059489 (S.D.N.Y. Mar. 2, 2020) [ECF No. 3038] (the “Preliminary Approval Order”). All
terms used herein shall have the same meanings as set forth in the Settlement Agreement or
Preliminary Approval Order unless otherwise indicated.
1 “Bank of America” refers to Bank of America Corporation and Bank of America, N.A. (collectively, “BOA”).
2 “JPMorgan” refers to JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (collectively, “JPMorgan”).
2. Settlement Class Certification for Settlement Purposes – For purposes only of
the Settlement, the Court hereby finally certifies the Settlement Class, as defined in the
Preliminary Approval Order:
All persons, corporations and other legal entities that transacted in
Eurodollar futures and/or options on Eurodollar futures, including without
limitation transactions on the Chicago Mercantile Exchange, between
January 1, 2003 and May 31, 2011; provided that, if Exchange-Based
Plaintiffs expand the class period in any subsequent amended complaint,
motion or settlement, the class period in the Settlement Class definition in
this Agreement shall be expanded so as to include such expansion.
Excluded from the Class are: (i) Defendants, their employees, affiliates,
parents, subsidiaries, and alleged co-conspirators; (ii) the Releasees (as
defined in Section 1(II)); (iii) any Class Member who files a timely and
valid request for exclusion; and (iv) any Persons dismissed from this
Action with prejudice. Solely for purposes of the Settlement, the parties
agree that Investment Vehicles are not excluded from the Settlement Class
solely on the basis of being deemed to be Defendants or affiliates or
subsidiaries of Defendants. However, to the extent that any Defendant or
any entity that might be deemed to be an affiliate or subsidiary thereof (i)
managed or advised, and (ii) directly or indirectly held a beneficial interest
in, said Investment Vehicle during the Class Period, that beneficial interest
in the Investment Vehicle is excluded from the Settlement Class.
2020 WL 1059489, at *3. Based on the record, the Court reconfirms that the applicable
provisions of Rule 23 of the Federal Rules of Civil Procedure have been satisfied for purposes
only of the Settlement.
3. In so holding, the Court finds that the Settlement Class meets all of the applicable
requirements of Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. The Court
hereby finds, in the specific context of and for the sole purposes of the Settlement, that: (i) the
Settlement Class is so numerous that joinder of all members of the Settlement Class is
impracticable, Fed. R. Civ. P. 23(a)(1); (ii) there are questions of law and fact common to the
Settlement Class which predominate over any individual questions, Fed. R. Civ. P. 23(a)(2);
(iii)Exchange-Based Plaintiffs’ claims in this litigation are typical of those of the members of
the Settlement Class, Fed. R. Civ. P. 23(a)(3); and (iv) Exchange-Based Plaintiffs’ interests do
not conflict with, and are co-extensive with, those of absent members of the Settlement Class and
Settlement Class Counsel has adequately represented the interests of the Settlement Class, FED.
R. CIV. P. 23(a)(4). The Court also finds that a class action is superior to other available methods
for fairly and efficiently adjudicating this controversy. Fed. R. Civ. P. 23(b)(3).
4. Settlement Class Counsel – Pursuant to Rule 23(g) of the Federal Rules of Civil
Procedure, and solely for settlement purposes, the law firms of Lovell Stewart Halebian
Jacobson LLP and Kirby McInerney LLP are designated as settlement class counsel (“Settlement
Class Counsel”) for the Exchange-Based Plaintiffs’ Action.
5. Jurisdiction – This Court has personal jurisdiction over Exchange-Based
Plaintiffs, the Settling Defendants, and all members of the Settlement Class and subject matter
jurisdiction over the Action to approve the Settlement Agreement and all exhibits attached
thereto under 28 U.S.C. § 1331.
6. Notice – The Court finds that the mailed notice, publication notice, website, and
Notice Program implemented pursuant to the Settlement Agreement and approved by the Court
in the Preliminary Approval Order: (a) constituted the best practicable notice; (b) constituted
notice that was reasonably calculated, under the circumstances, to apprise members of the
Settlement Class of the pendency of the Action, of their right to exclude themselves from or
object to the proposed Settlement, of their right to appear at the Fairness Hearing, of the Revised
Plan of Distribution, and of Settlement Class Counsel’s application for any attorneys’ fees and
for reimbursement of expenses associated with the Action; (c) provided a full and fair
opportunity to all members of the Settlement Class to be heard with respect to the foregoing
matters; and (d) met all applicable requirements of Federal Rule of Civil Procedure 23, due
process, and any other applicable rules or law. The Court hereby confirms the appointment of
A.B. Data, Ltd. as Settlement Administrator. In accordance with Paragraph 9 of the Preliminary
Approval Order and based upon the Declaration of Steven Straub on Behalf of A.B. Data, Ltd.
Regarding Notice and Claims Administration for Exchange-Based Plaintiffs’ Class Action
Settlements With Settling Defendants, the Court finds that the Settlement Administrator’s
execution of the Notice Program approved by the Court constituted the best practicable under the
circumstances and otherwise satisfies all applicable requirements of Federal Rule of Civil
Procedure 23 and due process. Additionally, the Court finds that the Settlement Administrator
and the Settling Defendants have satisfied the additional notice efforts pursuant to Paragraph
9(b) of the Preliminary Approval Order. Finally, no Class Member is relieved from the terms of
the Settlement, including the releases provided for therein, based upon the contention or proof
that such Class Member failed to receive actual or adequate notice. A full opportunity has been
offered to all Class Members to object to the Settlements and to participate in the hearing
thereon. The Court further finds that the notice provisions of the Class Action Fairness Act, 28
U.S.C. § 1715, were fully discharged by the Settling Defendants and that the statutory waiting
period has elapsed.
7. Exclusion from the Settlement Class – Any Settlement Class Members that
have timely and validly submitted a Request for Exclusion from the Settlement Class (“Opt-
Outs”) are hereby excluded from the Settlement, are not bound by this Final Judgment and
Approval Order, and may not make any claim or receive any benefit from the Settlement,
whether monetary or otherwise.3
3 The Opt-Outs to the Settlement are listed in Exhibit A to this Order.
8. Dismissal of the Action As to the Settling Defendants – Except as to any
individual claim by the Opt-Outs, it is hereby determined that all members of the Settlement
Class are bound by the Settlement Agreement and this Final Judgment and Approval Order, and
all of their Released Claims against the Releasees, as provided under the Settlement Agreement,
are hereby dismissed with prejudice and released. Exchange-Based Plaintiffs’ claims against the
non-settling defendants in the Action are not dismissed and are not subject to this Final Judgment
and Approval Order. The Parties shall bear their own costs, except as otherwise provided in the
Settlement Agreement.
9. Final Settlement Approval – Pursuant to Rule 23(e)(2) of the Federal Rules of
Civil Procedure, this Court hereby finally approves the Settlement, as set forth in the Settlement
Agreement, and finds that the Settlement is, in all respects, fair, reasonable and adequate as to,
and in the best interests of the Settlement Class, including Exchange-Based Plaintiffs. In
reaching this conclusion, the Court considered the factors set forth in City of Detroit v. Grinnell
Corp., 495 F.2d 448, 463 (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. This Court further finds that the Settlement set forth in the Settlement Agreement is
the result of arm’s length negotiations between experienced counsel representing the interests of
the Parties, and that Class Counsel and Exchange-Based Plaintiffs adequately represented the
Settlement Class for the purpose of entering into and implementing the Settlement Agreement.
Accordingly, the Settlement embodied in the Settlement Agreement is hereby approved in all
respects. The Parties are hereby directed to carry out the Settlement Agreement in accordance
with all of its terms and provisions, including the termination provisions.
10. Termination of Settlement or Failure of Effective Date to Occur –
Notwithstanding the entry of this Final Judgment and Approval Order, in the event that the
Settlement does not become effective in accordance with the terms of the Settlement Agreement,
either with respect to one or both Settling Defendants, then, with respect to each Settling
Defendant as to which the Settlement does not become effective, (i) the provisions of this Final
Judgment and Approval Order dismissing Exchange-Based Plaintiffs’ claims shall be null and
void; (ii) Exchange-Based Plaintiffs’ claims shall be reinstated; (iii) the Settling Defendant’s
defenses shall be reinstated; (iv) the certification of the Settlement Class and final approval of
the proposed Settlement, and all actions associated with it, including but not limited to any
requests for exclusion from the Settlement previously submitted and deemed to be valid, shall be
vacated and be of no force and effect; (v) the Settlement Agreement, including its exhibits, and
any and all negotiations, documents, and discussions associated with it and the releases set forth
herein, shall be without prejudice to the rights of any Party, and of no force or effect; (vi) the
Parties shall be returned to their respective positions before the Settlement Agreement was
signed; (vii) the Settlement Amount (less certain costs relating to class notice, settlement
administration and any taxes) will be refunded to Settling Defendants in conformance with
Section 22(A) of the Settlement Agreement. Notwithstanding the language in this Paragraph,
any provision in the Settlement Agreement that the Parties have agreed shall survive its
termination shall continue to have the same force and effect intended by the Parties.
11. Establishment of Fiduciary Account – The Settlement Fund has been
established as a trust and shall be established as a fiduciary account (the “Settlement Fiduciary
Account”). The Court further approves the establishment of the Settlement Fiduciary Account
under the Settlement Agreement as a Qualified Settlement Fund pursuant to Section 468B of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated
thereunder.
12. Retention of Jurisdiction – Without affecting the finality of this Final Judgment
and Approval Order for purposes of appeal, the Court reserves exclusive jurisdiction over the
implementation and enforcement of the Settlement Agreement and the Settlement contemplated
thereby and over the enforcement of this Final Judgment and Approval Order. The Court also
retains exclusive jurisdiction to resolve any disputes that may arise with respect to the Settlement
Agreement, the Settlement, or the Settlement Fund, to consider or approve administration costs
and fees, including but not limited to fees and expenses incurred to administer the Settlement
after the entry of this Final Judgment and Approval Order, and to consider or approve the
amounts of distributions to Settlement Class Members. In addition, without affecting the finality
of this Final Judgment and Approval Order, Exchange-Based Plaintiffs, the Settling Defendants,
and the Settlement Class hereby irrevocably submit to the exclusive jurisdiction of the United
States District Court for the Southern District of New York for any suit, action, proceeding or
dispute arising out of or relating to this Final Judgment and Approval Order or the Settlement
Agreement. Any disputes involving Exchange-Based Plaintiffs, the Settling Defendants, or
members of the Settlement Class concerning the implementation of the Settlement Agreement
shall be submitted to the Court except as to those matters identified in the Settlement Agreement
that are to be resolved by mediation or arbitration.
13. Covenant Not to Sue – Each member of the Settlement Class must execute a
release and covenant not to sue in conformity with the Settlement Agreement, as incorporated
into the Proof of Claim and Release form, in order to receive the Settlement Class Member’s
share, if any, of the Net Settlement Fund. The Court hereby directs that the Settlement
Administrator shall ensure that each Proof of Claim and Release form provided to members of
the Settlement Class contains a copy of such release and covenant not to sue. However, each
member of the Settlement Class’s Released Claims shall be released pursuant to Section 12 of
the Settlement Agreement, regardless of whether the member of the Settlement Class executes a
release and covenant not to sue pursuant to this Paragraph 13.
14. Release – The Court hereby approves the Releasors’ releases of claims as set
forth in this Final Judgment and Approval Order as of the Effective Date.4
4 Under Section 12 of the Settlement Agreement:
(A) Upon the Effective Date, and in exchange for the receipt of the Settlement Amount provided for herein, the
receipt and sufficiency of which is hereby acknowledged, the Releasors, and any other Person claiming
against the Settlement Fund (now or in the future) through or on behalf of any Releasor, shall be deemed to
have, and by operation of the Final Judgment shall have, fully, finally, and forever released, relinquished,
and discharged Releasees from any and all Released Claims, and shall be permanently barred and enjoined
from instituting, commencing, or prosecuting any such Released Claim in any lawsuit, arbitration, or other
proceeding against any Releasee in any court or venue in any jurisdiction worldwide. Releasors further
agree and covenant not to assist any third party in commencing or maintaining any suit against any
Releasee related in any way to the Released Claims. Each Releasor shall be deemed to have released all
Released Claims against the Releasees regardless of whether any such Releasor ever seeks or obtains by
any means, including, without limitation, by submitting a Proof of Claim and Release, any distribution
from the Settlement Fund or Net Settlement Fund. The releases set forth herein are given pursuant to New
York law and shall be construed under New York law, including N.Y. General Obligations Law § 15-108,
which bars claims for contribution by joint tortfeasors and other similar claims, without regard to New
York’s conflict of law principles. This Agreement is expressly intended to absolve Releasees from any
claims for contribution, indemnification, or similar claims from other Defendants arising out of or related to
the Released Claims, in the manner and to the fullest extent permitted under the laws of New York or any
other jurisdiction that might be construed or deemed to apply to any claims for contribution,
indemnification, or similar claims against any Releasee. Notwithstanding the foregoing, should any court
determine that any Defendant is or was legally entitled to any kind of contribution or indemnification from
JPMorgan or BOA arising out of or related to Released Claims, the Releasors agree that any money
judgment subsequently obtained by the Releasors against any Defendant shall be reduced to an amount
such that, upon paying the entire amount, the Defendant would have no claim for contribution,
indemnification, or similar claims against JPMorgan or BOA. Except in the event of termination of this
Settlement, the Parties agree not to assert under Rule 11 of the Federal Rules of Civil Procedure, or any
similar law, rule, or regulation, that the Action was brought or defended in bad faith or without a reasonable
basis.
(B) Although the foregoing is not a general release, such release constitutes a waiver of Section 1542 of the
California Civil Code (to the extent it applies to the Action), which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO 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.
15. No Admission – Neither the Settlement Agreement (nor its exhibits), whether or
not it shall become Final, nor any negotiations, documents exchanged between or among counsel
for Exchange-Based Plaintiffs and the Settling Defendants in connection with settlement
discussions, and discussions associated with them, nor this Final Judgment and Approval Order
is or shall be deemed or construed to be an admission, adjudication, or evidence of: (a) any
violation of any domestic or foreign statute, law, or regulation or of any liability or wrongdoing
by the Settling Defendants or any Releasee; (b) the truth of any of the claims or allegations
alleged in the Action; (c) the incurrence of any damage, loss or injury by any Person; (d) the
existence or amount of any artificiality; or (e) the propriety of certification of a class other than
solely for purposes of the Settlement. Further, neither the Settlement Agreement (nor its
exhibits), whether or not it shall become Final, nor any negotiations, documents exchanged
between or among counsel for Exchange-Based Plaintiffs and the Settling Defendants in
connection with settlement discussions, and discussions associated with them, nor this Final
Judgment and Approval Order, may be discoverable, offered or received in evidence, or used
directly or indirectly, in any way, whether in the Action or in any other action or proceeding of
any nature, by any Person, except if warranted by existing law in connection with a dispute under
the Settlement Agreement or an action (including this Action) in which the Settlement
Agreement is asserted as a defense. Notwithstanding anything to the contrary herein, the
This release also constitutes a waiver of any and all provisions, rights, and benefits of any federal, state, or
foreign law, rule, regulation, or principle of law or equity that is similar, comparable, or equivalent to, or
that has the effect of, Section 1542 of the California Civil Code. The Settlement Class Members
acknowledge that they are aware that they may hereafter discover facts in addition to, or different from,
those facts which they know or believe to be true with respect to the subject matter of this Agreement, but
that it is their intention to release fully, finally, and forever all of the Released Claims, and in furtherance of
such intention, the release shall be irrevocable and remain in effect notwithstanding the discovery or
existence of any such additional or different facts. In entering and making this Agreement, the Parties
assume the risk of any mistake of fact or law, and the release shall be irrevocable and remain in effect
notwithstanding any mistake of fact or law.
foregoing sentence does not apply to Cooperation Materials provided by the Settling Defendants
to Exchange-Based Plaintiffs or by Exchange-Based Plaintiffs to the Settling Defendants in
connection with the Settlement.
16. Bar Against Claims Against the Releasees for Contribution or
Indemnification – To the extent permitted by law, the Court bars claims by other Defendants (as
defined in the Settlement Agreement), arising out of or related to the Released claims, against the
Settling Defendants or any Releasees (as defined in the Settlement Agreement) for contribution
or indemnification (however denominated). Notwithstanding the foregoing, should any court
determine that any Defendant is or was legally entitled to any kind of contribution or
indemnification from the Settling Defendants arising out of or related to Released Claims, the
Releasors agree that any money judgment subsequently obtained by the Releasors against any
Defendant shall be reduced to an amount such that, upon paying the entire amount, the
Defendant would have no claim for contribution, indemnification, or similar claims (however
denominated) against the Settling Defendants.
17. Bar Against Claims by the Releasees for Contribution or Indemnification –
To the extent permitted by law, the Court bars claims by the Releasees for contribution or
indemnification (however denominated) for all or a portion of any amounts paid or awarded in
the Action by way of any settlement, judgment or otherwise against any of the Defendants (as
defined in the Settlement Agreement).
18. Data Confidentiality – Any data or other information provided by members of
the Settlement Class in connection with the submission of claims shall be held in strict
confidence, available only to the Settlement Administrator, Settlement Class Counsel or experts
or consultants acting on behalf of the Settlement Class. In no event shall a member of the
Settlement Class’s data or personal information be made publicly available, except as provided
for in the Settlement Agreement, herein, or upon Court order for good cause shown.
19. Revised Plan of Distribution – Upon review of the record, the Court finds that
the Revised Plan of Distribution [ECF Nos. 2973, 3106] has a reasonable, rational basis and is
fair and adequate. Therefore, the Revised Plan of Distribution is hereby finally approved.
Consistent with Section 16(b) of the Settlement Agreement, the approval of the Revised Plan of
Distribution shall in no way disturb or affect this Final Judgment and Approval Order or the
Releases provided hereunder and shall be considered separate from this Final Judgment and
Approval Order. No Person shall have any claim against Settlement Class Counsel or the
Settlement Administrator based on distributions made substantially in accordance with the
Settlement Agreements, the Revised Plan of Distribution, or further orders of the Court.
20. Other Classes – The Court’s certification of the Settlement Class, and
appointment of Exchange-Based Plaintiffs as Settlement Class Representatives, as provided
herein is without prejudice to, or waiver of, the rights of any Defendant to contest any other
request by Exchange-Based Plaintiffs or any other person to certify a class. The Court’s findings
in this Final Judgment and Approval Order shall have no effect on the Court’s ruling on any
motion to certify any class or to appoint class representatives in this litigation or any other
litigation, and no party may cite or refer to the Court’s approval of the Settlement Class or
Settlement Class Representatives as binding or persuasive authority with respect to any motion
to certify such class or appoint class representatives.
21. Separate Order – Settlement Class Counsel’s request for attorneys’ fees,
reimbursement of expenses and Settlement Class Representative service awards shall be the
subject of a separate order.
22. Entry of Order — There is no just reason for delay in the entry of this Final
Judgment and Approval Order, and immediate entry by the Clerk of the Court is expressly
directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
DATEDSeptember 17, 2020 Meira Kicaud Necharti
HON. NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
12
EXHIBIT A
1. National Credit Union Administration, as liquidating agent for U.S. Central Federal
Credit Union, Western Corporate Federal Credit Union, Members United Corporate
Federal Credit Union, Southwest Corporate Federal Credit Union and Constitution
Corporate Federal Credit Union.
2. Salix Capital US, Inc.
3. The City of Philadelphia and The Pennsylvania Intergovernmental Corporation
Authority
4. Prudential Investment Portfolios 2, f/k/a Dryden Core Investment Fund, obo PGIM
Core Short-Term Bond Fund (f/k/a Prudential Core Short -Term Bond Fund) and
PGIM Core Ultra Short Bond Fund (f/k/a Prudential Core Taxable Money Market
Fund)
5. Darby Financial Products and Capital Ventures International
6. Federal Home Loan Mortgage Corporation (“Freddie Mac”)