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 AND FINAL APPROVAL OF
EXCHANGE-BASED PLAINTIFFS’ CLASS ACTION SETTLEMENT
WITH HSBC BANK PLC
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 America, Barclays Bank plc, Citi, Deutsche Bank, HSBC
Bank plc, JPMorgan, and Société Générale (the “Settling Defendants”) in the above-captioned
action (the “Action”). Due and adequate notice of the Stipulation and Agreement of Settlement
with HSBC Bank plc (“HSBC” or “Settling Defendant”) entered into on July 6, 2017 [ECF No.
2307-6] (the “Settlement Agreement”) having been given to the members of the Settlement
Class, the 90-day period provided by the Class Action Fairness Act, 28 U.S.C. §1715(d), having
expired, the Fairness Hearing having been held, and the Court having considered the Settlement
Agreement and all other 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 Order and
Final Approval of Exchange-Based Plaintiffs’ Class Action Settlement with HSBC Bank plc
(“Final Judgment and Approval Order”) hereby incorporates by reference the definitions in the
Settlement Agreement and 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.
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 (other than Defendants, their
employees, affiliates, parents subsidiaries, and co-conspirators) that transacted in
Eurodollar futures and/or options on Eurodollar futures on exchanges, including
without limitation, the Chicago Mercantile Exchange, between January 1, 2003
and May 31, 2011. Excluded from the Class are: (i) Defendants, their employees,
affiliates, parents, subsidiaries, and co-conspirators; (ii) the Releasees (as defined
in Section 1(GG)); and (iii) any Class Member who files a timely and valid
request for exclusion.
2020 WL 1059489 at *3 (quoting HSBC Settlement Agreement at ¶ 2.A, ECF No. 2307-6).
3. Requirements of Fed. R. Civ. P. 23 - Based on the record, the Court reconfirms
that the applicable provisions of Rule 23 of the Federal Rules of Civil Procedure have each been
satisfied for purposes only of the Settlement. In so holding, and solely for purposes of the
Settlement, 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 subject matter jurisdiction over this Action under 28
U.S.C. § 1331, and, solely for purposes of approving and effectuating the Settlement Agreement
and all exhibits attached thereto, personal jurisdiction over Exchange-Based Plaintiffs, the
Settling Defendant, and all members of the Settlement Class.
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 Defendant 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 Settlement 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.
§1715were fully discharged by HSBC 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.1
8. Dismissal of the Action As to the Settling Defendant – Except as to any
individual claim by the Opt-Outs, it is hereby determined that all members of the Settlement
Class, including the Exchange-Based Plaintiffs, are bound by the Settlement Agreement and this
Final Judgment and Approval Order, and all of their and the Releasors’ Released Claims2 against
1 The Opt-Outs to the Settlement are listed in Exhibit A to this Order.
2 “Released Claims” are defined in ¶ 1(FF) of the Settlement Agreement as: “[A]ny and all manner of claims,
including any unknown claims described in Section 12(B) below, debts, demands, rights, interests, actions, suits,
causes of action, cross-claims, counter-claims, charges, judgments, obligations, setoffs, or liabilities for any
obligations of any kind whatsoever (however denominated), whether class, individual or otherwise in nature, for
fees, costs, penalties, damages whenever incurred, and liabilities of any nature whatsoever (including, without
limitation, direct or indirect claims or demands for rescission, damages, interest, attorneys’ fees, and any other costs,
the Releasees3, 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
expenses or liabilities whatsoever, including joint and several), whether based on federal, state, local, statutory or
common law, in equity, or on any other law, rule, regulation, ordinance, contract, or the law of any foreign
jurisdiction, whether fixed or contingent, known or unknown, liquidated or unliquidated, suspected or unsuspected,
asserted or unasserted, matured or unmatured, which Releasors or any of them, whether directly, representatively,
derivatively, or in any other capacity, now or ever had against Releasees, arising from or relating in any way to any
conduct alleged in the Action or that could have been alleged in the Action against the Releasees concerning
Eurodollar future contracts or options by Exchange-Based Plaintiffs, any Class Members, or Releasors, including,
but not limited to, any purported manipulation of U.S. Dollar LIBOR (“LIBOR”) under the Commodity Exchange
Act, 7 U.S.C. § 1 et seq., or any purported conspiracy or collusion between HSBC and any other Defendant
(including, but not limited to, all claims under Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1; California’s
Cartwright Act, Cal. Bus. & Prof. Code §§16720, et seq.; New York’s Donnelly Act, N.Y. Gen. Bus. Law §§ 340, et
seq.; any other federal, state, local, statutory or common law, in equity, or on any other law, rule or regulation; or the
law of any foreign jurisdiction).”
3 “Releasees” are defined in ¶ 1(GG) of the Settlement Agreement as: “HSBC, HSBC Holdings plc, and each of
their respective predecessors, successors and assigns; each of their direct and indirect parents, subsidiaries,
Affiliates, associates (all as defined in SEC Rule 12b-2 promulgated pursuant to the Securities Exchange Act of
1934), divisions, predecessors, and successors; and each of the foregoing’s respective current and former officers,
directors, employees, managers, members, partners, agents (in their capacity as agents of HSBC or HSBC Holdings
plc), shareholders (in their capacity as shareholders of HSBC or HSBC Holdings plc), attorneys, trustees, and legal
or other representatives; and the predecessors, successors, heirs, executors, administrators, advisors, and assigns of
each of the foregoing.”
the Parties, and that Settlement 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,
(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, including without limitation
HSBC’s and HSBC Holdings plc’s objections to and defenses based on a lack of personal
jurisdiction; (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; and (vii) the
Settlement Amount (less certain costs relating to class notice, settlement administration and any
taxes) will be refunded to HSBC 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, and solely for purposes of effectuating the
Settlement, Exchange-Based Plaintiffs, the Settling Defendant, 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 Defendant, 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’4 releases of claims as set
forth in this Final Judgment and Approval Order as of the Effective Date.5
4 “Releasors” are defined in ¶ 1(HH) of the Settlement Agreement as: “Exchange-Based Plaintiffs and each and
every Class Member on their own behalf and on behalf of their respective predecessors, successors, assigns,
beneficiaries, members, participants, investors, direct and indirect parents, subsidiaries, divisions, and Affiliates,
and their current and former officers, directors, employees, agents, stockholders, trustees, fiduciaries, and legal or
other representatives, and the predecessors, successors, heirs, executors, administrators, beneficiaries, and assigns of
each of the foregoing, whether or not they object to the settlement set forth in this Settlement Agreement, and
whether or not they make a claim for payment from the Net Settlement Fund. For the avoidance of doubt, Releasors
include all Persons entitled to bring claims on behalf of a Class Member relating to Eurodollar futures or options or
LIBOR manipulation or suppression. With respect to any Class Member that is a government entity, Releasor also
includes any Person as to which the government entity has the legal right to release such claims.”
5 Section 12 of the Settlement Agreement provides as follows:
Release and Covenant Not to Sue
(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
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 Defendant in connection with settlement
discussions, and discussions associated with them, nor this Final Judgment and Approval Order
proceeding against 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 are to 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. This Settlement Agreement is
expressly intended to absolve Releasees from any claims for contribution, indemnification or similar claims
from other Defendants in the Action, 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/was legally entitled to
any kind of contribution or indemnification from HSBC 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 HSBC. Except in the event of termination
of this Settlement Agreement, the Settling 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) This 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.
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, equivalent to, or
which has the effect of, Section 1542 of the California Civil Code. The Settling 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 Settlement
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 Settlement
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. The Parties acknowledge, and Class
Members shall be deemed to have acknowledged, that the release of such unknown claims was separately
bargained for and was a key element of the Settlement Agreement.
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 Defendant 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 Defendant 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
foregoing sentence does not apply to Cooperation Materials provided by the Settling Defendant
to Exchange-Based Plaintiffs or by Exchange-Based Plaintiffs to the Settling Defendant in
connection with the Settlement. Moreover, notwithstanding anything to the contrary herein, the
Releasees may file the Settlement Agreement or this Final Judgment and Approval Order, or
both, in any action that may be brought against any of them in order to support a defense or
counterclaim based on the principles of res judicata, collateral estoppel, full faith and credit,
release, good faith settlement, judgment bar, or reduction or any other theory of claim preclusion
or issue preclusion or similar defense or counterclaim.
16. Bar Against Claims for Contribution or Indemnification -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, the Court hereby bars any claims for contribution, indemnification or similar claims
from other Defendants in the Action and other alleged co-conspirators, arising out of or related to
the Released Claims. Notwithstanding the foregoing, should any court determine that any
Defendant or other co-conspirator is/was legally entitled to any kind of contribution or
indemnification from a Releasee arising out of or related to Released Claims, the Releasors agree
that any money judgment subsequently obtained by the Releasors against any Defendant or other
co-conspirator shall be reduced to an amount such that, upon paying the entire amount, the
Defendant or other co-conspirator would have no claim for contribution, indemnification or
similar claims against the Releasee.
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. Rule 11 Findings - The Court finds that, during the course of the Action,
Exchange-Based Plaintiffs, the Settling Defendant, and their respective counsel at all times
complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure as to each
other. 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 Sections ¶¶1(S), 5(C), 10(iii) 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 Agreement, 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, or of HSBC to
contest any request by any other plaintiff(s) to certify a class in this multi-district litigation. 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 Mectnat wehuaheh
HON. NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
13
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”)