The opinion
ELECTRONICALLY FIL
DOC #:
UNITED STATES DISTRICT COURT DATE FILED: _05/04/202:
SOUTHERN DISTRICT OF NEW YORK
IN RE:
Case No. 14-MD-2548 (VEC)
COMMODITY EXCHANGE, INC., GOLD 14-MC-2548 (VEC)
FUTURES AND OPTIONS TRADING
LITIGATION
Hon. Valerie E. Caproni
This Document Relates To All Actions
FINAL JUDGMENT AND ORDER OF DISMISSAL
AS TO HSBC BANK PLC
This matter came before the Court for hearing pursuant to Plaintiffs’ application for final
approval of the settlement set forth in the Stipulation and Agreement of Settlement with HSBC
Bank plc, dated November 10, 2020 (the “Settlement Agreement”). The Court has considered all
papers filed and proceedings held herein and is fully informed of these matters. For good cause
shown, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1. This Final Judgment and Order of Dismissal incorporates by reference the
definitions in the Settlement Agreement, and all capitalized terms used, but not defined, herein
shall have the same meanings as in the Settlement Agreement.
2. This Court has jurisdiction over the subject matter of the Action and over all
parties to the Action, including all Settlement Class Members.
3. The notice provisions of the Class Action Fairness Act, 28 U.S.C. §1715, have
been satisfied.
4. Based on the record before the Court, including the Preliminary Approval Order,
the submissions in support of the settlement between Plaintiffs,1 for themselves individually and
on behalf of each Settlement Class Member in the Action, and HSBC Bank plc (the “Settling
Defendant” and together with Plaintiffs, the “Settling Parties”), and any objections and responses
thereto, pursuant Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure the Court
hereby certifies solely for settlement purposes the following Settlement Class:
All persons or entities who during the period from January 1, 2004 through June
30, 2013, either (A) sold any physical gold or financial or derivative instrument in
which gold is the underlying reference asset, including, but not limited to, those
who sold (i) gold bullion, gold bullion coins, gold bars, gold ingots or any form of
physical gold, (ii) gold futures contracts in transactions conducted in whole or in
part on COMEX or any other exchange operated in the United States, (iii) shares
in Gold exchange-traded funds (“ETFs”), (iv) gold call options in transactions
conducted over-the-counter or in whole or in part on COMEX or any other
exchange operated in the United States; (v) gold spot, gold forwards or gold
1 Plaintiffs are Compañía Minera Dayton SCM, Frank Flanagan, KPFF Investment, Inc.,
Duane Lewis, Larry Dean Lewis, Kevin Maher, Robert Marechal, Blanche McKennon, Kelly
McKennon, Thomas Moran, J. Scott Nicholson, and David Windmiller.
swaps over-the-counter; or (B) bought gold put options in transactions conducted
over-the-counter or in whole or in part on COMEX or on any other exchange
operated in the United States.
Excluded from the Settlement Class are Defendants, their officers, directors,
management, employees, affiliates, parents, subsidiaries, and co-conspirators,
whether or not named in the Action, and the United States Government, and other
governments. Also excluded is the Judge presiding over this action, his or her law
clerks, spouse, and any person within the third degree of relationship living in the
Judge’s household and the spouse of such a person.
5. The requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil
Procedure have been satisfied, as follows: (a) the members of the Settlement Class are so
numerous that joinder of all members of the Settlement Class in the Action is impracticable;
(b)questions of law and fact common to the Settlement Class predominate over any individual
questions; (c) the claims of Plaintiffs are typical of the claims of the Settlement Class;
(d)Plaintiffs and Lead Counsel have fairly and adequately represented and protected the interests
of the Settlement Class; and (e) a class action is superior to other available methods for the fair
and efficient adjudication of the controversy, considering (i) the interests of members of the
Settlement Class in individually controlling the prosecution of separate actions; (ii) the extent
and nature of any litigation concerning the controversy already begun by members of the
Settlement Class; (iii) the desirability or undesirability of concentrating the litigation of these
claims in this particular forum; and (iv) the likely difficulties in managing this Action as a class
action.
6. The law firms of Quinn Emanuel Urquhart & Sullivan, LLP and Berger Montague
P.C. are appointed, solely for settlement purposes, as Lead Counsel for the Settlement Class.
7. Plaintiffs Compañía Minera Dayton SCM, Frank Flanagan, KPFF Investment,
Inc., Duane Lewis, Larry Dean Lewis, Kevin Maher, Robert Marechal, Blanche McKennon,
Kelly McKennon, Thomas Moran, J. Scott Nicholson, and David Windmiller are appointed,
solely for settlement purposes, as class representatives for the Settlement Class.
8. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court grants
final approval of the Settlement set forth in the Settlement Agreement on the basis that the
settlement is fair, reasonable, and adequate as to, and in the best interests of, all Settlement Class
Members, and is in compliance with all applicable requirements of the Federal Rules of Civil
Procedure. 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 Resources, Inc., 209 F.3d 43 (2d Cir. 2000). Moreover, the Court
concludes that:
a. The Settlement set forth in the Settlement Agreement was fairly and
honestly negotiated by counsel with significant experience litigating antitrust class
actions and other complex litigation and is the result of vigorous arm’s-length
negotiations undertaken in good faith;
b. This Action is likely to involve contested and serious questions of law and
fact, such that the value of an immediate monetary recovery outweighs the mere
possibility of future relief after protracted and expensive litigation;
c. Success in complex cases such as this one is inherently uncertain, and
there is no guarantee that continued litigation would yield a superior result; and
d. The Settlement Class Members’ reaction to the Settlement set forth in the
Settlement Agreement is entitled to great weight.
9. Except as to any individual claim of those Persons (identified in Exhibit 1 hereto)
who have validly and timely requested exclusion from the Settlement Class (“Opt-Outs”), the
Action and all claims contained therein, as well as all of the Released Claims, against HSBC
Bank plc by the Plaintiffs and Releasing Parties are dismissed with prejudice. The Settling
Parties are to bear their own costs, except as otherwise provided in the Settlement Agreement
and the orders of this Court.
10. The Opt-Outs identified in Exhibit 1 hereto have timely and validly requested
exclusion from the Settlement Class and are excluded from the Settlement Class for all purposes,
are not bound by this Final Judgment and Order of Dismissal, and may not make any claim or
receive any benefit from the Settlement Agreement or the Deutsche Bank agreement being
jointly administered with this Settlement Agreement.
11. Upon the Effective Date: (i) Plaintiffs, each of the Settlement Class Members, and
all Releasing Parties shall be deemed to have, and by operation of the Judgment shall have, fully,
finally, and forever released, relinquished, and discharged against HSBC Bank plc and the
Released Parties (whether or not such Plaintiff, Settlement Class Member, or Releasing Party
executes and delivers a Proof of Claim and Release form) any and all Released Claims
(including, without limitation, Unknown Claims); and (ii) Plaintiffs, each of the Settlement Class
Members, and all Releasing Parties, and anyone claiming through or on behalf of them, shall be
permanently barred and enjoined from the commencement, assertion, institution, maintenance or
prosecution of any of the Released Claims against HSBC Bank plc or any Released Party in any
action or other proceeding in any court of law or equity, arbitration tribunal, administrative
forum, or forum of any kind. This Final Judgment and Order of Dismissal shall not affect in any
way the right of Plaintiffs or Releasing Parties to pursue claims, if any, outside the scope of the
Released Claims. Claims to enforce the terms of the Settlement Agreement are not released.
12. Upon the Effective Date, HSBC Bank plc: (i) shall be deemed to have, and by
operation of the Judgment and Order of Dismissal shall have, fully, finally, and forever released,
relinquished, and discharged Plaintiffs, each and all of the Settlement Class Members, and
Plaintiffs’ Counsel from any and all Settling Defendant’s Claims (including, without limitation,
Unknown Claims); and (ii) shall be permanently barred and enjoined from the commencement,
assertion, institution, maintenance or prosecution of Settling Defendant’s Claims against Class
Plaintiffs and Co-Lead Counsel in any action or other proceeding in any court of law or equity,
arbitration tribunal, administrative forum, or forum of any kind. This Final Judgment and Order
of Dismissal shall not affect in any way the right of HSBC Bank plc to pursue claims, if any,
outside the scope of the Released Defendants’ Claims. Claims to enforce the terms of the
Settlement Agreement are not released.
13. All rights of any Settlement Class Member against (i) any of the other Defendants
currently named in the Action; (ii) any other Person formerly named in the Action; or (iii) any
alleged co-conspirators or any other Person subsequently added or joined in the Action, other
than HSBC Bank plc or the Released Parties with respect to Released Claims are specifically
reserved by Plaintiffs and the Settlement Class Members. To the extent permitted and/or
authorized by law, all transactions relating to or arising from entry into, receipt of payments on,
or terminations of any Gold Investments with HSBC Bank plc, remain in the case against (i) any
of the other Defendants currently named in the Action; (ii) any other Person formerly named in
the Action; or (iii) any alleged co-conspirators or any other Person subsequently added or joined
in the Action, other than HSBC Bank plc and the Released Parties, as a potential basis for
damage claims and may be part of any joint and several liability claims.
14. The mailing and distribution of the Notice to all members of the Settlement Class
who could be identified through reasonable effort and the publication of the Summary Notice
satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process,
constitute the best notice practicable under the circumstances, and constitute due and sufficient
notice to all Persons entitled to notice.
15. Neither the Settlement Agreement nor the Settlement contained therein, nor any
act performed or document executed pursuant to or in furtherance of the Settlement Agreement
or the Settlement: (a) is or may be deemed to be or may be used as an admission or evidence of
the validity of any Released Claim, or of any wrongdoing or liability of HSBC Bank plc; or (b) is
or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission
of HSBC Bank plc in any civil, criminal, or administrative proceeding in any court,
administrative agency, or other tribunal. The Settlement Agreement may be filed in an action to
enforce or interpret the terms of the Settlement Agreement, the Settlement contained therein, and
any other documents executed in connection with the performance of the Settlement embodied
therein. HSBC Bank plc may file the Settlement Agreement and/or this Final Judgment and
Order of Dismissal in any action that may be brought against 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. Without affecting the finality of this Final Judgment and Order of Dismissal in
any way, this Court retains continuing and exclusive jurisdiction over: (a) implementation of the
Settlement set forth in the Settlement Agreement; (b) any award, distribution, or disposition of
the Settlement Fund, including interest earned thereon; (c) hearing and determining applications
for attorneys’ fees, costs, expenses including expert fees, and incentive awards; and (d) all
Settling Parties, Released Parties, and Releasing Parties for the purpose of construing, enforcing,
and administering the Settlement Agreement.
17. _—_ In the event that the Settlement does not become effective in accordance with the
terms of the Settlement Agreement, then this Final Order and Judgment of Dismissal shall be
rendered null and void and shall be vacated. In such event, all orders entered and releases
delivered in connection herewith shall be null and void, and the Settling Parties shall be deemed
to have reverted to their respective status in the Action as of the Execution Date, and, except as
otherwise expressly provided herein, the Settling Parties shall proceed in all respects as if the
Settlement Agreement and any related orders had not been entered; provided, however, that in
the event of termination of the Settlement, Paragraphs 3(b), 8(g), 10(b), 13(4), and 13() of the
Settlement Agreement shall nonetheless survive and continue to be of effect and have binding
force.
18. The Settling Parties are directed to consummate the Settlement according to the
terms of the Settlement Agreement. Without further Court order, the Settling Parties may agree
to reasonable extensions of time to carry out any of the provisions of the Settlement Agreement.
19. There is no just reason for delay in the entry of this Final Judgment and Order of
Dismissal. The Clerk of the Court is respectfully directed to enter this Final Judgment and Order
of Dismissal pursuant to Rule 54(b) of the Federal Rules of Civil Procedure immediately. The
Clerk of Court is also respectfully directed to terminate Defendant HSBC Bank ple.
20. The Court’s consideration and approval of the Settlement is independent of the
Court’s consideration and approval of the Plan of Allocation, the fee award, and the expenses
award.
The Clerk of Court is respectfully directed to terminate Defendants HSBC Holdings
PLC; HSBC Bank PLC; HSBC USA, Inc.; and HSBC Holdings PLC, a United Kingdom
corporation.
IT IS SO ORDERED.
DATED: May 4, 2022
HON. VALERIE E. CAPRONI
UNITED STATES DISTRICT JUDGE
EXHIBIT 1
List of Opt-Outs from the Original Settlements
1. Charles D. Nicolaus
2. Louise A. Dunham
3. St. Ives Gold Mining Company Pty Limited
4. Agnew Gold Mining Company Pty Limited
5. Wing Fung Precious Metals Limited
6. Susan J. Levy
7. Gordon R. Hauglie
8. Joan M. Hauglie
9. Yvonne McKown
10. Banco Central de Bolivia