The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
RICHARD DENNIS, SONTERRA CAPITAL MASTER
FUND, LTD., FRONTPOINT FINANCIAL SERVICES | Docket No. 16-cv-06496 (LAK)
FUND, L.P., FRONTPOINT ASIAN EVENT DRIVEN FUND, |
L.P., FRONTPOINT FINANCIAL HORIZONS FUND, L.P., |
AND ORANGE COUNTY EMPLOYEES RETIREMENT |
SYSTEM, on behalf of themselves and all others similarly | | Sane ‘
situated, | ELECTRONICALLY □□□□□
eee DOE.
Plaintiffs, DATE FILFD: ps (7 |
-against-
JPMORGAN CHASE & CO., JPMORGAN CHASE BANK, |
N.A., JEPMORGAN CHASE BANK, N.A. AUSTRALIA
BRANCH, BNP PARIBAS, S.A., BNP PARIBAS,
AUSTRALIA BRANCH, THE ROYAL BANK OF
SCOTLAND GROUP PLC, THE ROYAL BANK OF
SCOTLAND PLC, RBS N.V., RBS GROUP (AUSTRALIA) |
PTY LIMITED, UBS AG, UBS AG, AUSTRALIA BRANCH, |
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LTD., COMMONWEALTH BANK OF AUSTRALIA,
NATIONAL AUSTRALIA BANK LIMITED, WESTPAC
BANKING CORPORATION, DEUTSCHE BANK AG,
DEUTSCHE BANK AG, AUSTRALIA BRANCH, HSBC
HOLDINGS PLC, HSBC BANK AUSTRALIA LIMITED,
LLOYDS BANKING GROUP PLC, LLOYDS BANK PLC,
LLOYDS TSB BANK PLC, AUSTRALIA, MACQUARIE
GROUP LTD., MACQUARIE BANK LTD., ROYAL BANK |
OF CANADA, RBC CAPITAL MARKETS LLC, ROYAL
BANK OF CANADA, AUSTRALIA BRANCH, MORGAN _ |
STANLEY, MORGAN STANLEY AUSTRALIA LIMITED, |
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, ICAP |
PLC, ICAP AUSTRALIA PTY LTD., TULLETT PREBON
PLC, TULLETT PREBON (AUSTRALIA) PTY LTD., AND |
JOHN DOES NOS. 1-50.
Defendants. |
[PROROSED| FINAL APPROVAL ORDER OF CLASS ACTION SETTLEMENT
WITH WESTPAC BANKING CORPORATION
This matter came for a duly-noticed hearing on November 1, 2022 (the “Fairness
Hearing”), upon the Representative Plaintiffs’! Motion for Final Approval of Class Action
Settlement with Westpac Banking Corporation (“Westpac”) in the action captioned Richard
Dennis, et al. v. JPMorgan Chase & Co., et al., No. 16-cv-06496 (LAK) (S.D.N.Y.) (the “Action”,
which was consented to by Westpac (together with Representative Plaintiffs, the “Parties”). Due
and adequate notice of the Stipulation and Agreement of Settlement, dated March 1, 2021 and
Amendment to the Stipulation and Agreement of Settlement, dated January 13, 2022 (together, the
“Settlement Agreement”) having been given to the Settlement Class Members, the Fairness
Hearing having been held and the Court having considered all papers filed and proceedings had in
the Action, and otherwise being fully informed in the premises and good cause appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. This Final Approval Order hereby incorporates by reference the definitions in the
Settlement Agreement and all terms used herein, except as otherwise expressly defined herein,
shall have the same meanings as set forth in the Settlement Agreement.
2. For purposes only of the settlement of the Released Claims? set forth in the
Settlement Agreement (the “Settlement”), the Court hereby finally certifies the Settlement Class:
' Representative Plaintiffs are Richard Dennis, Orange County Employees Retirement System (“OCERS”),
and any subsequently named plaintiff(s).
2 “Released 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, set-offs, rights of recovery,
or liabilities for any obligations of any kind whatsoever (however denominated), whether class, derivative, 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, which Settling Class Members or any of them ever had, now has, or hereafter can, shall or may have,
representatively, derivatively or in any other capacity, against the Released Parties arising from or relating in any way
to the claims, allegations or conduct alleged in the Action, or which could have been alleged in the Action against the
Released Parties, concerning any:
(i) BBSW-Based Derivatives;
All Persons (including both natural persons and entities) who purchased,
acquired, sold, held, traded, or otherwise had any interest in BBSW-Based
Derivatives during the period January 1, 2003 through August 16, 2016,
inclusive. Excluded from the Settlement Class are the Defendants and any
parent, subsidiary, affiliate or agent of any Defendant or any co-conspirator
whether or not named as a Defendant, and the United States Government.
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.
4. In so holding, the Court finds that, solely for purposes of settlement, the Settlement
Class meets all of the applicable requirements of FED. R. Civ. P. 23(a) and (b)(3). The Court
hereby finds, in the specific context of this Settlement, that: (i) the Settlement Class is so numerous
that joinder of all Settlement Class Members is impracticable, FED. R. Civ. P. 23(a)(1); (it)
common questions of law and fact exist with regard to Westpac’s alleged manipulation of BBSW
and the prices of BBSW-Based Derivatives, FED. R. Civ. P. 23(a)(2); (iii) the Representative
Plaintiffs’ claims in this litigation are typical of those of the Settlement Class Members, FED. R.
(ii) BBSW-Based Deposits or Loans (to the extent such financial instruments were entered into by a U.S. Person,
or by a Person from or through a location within the U.S.);
(iii) Prime Bank Bills or Prime Bank eligible securities purchased, sold, held, traded, and/or transacted by the
Representative Plaintiffs, members of the Settlement Class, and/or Settling Class Members (to the extent
such financial instruments were entered into by a U.S. Person, or by a Person from or through a location
within the U.S.); or
(iv) any similar financial instruments priced, benchmarked, or settled to BBSW purchased, sold, held, traded,
and/or transacted by the Representative Plaintiffs, members of the Settlement Class, and/or Settling Class
Members (to the extent such financial instruments were entered into by a U.S. Person, or by a Person from
or through a location within the U.S.), including additional financial instruments or claims subsequently
alleged in the Action, or in which any of the foregoing otherwise had any interest;
including, but not limited to, any alleged manipulation of BBSW under any statute, regulation, or common law, or
any purported conspiracy, collusion, racketeering activity, or of other improper conduct relating to BBSW (including,
but not limited to, all claims under Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., the Commodity
Exchange Act, 7 U.S.C. § 1 et seq., the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968,
and any other federal or state statute, regulation, or the common law). The following claims shall not be released by
this Settlement: (i) any claims against former Westpac employees arising solely from those former employees’
conduct or alleged conduct that occurred while not employed by Westpac; (ii) any claims against the named
Defendants in this Action other than Westpac and other than any John Doe Defendants to the extent they are current
or former employees of Westpac (solely in their capacity as employees of Westpac); or (ili) any claims against any
Defendant not affiliated with Westpac who may be subsequently added in this Action.
Civ. P. 23(a)(3); and (iv) the Representative Plaintiffs’ interests do not conflict with, and are co-
extensive with, those of absent Settlement Class Members; and (v) Lowey Dannenberg, P.C. and
Lovell Stewart Halebian Jacobson LLP (‘Class Counsel’) have adequately represented the
interests of the Settlement Class, FED. R. CIv. P. 23(a)(4). The Court also finds that common issues
of fact and law predominate over any questions affecting only individual members and that a class
action is superior to other available methods for fairly and efficiently adjudicating this controversy.
FED. R. Clv. P. 23(b)(3).
5. Representative Plaintiffs are hereby approved to serve as representatives of such
Settlement Class for purposes of the Settlement.
6. Lowey Dannenberg, P.C. and Lovell Stewart Halebian Jacobson LLP are appointed
Class Counsel to the Settlement Class for the purposes of the Settlement.
7. In the Action only and solely for purposes of the Settlement, this Court: (1) has
personal jurisdiction over Representative Plaintiffs and Westpac, and all Settlement Class
Members, and (ii) subject matter jurisdiction over the Action to consider the Settlement Agreement
and all exhibits attached thereto.
8. The Court finds that the mailed notice, publication notice, website, and Class Notice
plan implemented pursuant to the Settlement Agreement and approved by the Court in the Order
dated February 1, 2022 as modified by the Court’s Order dated May 11, 2022: (a) constituted the
best practicable notice; (b) constituted notice that was reasonably calculated, under the
circumstances, to apprise Settlement Class Members of the pendency of the Action, of their □□□□□
to exclude themselves from or object to the proposed Settlement, of their nght to appear at the
Fairness Hearing, of the Distribution Plan, and of Class Counsel’s application for an award of
Attorneys’ Fees Award and any Incentive Award, and for reimbursement of expenses associated
with the Action; (c) provided a full and fair opportunity to all Settlement Class Members 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. Based upon
Westpac’s submission to the Court dated October 28, 2022 the Court further finds that Westpac
has complied with the obligations imposed on it under the Class Action Fairness Act of 2005, 28
U.S.C. § 1715. ECF No. 584.
9. The Court found that two Settlement Class Members have validly requested to be
excluded from the Settlement Class as it relates to the Settlement. Those excluded members of the
Settlement Class are identified at ECF No. 583 and in Exhibit 1 hereto. The excluded members of
the Settlement Class as to the Settlement with Westpac identified in Exhibit 1 hereto shall have no
rights with respect to the Settlement Agreement, shall receive no payment from the sums provided
for in the Settlement Agreement and shall be deemed to have excluded themselves from the Action
as against Westpac, including but not limited to any and all future prosecution of the Action against
Westpac.
10. The Court finds that no objections to the proposed Settlement have been submitted.
Notwithstanding the lack of objections, the Court has independently reviewed and considered all
relevant factors and has conducted an independent examination into the propriety of the proposed
Settlement.
11. It is hereby determined that all Settling Class Members are bound by the Settlement
Agreement and this Final Approval Order regardless of whether such Settling Class Members
execute and deliver a Proof of Claim and Release.
12. Pursuant to Rule 23 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, and in the best interests of the
Settlement Class, including the Representative 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). 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 the Representative Plaintiffs adequately represented the
Settlement Class for the purpose of entering into and implementing the Settlement Agreement.
The Court finds that the relief provided by the Settlement is adequate and Settlement Class
Members are treated equitably. 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.
13. Notwithstanding the entry of this Final Approval Order, if the Settlement
Agreement is validly terminated by the Representative Plaintiffs or Westpac, is disapproved in
whole or in part by the Court, any appellate court, or any other court of review, or does not become
Final in accordance with its terms, then the provisions of this Final Approval Order shall be null
and void with respect to the Settlement; the Representative Plaintiffs’ and Settling Class Members’
claims shall be reinstated; Westpac’s defenses shall be reinstated; 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; the Settlement Agreement,
including its exhibits, and any and all negotiations, documents, and discussions associctecl with it
and the releases set forth in the Settlement Agreement, shall be without prejudice to the rights of
any Party, and of no force or effect; and the Parties shall be returned to their respective positions
before the Settlement Agreement was signed. Notwithstanding the language in this section, any
provision(s) in the Settlement Agreement that the Parties have agreed shall survive their
termination shall continue to have the same force and effect intended by the Parties.
14. The Settlement Fund defined in the Settlement Agreement has been established as
a trust and as a fiduciary account (the “Settlement Fiduciary Account”). The Court approves the
establishment of the Settlement Fiduciary Account under the Settlement Agreement as qualified
settlement funds pursuant to Section 468B of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
15. | Without affecting the finality of the Final 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 Approval Order. The Court also retains exclusive jurisdiction to resolve any disputes that
arise out of or relate to the Settlement Agreement, the Settlement, or the Settlement Fund (except
for such disputes and controversies as are subject to Section 42 of the Settlement Agreement, which
disputes and controversies shall be governed by the respective terms of such section), 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 the Final Approval Order, and to consider or approve
the amounts of distributions to Settlement Class Members. In addition, without affecting the
finality of this Final Approval Order, the Representative Plaintiffs, Westpac, 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 Approval Order or the Settlement Agreement. Any disputes involving the
Representative Plaintiffs, Westpac, or Settling Class Members concerning the implementation of
the Settlement Agreement shall be submitted to the Court.
16. Each Settling Class Member 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 Settling Class Members’ share, if any, of the Net Settlement Fund
defined in the Settlement Agreement. The Court hereby confirms the appointment of A.B. Data,
Ltd. as Settlement Administrator, and directs that the Settlement Administrator shall ensure that
each Proof of Claim and Release form provided to Settling Class Members contains a copy of such
release and covenant not to sue. However, claims of Settling Class Members shall be released
pursuant to Section 13 of the Settlement Agreement regardless of whether the Settling Class
Member executes a release and covenant not to sue.
17. The Court declares that the Settlement Agreement and the Final Approval Order
shall be binding on, and shall have res judicata and preclusive effect in, all pending and future
lawsuits or other proceedings against the Released Parties involving the Released Claims that are
maintained by or on behalf of any Releasing Party regardless of whether the Releasing Party
previously initiated or subsequently initiates individual litigation or other proceediigs involving
the Released Claims, and even if such Releasing Party never received actual notice of the Action
or the proposed Settlement.
18. The Court hereby approves the release and covenant not to sue set forth in Section
13 of the Settlement Agreement and directs dismissal of the Action as against Westpac (but not
any other Defendant) fully, finally, and with prejudice, pursuant to the terms of the Settlement
Agreement and the Final Juagrnent to be entered concurrently herewith.
The Court permanently bars and enjoins the Releasing Parties and all Settling Class
Members from: (a) filing, commencing, prosecuting, intervening in, or participating (as class
members or otherwise) in any other lawsuit or administrative, regulatory, arbitration, or other
proceeding in any jurisdiction against Westpac or any Released Parties based on the Released
Claims; (b) filing, commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration,
or other proceeding as a class action on behalf of any Settlement Class Members (including by
seeking to amend a pending complaint to include class allegations or seeking class certification in
a pending action), against Westpac or any Released Parties based on the Released Claims;
(c) organizing Settlement Class Members into a separate group, class, or subclass for purposes of
pursuing as a purported class action any lawsuit or administrative, regulatory, arbitration, or other
proceeding (including by seeking to amend a pending complaint to include class allegations, or
seeking class certification in a pending action) against Westpac or any Released Parties based on
the Released Claims; or (d) assisting any third party in the prosecution of any Released Claims
against Westpac or any Released Parties.
20. The Court permanently bars and enjoins claims by any Person against Westpac or
any Released Parties for all or a portion of any amounts paid or awarded in the Action by way of
settlement, judgment, or otherwise. To the extent permitted by law, the Court permanently bars
and enjoins claims against Westpac and any Released Parties for contribution or indemnification
(however denominated) for all or a portion of any amounts paid or awarded in the Action by way
of settlement, judgment, or otherwise by (a) any of the other Defendants currently named in the
Action; (b) any other Person formerly named as a party in the Action; or (c) any other Person
subsequently added or joined as a party in the Action. Should any court determine that any
Defendant is or was legally entitled to any kind of set-off, apportionment, contribution, or
indemnification from Westpac or any Released Parties arising out of or related to Released Claims,
any money judgment subsequently obtained by the Releasing Parties against any Defendant shall
be reduced to an amount such that, upon paying the entire amount, the Defendant would have no
claim for set-off, apportionment, contribution, indemnification, or similar claims against Westpac
or any Released Parties.
21. | The Court permanently bars and enjoins claims by Westpac or any Released Parties
against any other Defendants for all or a portion of any amounts paid or awarded in the Action by
way of settlement, judgment or otherwise. To the extent permitted by law, the Court permanently
bars and enjoins claims by Westpac and any Released Parties for contribution or indemnification
(however denominated) from other Defendants for all or a portion of any amounts paid or awarded
in the Action by way of settlement, judgment, or otherwise against any of the other Defendants
currently named in the Action and absolves the other Defendants against any claims for
contribution, indemnification, or similar claims from the Released Parties arising out of or related
in any way to the Released Claims, in the manner and to the fullest extent permitted under the law
of New York or any other jurisdiction that might be construed or deemed to apply for claims of
contribution, indemnification, or similar claims against any of the other Defendants. For the
avoidance of doubt, this paragraph shall not bar any claims, including claims for contribution or
indemnification (however denominated) by Westpac and/or any Released Parties against any third
parties other than other Defendants in this Action.
22. Neither the Settlement Agreement (nor its respective exhibits), whether or not it
shall become Final, nor any negotiations, documents exchanged among counsel for the
Representative Plaintiffs and Westpac in connection with settlement discussions, and discussions
associated with them, nor the Final Approval Order and Final Judgment are or shall be deemed or
construed to be an admission, adjudication, or evidence of: (a) any violation of any statute or law
or of the validity of any claims, alleged wrongdoing, or liability of Westpac or any Released Party;
(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 of any interest
benchmark or other interest rate; (e) any fault or omission of Westpac or any Released Party in
any civil, criminal, or administrative proceeding in any court, administrative agency, or other
tribunal; or (f) 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 among counsel for the Representative
Plaintiffs and Westpac in connection with settlement discussions, and discussions associated with
them, nor the Final Approval Order and Final Judgment, 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 provisions do not apply to discovery or cooperation materials provided by Westpac
to the Representative Plaintiffs or by the Representative Plaintiffs to the Westpac in connection
with the Settlement or the Action. The Parties, without the need for approval from the Court, may
adopt such amendments, modifications, and expansions of the Settlement Agreement and all
exhibits thereto as (i) shall be consistent in all material respects with the Final Approval Order;
and (11) do not limit the rights of Settling Class Members.
10
23. The Court finds that, during the se et Parties andtheir respective he
counsel at all times complied’ with the requirements of Rule 11 of theederal Rules of Civil
Procedure as to each ther. ‘
24. Any data or other information provided by Settlement Class Members in connection
with the submission of claims shall be held in strict confidence, available only to the Settlement
Administrator, Class Counsel, and experts or consultants acting on behalf of the Settlement Class.
In no event shall a Settlement Class Member’s data or personal information be made publicly
available, except as provided for herein or upon Court Order for good cause shown.
25. The Distribution Plan and the Proof of Claim and Release Form are each approved
as fair, reasonable, and adequate.
26. The word “days,” as used herein, means calendar days. In the event that any date
or deadline set forth herein falls on a weekend or federal or state legal holiday, such date or
deadline shall be deemed moved to the first business day thereafter.
27. The Court’s certification of the Settlement Class and appointment of the
Representative Plaintiffs as class representatives, as provided herein, is without prejudice to, or
waiver of, the rights of any Defendant to contest any other request by the Representative Plaintiffs
to certify a class. The Court’s findings in this Final 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 challenge to the Representative Plaintiffs’ capacity to litigate or to represent a putative class,
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 such motion or challenge.
11
28. Class Counsel’s request for attorneys’ fees and reimbursement of expenses (and
Incentive Awards for the Representative Plaintiffs) shall be the subject of a separate order by the
Court.
IT IS SO ORDERED.
Signed this voy of No/ __, 2022.
Hon. Lewis A. Kaplan
United States District Judge
12
EXHIBIT 1
Dennis et al. v. JPMorgan Chase & Co. et al. No. 16-cv-06496 (LAK)
Exciuded Ciass Members
Pursuant to the Court’s October 24, 2022 Order (ECF No. 583), the following Class
Members are validly excluded from the settlement class:
e Kerant Capital Limited
KPMG Luxembourg S.A. (as liquidator of Nordea Bank S.A.)