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., | pe
AND ORANGE COUNTY EMPLOYEES RETIREMENT 1 ocusantt
SYSTEM on behalf of themselves and all others similarly | ELECTRONICALLY oem
situated, | en ag feezaay
| \
Plaintiffs,
-against-
JPMORGAN CHASE & CO., JEPMORGAN CHASE BANK, |
N.A., JPMORGAN 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. |
[PROPOSED] FINAL APPROVAL ORDER OF CLASS ACTION SETTLEMENT WITH
NATIONAL AUSTRALIA BANK LIMITED
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 National Australia Bank Limited (“NAB”) 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 NAB (together with Representative Plaintiffs, the
Parties”). Due and adequate notice of the Stipulation and Agreement of Settlement, dated
December 10, 2021 (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”), Fund Liquidation Holdings, LLC and any subsequently named plaintiff(s) that may be added to this
Action through amended or supplemental pleadings.
* “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 BBS W-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: (1) the Settlement Class is
so numerous that joinder of all Settlement Class Members is impracticable, FED. R. CIv. P.
23(a)(1); (11) common questions of law and fact exist with regard to NAB’s alleged manipulation
(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, Sonterra Capital Master Fund, Ltd., FrontPoint Financial
Services Fund, L.P., FrontPoint Asian Event Driven Fund, L.P., and FrontPoint Financial Horizons Fund,
L.P., 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 other improper conduct relating to BBSW (including,
but not limited to, all claims under Section | of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., the Commodity
Exchange Act, 7 U.S.C. § | 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 NAB employees arising solely from those former
employees’ conduct or alleged conduct that occurred while not employed by NAB; (11) any claims against the named
Defendants in this Action other than NAB and BNZ and other than any John Doe Defendants to the extent they are
current or former employees of NAB (solely in their capacity as employees of NAB) or other Released Parties; or
(iii) any claims against any Defendant not affiliated with NAB who may be subsequently added in this Action. See
Settlement Agreement § 13.
of BBSW and the prices of BBS W-Based Derivatives, FED. R. Civ. P. 23(a)(2); (111) the
Representative Plaintiffs’ claims in this litigation are typical of those of the Settlement Class
Members, FED. R. 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. CIv. 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: (i) has
personal jurisdiction over Representative Plaintiffs and NAB, 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 right to exclude thenselves from or object to the proposed Settlement, of their right to
appear at the Fairness Hearing, of the Distribution Plan, and of Class Counsel’s application for
an award of attorneys’ fees, Incentive Award(s), and for rermbursement 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
NAB’s submission to the Court dated December 28, 2021, the Court further finds that NAB has
complied with the obligations imposed on it under the Class Action Fairness Act of 2005, 28
U.S.C. § 1715. ECF No. 504.
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 NAB identified in Exhibit | 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 NAB, including but not limited to any and all future
prosecution of the Action against NAB.
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 represeriting 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 Representative Plaintiffs or NAB, 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; Representative Plaintiffs’ and Settling Class Members’
claims shall be reinstated; NAB’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 associated 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 June 17, 2021. 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, NAB, 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. Except as
otherwise provided in the Settlement Agreement, any disputes involving the Representative
Plaintiffs, NAB, 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 Member’s 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, Settling Class Members’ claims 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 proceedings 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 and directs dismissal of the Action as against NAB and any Released Parties
(but not any other Defendant) fully, finally and with prejudice, pursuant to the terms of the
Settlement and the Final Judgment to be entered concurrently herewith.
19. □ 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 NAB or any Released Parties based on the Released
Claims; (b) filing, commencing, or prosecutitig 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 NAB or any Released Parties based on the Released
Claims; (c) organizing members of the Settlement Class 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 NAB or any Released
Parties based on the Released Claims; or (d) assisting any third party in the prosecution of any
Released Claims against NAB or any Released Parties.
20. The Court permanently bars and enjoins claims by any Person against NAB 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 NAB 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 NAB 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 NAB or
any Released Parties.
21. The Court permanently bars and enjoins claims by NAB 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 NAB 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, judgrnent, 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 NAB 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 NAB 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 NAB 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 NAB 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 NAB 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 NAB to the
Representative Plaintiffs or by the Representative Plaintiffs to NAB 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
10
thereto as (i) shall be consistent in all material respects with the Final Approval Order; and (ii)
do not limit the rights of Settling Class Members.
23. The Court finds thatd¥ring the course ofthe Action, the Parti End their
respective counsel at Wes yi eqivemen's wpe ott Federal Rules of Li
Civil proceduostinn each <a
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 litfgation or any challenge to the Representative Plaintiffs’ capacity to litigate or to
11
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.
28. Class Counsel’s request for attorneys’ fees and retmbursement 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 i oF day of ANov- 2022
Hen. Lewis A. K
United States District Judge
12
EXHIBIT 1
Dennis et al. v. JPMorgan Chase & Co. et al. No. 16-cv-06496 (LAK)
Excluded Class 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.)