The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FUND LIQUIDATION HOLDINGS LLC, as assignee and Docket No. 15-cv-00871
successor-in-interest to SONTERRA CAPITAL MASTER (SHS)
FUND LTD., FRONTPOINT EUROPEAN FUND, L.P.,
FRONTPOINT FINANCIAL SERVICES FUND, L.P.,
FRONTPOINT HEALTHCARE FLAGSHIP ENHANCED
FUND, L.P., FRONTPOINT HEALTHCARE FLAGSHIP
FUND, L.P., FRONTPOINT HEALTHCARE HORIZONS
FUND, L.P., FRONTPOINT FINANCIAL HORIZONS FUND,
L.P., FRONTPOINT UTILITY AND ENERGY FUND L.P.,
HUNTER GLOBAL INVESTORS FUND I, L.P., HUNTER
GLOBAL INVESTORS OFFSHORE FUND LTD., HUNTER
GLOBAL INVESTORS SRI FUND LTD., HG HOLDINGS
LTD., HG HOLDINGS II LTD., RICHARD DENNIS, and the
CALIFORNIA STATE TEACHERS’ RETIREMENT SYSTEM
on behalf of themselves and all others similarly situated,
Plaintiffs,
-against –
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG,
JPMORGAN CHASE & CO., NATWEST MARKETS PLC,
UBS AG, DEUTSCHE BANK AG, DB GROUP SERVICES
UK LIMITED, TP ICAP PLC, TULLETT PREBON
AMERICAS CORP., TULLETT PREBON (USA) INC.,
TULLETT PREBON FINANCIAL SERVICES LLC, TULLETT
PREBON (EUROPE) LIMITED, COSMOREX AG, ICAP
EUROPE LIMITED, ICAP SECURITIES USA LLC, NEX
GROUP LIMITED, INTERCAPITAL CAPITAL MARKETS
LLC, GOTTEX BROKERS SA, VELCOR SA AND JOHN
DOE NOS. 1-50,
Defendants.
FINAL APPROVAL ORDER OF CLASS ACTION SETTLEMENT
WITH NATWEST MARKETS PLC (F/K/A THE ROYAL BANK OF SCOTLAND PLC)
This matter came for a duly-noticed hearing on September 27, 2023 (the “Fairness
Hearing”), upon Plaintiffs’1 Motion for Final Approval of Class Action Settlement with NatWest
Markets Plc (f/k/a The Royal Bank of Scotland plc) (“RBS”) in the action captioned Fund
Liquidation Holdings, LLC v. Credit Suisse Group AG, et al., Case No. 15-cv-00871 (SHS)
(S.D.N.Y.) (the “Action”), which was consented to by RBS (together with Plaintiffs, the “Parties”).
Due and adequate notice of the Stipulation and Agreement of Settlement, dated June 2, 2021, ECF
No. 384-1 (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 Claims2 set forth in the
Settlement Agreement (the “Settlement”), the Court hereby finally certifies the Settlement Class:
1 “Plaintiffs” are California State Teachers’ Retirement System, Richard Dennis, and Fund Liquidation
Holdings LLC.
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, setoffs, 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 conduct alleged in the Action or which could have been alleged in the Action against the Released Parties
concerning any Swiss Franc LIBOR-Based Derivatives or any other financial instruments priced, benchmarked, or
settled to Swiss franc LIBOR purchased, sold, and/or held by the Representative Plaintiffs, Class Members, and/or
Settling Class Members (to the extent such other financial instruments were entered into by a U.S. Person, or by a
Person from or through a location within the U.S.), including, but not limited to, any alleged manipulation of Swiss
All Persons (including both natural persons and entities) who
purchased, sold, held, traded, or otherwise had any interest in Swiss
Franc LIBOR-Based Derivatives3 during the Class Period, provided
that, if Representative Plaintiffs expand the Class in any subsequent
amended complaint, class motion, or settlement, the defined Class
in this Agreement shall be expanded so as to be coterminous with
such expansion. 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);
(ii) common questions of law and fact exist with regard to RBS’s alleged manipulation of Swiss
Franc LIBOR-Based Derivatives, FED. R. CIV. P. 23(a)(2); (iii) the Plaintiffs’ claims in this
franc LIBOR under the Commodity Exchange Act, 7 U.S.C. § 1 et seq., or any other statute, regulation, or common
law, or any purported conspiracy, collusion, racketeering activity, or other improper conduct relating to Swiss franc
LIBOR (including, but not limited to, all claims under Section 1 of the Sherman Antitrust Act 15 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 common law). The following claims shall not be released by this Settlement: (i) any claims
against former RBS employees arising solely from those former employees’ conduct that occurred while those former
employees were not employed by RBS; (ii) any claims against the named Defendants in this Action other than RBS;
(iii) any claims against inter-dealer brokers or their employees or agents when and solely to the extent they were
engaged as employees or agents of the other Defendants or of inter-dealer brokers; or (iv) any claims against any
defendant who may be subsequently added in the Action, other than any affiliate or subsidiary of RBS. For the
avoidance of doubt, Released Claims do not include claims arising under foreign law based solely on transactions
executed entirely outside the United States by Settling Class Members domiciled outside the United States. See
Settlement Agreement § 13.
3 “Swiss Franc LIBOR-Based Derivatives” means (i) a three-month Euro Swiss franc futures contract on the
London International Financial Futures and Options Exchange (“LIFFE”) entered into by a U.S. Person, or by a Person
from or through a location within the U.S.; (ii) a Swiss franc currency futures contract on the Chicago Mercantile
Exchange (“CME”); (iii) a Swiss franc LIBOR-based interest rate swap entered into by a U.S. Person, or by a Person
from or through a location within the U.S.; (iv) an option on a Swiss franc LIBOR-based interest rate swap
(“swaption”) entered into by a U.S. Person, or by a Person from or through a location within the U.S.; (v) a Swiss
franc currency forward agreement entered into by a U.S. Person, or by a Person from or through a location within the
U.S.; and/or (vi) a Swiss franc LIBOR-based forward rate agreement entered into by a U.S. Person, or by a Person
from or through a location within the U.S. See Settlement Agreement § 1 (RR).
litigation are typical of those of the Settlement Class Members, FED. R. CIV. P. 23(a)(3); and
(iv) the Plaintiffs’ interests do not conflict with, and are co-extensive with, those of absent
Settlement Class Members; and (v) Lowey Dannenberg, P.C. has 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. Plaintiffs are hereby approved to serve as representatives of such Settlement Class
for purposes of the Settlement.
6. Lowey Dannenberg, P.C. is 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, RBS, 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 15, 2023 (ECF No. 426), amended by Order dated May 16, 2023 (ECF No. 458);
(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 themselves 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 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 RBS’s submission
to the Court dated , 2023, the Court further finds that RBS has provided notice
pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715.
The Court finds that { ) {Settlement Class Members have validly requested to
be excluded from the Settlement Class as it relates to the Settlement. |The excluded members of
the Settlement Class are identified at ECF No.___——.~- The excluded membefs of the Settlement
Class as to the Settlement wit identified at ECF No. ___ shall have no rights with respect
to the Settlement Agreement, shall receive no payment from thé sums provided for in the
Settlement Agreement and sHKall be deemed to have e ed themselves from the Action as
against RBS, includjfg but not limited to any and all future prosecution of the Action against RBS.
10. The Court finds that { O 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 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 RBS, 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; RBS’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 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 38 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, RBS, 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, RBS, 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 Epiq Class
Action and Claims Solutions, Inc. 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 and barred 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 Parties4 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.
4 “Released Parties” means RBS, its predecessors, successors and assigns, its direct and indirect parents,
subsidiaries and affiliates, and each of their respective current and former officers, directors, employees, managers,
members, partners, agents (in their capacity as agents of RBS), shareholders (in their capacity as shareholders of RBS),
attorneys, or legal representatives, and the predecessors, successors, heirs, executors, administrators, and assigns of
each of the foregoing. As used in this provision, “affiliates” means entities controlling, controlled by, or under common
control with a Released Party. For the avoidance of doubt, “Released Parties” shall not include any named Defendants
other than RBS. See Settlement Agreement § 1(II).
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 RBS 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 Parties5 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 RBS 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 RBS 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 RBS or any Released Parties based on the
5 “Releasing Parties” means each and every Settling Class Member on their own behalf and on behalf of their
respective predecessors, successors and assigns, direct and indirect parents, subsidiaries and affiliates, and on behalf
of their current and former officers, directors, employees, agents, principals, members, trustees, participants,
representatives, fiduciaries, beneficiaries or legal representatives in their capacity as such, and the predecessors,
successors, heirs, executors, administrators and assigns of each of the foregoing in their capacity as such.
Notwithstanding that the U.S. Government is excluded from the Settlement Class, with respect to any Settling Class
Member that is a government entity, Releasing Parties include any Settling Class Member as to which the government
entity has the legal right to release such claims. As used in this provision, “affiliates” means entities controlling,
controlled by, or under common control with a Releasing Party. For the avoidance of doubt, the “Releasing Parties”
include all Persons entitled to bring claims on behalf of Settling Class Members relating to their transactions in Swiss
Franc LIBOR-Based Derivatives or any similar financial instruments priced, benchmarked, or settled to Swiss franc
LIBOR held by Representative Plaintiffs or Settling Class Members (to the extent such similar financial instruments
were entered into by a U.S. Person, or by a Person from or through a location within the U.S.). See Settlement
Agreement § 1(JJ).
Released Claims; or (d) assisting any third party in the prosecution of any Released Claims against
RBS or any Released Parties.
20. The Court permanently bars and enjoins claims by any Person against RBS 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 RBS 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 RBS or any Released Parties arising out of or related to Released Claims,
the Releasing Parties agree that 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 RBS or any Released Parties.
21. The Court permanently bars and enjoins claims by RBS 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 RBS 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 RBS 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 RBS 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 RBS or any Released Party; (b)
the truth of any of the claims, defenses 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 RBS 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 RBS 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 RBS to
the Representative Plaintiffs or by the Representative Plaintiffs to the RBS 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 (ii) do
not limit the rights of Settling Class Members.
23. The Court finds that, during the course of the Action, the Parties 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.
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 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 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 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.
28. Class Counsel’s request for attorneys’ fees and reimbursement of expenses (and
Incentive Awards for the Plaintiffs) shall be the subject of a separate order by the Court.
IT IS SO ORDERED.
Signed this 7” _ day of Mh 2023. ~ J,
Hon. Sidney H. Stein
United StateS District Judge