The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IOWA PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM; LOS ANGELES COUNTY No. 17-cv-6221 (KPF-SLC)
EMPLOYEES RETIREMENT ASSOCIATION;
ORANGE COUNTY EMPLOYEES
RETIREMENT SYSTEM; SONOMA COUNTY
EMPLOYEES’ RETIREMENT ASSOCIATION;
and TORUS CAPITAL, LLC, on
behalf of themselves and all others
similarly situated,
FINAL JUDGMENT AND
Plaintiffs, ORDER OF DISMISSAL
REGARDING THE CREDIT
v. SUISSE DEFENDANTS
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED; MERRILL LYNCH
L.P. HOLDINGS, INC.; MERRILL LYNCH
PROFESSIONAL CLEARING CORP.; Hon. Katherine Polk Failla
CREDIT SUISSE AG; CREDIT SUISSE
SECURITIES (USA) LLC; CREDIT SUISSE
FIRST BOSTON NEXT FUND, INC.; CREDIT
SUISSE PRIME SECURITIES SERVICES
(USA) LLC; GOLDMAN, SACHS & CO. LLC;
GOLDMAN SACHS EXECUTION &
CLEARING, L.P.; J.P. MORGAN
SECURITIES LLC; J.P. MORGAN PRIME,
INC.; J.P. MORGAN STRATEGIC
SECURITIES LENDING CORP.; J.P.
MORGAN CHASE BANK, N.A.; MORGAN
STANLEY & CO. LLC; MORGAN STANLEY
DISTRIBUTION, INC.; PRIME DEALER
SERVICES CORP.; STRATEGIC
INVESTMENTS I INC.; UBS AG; UBS
AMERICAS INC.; UBS SECURITIES LLC;
UBS FINANCIAL SERVICES INC.;
EQUILEND LLC; EQUILEND EUROPE
LIMITED; and EQUILEND HOLDINGS LLC,
Defendants.
This matter came before the Court for hearing pursuant to Plaintiffs’1
application for final approval of the settlement set forth in the Stipulation and
Agreement of Settlement with Credit Suisse Group AG; Credit Suisse AG; Credit
Suisse Securities (USA) LLC; Credit Suisse First Boston Next Fund, Inc.; and
Credit Suisse Prime Securities Services (USA) LLC, dated January 20, 2022
(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,
for themselves individually and on behalf of each Settlement Class Member in
the Action, and Credit Suisse Group AG, Credit Suisse AG; Credit Suisse
Securities (USA) LLC; Credit Suisse First Boston Next Fund, Inc.; Credit Suisse
1 Plaintiffs are Iowa Public Employees’ Retirement System; Los Angeles County Employees
Retirement Association; Orange County Employees Retirement System; Sonoma County
Prime Securities Services (USA) LLC (“Settling Defendants” and together with
Plaintiffs, the “Settling Parties”), and any objections and responses thereto,
pursuant to 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, directly or through an agent, entered into
Stock Loan Transactions2 with the Prime Broker Defendants,3 direct
or indirect parents, subsidiaries, or divisions of the Prime Broker
Defendants, or the Released Credit Suisse Parties,4 in the United
States from January 7, 2009 through the Execution Date5 (the
“Settlement Class Period”), inclusive. Excluded from the Settlement
Class are Defendants and their employees, affiliates, parents,
subsidiaries, and co- conspirators, should any exist, whether or not
named in the Amended Complaint, entities which previously
requested exclusion from any Class in this Action,6 the United States
Government, and all of the Released Credit Suisse Parties, provided,
however, that Investment Vehicles7 shall not be excluded from the
definition of the Settlement Class.
2 “Stock Loan Transactions” means any transaction, including any transaction facilitated
by a prime broker or agent lender, in which an owner of a stock temporarily lends the
stock in exchange for collateral or in which a borrower of a stock provides collateral to
temporarily borrow a security, and in which the stock is ultimately returned to the lender
at a later date, at which time the lender returns the collateral to the borrower. “Stock
Loan Transactions” do not include non-equity securities lending or stock repurchase
(repo) transactions.
3 “Prime Broker Defendants” means Settling Defendants and Bank of America Merrill
Lynch, Goldman Sachs, Morgan Stanley, JPMorgan, and UBS, including affiliates named
in the Amended Complaint (Dkt. #73).
4 The “Released Credit Suisse Parties” means Settling Defendants and each of their
respective past or present direct and indirect parents (including holding companies),
subsidiaries, affiliates, associates (all as defined in SEC Rule 12b-2, promulgated
pursuant to the Securities Exchange Act of 1934, as amended), divisions, joint ventures,
predecessors, successors, and each of their respective past, present, and future officers,
directors, managers, members, partners, shareholders, insurers, employees, agents,
attorneys, legal or other representatives, trustees, heirs, executors, administrators,
advisors, and assigns, and the predecessors, successors, heirs, executors, administrators,
and assigns of each of the foregoing.
5 The “Execution Date” is January 20, 2022.
6 These entities are Citadel LLC, Two Sigma Investments, PDT Partners, Renaissance
Technologies LLC, TGS Management, Voloridge Investment Management, and the D.E.
Shaw Group and their corporate parents, subsidiaries, and wholly owned affiliates.
5. The Court’s certification of the Settlement Class as provided herein is
without prejudice to, or waiver of, the rights of any non-settling Defendant to
contest certification of any non-settlement class proposed in this Action. The
Court’s findings in this Final Judgment and Order of Dismissal shall have no
effect on the Court’s ruling on any motion to certify any class in the Action, or
appoint class representatives, and no party may cite or refer to the Court’s
certification of the Settlement Class as binding or persuasive authority with
respect to any motion to certify such class or appoint class representatives.
6. The requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of
Civil Procedure have been satisfied, solely for settlement purposes, 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 Co-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
including, but not limited to: (i) mutual fund families, exchange-traded funds, fund of
funds and hedge funds, in which a Defendant has or may have a direct or indirect
interest, or as to which its affiliates may act as an investment advisor, but of which a
Defendant or its respective affiliates is not a majority owner or does not hold a majority
beneficial interest, and (ii) any Employee Benefit Plan as to which a Defendant or its
affiliates acts as an investment advisor or otherwise may be a fiduciary.
litigation of these claims in this particular forum; and (iv) the likely difficulties in
managing this Action as a class action.
7. The law firms of Quinn Emanuel Urquhart & Sullivan, LLP, and
Cohen Milstein Sellers & Toll PLLC, are appointed, solely for settlement
purposes, as Co-Lead Counsel for the Settlement Class.
8. Plaintiffs Iowa Public Employees’ Retirement System; Los Angeles
County Employees Retirement Association; Orange County Employees
Retirement System; Sonoma County Employees’ Retirement Association; and
Torus Capital, LLC are appointed, solely for settlement purposes, as class
representatives for the Settlement Class.
9. 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 Res., Inc., 209 F.3d 43 (2d
Cir. 2000), and those in Moses v. N.Y. Times Company, 79 F. 4th 235, 242-46 (2d
Cir. 2023). 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 involves numerous 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.
10. 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 Class Claims, against Settling Defendants and
Released Credit Suisse Parties by the Plaintiffs and Releasing Class 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.
11. 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 any other settlement that class members were notified
were being jointly administered together in this way from which members of
Settlement Class are entitled to recover.
678, is overruled. It does not meaningfully call into question whether the
settlement should be approved under the standards used in this Circuit.
13. Upon the Effective Date: (i) Plaintiffs and each of the Settlement
Class Members shall be deemed to have, and by operation of the Judgment
shall have, fully, finally, and forever released, relinquished, and discharged
against the Released Credit Suisse Parties (whether or not such Settlement
Class Member executes and delivers a Proof of Claim and Release form) any and
all Released Class Claims8 (including, without limitation, Unknown Claims); and
(ii) Plaintiffs and each of the Settlement Class Members 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 Class Claims against any Released Credit Suisse Parties 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 Class
Parties to pursue claims, if any, outside the scope of the Released Class Claims.
Claims to enforce the terms of the Settlement Agreement are not released.
14. Upon the Effective Date, each of the Releasing Credit Suisse Parties:
8 “Released Class Claims” shall be 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 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, or
damages, whenever incurred, and liabilities of any nature whatsoever (including joint and
several), known or unknown, suspected or unsuspected, asserted or unasserted, which
the Releasing Class Parties ever had, now have, or hereafter can, shall or may have,
individually, representatively, derivatively, or in any other capacity, against the Released
Credit Suisse Parties, arising from or related in any way to the conduct alleged or that
could have been alleged in this Action that also arise from or relate to the factual
predicate of the Action, to the fullest extent allowed by law, from the beginning of time
through the Execution Date. The Released Class Claims do not include: (i) any claims to
enforce the Settlement; and (ii) any claims of a Person that submits a timely Request for
(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 Released Defendants’ Claims9 (including,
without limitation, Unknown Claims); and (ii) shall be permanently barred and
enjoined from the commencement, assertion, institution, maintenance or
prosecution against any counsel for Plaintiffs and Settlement Class Members in
any action or other proceeding in any court of law or equity, arbitration
tribunal, administrative forum, or forum of any kind, asserting any of the
Released Defendants’ Claims. This Final Judgment and Order of Dismissal
shall not affect in any way the right of Settling Defendants or Releasing Credit
Suisse Parties 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.
15. Upon the Effective Date, any claims for contribution,
indemnification, or similar claims from other Defendants in the Action against
any of the Released Credit Suisse Parties, arising out of or related to the Released
Class Claims, are barred 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 to any claims for contribution, indemnification or similar claims against
any of the Released Credit Suisse Parties.
16. All rights of any Settlement Class Member against (i) any of the other
9 “Released Defendants’ Claims” means any and all manner of claims, including Unknown
Claims, that arise out of or relate in any way to the Releasing Class Parties’ or Co-Lead
Counsel’s institution, prosecution, or settlement of the Released Class Claims, except for
claims relating to the enforcement of the Settlement.
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 Settling Defendants and
Released Credit Suisse Parties with respect to Released Class Claims, are
specifically reserved by Plaintiffs and the Settlement Class Members.
17. 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.
18. The Court’s consideration and approval of the Settlement is
independent of the Court’s consideration and approval of the Plans of Allocation,
the fee awards, the expense awards, and the service awards, except that the
Court has examined Plaintiffs’ proposals for each and determined each
separately and confirmed that the Settlement is fair and reasonable in light of
the Court’s Orders respecting awards and Plans of Allocation filed
contemporaneously herewith. Any appeal or challenge respecting any award or
Plan of Allocation shall in no way disturb or affect the finality of this Final
Judgment.
19. 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
Released Class Claim, or of any wrongdoing or liability of the Released Credit
Suisse Parties; 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 any of the Released Credit Suisse
Parties 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. The Released Credit
Suisse Parties 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.
20. 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.
21. In the event that the Settlement does not become effective in
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 8.3, 9.10, 9.11, and 11.3 of the Settlement Agreement shall
nonetheless survive and continue to be of effect and have binding force.
22. 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.
23. There is no just reason for delay in the entry of this Final Judgment
and Order of Dismissal. The Clerk of the Court is directed to enter this Final
Judgment and Order of Dismissal pursuant to Rule 54(b) of the Federal Rules of
Civil Procedure immediately.
IT IS SO ORDERED.
DATED: September 11, 2024 Kites fall li Gill
New York, New York
The Honorable Katherine Polk Failla
United States District Judge
EXHBIT 1 – PARTIES EXCLUDED FROM THE SETTLEMENT
Koniag, Inc. and its wholly owned subsidiaries;
Stefanos Nyktas;
Steven Yagade;