Anwar et al v. Fairfield Greenwich Limited et al
Filing
1184
SETTLEMENT AGREEMENT GlobeOp Stipulation of Settlement. Document filed by Pacific West Health Medical Center, Inc. Employee's Retirement Trust. (Attachments: #1 Exhibit A - Preliminary Approval Order, #2 Exhibit A-1 - Class Notice, #3 Exhibit A-2 - Summary Notice, #4 Exhibit A-3 - Proof of Claim, #5 Exhibit B - Final Judgment)(Finkel, Robert)
EXHIBIT B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PASHA ANWAR, et al.,
Plaintiffs,
Master File No. 09-cv-118 (VM) (FM)
v.
FAIRFIELD GREENWICH LIMITED, et al.,
Defendants.
GLOBEOP FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
This matter came before the Court for hearing pursuant to the GlobeOp Preliminary
Approval Order, dated _______________ (Dkt. No. ____), on the application of the
Representative Plaintiffs for approval of the Settlement set forth in the GlobeOp Stipulation of
Settlement dated as of August 27, 2013 (Dkt. No. ____) (the “GlobeOp Stipulation”). Due and
adequate notice having been given to the GlobeOp Settlement Class as required in said GlobeOp
Preliminary Approval Order, and the Court having considered all papers filed and proceedings
held herein and otherwise being fully informed in the premises and good cause appearing
therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1.
This GlobeOp Final Judgment and Order of Dismissal With Prejudice (the
“GlobeOp Final Judgment”) incorporates by reference the definitions in the GlobeOp
Stipulation, and all terms used herein shall have the same meanings as set forth in the GlobeOp
Stipulation.
2.
This Court has jurisdiction over the subject matter of the GlobeOp Action and
over all parties to the GlobeOp Action, including all GlobeOp Settlement Class Members
(subject to ¶ 27 herein).
3.
The distribution of the GlobeOp Notice and the publication of the GlobeOp
Summary Notice, as provided for in the GlobeOp Preliminary Approval Order, constituted the
best notice practicable under the circumstances, including individual notice to all GlobeOp
Settlement Class Members who could be identified through reasonable effort. Said notices fully
satisfied the requirements of Federal Rule of Civil Procedure 23, Section 21D(a)(7) of the
Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of
1995 (15 U.S.C. ¶78u-4(a)(7)), the requirements of due process, and any other applicable law.
4.
The Court finds that GlobeOp has provided notice pursuant to the Class Action
Fairness Act of 2005, 28 U.S.C. §§ 1715.
5.
The Court finds that the prerequisites for a class action under Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of
GlobeOp Settlement Class Members is so numerous that joinder of all members thereof is
impracticable; (b) there are questions of law or fact common to the GlobeOp Settlement Class
that predominate over any individual questions; (c) the claims of the Representative Plaintiffs are
typical of the claims of the GlobeOp Settlement Class they seek to represent; (d) the
Representative Plaintiffs fairly and adequately represent the interests of the GlobeOp Settlement
Class; and (e) a class action is superior to other available methods for the fair and efficient
adjudication of the GlobeOp Action.
6.
Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, the
Court hereby certifies the GlobeOp Action as a class action for purposes of this GlobeOp
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Settlement only, and certifies as the GlobeOp Settlement Class all Persons who purchased or
held interests in Greenwich Sentry, L.P. or Greenwich Sentry Partners L.P. (the “Funds”) from
October 31, 2003 through September 1, 2006, who were investors in the Funds as of December
10, 2008 and suffered a Net Loss of principal on their investment, excluding (i) those Persons
who timely and validly requested exclusion from the GlobeOp Settlement Class and who did not
validly revoke such request for exclusion; (ii) those Persons who have been dismissed from this
Action with prejudice; and (iii) the FG Defendants, GlobeOp, or the Non-Settling Defendants,
and any entity in which those Persons have a controlling interest, and their officers, directors,
affiliates, employees, legal representatives, and immediate family members, and heirs,
successors, subsidiaries and assigns of such Persons. The definition of the GlobeOp Settlement
Class, agreed to by the Settling Parties for purposes of settlement only, includes GlobeOp
Settlement Class Members in the twenty-five countries (the “Excluded Countries”), if any, that
were excluded from the definition of the litigation class that was certified pursuant to the Court’s
February 25, 2013 Decision and Order (Dkt. No. 1052) (the “Class Certification Order”).
Accordingly, GlobeOp Settlement Class Members in the Excluded Countries (if any) can make
claims and shall be paid in accordance with the Plan of Allocation for the GlobeOp Settlement.
7.
The GlobeOp Settlement Class consists of all of the investors referenced in
Plaintiffs’ Second Consolidated Amended Complaint dated September 29, 2009 on whose behalf
plausible claims against GlobeOp were asserted.
8.
This Final Judgment supersedes the Court’s Class Certification Order with respect
to GlobeOp, which shall have no further force or effect with respect to GlobeOp.
9.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby
approves the GlobeOp Settlement set forth in the GlobeOp Stipulation and finds that said
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GlobeOp Settlement is, in all respects, fair, reasonable and adequate to, and is in the best
interests of, the Representative Plaintiffs, the GlobeOp Settlement Class and each of the
GlobeOp Settlement Class Members. This Court further finds the GlobeOp Settlement set forth
in the GlobeOp Stipulation is the result of good faith, arm’s-length negotiations between
experienced counsel representing the interests of the Representative Plaintiffs, GlobeOp
Settlement Class Members and GlobeOp. Accordingly, the GlobeOp Settlement embodied in the
GlobeOp Stipulation is hereby approved in all respects and shall be consummated in accordance
with its terms and provisions. The Settling Parties are hereby directed to perform the terms of
the GlobeOp Stipulation.
10.
In accordance with Paragraph 1(d) of the GlobeOp Stipulation, for purposes of
this GlobeOp Final Judgment, the term “Claims” shall mean: any and all manner of claims,
demands, rights, actions, potential actions, causes of action, liabilities, duties, damages, losses,
diminutions in value, obligations, agreements, suits, fees, attorney’s fees, expert or consulting
fees, debts, expenses, costs, sanctions, judgments, decrees, matters, issues and controversies of
any kind or nature whatsoever, whether known or unknown, contingent or absolute, liquidated or
not liquidated, accrued or unaccrued, suspected or unsuspected, disclosed or undisclosed,
apparent or not apparent, foreseen or unforeseen, matured or not matured, which now exist, or
heretofore or previously existed, or may hereafter exist, (including, but not limited to, any claims
arising under federal, state or foreign law, common law, bankruptcy law, statute, rule, or
regulation relating to alleged fraud, breach of any duty, negligence, fraudulent conveyance,
avoidance, violations of the federal securities laws, or otherwise), whether individual, class,
direct, derivative, representative, on behalf of others, legal, equitable, regulatory, governmental
or of any other type or in any other capacity.
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11.
In accordance with Paragraph 1(hh) of the Stipulation, for purposes of this
GlobeOp Final Judgment, the term “Released Claims” shall mean: any and all Claims, including
Unknown Claims, that have been, could have been, or in the future can or might be asserted in
any federal, state or foreign court, tribunal, forum or proceeding by on or behalf of any of the
Releasing Parties against any one or more of the Released Parties, whether any such Released
Parties were named, served with process, or appeared in the Action, which have arisen, could
have arisen, arise now, or hereafter arise out of or relate in any manner to the allegations, facts,
events, matters, acts, occurrences, statements, representations, misrepresentations, omissions, or
any other matter, thing or cause whatsoever, or any series thereof, embraced, involved, or set
forth in, or referred to or otherwise related in any way, directly or indirectly, to the GlobeOp
Action.
12.
In accordance with Paragraph 1(ii) of the Stipulation, for purposes of this Final
Judgment, the term “Released Parties” shall mean: GlobeOp, its past, present and future, direct
or indirect, parent entities, associates, affiliates, and subsidiaries, each and all of their respective
past, present, and future directors, officers, partners, alleged partners, stockholders, predecessors,
successors and employees, and in their capacity as such, each and all of their attorneys, advisors,
consultants, trustees, insurers, co-insurers, reinsurers, representatives, and assigns, as well as
Crystal & Company, Fireman’s Fund Insurance Company, and Those Underwriters at Lloyd’s
London Subscribing to Policy No. B0621PFCC00211.
13.
In accordance with Paragraph 1(jj) of the Stipulation, for purposes of this Final
Judgment, the term “Releasing Parties” shall mean: the Representative Plaintiffs, each and every
member of the GlobeOp Settlement Class and each of their respective predecessors, successors,
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assigns, attorneys, heirs, representatives, administrators, executors, devisees, legatees, and
estates.
14.
In accordance with Paragraph 1(oo) of the Stipulation, for purposes of this Final
Judgment, the term “Unknown Claims” shall mean: all claims, demands, rights, liabilities, and
causes of action of every nature and description which any GlobeOp Settlement Class Member
does not know or suspect to exist in his, her or its favor at the time of the release of the Released
Parties which, if known by him, her or it, might have affected his, her or its settlement with and
release of the Released Parties, or might have affected his, her or its decision not to opt-out or
object to this GlobeOp Settlement.
15.
Except as to any individual claim of those Persons (identified in Exhibit 1
attached hereto), who pursuant to the GlobeOp Notice, timely requested exclusion from the
GlobeOp Settlement Class before the [
], 2013 deadline and who do not validly
revoke such requests for exclusion, the Action and all claims contained therein, as well as all of
the Released Claims, are dismissed with prejudice as to GlobeOp. The parties are to bear their
own costs, except as otherwise provided in the GlobeOp Stipulation.
16.
The Releasing Parties, their successors and assigns, and any other Person
claiming (now or in the future) through or on behalf of them, regardless of whether any such
Releasing Party ever seeks or obtains by any means, including without limitation by submitting a
Proof of Claim, any disbursement from the Settlement Fund shall be deemed to have, and by
operation of this GlobeOp Final Judgment shall have, fully, finally, and forever released,
relinquished, and discharged all Released Claims (including Unknown Claims) against the
Released Parties and shall have covenanted not to sue the Released Parties with respect to all
such Released Claims, and shall be permanently barred and enjoined from asserting,
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commencing, prosecuting, instituting, assisting, instigating, or in any way participating in the
commencement or prosecution of any action or other proceeding, in any forum, asserting any
Released Claim, either directly, representatively, derivatively, or in any other capacity, against
any of the Released Parties. Nothing contained herein shall, however, bar the Releasing Parties
from bringing any action or claim to enforce the terms of the Stipulation or this Final Judgment.
17.
GlobeOp and the Released Parties, their heirs, executors, predecessors, successors
and assigns, shall be deemed to have, and by operation of this GlobeOp Final Judgment shall
have, fully, finally, and forever released, relinquished, and discharged each and all of the
Representative Plaintiffs, GlobeOp Settlement Class Members and Plaintiffs’ Counsel from all
Claims which arise out of, concern or relate to the institution, prosecution, settlement or
dismissal of the GlobeOp Action (the “GlobeOp Released Claims”), and shall be permanently
enjoined from prosecuting the GlobeOp Released Claims against the Representative Plaintiffs,
GlobeOp Settlement Class Members and Plaintiffs’ Counsel. Nothing contained herein shall,
however, bar GlobeOp and the Released Parties from bringing any action or claim to enforce the
terms of the GlobeOp Stipulation or this GlobeOp Final Judgment.
18.
All Persons, including without limitation the Non-Settling Defendants, shall be
permanently enjoined, barred and restrained from bringing, commencing, prosecuting or
asserting any claims, actions, or causes of action for contribution, indemnity or otherwise against
any of the Released Parties seeking as damages or otherwise the recovery of all or any part of
any liability, judgment or settlement which they pay or are obligated to pay or agree to pay to the
GlobeOp Settlement Class or any GlobeOp Settlement Class Member arising out of, relating to
or concerning such Persons’ participation in any acts, facts, statements or omissions that were or
could have been alleged in the GlobeOp Action, whether arising under state, federal or foreign
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law as claims, cross-claims, counterclaims, third-party claims or otherwise, in the Court or any
other federal, state, or foreign court, or in any arbitration proceeding, administrative agency
proceeding, tribunal, or any other proceeding or forum.
19.
The Released Parties shall be permanently enjoined, barred and restrained from
bringing, commencing, prosecuting or asserting any claims, actions, or causes of action for
contribution, indemnity or otherwise against any of the Non-Settling Defendants seeking as
damages or otherwise the recovery of all or any part of any liability, judgment or settlement
which they pay or are obligated to pay or agree to pay to the GlobeOp Settlement Class or any
GlobeOp Settlement Class Member arising out of, relating to or concerning such Released
Parties’ participation in any acts, facts, statements or omissions that were or could have been
alleged in the Action, whether arising under state, federal or foreign law as claims, cross-claims,
counterclaims, third-party claims or otherwise, in the Court or any other federal, state, or foreign
court, or in any arbitration proceeding, administrative agency proceeding, tribunal, or any other
proceeding or forum.
20.
Any final verdict or judgment that may be obtained by one or more of the
Representative Plaintiffs or one or more of the other GlobeOp Settlement Class Members,
whether individually or on behalf of a class, against one or more of the Non-Settling Defendants
or other Person barred from seeking contribution pursuant to this GlobeOp Final Judgment (a
“Non-Settling Defendant Judgment”) shall be reduced, to the extent permitted by applicable law,
by the greater of (i) the amount that corresponds to the percentage of responsibility attributed to
the Released Parties under the Non-Settling Defendant Judgment; and (ii) the gross monetary
consideration provided to such Representative Plaintiff or other GlobeOp Settlement Class
Member or Members pursuant to this Stipulation.
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21.
The Court hereby finds that the proposed Plan of Allocation is a fair and
reasonable method to allocate the Net Settlement Fund among Settlement Class Members and
directs that Plaintiffs’ Lead Counsel implement the Plan of Allocation in accordance with the
terms of the Stipulation.
22.
Neither the Stipulation nor the Settlement contained therein, nor any act
performed or document executed pursuant to or in furtherance of the Stipulation or the
Settlement: (a) is or may be deemed to be or may be used as an admission, concession, or
evidence of, the validity or invalidity of any Released Claims, the truth or falsity of any fact
alleged by the Representative Plaintiffs, the sufficiency or deficiency of any defense that has
been or could have been asserted in the Action, or of any wrongdoing, liability, negligence or
fault of GlobeOp, the Released Parties, or any of them; (b) is or may be deemed to be or may be
used as an admission of, or evidence of, any fault or misrepresentation or omission with respect
to any statement or written document attributed to, approved or made by GlobeOp or the
Released Parties in any civil, criminal or administrative proceeding in any court, administrative
agency or other tribunal; (c) is or may be deemed to be or shall be used, offered or received
against the Settling Parties, or each or any of them, as an admission, concession or evidence of
the validity or invalidity of the Released Claims, the infirmity or strength of any claim raised in
the Action, the truth or falsity of any fact alleged by the Representative Plaintiffs, Named
Plaintiffs or the Settlement Class, or the availability or lack of availability of meritorious
defenses to the claims raised in the Action; and/or (d) is or may be deemed to be or shall
construed as or received in evidence as an admission or concession against the Settling Parties,
or the Released Parties, or each or any of them, that any of Representative Plaintiffs’ or GlobeOp
Settlement Class Members’ claims are with or without merit, that a litigation class should or
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should not be certified, that damages recoverable under the SCAC would have been greater or
less than the Settlement Fund or that the consideration to be given pursuant to the GlobeOp
Stipulation represents an amount equal to, less than or greater than the amount which could have
or would have been recovered after trial.
23.
The Released Parties may file the Stipulation and/or this Final Judgment in any
other action that may be brought against them in order to support a defense or counterclaim
based on principles of res judicata, 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.
24.
The Court finds that during the course of the GlobeOp Action, the Settling Parties
and their respective counsel at all times complied with the requirements of Federal Rule of Civil
Procedure 11.
25.
In the event that the GlobeOp Settlement does not become effective in accordance
with the terms of the GlobeOp Stipulation or the Effective Date does not occur, or in the event
that the Settlement Fund, or any portion thereof, is returned to GlobeOp in accordance with the
terms of the GlobeOp Stipulation, then this GlobeOp Final Judgment shall be vacated and
rendered null and void to the extent provided by and in accordance with the GlobeOp Stipulation
and, in such event, all orders entered and releases delivered in connection herewith shall be null
and void to the extent provided by and in accordance with the Stipulation.
26.
The foregoing orders solely regarding ¶¶ 19-20 or the Plan of Allocation (¶ 21),
shall in no way disturb or affect this Final Judgment and shall be separate and apart from this
Final Judgment.
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27.
Any GlobeOp Settlement Class Member who submits a Request for Exclusion
shall not be deemed to have submitted to the jurisdiction of any Court in the United States for
any matter on account of such submission, and any GlobeOp Settlement Class Member who
submits a Proof of Claim thereby submits to the jurisdiction of this Court with respect only to the
subject matter of such Proof of Claim and all determinations made by this Court thereon and
shall not be deemed to have submitted to the jurisdiction of this Court or of any court in the
United States for any other matter on account of such submission.
28.
Except where a GlobeOp Settlement Class Member who submits a Request for
Exclusion commences or otherwise prosecutes a Released Claim against a Released Party, all
information submitted by a GlobeOp Settlement Class Member in a Request for Exclusion or a
Proof of Claim shall be treated as confidential protected information and may not be disclosed by
the Claims Administrator, its affiliates or the Setting Parties to any third party absent a further
order of this Court upon a showing of necessity, and any such information that is submitted to
the Court shall be filed under seal.
29.
The Court expressly determines that there is no just reason for delay in entering
this Final Judgment and directs the Clerk of the Court to enter this Final Judgment pursuant to
Fed. R. Civ. P. 54(b).
30.
Without affecting the finality of this Final Judgment in any way, exclusive
jurisdiction is hereby retained over the Settling Parties, and the GlobeOp Settlement Class
Members (subject to ¶ 25) for all matters relating to the GlobeOp Action, including (i) the
administration, interpretation, effectuation or enforcement of the GlobeOp Stipulation and this
GlobeOp Final Judgment, (ii) disposition of the Settlement Fund; and (iii) any application for
attorneys’ fees, costs, interest, and reimbursement of expenses in the Action.
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DATED: _______________
The Honorable Victor Marrero
United States District Judge
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EXHIBIT 1
List of Persons and Entities Excluded from the Class in PASHA ANWAR, et al., v.
FAIRFIELD GREENWICH LIMITED, et al. Master File No.: 09-cv-118 (VM) (FM)
The following persons and entities, and only the following persons and entities, are
hereby excluded from the GlobeOp Settlement Class and from operation of the GlobeOp Final
Judgment and Order of Dismissal with Prejudice:
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