In re Herald, Primeo and Thema Funds Securities Litigation

Filing 231

FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT #234) - MOTION to Approve of Partial Settlement. Document filed by Neville Seymour Davis. (Attachments: #1 Exhibit A-1, #2 Exhibit A-2, #3 Exhibit A-3, #4 Exhibit A-4, #5 Exhibit B, #6 Exhibit C, #7 Exhibit D, #8 Exhibit E, #9 Exhibit F-1)(Chang, Albert) Modified on 6/29/2011 (lb).

EXHIBIT C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ECF Case
IN RE HERALD, PRIMEO, AND THEMA
FUNDS SECURITIES LITIGATION

Case No. 09 Civ. 0289 (RMB)

This Document Relates to:
Case No. 09 Civ. 2558 (RMB)
NEVILLE SEYMOUR DAVIS,
Plaintiff,

[Proposed] Settlement
Approval Order

vs.
ALBERTO BENBASSAT, STÉPHANE
BENBASSAT, GENEVALOR, BENBASSAT &
CIE, GERALD J.P. BRADY, JOHN
HOLLIWELL, SONJA KOHN, DANIEL
MORRISSEY, PETER SCHEITHAUER, DAVID
T. SMITH, WERNER TRIPOLT, BANK MEDICI
AG, UNICREDIT SPA, HSBC INSTITUTIONAL
TRUST SERVICES (IRELAND) LTD., HSBC
SECURITIES SERVICES (IRELAND) LTD.,
HSBC BANK USA, N.A., HSBC HOLDINGS
PLC, PRICEWATERHOUSECOOPERS
INTERNATIONAL LTD.,
PRICEWATERHOUSECOOPERS (DUBLIN),
PRICEWATERHOUSECOOPERS LLP,
PRICEWATERHOUSECOOPERS BERMUDA,
THEMA ASSET MANAGEMENT LIMITED,
THEMA INTERNATIONAL FUND PLC, BA
WORLDWIDE FUND MANAGEMENT
LIMITED, PETER MADOFF, ANDREW
MADOFF, THE ESTATE OF MARK MADOFF,
WILLIAM FRY, JP MORGAN CHASE & CO.,
and THE BANK OF NEW YORK MELLON,
Defendants.
[PROPOSED] SETTLEMENT APPROVAL ORDER

This matter having come before the Court for hearing, pursuant to the Order of this
Court, dated ________ ___, 2011 (the “Preliminary Approval Order”), on the application of the
Settling Parties for approval of the settlement (the “Settlement”) set forth in the Stipulation of
Partial Settlement dated as of June 7, 2011 (the “Stipulation”), as amended and filed with the
Court on June 17, 2011, with due and adequate notice having been given to the Settlement Class
(as defined in the Stipulation) as required in said Order, and the Court having considered all
papers filed and proceedings had herein and otherwise being fully informed in the premises and
good cause appearing therefore, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that:
1.

This Order incorporates the Stipulation and all exhibits attached thereto as though

fully set forth herein. All capitalized terms not defined herein shall have the same meanings as
set forth in the Stipulation.
2.

This Court has jurisdiction over the subject matter of the Action, including the

terms and conditions of the Stipulation and all exhibits thereto, and personal jurisdiction over all
Settlement Class Members.
3.

This Court finds, based on the record in the Action and for purposes of the

Stipulation and Settlement only, that each of the elements required of a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure have been satisfied. Specifically: (a) the
Settlement Class satisfies the numerosity requirement of Rule 23(a)(1); (b) there are common
issues of fact and law sufficient to satisfy Rule 23(a)(2); (c) the claims of the Lead Plaintiff are
typical of the claims of Settlement Class Members as required by Rule 23(a)(3); (d) the Lead
Plaintiff, as a beneficial owner of Thema International Fund plc shares who has made no
assignment of his interests or claims, is an adequate representative of the Settlement Class in

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satisfaction of Rule 23(a)(4); (e) common issues predominate over individual issues, satisfying
Rule 23(b)(3); and (f) class action treatment is a superior method of adjudicating this matter
fairly and efficiently, satisfying Rule 23(b)(3).
4.

Therefore, the Action is hereby certified as a class action pursuant to Rule 23

solely for the purposes of the Stipulation and Settlement, consisting of all persons and entities
who owned shares of Thema International Fund plc, or its sub-fund Thema Fund, on December
10, 2008, and suffered damages thereby due to the conduct alleged in the Amended Complaints,
including the legal representatives, heirs, successors in interest, assigns and transferees,
intermediate and remote, of all such foregoing holders and/or owners, immediate and remote.
5.

Excluded from the Settlement Class are the Defendants and each of their officers

and directors, as well as their families and affiliates, provided however that any affiliate of the
Settling Defendants acting as agent or nominee for a beneficial owner of shares of the Fund who
is not a person or entity described above shall be deemed to be a Settlement Class Member.
Also excluded from the Settlement Class and any other class that may subsequently be certified
in the Action are those persons or entities who timely and validly requested exclusion from the
class in accordance with the requirements set forth in the Notice.
6.

Pursuant to Rule 23, and for the purposes of Settlement only, Lead Plaintiff

Neville Seymour Davis is certified as Class Representative for the Action, and the law firm of
Chapin Fitzgerald Sullivan & Bottini LLP, is appointed Class Counsel.
7.

The Court approves the appointment of Gilardi & Co. LLC as Settlement

Administrator.
8.

The Court has received affidavits and declarations attesting to the mailing and

delivery of the Notice and publication of the Publication Notice. The Court hereby finds:

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a.

that the Notice of the Settlement and Notice to appropriate governmental

regulators have been provided pursuant to and in the manner directed by the Preliminary
Approval Order, and full opportunity to be heard has been offered to all Parties, the Settlement
Class, and Persons in interest;
b.

that the form and manner of the notices were the best notice practicable

under the circumstances, including individual notice to all Settlement Class Members who could
be identified through reasonable effort, and were reasonably calculated under the circumstances
to apprise potential Settlement Class Members of: (1) the proposed Settlement of the Action; (2)
their right to exclude themselves from the Settlement Class; (3) their right to object to any aspect
of the proposed Settlement; (4) their right to appear at the Fairness Hearing, either on their own
or through counsel hired at their own expense, provided they did not exclude themselves from
the Settlement Class; and (5) the binding effect of the proceedings, rulings, orders, and
judgments in the Actions on all persons not excluded from the Settlement Class;
c.

that said notice therefore provided due and adequate notice of these

proceedings and of the matters set forth in the Stipulation to all persons entitled to such notice;
d.

that said notice fully satisfied the relevant requirements of the Federal

Rules of Civil Procedure, the Due Process Clause of the United States Constitution, the Class
Action Fairness Act, the Private Securities Litigation Reform Act of 1995, the Rules of Court,
and any other applicable law; and
e.

that in light of the foregoing, this Court finds that all Settlement Class

Members and other persons entitled to Notice shall upon the Effective Date be hereby bound by
the Stipulation and Settlement, this Settlement Approval Order, and the Judgment that shall issue
upon the satisfaction or waiver of the conditions set forth in paragraph 8.1(d) of the Stipulation.

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9.

The Court finds that the Amended Complaints and Action were filed, and the

actions in support thereof were taken, on a good faith basis based upon all publicly available
information, and all Parties and their counsel satisfied the requirements of Rule 11 of the Federal
Rules of Civil Procedure throughout the course of the litigation.
10.

This Court finds that the terms and provisions of the Stipulation were entered into

by the Settling Parties at arm’s length and in good faith, reflect an agreement voluntarily reached
after consultation with experienced legal counsel.
11.

All objections to the Settlement have been considered by the Court, are found to

be without merit, and are therefore overruled. Pursuant to Rule 23 and Rule 23.1 of the Federal
Rules of Civil Procedure, the terms and provisions of the Stipulation are hereby fully and finally
approved as fair, reasonable and adequate, and in the respective best interests of the Settling
Parties and the Settlement Class. The Settling Parties and their respective counsel are directed to
consummate the Settlement in accordance with the terms and provisions of the Stipulation,
subject to any conditions in section 8.1 of the Stipulation that have not yet occurred or been
waived in writing by the Settling Defendants, as provided for in the Stipulation.
12.

The Settling Defendants, or any one of them acting as representative of all, shall

have a period of thirty days (or such longer period as may be required as a result of court
vacations) following the entry of the Settlement Approval Order by the United States District
Court for the Southern District of New York, to issue an application to the Irish High Court in
the HTIE Litigation seeking orders and/or directions if any (an “Irish High Court Order”) as they
see fit in their sole discretion in relation to the recognition, enforcement, implementation and/or
application of the Settlement Approval Order approving the Settlement or the Judgment
contemplated thereby as of the Effective Date. If the Settling Defendants, or any one of them

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acting as representative of all, exercise this option, it shall be a condition to the Settlement
becoming effective (the “Irish High Court Order Condition”) that the Irish High Court will have
granted the orders or directions sought, or such alternative orders that the Lead Plaintiff and
Settling Defendants deem satisfactory, and that such orders will have become Final, unless this
condition is waived by the Settling Defendants.
13.

All persons and entities who have filed valid and timely requests for exclusion

from the Settlement, whose names appear on Exhibit C-1 hereto, which has been and will remain
filed under seal, are hereby excluded from the Settlement Class and any class that may
subsequently be certified in this Action, are not bound by this Settlement Approval Order nor
will they be bound by the Judgment, and may not make any claim with respect to or receive any
benefit from the Settlement. Such excluded persons and entities shall be permanently barred and
enjoined from instituting, commencing or continuing to maintain any Released Claims on behalf
of those entities or individuals who are bound by this Settlement Approval Order and the
Judgment.
14.

The SIPC Trustee and SIPC shall be permanently enjoined, barred and restrained

from commencing, prosecuting or asserting any claims for damages against the Settling
Defendants arising from the same transactions or occurrences that are the subject matter of the
Action and which are derivative of, or predicated on, the class claims relating to the Fund settled
hereby, including without limitation the SIPC Trustee’s common law claims asserted against the
Settling Defendants in Counts 20 through 24 of the amended complaint in Picard v. HSBC Bank
plc et al., Adv. Pro. No. 09-1364 (S.D.N.Y. Bankr.), but excluding claims by the SIPC Trustee to
avoid or recover transfers under sections 544, 545, 547, 548, 549, 550 and 551 of Title 11 of the
United States Code. This injunction, bar and restraint shall extend to the SIPC Trustee or SIPC

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making or seeking to enforce any claim or contention that the Action settled hereby is void ab
initio or that the SIPC Trustee or SIPC is the legal, equitable or beneficial owner of the claims
settled hereby or that the SIPC Trustee or SIPC is entitled to prosecute or settle such claims or
has any claim to or interest in the settlement proceeds provided for herein.
15.

Neither this Settlement Approval Order, the Stipulation, the Judgment, nor any of

the negotiations, documents, proceedings, and acts performed in connection with them shall:
a.

be offered or received against any of the Settling Parties as an admission

or evidence of the validity or justiciability of any Released Claim, of any fact alleged by any of
the plaintiffs in the Action, or the deficiency of any claim or defense that has been or could have
been asserted in the Action or in any litigation;
b.

be offered or received against the Settling Defendants as evidence of a

presumption, concession or admission of any fault, misrepresentation or omission with respect to
any statements or written document approved or made by any Settling Defendant;
c.

be offered or received against the Settling Defendants as evidence of a

presumption, concession or admission with respect to any liability, negligence, fault or
wrongdoing, or in any way referred to for any other reason as against any of the Settling
Defendants, in any other civil, criminal or administrative action or proceeding, other than such
proceedings as may be necessary to effectuate the provisions of this Stipulation; provided,
however, that if this Stipulation is approved by the Court, the Released Parties may refer to it to
effectuate the liability protection granted them hereunder, including to support a defense of res
judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any
other theory of claim preclusion or issue preclusion or similar defense or counterclaim;
d.

be construed against the Settling Defendants or the Settlement Class as an

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admission or concession that the consideration to be given hereunder represents the amount
which could be or would have been recovered after trial;
e.

be construed as, or received in evidence as, an admission, concession or

presumption against the Lead Plaintiff or the Settlement Class that any of the claims are without
merit or that damages recoverable under any of the complaints filed in the Action would not have
exceeded the Settlement Amount; or
f.

be used by any of the Settling Parties for any purpose in any trial in the

Action in the event the Settlement does not become Final.
16.

Notwithstanding the provisions of Paragraph 13 above, the Stipulation and the

terms of the Settlement may be offered or received into any action or proceeding: (1) arising
under the Stipulation or arising out of this Settlement Approval Order or the Judgment, (2) where
the releases provided pursuant to the Stipulation may serve as a bar to recovery, (3) to determine
the availability, scope, or extent of insurance coverage for the sums expended for the Settlement
and defense of the Action; or (4) to determine the rights or obligations of the Settling Parties
with respect to the Assigned Claims.
17.

The Released Parties may file the Stipulation, this Settlement Approval Order, or

the Judgment in any action that may be brought against them in order to support a defense or
counterclaim based on 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.
18.

The Plan of Allocation is approved as fair and reasonable, and Plaintiff’s Counsel

and the Settlement Administrator are directed to administer the Stipulation in accordance with its

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terms and provisions, subject to any conditions in section 8.1 of the Stipulation that have not yet
occurred or been waived in writing by the Settling Defendants, as provided for in the Stipulation.
19.

The Court shall enter the Judgment substantially in the form attached to the

Stipulation as Exhibit D upon written notification from the Settling Parties that the condition set
forth in paragraph 8.1(d) of the Stipulation have occurred or been waived in accordance with the
terms of the Stipulation.
20.

A separate order shall be entered to approve the applications as allowed by the

Court by Plaintiff’s Counsel for attorneys’ fees and reimbursement of costs and expenses and the
application by Lead Plaintiff for an award for his time, expense and efforts incurred in the
prosecution of the Action. The finality of this Settlement Approval Order or the Judgment shall
not be affected, in any manner, by rulings that the Court may make on the foregoing applications.
21.

Upon entry of this Order, and prior to the Effective Date, up to $1 million from

the Reserve Amount may be applied to such fees and expenses incurred as a result of the
litigation of claims and causes of action against the Non-Settling Defendants. Amounts in excess
of $1 million shall not be paid out until after the Effective Date.
22.

The finality of this Settlement Approval Order shall not be affected, in any

manner, by rulings that the Court may make regarding the Plan of Allocation, including, without
limitation, adjustments to Individual Claim Amounts.
23.

Exclusive jurisdiction is hereby retained over the Settling Parties and the

Settlement Class Members for a period of six (6) years regarding all matters relating to the
Action, including (1) the administration, interpretation, implementation or enforcement of the
Stipulation and this Judgment and any proceedings relating thereto; (2) disbursement of the Net

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Settlement Fund; and (3) any application for fees and expenses incurred in connection with
administering and disbursing the settlement proceeds to the Sett1ement Class Members.
24.

In the event that the Settlement does not become effective in accordance with the

terms of the Stipulation, then this Settlement Approval Order shall be vacated nunc pro tunc and,
in such event, all orders entered, including those certifying the Settlement Class, and releases
delivered in connection herewith shall be null and void to the extent provided by and in
accordance with the Stipulation.
25.

Without further order of the Court, the Settling Parties may agree to reasonable

extensions of time to carry out any of the provisions of the Stipulation.

SO ORDERED:
Dated: ________ ___, 2011
_______________________________________
UNITED STATES DISTRICT JUDGE

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