The Berkshire Bank v. Bank of America Corporation et al

Filing 388

ORDER PRELIMINARILY APPROVING SETTLEMENT BETWEEN LENDER PLAINTIFFS AND DEUTSCHE BANK AG, CONDITIONALLY CERTIFYING THE LENDER SETTLEMENT CLASS, APPOINTING SETTLEMENT CLASS COUNSEL, APPROVING NOTICE PROGRAM AND PRELIMINARILY APPROVING PLAN OF DISTRIBUT ION: The Court, having reviewed the Motion, its accompanying memorandum, the Settlement Agreement, the Declaration of Jeremy A. Lieberman (Lieberman Declaration) and exhibits thereto, the Plan of Distribution, the Declaration of Jennifer M. Keough an d exhibits thereto, and the file, HEREBY ORDERS, ADJUDGES, AND DECREES: The Settlement is hereby preliminarily approved, including the releases contained therein, as being fair, reasonable, and adequate to the Lender Class pursuant to Rule 23 of the Federal Rules of Civil Procedure, subject to final Court approval following the Fairness Hearing described below. The Court finds that the Settlement was entered into at arms length by experienced counsel and is sufficiently within the range of reaso nableness that notice of the Settlement should be given to the members of the Lender Class as provided in this Order. A Fairness Hearing set for 3/15/2021 at 11:00 AM before Judge Naomi Reice Buchwald. And as set forth herein. IT IS SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 10/30/2020) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MDL No. 2262
IN RE LIBOR-BASED FINANCIAL
INSTRUMENTS ANTITRUST LITIGATION

THIS DOCUMENT RELATES TO:

Master File No. 1:11-md-2262-NRB
ECF Case

The Lender Action

No. 1:12 Civ. 5723 (NRB)

[PROPOSED] ORDER PRELIMINARILY APPROVING SETTLEMENT
BETWEEN LENDER PLAINTIFFS AND DEUTSCHE BANK AG, CONDITIONALLY
CERTIFYING THE LENDER SETTLEMENT CLASS, APPOINTING SETTLEMENT
CLASS COUNSEL, APPROVING NOTICE PROGRAM AND PRELIMINARILY
APPROVING PLAN OF DISTRIBUTION
THIS CAUSE came before the Court on Lender Plaintiffs’ Motion for Preliminary
Approval of Settlement with Deutsche Bank AG (“Deutsche Bank”), Conditional Certification of
the Lender Class, Appointment of Settlement Class Counsel, Approval of Notice Program and
Preliminary Approval of Plan of Distribution of the Settlement Agreements (the “Motion”).
Lender Plaintiffs have entered into a Settlement Agreement with Deutsche Bank, dated July 29,
2020.1
The Court, having reviewed the Motion, its accompanying memorandum, the Settlement
Agreement, the Declaration of Jeremy A. Lieberman (“Lieberman Declaration”) and exhibits
thereto, the Plan of Distribution, the Declaration of Jennifer M. Keough and exhibits thereto, and
the file, HEREBY ORDERS, ADJUDGES, AND DECREES:

1

Unless otherwise expressly defined in this Order, capitalized terms shall have the meaning ascribed to them in the
Settlement Agreement.

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PRELIMINARY APPROVAL OF THE SETTLEMENT
1.

The Settlement is hereby preliminarily approved, including the releases contained

therein, as being fair, reasonable, and adequate to the Lender Class pursuant to Rule 23 of the
Federal Rules of Civil Procedure, subject to final Court approval following the Fairness Hearing
described below. The Court finds that the Settlement was entered into at arm’s length by
experienced counsel and is sufficiently within the range of reasonableness that notice of the
Settlement should be given to the members of the Lender Class as provided in this Order.
CERTIFICATION OF THE LENDER CLASS
2.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure and in light of the

proposed Settlement, the Court hereby finds that the prerequisites for conditional certification
have been met and certifies the following class for settlement purposes only (the “Lender
Class”):
All lending institutions headquartered in the United States, including its
fifty (50) states and United States territories, that originated loans, held
loans, held interests in loans, owned loans, owned interests in loans,
purchased loans, purchased interests in loans, sold loans, or sold interests
in loans with interest rates based upon U.S. Dollar LIBOR, which rates
adjusted at any time between August 1, 2007 and May 31, 2010 (the
“Class Period”).2
3.

The Court finds that the certification of the Lender Class is warranted in light of and

solely for the purpose of the Settlement because (a) the Lender Class is so numerous that joinder
is impracticable; (b) the claims of Lender Plaintiffs present common issues and are typical of the
claims of the Lender Class; (c) The Government Development Bank for Puerto Rico and Lender
Plaintiffs’ Counsel (defined below) will fairly and adequately represent the Lender Class; and (d)
2

As specified in the Settlement Agreement, the Lender Class excludes Defendants; Released Parties; any entity in
which any Defendant, Released Party, or co-conspirator has a controlling interest; any affiliate, legal representative,
heir, successor, or assign of any Defendant, Released Party, or co-conspirator and any person acting on their behalf.
Also excluded from the Class are any judicial officers presiding over the Lender Action and the members of his/her
immediate families and judicial staff.
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common issues predominate over any individual issues affecting the members of the Lender
Class. The Court further finds that The Government Development Bank for Puerto Rico interests
are aligned with the interests of all other members of the Lender Class. The Court also finds that
approval of the Settlement on a class basis is superior to other means of resolving this matter.
4.

The Court hereby appoints Pomerantz LLP as counsel for the Lender Class (“Lender

Plaintiffs’ Counsel”), having determined that the requirements of Rule 23(g) of the Federal Rules
of Civil Procedure are fully satisfied by this appointment.
5.

The Court hereby appoints The Government Development Bank for Puerto Rico and

The Berkshire Bank (“Lender Plaintiffs”) to serve as representatives of the Lender Class.
6.

A Fairness Hearing pursuant to Rule 23(e) of the Federal Rule of Civil Procedure is

hereby scheduled to be held before the Court on Mar. 15 2021 at 11:00 _.m., in a format to be
_____,
____ a
determined by the Court that the Court will announce on the case docket in advance of the
Hearing, for the following purposes:
a. to determine whether the Settlement is fair, reasonable, and adequate, and
should be approved by the Court;
b. to finally determine whether the Final Judgment and Order of Dismissal with
Prejudice as provided under the Settlement should be entered, dismissing the
Lender Action on the merits and with prejudice as to Deutsche Bank, and to
determine whether the release by the Lender Class of the Released Parties,
should be ordered, along with a permanent injunction barring efforts to bring
any Released Claims extinguished by the Settlement;

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c. to finally determine whether the proposed Plan of Distribution for the
distribution of the Net Settlement Funds is fair and reasonable and should be
approved by the Court;
d. to consider the Fee and Expense Application;
e. to consider Lender Class Members’ objections to the Settlement, if any,
whether submitted previously in writing or presented orally at the Fairness
Hearing by Lender Class Members (or by counsel on their behalf); and
f. to rule upon such other matters as the Court may deem appropriate.
7.

The Court reserves the right to approve the Settlement with such modifications as

may be agreed upon or consented to by the Parties and without further notice to the Lender Class
where to do so would not impair Lender Class Members’ rights in a manner inconsistent with
Rule 23 of the Federal Rules of Civil Procedure and due process of law. The Court further
reserves the right to enter its Final Judgment and Order of Dismissal with Prejudice, approving
the Settlement and dismissing the Lender Action, on the merits and with prejudice, regardless of
whether it has approved the Plan of Distribution or awarded attorneys’ fees and expenses or
made an award to Lender Plaintiffs.
NOTICE TO POTENTIAL CLASS MEMBERS AND PLAN OF DISTRIBUTION
8.

The Court approves the form, substance and requirements of (a) the Notice, (b) the

Summary Notice, and (c) the proof of claim form, all of which are exhibits to the Declaration of
the Jennifer Keough.
9.

The Plan of Distribution set forth in Exhibit 3 to the Lieberman Declaration is

preliminarily approved. The use of the modeling, as described in the Memorandum of Law, is

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preliminarily approved without prejudice to the rights of any Defendants to contest certification
of any other class.
10.

Lender Plaintiffs’ Counsel has the authority to enter into the Settlement on behalf of

the Lender Class and is authorized to act on behalf of the Lender Class Members with respect to
all acts or consents required by or that may be given pursuant to the Settlement or such other acts
that are reasonably necessary to consummate the Settlement.
11.

The Court approves JND Legal Administration as the Claims Administrator.

12.

The Court approves the Huntington Bank as Escrow Agent.

13.

Lender Plaintiffs’ Counsel, through the Claims Administrator, shall cause the Notice,

substantially in the form annexed hereto, to be emailed or mailed, by first-class mail, postage
prepaid, within twenty-one (21) calendar days of the entry of this Order, to all Lender Class
Members who can be identified with reasonable effort by the Claims Administrator.
14.

Lender Plaintiffs’ Counsel is authorized to establish a settlement account of $425,000

(four hundred twenty-five thousand U.S. dollars) in accordance with the provisions of the
Settlement (“Settlement Account”). Lender Plaintiffs’ Counsel is authorized to pay up to
$25,500 (twenty-five thousand five hundred U.S. dollars) from the Settlement Account for
Notice and Administration Costs prior to the Effective Date in accordance with the provisions of
the Settlement Agreement. After the Effective Date, additional amounts may be used for Notice
and Administration Costs. All funds held in the Settlement Account shall be deemed to be
in custodia legis and shall remain subject to the jurisdiction of this Court until such time as
the funds shall be distributed or returned pursuant to the Settlement and/or further order of the
Court.
15.

The Claims Administrator is authorized and directed to prepare any tax returns and

any other tax reporting forms for, or in respect of, the Settlement Fund, to pay from the
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Settlement Fund any Taxes owed with respect to the Settlement Funds, and otherwise to perform
all obligations with respect to Taxes and any reporting or filings in respect thereof without
further order of this Court in a manner consistent with the provisions of the Settlement
Agreement.
16.

The Claims Administrator shall, at or before the Fairness Hearing, serve upon

Deutsche Bank’s Counsel and file with the Court, proof of mailing of the Notice to the Lender
Class Members.
17.

Lender Plaintiffs’ Counsel, through the Claims Administrator, shall cause the

Summary Notice to be circulated within twenty-eight (28) calendar days after the entry of this
Order as follows: (i) published once in IBD Weekly and The Wall Street Journal; and (ii) issue a
press release on PR Newswire. Lender Plaintiffs’ Counsel shall, at or before the Fairness
Hearing, serve upon Deutsche Bank’s Counsel and file with the Court, proof of publication of
the Summary Notice.
18.

The forms and methods set forth herein of notifying the Lender Class of the

Settlement and its terms and conditions meet the requirements of due process and Rule 23 of the
Federal Rules of Civil Procedure; constitute the best notice practicable under the circumstances;
and constitute due and sufficient notice to all Persons entitled thereto. No Lender Class Member
will be relieved from the terms of the Settlement, including the releases provided for therein,
based upon the contention or proof that such Lender Class Member failed to receive actual or
adequate notice.
19.

In order to be entitled to recover from the Net Settlement Funds after the Effective

Date, each Lender Class Member shall take the following action and be subject to the following
conditions:

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a. A properly completed and executed proof of claim form must be submitted to the
Claims Administrator, at the Post Office box indicated in the Notice, postmarked no
later than thirty-five (35) calendar days prior to the Fairness Hearing. Such deadline
may be further extended by Order of the Court. Each proof of claim form shall be
deemed to have been submitted when legibly postmarked (if properly addressed and
mailed by first-class mail) provided such proof of claim form is actually received
before the filing of a motion for an Order of the Court approving distribution of the
Net Settlement Fund. Any proof of claim form submitted in any other manner shall
be deemed to have been submitted when it was actually received by the Claims
Administrator at the address designated in the Notice.
b. The proof of claim form submitted by each Lender Class Member must satisfy the
following conditions: (i) it must be properly filled out, signed and submitted in a
timely manner in accordance with the provisions of the preceding subparagraph; (ii) it
must be accompanied by adequate supporting documentation for the transactions
reported therein as is deemed adequate by the Claims Administrator or Lender
Plaintiffs’ Counsel; (iii) if the person executing the proof of claim form is acting in a
representative capacity, a certification of his current authority to act on behalf of the
Lender Class Member must be provided with the proof of claim form; and (iv) the
proof of claim form must be complete and contain no material deletions or
modifications of any of the printed matter contained therein and must be signed under
penalty of perjury.
c. Once the Claims Administrator has considered a timely submitted proof of claim
form, it shall determine whether such claim is valid, deficient or rejected. For each

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claim determined to be either deficient or rejected, the Claims Administrator shall
send a deficiency letter or rejection letter as appropriate, describing the basis on
which the claim was so determined. Persons who timely submit a proof of claim
form that is deficient or otherwise rejected shall be afforded a reasonable time (at
least seven (7) calendar days) to cure such deficiency if it shall appear that such
deficiency may be cured.
d. For the filing of and all determinations concerning their proof of claim form, each
Lender Class Member shall submit to the jurisdiction of the Court.
20.

All Lender Class Members who do not submit valid and timely proof of claim forms

will be forever barred from receiving any payments from the Net Settlement Fund, but will in all
other respects be subjects to and bound by the provisions of the Settlement Agreement and the
Final Judgment and Order of Dismissal with Prejudice, if entered.
21.

Lender Class Members shall be bound by all determinations and judgments in the

Lender Action, whether favorable or unfavorable, unless such Persons file a Request for
Exclusion from the Lender Class in a timely and proper manner, as hereinafter provided. A
Lender Class Member wishing to make such request shall mail it, in written form, by first-class
mail, postage prepaid, or otherwise deliver it, so that it is received no later than thirty-five (35)
Feb. 8
calendar days prior to the Fairness Hearing or _________20__, to the addresses listed in the
21

Notice. Such Request for Exclusion shall clearly indicate the name, address, phone number and
e-mail (if any) of the Person seeking exclusion, state that the sender specifically requests to be
excluded from the Lender Class, and must be signed by such Person, or its authorized
representative.

Such Persons requesting exclusion are also required to list and provide

documentation regarding any instruments within the Lender Class definition, including the

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origination, purchase, or receipt of or the holding of any interest in all loans with interest rates
based upon U.S. Dollar LIBOR during the Class Period, including any loans issued to the
excluding Person during the Class Period. Such documentation should also demonstrate the
interest received or paid during the Class Period for such loans. The Request for Exclusion shall
not be effective unless it provides the required information, is legible, and is made within the
time stated above, or the exclusion is otherwise accepted by the Court. Lender Plaintiffs’
Counsel may contact any Person filing a Request for Exclusion, or their attorney if one is
designated, to discuss the exclusion.
22.

Lender Class Members requesting exclusion from the Lender Class shall not be

entitled to receive any payment out of the Net Settlement Fund.
23.

The Court will consider comments on and/or objections to the Settlement, the Plan of

Distribution, or the Fee and Expense Application only if such comments or objections and any
supporting papers are postmarked no later than twenty-one (21) calendar days prior to the
Fairness Hearing, upon each of the following:
Counsel for Lender Plaintiffs and the Lender Settlement Class
Jeremy A. Lieberman, Esq.
Michael J. Wernke, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Deutsche Bank’s Counsel
Elizabeth M. Sacksteder
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
Telephone: [phone]

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and the objector has (by that same date) filed said objections, papers, and briefs, showing due
proof of service upon counsel identified above, with the Clerk of the Court, U.S. District Court
for the Southern District of New York, Daniel Patrick Moynihan United States Courthouse, 500
Pearl Street, New York, NY 10007. Attendance at the Fairness Hearing is not necessary but
Persons wishing to be heard orally in opposition to the Settlement, the Plan of Distribution,
and/or the Fee and Expense Application are required to indicate in their written objection (or in a
separate writing that is submitted in accordance with the deadline and after instruction pertinent
to the submission of a written objection) that they intend to appear at the Fairness Hearing and
identify any witnesses they may call to testify or exhibits they intend to introduce into evidence
at the Fairness Hearing. Lender Class Members do not need to appear at the Fairness Hearing or
take any other action to indicate their approval.
24.

Any Lender Class Member who does not object in the manner prescribed above shall

be deemed to have waived all such objections and shall forever be foreclosed from making any
objection to the fairness, adequacy or reasonableness of the Settlement, the Final Judgment and
Order of Dismissal with Prejudice to be entered approving the Settlement, the Plan of
Distribution, and the Fee and Expense Application.
25.

The Court reserves the right to adjourn the Fairness Hearing or any adjournment

thereof without any further notice other than entry of an Order on the Court’s docket, and to
approve the Settlement without further notice to the Lender Class.
26.

All papers in support of the Settlement, the Plan of Distribution and any Fee and

Expense Application shall be filed and served thirty-five (35) calendar days before the Fairness
Hearing.

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27.

Any submissions filed in response to any objections or in further support of the

Settlement, the Plan of Distribution and any Fee and Expense Application shall be filed no later
than fourteen (14) calendar days prior to the Fairness Hearing.
OTHER PROVISIONS
28.

In the event that the Settlement is terminated in accordance with its provisions, the

Agreement and all proceedings had in connection therewith shall be null and void, except insofar
as expressly provided to the contrary in the Agreement and without prejudice to the status quo
ante rights of Lender Plaintiffs, Deutsche Bank, and the Lender Class Members.
29.

The Court’s certification of the Lender Class as provided herein is without prejudice

to, or waiver of the rights of any defendant to contest certification of any other class proposed in
these consolidated actions. The Court’s findings in this Order shall have no effect on the Court’s
ruling on any motion to certify any litigation class in this action and no party may cite or refer to
the Court’s approval of the Lender Class as persuasive or binding authority with respect to any
motion to certify any such class.
30.

All proceedings in the Lender Action with respect to Deutsche Bank are stayed until

further order of the Court. Such stay does not apply, however, to actions to implement or
comply with the terms of the Agreement. Pending final determination of whether the Agreement
should be approved, neither Lender Plaintiffs nor any Lender Class Member shall commence or
prosecute any action alleging any Released Claim against Deutsche Bank or other Released
Party.
IT IS SO ORDERED.

DATED: ____________ 20___
October 30, 20

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__________________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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