The Berkshire Bank v. Bank of America Corporation et al

Filing 392

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE, GRANTING FINAL APPROVAL OF SETTLEMENT BETWEEN LENDER PLAINTIFFS AND DEUTSCHE BANK AG: On the 15th day of March, 2021, a hearing having been held before this Court todetermine, among other things: (1) whether the terms and conditions of the Deutsche Bank AG Settlement Agreement, dated July 29, 2020 (the Settlement as documented in an Agreement) which settle all claims in The Berkshire Bank and Government Development Bank for Puerto Rico v. Bank of America, et al., No. 12-cv-5723-NRB (the Lender Action), consolidated in In Re Libor-Based Fin. Instruments Litig., No. 11-md-2262-NRB, for $425,000 (the Settlement Amount), are fair, reasona ble, and adequate for the settlement of all claims asserted by the Lender Class1 against Deutsche Bank AG (Deutsche Bank or the Settling Defendant); and (2) whether to approve the proposed Plan of Distribution as a fair a nd reasonable method to allocate the Net Settlement Fund among the Lender Class Members; as further set forth in this order. NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: Unless indicated otherwise, capitaliz ed terms used herein have the same meanings defined in the Agreement. For purposes of finally approving the Settlement, the Court has jurisdiction over the subject matter of the Lender Action, Lender Plaintiffs, all Lender Class Members , and, solely for purposes of effectuating the Settlement and subject to the limitations contained in the Agreement, the Settling Defendant. Excluded from the Lender Class Members are those Persons who filed valid and timel y Requests for Exclusion in accordance with the Agreement (the Opt-Outs) (paragraph 5(d) of the Agreement). The Opt-Outs are listed in Exhibit A. The Court hereby finds that the forms and methods of notifying the Lender Class of the Settlement and its terms and conditions met the requirements of the United States Constitution (including the Due Process Clause), Rule 23 of the Federal Rules of Civil Pursuant to, and in accordance with, R ule 23 of the Federal Rules of Civil Procedure, the Court hereby approves the Settlement as fair, reasonable and adequate, and in the best interests of the Lender Class, in all respects (including, without limitation: the amounts paid un der the Settlement; the Releases provided for herein; and the dismissal with prejudice of the claims provided for herein). Lender Plaintiffs and Settling Defendant (the Parties) are directed to consummate the Settlement in accordance with the ter ms and provisions of the Agreement. All of the claims asserted in the Lender Action are hereby dismissed on the merits with prejudice as to the Settling Defendant. The Parties shall bear their own costs and expenses, except as otherwise expressly provided in the Agreement. This Court orders that: Releasing Parties hereby release and forever discharge the Released Parties from any and all Released Claims. Releasing Parties are hereby permanently Procedure, an d all other applicable law and rules; Accordingly, the Court hereby bars all Released Claims against and by the Released Parties as provided herein. So Ordered (Signed by Judge Naomi Reice Buchwald on 3/15/2021) Filed In Associated Cases: 1:11-md-02262-NRB, 1:12-cv-05723-NRB (js) Modified on 3/15/2021 (js).

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

[PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE,
GRANTING FINAL APPROVAL OF SETTLEMENT BETWEEN LENDER
PLAINTIFFS AND DEUTSCHE BANK AG
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On the ____ day of March 20__, a hearing having been held before this Court to
____,
15th
determine, among other things: (1) whether the terms and conditions of the Deutsche Bank AG
Settlement Agreement, dated July 29, 2020 (the “Settlement” as documented in an “Agreement”)
which settle all claims in The Berkshire Bank and Government Development Bank for Puerto
Rico v. Bank of America, et al., No. 12-cv-5723-NRB (the “Lender Action”), consolidated in In
Re Libor-Based Fin. Instruments Litig., No. 11-md-2262-NRB, for $425,000 (the “Settlement
Amount”), are fair, reasonable, and adequate for the settlement of all claims asserted by the
Lender Class1 against Deutsche Bank AG (“Deutsche Bank” or the “Settling Defendant”); and

“Lender Class” refers to: “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 USD LIBOR between August 1,
2007 and May 31, 2010.”
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(2) whether to approve the proposed Plan of Distribution as a fair and reasonable method to
allocate the Net Settlement Fund among the Lender Class Members; and
The Court having considered all matters submitted to it at the hearing and otherwise; and
It appearing that the Notice substantially in the form approved by the Court in the Court’s
Order Preliminarily Approving Settlement (“Preliminary Approval Order”) was mailed to all
reasonably identifiable potential members of the Lender Class; and
It appearing that the Summary Notice substantially in the form approved by the Court in
the Preliminary Approval Order was published in accordance with the Preliminary Approval
Order and the specifications of the Court;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED
THAT:
1.

Unless indicated otherwise, capitalized terms used herein have the same meanings

defined in the Agreement.
2.

For purposes of finally approving the Settlement, the Court has jurisdiction over

the subject matter of the Lender Action, Lender Plaintiffs, all Lender Class Members, and, solely
for purposes of effectuating the Settlement and subject to the limitations contained in the
Agreement, the Settling Defendant.
3.

Excluded from the Lender Class Members are those Persons who filed valid and

timely Requests for Exclusion in accordance with the Agreement (the “Opt-Outs”) (paragraph
5(d) of the Agreement). The Opt-Outs are listed in Exhibit A.
4.

The Court hereby finds that the forms and methods of notifying the Lender Class

of the Settlement and its terms and conditions met the requirements of the United States
Constitution (including the Due Process Clause), Rule 23 of the Federal Rules of Civil

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Procedure, and all other applicable law and rules; constituted the best notice practicable under
the circumstances; and constituted due and sufficient notice to all Lender Class Members entitled
thereto of these proceedings and the matters set forth herein, including the Settlement and Plan of
Distribution. No Lender Class Member is relieved from the terms of the Agreement, including
the releases provided for therein, based upon the contention or proof that such Lender Class
Member failed to receive actual or adequate notice. A full opportunity has been offered to all
Lender Class Members to object to the Settlement and to participate in the hearing thereon. The
Court further finds that the notice provisions of the Class Action Fairness Act, 28 U.S.C. § 1715,
were fully discharged and that the statutory waiting period has elapsed. Thus, it is hereby
determined that all Lender Class Members are bound by this Final Judgment and Order of
Dismissal with Prejudice, except those persons listed on Exhibit A to this Final Judgment and
Order of Dismissal with Prejudice.
5.

Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil

Procedure, the Court hereby approves the Settlement as fair, reasonable and adequate, and in the
best interests of the Lender Class, in all respects (including, without limitation: the amounts paid
under the Settlement; the Releases provided for herein; and the dismissal with prejudice of the
claims provided for herein). Lender Plaintiffs and Settling Defendant (the “Parties”) are directed
to consummate the Settlement in accordance with the terms and provisions of the Agreement.
6.

All of the claims asserted in the Lender Action are hereby dismissed on the merits

with prejudice as to the Settling Defendant. The Parties shall bear their own costs and expenses,
except as otherwise expressly provided in the Agreement.
7.

This Court orders that: Releasing Parties hereby release and forever discharge the

Released Parties from any and all Released Claims. Releasing Parties are hereby permanently

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and forever enjoined from prosecuting, attempting to prosecute, or assisting others in the
prosecution of the Released Claims against the Released Parties, as set forth in the Agreement.
For the purposes of this Final Judgment and Order of Dismissal with Prejudice:
a. “Releasing Parties” means Lender Plaintiffs and each and every Lender Class
Member on their own behalf and on behalf of their respective predecessors,
successors, beneficiaries, and assigns, the respective direct and indirect
parents (including holding companies), subsidiaries, divisions, associates, and
affiliates thereof, the respective future, current, and former officers, directors,
employees, agents, stockholders, trustees, fiduciaries, and legal or other
representatives thereof, and the respective predecessors, successors, heirs,
executors, administrators, beneficiaries, and assigns of each of the foregoing
in their respective capacity as such, whether or not they object to the
Settlement and whether or not they make a claim for payment from the
Settlement Fund to be established with respect to this Settlement.
b. “Released Claims” means any and all manner of 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), of every nature and
description, 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, and damages,
whenever incurred, and liabilities of any nature whatsoever (including joint
and several), whether based on federal, state, local, statutory or common law,

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in equity, or on any other law, rule, regulation (including Rule 11 of the
Federal Rules of Civil Procedure), ordinance, contract, or the law of any
foreign jurisdiction, whether fixed or contingent, known or unknown,
suspected or unsuspected, asserted or unasserted, matured or unmatured,
arising from or relating in any way to the origination, ownership, purchase, or
sale of loans (or interests in loans, including through mortgage-backed
securities, home or business loans, or other instruments) with interest rates
tied to LIBOR which adjusted during the Class Period, and the acts, facts,
statements, or omissions that were or could have been alleged or asserted by
Lender Plaintiffs or any member of the Settlement Class in the Lender Action
or in any other action in any court or forum, which any Releasing Party ever
had, now has, or hereafter may have against the Released Parties (whether
directly, derivatively, representationally, or in any other capacity), from the
beginning of time.
c. “Released Party” or “Released Parties” the Settling Defendant and its
respective divisions, predecessors, successors and assigns, the respective
direct and indirect parents (including holding companies), subsidiaries,
associates, and affiliates thereof, and the respective current and former
officers, directors, employees, managers, members, partners, agents (in their
capacities as agents of Settling Defendant), shareholders (in their capacities as
shareholders of Settling Defendant), attorneys, trustees, and legal or other
representatives thereof, and the predecessors, successors, heirs, executors,
administrators, and assigns of each of the foregoing in their respective

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capacity as such. Released Parties does not include: (i) any of the other
Defendants in the Lender Action or (ii) any other person or entity formerly
named as a party in the Lender Action.
8.

Accordingly, the Court hereby bars all Released Claims against and by the

Released Parties as provided herein.
9.

The Court further orders that, as of the Effective Date, the Settling Defendant,

including any and all of its successors in interest or assigns, hereby release and forever
discharge, and shall forever be enjoined from prosecuting any and all claims against Lender
Plaintiffs, any of the Lender Class Members, and Lender Plaintiffs’ Counsel arising out of or
relating to the institution, prosecution, or resolution of the Released Claims in the Action;
provided, however, that this Paragraph does not release or discharge any claim or right that the
Settling Defendant may have to enforce the Agreement, or any claim, right, or defense that the
Settling Defendant may otherwise have arising out of or relating to any transactions or contracts
(including any U.S. Dollar LIBOR-Based Loans) that Settling Defendant may have entered with
Lender Plaintiffs, Lender Plaintiffs’ Counsel, or members of the Settlement Class, including any
claim or right to enforce the terms of any such transaction or contract (including any U.S. Dollar
LIBOR-Based Loans).
10.

For purposes of this Final Judgment and Order of Dismissal with Prejudice:
a. “Unknown Claims” means any and all Released Claims against the Released
Parties which Releasing Parties do not know or suspect to exist in his, her, or
its favor as of the Effective Date, which if known by the Releasing Parties
might have affected his, her, or its decision(s) with respect to the Settlement.
With respect to any and all Released Claims, the Parties stipulate and agree

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that by operation of the Final Judgment and Order of Dismissal, upon the
Effective Date, Releasing Parties shall have expressly waived, and each
Lender Class Member shall be deemed to have waived, and by operation of
the Final Judgment and Order of Dismissal shall have expressly waived, the
provisions, rights and benefits of California Civil Code § 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
and any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which is
similar, comparable, or equivalent to California Civil Code § 1542.
The Releasing Parties may hereafter discover facts other than or different
from those which they now know or believe to be true with respect to the
subject matter of the Released Claims. Nevertheless, Lender Plaintiffs shall
expressly, fully, finally, and forever settle and release, and each Lender Class
Member, upon the Effective Date, shall be deemed to have, and by operation
of the Final Judgment and Order of Dismissal shall have, fully, finally, and
forever settled and released, any and all Released Claims, whether or not
concealed or hidden, without regard to the subsequent discovery or existence
of such different or additional facts. Lender Plaintiffs acknowledge, and
Lender Class Members shall be deemed to have acknowledged, that the

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inclusion of "unknown" claims in the definition of Released Claims was
separately bargained for and was a key element of the Agreement.
11.

Lender Plaintiffs’ Counsel are awarded attorneys’ fees in the amount of

$______________ plus interest at the same rate as earned by the Settlement Fund, and expenses
119,000.00
in the amount of $_____________ plus interest at the same rate as earned by the Settlement
59,062.61
Fund, such amounts to be paid from out of the Settlement Fund no later than five (5) business
days following the entry of this Final Judgment and Order of Dismissal with Prejudice. If, and
when, as a result of any appeal and/or further proceedings on remand, or successful collateral
attack, Lender Plaintiffs’ Counsel’s fees and expense award is overturned or lowered, or if the
Settlement is terminated, or if there is an appeal and any order approving the Settlement does not
become final and binding upon the Lender Class Members, then, within thirty (30) calendar days
after receiving notice of such an order from a court of appropriate jurisdiction, Lender Plaintiffs’
Counsel shall refund the Settlement Fund such fees and expenses previously paid to them from
the Settlement Fund plus interest thereon at the same rate as earned on the Settlement Fund in an
amount consistent with such reversal or modification. Lender Plaintiffs’ Counsel, as a condition
of receiving such fees and expenses, on behalf of itself and each partner and/or shareholder of it,
(including the law firm partners and/or shareholders) shall be subject to the jurisdiction of the
Court for the purpose of enforcing this Final Judgment and Order of Dismissal with Prejudice
and the Agreement, and each shall be liable for repayment of the attorneys’ fees and litigation
costs and expenses allocated to Lender Plaintiffs’ Counsel, including all amounts paid as referral
fees to other law firms, as well as accrued interest thereon. Upon application of Settling
Defendant or its counsel, the Court may summarily issue orders, including, without limitation,
judgments and attachment orders and may make appropriate findings of or sanctions for

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contempt against Lender Plaintiffs’ Counsel or any of its partners and/or shareholders should
such Lender Plaintiffs’ Counsel fail timely to repay fees and expenses pursuant to this paragraph.
12.

The Court hereby finds that the proposed Plan of Distribution2 is a fair and

reasonable method to allocate the Net Settlement Fund among Lender Class Members.
13.

The Court finds that the parties and their counsel have complied with each

requirement of Rule 11 of the Federal Rules of Civil Procedure as to all proceedings herein.
14.

Neither this Final Judgment and Order of Dismissal with Prejudice, the

Preliminary Approval Order, the Agreement (including the exhibits and Supplemental
Agreement thereto), the Term Sheet between the Lender Plaintiffs and Deutsche Bank, dated
March 27, 2020, nor any of the negotiations, documents or proceedings connected with them
shall be:
a. deemed or construed to be an admission or evidence of (i) the merit or lack of
merit of any claim or defense; (ii) any violation of any statute or law; (iii) any
liability or wrongdoing by anyone; (iv) the truth of any of the claims or
allegations alleged in the Lender Action; or (v) an admission of liability by
any Person, including, without limitation, the Released Parties;
b. construed against the Released Parties, the Lender Plaintiffs, or the Lender
Class as an admission or concession that the consideration to be given
hereunder represents the amount which could be or would have been
recovered after trial;
c. construed as, or received in evidence as, an admission, concession or
presumption against the Lender Class or any Lender Class Member, that any
2

The Plan of Distribution is found at ECF No. 3204-3.
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of their claims are without merit or that damages recoverable in the Lender
Action would not have exceeded the Settlement Amount;
d. used or construed as an admission that any one or more of the Settling
Defendant or Released Parties were or are otherwise subject to personal
jurisdiction in the Court except to the extent specifically provided the
Agreement or in this Order; or
e. offered or received in evidence as an admission, concession, presumption or
inference against any of the Released Parties in any proceeding other than
such proceedings as may be necessary to consummate or enforce the
Agreement.
15.

Notwithstanding the foregoing Paragraph 14, the Parties and other Released

Parties may file or refer to this Final Judgment and Order of Dismissal with Prejudice, the
Settlement Agreement, Preliminary Approval Order, and/or any proof of claim form: (a) to
effectuate the liability protections granted hereunder or thereunder, including without limitation,
to support a defense or counterclaim based on principles of res judicata, collateral estoppel,
release, good-faith settlement, judgment bar or reduction, or any theory of claim preclusion or
issue preclusion or similar defense or counterclaim; (b) to obtain a judgment reduction under
applicable law; (c) to enforce any applicable insurance policies and any agreements relating
thereto; or (d) to enforce the terms of the Agreement and/or this Final Judgment and Order of
Dismissal with Prejudice.
16.

Exclusive jurisdiction is hereby retained over (a) implementation of the

Settlement and any award or distribution of monies under the Settlement; (b) hearing and
determining applications for attorneys’ fees, costs, expenses, and service awards to the Lender

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Plaintiffs; and (c) all Parties hereto solely for the purpose of construing, enforcing, and
administering the Settlement.
17.

To the extent permitted by law, the Court bars claims against the Released Parties

for contribution or indemnification (however denominated) for all or a portion of any amounts
paid or awarded in the Lender Action by way of any settlement, judgment or otherwise by any of
the following:
a. Any of the other Defendants3 currently named in the Lender Action;
b. Any other Person formerly named as a party in the Lender Action; or
c. Any other Person subsequently added or joined as a party in the Lender
Action.
18.

To the extent permitted by law, the Court bars claims by the Released Parties for

contribution or indemnification (however denominated) for all or a portion of any amounts paid
or awarded in the Lender Action by way of any settlement, judgment or otherwise by any of the
following:
a. Any of the other Defendants currently named in the Lender Action;
b. Any other Person formerly named as a party in the Lender Action; or
c. Any other Person subsequently added or joined as a party in the Lender
Action.

The term “Defendants” includes Bank of America Corporation, Bank of America, N.A., Bank
of Tokyo Mitsubishi UFJ Ltd., Barclays Bank plc, British Bankers’ Association, BBA
Enterprises Ltd., BBA LIBOR Ltd., Citigroup Inc., Citibank, N.A., Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Credit Suisse Group AG, Deutsche Bank AG, HSBC Holdings
plc, HSBC Bank plc, JPMorgan Chase & Co., JPMorgan Chase Bank, N.A., Lloyds Banking
Group PLC, HBOS PLC, Royal Bank of Canada, The Norinchunkin Bank, The Royal Bank of
Scotland Group PLC, UBS AG, WestLB AG, and Westdeutsche Immobilienbank AG, and any
other Person or Persons who are or were named as defendants in the Lender Action at any time
up to and including the date of this Final Judgment and Order of Dismissal with Prejudice.
3

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19.

Should any court determine that any Defendant or other co-conspirator is or was

legally entitled to any kind of contribution, indemnification, or similar claim (however
denominated) from any Released Parties arising out of or related to Released Claims, any money
judgment subsequently obtained by the Lender Plaintiffs against any Defendant or other coconspirator shall be reduced to an amount such that, upon paying the entire amount, the
Defendant or other co-conspirator would have no claim for contribution, indemnification or
similar claims (however denominated) against the Released Parties.
20.

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

of time to carry out any of the provisions in the Settlement Agreement.
21.

There is no just reason for delay in the entry of this Final Judgment and Order of

Dismissal with Prejudice and immediate entry by the Clerk of the Court is directed pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure.
22.

The finality of this Final Judgment and Order of Dismissal with Prejudice shall

not be affected, in any manner, by any appeals concerning the attorneys’ fees and expenses
awarded herein, the award to Lender Plaintiffs, or the Plan of Distribution.
23.

In the event that a Settlement does not become final and effective in accordance

with the terms and conditions set forth in the Agreement, then, except as otherwise provided in
the Agreement, the Preliminary Approval Order, and this Final Judgment and Order of Dismissal
with Prejudice, the Agreement shall be rendered null and void of no further force or effect, and
all Parties shall be deemed to have reverted nunc pro tunc to their respective status prior to the
execution of the Term Sheet, and the Parties shall proceed in all respects as if the Term Sheet
and the Agreement had not been executed and the related orders had not been entered, without
prejudice in any way from the negotiation, fact, or terms of the Settlement, and preserving all of

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their respective claims and defenses (including for lack of personal jurisdiction) in the Lender
Action, and shall revert to their respective positions in the Lender Action.
24.

In the event that a Settlement does not become final and effective in accordance

with the terms and conditions set forth in the Agreement, the Escrow Agent shall refund the
Settlement Fund, together with any interest earned thereon (and, if applicable, repayment of any
attorney’s fees referred to in Paragraph 9 hereof), less amounts already expended for notice and
administration expenses pursuant to the terms of the Agreement, to Settling Defendant within ten
(10) business days thereafter. At the request of a Settling Defendant or Lender Plaintiffs, the
Escrow Agent or the Escrow Agent’s designee shall apply for any tax refund owed to the
Settlement Fund and pay the proceeds of the tax refund, after deduction of any fees and expenses
incurred in connection with such application(s) for refund, to the Settling Defendant.
25.

All agreements made and orders entered during the course of this Lender Action

relating to the confidentiality of information shall survive the Settlement and be binding on the
Parties, including but not limited to the Stipulation and Protective Order entered on March 21,
2016 (ECF No. 1347).

Dated: ___________, 202_
March 15
1
______________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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EXHIBIT A

1) Salix Capital US, Inc.
2) Prudential Investment Portfolios 2 (f/k/a Dryden Core Investment Fund), o/b/o PGIM
Core Short-Term Bond Fund (f/k/a Prudential Core Short-Term Bond Fund)
3) PGIM Core Ultra Short Bond Fund (f/k/a Prudential Core Taxable Money Market
Fund
4) Darby Financial Products
5) Capital Ventures International
6) The City of Philadelphia
7) The Pennsylvania Intergovernmental Cooperation Authority
8) The Federal Home Loan Mortgage Corporation
9) Federal National Mortgage Association
10) Federal Deposit Insurance Corporation as Receiver for:
a. Amcore Bank, N .A.
b. AmTrust Bank
c. California National Bank
d. Colonial Bank
e. Corus Bank, N.A.
f. Guaranty Bank
g. Imperial Capital Bank
h. IndyMac Bank, F.S.B.
i. Integra Bank, N.A.
j. Lydian Private Bank
k. Pacific National Bank
l. Park National Bank
m. R-G Premier Bank of Puerto Rico
n. San Diego National Bank
o. Silverton Bank, N.A.
p. Superior Bank
q. United Commercial Bank
r. United Western Bank
s. Washington Mutual Bank
t. Westernbank Puerto Rico

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