Maher v. Bank of Nova Scotia et al

Filing 138

FINAL JUDGMENT: For good cause shown, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. This Final Judgment and dismissal order 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 no tice provisions of the Class Action Fairness Act, 28 U.S.C. § 1715, have been satisfied. As further set forth by this Order. IT IS SO ORDERED. (Signed by Judge Valerie E. Caproni on 8/8/2022) Filed In Associated Cases: 1:14-md-02548-VEC et al. (tg)

Case 1:14-cv-01459-VEC Document 138 Filed 08/08/22 Page 1 of 8
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 08/08/2022
SOUTHERN DISTRICT OF NEW YORK
IN RE:
COMMODITY EXCHANGE, INC., GOLD
FUTURES AND OPTIONS TRADING
LITIGATION

Case No.

14-MD-2548 (VEC)
14-MC-2548 (VEC)

Hon. Valerie E. Caproni

This Document Relates To: All Actions

[PROPOSED] FINAL JUDGMENT

Case 1:14-cv-01459-VEC Document 138 Filed 08/08/22 Page 2 of 8

This matter came before the Court for hearing pursuant to Class Plaintiffs’ application for
final approval of the settlement set forth in the Stipulation and Agreement of Settlement with
Barclays Bank PLC, The Bank of Nova Scotia, Société Générale, and The London Gold Market
Fixing Limited, dated October 11, 2021 (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 dismissal order 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 Class Plaintiffs,1 for themselves
individually and on behalf of each Settlement Class Member in the Action, and Barclays Bank
PLC, The Bank of Nova Scotia, Société Générale, and The London Gold Market Fixing Limited
(the “Settling Defendants” and together with Class Plaintiffs, the “Settling Parties”), and any
objections and responses thereto, pursuant 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 during the period from January 1, 2004 through June
30, 2013, either (A) sold any physical gold or financial or derivative instrument in
which gold is the underlying reference asset, including, but not limited to, those
1

Class Plaintiffs are Compañía Minera Dayton SCM, Frank Flanagan, Quitman D.
Fulmer, KPFF Investment, Inc., Duane Lewis, Larry Dean Lewis, Kevin Maher, Robert
Marechal, Blanche McKennon, Kelly McKennon, Thomas Moran, J. Scott Nicholson, Santiago
Gold Fund LP, Steven Summer, and David Windmiller.

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who sold (i) gold bullion, gold bullion coins, gold bars, gold ingots or any form of
physical gold, (ii) gold futures contracts in transactions conducted in whole or in
part on COMEX or any other exchange operated in the United States, (iii) shares
in Gold exchange-traded funds (“ETFs”), (iv) gold call options in transactions
conducted over-the-counter or in whole or in part on COMEX or any other
exchange operated in the United States; (v) gold spot, gold forwards or gold
swaps over-the-counter; or (B) bought gold put options in transactions conducted
over-the-counter or in whole or in part on COMEX or on any other exchange
operated in the United States.
Excluded from the Settlement Class are Defendants, their officers, directors,
management, employees, affiliates, parents, subsidiaries, and co-conspirators,
whether or not named in the Action, and the United States Government, and other
governments. Also excluded is the Judge presiding over this action, his or her law
clerks, spouse, and any person within the third degree of relationship living in the
Judge’s household and the spouse of such a person.
5.

The requirements of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil

Procedure have been satisfied, 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 Class Plaintiffs are typical of the claims of the Settlement Class;
(d) Class 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 litigation of these
claims in this particular forum; and (iv) the likely difficulties in managing this Action as a class
action.
6.

The law firms of Quinn Emanuel Urquhart & Sullivan, LLP and Berger Montague

PC are appointed, solely for settlement purposes, as Co-Lead Counsel for the Settlement Class.
7.

Class Plaintiffs Compañía Minera Dayton SCM, Frank Flanagan, Quitman D.

Fulmer, KPFF Investment, Inc., Duane Lewis, Larry Dean Lewis, Kevin Maher, Robert

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Marechal, Blanche McKennon, Kelly McKennon, Thomas Moran, J. Scott Nicholson, Santiago
Gold Fund LP, Steven Summer, and David Windmiller are appointed, solely for settlement
purposes, as class representatives for the Settlement Class.
8.

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 Resources, Inc., 209 F.3d 43 (2d Cir. 2000). 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 is likely to involve 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.
9.

Except as to any individual claim of those Persons (identified as Gordon R.

Hauglie, Joan M. Hauglie, Yvonne McKown, and Bacno Central de Bolivia) 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 Claims, against Barclays Bank PLC, The
Bank of Nova Scotia, Société Générale, and The London Gold Market Fixing Limited by the
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Class Plaintiffs and Releasing 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.
10.

The Opt-Outs identified above 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.
11.

The lone objection made to the Settlement Agreement, ECF No. 647, was

withdrawn by the objecting party and is moot. ECF No. 663.
12.

Upon the Effective Date: (i) Class Plaintiffs, each of the Settlement Class

Members, and all Releasing Parties shall be deemed to have, and by operation of the Judgment
shall have, fully, finally, and forever released, relinquished, and discharged against Barclays
Bank PLC, The Bank of Nova Scotia, Société Générale, The London Gold Market Fixing
Limited, and the Released Parties (whether or not such Class Plaintiff, Settlement Class Member,
or Releasing Party executes and delivers a Proof of Claim and Release form) any and all
Released Claims (including, without limitation, Unknown Claims); and (ii) Class Plaintiffs, each
of the Settlement Class Members, and all Releasing Parties, 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 Claims against Barclays Bank
PLC, The Bank of Nova Scotia, Société Générale, The London Gold Market Fixing Limited, or
any Released Party 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 Class Plaintiffs or Releasing Parties to pursue
claims, if any, outside the scope of the Released Claims. Claims to enforce the terms of the
Settlement Agreement are not released.
13.

Upon the Effective Date, Barclays Bank PLC, The Bank of Nova Scotia, Société

Générale, and The London Gold Market Fixing Limited: (i) shall be deemed to have, and by
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operation of the Judgment and Order of Dismissal shall have, fully, finally, and forever released,
relinquished, and discharged Class Plaintiffs, each and all of the Settlement Class Members, and
Class Plaintiffs’ Counsel from any and all Settling Defendants’ Claims (including, without
limitation, Unknown Claims); and (ii) shall be permanently barred and enjoined from the
commencement, assertion, institution, maintenance or prosecution of Settling Defendants’
Claims against Class Plaintiffs and Co-Lead Counsel 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 Barclays Bank
PLC, The Bank of Nova Scotia, Société Générale, and The London Gold Market Fixing Limited
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.
14.

All rights of any Settlement Class Member against (i) any of the other 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 Barclays Bank PLC, The Bank of Nova Scotia, Société Générale, The London Gold Market
Fixing Limited, or the Released Parties with respect to Released Claims are specifically reserved
by Class Plaintiffs and the Settlement Class Members. To the extent permitted and/or authorized
by law, all transactions relating to or arising from entry into, receipt of payments on, or
terminations of any Gold Investments with Barclays Bank PLC, The Bank of Nova Scotia,
Société Générale, and The London Gold Market Fixing Limited, remain in the case against (i)
any of the other 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 Barclays Bank PLC, The Bank of Nova Scotia, Société Générale,
The London Gold Market Fixing Limited, and the Released Parties, as a potential basis for
damage claims and may be part of any joint and several liability claims.
15.

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
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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.
16.

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 deemed to be or may be used as an admission or evidence of
the validity of any Released Claim, or of any wrongdoing or liability of Barclays Bank PLC, The
Bank of Nova Scotia, Société Générale, and The London Gold Market Fixing Limited; 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 Barclays Bank PLC, The Bank of Nova Scotia, Société Générale, and The London Gold
Market Fixing Limited 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. Barclays Bank PLC, The Bank of Nova Scotia, Société Générale, and The London Gold
Market Fixing Limited 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.
17.

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.
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18.

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

terms of the Settlement Agreement, then this Final Order 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 3(b), 8(g), and 10(b) of the Settlement
Agreement shall nonetheless survive and continue to be of effect and have binding force.
19.

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.
20.

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

Dismissal. The Clerk of the Court is respectfully directed to enter this Final Judgment and Order
of Dismissal pursuant to Rule 54(b) of the Federal Rules of Civil Procedure immediately. The
Clerk of Court is also respectfully directed to terminate Defendants Barclays Bank PLC, The
Bank of Nova Scotia, Société Générale, and The London Gold Market Fixing Limited.
21.

The Court’s consideration and approval of the Settlement is independent of the

Court’s consideration and approval of the motions in connection with the prior settlements, and
is also independent of the Court’s consideration and approval of the Plans of Allocation, the fee
awards, the expense awards, and the incentive awards.
IT IS SO ORDERED.
08/08/2022
DATED: _______________________

___________________________________
HON. VALERIE E. CAPRONI
UNITED STATES DISTRICT JUDGE

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