Nicholson v. The Bank of Nova Scotia et al

Filing 125

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE OF DEUTSCHE BANK AG, DEUTSCHE BANK AMERICAS HOLDING CORPORATION, DB U.S. FINANCIAL MARKETS HOLDING CORPORATION, DEUTSCHE BANK SECURITIES, INC., DEUTSCHE BANK TRUST CORPORATION, DEUTSCHE BANK TRUST COMPANY AMERICAS, AND DEUTSCHE BANK AG NEW YORK BRANCH: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED: This Final Judgment hereby incorporates by reference the definitions in the Stipulation and Agreement of Settlement with Deutsche Bank dated Septembe r 6, 2016 (the "Settlement Agreement"), and all terms used herein, except as otherwise expressly defined herein,shall have the same meanings as set forth in the Settlement Agreement. All Plaintiff Released Claims against the DB Released Par ties are hereby dismissed with prejudice on the merits as to Deutsche Bank and without fees or costs. The Court, finding no just reason for delay, directs pursuant to Rule 54(b) of the Federal Rules of Civil Procedure that the judgment of dismissal as to Deutsche Bank shall be final and entered forthwith. The Clerk of Court is respectfully directed to terminate Defendants Deutsche Bank AG, Deutsche Bank Americas Holding Corporation, DB U.S. Financial Markets Holding Corporation, Deutsche Bank Securities, Inc., Deutsche Bank Trust Corporation, Deutsche Bank Trust Company Americas, and Deutsche Bank AG New York Branch. IT IS SO ORDERED., Deutsche Bank AG, New York Branch, Deutsche Bank Americas Holding Corporation, Deutsche Bank Americas H olding Corporation, Deutsche Bank Securities, Inc., Deutsche Bank Securities, Inc., Deutsche Bank Trust Company Americas, Deutsche Bank Trust Company Americas, Deutsche Bank Trust Corporation, Deutsche Bank Trust Corporation, Deutsche Bank, AG, Deuts che Bank, AG, Duetsche Bank AG, DB U.S. Financial Markets Holding Corporation and DB U.S. Financial Markets Holding Corporation terminated. (Signed by Judge Valerie E. Caproni on 6/14/2021) Filed In Associated Cases: 1:14-md-02573-VEC et al. (ama) Modified on 6/15/2021 (ama).

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK DATE FILED:
IN RE LONDON SILVER FIXING, LTD.
ANTITRUST LITIGATION
This Document Relates to:

14-MD-02573-VEC
14-MC-02573-VEC
The Honorable Valerie E. Caproni

ALL ACTIONS

FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE OF
DEUTSCHE BANK AG, DEUTSCHE BANK AMERICAS HOLDING CORPORATION,
DB U.S. FINANCIAL MARKETS HOLDING CORPORATION, DEUTSCHE BANK
SECURITIES, INC., DEUTSCHE BANK TRUST CORPORATION, DEUTSCHE BANK
TRUST COMPANY AMERICAS, AND DEUTSCHE BANK AG NEW YORK BRANCH
This matter came before the Court for a duly-noticed hearing on April 8, 2021 (the “Fairness
Hearing”), upon the Representative Plaintiffs Christopher DePaoli, John Hayes, Laurence Hughes,
KPFF Investment, Inc. f/k/a KP Investment, Inc., Kevin Maher, J. Scott Nicholson, and Don Tran’s
(“Representative Plaintiffs”) Motion for Final Approval of Settlement with Deutsche Bank AG;
Deutsche Bank Americas Holding Corporation, DB U.S. Financial Markets Holding Corporation,
Deutsche Bank Securities, Inc.; Deutsche Bank Trust Corporation, Deutsche Bank Trust Company
Americas; Deutsche Bank AG New York Branch, and their subsidiaries and affiliates (collectively,
“Deutsche Bank”), which was consented to by Deutsche Bank (together with Representative
Plaintiffs, the “Parties”). 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:
1.

This Final Judgment hereby incorporates by reference the definitions in the

Stipulation and Agreement of Settlement with Deutsche Bank dated September 6, 2016 (the

“Settlement Agreement”), and all terms used herein, except as otherwise expressly defined herein,
shall have the same meanings as set forth in the Settlement Agreement.
2.

The Court finds that it has subject matter jurisdiction under 28 U.S.C. § 1331 to

enter this Final Judgment and that it has personal jurisdiction over Representative Plaintiffs,
Deutsche Bank (in this Action only and for purposes of this Settlement), and all Settlement Class
Members.
3.

All Plaintiff Released Claims against the DB Released Parties are hereby dismissed

with prejudice on the merits as to Deutsche Bank and without fees or costs.
4.

Upon the Settlement Agreement becoming final in accordance with its terms, all of

the following claims shall be released. Specifically:
(A)
The Plaintiff Releasing Parties finally and forever release and discharge from,
and covenant not to sue or assist any third party in commencing or maintaining any
suit or action against, the DB Released Parties for any and all manner of claims,
including Unknown 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), 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), known or unknown, suspected or
unsuspected, asserted or unasserted, which any Class Plaintiffs or Class Members ever
had, now has, or hereafter can, shall or may have, representatively, derivatively or in
any other capacity, against the DB Released Parties arising from or relating in any way
to conduct alleged in the Action or that could have been alleged in the Action against
the DB Released Parties, regardless of the source of law or other authority relied upon,
concerning U.S.-Related Transactions in any Silver Instrument at any time from
January 1, 1999 through the date of the Settlement Agreement (the “Plaintiff Released
Claims”). The definition of “Plaintiff Released Claims” is intended to have the
broadest possible application, but, for the avoidance of doubt, Plaintiff Released
Claims does not include claims that arise exclusively under foreign law and that relate
to transactions in Silver Instruments for which irrevocable liability was incurred, or
title was passed, entirely outside the United States.
(B)
The DB Releasing Parties finally and forever release and discharge from and
covenant not to sue the Plaintiff Released Parties for any and all manner of claims,
including Unknown 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), whether
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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), known or unknown, suspected or
unsuspected, asserted or unasserted, which any DB Releasing Parties ever had, now
has, or hereafter can, shall or may have, representatively, derivatively or in any other
capacity, against the Plaintiff Released Parties arising from or relating in any way to the
prosecution of the Action (the “DB Released Claims”).
(C)
“Unknown Claims” is understood to mean any claims against the released
party which releasing party does not know or suspect to exist in his, her, or its favor
as of the effective date of this Agreement, which if known might have affected his,
her, or its decision(s) with respect to the settlement. With respect to any and all of
such claims, the Parties stipulate and agree that by operation of the Final Judgment,
upon the Effective Date, the Releasing Parties shall have expressly waived, and each
Plaintiff Releasing Party and DB Releasing Party shall be deemed to have waived, and
by operation of the Final Judgment shall have expressly waived, the provisions, rights
and benefits of Cal. Civ. Code §1542, which provides:
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 Cal. Civ. Code §1542. The 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 release. Nevertheless, the Plaintiff Releasing
Parties shall expressly, fully, finally, and forever settle and release, and each Settlement
Class member upon the Effective Date, shall be deemed to have, and by operation of
the Final Judgment shall have, fully, finally, and forever settled and released, any and
all Plaintiff Released Claims, whether or not concealed or hidden, without regard to
the subsequent discovery or existence of such different or additional facts. The DB
Releasing Parties shall expressly, fully, finally, and forever settle and release, and by
operation of the Final Judgment shall have, fully, finally, and forever settled and
released, any and all DB Released Claims, whether or not concealed or hidden, without
regard to the subsequent discovery or existence of such different or additional facts.
The Parties acknowledge that the inclusion of “Unknown Claims” in the definition of
the Plaintiff and DB Released Claims was separately bargained for and was a key
element of this Settlement Agreement.

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5.

The Court, finding no just reason for delay, directs pursuant to Rule 54(b) of the

Federal Rules of Civil Procedure that the judgment of dismissal as to Deutsche Bank shall be final
and entered forthwith.

IT IS SO ORDERED.

____________________________
_
______________________________
ONORABLE V
R
E. CAPRO
HONORABLE VALERIE E. CAPRONI
UNITED STATES DISTRICT JUDGE

Date: _____________________, 2021.

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