FrontPoint Asian Event Driven Fund, Ltd. et al v. Citibank, N.A. et al

Filing 515

ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT WITH DEUTSCHE BANK AG, SCHEDULING A HEARING FOR FINAL APPROVAL THEREOF, AND APPROVING THE PROPOSED FORM AND PROGRAM OF NOTICE TO THE CLASS. IT IS HEREBY ORDERED that: The Court finds that it has subject matter jurisdiction to preliminarily approve the Settlement Agreement, including all exhibits thereto, and the Settlement contained therein under 28 U.S.C. § 1331. Solely for purposes of the Settlement, the Settlement Class is hereby preliminarily certified and maintained as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Court finds that the applicable provisions of Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure have been sati sfied and that the Court will likely be able to approve the Settlement and certify the Settlement Class for purposes of judgment. The Settlement Class is defined as further set forth in this Order. The Court hereby appoints Lowey Dannenberg, P.C. as Class Counsel to such Settlement Class for purposes of the Settlement, having determined that the requirements of Rule 23(g) of the Federal Rules of Civil Procedure are fully satisfied by this appointment. The Court appoints A.B. Data, Ltd. as Settlement Administrator for purposes of the Settlement. Fund Liquidation Holdings LLC, Moon Capital Partners Master Fund Ltd., and Moon Capital Master Fund Ltd. are hereby appointed as representatives of the Settlement Class. A hearing will be h eld on or about November 29, 2022 at 12 p.m. in Courtroom 140 of this Courthouse before the undersigned to consider the fairness, reasonableness, and adequacy of the Settlement (the "Fairness Hearing"). All proceedings in this Action as to Deutsche Bank, other than such proceedings as may be necessary to implement the proposed Settlement or to effectuate the terms of the Settlement Agreement, are hereby stayed and suspended until further order of this Court. The Court prelimina rily approves the establishment of the Settlement Fund defined in the Settlement Agreement (the "Settlement Fund") as a qualified settlement fund pursuant to Section 468B of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. The Court appoints Citibank, N.A. to act as Escrow Agent for the Settlement Fund. Class Counsel shall file their motions for payment of attorneys' fees and reimbursement of expenses, incentive awards, and for final approval of the Settlement on or before October 3, 2022; and reply papers, if any, shall be filed no later than seven (7) days before the Fairness Hearing. IT IS SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 6/9/22) (yv)

Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 1 of 15

UNITED ST ATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

FUND LIQUIDATION HOLDINGS LLC, as assignee
and successor-in-interest to FrontPoint Asian Event
Driven Fund L.P., MOON CAPITAL PARTNERS
MASTER FUND LTD., and MOON CAP IT AL
MASTER FUND LTD., on behalf of themselves and
all others similarly situated,

j

Docket No. I 6-cv-05263 (AKH)

Plaintiffs,
-v.-

CITIBANK, N.A., BANK OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A., THE ROYAL
BANK OF SCOTLAND PLC, UBS AG, BNP
PARIBAS, S.A., OVERSEA-CHINESE BANKING
CORPORATION LTD., BARCLAYS BANK PLC,
DEUTSCHE BANK AG, CREDIT AGRICOLE
CORPORA TE AND INVESTMENT BANK, CREDIT
SUISSE AG, STANDARD CHARTERED BANK, DBS
BANK LTD., ING BANK, N.V., UNITED OVERSEAS
BANK LIMITED, AUSTRALIA AND NEW
ZEALAND BANKING GROUP, LTD., THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., THE HONGKONG
AND SHANGHAI BANKING CORPORATION
LIMITED, COMMERZBANK AG, AND JOHN DOES
NOS. 1-50,
Defendants.

1AM:ENBEE> PROPO~EDJ ORDER
PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT WITH
DEUTSCHE BANK AG, SCHEDULING A HEARING FOR
FINAL APPROVAL THEREOF, AND APPROVING THE PROPOSED FORM
AND PROGRAM OF NOTICE TO THE CLASS

Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 2 of 15

Plaintiffs Fund Liquidation Holdings LLC (as assignee and successor-in-interest to
FrontPoint Asian Event Driven Fund L.P.), Moon Capital Partners Master Fund Ltd., and Moon
Capital Master Fund Ltd. ( collectively, "Representative Plaintiffs") and the Settlement Class,
having applied for an order preliminarily approving the proposed settlement ("Settlement") of this
Action against Defendant Deutsche Bank AG ("Deutsche Bank") in accordance with the
Stipulation and Agreement of Settlement entered into on March 17, 2022 (the "Settlement
Agreement") between Representative Plaintiffs and Deutsche Bank; the Court having read and
considered the Settlement Agreement and accompanying documents; and Representative Plaintiffs
and Deutsche Bank (collectively, the "Parties") having consented to the entry of this Order,
NOW, THEREFORE, on this_ day of _ _ _ _ , 20_, upon application of the Parties,

IT IS HEREBY ORDERED that:

1.

Except for the terms expressly defined herein, the Court adopts and incorporates

the definitions in the Settlement Agreement for the purposes of this Order.
2.

The Court finds that it has subject matter jurisdiction to preliminarily approve the

Settlement Agreement, including all exhibits thereto, and the Settlement contained therein under
28 U.S.C. § 1331.
3.

Solely for purposes of the Settlement, the Settlement Class is hereby preliminarily

certified and maintained as a class action, pursuant to Rule 23 of the Federal Rules of Civil
Procedure. The Court finds that the applicable provisions of Rules 23(a) and 23(b)(3) of the
Federal Rules of Civil Procedure have been satisfied and that the Court will likely be able to
approve the Settlement and certify the Settlement Class for purposes of judgment. The Settlement
Class is defined as:
All Persons (including both natural persons and entities) who purchased,
sold, held, traded, or otherwise had any interest in SIBOR- and/or SOR-based

Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 3 of 15

Derivatives I during the period of January I, 2007 to December 31, 20 I I (the "Class
Period"). Excluded from the Settlement Class are the Defendants and any parent,
subsidiary, affiliate or agent of any Defendant or any co-conspirator whether or not
named as a Defendant, and the United States Government.
4.

Notwithstanding the sentence above that "[e]xcluded from the Settlement Class are

the Defendants and any parent, subsidiary, affiliate or agent of any Defendant or any co-conspirator
whether or not named as a Defendant, and the United States Government," and solely for purposes
of this Settlement and this Settlement Class, Investment Vehicles 2 are not to be excluded from the
Settlement Class solely on the basis of being deemed to be Defendants or affiliates or subsidiaries
of Defendants. However, to the extent that any Defendant or any entity that might be deemed to
be an affiliate or subsidiary thereof (i) managed or advised, and (ii) directly or indirectly held a
beneficial interest in, said Investment Vehicle during the Class Period, that beneficial interest in
the Investment Vehicle is excluded from the Settlement Class. Under no circumstances may any
Defendant (or any of their direct or indirect parents, subsidiaries, affiliates, or divisions) receive a
distribution for its own account from the Settlement Fund through an Investment Vehicle.
5.

The Court hereby appoints Lowey Dannenberg, P.C. as Class Counsel to such

Settlement Class for purposes of the Settlement, having detennined that the requirements of Rule
23(g) of the Federal Rules of Civil Procedure are fully satisfied by this appointment.

1

"SIBOR- and/or SOR-Hased Derivatives" means (i) a SIBOR- and/or SOR-based interest rate swap entered into by
a U.S. Person. or by a Person from or through a location within the U.S.; (ii) an option on a SIBOR- and/or a SORbased interest rate swap ("swaption") entered into by a U.S. Person, or by a Person from or through a location within
the U.S.; (iii) a Singapore Dollar ct11Tency forward agreement entered into by a U.S. Person, or by a Person from or
through a location within the U.S.; (iv) a SIBOR- and/or SOR-based forward rate agreement entered into by a U.S.
Person, or by a Person from or through a location within the U.S; and/or (v) a SIBOR- and/or SOR-based foreign
exchange swap entered into by a U.S. Person, or by a Person from or through a location within the U.S.
2

"Investment Vehicles" means any investment company, separately managed account or pooled investment fund.
including, but not limited to: (i) mutual fund families. exchange-traded funds. fund of funds and hedge funds; and (ii)
employee benefit plans.

2

Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 4 of 15

6.

The Court appoints A.B. Data, Ltd. as Settlement Administrator for purposes of the

Settlement.
7.

Fund Liquidation Holdings LLC, Moon Capital Partners Master Fund Ltd., and

Moon Capital Master Fund Ltd. are hereby appointed as representatives of the Settlement Class.
8.

1'f

A hearing will be held on or about November;,,!, 2022 at

/2,. [a.mtG)i in

Courtroom 140 of this Courthouse before the undersigned to consider the fairness, reasonableness,
and adequacy of the Settlement (the "Fairness Hearing"). The foregoing date, time, and venue of
the Fairness Hearing shall be set forth in the Class Notice, which is ordered herein, but shall be
subject to adjournment or change by the Court without further notice to the Class Members, other
than

that

which

may

be

posted

at

the

Court

or

on

the

Settlement website

at

www.siborsettlement.com.
9.

The Court reserves the right to approve the Settlement at or after the Fairness

Hearing with such modifications as may be consented to by the Parties and without further notice
to the Settlement Class.
10.

The terms of the Settlement Agreement are hereby preliminarily approved. The

Court finds that the Settlement was entered into at arm's length by experienced counsel and is
sufficiently within the range of reasonableness, fairness, and adequacy, and that notice of the
Settlement should be given as provided in this Order because the Court will likely be able to
approve the Settlement under Rule 23(e)(2) of the Federal Rules of Civil Procedure. The tenns of
the Distribution Plan, the Supplemental Agreement, and the Proof of Claim and Release also are
preliminarily approved as within the range ofreasonableness, fairness, and adequacy.

3

~

Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 5 of 15

11.

All proceedings in this Action as to Deutsche Bank, other than such proceedings as

may be necessary to implement the proposed Settlement or to effectuate the terms of the Settlement
Agreement, are hereby stayed and suspended until further order of this Court.
12.

All Class Members and their legally authorized representatives, unless and until

they have submitted a valid request for exclusion from the Settlement Class (hereinafter, "Request
for Exclusion"), are hereby preliminarily enjoined: (i) from filing, commencing, prosecuting,
intervening in, or participating as a plaintiff, claimant, or class member in any other lawsuit or
administrative, regulatory, arbitration, or other proceeding in any jurisdiction based on the
Released Claims; (ii) from filing, commencing, or prosecuting a lawsuit or administrative,
regulatory, arbitration, or other proceeding as a class action on behalf of any Class Members
(including by seeking to amend a pending complaint to include class allegations or seeking class
certification in a pending action), based on the Released Claims; and (iii) from attempting to effect
an opt-out of a group, class, or subclass of individuals in any lawsuit or administrative, regulatory,
arbitration, or other proceeding based on the Released Claims.
13.

Within thirty (30) days after entry of this Order, the Settlement Administrator shall

cause copies of the long form notice, in the form (without material variation) of Exhibit

to the

Declaration of Vincent Briganti dated May 27, 2022 (the "Briganti Deel."), to begin being mailed
by United States first class mail, postage prepaid, as described in the proposed notice program
attached to the Declaration of Linda V. Young, dated May 13, 2022 (the ''Young Deel."). ECF
No. 4 73-7. The foregoing mailings shall be substantially completed no later than September 19,
2022.
14.

Commencing no later than thirty (30) days after entry of this Order, the Settlement

Administrator shall cause to be published a short fonn notice, without material variation from

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 6 of 15

Exhibit_ to the Briganti Deel., as described in the proposed notice program attached to the Young
Deel. ECF No. 473-7. Prior to the Effective Date of the Settlement, all reasonable notice and
administration costs up to $500,000 may be paid as set forth in the Settlement Agreement without
further order of the Court.
15.

The

Settlement

Administrator

shall

maintain

a

Settlement

website,

www.siborsettlement.com, beginning on the first date of publication notice to the Class and
remaining until the termination of the administration of the Settlement. The website shall include
copies of the Settlement Agreement (including exhibits), this Order, the long form and short form
notices, the motion for preliminary approval and all exhibits attached thereto, and the Distribution
Plan, and shall identify important deadlines and provide answers to frequently asked questions.
The website may be amended as appropriate during the course of the administration of the
Settlement.
16.

The Settlement Administrator shall maintain a toll-free interactive voice response

telephone system containing recorded answers to frequently asked questions, along with an option
pennitting callers to speak to live operators or to leave messages in a voicemail box.
17.

The Court approves, in form and substance, the long form notice, the short fon11

notice, and the website as described herein. The Class Notice plan specified herein: (i) is the best
notice practicable under the circumstances; (ii) is reasonably calculated, under the circumstances,
to apprise Class Members of the pendency and status of this Action and of their right to participate
in, object to or exclude themselves from the proposed Settlement; (iii) is reasonable and constitutes
due, adequate, and sufficient notice to all persons entitled to receive notice of the Fairness Hearing;
and (iv) fully satisfies all applicable requirements of Rule 23 of the Federal Rules of Civil
Procedure, and Due Process.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 7 of 15

18.

On or before October 3, 2022, the Settlement Administrator shall serve and file a

sworn statement attesting to compliance with the notice provisions in paragraphs 13-16 of this
Order.
19.

Any Class Member and any governmental entity that objects to the fairness,

reasonableness, or adequacy of any term or aspect of the Settlement, the application for attorneys'
fees and expenses or incentive awards, or the Final Approval Order and Final Judgment, or who
otherwise wishes to be heard, may participate personally or through his or her attorney at the
Fairness Hearing and present evidence or argument that may be proper and relevant. However,
except for good cause shown, no person other than Class Counsel and Deutsche Bank's counsel
shall be heard and no papers, briefs, pleadings, or other documents submitted by any Class Member
or any governmental entity shall be considered by the Court unless, not later than October 17,
2022, the Class Member or the governmental entity files with the Court (and serves the same on
or before the date of such filing by hand or overnight mail on Class Counsel and counsel of record
for Deutsche Bank) a statement of the objection, as well as the specific legal and factual reasons
for each objection, including all support that the objecting Class Member or the governmental
entity wishes to bring to the Court's attention and all evidence the objecting Class Member or
governmental entity wishes to introduce in support of his, her, or its objection or motion. Such
submission must contain: (1) the name, address, telephone number and email address of the Person
or entity objecting and must be signed by the objector (an attorney's signature is not sufficient);
(2) a heading that refers to this Action by case name and case number (Fund Liquidation Holdings

LLC, et al. v. Citibank. NA., et al., No. 1:16-cv-05263 (AKH) (S.D.N.Y.)); (3) a statement of the
Class Member's or governmental entity's objection or objections, and the specific legal and factual
basis for each objection argument, including any legal and evidentiary support the Class Member

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 8 of 15

or governmental entity wishes to bring to the Court's attention; (4) whether the objection applies
only to the objecting Person or entity, a specific subset of the Class, or the entire Class; (5)
documentary proof of the objecting Person's or entity's membership in the Settlement Class
including a description of the SIBOR- and/or SOR-Based Derivatives transactions entered into by
the Class Member that fall within the Settlement Class definition (including, for each transaction,
the identity of the counterparty to the transaction, the date of the transaction, the type of the
transaction, any transaction identification numbers, the rate, and the notional amount of the
transaction); (6) a statement of whether the objecting Person or entity intends to participate at the
Fairness Hearing, either in person or through counsel and, if through counsel, a statement
identifying that counsel by name, address, telephone number, and email address; (7) a list of other
cases in which the objector or counsel for the objector has appeared either as an objector or counsel
for an objector in the last five years; and (8) a description of any and all evidence the objecting
Person or entity may offer at the Fairness Hearing, including but not limited to the names,
addresses, and expected testimony of any witnesses; and all exhibits intended to be introduced at
the Fairness Hearing. Persons or entities who have timely submitted a valid Request for Exclusion
are not Class Members and are not entitled to object.
20.

Any objection to the Settlement submitted by a Class Member or governmental

entity pursuant to paragraph 19 of this Order must be signed by the Class Member or governmental
entity (or his, her, or its legally authorized representative), even if the Class Member or
governmental entity is represented by counsel. The right to object to the proposed Settlement must
be exercised individually by a Class Member or governmental entity, or the Person's or entity's
attorney, and not as a member of a group, class, or subclass, except that such objections may be
submitted by a Class Member's or governmental entity's legally authorized representative.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 9 of 15

21.

Objectors may, in certain circumstances, be required to make themselves available

to be deposed by any Party in the Southern District of New York or the county of the objector's
residence or principal place of business within seven (7) days of service of the objector's timely
written objection.
22.

Any Class Member or governmental entity that fails to object in the manner

described in paragraphs 19-21 of this Order shall be deemed to have waived the right to object
(including any right of appeal) and shall be forever barred from raising such objection in this or
any other action or proceeding related to or arising out of the Settlement. Discovery concerning
any purported objections to the Settlement shall be completed no later than fourteen ( 14) days
before the Fairness Hearing. Class Counsel, Deutsche Bank's counsel, and any other Persons
wishing to oppose timely-filed objections in writing may do so not later than seven (7) days before
the Fairness Hearing.
23.

Any Request for Exclusion from the Settlement by a Class Member must be sent in

writing by U.S. first class mail (or, if sent from outside the U.S., by a service that provides for
guaranteed delivery within five (5) or fewer calendar days of mailing) to the Settlement
Administrator at the address in the long form notice and received no later than October 17, 2022
(the "Exclusion Bar Date"). Any Request for Exclusion must contain the following information:
(a)

the name, address, telephone number, and email address of the Person
or entity seeking exclusion, and in the case of entities, the name,
telephone number, and email address of the appropriate contact
person;

(b)

a statement that such Person or entity requests to be excluded from the
Settlement Class in this Action (Fund Liquidation Holdings LLC, et
al. v. Citibank, N.A., et al., No. 16-cv-05263 (AKH) (S.D.N.Y.)); and

(c)

one or more document(s) sufficient to prove membership in the
Settlement Class, as well as proof of authorization to submit the
Request for Exclusion if submitted by an authorized representative.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 10 of 15

With respect to the kinds of documents that are requested under subsection ( d) of this Paragraph,
any Class Member seeking to exclude himself, herself or itself from the Settlement Class is also
requested to and may opt to provide one or more documents(s) evidencing eligible trading in
SIBOR- and/or SOR-Based Derivatives during the Class Period (including for each transaction,
the date, time and location of the transaction, the instrument type, direction (i.e., purchase or sale)
of the transaction, the counterparty, any transaction identification numbers, and the total amount
transacted (in Singapore Dollars (SGD))).
24.

Any Request for Exclusion from the Settlement submitted by a Class Member

pursuant to paragraph 23 of this Order must be signed by the Class Member ( or his, her, or its
legally authorized representative), even if the Class Member is represented by counsel. The right
to be excluded from the proposed Settlement must be exercised individually by a Class Member
or his, her, or its attorney, and not as a member of a group, class, or subclass, except that a Request
for Exclusion may be submitted by a Class Member's legally authorized representative. A Request
for Exclusion shall not be effective unless it provides all of the required information listed in
paragraph 23 of this Order, complies with this paragraph 24, and is received by the Exclusion Bar
Date, as set forth in the Class Notice. The Parties may seek discovery, including by subpoena,
from any Class Member who submits any Request for Exclusion limited to information the Parties
require for purposes of determining whether the confidential provision setting forth certain
conditions under which the Settlement may be terminated if potential Class Members who meet
certain criteria exclude themselves from the Settlement Class has been triggered.
25.

Any Class Member who does not submit a timely and valid written Request for

Exclusion from the Settlement Class shall be bound by all proceedings, orders, and judgments in
the Action, even if the Class Member has previously initiated or subsequently initiates individual

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 11 of 15

litigation or other proceedings encompassed by the Released Claims, and even if such Class
Member never received actual notice of the Action or the proposed Settlement.
26.

The Settlement Administrator shall promptly log each Request for Exclusion that

it receives and provide copies of the log or Request for Exclusion to Class Counsel and Deutsche
Bank's counsel as requested.
27.

The Settlement Administrator shall furnish Class Counsel and counsel for Deutsche

Bank with copies of any and all objections, notices of intention to appear, and other
communications that come into its possession (except as otherwise expressly provided in the
Settlement Agreement) within one ( 1) Business Day of receipt thereof.
28.

Within five (5) Business Days following the Exclusion Bar Date, the Settlement

Administrator shall prepare an opt-out list identifying all Persons, if any, who submitted a timely
and valid Request for Exclusion from the Settlement Class, as provided in the Settlement
Agreement, and an affidavit attesting to the accuracy of the opt-out list.

The Settlement

Administrator shall provide counsel for Deutsche Bank and Class Counsel with copies of any
Requests for Exclusion (including all documents submitted with such requests) and any written
revocations of Requests for Exclusion as soon as possible after receipt by the Settlement
Administrator and, in any event, within one (I) Business Day after receipt by the Settlement
Administrator and, in no event, later than five (5) Business Days after the Exclusion Bar Date.
Class Counsel shall file the opt-out list and affidavit of the Settlement Administrator attesting to
the accuracy of such list with the Court.
29.

All Proofs of Claim and Release shall be submitted by Class Members to the

Settlement Administrator as directed in the long form notice and must be postmarked no later than
thirty (30) days after the Fairness Hearing.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 12 of 15

30.

To effectuate the Settlement and the notice prov1s10ns, the Settlement

Administrator shall be responsible for: (a) establishing a P.O. Box (to be identified in the long
form notice and the short form notice), a toll-free interactive voice response telephone system and
call center, and a website for the purpose of communicating with Class Members; (b) effectuating
the Class Notice plan, including by running potential Class Members' addresses through the
National Change of Address Database to obtain the most current address for each person; (c)
accepting and maintaining documents sent from Class Members, including Proofs of Claim and
Release, and other documents relating to the Settlement and its administration; (d) administering
claims for allocation of funds among Class Members; (e) determining the timeliness of each Proof
of Claim and Release submitted by Class Members, and the adequacy of the supporting documents
submitted by Class Members; (f) corresponding with Class Members regarding any deficiencies
in their Proofs of Claim and Release and regarding the final value of any allowed claim; (g)
calculating each Authorized Claimant's allowed claim pursuant to the Distribution Plan; (h)
determining the timeliness and validity of all Requests for Exclusion received from Class
Members; (i) preparing the opt-out list and an affidavit attaching and attesting to the accuracy of
such list, and providing same to Class Counsel and counsel for Deutsche Bank; and (j) providing
Class Counsel and counsel for Deutsche Bank with copies of any Requests for Exclusion
(including all documents submitted with such requests).
31.

The Settlement Administrator shall maintain a copy of all paper communications

related to the Settlement for a period of one (1) year after distribution of the Net Settlement Fund
and shall maintain a copy of all electronic communications related to the Settlement for a period
of three (3) years after distribution of the Net Settlement Fund, after which time all such materials
shall be destroyed, absent further direction from the Parties or the Court.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 13 of 15

32.

The Court preliminarily approves the establishment of the Settlement Fund defined

in the Settlement Agreement (the "Settlement Fund") as a qualified settlement fund pursuant to
Section 468B of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder.
33.

The Court appoints Citibank, N.A. to act as Escrow Agent for the Settlement Fund.

34.

Neither the Settlement Agreement (nor any of its exhibits), whether or not it shall

become Final, nor any negotiations, documents, and discussions associated with it, nor the
Preliminary Approval Order nor the Final Approval Order and Final Judgment are or shall be
deemed or construed to be an admission, adjudication, or evidence of: (a) any violation of any
statute or law or of any liability or wrongdoing by Deutsche Bank; (b) the truth of any of the claims
or allegations alleged in the Action; (c) the incurrence of any damage, loss, or injury by any Person;
(d) the existence or amount of any manipulation or artificiality of the prices for SIBOR- and/or
SOR-Based Derivatives; (e) any fault or omission of Deutsche Bank in any civil, criminal, or
administrative proceeding in any court, administrative agency, or other tribunal; or (f) the propriety
of certification of a class other than solely for purposes of the Settlement. Further, neither the
Settlement Agreement (including its exhibits), whether or not it shall become Final, nor any
negotiations, documents, and discussions associated with it, nor the Final Approval Order and
Final Judgment, may be discoverable or used directly or indirectly, in any way, whether in the
Action or in any other action or proceeding of any nature, whether by the Settlement Class or any
Person, except if warranted by existing law in connection with a dispute under the Settlement
Agreement or an action in which such documents are asserted as a defense. All rights of Deutsche
Bank and Representative Plaintiffs are reserved and retained if the Settlement does not become
Final in accordance with the terms of the Settlement Agreement.

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 14 of 15

3 5.

Class Counsel shall file their motions for payment of attorneys' fees and

reimbursement of expenses, incentive awards, and for final approval of the Settlement on or before
October 3, 2022; and reply papers, if any, shall be filed no later than seven (7) days before the
Fairness Hearing.
36.

If the Settlement is approved by the Court following the Fairness Hearing, a Final

Approval Order and Final Judgment will be entered as described in the Settlement Agreement.
37.

The Court may, for good cause, extend any of the deadlines set forth in this Order

without notice to Class Members, other than that which may be posted at the Court or on the
Settlement website, www.siborsettlement.com.
38.

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

terminated Settlement Agreement and all proceedings had in connection therewith, including but
not limited to all negotiations, documents, and discussions associated with it, and any Requests for
Exclusion from the Settlement previously submitted and deemed to be valid and timely, shall be

null and void and be of no force and effect, except as expressly provided to the contrary in the
Settlement Agreement, and shall be without prejudice to the status quo ante rights of the Parties.
39.

If the Settlement is terminated or is ultimately not approved, the Court will modify

any existing scheduling order to ensure that the Parties will have sufficient time to prepare for the
resumption of litigation.
40.

The Court's preliminary certification of the Settlement Class and appointment of

Representative Plaintiffs as class representatives, as provided herein, are without prejudice to, or
waiver of, the rights of any non-settling Defendant to contest any other request by Representative
Plaintiffs to certify a class. The Court's findings in this Preliminary Approval Order shall have no
effect on the Court's ruling on any motion to certify any class in the Action, or appoint class

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Case 1:16-cv-05263-AKH Document 515 Filed 06/09/22 Page 15 of 15

representatives, and no Person may cite or refer to the Court's approval of the Settlement Class as
binding or persuasive authority with respect to any motion to certify such class or appoint class
representatives.
41.

Unless otherwise specified, the word "days,'' as used herein, means calendar days.

In the event that any date or deadline set forth herein falls on a weekend or federal or state legal
holiday, such date or deadline shall be deemed moved to the first Business Day thereafter.

IT IS SO ORDEREY,:"

Signed this l1/day of_"F"'-~,.._.,_20 7 ,S:nhe Courthouse for the United States District
v'/

Court for the Sout em Dis~ic

The Honorable Alvin K. Hellerstein
United States District Judge

14