City of Birmingham Firemen's and Policemen's Supplemental Pension System v. Credit Suisse Group AG et al

Filing 157

FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT: IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. Jurisdiction The Court has jurisdiction over the subject matter of the Action, and all matters relating to the Settlement, as well as per sonal jurisdiction over all of the Parties and each of the Settlement Class Members. After the Claims Administrator completes the administration process, Lead Counsel shall file a motion for distribution of the Settlement Fund, which shall provide the Court with information regarding the claims administration process including but not limited to the number of claims submitted, total amount of claims, total expenses incurred by the Claims Administrator to date, whether its total expenses ar e anticipated to exceed $350,000, and whether an application for cy pres distribution is anticipated. There is no just reason to delay the entry of this Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is expressly directed to enter immediately this final judgment in this Action. (And as further set forth herein.) SO ORDERED. (Signed by Judge Lorna G. Schofield on 12/16/2020) (jca)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CITY OF BIRMINGHAM RETIREMENT
AND RELIEF SYSTEM, et al.,

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) Case No: 17 Civ. 10014 (LGS)
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Plaintiff,
v.
CREDIT SUISSE GROUP AG, et al.,
Defendants.

FINAL ORDER AND JUDGMENT
APPROVING CLASS ACTION SETTLEMENT
WHEREAS, a putative class action is pending in this Court entitled City of Birmingham
Retirement and Relief System et al. v. Credit Suisse Group AG et al., No. 1:17-cv-10014-LGS (the
“Action”);
WHEREAS, (a) Lead Plaintiffs City of Birmingham Retirement and Relief System,
Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds, Teamsters
Local 456 Pension and Annuity Funds, and the International Brotherhood of Teamsters Local No.
710 Pension Plan, on behalf of themselves and the Settlement Class (defined below), and (b)
Defendants Credit Suisse Group AG (“Credit Suisse,” or the “Company”), and Brady W. Dougan,
Tidjane Thiam, and David R. Mathers (“Individual Defendants” and, together with Credit Suisse,
“Defendants”), have entered into a Stipulation And Agreement Of Settlement dated July 8, 2020
(the “Stipulation”), that provides for a complete dismissal with prejudice of the claims asserted
against Defendants in the Action on the terms and conditions set forth in the Stipulation, subject
to the approval of this Court (the “Settlement”);

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WHEREAS, unless otherwise defined in this Judgment, the capitalized terms herein shall
have the same meaning as they have in the Stipulation;
WHEREAS, the Court held a preliminary approval hearing on August 17, 2020. Following
that hearing, the Court directed the parties to provide (1) a revised notice including information
regarding the reasonableness off the Settlement amount, (2) additional information regarding
estimated deductions from the Settlement Fund and (3) details of fee sharing arrangements
between counsel. The Court also directed the parties to modify the plan of allocation to require
only reasonable investigation to determine a claimant’s status as a settlement class member and to
provide for Court-approved distribution of residual settlement funds. The parties provided the
requested information and modified the plan of allocation accordingly;
WHEREAS, by Order dated August 24, 2020 (the “Preliminary Approval Order”), this
Court: (a) preliminarily approved the Settlement; (b) certified the Settlement Class solely for
purposes of effectuating the Settlement; (c) ordered that notice of the proposed Settlement be
provided to potential Settlement Class Members; (d) provided Settlement Class Members with the
opportunity either to exclude themselves from the Settlement Class or to object to the proposed
Settlement; and (e) scheduled a hearing regarding final approval of the Settlement;
WHEREAS, due and adequate notice has been given to the Settlement Class;
WHEREAS, the Court conducted a hearing on December 10, 2020 (the “Settlement
Hearing”) to consider, among other things, (a) whether the terms and conditions of the Settlement
are fair, reasonable and adequate to the Settlement Class, and should therefore be approved; and
(b) whether a judgment should be entered dismissing the Action with prejudice as against the
Defendants; and

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WHEREAS, the Court having reviewed and considered the Stipulation, all papers filed and
proceedings held herein in connection with the Settlement, all oral and written comments received
regarding the Settlement, and the record in the Action, and good cause appearing therefor;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1.

Jurisdiction – The Court has jurisdiction over the subject matter of the Action, and

all matters relating to the Settlement, as well as personal jurisdiction over all of the Parties and
each of the Settlement Class Members.
2.

Incorporation of Settlement Documents – This Judgment incorporates and makes

a part hereof: (a) the Stipulation and (b) the Notice and the Summary Notice, both of which were
previously filed with the Court.
3.

Class Certification for Settlement Purposes – The Court hereby affirms its

determinations in the Preliminary Approval Order certifying, for the purposes of the Settlement
only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil
Procedure on behalf of the Settlement Class consisting of all persons and entities who purchased
or otherwise acquired the ADRs of Credit Suisse between March 20, 2015, and February 3, 2016,
inclusive, and who were allegedly damaged thereby. Excluded from the Settlement Class are (i)
Defendants; (ii) the officers and directors of Credit Suisse (at all relevant times); (iii) members of
their immediate families and their legal representatives, successors or assigns; and (iv) any firm or
entity in which any Defendant has or had a controlling interest. Also excluded from the Settlement
Class are the persons and entities listed on Exhibit 1 hereto who are excluded pursuant to request.
4.

Adequacy of Representation – Pursuant to Rule 23 of the Federal Rules of Civil

Procedure, and for the purposes of the Settlement only, the Court hereby affirms its determinations
in the Preliminary Approval Order certifying Lead Plaintiffs as Class Representatives for the

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Settlement Class and appointing Lead Counsel as Class Counsel for the Settlement Class. Lead
Plaintiffs and Lead Counsel have fairly and adequately represented the Settlement Class both in
terms of litigating the Action and for purposes of entering into and implementing the Settlement
and have satisfied the requirements of Federal Rules of Civil Procedure 23(a)(4) and 23(g),
respectively.
5.

Notice – The Court finds that the dissemination of the Notice and the publication

of the Summary Notice: (a) were implemented in accordance with the Preliminary Approval
Order; (b) constituted the best notice practicable under the circumstances; (c) constituted notice
that was reasonably calculated, under the circumstances, to apprise Settlement Class Members of
(i) the pendency of the Action; (ii) the effect of the proposed Settlement (including the Releases
to be provided thereunder); (iii) Lead Counsel’s motion for an award of attorneys’ fees and
reimbursement of Litigation Expenses; (iv) their right to object to any aspect of the Settlement, the
Plan of Allocation and/or Lead Counsel’s motion for attorneys’ fees and reimbursement of
Litigation Expenses; (v) their right to exclude themselves from the Settlement Class; and (vi) their
right to appear at the Settlement Hearing; (d) constituted due, adequate, and sufficient notice to all
persons and entities entitled to receive notice of the proposed Settlement; and (e) satisfied the
requirements of Rule 23 of the Federal Rules of Civil Procedure, the United States Constitution
(including the Due Process Clause), the Private Securities Litigation Reform Act of 1995, 15
U.S.C. § 78u-4, as amended, and all other applicable law and rules.
6.

Final Settlement Approval and Dismissal of Claims – Pursuant to, and in

accordance with, Rule 23 of the Federal Rules of Civil Procedure, this Court hereby fully and
finally approves the Settlement set forth in the Stipulation in all respects except as set forth in any
of the Court’s Orders (including approving, without limitation: the amount of the Settlement; the

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Releases provided for therein; and the dismissal with prejudice of the claims asserted against
Defendants in the Action), and finds that the Settlement is, in all respects, fair, reasonable and
adequate to the Settlement Class. The Parties are directed to implement, perform and consummate
the Settlement in accordance with the terms and provisions contained in the Court’s Orders and
the Stipulation.
7.

The Action and all of the claims asserted against Defendants in the Action by Lead

Plaintiffs and the other Settlement Class Members are hereby dismissed with prejudice. The
Parties shall bear their own costs and expenses, except as otherwise expressly provided for in the
Stipulation.
8.

Binding Effect – The terms of the Stipulation and of this Judgment shall be forever

binding on Defendants, Lead Plaintiffs and all other Settlement Class Members (regardless of
whether or not any individual Settlement Class Member submits a Claim Form or seeks or obtains
a distribution from the Net Settlement Fund), as well as their respective successors and assigns.
No persons or entities are excluded from the Settlement Class pursuant to request.
9.

Releases – The Releases set forth in paragraphs 5 and 6 of the Stipulation, together

with the definitions contained in paragraph 1 of the Stipulation relating thereto, are expressly
incorporated herein in all respects.

The Releases are effective as of the Effective Date.

Accordingly, this Court orders that:
(a)

Without further action by anyone, and subject to paragraph 11 below, upon

the Effective Date of the Settlement, Lead Plaintiffs and each of the other Settlement Class
Members, on behalf of themselves, and their respective heirs, executors, administrators,
predecessors, successors, and assigns, in their capacities as such, shall be deemed to have, and by
operation of the Stipulation, of law, and of this Judgment shall have, fully, finally, and forever

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compromised, settled, released, resolved, relinquished, waived and discharged each and every
Released Plaintiffs’ Claim against the Defendants’ Releasees, and shall forever be barred and
enjoined from prosecuting any or all of the Released Plaintiffs’ Claims against any of the
Defendants’ Releasees.
10.

Without further action by anyone, and subject to paragraph 11 below, upon the

Effective Date of the Settlement, Defendants, on behalf of themselves, and their respective heirs, executors,
administrators, predecessors, successors, and assigns, in their capacities as such, shall be deemed to have, and by
operation of the Stipulation, of law, and of the Judgment shall have, fully, finally, and forever compromised, settled,
released, resolved, relinquished, waived, and discharged each and every Released Defendants’ Claim against the
Plaintiffs’ Releasees, and shall forever be barred and enjoined from prosecuting any or all of the Released Defendants’
Claims against any of the Plaintiffs’ Releasees.

Upon the Effective Date, to the extent allowed by law, the

Stipulation shall operate conclusively as an estoppel and full defense in the event, and to the extent,
of any claim, demand, action, or proceeding brought by a Settlement Class Member against any
of the Defendants’ Releasees with respect to any Released Plaintiffs’ Claims, or brought by a
Defendant against any of the Plaintiffs’ Releasees with respect to any Released Defendants’
Claims.
11.

Notwithstanding paragraphs 9 through 10 above, nothing in this Judgment shall bar

any action by any of the Parties to enforce or effectuate the terms of the Stipulation or this
Judgment.
12.

Bar Order – Upon the Effective Date, all future claims and claims over by any

individual or entity against any of the Defendants’ Releasees, and by the Defendants’ Releasees
against any individual or entity, for (a) contribution or indemnity, however denominated on
whatsoever theory, based upon, arising out of, or relating to the claims or allegations asserted by
Plaintiffs in the Action, or (b) any other claim of any type, whether arising under state, federal,

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common or foreign law, for which the injury claimed is that person’s or entity’s actual or
threatened liability to Plaintiffs and/or members of the Settlement Class, are permanently barred,
extinguished, and discharged to the fullest extent permitted by law (the “Bar Order”); provided,
however, that the Bar Order shall not preclude the Defendants from seeking to enforce any rights
they may have under their applicable insurance policies or any right of indemnification or
contribution that the Individual Defendants may have under contract or based on the charter and
by-laws of Credit Suisse.
13.

Judgment Reduction – Any final verdict or judgment that may be obtained by or

on behalf of the Settlement Class or a Settlement Member against any individual or entity subject
to the Bar Order shall be reduced by the greater of: (a) an amount that corresponds to the percentage
of responsibility of the Defendants for common damages; or (b) the amount paid by or on behalf
of the Defendants to the Settlement Class or Settlement Class Member for common damages.
14.

Rule 11 Findings – The Court finds and concludes that the Parties and their

respective counsel have complied in all respects with the requirements of Rule 11 of the Federal
Rules of Civil Procedure in connection with the institution, prosecution, defense, and settlement
of the Action.
15.

No Admissions – Neither this Judgment, nor the Stipulation (whether or not

consummated), including the exhibits thereto and the Plan of Allocation contained therein (or any
other plan of allocation that may be approved by the Court), the negotiations leading to the
execution of the Stipulation, nor any proceedings taken pursuant to or in connection with the
Stipulation and/or approval of the Settlement (including any arguments proffered in connection
therewith):

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(a)

shall be offered against any of the Defendants’ Releasees as evidence of, or

construed as, or deemed to be evidence of any presumption, concession, or admission by any of
the Defendants’ Releasees with respect to the truth of any fact alleged by Lead Plaintiffs or the
validity of any claim that was or could have been asserted or the deficiency of any defense that has
been or could have been asserted in this Action or in any other litigation, or of any liability,
negligence, fault, or other wrongdoing of any kind of any of the Defendants’ Releasees or in any
way referred to for any other reason as against any of the Defendants’ Releasees, in any civil,
criminal or administrative action or proceeding (including any arbitration), other than such
proceedings as may be necessary to effectuate the provisions of the Stipulation;
(b)

shall be offered against any of the Plaintiffs’ Releasees, as evidence of, or

construed as, or deemed to be evidence of any presumption, concession or admission by any of the
Plaintiffs’ Releasees that any of their claims are without merit, that any of the Defendants’
Releasees had meritorious defenses, or that damages recoverable under the Complaint would not
have exceeded the Settlement Amount or with respect to any liability, negligence, fault or
wrongdoing of any kind, or in any way referred to for any other reason as against any of the
Plaintiffs’ Releasees, in any civil, criminal or administrative action or proceeding (including any
arbitration), other than such proceedings as may be necessary to effectuate the provisions of the
Stipulation; or
(c)

shall be construed against any of the Releasees as an admission, concession,

or presumption that the consideration to be given under the Settlement represents the amount
which could be or would have been recovered after trial; provided, however, that the Parties and
the Releasees and their respective counsel may refer to this Judgment and the Stipulation to
effectuate the protections from liability granted hereunder and thereunder or otherwise to enforce

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the terms of the Settlement.
16.

Retention of Jurisdiction – Without affecting the finality of this Judgment in any

way, this Court retains continuing and exclusive jurisdiction over: (a) the Parties for purposes of
the administration, interpretation, implementation and enforcement of the Settlement; (b) the
disposition of the Settlement Fund; (c) any motion for an award of attorneys’ fees and/or Litigation
Expenses by Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion
to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f)
the Settlement Class Members for all matters relating to the Action.
17.

Reports of Claims Administration Status – Following the entry of this Order,

Lead Counsel shall provide the Court with interim reports every forty-five days on the claims
administration process. The interim reports shall summarize the status of the claims administration
process, whether settlement administration fees are anticipated to exceed $350,000, and whether
an application for cy pres distribution is anticipated.
18.

Report Following Completion of Claims Administration – After the Claims

Administrator completes the administration process, Lead Counsel shall file a motion for
distribution of the Settlement Fund, which shall provide the Court with information regarding the
claims administration process including but not limited to the number of claims submitted, total
amount of claims, total expenses incurred by the Claims Administrator to date, whether its total
expenses are anticipated to exceed $350,000, and whether an application for cy pres distribution
is anticipated.
19.

Summary of Distribution –After the Settlement Fund is distributed to Class

members and, in the opinion of the Claims Administrator and Lead Counsel, there are no remaining
funds to be distributed or there are insufficient funds to make a further distribution economically

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feasible, Lead Counsel shall file with the Court a further motion which shall provide the Court
with information regarding the claims administration process including but not limited to the
amount of the Settlement Fund distributed to Class members and, if warranted, an application for
cy pres distribution and/or application for payment of and claims administration fees in excess of
$350,000.
20.

Plan of Allocation and Attorneys’ Fees – Separate orders will be entered

regarding approval of a plan of allocation and the motion of Lead Counsel for an award of
attorneys’ fees and reimbursement of Litigation Expenses. Such orders shall in no way affect or
delay the finality of this Judgment and shall not affect or delay the Effective Date of the Settlement.
21.

Reasonable Extensions of Time – Without further order of the Court, Lead

Plaintiffs and Defendants may agree to reasonable extensions of time to carry out any provisions
of the Settlement.
22.

Termination of Settlement – If the Settlement is terminated as provided in the

Stipulation or the Effective Date of the Settlement otherwise fails to occur, this Judgment shall be
vacated, rendered null and void and be of no further force and effect, except as otherwise provided
by the Stipulation, and this Judgment shall be without prejudice to the rights of Lead Plaintiffs, the
other Settlement Class Members and Defendants, and the Parties shall revert to their respective
positions in the Action as of July 8, 2020, as provided in the Stipulation.
23.

Entry of Final Judgment – There is no just reason to delay the entry of this

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Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is expressly
directed to enter immediately this final judgment in this Action.
SO ORDERED
Dated: December 16, 2020
New York, New York

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