FTC Capital GMBH v. Credit Suisse Group AG

Background

This proposed final judgment concerns the exchange-based plaintiffs’ class action in the multidistrict litigation titled In re LIBOR-Based Financial Instruments Antitrust Litigation. The court held a fairness hearing on September 17, 2020, regarding the exchange-based plaintiffs’ request for final approval of settlements with several defendants, including Barclays Bank plc. This order specifically addresses the settlement with Barclays.

The settlement concerns claims arising from transactions in LIBOR-based Eurodollar futures or options on exchanges such as the Chicago Mercantile Exchange during the period from January 1, 2003, through May 31, 2011. The court defined the settlement class as all persons who made those transactions during that period, excluding defendants, their employees, affiliates, parents, subsidiaries, and co-conspirators.

Class Certification and Notice

For settlement purposes only, the court finally certified the settlement class under Rule 23 of the Federal Rules of Civil Procedure, the rule governing class actions. The court found that the class met the requirements of Rules 23(a) and 23(b)(3), including sufficient numbers to make individual lawsuits impracticable, common legal and factual questions, representative claims, adequate representation, and superiority of the class action over other available methods.

The court designated Lovell Stewart Halebian Jacobson LLP and Kirby McInerney LLP as settlement class counsel, also solely for settlement purposes. It found that the mailed notice, publication notice, website, and other notice efforts were the best practicable notice under the circumstances and adequately informed class members about the action, their rights to opt out or object, the fairness hearing, the distribution plan, and the request for attorneys’ fees and expenses. The court confirmed A.B. Data, Ltd. as settlement administrator.

Class members who timely and validly requested exclusion were excluded from the settlement, were not bound by the final judgment, and could not claim benefits from the settlement. The order identifies six opt-outs, including the National Credit Union Administration as liquidating agent for specified credit unions; Salix Capital US, Inc.; the City of Philadelphia and the Pennsylvania Intergovernmental Corporation Authority; specified Prudential investment funds; Darby Financial Products and Capital Ventures International; and Federal Home Loan Mortgage Corporation.

Settlement Approval and Effect

Under Rule 23(e)(2), the court finally approved the settlement and found it fair, reasonable, adequate, and in the best interests of the settlement class, including the exchange-based plaintiffs. The court found that the settlement resulted from arm’s-length negotiations between experienced counsel and that the plaintiffs and class counsel adequately represented the class for settlement purposes. The parties were directed to carry out the settlement agreement according to its terms.

The court dismissed with prejudice all released claims of settlement class members against Barclays and the other parties defined as releasees, except for individual claims belonging to opt-outs. “With prejudice” means those released claims were permanently dismissed and could not be brought again. The order expressly stated that the exchange-based plaintiffs’ claims against non-settling defendants were not dismissed.

The order approved releases covering claims related to the alleged conduct involving Eurodollar futures or options, including alleged manipulation of United States dollar LIBOR and alleged conspiracies or collusion. It also barred, to the extent permitted by law, contribution or indemnification claims related to the released claims by other defendants or later-added defendants against Barclays or its releasees, and barred corresponding contribution or indemnification claims by the releasees against other defendants or persons later added to the action.

If the settlement did not become effective under the settlement agreement, the provisions dismissing the claims would become void, the claims and Barclays’ defenses would be reinstated, the settlement-class certification and approval would be vacated, and the parties would be returned to their pre-settlement positions, subject to provisions intended to survive termination.

Other Provisions and Disposition

The court approved the settlement fiduciary account as a qualified settlement fund under the Internal Revenue Code. It retained exclusive jurisdiction over implementing and enforcing the settlement, resolving settlement-related disputes, approving administration costs and fees, and approving distributions. Class members generally had to submit a proof of claim and release to receive a distribution, but the order stated that the released claims were released regardless of whether a class member submitted that form.

The order stated that the settlement and related materials were not admissions of statutory violations, liability, wrongdoing, the truth of the allegations, damages, artificial pricing, or the propriety of certifying a class for purposes other than this settlement. It also found that the exchange-based plaintiffs, Barclays, and their counsel complied with Federal Rule of Civil Procedure 11 as to each other. The court’s settlement-class certification did not affect later requests to certify other classes.

Judge Naomi Reice Buchwald ordered immediate entry of the final judgment under Rule 54(b). The request for attorneys’ fees, expense reimbursement, and settlement-class-representative service awards was reserved for a separate order.