FTC Capital GMBH v. Credit Suisse Group AG

Background

This order concerns a proposed settlement in an action brought by Metzler Investment GmbH, FTC Futures Fund SICAV, FTC Futures Fund PCC Ltd., Atlantic Trading USA, LLC, 303030 Trading LLC, Gary Francis, and Nathanial Haynes on behalf of themselves and others similarly situated. The defendants named in the caption included Credit Suisse Group AG, Credit Suisse AG, Bank of America Corporation, and other financial institutions. The order addressed the Exchange-Based Plaintiffs’ motion for final approval of settlements with several defendants, including Deutsche Bank. In this order, “Deutsche Bank” refers to Deutsche Bank AG, Deutsche Bank Securities Inc., and DB Group Services (UK) Limited.

The court held a fairness hearing on September 17, 2020, after previously approving the proposed notice program and preliminarily approving the settlements. The order states that notice was provided by mail, publication, a website, and other parts of the notice program. It also states that the notice gave settlement-class members an opportunity to exclude themselves, object, and appear at the fairness hearing.

Court’s actions

The court finally certified the Deutsche Bank Settlement Class solely for purposes of the settlement. It found that the class met the applicable requirements of Federal Rule of Civil Procedure 23, including numerosity, common questions, typicality, adequate representation, and superiority. The court also designated Lovell Stewart Halebian Jacobson LLP and Kirby McInerney LLP as settlement class counsel for settlement purposes.

The court finally approved the settlement under Rule 23(e)(2), finding it fair, reasonable, adequate, and in the best interests of the settlement class, including the Exchange-Based Plaintiffs. It found that the settlement resulted from arm’s-length negotiations and that the class representatives and settlement counsel adequately represented the class for purposes of entering into and implementing the settlement.

The court determined that settlement-class members were bound by the settlement and that their released claims against the releasees were dismissed with prejudice and released. Members who timely and validly opted out were excluded from the settlement, were not bound by the order, and could not claim a settlement benefit. The plaintiffs’ claims against non-settling defendants were not dismissed and were not subject to this order.

The order permanently barred and enjoined the settlement class representatives, settlement-class members, and other releasors from bringing or pursuing released claims against the releasees. It also barred certain contribution and indemnification claims related to the released claims. The order stated that the settlement and approval order were not admissions of wrongdoing, liability, or the truth of the allegations.

The court finally approved the revised plan for distributing the settlement proceeds and approved establishing a fiduciary account as a qualified settlement fund. It retained exclusive jurisdiction over implementation and enforcement of the settlement, the settlement fund, distribution amounts, and related disputes. The court stated that attorneys’ fees, expense reimbursement, and service awards would be addressed in a separate order.

Conditional termination

The order provided that if the settlement did not become effective under the settlement agreement, the settlement could terminate. In that event, the provisions dismissing the plaintiffs’ claims would become void, the claims and defenses would be reinstated, and the class certification and settlement approval would be vacated, subject to any settlement provisions that were designated to survive termination.