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

Background

The court considered the representative plaintiffs’ motion for final approval of a class-action settlement with ING Bank N.V. The opinion identifies the representative plaintiffs as 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. The action alleged conduct involving Singapore Interbank Offered Rate (SIBOR)- and Singapore Swap Offer Rate (SOR)-based derivatives, including alleged manipulation of those benchmarks.

The proposed settlement class covered persons and entities that purchased, sold, held, traded, or otherwise had an interest in SIBOR- or SOR-based derivatives during January 1, 2007, through December 31, 2011. Defendants, their related entities and agents, alleged co-conspirators, and the United States Government were excluded from the settlement class.

Class Certification and Notice

The court certified the settlement class only for purposes of the settlement. It found that the requirements of Rule 23 of the Federal Rules of Civil Procedure were satisfied in that context, including numerosity, common questions, typicality, adequate representation, predominance of common issues, and superiority of the class-action procedure. The court approved the representative plaintiffs as class representatives and appointed Lowey Dannenberg, P.C. as class counsel.

The court found that the mailed notices, publication notice, website, and other parts of the notice plan were the best practicable notice and reasonably informed class members of the action, their rights to exclude themselves or object, the fairness hearing, the distribution plan, and requests for attorneys’ fees, incentive awards, and expense reimbursement. The court also found that ING complied with the Class Action Fairness Act’s notice obligations.

One settlement class member validly excluded itself from the settlement with ING. That member would receive no settlement payment and would be treated as excluded from the action against ING. The court found that no objections had been submitted.

Settlement Approval

The court finally approved the settlement and found it fair, reasonable, adequate, and in the best interests of the settlement class. It found that the settlement resulted from arm’s-length negotiations between experienced counsel, that class counsel and the representative plaintiffs adequately represented the class for settlement purposes, and that class members were treated equitably. The court also approved the distribution plan and the proof-of-claim and release form.

The settlement bound all settling class members, whether or not they submitted a proof of claim and release. A settling class member had to execute a release and covenant not to sue to receive a share of the net settlement fund, but the claims were released under the settlement agreement even if the member did not execute that document.

The court directed the parties to carry out the settlement agreement. It approved the settlement fund’s fiduciary account as a qualified settlement fund and confirmed A.B. Data, Ltd. as settlement administrator. It reserved exclusive jurisdiction over implementing and enforcing the settlement, resolving disputes concerning it, and considering administration costs, fees, and distributions.

Dismissal and Releases

The court approved the release and covenant not to sue and directed dismissal of the action against ING and the released parties fully, finally, and with prejudice. The order specified that this dismissal did not apply to other defendants. The released parties included ING, ING Groep N.V., ING Capital Markets LLC, and specified related entities and individuals identified in the order.

The order permanently barred releasing parties and settling class members from pursuing the released claims against ING or the released parties, including through individual actions, class actions, administrative proceedings, regulatory proceedings, or arbitrations. It also addressed contribution, indemnification, setoff, and similar claims involving ING, the released parties, and other defendants.

The order stated that the settlement and approval order were not admissions or evidence of wrongdoing, liability, damages, or the validity of the claims. The settlement-class certification was limited to settlement purposes and could not be used as binding or persuasive authority on later requests to certify a class or appoint class representatives. The court reserved attorneys’ fees, expense reimbursement, and incentive awards for a separate order.

Disposition

Judge Alvin K. Hellerstein approved the settlement with ING, certified the settlement class for that settlement only, approved the distribution and claims materials, and directed dismissal against ING and the released parties fully, finally, and with prejudice. The opinion does not state the settlement amount.