HomeMy WebLinkAboutAgreement A-16-620 with UBS AG and UBS Financial Services Inc..pdf Agreement No. 16-620
SETTLEMENT AGREEMENT
This Settlement Agreement (hereinafter, "Agreement") is made and entered into
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this day of lsitrvernber a., 2016,by and between UBS AG and UBS Financial Services,
Inc. (collectively "UBS") and Plaintiff Fresno County Financing Authority ("Plaintiff').
This Agreement is intended by the Settling Parties to fully, finally, and forever resolve,
discharge, and settle the Released Claims, upon and subject to the terms and conditions
hereof.
RECITALS
WHEREAS, Plaintiff has alleged,among other things,that:(1)Defendant violated
Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1,the California Cartwright Act, Cal.
Bus.& Prof.Code Section 16720,et seq.,the California False Claims Act,Cal.Gov.Code
Section 12650,et seq.,and the California Unfair Competition Law,Cal.Bus.&Prof.Code
Section 17200,et seq.,by allegedly rigging bids,limiting competition,and fixing prices in
the alleged market for Municipal Derivative Transactions in the United States and its
territories; and (2)these alleged acts caused Plaintiff to incur damages;
WHEREAS, Defendant has denied and continues to deny: (1) each and all of the
claims and allegations of wrongdoing made by Plaintiff, including those asserted in the
Actions (as defined herein), and maintains furthermore that it has meritorious defenses;
(2) all charges of wrongdoing or liability against it arising out of any of the conduct,
statements, acts, or omissions alleged, or that could have been alleged, in the Actions,and
Defendant vigorously contends that the factual allegations in Plaintiff's pleadings relating
to it are materially inaccurate; and (3) the allegations that Plaintiff was harmed by any
conduct by Defendant alleged in the Actions or otherwise;
WHEREAS, Plaintiff and Defendant agree that neither this Agreement nor any
statement made in the negotiation thereof shall be deemed or construed to be an admission
or evidence of any violation of any statute or law or of any liability or wrongdoing by
Defendant or of the truth of any of the claims or allegations alleged in the Actions;
WHEREAS, arm's length settlement negotiations have taken place between
Defendant and Plaintiff's Counsel, and this Agreement embodies all of the terms and
conditions of the Settlement;
WHEREAS, Plaintiff has concluded, after due investigation and after carefully
considering the relevant circumstances, including, without limitation, the claims asserted
in the Joint Second Amended Class Action Complaint filed in City of Oakland v. AIG
Finan. Prods. Corp., et al., MDL Docket No. 1950 (dated December 15, 2009), and the
claims asserted therein("Operative Complaint',the legal and factual defenses thereto,and
the applicable law,that it would be in Plaintiff s best interests to enter into this Agreement
in order to avoid the uncertainties of litigation; and
WHEREAS,Defendant,despite the belief that it is not liable for the claims Plaintiff
asserts against it and that it has good and meritorious defenses thereto, has nevertheless
agreed to enter into this Agreement to avoid further expense, inconvenience, and the
distraction of burdensome and protracted litigation, and thereby to put to rest this
controversy and avoid the risks inherent in complex litigation.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED for good
and valuable consideration, the sufficiency of which is acknowledged herein, by and
among the Settling Parties, by and through their counsel and attorneys of record, that the
Actions and the Released Claims as against Defendant shall be finally and fully settled,
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compromised,and dismissed on the merits and with prejudice upon and subject to the terms
and conditions of this Agreement,as follows;
A. Definitions
I. As used in this Agreement the following terms have the meanings specified
below.
(a) "Action"or"Actions,"used interchangeably,means In re Municipal
Derivatives Antitrust Litigation, MDL Docket No. 1950, Master
Docket No. 08-2516 (VM) (GWG),and all of the actions filed in or
transferred to the U.S. District Court for the Southern District of
New York for coordination or consolidation with MDL NO. I950,
and the individual case filed by Plaintiff and consolidated and/or
included as part of that MDL, including but not limited to in the
Operative Complaint.
(b) "Court" means the United States District Court for the Southern
District of New York.
(c) "Defendant"means (a) UBS AG and UBS Financial Services,Inc.,
and their direct and indirect parents, subsidiaries and affiliates, and
their respective present and former officers, directors, employees,
managers,members,partners,agents,shareholders(in their capacity
as shareholders), attorneys and legal representatives of each of the
foregoing; and the respective predecessors, successors, heirs,
executors, administrators and assigns of each of the foregoing. For
clarity,"Defendant" includes UBS Securities,LLC. As used in this
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paragraph,"affiliates"means.entities that control,are controlled by,
or are under common control with a Defendant.
(d) "Effective Date" or "Execution Date" means the date this
Agreement is executed by the last party to do so.
(e) "Municipal Derivatives" or "Municipal Derivative Transactions"
means any transactions that government and other entities eligible
to issue tax-exempt debt now use or have used at any time since
January 1, 1992, to (i) invest the proceeds of tax-exempt debt
offerings or (ii) hedge or manage the interest rate risk associated
with such debt offerings. These investment vehicles include the
following types of transactions:(a)guaranteed investment contracts,
or "GICs," both collateralized and uncollateralized; (b) forward
purchase, forward supply, and forward delivery agreements; (c)
repurchase agreements; (d) certificates of deposit, or "CDs," on
escrow agreements; (e) swaps; (f) options; (g) "swaptions;" (h)
floors; (i) caps; G) collars; and (k) any financial product
encompassed by the description in the Actions including but not
limited to all of the types of transactions described in Paragraphs 61
to 79 of the Joint Second Amended Class Action Complaint filed in
City of Oakland v. AIG Finan. Prods. Corp., et al., MDL Docket
No. 1950 (dated December 15,2009),and in Paragraphs 58 to 71 of
the Corrected Third Consolidated Amended Class Action Complaint
filed in MDL No. 1950(dated October 9,2013).
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(f) "Person(s)" means an individual, corporation, limited liability
corporation, professional corporation, limited liability partnership,
partnership, limited partnership, association, joint stock company,
estate, legal representative, trust, unincorporated association,
municipality, state, any entity that is a creature of any state, any
government,or any political subdivision, authority, office, bureau
or agency of any government, and any business or legal entity and
any spouses, heirs, predecessors, successors, representatives or
assignees of any of the foregoing.
(g) "PIaintiff'means Fresno County Financing Authority.
(h) "Plaintiffs Counsel" means Lieff Cabraser Heimann & Bernstein,
LLP and Scott+ Scott,Attorneys at Law, LLP.
(i) "Released Claims" means any and all manner of claims, demands,
debts,obligations,rights,actions,suits,counterclaims,cross claims,
set-offs, causes of action, whether class, individual,or otherwise in
nature, fees, costs, penalties, fines, debts, expenses, attorney fees,
damages whenever incurred,and liabilities of any nature whatsoever
(including joint and several), known or unknown (including
"Unknown Claims"), suspected or unsuspected, asserted or
unasserted, in law or in equity, which Releasors or any of them,
whether directly, representatively, derivatively, or in any other
capacity, ever had, now have or hereafter can, shall or may have
against Defendant, relating in any way to any conduct prior to the
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Execution Date and arising out of or related in any way to (i) the
purchase or delivery of Municipal Derivative Transactions in the
United States or its Territories, or (ii) any conduct alleged in the
Actions or that could have been alleged by Plaintiff in the Actions
against Defendant. Released Claims include, but are not limited to,
all claims based on any purported conspiracy between Defendant
and/or any co-defendant or alleged co-conspirator arising out of or
related in any way to allegations in the Actions (including, but not
limited to,all claims under the Sherman Antitrust Act, 15 U.S.C. §§
15 and 26, California's Cartwright Act, Cal. Bus. & Prof. Code §
16720,et seq.,the California Unfair Competition Law,Cal. Bus. &
Prof. Code § 17200, et seq., and the California False Claims Act,
Cal.Gov.Code§ 12650,et seq.,and any other federal or state statute
or common law, or the law of any foreign jurisdiction), and all
claims based on any allegedly fraudulent or other tortious conduct
by Defendant arising out of allegations in the Actions. The Released
Claims include but are not limited to any conduct alleged in the
Actions or that could have been alleged in the Actions, including but
not limited to any conduct or legal claims based on facts similar to
those alleged in United States v. RubinlChambers, et al, No. 09 Cr.
1058 (VM)(S.D.N.Y.), United Stares v. Ghavami, et al., No. 10 Cr.
1217 (KMW) (S.D.N.Y.),and/or United States v. Carollo, et al., 10
Cr. 0654 (HB) (S.D.N.Y.), against Defendants by Plaintiff
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(including,but not]invited to,all claims under the Sherman Antitrust
Act or California's Cartwright Act, and any other federal or state
statute or common law, or the law of any foreign jurisdiction).
Released Claims shall only be released by Releasors against
Defendant only as provided in this Agreement,and all of Releasor's
claims against any Person other than Defendant shall remain in the
Actions,as more fully set forth in Paragraph 21, below.
(j) "Releasors" means Plaintiff on its own behalf and on behalf of its
respective direct and indirect parents, subsidiaries, divisions,
groups, and affiliates; the present and former officers, directors,
employees, agents, and legal representatives, and the predecessors,
successors, heirs, executors, administrators, and assigns of each of
the foregoing. As used in this paragraph,"affiliates"means entities
that control, are controlled by,or are under common control with a
Releasor. Notwithstanding anything to the contrary herein,
Releasors do not include The California County Tobacco
Securitization Agency.
(k) "Settlement"means the settlement of the Released Claims set forth
herein.
(1) "Settlement Amount" means the amount of fifteen thousand
($15,000.00) to be paid by Defendant for the settlement of the
Released Claims. Under no circumstances shall Defendant pay any
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amount for any reason in excess of the Settlement amount of fifteen
thousand dollars ($15,000.04),
(m) "Settling Parties"means, collectively,Defendant and Plaintiff.
(n) "Unknown Claims" means any Released Claim that any Releasor
does not know or suspect to exist in his, her or its favor at the time
of the release of Defendant that if known by him, her or it, might
have affected his,her or its settlement with and release of Defendant,
or might have affected his, her or its decision to enter into this
Settlement. With respect to any and all Released Claims, the
Settling Parties stipulate and agree that, upon the Effective Date,
Releasors shall expressly waive the provisions, rights and benefits
equivalent to California Civil Code § 1542 (to the extent it applies
to the Actions),which provides:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE
RELEASE,WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR.
Releasors shall expressly waive rights and benefits conferred by any
law of any state or territory of the United States, or principle of
common law or foreign law, that is similar, comparable or
equivalent in effect to California Civil Code § 1542. Releasors may
hereafter discover facts in addition to or different from those that
any of them now know or believe to be true with respect to the
subject matter of the Released Claims, but each Releasor shall
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expressly have, upon the Effective Date, fully, finally and forever
settled and released any and all Released Claims, known or
unknown, suspected or unsuspected, contingent or noncontingent,
whether or not concealed or hidden, that now exist or heretofore
have existed, upon any theory of law or equity now existing or
coming into existence in the future, including, but not limited to,
conduct that is negligent, reckless, intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional
facts. Releasors acknowledge that the foregoing waiver was
separately bargained for and a key element of the Settlement of
which this release is a part.
B. Settlement Amount
2. Payment by Defendant. Defendant shall send a check within ten (10)
business days of the Execution Date in the amount of fifteen thousand($15,000.00)to Lieff
Cabraser Heimann & Bernstein, LLP, for Plaintiff's account. Within three (3) business
days of receipt of the check, Plaintiff shall file with the Court a stipulation of dismissal as
against Defendant with prejudice.
3. No Additional Payments by Defendant. Under no circumstances will
Defendant be required to pay more or less than the Settlement Amount pursuant to this
Agreement and the Settlement set forth herein. The Settlement Amount constitutes the
total payment that Defendant is required to make in connection with this Agreement. Each
Settling Party shall bear its own fees and costs incurred in connection with the Actions and
the Agreement.
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4. Releases. Upon the Effective Date of this Agreement, The Releasors and
any other Person claiming(now or in the future)to be acting through or on behalf of them,
shall be deemed to have fully, finally, and forever released,relinquished, and discharged
all Released Claims against Defendant and shall have covenanted not to sue the Defendant
with respect to all such Released Claims, and shall be permanently barred and enjoined
from instituting,commencing,or prosecuting any such Released Claim against Defendant.
5. Occurrence of Effective Date. Upon Plaintiffs filing of the dismissal as
against Defendant with prejudice, any and all remaining interest or right of Defendant in
the Settlement Amount shall be absolutely and forever extinguished,
C. Final Resolution
6. Final and Complete Resolution. The Settling Parties intend the
Settlement as described herein to be a final and complete resolution of ali disputes between
them with respect to the Actions and/or the subject matter thereof and to compromise
claims that are contested,and it shall not be deemed an admission by any Settling Party as
to the merits of any claim or defense or any allegation made in the Actions.
D. No Admission of Liability
7. Use of Agreement as Evidence. Neither this Agreement nor the
Settlement, nor any act performed or document executed pursuant to or in furtherance of
this Agreement or the Settlement: (a) is or may be deemed to be or may be used as an
admission of, or evidence of, the validity of any Released Claim, of any allegation made
in the Actions,or of any wrongdoing or liability of Defendant; or(b) is or may be deemed
to be or may be used as an admission of,or evidence of,any liability, fault, or omission of
the Defendant in any civil, criminal, or administrative proceeding in any court,
administrative agency, or other tribunal. Neither this Agreement nor the Settlement, nor
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any act,performed or document executed pursuant to or in furtherance of this Agreement
or the Settlement shall be admissible in any proceeding for any purpose,except to enforce
the terms of the Settlement, and except that the Defendant may file this Agreement or the
stipulation of dismissal as against Defendant, provided for in Paragraph B.2. of this
Agreement in any action for any purpose, including,but not limited to,in order to support
a defense or counterclaim based on principles of res judicata, collateral estoppel, release,
good faith settlement,judgment bar, reduction,or any other theory of claim preclusion or
issue preclusion or similar defense or counterclaim.
E. Miscellaneous Provisions
8. Confidentiality. The Settling Parties realize that this Agreement shall be
subject to public disclosure pursuant to, among others, the Ralph M. Brown Act, the
California Public Records Act, and all other applicable laws pertaining to disclosure by
public entities. The Settling Parties also agree, unless required by law or court order,that
all agreements and orders entered into during the course of the Actions relating to the
confidentiality of information shall survive this Agreement for the term of such agreements
or orders including, but not limited to, the Protective Order Governing Confidential
Information in the Actions,dated November 5, 2008.
9. Voluntary Settlement. The Settling Parties agree that the Settlement
Amount and the other terms of the Settlement as described herein were negotiated in good
faith by the Settling Parties, and reflect a settlement that was reached voluntarily after
consultation with competent legal counsel.
10. Consent to Jurisdiction. The Settling Parties hereby irrevocably submit to
the exclusive jurisdiction of the Court only for the specific purpose of any suit, action,
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proceeding, or dispute arising out of or relating to this Agreement or the applicability.of
this Agreement.
11. Resolution of Disputes; Retention of Exclusive Jurisdiction. Any
disputes between or among the Settling Parties concerning matters contained in this
Agreement shall, if they cannot be resolved by negotiation and agreement,be submitted to
the Court. The Court shall retain exclusive jurisdiction over the implementation and
enforcement of this Agreement.
12. Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of,the successors and assigns of the parties hereto.
13. Authorization to Enter Settlement Agreement. Plaintiff, through its
undersigned counsel, represents that it is frilly authorized to enter into this Agreement and
to provide the releases herein on behalf of Plaintiff and all other Releasors. Defendant,
through its undersigned counsel, represent that it is fully authorized to enter into this
Agreement
14. Cooperation. All parties agree to cooperate fully and to take all actions
which may be necessary or appropriate to give full force and effect to the basic terns and
intent of this Agreement.
15. Notices. All notices under this Agreement shall be in writing. Each such
notice shall be given either by(a)e-mail and(b)(1)hand delivery,(2)registered or certified
mail,return receipt requested,postage pre-paid,or(3)Federal Express or similar overnight
courier,and, if directed to Plaintiff, shall be addressed to Plaintiffs Counsel at the address
set forth on the signature page hereof, and if directed to Defendant, shall be addressed to
its attorneys at the addresses set forth on the signature pages hereof or such other addresses
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as Plaintiff or Defendant may designate,from time to time, by giving notice to all Parties
hereto as required under this Agreement.
16. No Conflict Intended. The headings used. in this Agreement are intended
for the convenience of the reader only and shall not affect the meaning or interpretation of
this Agreement.
17. No Party Deemed to Be the Drafter. Neither of the Parties hereto shall be
deemed to be the drafter of this Agreement or any provision hereof for the purpose of any
statute, case law, or rule of interpretation or construction that would or might cause any
provision to be construed against the drafter hereof.
18. Choice of Law. This Agreement shall be considered to have been
negotiated, executed and delivered, and to be wholly performed, in New York, and the
rights and obligations of the parties to this Agreement shall be construed and enforced in
accordance with, and governed by, the internal, substantive laws of New York without
giving effect to that State's choice of law principles.
19. Amendment; Waiver. This Agreement shall not be modified in any
respect except by a writing executed by all the Parties hereto,and the waiver of any rights
conferred hereunder shall be effective only if made by written instrument of the waiving
Party. The waiver by any Party of any breach of this Agreement shall not be deemed or
construed as a waiver of any other breach,whether prior, subsequent or contemporaneous,
of this Agreement.
20. Execution in Counterparts. This Agreement may be executed in one or
more counterparts. All executed counterparts and each of them shall be deemed to be one
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and the same instrument. Counsel for the Parties to this Agreement shall exchange among
themselves signed counterparts.
21. Integrated Agreement. This Agreement constitutes the entire agreement
between the Settling Parties and no representations,warranties,or inducements have been
made to any party concerning this Agreement.other than the representations, warranties
and covenants contained and memorialized herein.
22. Reservation of Rights as to Persons Other Than Releasor. This
Agreement, or any part hereof, does not settle or compromise, or extend to or affect any
claims, including any claims for damages or restitution, by Plaintiff, including any
Releasors,asserted,or that may be asserted,in any of the Actions against any defendant or
potential defendant other than Defendant, including any such claims that may be based on
sales and conduct of Defendant. All rights and claims of Plaintiff,including any Releasors,
against any Persons other than Defendant are specifically reserved by Plaintiff, including
any Releasors.
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IN WITNESS WHEREOF, the parties hereto, through their :fully authorized
representatives,have executed this Agreement as of the date set forth below.
PLAINTIFF FRESNO COUNTY APPROVED AS TO FORM BY COUNSEL
FINANCING AUTHORITY FOR PLAINTIFF
B By:
Ernest Buddy Mendes,aairperson Eric B.Fastiff
Lieff Cabraser Heimann&Bernstein, LLP
Dated: 275 Battery Street,29th Floor
San Francisco,California 94111
Tel.: (415)956-1000
ATTEST:
SERVICE E.SEIDEL.Clerk Dated:
Board of Supervisors
By S Ca, D
Deputy By:
Sylvia Sokol
Scott+Scott,Attorneys at Law,LLP
The Helmsley Building
230 Park Avenue
17th Floor
New York,New York 10169
Tel.: (212)223-6444
Dated: /5- /-4
DEFENDANT S AG APPROVED AS TO FORM BY COUNSEL
FOR DEFENDANT
By: y: jd�
3a
Christopher N. Manning
P tck Shilling Jesse T. Smallwood
� Williams& Connolly LLP
725 Twelfth Street N.W.
K en Kowalski Washington, D.C.20005
Tel.: (202) 434-5000
Dated: Dated:
DEFENDANT UBS FINANCIAL APPROVED AS TO FORM BY COUNSEL
FOR DEFENDANT
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IN WITNESS WHEREOF, the parties hereto, through their fully authorized
representatives, have executed this Agreement as of die date set forth below.
PLAINTIFF FRESNO COUNTY APPROVED AS TO FORM BY COUNSEL
FINANCING AUTHORITY FOR PLAINTIFF
By: By:
' r
Ernest Buddy Mendes,Chairperson Eric B. Fastiff
Lieff Cabraser Heimann& Bernstein, LLP
Dated: 275 Battery Street,29th Floor
San Francisco,California 94111
Tel.: (415)956-1000
Dated:
By:
Sylvia Sokol
Scott+Scott.Attorneys at Law, LLP
The Chrysler Building
405 Lexington Avenue
40th Floor
New York,New York 10174-4099
Tel.: (212) 223-6444
Dated:
DEFENDANT UBS AG APPROVED AS TO FORM BY COUNSEL
FOR DEFENDANT
By: By:
Christopher N. Manning
Patrick Shilling Jesse 1'. Smallwood
Williams& Connolly LLP
725 Twelfth Street N.W.
Karen Kowalski Washington, D.C. 20005
Tel.: (202)434-5000
Dated: Dated:
DEFENDANT UBS FINANCIAL APPROVED AS TO FORM BY COUNSEL
FOR DEFENDANT
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By:
Karen Kowalski
Dated:
DEFENDANT UBS FINANCIAL APPROVED AS TO FORM BY
SERVICES,INC. COUNSEL FOR DEFENDANT
By: 1+
By:
4464,�- Christopher N. Manning
Ilene Marquardt Jesse T. Smallwood
Williams&Connolly LLP
725 Twelfth Street N.W.
Dated. Washington,D.C.20005
Tel.: (202)434-5000
Dated:
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