HomeMy WebLinkAboutAgreement A-15-443 with George K. Baum & Company.pdfAgreement No. 15-443
SETTLEMENT AGREEMENT
This Settlement Agreement (hereinafter, "Agreement") is made and entered into
this day of September 22 , 2015, by and between Defendant George K. Baum & Company
(hereinafter "Defendant" or "Baum") and Plaintiff Fresno County Financing Authority
("Plaintiff'). This Agreement is intended by Defendant and Plaintiff (collectively,
"Settling Parties") to fully, fmally 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. § I, the California Cartwright Act, Cal.
Bus. & Prof. Code Section 16720, et seq., the California False Claims Act, Cal. Gov. Code
Section 12650, et seq., the California Unfair Competition Law, Cal. Bus. & Prof. Code
Section 17200, et seq., and the California False Claims Act, Cal. Gov. Code, Section
12650, et seq., by illegally 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 acts caused Plaintiff to incur damages;
WHEREAS, Defendant denies and continues to deny; (1) each and all of the claims
and allegations of wrongdoing made by Plaintiff and maintain 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 Plaintiffs
complaint 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;
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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, Defendant agrees to cooperate with Plaintiff by providing truthful
information (to the extent such information is in the possession, custody, or control of
Defendant) related to the Municipal Derivative Transactions industry and/or claims
asserted by Plaintiff against the named defendants and parties not currently named as
defendants;
WHEREAS, arm’s length settlement negotiations have taken place between
Defendant and Plaintiff’s Counsel, and this Agreement, which embodies all of the terms
and conditions of the settlement between Defendant and Plaintiff, is intended to supersede
any prior agreements between the Settling Parties;
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 MDL Docket No. 1950
(dated December 15, 2009), 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 defenses thereto, has nevertheless agreed to enter into
this Agreement to avoid further expense, inconvenience, and the distraction of burdensome
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and protracted litigation, and thereby to put to rest this controversy with respect to Plaintiff
and avoid the risks inherent in complex litigation.
AGREEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and
between Plaintiff and Defendant, by and through their counsel and attorneys of record, that
the Actions and the Released Claims as against Defendant and other Releasees shall be
finally and fully settled, compromised and dismissed on the merits and with prejudice upon
and subject to the terms and conditions of this Agreement, as follows.
A. Definitions
1. As used in this Agreement the following terms have the meanings specified
below.
(a) “Actions” means In re Municipal Derivatives Antitrust Litigation,
MDL Docket No. 1950, Master Docket No. 08-2516 (VM) (GWG),
and the individual case filed by Plaintiff and consolidated and/or
included as part of that MDL.
(b) “Court” means the United States District Court for the Southern
District of New York (Marrero, J.).
(c) “Defendant” means George K. Baum & Company, and its direct and
indirect parents, subsidiaries, and affiliates, and respective present
and former officers, directors, employees, managers, members,
partners, agents, and legal representatives, and predecessors,
successors, heirs, executors, administrators and assigns of each of
the foregoing.
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(d) “Effective Date” means the first date by which all of the events and
conditions specified in Paragraph 7 of this Agreement have
occurred and have been met.
(e) “Execution Date” means the date this Agreement is executed by the
last party to do so.
(f) “Municipal Derivative Transactions” includes all of the types of
transactions described in Paragraphs 61-79 of the Joint Second
Amended Class Action Complaint filed in MDL Docket No. 1950
(dated December 15, 2009), and in Paragraphs 64 to 77 of the
Second Consolidated Amended Class Action Complaint filed in
MDL No. 1950 (dated June 18, 2009).
(g) “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,
government or any political subdivision or agency thereof, and any
business or legal entity and any spouses, heirs, predecessors,
successors, representatives or assignees of any of the foregoing.
(h) “Plaintiff” means the Fresno County Financing Authority.
(i) “Plaintiff’s Counsel” means Lieff Cabraser Heimann & Bernstein,
LLP and Scott + Scott, LLP.
(j) “Released Claims” means any and all manner of claims, demands,
rights, actions, suits, causes of action, fees, costs, penalties,
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damages whenever incurred, and liabilities of any nature
whatsoever, known or unknown (including, but not limited to,
“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,
relating in any way to any conduct prior to the Execution Date and
arising out of or related in any way to the purchase of Municipal
Derivative Transactions in the United States or its Territories during
the period from January 1, 1992 to the Execution Date, or any
conduct alleged in the Actions or that could have been alleged by
Plaintiff in the Actions, including but not limited to any conduct or
legal claims similar to those alleged in United States v.
Rubin/Chambers, et al., 09 Cr. 1058 (VM) (S.D.N.Y.), United
States v. Carollo, et al., 10 Cr. 0654 (HB) (S.D.N.Y.) and/or United
States v. Ghavami, et al., 10 Cr. 1217 (KMW) (S.D.N.Y.), against
the Releasees by Releasors (including, but not limited to, all claims
under the Sherman Antitrust Act, California’s Cartwright Act, the
California Unfair Competition Law and the California False Claims
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 Releasees only as provided in this Agreement,
and all of Releasor’s claims against any Person other than Releasees
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shall remain in the Actions, as more fully set forth in Paragraph 21,
below.
(k) “Releasees” means Defendant and its direct and indirect parents,
subsidiaries, and affiliates, and their respective present and former
officers, directors, employees, managers, members, partners,
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 controlling,
controlled by or under common control with a Releasee.
(l) “Releasors” means Plaintiff on its own behalf and on behalf of its
respective direct and indirect parents, subsidiaries and affiliates, its
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 controlling, controlled by or
under common control with a Releasor. Notwithstanding anything
to the contrary herein, Releasor does not include The California
County Tobacco Securitization Agency.
(m) “Settlement” means the settlement of the Released Claims set forth
herein.
(n) “Settlement Amount” means the amount of Seven Thousand Dollars
and No Cents ($7,000) to be paid by Defendant for the settlement of
the Released Claims.
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(o) “Settling Parties” means, collectively, Defendant and Plaintiff.
(p) “Unknown Claims” means any Released Claim that Releasor does
not know or suspect to exist in his, her or its favor at the time of the
release of Releasees that if known by him, her or it, might have
affected his, her or its settlement with and release of Releasees, or
might have affected his, her or its decision to enter into this
Settlement. With respect to any and all Released Claims, Settling
Parties stipulate and agree that, upon the Effective Date, Plaintiff
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.
Provided however, the foregoing provision shall not be deemed to
turn a specific release into a general release. 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 Releasors shall expressly have, upon the
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Effective Date, fully, finally and forever settled and released any
and all Released Claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, 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 in the amount of
Seven Thousand Dollars and No Cents ($7,000.00) to Lieff, Cabraser, Heimann &
Bernstein, LLP for Plaintiff’s account. The Settlement Amount constitutes the total
payment that Defendant is required to make in connection with this Settlement Agreement.
Each party shall bear its own fees and costs.
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.
4. Releases. Upon the Effective Date, 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 Releasees and shall have covenanted not to sue the Releasees with respect
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to all such Released Claims, and shall be permanently barred and enjoined from instituting,
commencing, or prosecuting any such Released Claim against Releasees.
C. Cooperation
5. Defendant shall provide reasonable cooperation pursuant to this
Agreement.
(a) Defendant’s cooperation obligations shall only apply to Releasors
who act with, by or through Plaintiff’s Counsel pursuant to this
Agreement.
(b) Notwithstanding any other provision in this Agreement, Defendant
may assert where applicable the attorney work-product doctrine, the
attorney-client privilege, the common interest doctrine, the joint
defense privilege and/or any other applicable privilege or protection
with respect to any documents, interviews, declarations, and/or
affidavits, depositions, testimony, material, and/or information
requested under this Agreement. Any documents, declarations,
affidavits, deposition testimony and information provided to
Plaintiff’s Counsel pursuant to this provision shall be covered by the
protective orders in place in this case. None of the cooperation
provisions are intended to, nor do they, waive any such privileges or
protections.
(c) If any document protected by the attorney-client privilege, attorney
work-product doctrine, the common interest doctrine, the joint
defense privilege and/or any other applicable privilege or protection
is accidentally or inadvertently produced, the document shall
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promptly be returned to Defendant, and its production shall in no
way be construed to have waived any privilege or protection
attached to such document.
(d) Notwithstanding any other provision of this Paragraph, in the event
that Defendant believes that Plaintiff’s Counsel has unreasonably
requested cooperation, Defendant and Plaintiff’s Counsel agree to
meet and confer regarding such disagreement and seek resolution
from the Court if necessary. If Court resolution is sought, the
disputed aspect of cooperation shall be held in abeyance until such
resolution by the Court and such abeyance shall not constitute a
breach of this Agreement.
(e) Plaintiff’s Counsel agree to use any and all of the information and
documents obtained from Defendant only for the purpose of the
Actions, and agree to be bound by the terms of the protective orders
entered in the Actions.
D. Conditions of Settlement, Cancellation or Termination
6. Effective Date. The Effective Date of this Agreement shall be conditioned
on Plaintiff’s filing of a stipulation of dismissal against Defendant, signed by the Settling
Parties.
7. Occurrence of Effective Date. Upon the occurrence of the event
referenced in Paragraph 6, above, any and all remaining interest or right of Defendant in
the Settlement Amount shall be absolutely and forever extinguished, and the Settlement
Amount shall be paid to Plaintiff’s Counsel, as provided in Paragraph 2, above, within ten
(10) calendar days after the Effective Date.
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8. Failure of Effective Date to Occur. If the conditions specified in
Paragraph 7, above, are not met, then Plaintiff shall be entitled to enforce this Agreement
against Defendant, including under the theory of specific performance, in the Court
pursuant to Paragraphs 13 and 14, below, and subject to and in accordance with Paragraph
11, below.
E. No Admission of Liability
9. 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.
10. Final and Complete Resolution. The Settling Parties intend the
Settlement as described herein to be a final and complete resolution of all 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.
11. 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 Releasees; or (b) is or may be deemed to
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be or may be used as an admission of, or evidence of, any liability, fault or omission of the
Releasees in any civil, criminal or administrative proceeding in any court, administrative
agency or other tribunal. Neither this Agreement nor the Settlement, nor 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 Releasees may file this Agreement and/or the stipulation of
dismissal provided for in Paragraph 6 of this Agreement in any action for any purpose,
including, but not limited to, in order to support a Releasee’s defense or counterclaim
based on principles of res judicata, collateral estoppel, release, good faith settlement,
judgment bar or reduction or any other theory of claim preclusion or issue preclusion or
similar defense or counterclaim.
F. Miscellaneous Provisions
12. 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.
13. Consent to Jurisdiction. Defendant and Plaintiff hereby irrevocably
submit to the exclusive jurisdiction of the Court only for the specific purpose of any suit,
action, proceeding or dispute arising out of or relating to this Agreement or the
applicability of this Agreement.
14. Resolution of Disputes; Retention of Exclusive Jurisdiction. Any
disputes between Defendant and Plaintiff (or their counsel) concerning matters contained
in this Agreement shall, if they cannot be resolved by negotiation and agreement, be
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submitted to the Court. The Court shall retain exclusive jurisdiction over the
implementation and enforcement of this Agreement.
15. Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the successors and assigns of the parties hereto.
16. Authorization to Enter Settlement Agreement. The undersigned
representatives of Defendant and Plaintiff represent that they are fully authorized to enter
into and to execute this Agreement on behalf of Defendant and Plaintiff.
17. Notices. All notices under this Agreement shall be in writing. Each such
notice shall be given either by (a) e-mail, (b) hand delivery, (c) registered or certified mail,
return receipt requested, postage pre-paid, (d) Federal Express or similar overnight courier,
or (e) facsimile and first class mail, postage pre-paid, and, if directed to Plaintiff, shall be
addressed to Plaintiff’s Counsel at their addresses set forth on the signature pages hereof,
and if directed to Defendant, shall be addressed to its attorneys at the address set forth on
the signature pages hereof or such other addresses as Plaintiff’s Counsel or Defendant may
designate, from time to time, by giving notice to all parties hereto in the manner described
in this Paragraph 17.
18. 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.
19. No Party Deemed to Be the Drafter. None 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.
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20. Choice of Law. This Agreement shall be considered to have been
negotiated, executed and delivered, and to be wholly performed, in the State of California,
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 the State of
California without giving effect to that State’s choice of law principles.
21. Reservation of Rights. 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 Releasor, asserted, or that may be asserted, in any of
the Actions against any defendant or potential defendant other than Releasees, including
any such claims that may be based on sales and conduct of Defendant. All rights and
claims of Plaintiff, including any Releasor, against any Persons other than Releasees are
specifically reserved by Plaintiff, including any Releasors.
22. 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.
23. 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
and the same instrument. Counsel for the parties to this Agreement shall exchange among
themselves original signed counterparts.
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24. 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.
IN WITNESS WHEREOF, the parties hereto, through their fully authorized
representatives, have executed this Agreement as of the date first herein above written.
PLAINTIFF FRESNO COUNTY APPROVED AS TO FORM BY COUNSEL
FINANCING AUTHORITY FOR PLAINTIFF
ByJ l I (l ~17, By:
I J Jrt/rll h) . d) flA L:. ~
Deborah A. Poochigian, Chairpe~ n
Eric B. Fastiff
Lieff Cabraser Heimann & Bernstein,
LLP
Dated: .1J_ f 12., UJ/i 275 Battery Street, 29th Floor
pA San Francisco, California 94111
Tel.: (415) 956-1000
ATIEST: Dated:
BERNICE E. SEIDEL, Clerk
Board of Supervisors
By ~~ ~ sh9.;::P By:
Deputy
Sylvia Sokol
Scott & Scott LLP
The Chrysler Building
405 Lexington Avenue
40th Floor
New York, New York 10174-4099
Tel.: (212) 223-6444
Dated:
DEFENDANT GEORGE K. BAUM & APPROVED AS TO FORM BY COUNSEL
COMPANY FOR DEFENDANT
By: By:
Terence J. Thurn
Bryan Cave LLP
Dated: 1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: (816) 374-3233
Dated:
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IN WITNESS WHEREOF, the parties hereto, through their fully authorized
representatives, have executed this Agreement as of the date first herein above written.
PLAINTIFF FRESNO COUNTY APPROVED AS TO FORM BY COUNSEL
FINANCING AUTHORITY FOR PLAINTIFF
By: By: ~~~
Eric B. Fastiff
Deborah A. Poochigian, Chairperson LieffCabraser Heimann & Bernstein,
LLP
Dated: 275 Battery Street, 29th Floor
San Francisco, California 941 I I
TeL: (415) 956-1000
Dated: q(J-lf (rs-
By:
Sylvia Sokol
Scott & Scott LLP
The Chrysler Building
405 Lexington A venue
40th Floor
New York, New York 10174-4099
Tel.: (212) 223-6444
Dated:
DEFENDANT GEORGE K. BAUM & APPROVED. AS TO FORM BY COUNSEL
COMPANY FOR DEFENDANT
By: By:
Terence J. Thurn I . .
Bryan Cave LLP
Dated: 1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: (816) 374-3233
Dated:
16
IN WITNESS WHEREOF, the parties hereto, through their fully authOrized
representatives, have executed this Agreement as of the date first herein above written.
PLAINTIFF FRESNO COUNTY APPROVED AS TO FORM BY COUNSEL
FINANCING AUTHORITY FOR PLAINTIFF
By: By:
Eric B. Fastiff
Deborah A. Poochigian, Chairperson Lieff Cabraser Heimann & Bernstein,
LLP
Dated: 275 Battery Street, 29th Floor
San Francisco, California 94111
Tel.: (415) 956-1000
Dated:
By: .L~-
Sylvia Sokol
Scott & Scott LtP
The Chrysler Building
405 Lexington Avenue
40th Floor
New York, New York 10174-4099
Tel.: (212) 223-644~ .
Dated: 1ho. 1$
DEFENDANT GEORGE K. BAUM & APPROVED AS TO FORM BY COUNSEL
COMPANY FOR DEFENDANT
By: By:
Terence J. Thurn
Bryan Cave LLP
Dated: 1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: (816) 374-3233
Dated:
16
IN WITNESS WHEREOF, the parties hereto, through their fully authorized
representatives, have executed this Agreement as of the date first herein above written.
PLAINTIFF FRESNO COUNTY
FINANCn\IG AUTHORITY
By:
Deborah A. Poochigian, Chairperson
Dated:
DEFENDANT GEORGE K. BAUM &
COMPANY
APPROVED AS TO FORM BY COUNSEL
FOR PLAINTIFF
~y:
Eric B. Fastiff
LieffCabraser Heimann & Bernstein,
LLP
275 Battery Street, 29th Floor
San Friuicisco, California 94111
Tel.: (415) 956-1000
Dated:
By:
Sylvia Sokol
Scott & Scott LLP
The Chrysler Building
405 Lexington Avenue
40th Floor
New York, New York 10174-4099
Tel..: (212)223-6444
Dated:
APPROVED AS TO FORM BY COUNSEL
FOR DEFENDANT
By: 7P---t e 1~
Terence J. Thurn
Bryan Cave LLP
1200 Main Street, Suite 3500
Kansas City, MO 641 05
Tel.: (816 374-233
Dated: 1 rK ~IS"'
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