United States District Court, N.D. California
FINAL JUDGMENT AND ORDER OF DISMISSAL WITH
PREJUDICE
RICHARD SEEBORG UNITED STATES DISTRICT JUDGE
The
parties seek final approval of the settlement agreement
resolving plaintiffs’ claims against EverBank. Review
of the settlement agreement and the declarations submitted in
support of final approval make clear the proposed agreement
is fair, adequate, and reasonable. In addition, the court
makes the following findings:
1. This
court has jurisdiction over the subject matter of this
action, including the terms and conditions of the settlement
agreement and over all parties to the action and all class
members.
2. The
claims administer distributed the notice to the class members
in accordance with the terms of the settlement agreement and
the preliminary approval order. The notice and notification
procedures were reasonably calculated to apprise all class
members of the proposed settlement, its binding effect, and
their rights to be excluded from the settlement, to object to
the terms of the settlement, to appear at the fairness
hearing, and to obtain separate counsel. The notification
complied with Federal Rules of Civil Procedure 23(c) and
23(d) and due process.
3. The
parties entered into the settlement agreement during the
course of arm’s-length negotiations. The terms of the
agreement are as fair, reasonable, and adequate.
4. This
action and all settled claims are dismissed with prejudice.
The parties will bear their own costs and fees, except as
otherwise provided in the settlement agreement or this final
judgment and order (“Final Judgment”).
5. In
accordance with Paragraph 1(ff) of the Settlement Agreement,
for purposes of this Final Judgment the term “Released
Parties” shall mean: (a) any and all of the Defendants
and any person, partnership, firm, corporation, limited
liability company, trust or other entity or organization in
which any Defendant has a controlling interest or which is or
was related to or affiliated with any of the Defendants; and
(b) with respect to each of the Persons in subsection (a),
their respective past, present or future directors, officers,
employees, insurers, reinsurers, attorneys, agents, partners,
principals, advisors, investment advisors, auditors,
accountants, trustees, underwriters, investment bankers,
subsidiaries, parents, any other entity in which any such
parent has a controlling interest or which is or was related
to or affiliated with any such parent, successors and
predecessors, heirs, Immediate Family, and anyone acting or
purporting to act for or on behalf of any of them or their
successors.
6. In
accordance with Paragraph 1(gg) of the Settlement Agreement,
for purposes of this Final Judgment the term “Settled
Claims” shall mean: any and all claims, debts, demands,
disputes, rights, causes of action, suits, matters, damages,
or liabilities of any kind, nature, and character whatsoever
(including but not limited to any claims for damages,
interest, attorneys’ fees, expert or consulting fees,
and any and all other costs, expenses or liabilities
whatsoever), whether based on federal, state, local,
statutory or common law or any other law, rule or regulation,
whether fixed or contingent, accrued or unaccrued, liquidated
or unliquidated, at law or in equity, matured or unmatured,
whether class, individual or derivative in nature
(collectively, “Claims”), including both known
Claims and Unknown Claims (as defined herein), against any of
the Released Parties that (i) were asserted in the Action;
(ii) could have been asserted in the Action in regard to
EverBank WorldCurrency certificates of deposit denominated in
Icelandic Króna, (iii) would have been barred by
res judicata had the current Complaint in the Action
been fully litigated to a final judgment, or (iv) could have
been, or could in the future be, asserted in any forum or
proceeding or otherwise by any Class Member against any of
the Released Parties and concern, arise out of, refer to, are
based upon, or are related in any way to EverBank Icelandic
WorldCurrency certificates of deposit, provided,
however, that the term “Settled Claims”
shall not include claims to enforce the Settlement. Nothing
in this Final Judgment is intended to release any claims
regarding any accounts Class Members have or have had with
EverBank unrelated to EverBank’s Icelandic
WorldCurrency CDs. Further, nothing in this Final Judgment is
intended to release any Claim or Unknown Claim that arose
before October 8, 2008, or after December 31, 2008.
7. In
accordance with Paragraph 1(hh) of the Settlement Agreement,
for purposes of this Final Judgment the term “Settled
Defendants’ Claims” shall mean: any and all
claims, rights, causes of action, damages, or liabilities of
any kind, nature, and character whatsoever in law, equity, or
otherwise, including both known and Unknown Claims (as
defined herein), which were, could have been, or could be
asserted in any forum by the Defendants or any of them
against Plaintiff, any Class Member, or Class Counsel,
whether under United States federal, state, local, statutory,
or common law, or any other law, rule, or regulation, based
upon, arising out of or relating to, directly or indirectly,
the institution, prosecution, assertion, settlement or
resolution of the Action; provided, however, that
“Settled Defendants’ Claims” shall not
include claims to enforce the Settlement.
8. In
accordance with Paragraph 1(mm) of the Settlement Agreement,
for purposes of this Final Judgment the term “Unknown
Claims” shall mean: any and all Settled Claims that any
Lead Plaintiff or Class Member does not know or suspect to
exist in his, her or its favor as of the Effective Date that,
if known by him, her or it, might have affected his, her or
its decision(s) with respect to the Settlement, or might have
affected such party’s decision not to object to this
settlement. With respect to any and all Settled Claims, upon
the Effective Date, the Lead Plaintiff shall expressly waive,
and each Class Member shall be deemed to have waived, and by
operation of this Final Judgment shall have expressly waived,
the provisions, rights and benefits of California Civil Code
§ 1542, and of any U.S. federal or state law, or
principle of common law or otherwise, that is similar,
comparable, or equivalent to Section 1542 of the California
Civil Code, which provides, in relevant part:
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.
The
Lead Plaintiff and other Class Members or certain of them may
hereafter discover facts in addition to or different from
those which such party now knows or believes to be true with
respect to the subject matter of the Settled Claims, but the
Lead Plaintiff and the Class Members, upon the Effective
Date, by operation of this Final Judgment shall have, fully,
finally, and forever settled and released, any and all
Settled 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, Settled Claims
relating 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.
Lead
Plaintiff and Defendants acknowledge, and the Class Members
shall be deemed by operation of this Final Judgment to have
acknowledged, that the foregoing waiver was separately
bargained for and was a key element of the Settlement. The
phrase “Unknown Claims” relates only to Settled
Claims and Settled Defendants’ Claims, and has no
application as to any Class Member’s claims against any
of the Released Parties outside of the Settled Claims.
9. Lead
Plaintiff and every Class Member, on behalf of themselves and
any of their personal representatives, Immediate Family,
trustees, heirs, executors, administrators, successors or
assigns, shall be deemed to have, and by operation of this
Final Judgment shall have, fully, finally, and forever
released, relinquished, and discharged all Settled Claims
against the Released Parties, and shall be forever barred and
enjoined from instituting, prosecuting, participating,
continuing, maintaining or asserting any Settled Claim, or
assisting any Person in instituting, prosecuting,
participating, continuing, maintaining or asserting any
Settled Claim, against ...