EK Vathana v. EverBank

          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 ...