UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION Master Docket No. 09-Civ. 04583 (LAK) ECF CASE This Document Relates To: ALL ACTIONS NOTICE OF FILING OF AMENDED STIPULATION AND AGREEMENT OF SETTLEMENT PLEASE TAKE NOTICE that Lead Plaintiffs Wyoming Retirement System and Wyoming State Treasurer (“Lead Plaintiffs”), hereby file the attached Amended Stipulation And Agreement Of Settlement (the “Amended Stipulation”). See Ex. 1, hereto. Lead Plaintiffs previously moved this Court for certification of a settlement class, approval of form of notice and scheduling of final settlement hearing in connection with a proposed settlement with the Underwriter Defendants. See Dkt Nos. 532-537. The Court then scheduled a telephonic conference call for September 18, 2014 to discuss the proposed settlement. In response to the Court’s comments at the September 18 conference, Lead Plaintiffs now file the attached executed Amended Stipulation with accompanying revised exhibits. The Amended Stipulation and revised exhibits replace the documents previously filed as Exhibit A to the Declaration of Patrick T. Egan. See Dkt. 536-1 The Parties have agreed upon a proposed Notice Order, which is submitted as Exhibit A to the Amended Stipulation. Case 1:09-cv-04583-LAK Document 539 Filed 09/22/14 Page 1 of 2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09-Civ. 04583 (LAK) ECF CASE
This Document Relates To: ALL ACTIONS
NOTICE OF FILING OF
AMENDED STIPULATION AND AGREEMENT OF SETTLEMENT
PLEASE TAKE NOTICE that Lead Plaintiffs Wyoming Retirement System and
Wyoming State Treasurer (“Lead Plaintiffs”), hereby file the attached Amended Stipulation And
Agreement Of Settlement (the “Amended Stipulation”). See Ex. 1, hereto.
Lead Plaintiffs previously moved this Court for certification of a settlement class,
approval of form of notice and scheduling of final settlement hearing in connection with a
proposed settlement with the Underwriter Defendants. See Dkt Nos. 532-537. The Court then
scheduled a telephonic conference call for September 18, 2014 to discuss the proposed
settlement. In response to the Court’s comments at the September 18 conference, Lead Plaintiffs
now file the attached executed Amended Stipulation with accompanying revised exhibits. The
Amended Stipulation and revised exhibits replace the documents previously filed as Exhibit A to
the Declaration of Patrick T. Egan. See Dkt. 536-1
The Parties have agreed upon a proposed Notice Order, which is submitted as Exhibit A
to the Amended Stipulation.
Case 1:09-cv-04583-LAK Document 539 Filed 09/22/14 Page 1 of 2
Dated: September 22, 2014 Respectfully submitted,
BERMAN DEVALERIO By: /s/ Nicole Lavallee Nicole Lavallee Joseph J. Tabacco, Jr. (JJT-1994) Nicole Lavallee (admitted pro hac vice) One California Street Suite 900 San Francisco, California 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 Patrick T. Egan (PE-6812) One Liberty Square Boston, Massachusetts 02109 Telephone: (617) 542-8300 Facsimile: (617) 542-1194 Lead Counsel for Lead Plaintiffs and the Proposed Settlement Class
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Case 1:09-cv-04583-LAK Document 539 Filed 09/22/14 Page 2 of 2
Exhibit 1
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 1 of 127
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09 Civ. 04583 (LAK) ECF CASE
This Document Relates To:
ALL ACTIONS
AMENDED STIPULATION AND AGREEMENT OF SETTLEMENT
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 2 of 127
Subject to the approval of the Court, this Stipulation and Agreement of Settlement (the
“Stipulation” or the “Settlement”) is entered into by and among (i) Lead Plaintiffs Wyoming
Retirement System and Wyoming State Treasurer (“Lead Plaintiffs”), on behalf of themselves,
and each proposed Settlement Class Member (as hereinafter defined), by and through their
counsel; and (ii) Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc.,
J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS
Securities LLC (the “Settling Defendants”), by and through their counsel.
The Settlement is intended by the Settling Parties (as hereinafter defined) to fully and
finally compromise, resolve, discharge and settle the Released Claims (as hereinafter defined)
against the Released Parties (as hereinafter defined), subject to the terms and conditions set forth
below and final approval of the Court.
WHEREAS:
A. On May 14, 2009, Police and Fire Retirement System of the City of Detroit v.
IndyMac MBS, Inc., et al., No. 09 Civ. 04583 (S.D.N.Y.) (the “Detroit Action”), was filed.
B. On June 29, 2009, Wyoming State Treasurer, et al. v. Olinski, et al., No. 09 Civ.
05933 (S.D.N.Y.) (the “Wyoming Action”), was filed.
C. By an order entered on July 29, 2009, the Court (i) consolidated the Detroit Action
and the Wyoming Action under the caption In re IndyMac Mortgage-Backed Securities Litigation,
Master Docket No. 09 Civ. 04583 (LAK) (S.D.N.Y.) (the “Action”); (ii) appointed Wyoming State
Treasurer and Wyoming Retirement System as Lead Plaintiffs; and (iii) appointed Berman
DeValerio as Lead Counsel for the Action. See Dkt. 58.
D. On October 9, 2009, Lead Plaintiffs filed a Consolidated Class Action Complaint.
See Dkt. 127.
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E. On October 29, 2009, Lead Plaintiffs filed an Amended Consolidated Class Action
Complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the
“Securities Act”) for alleged misrepresentations and omissions in the offering documents for
IndyMac-sponsored mortgage pass-through certificates. See Dkt. 131. The named plaintiffs in the
Amended Consolidated Complaint were Lead Plaintiffs. The named defendants in the Amended
Consolidated Complaint included Michael W. Perry, the former CEO of IndyMac Bank, F.S.B.;
IndyMac MBS, Inc. and seven of its former officers and directors (Lynette Antosh, Raphael Bostic,
S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick, and Victor H. Woodworth); Fitch,
Inc., The McGraw-Hill Companies, Inc. and Moody’s Investors Service Inc. (the “Rating Agency
Defendants”); IndyMac Securities Corp.; and Bank of America Corporation, Citigroup Global
Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman,
Sachs & Co., HSBC Securities (USA) Inc., J.P. Morgan Securities Inc. (n/k/a J.P. Morgan
Securities LLC), Morgan Stanley & Co., Incorporated (n/k/a Morgan Stanley & Co. LLC), RBS
Securities Inc., and UBS Securities LLC.
F. On November 23, 2009, all defendants moved to dismiss the Amended
Consolidated Complaint.
G. On February 5, 2010, the Court granted the Rating Agency Defendants’ motion to
dismiss and entered an Order dismissing all claims against the Rating Agency Defendants. See
Dkt. 195.
H. On June 21, 2010, the Court issued a Memorandum Opinion granting in part and
denying in part the other defendants’ motions to dismiss. See Dkt. 214. The Court dismissed, for
lack of standing, all claims related to offerings from which Lead Plaintiffs did not purchase
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securities. The Court also dismissed all claims relating to three out of the four categories of
alleged misrepresentations and omissions.
I. On July 7, 2010, the Court issued an Order granting in part reconsideration of its
June 21, 2010 Memorandum Opinion and stating that “the motions of defendants Perry, BoA,
HSBC Securities (USA) Inc., Goldman, Sachs & Co., Citigroup Global Markets Inc., and
IndyMac Securities Corp. to dismiss the complaint against them . . . are granted in all respects.”
See Dkt. 224.
J. On September 8, 2010, the Court entered a stipulated Order to clarify the June 21,
2010 Memorandum Opinion and July 7, 2010 Order to “provide that Plaintiffs’ claims under § 11
of the [Securities] Act are dismissed with prejudice . . . based on the statute of repose set forth in
§ 13 of the [Securities] Act” with respect to securities issued by IndyMac INDX Mortgage Loan
Trust Series 2006-AR2, IndyMac INDX Mortgage Loan Trust Series 2006-AR3, IndyMac INDX
Mortgage Loan Trust Series 2006-AR4, IndyMac INDX Mortgage Loan Trust Series 2006-AR7,
IndyMac INDX Mortgage Loan Trust Series 2006-AR11, and Residential Asset Securitization
Trust Series 2006-A2. See Dkt. 262.
K. On December 10, 2010, Lead Plaintiffs moved for certification of a class consisting
of “[a]ll persons or entities who purchased or otherwise acquired beneficial interests in Certificates
offered to the public in 10 Offerings” of IndyMac-sponsored mortgage pass-through certificates.
See Dkt. 276. On August 17, 2012, the Court entered a Memorandum Opinion dismissing Lead
Plaintiffs’ claims relating to one offering and granting Lead Plaintiffs’ motion for class
certification with respect to investors in securities from the other nine offerings. See Dkt. 367.
L. Between May 17, 2010 and August 19, 2010, three motions to intervene were filed
seeking to add named plaintiffs for claims relating to offerings from which Lead Plaintiffs did not
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purchase any securities. See Dkt. 202, 219, 237. The proposed intervenors were City of
Philadelphia Board of Pensions and Retirement, Los Angeles County Employees Retirement
Association, Public Employees’ Retirement System of Mississippi, Police and Fire Retirement
System of the City of Detroit, General Retirement System of the City of Detroit, and Iowa Public
Employees’ Retirement System.
M. On June 21, 2011, the Court issued a Memorandum Opinion granting intervention
in part by City of Philadelphia Board of Pensions and Retirement, Los Angeles County Employees
Retirement Association, Police and Fire Retirement System of the City of Detroit, and Public
Employees’ Retirement System of Mississippi, and denying intervention by General Retirement
System of the City of Detroit and Iowa Public Employees’ Retirement System. See Dkt. 317. On
July 20, 2011, Los Angeles County Employees Retirement Association, and Public Employees’
Retirement System of Mississippi dismissed with prejudice those claims for which the Court had
granted them leave to intervene. See Dkt. 325.
N. Los Angeles County Employees Retirement Association, Public Employees’
Retirement System of Mississippi, and General Retirement System of the City of Detroit appealed
the Court’s June 21, 2011 Memorandum Opinion to the U.S. Court of Appeals for the Second
Circuit. During the pendency of the appeal, the Second Circuit issued a decision regarding “class
standing” in NECA-IBEW v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012) (“NECA-IBEW”).
On June 27, 2013, the Second Circuit affirmed the Court’s June 21, 2011 Memorandum Opinion
as to “those claims and defendants as to which [Lead Plaintiffs] would lack standing under
NECA-IBEW.” Police and Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc.,
721 F.3d 95, 110 n.19 (2d Cir. 2013). Public Employees’ Retirement System of Mississippi has
appealed the Second Circuit’s June 27, 2013 decision to the U.S. Supreme Court; however, none of
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the securities at issue on the appeal to the U.S. Supreme Court were underwritten by the Settling
Defendants.
O. On August 15, 2011, Lead Plaintiffs filed a Second Amended Consolidated Class
Action Complaint. See Dkt. 337. In addition to Lead Plaintiffs, the named plaintiffs in the Second
Amended Consolidated Class Action Complaint were City of Philadelphia Board of Pensions and
Retirement and Police and Fire Retirement System of the City of Detroit. On February 4, 2011,
Lead Plaintiffs and Defendants Lynette Antosh and Raphael Bostic stipulated to the dismissal of
Antosh and Bostic from the Action with prejudice. See Dkt. 285, 286. On September 16, 2011, the
remaining defendants in the Action answered the Second Amended Consolidated Class Action
Complaint. See Dkt. 342-348.
P. On July 26, 2012, Lead Plaintiffs filed a motion regarding a settlement with
Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick, and Victor
Woodworth. See Dkt. 358. This settlement with five individual defendants received final
approval from the Court on December 18, 2012. See Dkt. 410. Following this settlement, the
remaining defendants in the Action were IndyMac MBS, Inc., Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS
Securities Inc., and UBS Securities LLC.
Q. On September 6, 2012, the Second Circuit issued its decision regarding “class
standing” in NECA-IBEW. On March 18, 2013, the U.S. Supreme Court denied a petition for writ
of certiorari in NECA-IBEW. On May 9, 2013, without prejudice to or waiver of any of the parties’
rights, including defendants’ right to challenge in this Court or on appeal the “class standing” of
Lead Plaintiffs to pursue claims relating to offerings from which they did not purchase securities,
Lead Plaintiffs and the remaining defendants stipulated to the reinstatement of claims relating to
5
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36 offerings. See Dkt. 431. On May 17, 2013, Lead Plaintiffs moved for the reinstatement of
claims relating to an additional six offerings. See Dkt. 432. On July 23, 2013, the Court granted
Lead Plaintiffs’ motion. See Dkt. 450.
R. On April 29, 2013, Lead Plaintiffs and Defendants Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC,
RBS Securities Inc., and UBS Securities LLC participated in a mediation session.
S. On August 30, 2013, Lead Plaintiffs moved for certification of an expanded class to
“include claims based on the additional 42 offerings the Court reinstated into this case in light of
the Second Circuit’s decision in NECA-IBEW v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir.
2012).” See Dkt. 470. Lead Plaintiffs also moved for certification of six additional class
representatives: City of Philadelphia Board of Pensions and Retirement, Los Angeles County
Employees Retirement Association, Public Employees’ Retirement System of Mississippi, Police
and Fire Retirement System of the City of Detroit, General Retirement System of the City of
Detroit, and Iowa Public Employees’ Retirement System. This motion has not yet been decided
by the Court.
T. On July 18, 2014, Lead Plaintiffs and Defendants Credit Suisse Securities (USA)
LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC,
RBS Securities Inc., and UBS Securities LLC participated in a second mediation session. On July
23, 2014, these parties accepted a mediator’s proposal to settle this Action.
U. This Stipulation shall in no way be construed or deemed to be a concession by Lead
Plaintiffs of any infirmity in the claims asserted in the Action.
V. This Stipulation shall in no way be construed or deemed to be evidence of, or any
admission or concession on the part of the Settling Defendants with respect to, any infirmity in the
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defenses that they have, or could have asserted, in the Action. The Settling Defendants have
denied and continue to deny each and all of the claims asserted in this Action and have agreed to
enter into this Stipulation solely to avoid further expense, inconvenience, and the distraction of
burdensome and protracted litigation.
W. The Settling Parties agree that certification of a class, for settlement purposes only,
is appropriate. Nothing in this Stipulation shall serve in any fashion, either directly or indirectly,
as evidence or support for certification of a class other than for settlement purposes, and the
Settling Parties intend that the provisions herein concerning certification of a Settlement Class
shall have no effect whatsoever in the event the Settlement does not become Final.
NOW THEREFORE, without any admission or concession on the part of Lead Plaintiffs,
the Intervenor Plaintiffs, or any proposed Settlement Class Member regarding any lack of merit of
the claims in this Action, and without any admission or concession on the part of the Settling
Defendants of any liability or wrongdoing or lack of merit of their defenses in this Action, it is
hereby STIPULATED AND AGREED, by and among the Settling Parties, through their
respective attorneys, subject to approval of the Court pursuant to Rule 23(e) of the Federal Rules
of Civil Procedure, the Private Securities Litigation Reform Act of 1995 and other conditions set
forth herein, in consideration of the benefits flowing to the parties hereto, that the Action and all
Released Claims (defined below) and all Released Parties’ Claims (defined below) shall be fully,
finally and forever compromised, settled, released, discharged and dismissed with prejudice
against the Released Parties (defined below), upon and subject to the following terms and
conditions:
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Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 9 of 127
DEFINITIONS
1. As used in this Stipulation, the following terms shall have the meanings specified
below.
(a) “Action” means the consolidated securities class action styled In re IndyMac
co-insurers, reinsurers, and assigns, of the foregoing in (i) and (ii) in their capacities as such.
(gg) “Released Parties’ Claims” means any and all claims and causes of action of every
nature and description, whether known or unknown, whether arising under federal, state, common
or foreign law, that arise out of or relate in any way to the institution, prosecution or settlement of
the claims in this Action against the Released Parties, except for claims relating to the enforcement
of the Settlement, against Lead Plaintiffs or their respective attorneys, or any other Settlement
Class Member.
(hh) “Second Amended Complaint” means the Second Amended Class Action
Complaint for Violations of the Securities Act of 1933, filed by Lead Plaintiffs in the Action on
August 15, 2011.
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(ii) “Settled Individual Defendants” means S. Blair Abernathy, John Olinski, Samir
Grover, Simon Heyrick, and Victor Woodworth.
(jj) “Settlement” means this Stipulation and Agreement of Settlement with the Settling
Defendants and the settlement contained herein.
(kk) “Settlement Class” means all Persons who at any time purchased or otherwise
acquired interests in the Certificates. Excluded from the Settlement Class are those Persons who
purchased or otherwise acquired Certificates, but who have filed individual actions to separately
pursue claims against the Settling Defendants relating to the Certificates or who have filed a valid
request for exclusion in accordance with the requirements set forth in the Notice. Also excluded
from the Settlement Class are Defendants, their officers and directors at all relevant times,
members of their immediate families and their legal representatives, heirs, successors or assigns
and any entity in which any Defendant has or had a controlling interest, except for any Investment
Vehicle, to the extent such entities themselves had a proprietary (i.e., for their own account)
interest in the Certificates and not to the extent that they held Certificates in a fiduciary capacity or
otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that
otherwise falls within the Settlement Class.
(ll) “Settlement Class Counsel” means the law firm of Berman DeValerio.
(mm) “Settlement Class Member” means any Person who is a member of the Settlement
Class.
(nn) “Settlement Class Representatives” mean Lead Plaintiffs, City of Philadelphia
Board of Pensions and Retirement, Los Angeles County Employees Retirement Association,
Public Employees’ Retirement System of Mississippi, Police and Fire Retirement System of the
17
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 19 of 127
City of Detroit, General Retirement System of the City of Detroit, and Iowa Public Employees’
Retirement System.
(oo) “Settling Defendants” means Credit Suisse Securities (USA) LLC; Deutsche Bank
Securities Inc.; J.P. Morgan Securities LLC (f/k/a J.P. Morgan Securities Inc.), in its own right and
as successor-in-interest to Bear, Stearns & Co., Inc.; RBS Securities Inc. (f/k/a Greenwich Capital
Markets, Inc.); Morgan Stanley & Co., LLC (f/k/a Morgan Stanley & Co. Incorporated) and UBS
Securities LLC.
(pp) “Settling Defendants’ Counsel” means Gibson, Dunn & Crutcher LLP.
(qq) “Settling Parties” or “Settling Party” means (i) Lead Plaintiffs on behalf of
themselves, the Intervenor Plaintiffs, the Proposed Intervenor Plaintiffs, and each Settlement Class
Member; and (ii) the Settling Defendants.
(rr) “Stipulation” means this Stipulation and Agreement of Settlement.
(ss) “Tax Expenses” means any expenses and costs incurred in connection with the
payment of Taxes (including, without limitation, expenses of tax attorneys and/or accountants and
other advisors and expenses relating to the filing or failure to file all necessary or advisable tax
returns).
(tt) “Taxes” means any taxes due and payable with respect to the income earned by the
Underwriter Defendant Settlement Fund, including any interest or penalties thereon.
(uu) “Underwriter Defendant Net Settlement Fund” means the Underwriter Defendant
Settlement Fund less: (i) any Taxes and Tax Expenses; (ii) any Notice and Administration Costs;
and (iii) any attorneys’ fees and Litigation Expenses awarded by the District Court.
(vv) “Underwriter Defendant Settlement Amount” means three hundred and forty
million dollars ($340,000,000.00).
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(ww) “Underwriter Defendant Settlement Fund” means the Underwriter Defendant
Settlement Amount paid by the Settling Defendants plus any interest earned thereon.
(xx) “Underwriter Defendant Settlement Fund Escrow Account” means any escrow
account(s) maintained and controlled by the Escrow Agent for the Underwriter Defendant
Settlement Fund into which the Underwriter Defendant Settlement Amount shall be deposited.
(yy) “Unknown Claims” means any and all Released Claims that Lead Plaintiffs, the
Intervenor Plaintiffs, the Proposed Intervenor Plaintiffs and/or any Settlement Class Member do
not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties,
and any Released Parties’ Claims that the Released Parties do not know or suspect to exist in his,
her or its favor, which if known by him, her or it might have affected his, her or its settlement with
and release of the Released Parties or Settlement Class Representatives, as appropriate, or might
have affected his, her or its decision not to object to this Settlement or not exclude himself, herself
or itself from the Settlement Class. With respect to any and all Released Claims and Released
Parties’ Claims, the parties stipulate and agree that, upon the Effective Date, Lead Plaintiffs and
the Settling Defendants shall expressly waive, and each Settlement Class Member and Released
Party shall be deemed to have waived, and by operation of the Order and Final Judgment shall
have expressly waived, to the fullest extent permitted by law, any and all provisions, rights and
benefits conferred by California Civil Code § 1542 (to the extent it applies to the Action), and any
law of any state or territory of the United States, or principle of common law, or the law of any
foreign jurisdiction, that is similar, comparable or equivalent to California Civil Code § 1542,
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.
19
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Lead Plaintiffs and Settlement Class Members may hereafter discover facts in addition to
or different from those which he, she or it now knows or believes to be true with respect to the
subject matter of the Released Claims, but Lead Plaintiffs shall expressly, fully, finally and
forever settle and release – and each Settlement Class Member, upon the Effective Date, shall be
deemed to have, and by operation of the Order and Final Judgment shall have 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, which 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 which 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 Plaintiffs and the
Settling Defendants acknowledge, and Settlement Class Members and Released Parties by law
and operation of the Order and Final Judgment shall be deemed to have acknowledged, that the
inclusion of “Unknown Claims” in the definition of Released Claims and Released Parties’
Claims was separately bargained for and was a material element of the Settlement.
CERTIFICATION OF SETTLEMENT CLASS
2. Solely for purposes of the Settlement and for no other purpose, Lead Plaintiffs and
the Settling Defendants stipulate and agree to: (a) certification of the Settlement Class pursuant to
Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure; (b) appointment of Lead
Plaintiffs, City of Philadelphia Board of Pensions and Retirement, Los Angeles County
Employees Retirement Association, Public Employees’ Retirement System of Mississippi, Police
and Fire Retirement System of the City of Detroit, General Retirement System of the City of
Detroit, and Iowa Public Employees’ Retirement System as Settlement Class Representatives; and
20
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 22 of 127
(c) appointment of Berman DeValerio as Settlement Class Counsel pursuant to Rule 23(g) of the
Federal Rules of Civil Procedure.
3. Should the Settlement Class not be certified, or should the Court materially amend
the scope of the Settlement Class, each of the Settling Parties reserves the right to terminate the
Settlement in accordance with paragraph 41 below.
RELEASE OF CLAIMS
4. Upon the Effective Date, the Settlement Class Representatives and all other
Settlement Class Members, on behalf of themselves and any of their personal representatives,
Patrick T. Egan (PE-6812)One Liberty SquareBoston, MA 02109Tel.: (617) 542-8300Fax: (617) [email protected]
Lead Counsel for Lead PlaintiffsWyoming State Treasurer andWyoming Retirement System andProposed Settlement Class Counsel
UNN & CR ~ TC~ R I,' P
~j ~; ~~ ~lobe ~. SerioAric H. WuJason Myatt200 Park AvenueNew York, NY 10166Tel: (212) 351-4000Fax: (212) [email protected]@gibsondunn.comj [email protected]
Attorneys for Settling Defendants Credit SuisseSecurities (USA) LLC, Deutsche BankSecurities Inc., J.P. Morgan Securities LLC,Morgan Stanley & Co. LLC, RBS SecuritiesInc., and UBS Securities LLC
43
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Exhibit A
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 46 of 127
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09-Civ. 04583 (LAK) ECF CASE
This Document Relates To:
ALL ACTIONS
[EXHIBIT A TO STIPULATION]
[PROPOSED] ORDER CERTIFYING CLASS FOR SETTLEMENT AND APPROVING NOTICE TO THE SETTLEMENT CLASS
OF THE PROPOSED SETTLEMENT WITH UNDERWRITER DEFENDANTS
WHEREAS, Lead Plaintiffs Wyoming Retirement System and Wyoming State Treasurer
(“Lead Plaintiffs”), on behalf of themselves and each proposed member of the Settlement Class
(as hereinafter defined), have applied to the Court pursuant to Rule 23(e) of the Federal Rules of
Civil Procedure for an order in the above-captioned litigation (the “Action”) in accordance with
the Amended Stipulation and Agreement of Settlement, dated September 19, 2014 (the
“Stipulation” or the “Settlement”), which, together with the exhibits annexed thereto, sets forth
the terms and conditions for a proposed settlement in the Action with Defendants Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan
Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC (the “Settling Defendants”);
WHEREAS, the Settling Defendants do not oppose Lead Plaintiffs’ application; and
WHEREAS, the Court is familiar with and has reviewed the record in the Action and has
reviewed the Stipulation, including the exhibits annexed thereto, and found good cause for
entering the following Order.
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 47 of 127
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. This Order hereby incorporates by reference the definitions in the Stipulation, and
all capitalized terms, unless otherwise defined herein, shall have the same meanings as set forth
in the Stipulation.
2. Pending determination of whether the Settlement should be approved, Lead
Plaintiffs, Intervenor Plaintiffs, Proposed Intervenor Plaintiffs, other Settlement Class Members,
and anyone who acts or purports to act on their behalf, shall not institute, commence or prosecute
any action that asserts any of the Released Claims against any of the Released Parties.
CERTIFICATION OF SETTLEMENT CLASS
3. Pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, the
Court hereby certifies, solely for purposes of effectuating the proposed Settlement (and without
an adjudication of the merits), a Settlement Class defined as:
All Persons who at any time purchased or otherwise acquired interests in the Certificates.1 Excluded from the Settlement Class are those Persons who purchased or otherwise acquired Certificates, but who have filed individual actions to separately pursue claims against the Settling Defendants relating to the Certificates or who have filed a valid request for exclusion in accordance with the requirements set forth in the Notice. Also excluded from the Settlement Class are Defendants, their officers and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any Defendant has or had a controlling interest, except for any Investment Vehicle, to the extent such entities themselves had a proprietary (i.e., for their own account) interest in the Certificates and not to the extent that they held Certificates in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that otherwise falls within the Settlement Class.
1 A complete list of the Certificates covered by this Settlement is listed on Table A-1 to the proof of claim and release form (“proof of claim”) annexed hereto as Exhibit 3.
2
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 48 of 127
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court hereby
appoints Lead Plaintiffs, City of Philadelphia Board of Pensions and Retirement, Los Angeles
County Employees Retirement Association, Police and Fire Retirement System of the City of
Detroit, Public Employees’ Retirement System of Mississippi, General Retirement System of the
City of Detroit, and Iowa Public Employees’ Retirement System as Settlement Class
Representatives.
5. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Lead Counsel
Berman DeValerio is appointed as Settlement Class Counsel and is authorized to act on behalf of
the Settlement Class Representatives and other Settlement Class Members, with respect to all
acts or consents required by or that may be given pursuant to the Stipulation, including all acts
that are reasonably necessary to consummate the Settlement.
APPOINTMENT OF CLAIMS ADMINISTRATOR
6. The Court approves the selection of Rust Consulting, Inc. by Settlement Class
Counsel as the Claims Administrator. Settlement Class Counsel may pay up to $600,000 from
the Underwriter Defendant Settlement Fund Escrow Account, without further approval from the
Settling Defendants or further order of the Court, for all reasonable Notice and Administration
Costs actually incurred. Such costs and expenses may include, without limitation, the actual
costs of publication, printing and mailing of the Notice and the Publication Notice (together, the
“Notices”), reimbursements to nominee owners for forwarding the Notices to their beneficial
owners, the administrative expenses actually incurred and fees reasonably charged by the Claims
Administrator in connection with searching for Settlement Class Members, and providing notices
and processing the submitted claims, and the reasonable fees, if any, of the Escrow Agent for the
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Underwriter Defendant Settlement Fund. To the extent that Notice and Administration Costs
exceed $600,000, they may be paid only pursuant to further Order of the Court.
NOTICE TO SETTLEMENT CLASS
7. The Court approves the form, substance and requirements of the Notices, and
finds that the procedures established for publication, mailing and distribution of such Notices
substantially in the manner and form set forth in this Order constitute the best notice practicable
under the circumstances and are in full compliance with the notice requirements of due process,
Rule 23 of the Federal Rules of Civil Procedure, and Section 27 of the Securities Act of 1933,
15 U.S.C. § 77z-l(a)(7), as amended by the Private Securities Litigation Reform Act of 1995.
Under no circumstances shall any Settlement Class Member be relieved from the terms of the
Settlement, including the releases provided for therein, based upon the contention or proof that
such Settlement Class Member failed to receive adequate or actual notice.
8. Settlement Class Counsel shall cause the Notice, substantially in the form
annexed hereto as Exhibit 1, as well as the proof of claim, substantially in the form annexed
hereto as Exhibit 3, to be mailed, by first class mail, postage prepaid, on or before ten (10)
business days after entry of this Order setting a specific date and time for the Final Approval
Hearing, to all Settlement Class Members at the address of each such person, as set forth in the
records of IndyMac, its transfer agent(s) or the trustee for the Offerings. Pursuant to the
Stipulation, the Settling Defendants shall cooperate reasonably with Settlement Class Counsel in
identifying the names and addresses of potential Settlement Class Members.
9. Settlement Class Counsel shall cause the Publication Notice, substantially in the
form annexed hereto as Exhibit 2, to be published once in the national edition of Investor’s
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Business Daily and once over the PR Newswire within five (5) calendar days of the mailing of
the Notice.
10. Settlement Class Counsel shall, at or before the Final Approval Hearing, file with
the Court proof of mailing of the Notice and proof of publication of the Publication Notice.
11. To effectuate the provision of Notice provided for in paragraphs 7-9 hereof,
Settlement Class Counsel or its agents shall lease and maintain a post office box of adequate size
for the return of the relevant mailing. The Notice shall designate said post office box as the
return address for the purposes designated in the Notice. Settlement Class Counsel or its agents
shall be responsible for the receipt of all responses from the Settlement Class and, until further
order of the Court, shall preserve all entries of appearance and all other written communications
from Settlement Class Members, nominees or any other person or entity in response to the
Notice or Publication Notice.
12. Settlement Class Counsel shall use reasonable efforts to give notice to nominee
owners such as brokerage firms and other persons or entities who purchased or otherwise
acquired the relevant securities as record owners but not as beneficial owners. Such nominees
who hold or held such securities for beneficial owners who are Settlement Class Members are
directed to send a copy of the Notice to the beneficial owner of the securities postmarked no
more than seven (7) calendar days from the date of receipt of the Notice, or to provide the names
and addresses of such persons no later than seven (7) calendar days from the date of receipt of
the Notice to the Claims Administrator at the address specified in the Notice, who shall promptly
send a copy of the Notice to such beneficial owners. Upon full compliance with this Order, such
nominees may seek reimbursement of their reasonable expenses actually incurred in complying
with this Order by providing the Claims Administrator with proper documentation supporting the
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expenses for which reimbursement is sought. Such properly-documented expenses incurred by
nominees in compliance with the terms of this Order shall be paid from the Underwriter
Defendant Settlement Fund.
REQUEST FOR EXCLUSION FROM THE SETTLEMENT CLASS
13. Any Person requesting exclusion from the Settlement Class must mail the request
in written form to the address designated in the Notice, such that it is received no later than
____________, 201___ [21 calendar days prior to the Final Approval Hearing]. Such request for
exclusion must clearly indicate the name, address and telephone number of the Person seeking
exclusion, that the sender requests to be excluded from the Settlement Class in the In re IndyMac
must be signed by such Person. Such Persons requesting exclusion are also directed to provide
the following information: (a) identity and original face value and class (with CUSIP number) of
the Certificates purchased (or otherwise acquired) or sold; (b) prices or other consideration paid
or received for such Certificates; (c) the date of each purchase or sale transaction; (d) proper
evidence of the transactions; and (e) a statement that the Person wishes to be excluded from the
Settlement Class. The request for exclusion shall not be effective unless it provides the required
information and is made within the time stated above, or the exclusion is otherwise accepted by
the Court.
14. Any Person who requests to be and is excluded from the Settlement Class shall
not be entitled to receive any payment out of the Underwriter Defendant Net Settlement Fund as
described in the Stipulation and Notice.
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HEARING: RIGHT TO BE HEARD
15. The Court shall conduct a hearing (the “Final Approval Hearing”) at the United
States District Court for the Southern District of New York, 500 Pearl Street, New York, New
York 10007. The Final Approval Hearing will be held on _________ at __ a.m./p.m. for the
following purposes:
(a) to determine whether the proposed Settlement on the terms and conditions
provided for in the Stipulation is fair, reasonable and adequate, and should be finally approved
by the Court;
(b) to determine whether the Order and Final Judgment as provided for under
the Stipulation should be entered, dismissing the Action as to the Settling Defendants, on the
merits and with prejudice, and to determine whether the release by the Settlement Class of the
Released Claims, as set forth in the Stipulation, should be ordered;
(c) to determine whether the Plan of Allocation is fair and reasonable and
should be approved by the Court;
(d) to determine whether the motion by Lead Counsel and the additional
Settlement Class Representatives’ counsel (collectively, “Counsel”) for attorneys’ fees and
reimbursement of Litigation Expenses incurred should be approved; and
(e) to rule upon such other matters as the Court may deem appropriate.
16. Lead Counsel shall submit its papers in support of final approval of the
Underwriter Defendant Settlement, Plan of Allocation, and the motion for attorneys’ fees and
reimbursement of Litigation Expenses by no later than thirty-five (35) calendar days before the
Final Approval Hearing. Reply papers, if any, shall be filed no later than seven (7) calendar days
before the Final Approval Hearing.
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17. Any Settlement Class Member who has not requested exclusion from the
Settlement Class may appear at the Final Approval Hearing to show cause: (a) why the proposed
Settlement should not be approved as fair, reasonable and adequate; (b) why a judgment should
not be entered thereon; (c) why the Plan of Allocation should not be approved; or (d) why
Counsel’s motion for attorneys’ fees and for reimbursement of Litigation Expenses incurred to
date should not be granted, provided, however, that no member of the Settlement Class shall be
heard or entitled to contest the approval of the terms and conditions of the proposed Settlement,
the Plan of Allocation, and/or and the Order to be entered approving the same or the attorneys’
fees and reimbursement of Litigation Expenses requested, unless, no later than twenty-one (21)
calendar days before the Final Approval Hearing, such Settlement Class Member has served, by
hand or by overnight delivery, written objections setting forth the basis therefor, and copies of
any supporting papers and briefs upon the following counsel:
Lead Counsel and Settlement Class Counsel Patrick T. Egan, Esq. Berman DeValerio One Liberty Square Boston, Massachusetts 02109
Settling Defendants’ Counsel Robert F. Serio, Esq. Aric H. Wu, Esq. Jason W. Myatt, Esq. Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, New York 10166
and has filed said objections, papers and briefs, showing due proof of service upon Lead Counsel
and Settlement Class Counsel and the Settling Defendants’ Counsel, with the Clerk of the United
States District Court for the Southern District of New York, 500 Pearl Street, New York, New
York 10007. Any objection must include: (a) the full name, address, and phone number of the
objecting Settlement Class Member; (b) a list and documentation of all of the Settlement Class
Member’s transactions involving the Certificates, including brokerage confirmation receipts or
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other competent documentary evidence of such transactions, including the amount and date of
each purchase or sale and the prices paid and/or received; (c) a written statement of all grounds
for the objection accompanied by any legal support for the objection; (d) copies of any papers,
briefs or other documents upon which the objection is based; (e) a list of all persons who will be
called to testify in support of the objection; (f) a statement of whether the objector intends to
appear at the Final Approval Hearing; (g) a list of other cases in which the objector or the
objector’s counsel have appeared either as settlement objectors or as counsel for objectors in the
preceding five years; and (h) the objector’s signature, even if represented by counsel. Persons
who intend to object to the Settlement, the Plan of Allocation, and/or to Counsel’s motion for
attorneys’ fees and for reimbursement of Litigation Expenses, and who desire to present
evidence at the Final Approval Hearing, must include in their written objections the identity of
any witnesses they intend to call to testify and exhibits they intend to introduce into evidence at
the Final Approval Hearing.
18. Any Settlement Class Member who does not object in the manner prescribed
above shall be deemed to have waived such objection and shall be forever barred from
requesting exclusion from the Settlement Class, or making any objection to the fairness,
adequacy or reasonableness of the Settlement, or the Order and Final Judgment, the Plan of
Allocation, and/or Counsel’s motion for attorneys’ fees and reimbursement of Litigation
Expenses, and shall be bound by the Settlement and the Order and Final Judgment, including, but
not limited to the release of the Released Claims provided for in the Stipulation and the Order
and Final Judgment, if the Court approves the Settlement.
19. If approved, all Settlement Class Members will be bound by the proposed
Settlement provided for in the Stipulation, and by any judgment or determination in the Action,
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whether favorable or unfavorable to the Settlement Class, regardless of whether or not a
Settlement Class Member executes and delivers a proof of claim form.
20. Any Settlement Class Member may enter an appearance in the Action at his, her,
or its own expense, individually or through counsel of his, her, or its own choice. If a Settlement
Class Member does not enter an appearance, he, she, or it will be represented by Settlement
Class Counsel.
21. The Court expressly reserves the right to adjourn the Final Approval Hearing
without any further notice to Settlement Class Members other than an announcement at the Final
Approval Hearing, and to approve the Stipulation and/or a Plan of Allocation, with modification
approved by the parties to the Stipulation, without further notice to Settlement Class Members.
The Court further reserves the right to enter its Order and Final Judgment approving the
Settlement and dismissing the Action on the merits and with prejudice as to Settling Defendants,
regardless of whether it has approved a Plan of Allocation or awarded attorneys’ fees and
reimbursement of Litigation Expenses.
CLAIMS PROCESS
22. In order to be entitled to participate in the Settlement and eligible to share in the
Underwriter Defendant Net Settlement Fund, a Settlement Class Member must complete and
submit a proof of claim form in accordance with the instructions contained therein. To be valid
and accepted, proof of claim forms submitted in connection with the Settlement must be
postmarked no later than _________________ [120 days from date of this Order].
23. Any Settlement Class Member who does not timely submit a valid proof of claim
form shall not be eligible to share in the Underwriter Defendant Net Settlement Fund, unless
otherwise ordered by the Court, but nonetheless shall be barred and enjoined from asserting any
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of the Released Claims and shall be bound by any judgment or determination of the Court
affecting Settlement Class Members.
24. All funds held in the Underwriter Defendant Settlement Fund Escrow Account
shall be deemed and considered to be in custodia legis and shall remain subject to the jurisdiction
of the Court until such time as such funds shall be distributed pursuant to the Stipulation and/or
further order of the Court.
25. Lead Counsel or its agents are authorized and directed to prepare any tax returns
required to be filed for the Underwriter Defendant Settlement Fund Escrow Account and to cause
any Taxes or Tax Expenses due and owing to be paid from the Underwriter Defendant
Settlement Fund Escrow Account without further Order of the Court, and to otherwise perform
all obligations with respect to Taxes and any reportings or filings in respect thereof as
contemplated by the Stipulation without further Order of the Court.
26. None of the Settling Defendants, nor any of the other Released Parties, shall have
any liability or responsibility whatsoever for any Plan of Allocation nor for any motion for
attorneys’ fees or for reimbursement of Litigation Expenses submitted by Counsel, that may be
submitted in connection with final approval of this proposed Settlement or at a later date, and
such matters will be considered separately from the fairness, reasonableness and adequacy of the
Settlement.
27. Unless otherwise provided in the Stipulation, there shall be no distribution of any
of the Underwriter Defendant Net Settlement Fund to any Settlement Class Member until a Plan
of Allocation is finally approved and is affirmed on appeal or certiorari or is no longer subject to
review by appeal or certiorari and the time for any petition for rehearing, appeal or review,
whether by certiorari or otherwise, has expired.
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28. The administration of the proposed Settlement and the determination of all
disputed questions of law and fact with respect to the validity of any Claim or right of any person
or entity to participate in the distribution of the Underwriter Defendant Net Settlement Fund shall
remain under the authority of this Court.
29. The Court retains exclusive jurisdiction over the Action to consider all further
matters arising out of or connected with the Settlement. In the event the Settlement does not
become Final, for any reason (including any party’s exercise of a valid right to terminate under
the Stipulation), the Stipulation, except as otherwise provided therein, including any
amendment(s) thereto, and this Order, including but not limited to the certification of the
Settlement Class provided in paragraph 3 herein, shall be null and void, of no further force or
effect, and without prejudice to any party, and may not be introduced as evidence or referred to
in any action or proceedings by any person or entity, the parties to the Stipulation shall be
restored to their respective positions in the Action immediately before July 23, 2014, and, except
as otherwise expressly provided, the parties shall proceed in all respects as if the Stipulation and
any related orders had not been entered, and the balance of the Underwriter Defendant
Settlement Fund, less any Notice and Administration Expenses paid or incurred and less any
Taxes and Tax Expenses paid, incurred or owing, shall be refunded to the Settling Defendants
that funded the Underwriter Defendant Settlement Amount, including interest accrued thereon,
within ten (10) business days.
30. The fact and terms of this Order and the Settlement, all negotiations, discussions,
drafts and proceedings in connection with this Order and the Settlement, and any act performed
or document signed in connection with this Order and the Settlement, shall not, in this or any
other Court, administrative agency, arbitration forum or other tribunal, constitute an admission
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of, or evidence of, or be deemed to create any inference of: (a) any acts of wrongdoing or lack of
wrongdoing; (b) any liability on the part of the Settling Defendants to Lead Plaintiff, any
Settlement Class Member, or anyone else; (c) any deficiency of any claim or defense that has
been or could have been asserted in the Action; (d) any damages or lack of damages suffered by
Lead Plaintiff, any Settlement Class Member, or anyone else; or (e) that the Underwriter
Defendant Settlement Amount (or any other amount) represents the amount that could or would
have been recovered in this Action if it was not settled at this point in time. The fact and terms
of this Order and the Settlement, all negotiations, discussions, drafts and proceedings in
connection with this Order and the Settlement, and any act performed or document signed in
connection with this Order and the Settlement, shall not be offered or received in evidence or
used for any other purpose in this or any other proceeding in any court, administrative agency,
arbitration forum or other tribunal, except as necessary to enforce the terms of this Order and/or
the Settlement, including, but not limited to, the Order and Final Judgment and the release of the
Released Claims provided for in the Stipulation and the Order and Final Judgment.
Dated: New York, New York
_______________________, 2014
HONORABLE LEWIS A. KAPLAN UNITED STATES DISTRICT JUDGE
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Exhibit A-1
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 60 of 127
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09-Civ. 04583 (LAK)
ECF CASE
This Document Relates To:
ALL ACTIONS
[EXHIBIT A-1 TO STIPULATION]
NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT WITH UNDERWRITER DEFENDANTS, PLAN OF ALLOCATION, FINAL APPROVAL
HEARING FOR SETTLEMENT WITH UNDERWRITER DEFENDANTS, VOLUNTARY DISMISSAL OF DEFENDANT INDYMAC MBS, INC., AND MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
Notice of Pendency of Class Action: Please be advised that your rights may be affected by the above-captioned class action lawsuit pending in this Court (the “Action”) if you purchased or otherwise acquired interests in the securities that were issued by the following trusts and offered pursuant to public filings with the U.S. Securities and Exchange Commission (the “Certificates”):1
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H2
IndyMac INDX Mortgage Loan Trust 2006-AR29
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H3
IndyMac INDX Mortgage Loan Trust 2006-AR33
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-D
1 The CUSIP numbers for the Certificates are set forth in Table A-1 to the Plan of Allocation (as defined in ¶ 42 herein), which is attached as Appendix A to the accompanying Proof of Claim and Release form (“proof of claim form”) and also available on the Settlement website: http://indymacmbsclassaction.com.
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 61 of 127
2006-L2 IndyMac INDA Mortgage Loan Trust 2007-AR2 Residential Asset Securitization Trust 2006-A11 IndyMac INDA Mortgage Loan Trust 2007-AR7 Residential Asset Securitization Trust 2006-A12 IndyMac INDA Mortgage Loan Trust 2007-AR8 Residential Asset Securitization Trust 2006-A13 IndyMac INDA Mortgage Loan Trust 2007-AR9 Residential Asset Securitization Trust 2006-A14CB IndyMac INDX Mortgage Loan Trust 2006-AR13 Residential Asset Securitization Trust 2006-A15 IndyMac INDX Mortgage Loan Trust 2006-AR15 Residential Asset Securitization Trust 2006-A7CB IndyMac INDX Mortgage Loan Trust 2006-AR21 Residential Asset Securitization Trust 2006-R2 IndyMac INDX Mortgage Loan Trust 2006-AR23 Residential Asset Securitization Trust 2007-A1 IndyMac INDX Mortgage Loan Trust 2006-AR25 Residential Asset Securitization Trust 2007-A5 IndyMac INDX Mortgage Loan Trust 2006-AR27 Residential Asset Securitization Trust 2007-A8 Notice of Settlement with Underwriter Defendants: Please also be advised that Lead Plaintiffs, on behalf of a settlement class (referred to herein as the “Underwriter Defendant Settlement Class” and as defined in ¶ 1 below), and Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC (collectively, the “Underwriter Defendants”), have reached a settlement in the Action (the “Underwriter Defendant Settlement”). The terms of the Underwriter Defendant Settlement are set forth in the Amended Stipulation and Agreement of Settlement, dated September 19, 2014 that has been filed with the Court (the “Stipulation of Settlement”). Pursuant to the Stipulation of Settlement, the Underwriter Defendants will cause $340 million to be deposited into a settlement fund in exchange for a release of claims by Settlement Class Members.
Notice of Voluntary Dismissal of Defendant IndyMac MBS, Inc.: Please also be advised that Lead Plaintiffs intend to voluntarily dismiss Defendant IndyMac MBS, Inc. (“IndyMac MBS”), the sole remaining non-settling defendant, without prejudice from the Action. Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action is not part of the Underwriter Defendant Settlement. Based on information obtained through discovery, including receipt of a sworn declaration from IndyMac MBS, Lead Plaintiffs believe that any judgment entered against IndyMac MBS would be uncollectible. Accordingly, Lead Plaintiffs intend to voluntarily dismiss IndyMac MBS from the Action without prejudice.
This Notice explains important rights you may have. Your legal rights will be affected whether or not you act. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY!
1. Description of the Underwriter Defendant Settlement and the Underwriter Defendant Settlement Class: This Notice relates to a proposed settlement of a class action lawsuit with the Underwriter Defendants. If approved by the Court, the Underwriter Defendant Settlement will apply to the following “Underwriter Defendant Settlement Class”: All persons
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or entities who at any time purchased or otherwise acquired interests in the Certificates. Excluded from the Underwriter Defendant Settlement Class are those persons or entities who purchased or otherwise acquired Certificates, but who have filed individual actions to separately pursue claims against the Underwriter Defendants relating to the Certificates or who have filed a valid request for exclusion. Also excluded from the Underwriter Defendant Settlement Class are the Defendants, their officers and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any Defendant has or had a controlling interest, except for any Investment Vehicle,2 to the extent such entities themselves had a proprietary (i.e., for their own account) interest in the Certificates and not to the extent that they held Certificates in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that otherwise falls within the Underwriter Defendant Settlement Class. Anyone with questions as to whether or not they are excluded from the Underwriter Defendant Settlement Class may call the Claims Administrator, Rust Consulting, Inc., toll-free at: (877) 773-8195.
2. Statement of Recovery to the Underwriter Defendant Settlement Class: Pursuant to the Stipulation of Settlement, the Underwriter Defendants will cause $340 million in cash to be deposited into an interest-bearing escrow account (the “Underwriter Defendant Settlement Fund”) in exchange for dismissal of the Action against them and an order forever barring Underwriter Defendant Settlement Class Members from pursuing any Released Claims (as defined in ¶ 49 below) against them. Once the Underwriter Defendant Settlement is finally approved by the Court, the Underwriter Defendant Settlement Fund less all Taxes and Tax Expenses, Notice and Administration Costs, and attorneys’ fees and Litigation Expenses awarded to Lead Counsel (as those terms are defined in the Stipulation of Settlement) (the “Underwriter Defendant Net Settlement Fund”) will be distributed to Underwriter Defendant Settlement Class Members (as defined in ¶ 1 above) in accordance with a Plan of Allocation that sets forth how the Underwriter Defendant Net Settlement Fund is to be allocated among Authorized Claimants (as defined in ¶ 42 below).
3. Statement of Average Distribution Per $1,000 in Initial Certificate Value: The Underwriter Defendant Settlement Fund consists of $340 million plus interest earned thereon. Based on the total initial face dollar value of the Certificates as stated in the prospectus supplements (without subtracting the principal pay downs received on the Certificates), and assuming all purchasers of the initially offered Certificates elect to participate, the estimated average distribution before deducting attorneys’ fees and reimbursement of Litigation Expenses is $14.42 per $1,000 in initial certificate value of the Certificates. Underwriter Defendant Settlement Class Members may recover more or less than this amount depending on, among other factors, when their Certificates were purchased or sold, the amount of principal that has been repaid, the value of the Certificates on the applicable date of first suit, the number of
2 “Investment Vehicle” means any investment company or pooled investment fund (including, but not limited to, mutual fund families, exchange-traded funds, fund of funds and hedge funds) in which any Defendant has or may have a direct or indirect interest, or as to which its affiliates may act as an investment advisor, general partner, managing member, or other similar capacity, but of which any Defendant or any of its respective affiliates is not a majority owner or does not hold a majority beneficial interest.
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Underwriter Defendant Settlement Class Members who timely file proof of claim forms and the Plan of Allocation, as more fully described below in this Notice.
4. Statement of the Parties’ Position on Damages: The Underwriter Defendants deny all claims of wrongdoing, fault or liability to Lead Plaintiffs and/or the Underwriter Defendant Settlement Class. The Underwriter Defendants further deny that Lead Plaintiffs or the Underwriter Defendant Settlement Class have suffered any damages, that the price of the Certificates were artificially inflated at any time as the result of any alleged misrepresentations or omissions, and that Lead Plaintiffs or the Underwriter Defendant Settlement Class were harmed by the conduct alleged in the Action. The issues on which the parties disagree include, but are not limited to: (1) whether the alleged misrepresentations in the offering documents for the Certificates were material, untrue or misleading, or whether the offering documents omitted material information; (2) whether the Underwriter Defendants are otherwise liable under the securities laws for those statements or omissions; and (3) whether the price of the Certificates were artificially inflated at any time as the result of any alleged misrepresentation and omission in the offering documents.
5. Statement of Attorneys’ Fees and Litigation Expenses Sought: Prior to final distribution of funds, Lead Counsel and the additional Settlement Class Representatives’ counsel (“Counsel”) will apply to the Court for an award of attorneys’ fees in an amount not to exceed 13% of the sum of (i) the Underwriter Defendant Settlement Fund; and (ii) the Individual Defendant Settlement Fund previously obtained in connection with a settlement with Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor H. Woodworth.3 In connection with the Individual Defendant Settlement, the Court has approved reimbursement of expenses totaling $916,058.44 and issued two Interim Expense awards permitting the withdrawal of an additional $1,000,229.81 in expenses. This does not cover all outstanding Litigation Expenses, and does not include the reasonable costs and expenses of Lead Plaintiffs (and other named Plaintiffs) directly related to their representation of the Individual Defendant and Underwriter Defendant classes. Counsel intend to seek reimbursement of additional Litigation Expenses in an amount not to exceed $3,400,000. Lead Counsel will also seek that the reimbursement of all Litigation Expenses (including Litigation Expenses previously awarded) be allocated proportionally between the Individual Defendant Settlement Fund (1.73% of all Litigation Expenses) and Underwriter Defendant Settlement Fund (98.27% of all Litigation Expenses). Based on the total initial face dollar value of the Certificates as stated in the prospectus supplements (without subtracting the principal pay downs received on the Certificates), and assuming all purchasers of the initially offered Certificates elect to participate, if the Court approves Counsel’s fee request and Litigation Expense application, as well as Lead Counsel’s proposed allocation between the two settlements, the estimated average cost is $2.10 per $1,000 in initial certificate value of the Certificates. The actual cost may be more or less than this amount depending on, among other factors, when the Certificates were purchased or
3 On December 18, 2012, the Court granted final approval to Lead Plaintiffs’ settlement for $6 million in cash with Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor H. Woodworth. Lead Counsel has not previously applied for an award of attorneys’ fees from either the Underwriter Defendant Settlement Fund or the Individual Defendant Settlement Fund.
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sold, the amount of principal that has been repaid, the value of the Certificates on the date claims relating to the Certificates were first asserted in the Action, the number of Underwriter Defendant Class Members who timely file proof of claim forms and the Plan of Allocation.
6. Identification of Attorneys’ Representatives: Lead Plaintiffs and the Underwriter Defendant Settlement Class are being represented by Berman DeValerio. Any questions regarding the Underwriter Defendant Settlement, the Plan of Allocation, Lead Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses and Lead Counsel’s request to dismiss IndyMac MBS from the Action should be directed to Patrick T. Egan, Esq. at Berman DeValerio, One Liberty Square, Boston, MA 02109, (800) 516-9926, [email protected].
YOUR LEGAL RIGHTS AND OPTIONS IN CONNECTION WITH THE PROPOSED SETTLEMENT WITH THE UNDERWRITER DEFENDANTS
DO NOTHING Get no payment from the Underwriter Defendant Settlement. Remain an Underwriter Defendant Settlement Class Member. Underwriter Defendant Settlement Class Members who choose this option give up their rights.
REMAIN A MEMBER OF THE UNDERWRITER DEFENDANT SETTLEMENT CLASS AND SUBMIT A PROOF OF CLAIM FORM BY __________.
This is the only way to be eligible to receive a payment from the Underwriter Defendant Settlement.
If you are a member of the Underwriter Defendant Settlement Class (i.e., you do not exclude yourself from the Underwriter Defendant Settlement Class) but fail to complete and submit the proof of claim form, you will get no payment, but remain a Underwriter Defendant Settlement Class Member and give up your rights.
EXCLUDE YOURSELF FROM THE UNDERWRITER DEFENDANT SETTLEMENT CLASS BY SUBMITTING A WRITTEN REQUEST FOR EXCLUSION SO THAT IT IS RECEIVED NO LATER THAN ________.
Underwriter Defendant Settlement Class Members who choose this option receive no payment from the Underwriter Defendant Settlement. If you exclude yourself from the Underwriter Defendant Settlement Class, you may be able to seek recovery against the Underwriter Defendants or other Released Parties through other litigation.
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COMMENT ON (INCLUDING OBJECTING TO) THE (i) UNDERWRITER DEFENDANT SETTLEMENT; (ii) PLAN OF ALLOCATION; OR (iii) REQUEST FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES BY SUBMITTING WRITTEN OBJECTIONS SO THAT THEY ARE RECEIVED NO LATER THAN ________.
Write to the Court and explain why you do not like the Underwriter Defendant Settlement, the Plan of Allocation, and/or any request for attorneys’ fees and reimbursement of Litigation Expenses. If you exclude yourself from the Underwriter Defendant Settlement Class, you cannot object to the Underwriter Defendant Settlement, the Plan of Allocation, or the request for attorneys’ fees and reimbursement of Litigation Expenses.
GO TO THE HEARING ON _______ AT __:___ _.M. AND FILE A NOTICE OF INTENTION TO APPEAR SO THAT IT IS RECEIVED NO LATER THAN _______.
Ask to speak in Court about the fairness of the Underwriter Defendant Settlement, the Plan of Allocation, and any request for attorneys’ fees and reimbursement of Litigation Expenses.
YOUR LEGAL RIGHTS AND OPTIONS IN CONNECTION WITH THE PROPOSED VOLUNTARY DISMISSAL OF DEFENDANT INDYMAC MBS FROM THE ACTION
COMMENT ON (INCLUDING OBJECTING TO) THE PROPOSED DISMISSAL OF INDYMAC MBS BY SUBMITTING WRITTEN OBJECTIONS SO THAT THEY ARE RECEIVED NO LATER THAN ________.
Write to the Court and explain why you do not like Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action.
GO TO THE HEARING ON _______ AT __:___ _.M. AND FILE A NOTICE OF INTENTION TO APPEAR SO THAT IT IS RECEIVED NO LATER THAN _______.
Ask to speak in Court about the fairness of the proposed dismissal of IndyMac MBS from the Action.
DO NOTHING You will be bound by any judgment entered in the Action regarding IndyMac MBS.
WHAT THIS NOTICE CONTAINS
Why Did I Get This Notice? Page
What Is This Case About? What Has Happened So Far? Page
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How Do I Know If I Am Affected By The Settlement With The Underwriter Defendants? Page
What Are The Lead Plaintiffs’ Reasons For Settling With The Underwriter Defendants? Page
What Might Happen If There Were No Settlement With The Underwriter Defendants? Page
How Much Will My Payment Be? When Will I Receive It? Page
What Rights Am I Giving Up By Agreeing To The Underwriter Defendant Settlement? Page
What Payment Are The Attorneys For The Class Seeking?
How Will The Lawyers Be Paid? Page
How Do I Participate In The Underwriter Defendant Settlement?
What Do I Need To Do? Page
What If I Object To Lead Plaintiffs’ Proposed Dismissal Of Defendant IndyMac MBS From The Action? Page
What If I Do Not Want To Be A Part Of The Settlement With The Underwriter Defendants?
How Do I Exclude Myself? Page
When And Where Will The Court Decide Whether To Approve The Underwriter Defendant Settlement, The Plan Of Allocation And Lead Counsel’s Request For Attorneys’ Fees And Reimbursement Of Litigation Expenses?
Do I Have To Come To The Hearing?
May I Speak At The Hearing If I Don’t Like The Settlement? Page
What If I Bought Certificates On Someone Else’s Behalf? Page
Can I See The Court File? Who Should I Contact If I Have Questions? Page
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WHY DID I GET THIS NOTICE?
7. This Notice is being sent to you pursuant to an Order of the U.S. District Court for
the Southern District of New York (the “Court”) because you or someone in your family may have purchased or otherwise acquired interests in one or more of the Certificates described above. The Court has directed us to send you this Notice because, as a potential Underwriter Defendant Settlement Class Member, you have a right to know about your options before the Court decides whether to approve the Underwriter Defendant Settlement. Additionally, you have the right to understand how a class action lawsuit may generally affect your legal rights.
8. A class action is a type of lawsuit in which the claims of a number of individuals are resolved together, thus providing the class members with both consistency and efficiency. In a class action lawsuit, the Court selects one or more people, known as class representatives or lead plaintiffs, to sue on behalf of all people with similar claims, commonly known as the class or the class members. Once the class is certified, the Court must resolve all issues on behalf of the class members, except for any persons who choose to exclude themselves from the class. (For more information on excluding yourself from the Class, please read “What If I Do Not Want To Be A Part of The Settlement With The Underwriter Defendants? How Do I Exclude Myself?” located below). In the Action, the Court has directed that Lead Plaintiffs and Lead Counsel have primary responsibility for prosecuting all claims against Defendants on behalf of investors in the Certificates described above.
9. The Court in charge of this case is the U.S. District Court for the Southern District of New York, and the case is known as In re: IndyMac Mortgage-Backed Securities Litigation, Civil Action No. 09 Civ. 004583 (LAK) (S.D.N.Y.). The Judge presiding over this case is the Honorable Lewis A. Kaplan, U.S. District Judge. The people who are suing are called plaintiffs, and those who are being sued are called defendants. In this case, the Court has appointed Wyoming Retirement System and Wyoming State Treasurer as Lead Plaintiffs, and the Defendants include the Underwriter Defendants, IndyMac MBS (whom Lead Plaintiffs propose to dismiss from the case), and the Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor H. Woodworth (with whom Lead Plaintiffs reached a settlement in 2012). IndyMac Bank, F.S.B., the Sponsor, Seller and initial Servicer of the Certificates described above, is not a party to this Action because it was placed in FDIC receivership on July 11, 2008.
10. This Notice explains the lawsuit, the proposed Underwriter Defendant Settlement,
your legal rights, what benefits are available, who is eligible for them, and how to get them. The purpose of this Notice is to inform you of this case, that it is a class action, how you might be affected, and how to exclude yourself from the Underwriter Defendant Settlement if you wish to do so. It also is being sent to inform you of (a) the terms of the Underwriter Defendant Settlement; (b) the proposed Plan of Allocation; (c) Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses; (d) Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action; and (e) a hearing to be held by the Court to consider the fairness, reasonableness and adequacy of the Underwriter Defendant Settlement, the terms of the proposed Plan of Allocation, and Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses (the “Settlement Hearing”).
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11. The Settlement Hearing will be held on ___________, at __________ __.m.,
before the Honorable Lewis A. Kaplan, at the United States District Court for the Southern District of New York, 500 Pearl Street, Courtroom 21B, New York, New York 10007, to determine:
(i) whether the Underwriter Defendant Settlement on the terms and
conditions provided for in the Stipulation of Settlement between Lead Plaintiffs and the Underwriter Defendants is fair, reasonable and adequate, and should be finally approved by the Court;
(ii) whether an Order and Final Judgment should be entered dismissing the
Action, on the merits and with prejudice, against the Underwriter Defendants, and forever barring the Underwriter Defendant Settlement Class Members from pursuing any Released Claims (as defined in ¶ 49 below) against the Released Parties (as defined in ¶ 50 below);
(iii) whether the Plan of Allocation is fair and reasonable and should be
approved by the Court; (iv) whether Counsel’s application for attorneys’ fees and reimbursement of
Litigation Expenses incurred should be approved by the Court; and (v) other such matters as the Court may deem necessary.
12. This Notice does not express any opinion by the Court concerning the merits of
any claim in the Action, and the Court still has to decide whether to approve the Underwriter Defendant Settlement.
13. Although not part of the Underwriter Defendant Settlement, Lead Plaintiffs also may seek at the Settlement Hearing the Court’s approval Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action.
WHAT IS THIS CASE ABOUT? WHAT HAS HAPPENED SO FAR?
14. On May 14, 2009, Police and Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., et al., No. 09 Civ. 04583 (S.D.N.Y.) (the “Detroit Action”), was filed.
15. On June 29, 2009, Wyoming State Treasurer, et al. v. Olinski, et al., No. 09 Civ. 05933 (S.D.N.Y.) (the “Wyoming Action”), was filed.
16. By an order entered on July 29, 2009, the Court (i) consolidated the Detroit Action and the Wyoming Action under the caption In re IndyMac Mortgage-Backed Securities Litigation, Master Docket No. 09 Civ. 04583 (LAK) (S.D.N.Y.) (the “Action”); (ii) appointed Wyoming State Treasurer and Wyoming Retirement System as Lead Plaintiffs; and (iii) appointed Berman DeValerio as Lead Counsel for the Action.
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17. On October 9, 2009, Lead Plaintiffs filed a Consolidated Class Action Complaint.
18. On October 29, 2009, Lead Plaintiffs filed an Amended Consolidated Class Action Complaint asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the “Securities Act”) for alleged misrepresentations and omissions in the offering documents for IndyMac-sponsored mortgage pass-through certificates. The named plaintiffs in the Amended Consolidated Complaint were Lead Plaintiffs. The named defendants in the Amended Consolidated Complaint included Michael W. Perry, the former CEO of IndyMac Bank, F.S.B.; IndyMac MBS, Inc. and seven of its former officers and directors (Lynette Antosh, Raphael Bostic, S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick, and Victor H. Woodworth); Fitch, Inc., The McGraw-Hill Companies, Inc. and Moody’s Investors Service Inc. (the “Rating Agency Defendants”); IndyMac Securities Corp.; and Bank of America Corporation, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., HSBC Securities (USA) Inc., J.P. Morgan Securities Inc. (n/k/a J.P. Morgan Securities LLC), Morgan Stanley & Co., Incorporated (n/k/a Morgan Stanley & Co. LLC), RBS Securities Inc., and UBS Securities LLC.
19. On November 23, 2009, all defendants moved to dismiss the Amended Consolidated Complaint.
20. On February 5, 2010, the Court granted the Rating Agency Defendants’ motion to dismiss and entered an Order dismissing all claims against the Rating Agency Defendants.
21. On June 21, 2010, the Court issued a Memorandum Opinion granting in part and denying in part the other defendants’ motions to dismiss. The Court dismissed, for lack of standing, all claims related to offerings from which Lead Plaintiffs did not purchase securities. The Court also dismissed all claims relating to three out of the four categories of alleged misrepresentations and omissions.
22. On July 7, 2010, the Court issued an Order granting in part reconsideration of its June 21, 2010 Memorandum Opinion and stating that “the motions of defendants Perry, BoA, HSBC Securities (USA) Inc., Goldman Sachs & Co., Citigroup Global Markets Inc., and IndyMac Securities Corp. to dismiss the complaint against them . . . are granted in all respects.”
23. On September 8, 2010, the Court entered a stipulated Order to clarify the June 21, 2010 Memorandum Opinion and July 7, 2010 Order to “provide that Plaintiffs’ claims under § 11 of the [Securities] Act are dismissed with prejudice . . . based on the statute of repose set forth in § 13 of the [Securities] Act” with respect to securities issued by IndyMac INDX Mortgage Loan Trust Series 2006-AR2, IndyMac INDX Mortgage Loan Trust Series 2006-AR3, IndyMac INDX Mortgage Loan Trust Series 2006-AR4, IndyMac INDX Mortgage Loan Trust Series 2006-AR7, IndyMac INDX Mortgage Loan Trust Series 2006-AR11, and Residential Asset Securitization Trust Series 2006-A2.
24. On December 10, 2010, Lead Plaintiffs moved for certification of a class consisting of “[a]ll persons or entities who purchased or otherwise acquired beneficial interests in Certificates offered to the public in 10 Offerings” of IndyMac-sponsored mortgage pass-through certificates. On August 17, 2012, the Court entered a Memorandum Opinion dismissing
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Lead Plaintiffs’ claims relating to one offering and granting Lead Plaintiffs’ motion for class certification with respect to investors in securities from the other nine offerings.
25. Between May 17, 2010 and August 19, 2010, three motions to intervene were filed seeking to add named plaintiffs for claims relating to offerings from which Lead Plaintiffs did not purchase any securities. The proposed intervenors were City of Philadelphia Board of Pensions and Retirement, Los Angeles County Employees Retirement Association, Public Employees’ Retirement System of Mississippi, Police and Fire Retirement System of the City of Detroit, General Retirement System of the City of Detroit, and Iowa Public Employees’ Retirement System.
26. On June 21, 2011, the Court issued a Memorandum Opinion granting intervention in part by City of Philadelphia Board of Pensions and Retirement, Los Angeles County Employees Retirement Association, Police and Fire Retirement System of the City of Detroit, and Public Employees’ Retirement System of Mississippi, and denying intervention by General Retirement System of the City of Detroit and Iowa Public Employees’ Retirement System. On July 20, 2011, Los Angeles County Employees Retirement Association, and Public Employees’ Retirement System of Mississippi dismissed with prejudice those claims for which the Court had granted them leave to intervene.
27. Los Angeles County Employees Retirement Association, Public Employees’ Retirement System of Mississippi, and General Retirement System of the City of Detroit appealed the Court’s June 21, 2011 Memorandum Opinion to the U.S. Court of Appeals for the Second Circuit. During the pendency of the appeal, the Second Circuit issued a decision regarding “class standing” in NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012) (“NECA-IBEW”). On June 27, 2013, the Second Circuit affirmed the Court’s June 21, 2011 Memorandum Opinion as to “those claims and defendants as to which [Lead Plaintiffs] would lack standing under NECA-IBEW.” Police and Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 110 n.19 (2d Cir. 2013). Public Employees’ Retirement System of Mississippi has appealed the Second Circuit’s June 27, 2013 decision to the U.S. Supreme Court; however, none of the securities at issue on the appeal to the U.S. Supreme Court were underwritten by Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., or UBS Securities LLC.
28. On August 15, 2011, Lead Plaintiffs filed a Second Amended Consolidated Class Action Complaint. In addition to Lead Plaintiffs, the named plaintiffs in the Second Amended Consolidated Class Action Complaint were City of Philadelphia Board of Pensions and Retirement and Police and Fire Retirement System of the City of Detroit. On February 4, 2011, Lead Plaintiffs and Defendants Lynette Antosh and Raphael Bostic stipulated to the dismissal of Antosh and Bostic from the Action with prejudice. On September 16, 2011, the remaining defendants in the Action answered the Second Amended Consolidated Class Action Complaint.
29. On July 26, 2012, Lead Plaintiffs filed a motion regarding a settlement for $6 million in cash with Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick, and Victor H. Woodworth. This settlement with five individual defendants (the “Individual Defendant Settlement”) received final approval from the Court on December 18, 2012.
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Following the Individual Defendant Settlement, the remaining defendants in the Action were IndyMac MBS, Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC.
30. On September 6, 2012, the Second Circuit issued its decision regarding “class standing” in NECA-IBEW. On March 18, 2013, the U.S. Supreme Court denied the petition for writ of certiorari in NECA-IBEW. On May 9, 2013, without prejudice to or waiver of any of the parties’ rights, including defendants’ right to challenge in this Court or on appeal the “class standing” of Lead Plaintiffs to pursue claims relating to offerings from which they did not purchase securities, Lead Plaintiffs and the remaining defendants stipulated to the reinstatement of claims relating to 36 offerings. On May 17, 2013, Lead Plaintiffs moved for the reinstatement of claims relating to an additional six offerings. On July 23, 2013, the Court granted Lead Plaintiffs’ motion.
31. On April 29, 2013, Lead Plaintiffs and Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC participated in a mediation session.
32. On August 30, 2013, Lead Plaintiffs moved for certification of an expanded class to “include claims based on the additional 42 offerings the Court reinstated into this case in light of the Second Circuit’s decision in NECA-IBEW v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012).” Lead Plaintiffs also moved for certification of six additional class representatives: City of Philadelphia Board of Pensions and Retirement, Los Angeles County Employees Retirement Association, Public Employees’ Retirement System of Mississippi, Police and Fire Retirement System of the City of Detroit, General Retirement System of the City of Detroit, and Iowa Public Employees’ Retirement System. The motion has not yet been decided by the Court.
33. On July 18, 2014, Lead Plaintiffs and Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC participated in a second mediation session. On July 23, 2014, these parties accepted a mediator’s proposal to settle this Action.
34. In light of Lead Plaintiffs’ agreement in principle to resolve the litigation with the Underwriter Defendants, Lead Counsel approached remaining defendant IndyMac MBS about resolution of this matter. Based on discussions among counsel, review of produced discovery and a sworn affidavit attesting that IndyMac MBS is part of the FDIC’s receivership estate and has almost no assets, no revenue, no reasonable prospects of acquiring revenue and no available insurance, Lead Plaintiffs have agreed to dismiss IndyMac MBS.
35. On ______, 2014, the Court certified a Settlement Class (the “Underwriter Defendant Settlement Class”) for purposes of the Underwriter Defendant Settlement, authorized this Notice to be sent to the Underwriter Defendant Settlement Class Members, and scheduled the Settlement Hearing to consider whether to grant final approval of the Underwriter Defendant Settlement, the Plan of Allocation, and Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses.
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HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT WITH THE UNDERWRITER DEFENDANTS?
36. If you are a member of the Underwriter Defendant Settlement Class, you are
subject to the Underwriter Defendant Settlement unless you timely request to be excluded. The Underwriter Defendant Settlement Class consists of all Persons who at any time purchased or otherwise acquired interests in the Certificates. Excluded from the Underwriter Defendant Settlement Class are those Persons who purchased or otherwise acquired Certificates, but who have filed individual actions to separately pursue claims against the Underwriter Defendants relating to the Certificates or who have filed a valid request for exclusion in accordance with the requirements set forth in this Notice (see section below entitled “What If I Do Not Want To Be A Part of The Settlement With The Underwriter Defendants? How Do I Exclude Myself?”). Also excluded from the Underwriter Defendant Settlement Class are the Defendants, their officers and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any Defendant has or had a controlling interest, except for any Investment Vehicle, to the extent such entities themselves had a proprietary (i.e., for their own account) interest in the Certificates and not to the extent that they held Certificates in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that otherwise falls within the Settlement Class.
RECEIPT OF THIS NOTICE DOES NOT NECESSARILY MEAN THAT YOU ARE AN UNDERWRITER DEFENDANT SETTLEMENT CLASS MEMBER OR THAT YOU ARE ENTITLED TO RECEIVE PROCEEDS FROM THE UNDERWRITER DEFENDANT SETTLEMENT.
WHAT ARE THE LEAD PLAINTIFFS’ REASONS FOR SETTLING WITH THE UNDERWRITER DEFENDANTS?
37. Lead Counsel has conducted extensive discovery relating to the claims and the
underlying events and transactions alleged in the Second Amended Consolidated Class Action Complaint. Commencing in 2010, Lead Counsel began seeking discovery from Defendants and relevant third parties, including the FDIC (who placed IndyMac Bank in receivership in 2008), OneWest (who has possession of the underlying loan files), due diligence vendors that worked for the Underwriter Defendants, and accountants and other entities involved in the offerings at issue. To date, Lead Counsel has searched, culled and reviewed over 14 million pages of documents, served multiple rounds of written discovery, interviewed dozens of witnesses, and deposed former employees of certain of the Underwriter Defendants. Lead Counsel has researched the applicable law with respect to the claims against the Underwriter Defendants, as well as the potential defenses thereto.
38. Lead Plaintiffs and Lead Counsel believe that the claims asserted against the
Underwriter Defendants have merit. Lead Plaintiffs and Lead Counsel recognize, however, the expense and length of continued proceedings necessary to pursue their claims against the Underwriter Defendants through trial and appeals, as well as the challenges to establishing
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liability and damages. Lead Plaintiffs and Lead Counsel have considered the uncertain outcome of trial and appellate risk in complex lawsuits like this one.
39. The Underwriter Defendants believe that the claims asserted against them are
meritless and have denied and continue to deny each and all of the claims alleged by Lead Plaintiffs in the Action. The Underwriter Defendants expressly have denied and continue to deny all charges of wrongdoing, fault, or liability against them arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in the Action. The Underwriter Defendants also have denied and continue to deny, among other things, the allegations that Lead Plaintiffs and the Underwriter Defendant Settlement Class have suffered any damage, or that Lead Plaintiffs or the Underwriter Defendant Settlement Class were harmed by the conduct alleged in the Action. The Underwriter Defendants have also contended by way of defense that all or a portion of the alleged damages to the Underwriter Defendant Settlement Class were caused by economic conditions or factors other than the allegedly untrue statements or omissions asserted in the Action and that losses resulting from such factors are not recoverable as damages.
40. In light of the risks attendant to this litigation and the benefits of the Underwriter Defendant Settlement, Lead Plaintiffs and Lead Counsel believe that the Underwriter Defendant Settlement is fair, reasonable and adequate, and in the best interests of the Underwriter Defendant Settlement Class. Lead Plaintiffs and Lead Counsel also believe that the Underwriter Defendant Settlement provides a substantial benefit now, namely the agreement of the Underwriter Defendants to provide payment of $340 million, as compared to the risk that the claims would produce a similar, smaller, or no recovery after summary judgment, trial and appeals, possibly years in the future.
WHAT MIGHT HAPPEN IF THERE WERE NO SETTLEMENT WITH THE UNDERWRITER DEFENDANTS?
41. If there were no Underwriter Defendant Settlement and Lead Plaintiffs failed to
establish any essential legal or factual element of their claims against the Underwriter Defendants, neither Lead Plaintiffs nor the Underwriter Defendant Settlement Class would recover anything from the Underwriter Defendants. Also, if the Underwriter Defendants were successful in proving any of their defenses, the Underwriter Defendant Settlement Class likely would recover substantially less than the amount provided in the Settlement with the Underwriter Defendants, or nothing at all.
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HOW MUCH WILL MY PAYMENT BE? WHEN WILL I RECEIVE IT?
42. The Underwriter Defendants have agreed to pay three hundred and forty million
dollars ($340,000,000) in cash into escrow for the benefit of the Underwriter Defendant Settlement Class. At this time, it is not possible to make any determination as to how much individual members of the Underwriter Defendant Settlement Class may receive from the Underwriter Defendant Settlement. Lead Plaintiffs have proposed a plan for allocating the Underwriter Defendant Net Settlement Fund to Underwriter Defendant Settlement Class Members (the “Plan of Allocation”). The objective of the Plan of Allocation will be to equitably distribute funds to Authorized Claimants who submit timely and valid proof of claim forms. The Plan of Allocation proposed by Lead Plaintiffs is attached as Appendix A to the accompanying proof of claim form.
43. The Plan of Allocation appended hereto is the proposed plan submitted by Lead
Plaintiffs and Lead Counsel for the Court’s approval. The Court may approve this plan as proposed or it may modify it without further notice to the Underwriter Defendant Settlement Class.
44. The Court has reserved jurisdiction to allow, disallow or adjust on equitable
grounds the claim of any Underwriter Defendant Settlement Class Member. 45. Payment pursuant to the Plan of Allocation will be conclusive against Authorized
Claimants. No person will have any claim against Lead Plaintiffs, Lead Counsel, any other Plaintiffs and Plaintiffs’ counsel in the Action, the Underwriter Defendants, the Underwriter Defendants’ Counsel, the other Released Parties (as defined in ¶ 50 below) or their counsel, or the Claims Administrator or other agent designated by Lead Counsel arising from distributions made substantially in accordance with the Stipulation of Settlement, the Plan of Allocation, or further orders of the Court. Lead Plaintiffs, Lead Counsel, the Underwriter Defendants, the Underwriter Defendants’ Counsel, the other Released Parties and their counsel will have no responsibility or liability whatsoever for the investment or distribution of the Underwriter Defendant Settlement Fund, the Underwriter Defendant Net Settlement Fund, the Plan of Allocation or the determination, administration, calculation or payment of any proof of claim form, or nonperformance of the Claims Administrator, the payment or withholding of Taxes or Tax Expenses owed by the Underwriter Defendant Settlement Fund or any losses incurred in connection therewith.
46. Each Underwriter Defendant Settlement Class Member will be deemed to have
submitted to the jurisdiction of the U.S. District Court for the Southern District of New York with respect to his, her or its proof of claim.
47. Persons that exclude themselves from the Underwriter Defendant Settlement
Class will not be eligible to receive a distribution from the Underwriter Defendant Net Settlement Fund and should not submit proof of claim forms.
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WHAT RIGHTS AM I GIVING UP BY AGREEING TO THE UNDERWRITER DEFENDANT SETTLEMENT?
48. If the Underwriter Defendant Settlement is approved, the Court will enter an
Order and Final Judgment that will dismiss with prejudice the claims against the Underwriter Defendants and will provide that Lead Plaintiffs, and all other Underwriter Defendant Settlement Class Members shall be deemed to have – and by operation of the Order and Final Judgment will have – released, dismissed and forever discharged the Released Claims (as defined in ¶ 49 below), including Unknown Claims (as defined in ¶ 51 below), against each and all of the Released Parties (as defined in ¶ 50 below), with prejudice on the merits, and without costs to any party.
49. For purposes of the Underwriter Defendant Settlement, “Released Claims” means
any and all past, present, and future claims (including Unknown Claims), cross-claims, rights, remedies, debts, demands, obligations, liabilities, or causes of action of every nature and description whatsoever (including, but not limited to, any claims for damages, punitive damages, compensation, restitution, rescission, interest, attorneys’ fees or costs, expert or consulting fees, and any other costs, expenses, losses or liabilities of any kind or nature whatsoever) against the Released Parties, whether known or unknown, whether based on federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation, whether at law or in equity, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, matured or unmatured, whether class or individual in nature, that Lead Plaintiffs or any other Underwriter Defendant Settlement Class Member (i) asserted in the Action; or (ii) could have asserted in the Action or any other forum that (a) arise out of or are based upon the allegations, transactions, facts, matters, events, disclosures, statements, occurrences, representations, conduct, acts, or omissions or failures to act that were or could have been alleged or asserted in the Action, and (b) relate to the purchase, other acquisition or sale of the Certificates or any interest therein. “Released Claims” shall also include all rights of appeal from any prior decision of the Court in this Action. “Released Claims” do not include (i) claims relating to the enforcement of this Settlement; or (ii) claims, if any, filed prior to July 23, 2014 solely and exclusively to the extent that such claims asserted contractual repurchase rights with respect to any residential mortgage loan included in any of the Offerings (iii) claims against Defendant IndyMac MBS, Inc.; or (iv) claims against Goldman, Sachs & Co., including claims relating to IndyMac INDA Mortgage Loan Trust 2006-AR3 or IndyMac INDX Mortgage Loan Trust 2007-FLX1.
50. For purposes of the Underwriter Defendant Settlement, “Released Parties” or
“Released Party” means: (i) the Underwriter Defendants, (ii) each of the respective past or present parents, subsidiaries, affiliates, divisions, successors and predecessors of the Underwriter Defendants; and (iii) each of the respective past or present heirs, executors, estates, administrators, officers, directors, managing directors, members, employers, employees, agents, attorneys, advisors, investment advisors, auditors, accountants, insurers, co-insurers, reinsurers, and assigns, of the foregoing in (i) and (ii) in their capacities as such.
51. “Unknown Claims” means any and all Released Claims that Lead Plaintiffs or any other Underwriter Defendant Settlement Class Member do not know or suspect to exist in his, her or its favor at the time of the release of the Released Parties, and any Released Parties’
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Claims (as defined in ¶50 above) that the Released Parties do not know or suspect to exist in his, her or its favor, which if known by him, her or it might have affected his, her or its settlement with and release of the Released Parties or the Settlement Class Representatives, as appropriate, or might have affected his, her or its decision not to object to this Settlement or not exclude himself, herself or itself from the Underwriter Defendant Settlement Class. With respect to any and all Released Claims and Released Parties’ Claims, the parties stipulate and agree that, upon the Effective Date (as defined in the Stipulation of Settlement), Lead Plaintiffs and the Underwriter Defendants shall expressly waive, and each Underwriter Defendant Settlement Class Member and Released Party shall be deemed to have waived, and by operation of the Order and Final Judgment shall have expressly waived, to the fullest extent permitted by law, any and all provisions, rights and benefits conferred by California Civil Code § 1542 (to the extent it applies to the Action), and any law of any state or territory of the United States, or principle of common law, or the law of any foreign jurisdiction, that is similar, comparable or equivalent to California Civil Code § 1542, 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.
Lead Plaintiffs and Underwriter Defendant Settlement Class Members may hereafter discover facts in addition to or different from those which he, she or it now knows or believes to be true with respect to the subject matter of the Released Claims, but Lead Plaintiffs shall expressly, fully, finally and forever settle and release – and each Underwriter Defendant Settlement Class Member, upon the Effective Date, shall be deemed to have, and by operation of the Order and Final Judgment shall have 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, which 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 which 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 Plaintiffs and the Underwriter Defendants acknowledge, and Underwriter Defendant Settlement Class Members and Released Parties by law and operation of the Order and Final Judgment shall be deemed to have acknowledged, that the inclusion of “Unknown Claims” in the definition of Released Claims and Released Parties’ Claims was separately bargained for and was a material element of the Settlement. The Order and Final Judgment also will provide that the Underwriter Defendants and each of the other Released Parties shall be deemed to have released, dismissed and forever discharged all Released Parties’ Claims against all Lead Plaintiffs in the Action and their respective attorneys, and any other Underwriter Defendant Settlement Class Member. For purposes of the Underwriter Defendant Settlement, “Released Parties’ Claims” means any and all claims and causes of action of every nature and description, whether known or unknown, whether arising under federal, state, common or foreign law, that arise out of or relate in any way to the institution, prosecution or settlement of the claims in this Action against the Released Parties, except for claims relating to the enforcement of the Settlement, against Lead Plaintiffs or their
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respective attorneys, or any other Underwriter Defendant Settlement Class Member. Lead Plaintiffs and the Settling Parties acknowledge, and the Released Parties shall be deemed by operation of law to acknowledge, that the waiver of Unknown Claims, and the provisions, rights and benefits of California Civil Code § 1542, was bargained for and is a key element of the Settlement of which the release in this paragraph is a part.
WHAT PAYMENT ARE THE ATTORNEYS FOR THE CLASS SEEKING? HOW WILL THE LAWYERS BE PAID?
52. Lead Counsel has not received any payment for its services in pursuing claims
against any settling defendant. Lead Counsel has only been reimbursed for certain of its out-of-pocket expenses in connection with the settlement with Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor H. Woodworth. To date, the Court has approved reimbursement of expenses totaling $916,058.44. In addition, the Court issued two Interim Expense awards permitting the withdrawal of an additional $1,000,229.81 in expenses.
53. Subject to Court approval of the Underwriter Defendant Settlement and the
proposed Plan of Allocation, Counsel intend to apply to the Court for an award of attorneys’ fees from the Underwriter Defendant Settlement Fund and the Individual Defendant Settlement Fund previously obtained in connection with a settlement with Defendants S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor H. Woodworth in an amount not to exceed 13% of the sum of (i) the Underwriter Defendant Settlement Fund; and (ii) the Individual Defendant Settlement Fund.
54. Counsel also intend to apply for reimbursement of Litigation Expenses not to
exceed $3,400,000 million, plus interest. Lead Counsel will also seek that the reimbursement of all Litigation Expenses (including Litigation Expenses previously awarded) be allocated proportionally between the Individual Defendant Settlement Fund and Underwriter Defendant Settlement Fund. The Court will determine the amount of the award.
HOW DO I PARTICIPATE IN THE UNDERWRITER DEFENDANT SETTLEMENT? WHAT DO I NEED TO DO?
55. If you purchased or otherwise acquired interests in the Certificates described
above, and you are not excluded by the definition of the Underwriter Defendant Settlement Class and you do not elect to exclude yourself from the Underwriter Defendant Settlement Class, then you are an Underwriter Defendant Settlement Class Member, and you will be bound by the Underwriter Defendant Settlement if the Court approves it, and by any judgment or determination of the Court affecting the Underwriter Defendant Settlement Class. At this time, you are advised to submit a proof of claim form enclosed herewith and all supporting documentation to establish your entitlement to share in the Underwriter Defendant Settlement. Proof of claim forms are also available on the website of the Claims Administrator, www.IndyMacMBSclassaction.com as well as Lead Counsel’s website at www.bermandevalerio.com. Those who exclude themselves from the Underwriter Defendant Settlement Class and those who do not submit timely and valid proof of claim forms with
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adequate supporting documentation will not be entitled to share in the Underwriter Defendant Settlement. Please retain all records of your ownership of, or transactions in, the certificates, as they may be needed to document your claim.
56. As an Underwriter Defendant Settlement Class Member, you are represented by
Lead Plaintiffs and Lead Counsel, unless you enter an appearance through counsel of your own choice at your own expense. You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her notice of appearance on the attorneys listed in the section below entitled, “When and Where Will The Court Decide Whether To Approve The Underwriter Defendant Settlement, The Plan of Allocation and Lead Counsel’s Request For Attorneys’ Fees and Reimbursement of Litigation Expenses?”
57. If you do not wish to remain a member of the Underwriter Defendant Settlement
Class, you may exclude yourself by following the instructions in the section below entitled, “What If I Do Not Want to Be A Part of The Settlement With The Underwriter Defendants? How Do I Exclude Myself?” If you exclude yourself from the Underwriter Defendant Settlement Class, you will not be eligible to receive any benefit from the Underwriter Defendant Settlement and you should not submit a proof of claim form.
58. If you wish to object to the Underwriter Defendant Settlement or any of its terms,
the Plan of Allocation, Lead Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, and if you do not exclude yourself from the Underwriter Defendant Settlement Class, you may present your objections by following the instructions in the section below entitled, “When and Where Will The Court Decide Whether To Approve The Underwriter Defendant Settlement, The Plan of Allocation and Lead Counsel’s Request For Attorneys’ Fees and Reimbursement of Litigation Expenses?” If you exclude yourself from the Underwriter Defendant Settlement Class, you are not entitled to submit an objection.
WHAT IF I OBJECT TO LEAD PLAINTIFFS’ PROPOSED DISMISSAL OF DEFENDANT INDYMAC MBS, INC. FROM THE ACTION?
59. Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action is not part
of the Settlement with the Underwriter Defendants. However, at the Settlement Hearing, Lead Plaintiffs also may seek the Court’s approval of Lead Plaintiffs’ proposed voluntary dismissal of IndyMac MBS from the Action without prejudice. If you wish to object to the Lead Plaintiffs’ proposed voluntary dismissal of IndyMac MBS from the Action, you may present your objections to the Court at the hearing.
WHAT IF I DO NOT WANT TO BE A PART OF THE SETTLEMENT WITH THE UNDERWRITER DEFENDANTS?
HOW DO I EXCLUDE MYSELF?
60. Each member of the at the Underwriter Defendant Settlement Class will be bound
by all determinations and judgments in this lawsuit, including those concerning the Underwriter
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Defendant Settlement, whether favorable or unfavorable, unless such person or entity mails, by first class mail (or its equivalent outside the U.S.), or otherwise delivers a written Request for Exclusion from the Class, addressed to ______. The exclusion request must be received no later than ________. Each Request for Exclusion must clearly indicate the name, address and telephone number of the person seeking exclusion, and that the sender requests to be excluded from the Underwriter Defendant Settlement Class in In re IndyMac Mortgage-Backed Securities Litigation, Civil Action No. 09 Civ. 04583 (LAK) (S.D.N.Y.), and must be signed by such person. Such persons requesting exclusion are also directed to provide the following information: (i) the identity and original face value of Certificates purchased (or otherwise acquired) or sold; (ii) the prices or other consideration paid or received for such Certificates; (iii) the date of each purchase or sale transaction; (iv) proper evidence of the transactions; and (v) a statement that the person or entity wishes to be excluded from the Underwriter Defendant Settlement Class. Requests for Exclusion shall not be valid if they do not include the required information set forth above and are not received within the time stated above, unless the Court otherwise determines.
61. If a person or entity requests to be excluded from the Underwriter Defendant
Settlement Class, that person or entity will not receive any payment out of the Underwriter Defendant Net Settlement Fund as described in the Stipulation of Settlement between Lead Plaintiffs and the Underwriter Defendants.
WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE UNDERWRITER DEFENDANT SETTLEMENT,
THE PLAN OF ALLOCATION AND LEAD COUNSEL’S REQUEST FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES?
DO I HAVE TO COME TO THE HEARING? MAY I SPEAK AT THE HEARING IF I DON’T LIKE THE SETTLEMENT?
62. If you do not request exclusion from the Underwriter Defendant Settlement Class
and want to make an objection but do not wish to object in person to: (i) the Underwriter Defendant Settlement; (ii) the Plan of Allocation; (iii) Counsel’s application for attorneys’ fees; and (iv) reimbursement of Litigation Expenses, you do not need to attend the Settlement Hearing. You can object to or participate in the Underwriter Defendant Settlement, the Plan of Allocation, Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses without attending the Settlement Hearing.
63. The Settlement Hearing will be held on _____________, at_: _ .m., before the
Honorable Lewis A. Kaplan, at the United States District Court for the Southern District of New York, 500 Pearl Street, Courtroom 21B, New York, New York 10007. The Court reserves the right to approve the Underwriter Defendant Settlement at or after the Settlement Hearing without further notice to the members of the Underwriter Defendant Settlement Class.
64. Any Underwriter Defendant Settlement Class Member who does not request
exclusion in accordance with ¶¶ 60-61 above may object to the Underwriter Defendant Settlement, the Plan of Allocation, and/or Lead Counsel’s request for an award of attorneys’ fees and reimbursement of Litigation Expenses. Objections or oppositions must be in writing. You
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must file any written objection or opposition, together with copies of all other supporting papers and briefs, with the Clerk’s Office at the U.S. District Court for the Southern District of New York at the address set forth below on or before ________________. You must also serve the papers on Lead Counsel and counsel for the Underwriter Defendants at the addresses set forth below so that the papers are received on or before _____________.
Clerk’s Office
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
500 Pearl Street New York, New York 10007
Lead Counsel
BERMAN DEVALERIO Patrick T. Egan, Esq.
One Liberty Sq. Boston, MA 02109
Counsel For Underwriter Defendants
GIBSON DUNN & CRUTCHER LLP
Robert F. Serio, Esq. Aric H. Wu, Esq. Jason Myatt, Esq. 200 Park Avenue
New York, NY 10166
65. Any objection by a Underwriter Defendant Settlement Class Member must include: (a) the full name, address, and phone number of the objecting Underwriter Defendant Settlement Class Member; (b) a list and documentation evidencing all of the Underwriter Defendant Settlement Class Member’s transactions involving the Certificates described above, including brokerage confirmation receipts or other competent documentary evidence of such transactions, including the amount and date of each purchase or sale and the prices paid and/or received; (c) a written statement of all grounds for the objection accompanied by any legal support for the objection; (d) copies of any papers, briefs or other documents upon which the objection is based; (e) a list of all persons who will be called to testify in support of the objection; (f) a statement of whether the objector intends to appear at the Settlement Hearing; (g) a list of other cases in which the objector or the objector’s counsel have appeared either as settlement objectors or as counsel for objectors in the preceding five years; and (h) the objector’s signature, even if represented by counsel. Persons who intend to object to the Underwriter Defendant Settlement, the Plan of Allocation, Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses, and who desire to present evidence at the Settlement Hearing, must include in their written objections the identity of any witnesses they intend to call to testify and the exhibits they intend to introduce into evidence at the Settlement Hearing.
66. You may not object to the Underwriter Defendant Settlement, or any aspect of it,
if you excluded yourself from the Underwriter Defendant Settlement Class. 67. You may file a written objection without having to appear at the Settlement
Hearing. However, you may not appear at the Settlement Hearing to present your objection unless you first filed and served a written objection in accordance with the procedures described above, unless the Court orders otherwise.
68. You are not required to hire an attorney to represent you in making written
objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney,
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which will be at your own expense, he or she must file a notice of appearance with the Court and serve it on Lead Counsel so that the notice is received on or before _______________.
69. The Settlement Hearing may be adjourned by the Court without further written
notice to the Underwriter Defendant Settlement Class. If you intend to attend the Settlement Hearing, you should confirm the date and time with Lead Counsel.
Unless the Court orders otherwise, any member of the Underwriter Defendant Settlement Class who does not object in the manner described above will be deemed to have waived any objection and will be forever foreclosed from making any objection to the Underwriter Defendant Settlement, the Plan of Allocation, and Counsel’s request for an award of attorneys’ fees and reimbursement of Litigation Expenses. Underwriter Defendant Settlement Class Members do not need to appear at the hearing or take any other action to indicate their approval.
WHAT IF I BOUGHT CERTIFICATES ON SOMEONE ELSE’S BEHALF?
70. If you purchased or otherwise acquired the Certificates described above for the
beneficial interest of a person or organization other than yourself, you must either (i) send a copy of this Notice to the beneficial owner of such certificates, postmarked no later than seven (7) days after you receive this Notice, or (ii) provide to IndyMac Mortgage-Backed Securities Litigation, c/o Rust Consulting, Inc., P.O. Box 2844, Faribault, MN 55021-8598, the names and addresses of such persons no later than seven (7) days after you receive this Notice. If you choose the second option, the Claims Administrator will send a copy of the Notice to the beneficial owner. Upon full compliance with these directions, such nominees may seek reimbursement of their reasonable expenses actually incurred, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought. Copies of this Notice may also be obtained by calling toll-free (877) 773-8195, and may be downloaded from the settlement website, www.IndyMacMBSclassaction.com or from Lead Counsel’s website, www.bermandevalerio.com.
CAN I SEE THE COURT FILE? WHO SHOULD I CONTACT IF I HAVE QUESTIONS?
71. This Notice contains only a summary of the terms of the proposed Underwriter
Defendant Settlement. More detailed information about the matters involved in the Action is available at www.IndyMacMBSclassaction.com, including, among other documents, copies of the Stipulation of Settlement for the Underwriter Defendant Settlement, proof of claim form, and the Second Amended Consolidated Class Action Complaint. All inquiries concerning this Notice or the claim form should be directed to:
IndyMac MBS Litigation c/o Rust Consulting, Inc.
P.O. Box 2844 Faribault, MN 55021-8598
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DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE CLERK OF
COURT REGARDING THIS NOTICE. Dated: ______________ ___, 2014 By Order of the Clerk of Court United States District Court for the Southern District of New York
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Exhibit A-2
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 84 of 127
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09-Civ. 04583 (LAK)
ECF CASE
This Document Relates To:
ALL ACTIONS
[EXHIBIT A-2 TO STIPULATION]
SUMMARY NOTICE OF PROPOSED SETTLEMENT WITH UNDERWRITER DEFENDANTS
TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED INTERESTS IN ANY OF THE SECURITIES THAT WERE ISSUED BY THE FOLLOWING TRUSTS AND OFFERED BY PUBLIC FILINGS WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H2
IndyMac INDX Mortgage Loan Trust 2006-AR29
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H3
IndyMac INDX Mortgage Loan Trust 2006-AR33
IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-D
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED that a settlement, the terms of which are set forth in a Stipulation and Agreement of Settlement that has been filed with the Court, has been reached in this Action with Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc., and UBS Securities LLC (collectively, the “Underwriter Defendants”). Pursuant to the Stipulation, the Underwriter Defendants will cause $340 million to be deposited into a settlement fund in exchange for a release of claims by Settlement Class Members. IF YOU PURCHASED OR OTHERWISE ACQUIRED INTERESTS IN ANY OF THE SECURITIES THAT WERE ISSUED BY THE TRUSTS LISTED ABOVE, YOU MAY BE ENTITLED TO SHARE IN THE DISTRIBUTION OF THE SETTLEMENT FUND IF YOU SUBMIT A PROOF OF CLAIM FORM ESTABLISHING THAT YOU ARE ENTITLED TO A RECOVERY. A hearing with respect to the proposed settlement will be held on _______, 201_, at ____ _.m., before the Honorable Lewis A. Kaplan in the U.S. District Court for the Southern District of New York, 500 Pearl Street, Courtroom 21B, New York, New York 10007. The purpose of the hearing is to determine (a) whether the settlement with the Underwriter Defendants should be approved by the Court as fair, reasonable and adequate and in the best interests of the settlement class; (b) whether the Court should enter an Order and Final Judgment dismissing the Action, on the merits and with prejudice, against the Underwriter Defendants, and forever barring Settlement Class Members from pursuing any Released Claims; (c) whether the proposed Plan of Allocation for the settlement fund is fair and reasonable and should be approved by the Court; (d) whether the application by Lead Counsel and the additional Settlement Class Representatives’ counsel (“Counsel”) for attorneys’ fees and for reimbursement of Litigation Expenses should be approved by the Court; and (e) to rule upon such other matters as the Court may deem appropriate. This notice only provides a summary of matters regarding the Action and the settlement. A detailed notice (the “Notice”) has been sent to persons or entities known to be potential Settlement Class Members. You may obtain a copy of this detailed Notice, a Proof of Claim Form, and other information by contacting the Claims Administrator.
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Copies of the Notice and Proof of Claim Form can also be downloaded from the website maintained by the Claims Administrator, www.indymacmbsclassaction.com, or from Settlement Class Counsel’s website, www.bermandevalerio.com. If you are a potential member of the Settlement Class, in order to be potentially eligible to share in the distribution of the settlement fund, you are required to file a Proof of Claim Form at this time. If you are a potential member of the Settlement Class and do not exclude yourself from the Settlement Class, you will be bound by any judgment entered in the Action whether or not you submit a Proof of Claim Form. To exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than ________, 2014, in accordance with the instructions set forth in the Notice. Any objections to the proposed settlement, the Plan of Allocation, and/or Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses, must be filed with the Court and delivered to Lead Counsel and counsel for Settling Defendants such that they are received no later than ________, 2014, in accordance with the instructions set forth in the Notice. PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE REGARDING THIS NOTICE. Inquiries, other than requests for the Notice and Proof of Claim Form, may be made to Lead Counsel:
Patrick T. Egan, Esq. Berman DeValerio One Liberty Square Boston, MA 01867
(800) 516-9926
By Order of the Court
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Exhibit A-3
Case 1:09-cv-04583-LAK Document 539-1 Filed 09/22/14 Page 88 of 127
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re: INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
CLASS ACTION MASTER DOCKET NO. 09-Civ-04583 (LAK)
PROOF OF CLAIM AND RELEASE I. GENERAL INSTRUCTIONS 1. This Proof of Claim and Release relates to two settlements in the action entitled In re IndyMac Mortgage-Backed Securities Litigation, Master No. 09-Civ-04583 (LAK): the Underwriter Defendant Settlement and the Individual Defendants Settlement (collectively, the “Settlements”). Many of the IndyMac mortgage certificates covered by the two Settlements overlap, but the two Settlements are not co-extensive. Lists of all applicable certificates are attached to this Proof of Claim and Release as part of the Plan of Allocation, found at Appendix A (the “Certificates”). Table A-1 lists the Underwriter Defendant Settlement certificates and Table A-2 lists the Individual Defendant Settlement certificates. As used herein, unless otherwise noted, “Table A” refers to both Tables A-1 and A-2. If you are a member of both settlement classes, please include all eligible Certificates in completing this form. 2. To potentially recover as a member of either or both of the settlement classes, you must complete this Proof of Claim and Release form. If you fail to file a properly addressed (as set forth in paragraph 4 below) Proof of Claim and Release, your claim may be rejected and you may be precluded from any recovery from the settlement funds created in connection with the Settlements. This Proof of Claim and Release form must be used to submit claims for both Settlements reached in the Action. Only one Proof of Claim and Release form need be submitted, even if you are member of both settlement classes. 3. Submission of this Proof of Claim and Release form, however, does not assure that you will share in the proceeds of the settlements in the Action. 4. YOU MUST MAIL YOUR COMPLETED AND SIGNED PROOF OF CLAIM AND RELEASE FORM POSTMARKED NO LATER THAN [-------], ADDRESSED AS FOLLOWS:
IndyMac MBS Settlement c/o Rust Consulting, Inc.
P.O. Box 2844 Faribault, MN 55021-8598
1-877-773-8195 www.IndyMacMBSclassaction.com
5. If you are NOT a member of the Classes, as defined in either (a) the Notice of Pendency of Class Action and Proposed Partial Settlement, Settlement Fairness Hearing and Motion for Reimbursement of Litigation Expenses and Interim Expenses issued pursuant to the Court’s September 6, 2012 Order, or (b) the Notice of Pendency of Class Action, Proposed Settlement with Underwriter Defendants, Plan of Allocation, Final Approval Hearing for Settlement With Underwriter Defendants, Voluntary Dismissal of Defendant IndyMac MBS, Inc., and Motion for Attorneys’ Fees and Reimbursement of Litigation Expenses issued pursuant to the Court’s [DATE] Order, DO NOT submit a Proof of Claim and Release form. 6. If you are a member of either class, you are bound by the terms of any judgment entered in the Action, WHETHER OR NOT YOU SUBMIT A PROOF OF CLAIM AND RELEASE FORM. NOTE: Separate Proof of Claim and Release forms should be submitted for each separate legal entity (e.g., a claim from joint owners should not include separate transactions of just one of the joint owners, an individual should not combine his or her IRA transactions with transactions made solely in the individual’s name). Conversely, a single Proof of Claim and Release form should be submitted on behalf of one legal entity including all transactions made by that entity no matter how many separate accounts that entity has (e.g., a corporation with multiple brokerage accounts should include all transactions in the Certificates) on one Proof of Claim and Release form, no matter how many accounts the transactions were made in. NOTICE REGARDING ELECTRONIC FILES: Certain Claimants with large numbers of transactions may request, or may be requested, to submit information regarding their transactions in electronic format. All Claimants MUST submit a manually signed paper Proof of Claim and Release form, whether or not they also submit electronic copies, either listing all their transactions or including a notation to see corresponding electronic file for all transactions. If you wish to file your claim electronically, you must contact the Claims Administrator at 1-877-773-8195 or visit their website at www.IndyMacMBSclassaction.com to obtain the required file layout. No electronic files will be considered to have been properly submitted unless the Claims Administrator issues to the Claimant a written acknowledgment of receipt and acceptance of electronically submitted data. QUESTIONS? CALL TOLL-FREE 1-877-773-8195 VISIT www.IndyMacMBSclassaction.com
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re IndyMac Mortgage-Backed Securities Litigation, Master No. 09-Civ-04583 (LAK)
Page _ of _
PROOF OF CLAIM AND RELEASE Use Blue or Black Ink Only
PART I. CLAIMANT IDENTIFICATION - Complete either Section A or B and then proceed to C. Please type or print. A. Complete this Section ONLY if the Beneficial Owner is an individual, joint, or IRA account. Otherwise, proceed to B.
Last Name (Beneficial Owner) First Name (Beneficial Owner)
Last Name (Joint Beneficial Owner, if applicable) First Name (Joint Beneficial Owner)
Name of IRA Custodian, if applicable
If this account is an IRA, and if you would like any check that you MAY be eligible to receive made payable to the IRA account, please include “IRA” in the “Last Name” box above (e.g., Jones IRA).
B. Complete this Section ONLY if the Beneficial Owner is an Entity; i.e., corporation, trust, estate, etc. Then, proceed to C. Entity Name
Name of Representative, if applicable (Executor, Administrator, Trustee, c/o, etc.)
C. Account/Mailing Information: Specify one of the following: Individual(s) Corporation UGMA Custodian IRA Partnership Estate Trust Other: Number and Street or P.O. Box
City State Zip Code
Foreign Province and Postal Code Foreign Country
Telephone Number (Day) Telephone Number (Evening)
Email Address Account Number
Enter Taxpayer Identification Number below for the Beneficial Owner(s). Social Security Number (for individuals) or Taxpayer Identification Number
Proceed to Part II of this Proof of Claim and Release.
MUST BE POSTMARKED NOT LATER THAN
DATE
For Official Use Only
01
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PART II. TRANSACTIONS IN MORTGAGE THE CERTIFICATES 1. PURCHASES AND ACQUISITIONS: List all purchases or acquisitions of eligible Certificates listed on Table A of the attached
Plan of Allocation. Be sure to attach the required documentation. Date(s) of Purchase
or Acquisition (list chronologically)
Month/Day/Year
CUSIP (as provided in Table A of the
Plan of Allocation)
Original Face Value
Current Face Value
Purchase Price
of Certificate
Total Cost (excluding
commissions, taxes & fees)1
2. SALES: List all sales of any of the eligible Certificates listed on Table A of the attached Plan of Allocation. Be sure to attach the
required documentation.
Date(s) of Sale (list chronologically)
Month/Day/Year
CUSIP (as provided in Table A of the
Plan of Allocation)
Original Face Value
Current Face Value
Sales Price of Certificate
Total Received (excluding
commissions, taxes & fees)
IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS PLEASE PHOTOCOPY THIS PAGE,
WRITE YOUR NAME ON THE COPY AND CHECK THIS BOX: IF YOU DO NOT CHECK THIS BOX, THESE ADDITIONAL PAGES MAY NOT BE REVIEWED.
1 Total Cost as used in this document does not include any adjustments for accrued interest.
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PART II. TRANSACTIONS IN THE CERTIFICATES (CONT.) 3. UNSOLD CERTIFICATES THROUGH DATE OF SUBMISSION OF CLAIM FORM: State the CUSIP, Original Face Value and
Current Face Value of the eligible Certificates listed on Table A of the attached Plan of Allocation, that the Claimant still owned on the date of submission of the claim form:
Date of
Submission of Claim Form
CUSIP (as provided in Table A
of the Plan of Allocation) Original Face Value Current Face Value
BE SURE TO ATTACH THE REQUIRED DOCUMENTATION.
IF YOU NEED ADDITIONAL SPACE TO LIST YOUR TRANSACTIONS PLEASE PHOTOCOPY THESE PAGES, WRITE YOUR NAME ON THE COPY AND CHECK THIS BOX:
IF YOU DO NOT CHECK THIS BOX, THESE ADDITIONAL PAGES MAY NOT BE REVIEWED. Proceed to Part III of this Proof of Claim and Release.
PART III. RELEASES AND WARRANTIES Release Given By The Underwriter Defendants Class With Respect to the Underwriter Defendant Settlement
1. I (We) understand and acknowledge that, without further action by anyone, on and after the Underwriter Defendant Settlement Effective Date, each Underwriter Defendant Settlement Class Member, on behalf of him, her or itself and any of his, her or its personal representatives, spouse, domestic partner, trustees, heirs, executors, administrators, successors or assignees, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, shall be deemed to have, and by operation of law and of the Underwriter Defendant Settlement Judgment, shall have fully, finally, and forever released, relinquished, waived, discharged and dismissed each and every Underwriter Defendant Released Claim against each and all of the Underwriter Defendant Released Parties, and shall forever be enjoined from pursuing any or all Underwriter Defendant Released Claims against any Underwriter Defendant Released Party in any forum of any kind, whether directly or indirectly, whether on their own behalf or otherwise, and regardless of whether or not such Class Member executes and delivers a Proof of Claim and Release form (except that the foregoing provision shall not apply to any such representative, spouse, domestic partner, trustee, heir, executor, administrator, successor or assign who independently would be a member of the Underwriter Defendant Settlement Class and timely excludes himself, herself or itself). I (We) represent and warrant that I (We) have not assigned, hypothecated, conveyed, transferred or otherwise granted or given any interest in the Underwriter Defendant Released Claims, or any of them, to any other Person, whether or not a Proof of Claim and Release form is executed and delivered by, or on behalf of, such Underwriter Defendants Class Member.
2. “Underwriter Defendants” means Credit Suisse Securities (USA) LLC; Deutsche Bank Securities Inc.; J.P. Morgan Securities LLC; Morgan Stanley & Co., LLC; RBS Securities Inc., and UBS Securities LLC.
3. “Underwriter Defendant Settlement Effective Date,” means the date on which all of the following shall have occurred: (a) the Underwriter Defendant Settling Defendants no longer have the right to terminate the Underwriter Defendant Settlement, or if the Underwriter Defendant Settling Defendants do have such right, they have given written notice to Lead Counsel that they will not exercise such right; (b) Lead Plaintiffs no longer have any right to terminate this Settlement, or if the Lead Plaintiffs do have such right, they have given written notice to Settling Defendants’ Counsel that they will not exercise such right; (c) entry of the Notice Order; (d) approval by the District Court of the Underwriter Defendant Settlement following notice to the Underwriter Defendant Settlement Class and a hearing in accordance with Rule 23 of the Federal Rules of Civil Procedure; and (e) entry by the Court of an Order and Final Judgment and the expiration of any time for appeal or review of the Order and Final Judgment, or, if any appeal is filed and not dismissed, after the Judgment is upheld on appeal in all material respects and is no longer subject to review upon appeal or review by certiorari or otherwise, and the time for any petition for reargument, appeal or review, by certiorari or otherwise, has expired, or, in the event that the District Court enters an order and final judgment in a form other than that described above (“Alternative Judgment”) and none of the parties elects to terminate the Underwriter Defendant Settlement, the date that such Alternative Judgment becomes final and no longer subject to appeal or review by certiorari or otherwise, and the time for any petition for reargument, appeal or review, by certiorari or otherwise, has expired.
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4. “Underwriter Defendant Settlement Judgment” means an order of judgment and dismissal approving the Underwriter Defendant Settlement to be rendered by the Court.
5. “Underwriter Defendant Released Parties” means: (a) the Settling Defendants; (b) each of the respective past or present parents, subsidiaries, affiliates, divisions, successors and predecessors of the Settling Defendants; and (c) each of the respective past or present heirs, executors, estates, administrators, officers, directors, managing directors, members, employers, employees, agents, attorneys, advisors, investment advisors, auditors, accountants, insurers, co-insurers, reinsurers, and assigns, of the foregoing in (i) and (ii) in their capacities as such.
6. “Underwriter Defendant Released Claims” means any and all past, present, and future claims (including Unknown Claims), cross-claims, rights, remedies, debts, demands, obligations, liabilities, or causes of action of every nature and description whatsoever (including, but not limited to, any claims for damages, punitive damages, compensation, restitution, rescission, interest, attorneys’ fees or costs, expert or consulting fees, and any other costs, expenses, losses or liabilities of any kind or nature whatsoever) against the Underwriter Defendant Released Parties, whether known or unknown, whether based on federal, state, local, statutory, common, or foreign law, or any other law, rule, or regulation, whether at law or in equity, fixed or contingent, accrued or unaccrued, liquidated or unliquidated, matured or unmatured, whether class or individual in nature, that Lead Plaintiffs, the Intervenor Plaintiffs, the Proposed Intervenor Plaintiffs, or any other Settlement Class Member (i) asserted in the Action; or (ii) could have asserted in the Action or any other forum that (a) arise out of or are based upon the allegations, transactions, facts, matters, events, disclosures, statements, occurrences, representations, conduct, acts, or omissions or failures to act that were or could have been alleged or asserted in the Action, and (b) relate to the purchase, other acquisition, or sale of the Certificates listed on Table A-1 or any interest therein. “Released Claims” do not include (i) claims relating to the enforcement of this Settlement; (ii) claims, if any, filed prior to July 23, 2014 solely and exclusively to the extent that such claims asserted contractual repurchase rights with respect to any residential mortgage loan included in any of the Offerings; (iii) claims against Defendant IndyMac MBS, Inc.; or (iv) claims against Goldman, Sachs & Co., including claims relating to IndyMac INDA Mortgage Loan Trust 2006-AR3 or IndyMac INDX Mortgage Loan Trust 2007-FLX1.
7. “Underwriter Defendant Settlement Class” means all Persons who at any time purchased or otherwise acquired interests in the Certificates. Excluded from the Settlement Class are those Persons who purchased or otherwise acquired the beneficial interests in any of the Certificates offered in connection with any of the IndyMac MBS Offerings listed on Table A-1 of the attached Plan of Allocation, but who have filed individual actions to separately pursue claims against the Settling Defendants relating to the Certificates listed on Table A-1 or who have filed a valid request for exclusion in accordance with the requirements set forth in the Notice. Also excluded from the Settlement Class are Defendants, their officers and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any Defendant has or had a controlling interest, except for any Investment Vehicle, to the extent such entities themselves had a proprietary (i.e., for their own account) interest in the Certificates listed on Table A-1 and not to the extent that they held Certificates in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that otherwise falls within the Settlement Class.
8. “Underwriter Defendant Settlement Class Member” means a Person that is a member of the Underwriter Defendant Settlement Class. It does not include any Person who has excluded himself, herself or itself by timely filing a request for exclusion in accordance with the requirements set forth in the Notice or who is not otherwise excluded from the class definition. Release Given By The Individual Defendants Class With Respect to the Individual Defendants Settlement
1. I (We) understand and acknowledge that, without further action by anyone, as of January 17, 2013, the Individual Defendants Settlement Effective Date, each Individual Defendants Settlement Class Member, for good and sufficient consideration, the receipt and adequacy of which are hereby acknowledged, has fully, finally, and forever released, relinquished, waived, discharged and dismissed each and every Individual Defendants Released Claim against each and all of the Individual Defendants Released Parties, and is forever enjoined from pursuing any or all Individual Defendants Released Claims against any Individual Defendants Released Party, whether directly or indirectly, whether on their own behalf or otherwise, and regardless of whether or not such Individual Defendants Settlement Class Member executes and delivers a Proof of Claim and Release form. Plaintiffs represent and warrant that they have not assigned, hypothecated, conveyed, transferred or otherwise granted or given any interest in the Individual Defendants Released Claims, or any of them, to any other person or entity, whether or not a Proof of Claim and Release form is executed and delivered by, or on behalf of, such Individual Defendants Settlement Class Member.
2. “Individual Defendants” means S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick and Victor Woodworth. 3. “Individual Defendants Settlement Effective Date” means January 17, 2013. 4. “Individual Defendants Settlement Judgment” means the Order And Final Judgment entered by the Court on December 18,
2012.
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5. “Individual Defendants Released Parties” means S. Blair Abernathy, John Olinski, Samir Grover, Simon Heyrick, and Victor Woodworth and their respective present or former spouses, immediate family members, heirs, attorneys (including counsel), agents, representatives, executors, estates, administrators, successors and assigns, and insurers.
6. “Individual Defendants Released Claims” means all claims and causes of action of every nature and description, whether known or unknown, whether arising under federal, state, common or foreign law, that Plaintiffs or any other member of the Settlement Class (a) asserted in this Action, or (b) could have asserted in any forum that arise out of or are based upon the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth, or referred to in the Complaint and that relate to the purchase of any MBS issued pursuant to the Offerings. “Released Claims” shall not include derivative claims, including contractual claims, belonging to the issuing trusts. Nothing herein shall be construed to suggest or imply that any derivative claims exist or have merit. “Released Claims” do not include: (i) claims to enforce the Partial Settlement; and (ii) claims against any Non-Settling Defendants.
7. “Individual Defendants Settlement Class” means all persons or entities who purchased or otherwise acquired beneficial interests in any of the Certificates offered in connection with the IndyMac MBS Offerings listed on Table A-2 of the attached Plan of Allocation. Excluded from the Individual Defendants Settlement Class are Defendants, and their respective officers, affiliates and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any defendants have or had a controlling interest, provided that any Investment Vehicle shall not be deemed an excluded person or entity by definition.
8. “Individual Defendants Settlement Class Member” means a Person that is a member of the Underwriter Defendants Settlement Class.
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By signing and submitting this Proof of Claim and Release form, the Claimant(s) or the person(s) who represents the Claimant(s) certifies, as follows:
I (We) submit this Proof of Claim and Release form under the terms of the Underwriter Defendant Stipulation and/or the Individual Defendants Stipulation described in the Underwriter Defendant and Individual Defendants Notices, respectively. I (We) also submit to the jurisdiction of the United States District Court for the Southern District of New York, with respect to my (our) claims as Underwriter Defendant Settlement Class and/or Individual Defendants Settlement Class members and for purposes of enforcing the releases set forth herein. I (We) further acknowledge that I (we) am (are) bound by and subject to the terms of any judgment that may be entered in the Action. I (We) agree to furnish additional information to the Claims Administrator to support this claim if requested to do so. I (We) have not submitted any other claim covering the same purchases or acquisitions of the Certificates and know of no other person having done so on my (our) behalf.
I (We) hereby acknowledge full and complete satisfaction of, and do hereby fully, finally and forever release, relinquish, waive, discharge and dismiss each and every Underwriter Defendant Released Claim against each and all the Underwriter Defendant Released Parties and/or Individual Defendant Released Claim against each and all the Individual Defendants Released Parties, as defined above,
1. that the Claimant(s) is an (are) Underwriter Defendant Settlement Class Member(s) and/or Individual Defendant Settlement Class Member(s), as defined herein and in the Underwriter Defendant and/or Individual Defendants Notices;
2. that I (we) own(ed) the Certificates identified in the Proof of Claim and Release form, or that, in signing and submitting this Proof of Claim and Release form, I (we) have the authority to act on behalf of the owner(s) thereof;
3. that Claimant(s) may be eligible to receive a distribution from the Underwriter Defendant Net Settlement Fund and/or Individual Defendants Net Settlement Fund;
4. that I (we) agree to furnish such additional information with respect to this Proof of Claim and Release form as the parties, the Claims Administrator or the Court may require;
5. that I (we) waive trial by jury, to the extent it exists, and agree to the Court’s summary disposition of the determination of the validity or amount of the claim made by this Proof of Claim and Release form;
6. that I (we) have not assigned or transferred or purported to assign or transfer, voluntarily or involuntarily, any matter released pursuant to this release or any other part or portion thereof;
7. that I (we) have included information requested above about all of my (our) transactions in the applicable Certificates; 8. and that I (we) certify that I am (we are) not subject to backup withholding under the provisions of Section 3406(a)(1)(c) of the
Internal Revenue Code. NOTE: If you have been notified by the Internal Revenue Service that you are subject to backup withholding, please strike the
language that you are not subject to backup withholding in the certification above. The Internal Revenue Service does not require your consent to any provision other than the certification required to avoid backup withholding.
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I (We) declare, under penalty of perjury under the laws of the United States of America, that the statements made and answers given in this Proof of Claim and Release form are true and correct and that the documents submitted herewith are true and genuine.
I declare under penalty of perjury under the laws of the United States of America that the foregoing information supplied by the undersigned is true and correct.
Executed this ______ day of ____________________, 2014 in____________________________________, ___________________. (City) (State/Country)
Signature of Claimant (Type or print name of Claimant)
Signature of Joint Claimant, if any (Type or print name of Joint Claimant, if any)
Signature of person signing on behalf of Claimant (Type or print name of person signing on behalf of Claimant)
Capacity of person signing on behalf of Claimant, if other than an individual (e.g., administrator, executor, trustee, president, custodian, power of attorney, etc.)
REMINDER CHECKLIST
1. Please sign the Certification Section of the Proof of Claim and Release form. 2. If this Claim is being made on behalf of joint claimants, then both must sign. 3. Please remember to attach supporting documents. 4. DO NOT SEND ORIGINALS OF ANY SUPPORTING DOCUMENTS. 5. Keep a copy of your Proof of Claim and Release form and all documentation submitted for your records. 6. The Claims Administrator will acknowledge receipt of your Proof of Claim and Release form by mail, within 60 days. Your
claim is not deemed filed until you receive an acknowledgment postcard. If you do not receive an acknowledgment postcard within 60 days, please call the Claims Administrator toll-free at 1-877-773-8195.
7. If you move, please send your new address to: IndyMac MBS Settlement c/o Rust Consulting, Inc.
P.O. Box 2844 Faribault, MN 55021-8598
1-877-773-8195 www.IndyMacMBSclassaction.com
Do not use highlighter on the Proof of Claim and Release form or supporting documentation. THIS PROOF OF CLAIM AND RELEASE MUST BE POSTMARKED NO LATER THAN <<DATE>>, AND MUST BE MAILED TO:
IndyMac MBS Settlement c/o Rust Consulting, Inc.
P.O. Box 2844 Faribault, MN 55021-8598
ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME. THANK YOU FOR YOUR PATIENCE.
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IndyMac Mortgage-Backed Securities Litigation Settlement Appendix A To The Proof of Claim The Proposed Plan Of Allocation
I. GENERAL PROVISIONS 1. This Plan of Allocation is applicable to allocating both the Underwriter Defendant Net Settlement Fund to Underwriter Defendant Settlement Class Members as well as the Individual Defendant Net Settlement Fund to Individual Defendant Settlement Class Members.
2. Each net settlement fund will be distributed to eligible members of the settlement class on whose behalf the fund was created and who timely submit valid proof of claim forms (“Claim Forms”) under this Plan of Allocation, or as otherwise ordered by the Court (“Claimants”).
3. Your share of the net settlement fund from which you are entitled to a distribution will depend on several considerations, including (a) the aggregate value of the Recognized Claims (defined below) (represented by valid and acceptable Claim Forms) that members of that respective settlement class submit to the Claims Administrator, relative to that net settlement fund; (b) when your Certificates were purchased or acquired and the price on the date of purchase; (c) any principal payments received; (d) whether your Certificates were sold, and if so, when they were sold and for how much; and/or (e) if held on the applicable dates of suit identified for each of the Certificates, as set forth in Table A1 (the “Date of Suit”), the price of the Certificates on that date.
4. To determine the amount that a Claimant may recover under the Plan of Allocation, Lead Counsel conferred with a valuation consultant. The proposed Plan of Allocation is generally based upon the statutory measure of damages for claims based on material misrepresentations in the offering documents. For each Claimant, a “Recognized Claim” will be calculated. The calculation of a “Recognized Claim,” as defined below, is not intended to be an estimate of, nor does it indicate, the amount that a class member might have been able to recover after a trial or that class member’s market or “out-of-pocket” loss. Nor is the calculation of a Recognized Claim pursuant to the Plan of Allocation an estimate of the amount that will be paid to Claimants pursuant to the applicable settlement, which would depend on the total amount of all Recognized Claims submitted by Claimants who are members of that class. The Recognized Claim formula provides the basis for proportionately allocating each net settlement fund to Claimants. Each Claimant will receive a pro rata share of the net settlement fund applicable to his, her or its Certificate, based on his, her or its Recognized Claim, subject to the $10.00 minimum threshold mentioned below.
5. Class members are required to include in their Claim Forms, and to submit the required documentation for, all transactions and holdings in any of the Certificates that they have purchased, held, and are currently holding as of submission of the Claim Form. Claim Forms submitted by class members that do not include all transactions in the Certificates will be considered deficient and may be ineligible for a recovery in the settlement affected by the deficiency.
II. CALCULATION OF RECOGNIZED LOSS OR RECOGNIZED GAIN AMOUNTS 6. A “Recognized Loss Amount” or “Recognized Gain Amount” will be calculated for each Certificate purchased or acquired for which adequate documentation is provided (each an “Eligible Certificate”). The calculation of the Recognized Loss Amount or Recognized Gain Amount will depend on several considerations, including: (a) when such Certificates were purchased or acquired and the price paid; (b) any principal payments received; (c) whether your Certificates were sold and, if so, when they were sold and for how much; and/or (d) if held on the Date of Suit, the price of the Certificates on that date.
1 Table A is comprised of two parts: A-1 and A-2. Table A-1 is a list of all eligible Certificates in the Underwriter Defendant Settlement. Table A-2 is a list of all eligible Certificates in the Individual Defendant Settlement. “Table A” as used herein refers to both Tables A-1 and A-2. Tables A, B and C (described below) are incorporated by reference into this proposed Plan of Allocation, and are available on the Settlement website (www.IndyMacMBSclassaction.com) or by calling the Claims Administrator toll-free at (877) 773-8195.
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7. The calculations under this proposed Plan of Allocation use various financial parameters for each Certificate, including:
a. the price of each Certificate, if any, on the applicable Date of Suit. See Table A, attached hereto;
b. the portion of original face amount remaining on each Certificate as of various dates between the Certificate’s initial offering and the most recent monthly distribution. This portion is commonly referred to as the Certificate’s “Factor”2 and reflects all principal payments received and write-downs incurred;
c. the portion of original face amount remaining on each Certificate as of various dates between the Certificate’s initial offering and the most recent monthly distribution reflecting only principal payments received. This portion is referred to as the Write-Down Free Factor (“WFF”). Tables B and C, which provide, respectively, a complete list of all Factors and WFFs for all Certificates for each relevant date, are available at www.IndyMacMBSclassaction.com or by calling the Claims Administrator toll-free at (877) 773-8195.3
8. For each calculation of a Recognized Loss Amount or Recognized Gain Amount, the purchase price used for the calculation may not exceed the price at which the Certificate was offered to the public, which prices are set forth in Table A. Thus, if the actual purchase price exceeds the price at which the Certificate was offered to the public, the price at which it was offered to the public will be used as the purchase price.
9. If a Claimant has more than one purchase/acquisition or sale of the same Certificate, those transactions will be matched on a first-in-first-out (FIFO) basis. Recognized Gain Amounts on the purchases or acquisitions of the same Certificate will be netted against (used to offset) Recognized Loss Amounts resulting from other purchases or acquisitions of the same Certificate, but will not be used to offset Net Recognized Losses (described further below in Section III of this Plan) resulting from purchases or acquisitions of different Certificates.
10. Notwithstanding any of the other provisions in this proposed Plan of Allocation, for all purchases or acquisitions of Certificates that occurred after the applicable Date of Suit, the Recognized Gain Amount or Recognized Loss Amount for such purchases or acquisitions is zero.
11. Certificates Sold Prior To Date Of Suit: For each Certificate sold prior to the Date of Suit, the Recognized Loss Amount or Recognized Gain Amount is calculated as follows:
a. Step 1: Determine the Original Principal Amount
Original Principal Amount = Original Face Amount of Certificates Purchased x Factor on Date of Purchase x (Purchase Price/100)
2 The Certificates generally entitle investors to principal and interest payments derived from the underlying mortgages. Subsequent to the offering of a Certificate, the principal balance outstanding on a particular class of mortgage-backed securities may be reduced as borrowers make principal payments on their loans, prepay their loans either in whole or in part, or, alternatively, borrowers stop meeting their payment obligations resulting in losses to the trust. As above, such changes in a Certificate’s Factor need to be taken into consideration when allocating the settlement proceeds among Claimants. 3 The Factors reflected in Table B and the WFFs reflected in Table C are presented based on two distinct chronological systems that are appropriate to the distinct purposes for which those tables are used. As the Factors in Table B are used with prices to derive the amount of funds expended or realized in market transactions, the factors are attributed to the appropriate time periods based on the factor convention used by the market, i.e., the previous month’s factor is used up until the current month’s distribution date to administer trades. The WFFs in Table C are used to attribute the receipt of monthly distributions during the holding period of a Certificate to the correct Claimant; and thus, the Certificate-specific record date convention, which determines the legal beneficiary of a monthly distribution, is used to associate the WFFs to the appropriate time period.
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The original face amount of the Certificates you purchased and the purchase price can be determined from your records. The “Purchase Price” to be used in this formula is the lesser of (i) the actual purchase paid, or (ii) the price at which the Certificate was offered to the public. The value of the Factor on the date of your purchase or sale can be found in Table B.
b. Step 2: Determine the Principal Payments Received
Principal Payments Received = Original Face Amount of Certificates Purchased x (WFF on Date of Purchase – WFF on Date of Sale) The original face amount of the Certificates you purchased can be determined from your records. The WFF on the date of your purchase and the WFF on the date of your sale can be found in Table C.
c. Step 3: Determine the Amount Received on Sale
Amount Received on Sale = Original Face Amount of Certificates Purchased x Factor on Date of Sale x (Sale Price/100) The original face amount of the Certificates you purchased and the sale price can be determined from your records. The Factor on the date of your sale can be found in Table B.
d. Step 4: Calculate Recognized Loss Amount or Recognized Gain Amount Using the Results of Steps 1-3
Recognized Loss Amount or Recognized Gain Amount = Original Principal Amount - Principal Payments Received - Amount Received on Sale If this calculation results in a positive number, the result is a “Recognized Loss Amount.” If this calculation results in a negative number, it is a “Recognized Gain Amount.”
Example 1:4 Investor A purchased $100,000.00 original face amount of Certificate 76113NAL7 (RAST 2006-A7CB 2-A-5) on October 15, 2006. The purchase price was $95.00. On March 7, 2009, Investor A sold its remaining interest in the Certificate. The sales price was $42.00.
(1) Step 1: Investor A uses Table B to determine that the Factor on the date of purchase (October 15, 2006) is 0.958944. Therefore, Original Principal Amount = $100,000.00 x 0.958944 x (95.00/100) = $91,099.68.
(2) Step 2: Investor A uses Table C to determine that the WFFs on the dates of purchase and sale are 0.958944 and 0.700208, respectively. Therefore, Principal Payments Received = $100,000.00 x (0.958944 - 0.700208) = $25,873.60.
(3) Step 3: Investor A uses Table B to determine that the Factor on March 7, 2009 was 0.700208. Therefore, Amount Received on Sale = $100,000.00 x 0.700208 x (42.00/100) = $29,408.74.
(4) Step 4: Investor A uses the results of Steps 1-3 to calculate its Recognized Loss Amount or Recognized Gain Amount: Original Principal Amount less Principal Payments Received less Amount Received on Sale = $91,099.68 - $25,873.60 - $29,408.74 = $35,817.34.
Investor A’s Recognized Loss Amount is $35,817.34.
Note that if a sale did not result in a complete disposition of an investor’s ownership in a particular Certificate (i.e., only a portion of the holdings of a Certificate was sold), a Recognized Loss Amount or Recognized Gain Amount, if any, related to the remaining portion of the Certificate will be calculated separately.
12. Certificates Not Sold: For each Certificate not sold (i.e., still held by the Claimant as of the submission of the Proof of Claim), the Recognized Loss Amount or Recognized Gain Amount is calculated
4 The examples contained herein are for illustration purposes only and investors should not rely on the Certificate prices used (other than prices contained in Table A).
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using the same steps set forth directly above, except that the calculation proceeds as if the Certificate was sold on the Date of Suit.
Example 2: Investor B purchased $100,000.00 original face amount of Certificate 45667SAL1 (INDX 2006-AR35 1-A-1B) on February 10, 2007. The purchase price was $90.00. Investor B continues to hold this Certificate.
(1) Step 1: Investor B uses Table B to determine that the Factor on the purchase date (February 10, 2007) is 0.980209. Therefore, Original Principal Amount = $100,000.00 x 0.980209 x (90.00/100) = $88,218.81.
(2) Step 2: Investor B uses Table A and Table C to determine that the WFFs on the purchase date and Date of Suit (May 14, 2009) are 0.980209 and 0.758239, respectively. Therefore, Principal Payments Received = $100,000.00 x (0.980209 - 0.758239) = $22,197.00.
(3) Step 3: Investor B uses Table A to determine that the price on the Date of Suit was $14.7957. Investor B uses Table B to determine that the Factor on the Date of Suit was 0.758239. Therefore, Amount Received on Sale = $100,000.00 x 0.758239 x (14.7957/100) = $11,218.68.
(4) Step 4: Investor B uses the results of Steps 1-3 to calculate its Recognized Loss Amount or Recognized Gain Amount: Original Principal Amount less Principal Payments Received less Amount Received on Sale = $88,218.81 - $22,197.00 - $11,218.68 = $54,803.13.
Investor B’s Recognized Loss Amount is $54,803.13.
13. Certificates Sold On Or After Date Of Suit: For each Certificate that was sold on or after the Date of Suit, the Recognized Loss Amount or Recognized Gain Amount is calculated using steps similar to those set forth above in Example 2. For Certificates sold on or after the Date of Suit, the Recognized Loss Amount or Recognized Gain Amount shall be calculated using the greater of the sum of Principal Payments Received and Amount Received on Sale (Steps 2 and 3) as of (i) the Date of Suit for that Certificate (see Table A); or (ii) the Date of Actual Sale.
Example 3: Investor C purchased $100,000.00 original face amount of Certificate 45661SAF0 (INDA 2006-AR2 2-C-M) on August 20, 2006. The purchase price was $100.00. On April 28, 2011, Investor C sold its remaining interest in the Certificate. The sales price was $60.00.
(1) Step 1: Investor C uses Table B to determine that the Factor on the date of purchase (August 20, 2006) is 1.000000. Therefore, Original Principal Amount = $100,000.00 x 1.000000 x (100.00/100) = $100,000.00.
(2) Steps 2 and 3: Investor C conducts independent summations of Principal Payments Received and Amount Received on Sale for both (1) the Date of Suit; and (2) the Date of Actual Sale. Investor C shall use the greater of the sums in Step 4.
(a) Date of Suit
Investor C first uses Table C to determine that the WFFs on the purchase date and the Date of Suit (May 14, 2009) are 1.000000 and 0.631391, respectively. Therefore, Principal Payments Received as of Date of Suit = $100,000.00 x (1.000000 - 0.631391) = $36,860.90.
Investor C then uses Table A to determine that the price on the Date of Suit was $57.4799. Investor C uses Table B to determine that the Factor on the Date of Suit was 0.637459. Therefore, Amount Received on Sale on the Date of Suit = $100,000.00 x 0.637459 x (57.4799/100) = $36,641.08.
The sum of Steps 2 and 3 for the Date of Suit is $36,860.90 + $36,641.08 = $73,501.98.
(b) Date of Actual Sale
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Investor C first uses Table C to determine that the WFFs on the purchase date and Date of Actual Sale (April 28, 2011) are 1.000000 and 0.463227, respectively. Therefore, Principal Payments Received as of Date of Actual Sale = $100,000.00 x (1.000000 - 0.463227) = $53,677.30.
Investor C uses the actual sales price of $60.00. Investor C uses Table B to determine that the Factor on the Date of Actual Sale was 0.151383. Therefore, Amount Received on Sale on the Date of Actual Sale = $100,000.00 x 0.151383 x (60.00/100) = $9,082.98.
The sum of Steps 2 and 3 for the Date of Actual Sale is $53,677.30 + $9,082.98 = $62,760.28.
Investor C shall use $73,501.98 (rather than $62,760.28) in Step 4.
(3) Step 4: Investor C uses the results of Steps 1-3 to calculate its Recognized Loss Amount or Recognized Gain Amount.
Original Principal Amount less the greater of the sums from Steps 2 and 3 above (i.e., Principal Payments Received + Amount Received on Sale) = $100,000.00 - $73,501.98 = $26,498.02.
Investor C’s Recognized Loss Amount is $26,498.02.
III. CALCULATION OF THE CLAIMANT’S RECOGNIZED CLAIM AND DISTRIBUTION AMOUNT
14. For each Certificate, a Claimant’s Net Recognized Loss will be calculated by totaling all of the Claimant’s Recognized Loss Amounts for a Certificate and subtracting from that total all Recognized Gain Amounts for the same Certificate. If this calculation results in a positive number, that figure will be the Claimant’s Net Recognized Loss for that Certificate. If the calculation results in a negative number, the Claimant’s Net Recognized Loss for that Certificate will be zero and the Claimant will not receive any recovery from the net settlement fund as a result of its purchases or acquisitions of that Certificate.
15. A Claimant’s “Recognized Claim” is the sum of all the Claimant’s Net Recognized Losses for all of the Certificates.
16. Each net settlement fund will be distributed to the Claimants who purchased Certificates covered by that settlement on a pro rata basis based on the relative size of their Recognized Claims in that settlement. Specifically, a “Distribution Amount” will be calculated for each Claimant, which shall be the Claimant’s Recognized Claim divided by the total Recognized Claims of all Claimants, multiplied by the total amount in the net settlement fund. If any Claimant’s Distribution Amount calculates to less than $10.00, it will not be included in the calculation and no distribution will be made to such Claimant. The Recognized Claims of any Claimants whose Distribution Amounts would be less than $10.00 are then excluded and the total Recognized Claims of all other Claimants are totaled to determine the pro rata Distribution Amounts for the Authorized Claimants who will receive $10.00 or more.
17. The Underwriter Defendant Net Settlement Fund will be distributed on a pro rata basis to the Underwriter Defendant Settlement Class Members who are Authorized Claimants and the Individual Defendant Net Settlement Fund will be distributed on a pro rata basis to the Individual Defendant Settlement Class Members who are Authorized Claimants. These distribution calculations will be conducted separately for each Settlement Fund.
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TABLE A-1
Certificate CUSIP Date of Suit Offering PriceDate of Suit
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TABLE B will be available
on the Settlement website www.IndyMacMBSclassaction.com
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TABLE C will be available
on the Settlement website www.IndyMacMBSclassaction.com
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Exhibit B
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In re INDYMAC MORTGAGE-BACKED SECURITIES LITIGATION
Master Docket No. 09-Civ. 04583 (LAK) ECF CASE
This Document Relates To:
ALL ACTIONS
[EXHIBIT B TO STIPULATION]
[PROPOSED] ORDER AND FINAL JUDGMENT
This matter came for hearing on ________________ (the “Final Approval Hearing”), on
the application of Lead Plaintiffs Wyoming Retirement System and Wyoming State Treasurer for
(i) approval of the Settlement set forth in the Amended Stipulation and Agreement of Settlement
between Lead Plaintiffs and Defendants Credit Suisse Securities (USA) LLC, Deutsche Bank
Securities Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, RBS Securities Inc.,
and UBS Securities LLC (the “Settling Defendants”), dated September 19, 2014 (the
“Stipulation”); and (ii) entry of an Order and Final Judgment in accordance with the Stipulation.
The Court having considered all matters submitted to it at the Final Approval Hearing
and otherwise;
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. This Order and Final Judgment hereby incorporates by reference the definitions in
the Stipulation, and all capitalized terms, unless otherwise defined herein, shall have the same
meanings as set forth in the Stipulation.
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2. This Court has jurisdiction to enter this Order and Final Judgment. The Court has
jurisdiction over the subject matter of the Action and over all parties to the Action, including all
Settlement Class Members.
3. The Court hereby certifies, for settlement purposes only, pursuant to Rule 23(a)
and 23(b)(3) of the Federal Rules of Civil Procedure, a Settlement Class defined as:
All Persons who at any time purchased or otherwise acquired interests in the Certificates. Excluded from the Settlement Class are those Persons who purchased or otherwise acquired Certificates, but who have filed individual actions to separately pursue claims against the Settling Defendants relating to the Certificates or who have filed a valid request for exclusion in accordance with the requirements set forth in the Notice. Also excluded from the Settlement Class are Defendants, their officers and directors at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which any Defendant has or had a controlling interest, except for any Investment Vehicle, to the extent such entities themselves had a proprietary (i.e., for their own account) interest in the Certificates and not to the extent that they held Certificates in a fiduciary capacity or otherwise on behalf of any third-party client, account, fund, trust, or employee benefit plan that otherwise falls within the Settlement Class.
4. With respect to the Settlement Class, this Court finds, solely for the purposes of
the Settlement (and without an adjudication of the merits), that the prerequisites for a class action
under Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure have been satisfied, in
that: (a) the members of the Settlement Class are sufficiently numerous that joinder of all
Settlement Class Members in the Action is impracticable; (b) there are questions of law and fact
common to the Settlement Class; (c) the claims of the Settlement Class Representatives are
typical of the claims of the Settlement Class; (d) the Settlement Class Representatives and Lead
Counsel have fairly and adequately represented and protected the interests of the Settlement
Class Members; (e) the questions of law and fact common to the members of the Settlement
Class predominate over any questions affecting only individual members; and (f) a class action is
superior to other available methods for the fair and efficient adjudication of the controversy,
considering: (i) the interests of the Settlement Class Members in individually controlling the
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prosecution of separate actions; (ii) the extent and nature of any litigation concerning the
controversy already commenced by Settlement Class Members; and (iii) the desirability or
undesirability of concentrating the litigation of these claims in this particular forum.
5. Notice of the proposed Settlement, Plan of Allocation, Final Approval Hearing,
and motion for attorneys’ fees and reimbursement of Litigation Expenses was given to all
Settlement Class Members who could be identified with reasonable effort (the “Notice”). The
form and method of notice to the Settlement Class, met the requirements of due process, Rule 23
of the Federal Rules of Civil Procedure and Section 27 of the Securities Act of 1933, 15 U.S.C.
§ 77z-l(a)(7), as amended by the Private Securities Litigation Reform Act of 1995, constituted
the best notice practicable under the circumstances, and constituted due and sufficient notice to
all Persons entitled thereto.
6. Pursuant to and in compliance with Rule 23 of the Federal Rules of Civil
Procedure, the Court hereby finds that due and adequate notice of these proceedings was directed
to all Persons who are Settlement Class Members advising them of the Settlement, the Plan of
Allocation, the Final Approval Hearing, and Lead Counsel’s motion for attorneys’ fees and
reimbursement of Litigation Expenses, and of their right to object to the Settlement Class, and a
full and fair opportunity was accorded to all such Persons to be heard with respect to the
Settlement, the Plan of Allocation, and/or Lead Counsel’s motion for attorneys’ fees and request
for reimbursement of Litigation Expenses.
7. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby
approves the Settlement as set forth in the Stipulation, and finds that the Settlement is, in all
respects, fair, reasonable and adequate, and in the best interests of the Settlement Class
Members. This Court further finds that the Settlement set forth in the Stipulation is the result of
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arm’s-length negotiations between experienced counsel representing the interests of the Settling
Parties. Accordingly, the Settlement embodied in the Stipulation is hereby finally approved in
all respects and shall be consummated in accordance with the terms and provisions of the
Stipulation. The Settling Parties are hereby directed to perform its terms.
8. The Court finds and concludes that the Settling Parties and their respective
counsel have complied in all respects with the requirements of Rule 11 of the Federal Rules of
Civil Procedure in connection with the commencement, maintenance, prosecution, defense and
settlement of the Action.
9. Except as to any individual claim of those Persons who have validly and timely
requested exclusion from the Settlement Class (identified in Exhibit 1 hereto), all Released
Claims are dismissed with prejudice against the Released Parties. The Settling Parties are to bear
their own costs, except as otherwise provided in the Stipulation.
10. This Order and Final Judgment is binding on all Settlement Class Members
(which does not include those Persons listed on Exhibit 1 hereto who have validly and timely
requested exclusion from the Settlement Class).
11. Upon the Effective Date, the Settlement Class Representatives and all other
Settlement Class Members, on behalf of themselves and any of their personal representatives,
spouses, domestic partners, trustees, heirs, executors, administrators, successors or assignees
shall be deemed by operation of law to have fully, finally, and forever released, relinquished,
waived, discharged and dismissed each and every Released Claim against the Released Parties,
and shall forever be enjoined from pursuing any or all Released Claims in any forum of any kind,
whether directly or indirectly, whether on their own behalf or otherwise; and regardless of
whether or not such Settlement Class Member executes and delivers a Proof of Claim Form. By
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entering into this Settlement, the Settlement Class Representatives represent and warrant that
they have not assigned, hypothecated, conveyed, transferred, or otherwise granted or given any
interest in the Released Claims, or any of them, to any other Person. The Settling Parties
acknowledge, and the Settlement Class Members shall be deemed by operation of law to
acknowledge, that the waiver of Unknown Claims, and the provisions, rights and benefits of
California Civil Code § 1542, was bargained for and is a key element of the Settlement of which
the release in this paragraph is a part.
12. Upon the Effective Date, the Settling Defendants and each of the other Released
Parties shall be deemed by operation of law to have fully, finally, and forever released,
relinquished, waived, discharged and dismissed all Released Parties’ Claims, and shall forever be
enjoined from pursuing any or all Released Parties’ Claims in any forum of any kind, whether
directly or indirectly, whether on their own behalf or otherwise. By entering into this Settlement,
the Settling Defendants represent and warrant that they have not assigned, hypothecated,
conveyed, transferred, or otherwise granted or given any interest in the Released Parties’ Claims,
or any of them, to any other Person. The Settling Parties acknowledge, and the Released Parties
shall be deemed by operation of law to acknowledge, that the waiver of Unknown Claims, and
the provisions, rights and benefits of California Civil Code § 1542, was bargained for and is a
key element of the Settlement of which the release in this paragraph is a part.
13. The facts and terms of the Stipulation, including Exhibits thereto, this Order and
Final Judgment, all negotiations, discussions, drafts and proceedings in connection with the
Settlement, and any act performed or document signed in connection with the Settlement:
(a) shall not be offered or received against the Released Parties as evidence of
a presumption, concession, or admission of any fault, misrepresentation, or omission with respect
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to any statement or written document approved or made by any Released Party, or against the
Settlement Class Representatives or other Settlement Class Members as evidence of any
infirmity in the claims of the Settlement Class Representatives or other Settlement Class
Members;
(b) shall not be offered or received against the Released Parties, the
Settlement Class Representatives, or other Settlement Class Members as evidence of, or be
deemed to be evidence of, any presumption, concession or admission by any of the Released
Parties or by the Settlement Class Representatives or other Settlement Class Claims with respect
to the truth or falsity of any allegation by the Settlement Class Representatives or the validity, or
lack thereof, of any claim that has been or could have been asserted in the Action or in any
litigation, or the deficiency of any defense that has been or could have been asserted in the
Action or in any litigation, or of any liability, negligence, fault or wrongdoing of the Released
Parties;
(c) shall not be offered or received against the Released Parties, the
Settlement Class Representatives, or other Settlement Class Members as evidence of a
presumption, concession or admission with respect to any liability, negligence, fault or
wrongdoing, or in any way referred to for any other reason as against any of the parties to this
Stipulation, in any arbitration proceeding or other civil, criminal or administrative action or
proceeding, other than such proceedings as may be necessary to effectuate the provisions of this
Stipulation; provided, however, that the Released Parties may refer to it to effectuate the liability
protection granted them hereunder;
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(d) shall not be construed or received in evidence as an admission, concession
or presumption against the Released Parties that Underwriter Defendant Settlement Amount
represents the amount which could be or would have been recovered after trial; and
(e) shall not be construed as or received in evidence as an admission,
concession or presumption against the Settlement Class Representatives or other Settlement
Class Members that any of their claims are without merit or that damages recoverable in the
Action would not have exceeded the Underwriter Defendant Settlement Amount.
14. As a material condition of the Settlement, the Court hereby permanently bars,
enjoins and restrains any and all Persons (including, but not limited to, non-settling defendants,
their successors or assigns, and any other Person later named as a defendant or third-party in the
Action) from instituting, commencing, prosecuting, asserting or pursuing any claim against any
of the Settling Defendants for contribution or indemnity (whether contractual or otherwise),
however denominated, arising out of, based upon or related to the claims and allegations asserted
in the Action (or any other claims where the alleged injury to the entity/individual is the
entity’s/individual’s actual or threatened liability to any Settlement Class Member), whether
arising under state, federal or foreign law as claims, cross-claims, counterclaims, or third-party
claims, whether asserted in this Court, in any federal or state court, or in any other court,
arbitration proceeding, administrative agency, or other forum in the United States or elsewhere,
and whether such claims are legal or equitable, known or unknown, foreseen or unforeseen,
matured or discharged, satisfied and unenforceable, subject to a hearing to be held by the Court,
if necessary.
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15. Any Person so barred and enjoined under paragraph 14 above, shall be entitled to
appropriate judgment reduction in accordance with applicable statutory or common law rule to
the extent permitted under the Securities Act of the 1933 for the claims alleged against them.
16. The Court reserves jurisdiction, without affecting in any way the finality of this
Order and Final Judgment, over: (a) implementation and enforcement of the Settlement; (b) the
allowance, disallowance or adjustment of any Settlement Class Member’s claim on equitable
grounds and any award or distribution of the Underwriter Defendant Settlement Fund;
(c) disposition of the Underwriter Defendant Settlement Fund; (d) hearing and determining Lead
Counsel’s motion for attorneys’ fees and reimbursement of Litigation Expenses; (e) enforcing
and administering this Order and Final Judgment; (f) enforcing and administering the
Stipulation, including any releases executed in connection therewith; and (g) other matters
related or ancillary to the foregoing.
17. A separate order shall be entered regarding the proposed Plan of Allocation. Such
order shall not disturb or affect any of the terms of this Order and Final Judgment.
18. A separate order shall be entered regarding Lead Counsel’s and additional
Settlement Class Representatives’ counsel’s motion for attorneys’ fees and reimbursement of
Litigation Expenses as allowed by the Court. Such order shall not disturb or affect any of the
terms of this Order and Final Judgment.
19. In the event that the Settlement does not become effective in accordance with the
terms of the Stipulation or in the event that the Underwriter Defendant Settlement Fund, or any
portion thereof, is returned to the Settling Defendants, then this Order and Final Judgment shall
be rendered null and void to the extent provided by and in accordance with the Stipulation, and
shall be vacated to the extent provided by the Stipulation and, in such event: (a) all Orders
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entered and releases delivered in connection herewith shall be null and void to the extent
provided by and in accordance with the Stipulation; (b) the fact of the Settlement shall not be
admissible in any trial of the Action and the parties to the Stipulation shall be deemed to have
reverted nunc pro tunc to their respective status in the Action immediately before July 23, 2014;
(c) the certification of the Settlement Class, including the findings in paragraph 4 herein, shall be
null and void without further Court action; and (d) the balance of the Underwriter Defendant
Settlement Fund, less any Notice and Administration Expenses paid or incurred and less any
Taxes and Tax Expenses paid, incurred, or owing, shall be returned in full as provided in the
Stipulation.
20. Without further Order of the Court, the parties may agree to reasonable extensions
of time to carry out any of the provisions of the Stipulation.
21. There is no just reason for delay in the entry of this Order and Final Judgment and
immediate entry by the Clerk of the Court is expressly directed.
Dated: New York, New York
_______________________, 2014
HONORABLE LEWIS A. KAPLAN UNITED STATES DISTRICT JUDGE
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EXHIBIT 1
Persons Excluded from the Settlement Class Pursuant to Requests for Exclusion
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