UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THE BOARD OF TRUSTEES OF THE Case No. 09-cv-13201 

CITY OF BIRMINGHAM EMPLOYEES’ 

RETIREMENT SYSTEM, ET AL, Hon. Stephen J. Murphy, III 

Plaintiffs, 

 

v. 

COMERICA BANK, 

Defendant/Third-Party Plaintiff, 

v. 

MUNDER CAPITAL MANAGEMENT, 

Third-Party Defendant. 

FINAL ORDER AND JUDGMENT 

 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3574 Filed 12/27/13 Page 1 of 11
2 

 WHEREAS, the Settling Parties executed a Stipulation of Settlement 

(“Stipulation”)1

 on September 27, 2013, that provides for the payment of 

$11,000,000 and a complete dismissal with prejudice of the claims asserted in the 

above-referenced litigation against Comerica on the terms and conditions set forth 

in the Stipulation, subject to the approval of this Court (the “Settlement”); 

 WHEREAS, by Order dated October 9, 2013 (the “Preliminary Approval 

Order”), this Court (a) preliminarily certified, for settlement purposes only, the 

Class; (b) preliminarily approved the Settlement; (c) ordered that Notice of the 

proposed Settlement be provided to the Class Members; (d) provided Class 

Members with the opportunity to exclude themselves from the proposed 

Settlement; (e) provided Class Members with the opportunity to object to the 

proposed Settlement; and (f) scheduled a hearing regarding final approval of the 

Settlement; 

 WHEREAS, due and adequate notice has been given to the Class; and 

 WHEREAS, the Court conducted a hearing on December 19, 2013 (“Final 

Approval Hearing”) to (a) determine whether the Settlement should be approved 

by the Court as fair, reasonable and adequate; (b) determine whether the Judgment 

should be entered pursuant to the Stipulation, inter alia, dismissing the Action 

against Comerica with prejudice and extinguishing and releasing all Settled Claims 

 

1 Capitalized terms not otherwise defined in this Order shall have the same meaning as ascribed 

to them in the Stipulation.

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3575 Filed 12/27/13 Page 2 of 11
3 

(as defined therein) against all Comerica Releasees, Munder Releasees and Class 

Member Releasees (“Released Parties”); (c) determine whether the Class should be 

finally certified for settlement purposes pursuant to Fed.R.Civ.P. Rules 23(a) and 

(b)(3); (d) rule on Plaintiffs’ Counsel’s application for an award of attorneys’ fees 

and the reimbursement of Litigation Expenses; and (e) rule on such other matters 

as the Court may deem appropriate. 

 The Court has considered all matters submitted to it at the Final Approval 

Hearing and otherwise, the pleadings on file, the applicable law, and the record. 

 NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 

1. The Court, for purposes of this Final Order and Judgment (the 

“Judgment”) adopts all defined terms as set forth in the Stipulation, and 

incorporates them herein by reference as if fully set forth. 

2. The Court has jurisdiction over the subject matter of the Action, and 

all matters relating to the Settlement, as well as personal jurisdiction over all of the 

Settling Parties and each of the Class Members. 

 3. The Court finds that the prerequisites for a class action under Federal 

Rules of Civil Procedure 23(a) and (b)(3) have been satisfied in that: (a) the 

number of Class Members is so numerous that joinder of all Class Members is 

impracticable; (b) there are questions of law and fact common to the Class; (c) the 

claims of the Named Plaintiffs are typical of the claims of the Class they seek to 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3576 Filed 12/27/13 Page 3 of 11
4 

represent; (d) the Named Plaintiffs and Plaintiffs’ Counsel have at all times fairly 

and adequately represented the interests of the Class; and (e) a class action is 

superior to other available methods for the fair and efficient adjudication of the 

controversy, considering: (i) the interests of the Class Members in individually 

controlling the prosecution of separate actions, (ii) the extent and nature of any 

litigation concerning the controversy already commenced by members of the Class, 

(iii) the desirability or undesirability of continuing the litigation of these claims in 

this particular forum, and (iv) the difficulties likely to be encountered in the 

management of the class action. 

 4. Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court has 

certified, for settlement purposes only, a Class that shall consist of all participants 

in Comerica’s Securities Lending Program that, through one or more of the 

investment vehicles offered or managed by Comerica or its affiliates, incurred 

losses relating to investments in the Sigma Notes and that have not previously 

released Comerica from all liability related to such losses. 

 5. The Notice, the publication of the Notice on a dedicated website and 

the notice methodology implemented pursuant to the Stipulation and the Court’s 

orders (a) constituted the best notice practicable under the circumstances to all 

Persons within the definition of the Class; (b) constituted notice that was 

reasonably calculated, under the circumstances, to apprise Class Members of (i) the 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3577 Filed 12/27/13 Page 4 of 11
5 

pendency of the Action, (ii) the effect of the Stipulation, including releases, (iii) 

their right to object to the proposed Settlement, (iv) their right to participate in the 

Settlement, (v) their right to exclude themselves from the Class, and (vi) their right 

to appear at the Final Approval Hearing; (c) were reasonable and constituted due, 

adequate and sufficient notice to all Persons entitled to receive notice; and (d) met 

all applicable requirements of the Federal Rules of Civil Procedure, the United 

States Constitution (including the Due Process Clause), the Rules of the Court and 

any other applicable law. 

 6. The Action and the Complaint and all claims included therein, as well 

as all Settled Claims are dismissed with prejudice. In addition, all third-party 

claims and counterclaims between Comerica and Munder are dismissed with 

prejudice. 

 7. Upon the Effective Date, Named Plaintiffs and each Class Member 

(other than those entities listed on Exhibit 1 who have timely and validly requested 

exclusion from the Class), on behalf of themselves and all of their Related Parties, 

individually and collectively, by operation of law and this Judgment (a) shall be 

deemed to have fully, finally and forever released, relinquished, waived, 

discharged and dismissed all Settled Claims (including Unknown Claims) as 

against each and all of the Comerica Releasees and the Munder Releasees; (b) shall 

be enjoined from asserting or prosecuting any Settled Claims; and (c) shall be 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3578 Filed 12/27/13 Page 5 of 11
6 

deemed to have agreed and covenanted not to sue any of the Comerica Releasees 

or Munder Releasees on the basis of any Settled Claims or to assist any third-party 

in commencing or maintaining any suit related to any Settled Claim. 

 8. Upon the Effective Date hereof, Comerica and Munder, on behalf of 

themselves and all of their respective Related Parties, individually and collectively, 

by operation of law and this Judgment, (a) shall be deemed to have fully, finally, 

and forever released, relinquished, waived, discharged and dismissed any and all 

Settled Claims against the Class Member Releasees; (b) shall be enjoined from 

asserting or prosecuting any Settled Claims; and (c) shall be deemed to have 

agreed and covenanted not to sue any of the Class Member Releasees on the basis 

of any Settled Claims or to assist any third-party in commencing or maintaining 

any suit related to any Settled Claim. 

 9. Nothing in this Judgment shall bar any action or claim by any of the 

Settling Parties to enforce or effectuate the terms of the Stipulation or this 

Judgment. 

 10. This Judgment and the Stipulation, including the facts and terms of 

the Stipulation, including exhibits, all negotiations, discussions, drafts and 

proceedings in connection with the Settlement, and any act performed or document 

signed in connection with the Settlement: 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3579 Filed 12/27/13 Page 6 of 11
7 

 (a) shall not be admissible in any action or proceeding for any 

reason, other than an action to enforce the terms of the Stipulation or the 

Comerica-Munder Agreement; and 

 (b) is not, and shall not be deemed, described, construed, offered or 

received as evidence of any presumption, concession, or admission by any Person 

of the truth of any fact alleged in the Action; the validity or invalidity of any claim 

or defense that was or could have been asserted in the Action or in any litigation; 

the amount of damages, if any, that would have been recoverable in the Action; or 

any liability, negligence, fault, or wrongdoing of any Person. 

 11. The Settling Parties may file the Stipulation and/or the Judgment in 

any other litigation that may be brought against them in order to support a defense 

or counterclaim based on principles of res judicata, collateral estoppel, release, 

good faith settlement, judgment bar or reduction or any other theory of claim 

preclusion or issue preclusion or similar defense or counterclaim. 

 12. The Plan of Allocation is approved as fair and reasonable, and 

Plaintiffs’ Counsel and the Settlement Administrator are directed to administer the 

Settlement in accordance with the terms and provisions of the Stipulation. 

 13. The Court finds that the Settling Parties and their counsel have 

complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure 

as to all proceedings herein, and that the Named Plaintiffs and Plaintiffs’ Counsel 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3580 Filed 12/27/13 Page 7 of 11
8 

at all times acted in the best interests of the Class and had a good faith basis to 

bring, maintain and prosecute this Action as to Comerica in accordance with 

Federal Rule of Civil Procedure 11. The Court further finds that the Named 

Plaintiffs and Plaintiffs’ Counsel adequately represented the Class Members in 

entering into and implementing the Settlement. 

 14. Any further orders or proceedings solely regarding the Plan of 

Allocation shall in no way disturb or affect this Judgment and shall be separate and 

apart from this Judgment. 

 15. Without affecting the finality of this Judgment in any way, this Court 

hereby retains continuing jurisdiction over: (a) implementation of this Settlement 

and any award or distribution of the Gross Settlement Fund, including interest 

earned thereon; (b) disposition of the Gross Settlement Fund; (c) hearing and 

determining applications for attorneys’ fees and expenses, including the 

reimbursement of Litigation Expenses to the Named Plaintiffs, in the Action; and 

(d) the Settling Parties hereto for the purpose of construing, enforcing and 

administering the Stipulation. 

 16. No Person shall have any claim or cause of action, however 

denominated, whatsoever against the Comerica Releasees or Munder Releasees, or 

their counsel, arising from or related to any distributions made, or not made, from 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3581 Filed 12/27/13 Page 8 of 11
9 

the Gross Settlement Fund, and any such claims or causes of action, however 

denominated, are fully and finally released and discharged. 

 17. Without further order of the Court, the Settling Parties may agree to 

reasonable extensions of time to carry out any of the provisions of the Stipulation. 

 18. In the event that the Settlement does not become effective in 

accordance with the terms of the Stipulation or the Effective Date does not occur, 

or in the event that the Gross Settlement Fund, or any portion thereof, is returned to 

Comerica, then this Judgment shall be rendered null and void to the extent 

provided by and in accordance with the Stipulation and shall be vacated and, in 

such event, all orders entered and releases delivered in connection herewith shall 

be null and void to the extent provided by and in accordance with the Stipulation. 

 19. The Court hereby GRANTS Plaintiffs’ Counsel attorneys’ fees of 

30% of the amount of the Gross Settlement Fund after the deduction of 

reimbursed expenses, and expenses in an amount of $127,516.02 together with the 

interest earned thereon for the same time period and at the same rate as that earned 

on the Gross Settlement Fund until paid. Said fees shall be allocated by Plaintiffs’ 

Counsel amongst counsel in a manner which, in Plaintiffs’ Counsel’s good-faith 

judgment, reflects each counsel’s contribution to the institution, prosecution and 

resolution of the Action or reflects Plaintiffs’ Counsel’s agreement. The Court 

finds that the amount of fees awarded is fair and reasonable in light of the time and 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3582 Filed 12/27/13 Page 9 of 11
10 

labor required, the novelty and difficulty of the case, the skill required to prosecute 

the case, the experience and ability of the attorneys, awards in similar cases, the 

contingent nature of the representation and the result obtained for the Class. 

 20. The awarded attorneys’ fees and expenses, and interest earned 

thereon, shall be paid to Plaintiffs’ Counsel from the Gross Settlement Fund 

immediately after the date this Order is executed subject to the terms, conditions, 

and obligations of the Stipulation, which terms, conditions, and obligations are 

incorporated herein. 

 21. There is no reason for delay in the entry of this Judgment and 

immediate entry by the Clerk of the Court is expressly directed pursuant to Rule 

54(b) of the Federal Rules of Civil Procedure. 

 SO ORDERED. 

 S/Stephen J. Murphy, III 

 Stephen J. Murphy, III 

 United States District Judge 

Dated: December 27, 2013 

I hereby certify that a copy of the foregoing document was served upon the parties and/or 

counsel of record on December 27, 2013, by electronic and/or ordinary mail. 

 S/Carol Cohron 

 Case Manager

 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3583 Filed 12/27/13 Page 10 of 11
11 

EXHIBIT 1 

List of Entities Excluded from the Class in 

The Board of Trustees of the City of Birmingham Employees’ Retirement System, et 

al. v. Comerica Bank, Case No. 09-cv-13201 

The following entities, and only the following entities, properly excluded 

themselves from the Class by the 21st of November, 2013 deadline pursuant to the 

Court’s Order dated October 9, 2013: 

IN RESPONSE TO THE NOTICE OF 

PENDENCY OF CLASS ACTION 

 

 

 

 

 

 

 

 

Case 2:09-cv-13201-SJM-MJH ECF No. 138, PageID.3584 Filed 12/27/13 Page 11 of 11