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Commonly Asked Questions

WHY DID I GET THE UPDATED INDIVIDUAL DEFENDANT NOTICE?

Answer:

Pursuant to an Order of the United States District Court for the Southern District of New York (the “Court”) to provide you with updated information regarding the Individual Defendant Settlement, which was approved by the Court in December 2012. Settlement funds in connection with the Individual Defendant Settlement have not yet been distributed. Once the proposed Underwriter Defendant Settlement and Plan of Allocation are Final and approved by the Court, the Individual Defendant Net Settlement Fund will be distributed to Individual Defendant Settlement Class Members who submit valid Proof of Claim forms and provide necessary documentation.

The 2012 Individual Defendant Settlement Notice explained the lawsuit and the Individual Defendant Settlement. The purpose of this Notice is to inform you of the terms of the proposed Plan of Allocation, Counsel’s request for attorneys’ fees and reimbursement of Litigation Expenses, the proposal to dismiss IndyMac MBS from the Action and the hearing where the Court will consider these items and issues. This Notice applies only to members of the Individual Defendant Settlement Class.

HOW DO I KNOW IF I AM AFFECTED BY THE INDIVIDUAL DEFENDANT SETTLEMENT?

Answer:

The Individual Defendant Settlement Class consists of all persons or entities who purchased or otherwise acquired beneficial interests in any Individual Defendant Settlement Certificates and were allegedly damaged thereby.

Excluded from the Individual Defendant Settlement Class are: the Individual 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 Defendant have or had a controlling interest, provided that any Investment Vehicle shall not be deemed an excluded person or entity by definition.

HOW DO I PARTICIPATE IN THE INDIVIDUAL DEFENDANT SETTLEMENT? WHAT DO I NEED TO DO?

Answer:

If you purchased or otherwise acquired the Individual Defendant Settlement Certificates and you are not excluded by the definition of the Individual Defendant Settlement Class, then you are an Individual Defendant Settlement Class Member, and you are bound by the terms of the Court-approved Individual Defendant Settlement. At this time, you are advised to submit a Proof of Claim Form with and all supporting documentation to establish your entitlement to share in the Individual Defendant Settlement. Proof of Claim Forms are available by clicking here.

Those who do not submit timely and valid Proof of Claim Forms with adequate supporting documentation, will not be entitled to share in the Individual Defendant Settlement. Please retain all records of your ownership of, or transactions in, the certificates, as they may be needed to document your claim.

WHY DID I GET THE UNDERWRITER DEFENDANT SETTLEMENT NOTICE?

Answer:

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.

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.

HOW DO I KNOW IF I AM AFFECTED BY THE SETTLEMENT WITH THE UNDERWRITER DEFENDANTS?

Answer:

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.

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.

WHAT ARE THE LEAD PLAINTIFFS’ REASONS FOR SETTLING WITH THE UNDERWRITER DEFENDANTS?

Answer:

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.

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 liability and damages.
 
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.
 
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?

Answer:

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.

WHAT RIGHTS AM I GIVING UP BY AGREEING TO THE UNDERWRITER DEFENDANT SETTLEMENT?

Answer:

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 the Underwriter Defendant Settlement Notice) including Unknown Claims (as defined in the Underwriter Defendant Settlement Notice). 

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 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.

HOW DO I EXCLUDE MYSELF FROM THE UNDERWRITER DEFENDANT SETTLEMENT?

Answer:

Each member of the Underwriter Defendant Settlement Class will be bound by all determinations and judgments in this lawsuit, including those concerning the Underwriter 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:

IndyMac Mortgage-Backed Securities Litigation
c/o Rust Consulting, Inc.
P.O. Box 2844
Faribault, MN 55021-8598

The exclusion request must be received no later than January 13, 2015. For further information to exclude yourself from the settlement, please refer to the Underwriter Settlement Class Notice at the link on the left.

 

HOW DO I OBJECT TO THE SETTLEMENTS?

Answer:

INDIVIDUAL DEFENDANT SETTLEMENT

Any Individual Defendant Settlement Class Member who did not request exclusion in accordance with the 2012 Individual Defendant Settlement Notice may object to the Plan of Allocation; Counsel’s request for an award of attorneys’ fees and reimbursement of Litigation Expenses; and/or Lead Counsel’s request to dismiss IndyMac MBS from the Action. Objections or oppositions must be in writing. You must file any written objection or opposition, together with copies of all other supporting papers and briefs, with the Clerk’s Office at the United States District Court for the Southern District of New York at the address set forth below no later than January 13, 2015. You must also serve the papers on Lead Counsel for the Individual Defendant Settlement Class at the address set forth below so that the papers are received no later than January 13, 2015.

 

Clerk’s Office
Lead Counsel for the Individual Defendant Settlement Class
UNITED STATES DISTRICT
Court for the Southern
District of New York
500 Pearl Street
New York, NY 10007
BERMAN DEVALERIO
Patrick T. Egan, Esq.
One Liberty Sq.
Boston, MA 02109

You may not object to the Underwriter Defendant Settlement, or any aspect of it, if you excluded yourself from the Underwriter Defendant Settlement Class.

 

 
 UNDERWRITER DEFENDANT SETTLEMENT
 
Clerk’s Office
Lead Counsel
Counsel For Underwriter Defendants
UNITED STATES DISTRICT
Court for the Southern
District of New York
500 Pearl Street
New York, NY 10007
BERMAN DEVALERIO
Patrick T. Egan, Esq.
One Liberty Sq.
Boston, MA 02109
GIBSON DUNN & CRUTCHER LLP
Robert F. Serio, Esq.
Aric H. Wu, Esq.
Jason Myatt, Esq.
200 Park Avenue
New York, NY 10166

Any objection by an 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.

WHAT IF I OBJECT TO LEAD PLAINTIFFS’ PROPOSED DISMISSAL OF DEFENDANT INDYMAC MBS, INC. FROM THE ACTION?

Answer:

Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action is not part of the Individual Defendants Settlement or the Underwriter Defendant Settlement. However, at the Hearing, Lead Plaintiffs may seek the Court’s approval of Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action. If you wish to object to the Lead Plaintiffs’ proposed dismissal of IndyMac MBS from the Action, you may present your objections to the Court at the Hearing.

WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO APPROVE THE PLAN OF ALLOCATION AND 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?

Answer:

The Hearing will be held on February 3, 2015 at 4:30 p.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, NY 10007.

At the Hearing the Court will determine if: (i) whether the Underwriter Defendant Settlement on the terms and conditions provided for in the Amended Stipulation of Settlement between Lead Plaintiffs and the Underwriter Defendants is fair, reasonable and adequate; (ii) whether the proposed Plan of Allocation is fair and reasonable and should be approved by the Court; (iii) whether Counsel’s application for attorneys’ fees and reimbursement of Litigation Expenses incurred should be approved by the Court; (iv) to determine whether Lead Plaintiffs’ Request to Dismiss IndyMac MBS from the Action should be approved and (v) to rule upon such other matters as the Court may deem appropriate.

HOW MUCH WILL PAYMENT BE?  WHEN WILL I RECEIVE IT?

Answer:

The Settled Defendants agreed to pay Six Million Dollars ($6,000,000) in cash into escrow for the benefit of the Individual Defendant Settlement Class which has been earning interest thereon. 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 each Individual Defendant Settlement Class Member may receive from the Individual Defendant Settlement; nor is it possible determine 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 Individual Defendant Net Settlement Fund and the Underwriter Defendant Net Settlement Fund to those Individual Defendant Settlement Class Members and Underwriter Defendant Settlement Class Members (the “Plan of Allocation”) who timely submit valid Proof of Claim Forms. The objective of the Plan of Allocation will be to equitably distribute the Individual Defendant Net Settlement Fund 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 Proof of Claim Form.
The Plan of Allocation 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 Individual Defendant Settlement Class.

Persons that excluded themselves from the Individual Defendant Settlement Class will not be eligible to receive a distribution from the Individual Defendant Net Settlement Fund and should not submit Proof of Claim Forms.

WHAT PAYMENT ARE THE ATTORNEYS FOR THE CLASS SEEKING?  HOW WILL THE LAWYERS BE PAID?

Answer:

Counsel has not received any payment for its services in pursuing claims against any defendant resulting in settlements with the Settled Defendants (the Individual Defendants) or the Settling Defendants (Underwriter Defendants). Counsel has only been reimbursed for certain of its out-of-pocket expenses in connection with the Individual Defendant Settlement and Underwriter Defendant Settlement. Subject to Court approval of the Underwriter Defendant Settlement and the proposed Plan of Allocation, Counsel intends to apply to the Court for an award of attorneys’ fees from the Global Settlement Fund in an amount not to exceed 13% of the Global Settlement Fund.

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. 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 Class. Counsel intends to seek reimbursement of additional Litigation Expenses in an amount not to exceed $3,400,000. 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).

WHAT IF I BOUGHT CERTIFICATES ON SOMEONE ELSE’S BEHALF?

Answer:

If you purchased or otherwise acquired the Certificates listed in Table A-1 or A-2 in the proposed Plan of Allocation for the beneficial interest of a person or organization other than yourself, you must either (a) 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 (b) 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.

[NOTE TO BROKERS: If in connection with the 2012 Individual Defendant Settlement Notice, you already sent a list of the name and addresses to the Claims Administrator you need not re-send that information.]

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.

CAN I SEE THE COURT FILE?  WHO SHOULD I CONTACT IF I HAVE QUESTIONS?

Answer:

More detailed information about the matters involved in the Action is available on the website,including, among other documents, copies of the 2012 Individual Defendant Settlement Notice, Proof of Claim Form, and the Second Amended Complaint. All inquiries concerning this Notice or the Proof of Claim Form should be directed to:

IndyMac Mortgage-Backed Securities Litigation
c/o Rust Consulting, Inc.
P.O. Box 2844
Faribault, MN 55021-8598
(877) 773-8195
Info@IndyMacMBSclassaction.com
OR
Patrick T. Egan, Esq.
BERMAN DEVALERIO
One Liberty Square
Boston, MA 02109
(800) 516-9926
indymac@bermandevalerio.com 
Lead Counsel
 

Disclaimer

IMPORTANT: This site is not operated by IndyMac Bancorp, Inc.  This site is operated and administered by a claims administration firm that handles all aspects of claim processing.  Please direct any website errors or questions to the Claims Administrator, Rust Consulting, Inc.

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