Wilmington Trust

A federal judge in Delaware gave final approval late Monday afternoon to a $210 million settlement in a shareholder class action accusing Wilmington Trust Corp. of hiding hundreds of millions of dollars in bad loans from regulators and investors.

U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania, sitting by designation in Delaware, said in a 20-page memorandum that the agreement, first struck in May, brought a fair resolution after eight years of civil litigation against the century-old Delaware institution over its reporting practices. Under the settlement, Wilmington Trust will pay $200 million, and auditing firm KPMG will pay $10 million.

“The court concludes that notice was properly administered to the class members; the case was hard-fought over an extended period of time between sophisticated parties and counsel; and the settlement agreements are fair, reasonable, and adequate and, thus, the court will approve them,” Robreno wrote.

The ruling also approved $58.8 million in attorney fees for Bernstein Litowitz Berger & Grossmann, Saxena White and Chimicles & Tikellis, as well as nearly $6.8 million to cover litigation expenses and $55,000 in costs for the lead plaintiffs in the case.

Attorneys submitted an initial settlement agreement May 25, three weeks after a federal jury convicted some of the bank's top executives of fraud and conspiracy in the first criminal case to charge a financial institution in connection with the federal bank bailout program.

Wilmington Trust reached a $60 million settlement with prosecutors October 2017, just as the trial before U.S. District Judge Richard G. Andrews of the District of Delaware was initially set to begin.

The criminal case hinged on the government's allegations that Robert V.A. Harra Jr., David Gibson, William North and Kevyn N. Rakowski orchestrated a scheme to conceal the amount of ”toxic” real estate loans on its books between October 2009 and November 2010. According to the indictment, Wilmington Trust avoided mandatory disclosures to the U.S. Securities and Exchange Commission and the Federal Reserve Bank by “waiving” matured loans from the reporting requirements for past due loans.

Prosecutors said that by the end of 2009, the bank reported just $10.8 million of the $344.2 million in commercial real estate loans that were past due by 90 days or more, giving investors and regulators a false impression of the Delaware financial institution's health. Under pressure to eliminate the past due and matured loans, the executives hatched a plan to “mass-extend” more than 800 commercial loans worth around $1.3 billion.

Once the public learned the scope of the toxic loans, Wilmington Trust was purchased in a fire sale by M&T Bank in November 2010 for just $3.84 per share—about $9.41 per share less than its value when the bank raised $273.9 million in a public offering nine months prior, according to court documents.

Defense attorneys have strongly disputed the result and continue to challenge the verdict in federal court proceedings.

Harra, North and Rakowski formerly served as Wilmington Trust's president, chief credit officer and controller, respectively. Gibson, who served as the bank's former CFO, was convicted on three additional counts of making false certifications in financial reports. Wilmington Trust's former chairman and CEO Ted Cecala was never charged.

The civil case was filed two years before the government initiated its criminal suit. Attorneys for the plaintiffs said their complaint alleged wrongdoing over a longer period of time and covering a wider range of issues.

The settlement, they said, was reached independently of the criminal verdicts and would allow investors to recover 40 percent of the maximum likely recoverable damages in the case.

“Approving the settlements here provides the class with a substantial, immediate concrete benefit and avoids the protracted risks and uncertainties inherent in this long-running case,” the plaintiffs attorneys said in May. “By any measure, the $210 million recovery represents an excellent result and if approved will provide substantial relief for the class.”

Robreno gave preliminary approval to the settlement in July, and a fairness hearing was held Nov. 5.

Wilmington Trust was represented by attorneys from Williams & Connolly and Venable.

The civil case is captioned In re Wilmington Trust Securities Litigation.