Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 1 of 8. PageID #: 6117
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: In re: NATIONAL CITY CORPORATION : Case No. 08-nc-70000 SECURITIES, DERIVATIVE & ERISA : LITIGATION : JUDGE SOLOMON OLIVER, JR. : This Document Relates to: : The ERISA Cases : : :
PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT; CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS; APPROVAL OF CLASS NOTICE AND SCHEDULING OF A FINAL FAIRNESS HEARING
BARROWAY TOPAZ KESSLER STULL, STULL & BRODY MELTZER & CHECK, LLP Edwin J. Mills Joseph H. Meltzer Michael Klein Edward W. Ciolko 6 East 45th Street 5th Floor Mark K. Gyandoh New York, NY 10017 280 King of Prussia Road Tel.: (212) 687-7230 Radnor, PA 19087 Fax: (212) 490-2022 Tel.: (610) 667-7706 Fax: (610) 667-7056 Interim Co-Lead Counsel for ERISA Plaintiffs
GOLDMAN SCARLATO & KARON, P.C. Daniel R. Karon 55 Public Square Drive, Suite 1500 Cleveland, OH 44113 Telephone: (216) 622-1851 Facsimile: (216) 622-1852
Interim Liaison Counsel for ERISA Plaintiffs Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 2 of 8. PageID #: 6118
Plaintiffs Sharon A. Deucher, Deborah Douglas, James Elsinghorst, Barbara Grosick,
Charles C. Gunning, Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr., George Rithianos,
Loretta D. Rogers, Robert Steinberg, and Ella R. Whitlow respectfully move the Court to issue
an Order (1) granting preliminary approval of the proposed Settlement in this putative class
action case, (2) conditionally certifying the Settlement Class, (3) approving the manner of giving
notice of the Settlement to the proposed Settlement Class (“Notice Plan”), 1 and (4) setting a date
for a Final Fairness Hearing. In support of this motion, Plaintiffs state as follows:
1. Plaintiffs have alleged that Defendant National City Corporation (“National
City”) and other Defendants breached their fiduciary duties to the National City Savings and
Investment Plan, together with its predecessors and successors (including The PNC Financial
Services Group, Inc. Incentive Savings Plan, its successor by plan merger), and any trust created
under such plan (the “Plan”), and the Plan’s participants and beneficiaries.
2. Plaintiffs allege that Defendants were Plan fiduciaries who breached their
fiduciary duties in two ways. First, Plaintiffs allege that Defendants allowed the Plan to purchase and hold shares of National City common stock when National City’s common stock
was not a prudent investment option for the Plan due to the Company’s undisclosed, excessively
risky lending practices from September 5, 2006 to December 31, 2008. Second, Plaintiffs allege
that Defendants breached their fiduciary duties by offering mutual funds of Allegiant Asset
Management Company (formerly known as “Armada Funds”) (the “Allegiant Funds”), an
affiliate of National City, as investment alternatives in the Plan from March 25, 2002 to
December 31, 2009. Plaintiffs allege these breaches of Defendants’ fiduciary duties resulted in a
1 Proposed class notices are appended as Exhibits 1 and 2 to the form of Preliminary Approval Order, which is Exhibit A to the Class Action Settlement Agreement. 1 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 3 of 8. PageID #: 6119
loss to the Plan and the Plan’s participants.
3. Defendants contest all of Plaintiffs’ allegations and deny that they have breached
their fiduciary duties. Defendants also assert affirmative defenses, including that ERISA §
404(c) operates to shift the risk of investment loss in the Plan participants’ 401(k) accounts.
4. After two years of litigation, in February of 2010 the parties embarked on a private mediation conducted by well-known, respected and experienced mediator, David
Geronemus of JAMS. The mediation was successful with the parties herein agreeing to a class
action settlement in principle in the amount of $43 million. The terms and conditions of the $43
million class action settlement have now been documented in the Class Action Settlement
Agreement (the “Agreement”) dated as of August 20, 2010, a copy of which is attached hereto.
5. For the reasons set forth herein and in the accompanying Memorandum of Law,
Plaintiffs submit that the proposed settlement is fair, reasonable and adequate. Moreover, the
Notice Plan satisfies the requirements of due process and the form of notice is consistent with the
form of notice used in analogous actions. Accordingly, preliminary approval should be granted,
the Settlement Class should be conditionally certified, the Notice Plan should be approved, and a
date should be set for the Final Fairness Hearing.
2 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 4 of 8. PageID #: 6120
Dated: August 20, 2010
/s/ Edward W. Ciolko Edward W. Ciolko Joseph H. Meltzer Mark K. Gyandoh BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056
STULL, STULL & BRODY Edwin J. Mills Michael J. Klein 6 East 45th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022
Interim Co-Lead Counsel for ERISA Plaintiffs
GOLDMAN SCARLATO & KARON, P.C. Daniel R. Karon 55 Public Square Drive, Suite 1500 Cleveland, OH 44113 Telephone: (216) 622-1851 Facsimile: (216) 622-1852
Interim Liaison Counsel for ERISA Plaintiffs
JAMES E. ARNOLD & ASSOCIATES, LPA James E. Arnold Scott J. Stitt 471 East Broad Street, Suite 1400 Columbus, OH 43215 Telephone: (614) 460-1600 Facsimile: (614) 469-1066
3 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 5 of 8. PageID #: 6121
LAW OFFICES OF ALFRED G. YATES, JR., PC Alfred G. Yates, Jr. 519 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219
McTIGUE & PORTER, LLP J. Brian McTigue Gregory Y. Porter Jennifer H. Strouf 5301 Wisconsin Avenue, NW, Suite 350 Washington, DC 20015 Telephone: (202) 364-6900 Facsimile: (202) 364-9960
THE GRIFFIN LAW FIRM Mark Griffin 175 Honeybelle Oval Orange, OH 44022 Telephone: (216) 346-7376 Facsimile: (216) 861-6679
IZARD NOBEL LLP Robert A. Izard 20 Church St., Suite 1700 Hartford, CT 06103 Telephone: (860) 493-6292 Facsimile: (860) 493-6290
MEHRI & SKALET, PLLC Cyrus Mehri Janelle Carter 1250 Connecticut Avenue, NW, Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 Facsimile: (202) 822-4997
4 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 6 of 8. PageID #: 6122
MAJOR KHAN, LLC Major Khan 20 Bellevue Street Weehawken, NJ 07086 Telephone: (646) 546-5664 Facsimile: (646) 546-5755 Thomas J. McKenna
GAINEY & McKENNA Thomas J. McKenna 295 Madison Avenue New York, NY 10017 Telephone: (212) 983-1300 Facsimile: (212) 983-0383
LINER YANKELEVITZ SUNSHINE & REGENSTREIF, LLP Ronald S. Kravitz 199 Fremont Street, 20th Floor San Francisco, CA 94105-2255 Telephone: (415) 489-7700 Facsimile: (415) 489-7701
POWERS FRIEDMAN LINN, PLL Laurence Powers 23240 Chagrin Boulevard, Suite 180 Cleveland, OH 44122-5469 Telephone: (216) 514-1180 Facsimile: (216) 514-1185
WEISMAN KENNEDY & BERRIS CO., LPA R. Eric Kennedy Daniel P. Goetz Midland Building 101 Prospect Avenue Cleveland, OH 44115 Telephone: (216) 781-1111
5 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 7 of 8. PageID #: 6123
COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP Samuel H. Rudman David A. Rosenfeld Mark Reich Mario Alba, Jr. 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173
Attorneys for ERISA Plaintiffs
6 Case: 1:08-nc-70000-SO Doc #: 124 Filed: 08/20/10 8 of 8. PageID #: 6124
CERTIFICATE OF SERVICE
I hereby certify that on August 20, 2010, a copy of the foregoing Plaintiffs’ Motion for
Preliminary Approval of Settlement; Conditional Certification of Settlement Class; Approval of
Class Notice; and Scheduling a Final Fairness Hearing was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s system.
s/ Edward W. Ciolko Edward W. Ciolko Barroway Topaz Kessler Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Tel: (610) 667-7706 Fax: (610) 667-7056
7 Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 1 of 41. PageID #: 6125
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: In re: NATIONAL CITY CORPORATION : Case No. 08-nc-70000 SECURITIES, DERIVATIVE & ERISA : LITIGATION : JUDGE SOLOMON OLIVER, JR. : This Document Relates to: : The ERISA Cases : : :
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT; CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS; APPROVAL OF CLASS NOTICE AND SCHEDULING OF A FINAL FAIRNESS HEARING
BARROWAY TOPAZ KESSLER STULL, STULL & BRODY MELTZER & CHECK, LLP Edwin J. Mills Joseph H. Meltzer Michael Klein Edward W. Ciolko 6 East 45th Street 5th Floor Mark K. Gyandoh 280 King of Prussia Road New York, NY 10017 Radnor, PA 19087 Tel.: (212) 687-7230 Tel.: (610) 667-7706 Fax: (212) 490-2022 Fax: (610) 667-7056 Interim Co-Lead Counsel for ERISA Plaintiffs
GOLDMAN SCARLATO & KARON, P.C. Daniel R. Karon 55 Public Square Drive, Suite 1500 Cleveland, OH 44113 Telephone: (216) 622-1851 Facsimile: (216) 622-1852
Interim Liaison Counsel for ERISA Plaintiffs Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 2 of 41. PageID #: 6126
TABLE OF CONTENTS
I. INTRODUCTION 1 II. FACTUAL AND PROCEDURAL BACKGROUND 4 A. Description of the Action 4
B. Investigation of Claims and Plaintiffs’ Complaint 6 C. Summary of the Litigation 6 D. Settlement Negotiations 7 E. The Proposed Settlement 8 F. Reasons for the Settlement 8 G. Proposed Timetable 10 III. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED 11 A. Description of Notice Plan 11
B. The Proposed Notice Plan Meets The Requirements of Due Process 11 IV. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE AND SHOULD BE APPROVED BY THE COURT 13
A. The Law Favors and Encourages Settlements 13
B. The Proposed Settlement Should be Approved 14
1. Plaintiffs’ likelihood of ultimate success on the merits balanced against the amount and form of relief offered in settlement 14
a. Likelihood of Success 14
b. The Amount and Form of Relief Offered in Settlement 15
2. The Complexity, Expense and Likely Duration of the Litigation Favors Settlement 17
3. The Stage of the Proceedings and the Amount of Discovery Completed 18
4. The Recommendation and Experience of Counsel 20
5. The Nature of the Negotiations 22
6. The Objections Raised by the Class Members 23
i Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 3 of 41. PageID #: 6127
7. Public Interest 23
V. CONDITIONAL CLASS CERTIFICATION FOR SETTLEMENT PURPOSES 24
A. The Proposed Class Meets the Prerequisites for Class Certification Under Rule 23(a) 24
1. Rule 23(a)(1) – “Numerosity” 25
2. Rule 23(a)(2) – “Commonality” 26
3. Rule 23(a)(3) – “Typicality” 27
4. Rule 23(a)(4) – Adequacy of Representation 27
B. The Class May Be Properly Certified Under Rule 23(b)(1) 28
1. Subsection 23(b)(1)(B) 29
2. Subsection 23(b)(1)(A) 29
3. Rule 23(g) is Satisfied 30
VI. CONCLUSION 30
ii Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 4 of 41. PageID #: 6128
TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abbott v. Lockheed Martin Corp., No. 06-CV-0701, 2009 WL 969713 (S.D. Ill. Apr. 03, 2009) 25 Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) 24 Board of Trustees of the AFTRA Retirement Fund, et al. v. JPMorgan Chase Bank, N.A., et al., No. 09-CV-00686 (S.D.N.Y. May 28, 2009) 21 Bonime v. Doyle, 416 F. Supp. 1372 (S.D.N.Y. 1976), aff’d, 556 F.2d 555 (2d Cir. 1977) 17 Brieger v. Tellabs, Inc., 473 F. Supp. 2d 878 (N.D. Ill. 2007) 21
Brieger v. Tellabs, Inc., No. 06-CV-01882 (N.D. Ill.) 2 Crawford v. TRW Automotive U.S. LLC, No. 06-CV-14276, 2007 WL 851627 (E.D. Mich. March 21, 2007) 25
Cross v. Nat’l Trust Life Ins. Co., 553 F.2d 1026 (6th Cir. 1977) 28 Dann v. Lincoln National Corp. et al., No. 08-CV-5740, 2010 WL 1644276 (E.D. Pa. Apr. 20, 2010) 21 Dresslar v. Wellpoint, Inc. et al., No. 08-CV-00679-DFH-TAB (S.D. Ind. May 22, 2008) 21
Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D. 54 (D. Mass. 1997) 15 Evans v. Akers, No. 04-CV- 113 80-WGY (D. Mass. June 8, 2009) 13 Franks v. Kroger Co., 649 F.2d 1216 (6th Cir. 1981), vacated on other grounds and modified, 670 F.2d 71 (1982) 13
iii Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 5 of 41. PageID #: 6129
Gee v. UnumProvident Corp., et al, No. 03-CV-147 (E.D. Tenn. Jan. 25, 2008) 4, 12 Gee v. UnumProvident Corp., No. 03-CV-1552 (E.D. Tenn.) 21
Gen Tire & Rubber Co. Sec. Litig., 726 F.2d 1075 (6th Cir. 1984) 14
Graden v. Conexant Sys., Inc., 496 F.3d 291 (3d Cir. 2007) 16
Grant v. AOL Time Warner, Inc., No. 02-CV-8853, 2003 U.S. Dist. LEXIS 16895 (S.D.N.Y. Sept. 23, 2003) 21 Hainey v. Parrott, 617 F. Supp. 2d 668 (S.D. Ohio 2007) 12 Hanna v. YRC Worldwide, Inc. et al., No. 09-CV-02593-JWL/JPO (D. Kan. Mar. 2, 2010) 21
Hill v. The Tribune Company, 2005 U.S. Dist. LEXIS 23931 (N.D. Ill. Oct. 13, 2005) 22 In re Advanta Corp. ERISA Litig., No. 09-CV-04974 (E.D. Pa. June 4, 2010) 21 In re AEP ERISA Litig., No. C2-03-67 (S.D. Ohio July 8, 2003) 22 In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) 26, 27, 28 In re Beazer Homes USA, Inc. ERISA Litig., No. 07-CV-00952-RWS (N.D. Ga. Apr. 30, 2007) 21
In re Broadwing ERISA Litig., No. 02-CV-00857 (S.D. Ohio 2002) 4 In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369 (S.D. Ohio 2006) 13, 14 In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) 18, 23, 25 In re Citigroup ERISA Litig., No. 07-CV-9790, 2009 WL 2762708 (SDNY Aug. 31, 2009) 15
iv Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 6 of 41. PageID #: 6130
In re CMS Energy ERISA Litig., 225 F.R.D. 539 (E.D. Mich. 2004) 24, 26, 27, 29 In re Computer Sciences ERISA Litig., No. 08-CV-02398-SJO (C.D. Cal.), No. 09-56190 (9th Cir.) 2 In re Delphi Corp. Sec., Derivative & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008) 4
In re Diebold ERISA Litig., No. 06-CV-0170 (N.D. Ohio) 21
In re Dun & Bradstreet Credit Services Customer Litig., 130 F.R.D. 366 (S.D. Ohio 1990) 22 In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436 (S.D.N.Y. 2004) 16, 18
In re Hartford Fin. Svc. Grp. Inc. ERISA Litig., No. 08-CV-01708 (PCD), 2010 WL 135186 (D. Conn. Jan. 13, 2010) 21
In re Huntington Bancshares ERISA Litig., No. 08-CV-00197 (S.D. Ohio) 21 In re Huntington Bancshares Inc. ERISA Litig., No. 08-CV-0165 (S.D. Ohio Feb. 9, 2009) 15
In re Lear ERISA Litig. No. 06-CV-11735 (E.D. Mich.) 12 In re Lear ERISA Litig., No. 06-CV-11735 (E.D. Mich. Apr. 10, 2006) 21 In re Loral Space ERISA Litig. No. 03-CV-9729 (LTS) (S.D.N.Y. Sept. 9, 2008) 13
In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-CV-1974, 2009 WL 2834792 (D.N.J. Sept. 1, 2009) 21, 29 In re Nationwide Fin. Servs. Litig., No. 08-CV-249, 2009 U.S. Dist. LEXIS 126962 (S.D. Ohio Aug. 18, 2009) 13 In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104 (S.D.N.Y. 1997) 22 In re R.H. Donnelley ERISA Litig., No. 09-CV-07571 (N.D. Ill. Mar. 16, 2010) 21
v Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 7 of 41. PageID #: 6131
In re Telectronics Pacing Sys., Inc., Accufix Atrial “J” Leads Prod. Liab. Litig., 186 F.R.D. 459 (S.D. Ohio 1999) 13 In re Telectronics Pacing Systems, Inc., 137 F. Supp. 2d 985 (S.D. Ohio 2001) 17 In re Visteon Corp. ERISA Litig., No. 05-CV-71205 (E.D. Mich. March 9, 2007) 4, 12
In re Xcel, 364 F. Supp. 2d 980 (D. Minn 2005) 18
In re: Cardinal Health ERISA Litigation, 225 F.R.D. 552 (S.D. Ohio 2005) 21 In re: SLM Corp. ERISA Litig., et al., No. 08-CV-4334 (S.D.N.Y. Sept. 30, 2008) 21 Jones v. Novastar Fin., Inc., 257 F.R.D. 181 (W.D. Mo. 2009) 24, 29
Levell v. Monsanto Research Corp., 191 F.R.D. 543 (S.D. Ohio 2000) 17 Lewis v. El Paso Corp., No. H-02-4860 (S.D. Tex. Feb. 3, 2009) 13
Lingis v. Motorola, No. 03-CV-5044 (N.D. Ill.), No. 09-2796 (7th Cir.) 2 Maley v. Del Global Techs. Corp., 186 F. Supp. 2d 358 (S.D.N.Y. 2002) 15 Manners v. American General Life Ins. Co., No. 3-98-0266, 1999 WL 33581944 (M.D. Tenn. Aug. 11 1999) 15, 18, 22
Milken & Assoc. Sec. Lit., 150 F.R.D. 46 (S.D.N.Y. 1993) 16 Moore v. Comcast Corp., No. 08-CV-0773, 2010 WL 1375462 (E.D.Pa. Apr. 6, 2010) 24, 26, 29 Mullane v. Central Bank & Trust Co., 339 U.S. 306 (1950) 12 Nowak v. Ford Motor Co., No. 06-cv-11718 (E.D. Mich.) 21
vi Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 8 of 41. PageID #: 6132
Overby v. Tyco Int’l Ltd., No. 2-CV-1357-B (D.N.H. Dec. 20, 2002) 22 Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004) passim Rankin v. Rots, No. 02-CV-71045 (E.D. Mich. 2002) 4, 27
Rankin v. Rots, No. 02-CV-71045, 2006 U.S. Dist. LEXIS 45706 (E.D. Mich. June 28, 2006) 12, 14
Senter v. Gen. Motors Corp., 532 F.2d 511 (6th Cir. 1976) 28 Shirk v. Fifth Third Bancorp, No. 05-CV-049, 2008 WL 4425535 (S.D. Ohio Sept. 30, 2008) 24 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998) 26, 27
Stanford v. Foamex L.P., 263 F.R.D. 156 (E.D. Pa. 2009) 24, 25, 27, 29 Stewart v. Abraham, 275 F.3d 220 (3d Cir. 2001) 25
Stotts v. Memphis Fire Dept., 679 F.2d 541 (6th Cir. 1982), rev’d on other grounds, 467 U.S. 561 (1984) 23 UAW v. General Motors Corp., No. 05-CV-73991, 2006 WL 891151 (E.D. Mich. Mar. 31, 2006) 14, 16, 18, 20 Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) 14, 20
STATE CASES
In Re National City Corp. Shareholders Litig., C.A. No. 4123-CC (Del. Chancery) 9, 19
FEDERAL STATUTES
29 U.S.C. § 1104(a) 4
29 U.S.C. § 1109 4
29 U.S.C. § 1132 4
vii Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 9 of 41. PageID #: 6133
Plaintiffs Sharon A. Deucher, Deborah Douglas, James Elsinghorst, Barbara Grosick, Charles
C. Gunning, Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr., George Rithianos, Loretta D.
Rogers, Robert Steinberg, and Ella R. Whitlow (“Named Plaintiffs” or “Plaintiffs”), participants in
the National City Savings and Investment Plan, together with its predecessors and successors
(including The PNC Financial Services Group, Inc. Incentive Savings Plan, its successor by plan
merger), and any trust created under such plan (the “Plan”), respectfully submit this Memorandum of
Law in Support of their Motion for Preliminary Approval of the proposed Settlement 1 (“Motion for
Preliminary Approval”) with Defendants 2 and for conditional certification of a settlement class pursuant to FED. R. CIV. P. 23. Plaintiffs seek an Order (1) granting preliminary approval of the
Settlement, (2) conditionally certifying the Settlement Class, (3) approving the manner of giving
notice of the Settlement to the proposed Settlement Class (“Notice Plan”), and (4) setting a date for a
Final Fairness Hearing. 3
I. INTRODUCTION
The parties have reached a proposed Settlement of this case for $43,000,000.00 cash, which
1 The Class Action Settlement Agreement (the “Settlement Agreement,” “Settlement” or “Agreement”), attached hereto as Exhibit A, itself has several exhibits, including the proposed forms of notice of Settlement and proposed forms of the Preliminary and Final Approval Orders. The provisions of the Settlement Agreement, including all definitions and defined terms, are incorporated by reference herein. Thus, all capitalized terms not otherwise defined in this memorandum shall have the same meaning as ascribed to them in the Settlement Agreement.
2 Defendants shall mean the following persons and/or entities: National City Corporation, National City Bank, the Board of Directors of National City Corporation, the Administrative Committee of the National City Savings and Investment Plan, David A. Daberko, and Jon N. Couture.
3 This Memorandum sets forth various factors (factual, legal, and financial) that Plaintiffs believe support the conclusion that the proposed Settlement is within the range of what the Court can determine to be fair, reasonable, and adequate. Plaintiffs do not admit to the ultimate truth or falsity of any of the factual, legal or financial factors or conclusions discussed herein that favor Defendants.
-1 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 10 of 41. PageID #: 6134
will provide substantial benefits to members of the Settlement Class and resolve all claims asserted by Plaintiffs in this Action. This is an excellent result for the Settlement Class. Based on an
evaluation of the facts, governing law and the recognition of the substantial risks of continued
litigation, Plaintiffs and Co-Lead Counsel submit that the proposed Settlement is fair, reasonable and
adequate, and in the best interests of the proposed Settlement Class by providing a meaningful
recovery now. Early resolution of this case allows the Parties to avoid years of litigation that could
deplete potential future recovery for the Settlement Class. Moreover, continued litigation of this
Action could result in a judgment or verdict lesser than the recovery under the Settlement
Agreement, or in no recovery at all.
There is no doubt that lawsuits of this type brought pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”) face significant risks. Co-Lead Counsel Barroway Topaz
Kessler Meltzer & Check, LLP (“BTKMC”) recently completed a trial on the merits in a similar
class action (Brieger v. Tellabs, Inc., No. 06-CV-01882 (N.D. Ill.)). Similarly, Co-Lead Counsel
Stull, Stull & Brody (“SSB”) has litigated large 401(k) class action cases through summary judgment and appeals, including Lingis v. Motorola, 03-CV-5044 (N.D. Ill.), No. 09-2796 (7th Cir.)
and In re Computer Sciences ERISA Litig., No. 08-CV-02398-SJO (C.D. Cal.), No. 09-56190 (9th
Cir.). Co-Lead Counsel are thus in a unique position to realistically evaluate the risks of proceeding
to trial. Moreover, the Parties agreed to the proposed Settlement only after vigorous, arm’s length
negotiations by experienced counsel assisted by an experienced mediator.
The proposed Settlement is also particularly impressive when compared to the result obtained
to date in the parallel securities litigation which arose out of facts similar to this case. In that action,
a report and recommendation to dismiss in part the parallel securities litigation has been issued by
the Magistrate Judge. See Casey v. National City Corp., et al., Case No. 1:08-nc-70004-SO (N.D.
Ohio July 30, 2009) (Report & Recommendation granting in part and denying in part defendants’
-2 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 11 of 41. PageID #: 6135
Motion to Dismiss).
Further, Plaintiffs firmly believe that certification of a non-opt-out Settlement Class pursuant
to FED. R. CIV. P. 23 is clearly appropriate. As an integral part of the Settlement Agreement, the
Parties seek conditional class certification of all participants or beneficiaries in the Plan (a) for
whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund
at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose
individual accounts in the Plan held interests in any of the Allegiant Funds (certain mutual funds) at
any time during the period March 25, 2002 to December 31, 2009, inclusive. The proposed Notice
Plan exceeds the requirements of due process. Indeed, the proposed individualized direct-mail, publication in Business Wire, and proposed Internet settlement information website described herein
are consistent with the forms of notice approved in directly analogous actions. Such notice will
inform Class members of the terms of the Settlement, how to object to the Settlement, and the date
of the Fairness Hearing.
As set forth below in detail, all prerequisites for preliminary approval of the Settlement have been met. In short, the proposed Settlement should be preliminarily approved allowing Plaintiffs to begin notifying the Class. 4
4 The Preliminary Order of Approval proposed by all parties to the Settlement Agreement is appended to the Settlement Agreement as Exhibit 1 and the proposed Final Judgment and Order of Dismissal is appended to the Settlement Agreement as Exhibit 2.
-3 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 12 of 41. PageID #: 6136
II. FACTUAL AND PROCEDURAL BACKGROUND A. Description of the Action 5
Plaintiff James Elsinghorst, a former employee of National City and participant in the Plan,
filed his initial class action complaint on January 10, 2008 pursuant to § § 409 and 502 of ERISA, 29
U.S.C. §§ 1109 and 1132, against National City and certain other alleged named and unnamed
fiduciaries of the Plan, who allegedly are and were responsible for the investment of the Plan’s
assets. Thereafter, six additional, substantially identical, cases were filed in this Court. By Order
dated April 8, 2008, the Court consolidated the then-filed ERISA cases as well as any ERISA case
thereafter filed in or transferred to the Northern District of Ohio arising out of the same facts and
claims. By Order dated May 12, 2008, the Court appointed James Elsinghorst and Barbara Grosick
as Co-Lead Plaintiffs. The same Order designated BTKMC and SSB as Interim Co-Lead Counsel
and Goldman Scarlato & Karon, P.C. as Interim Liaison Counsel.
On June 26, 2008, Co-Lead Plaintiffs filed a Consolidated Complaint for Violations of
ERISA (“Complaint”). The Complaint alleges, inter alia, that Defendants and other Plan fiduciaries
violated their statutory duties of prudence, care, and loyalty under Section 404(a) of ERISA, 29
U. S.C. § 1 104(a), through their management, oversight and administration of the Plan’s investment
in National City stock during the Class Period. Plaintiffs assert causes of action for the losses
suffered by the Plan as the result of the alleged breaches of fiduciary duty by the Defendants.
5 Plaintiffs and the proposed class here are factual analogues to plaintiffs and settlement- certified classes in at least six ERISA breach of fiduciary duty class actions where courts in this circuit approved the parties’ respective settlement agreements. See In re Delphi Corp. Sec., Derivative & ERISA Litig., 248 F.R.D. 483 (E.D. Mich. 2008); In re Visteon Corp. ERISA Litig., No. 05-CV-71205 (E.D. Mich. March 9, 2007); In re Lear ERISA Litig., No. 06-CV-11735 (E.D. Mich. 2006); Gee v. UnumProvident Corp., et al, No. 03-CV-147 (E.D. Tenn. Jan. 25, 2008); In re Broadwing ERISA Litig., No. 02-CV-00857 (S.D. Ohio 2002) and Rankin v. Rots, No. 02-CV-71045 (E.D. Mich. 2002).
-4 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 13 of 41. PageID #: 6137
Specifically, Plaintiffs allege in Count I that Defendants breached their fiduciary duties to the Plan
and its participants by failing to prudently and loyally manage the Plan’s investment in Company
securities by (1) continuing to offer National City stock as a Plan investment option when it was
imprudent to do so; and (2) maintaining the Plan’s pre-existing heavy investment in National City
stock when Company stock was no longer a prudent investment for the Plan. Compl., ¶ 5.
Plaintiffs’ Count II alleges that Defendants failed to adequately inform the Plan’s participants
about the true risk and return characteristics of National City’s stock, including by failing to
adequately inform the participants about the true state of affairs with respect to National City’s
subprime mortgage operations. Compl., ¶ 6. Plaintiffs’ Count III alleges that certain Defendants breached their fiduciary duties by failing to adequately monitor other persons to whom
management/administration of Plan assets was delegated, despite the fact that such Defendants knew
or should have known that such other fiduciaries were imprudently allowing the Plan to continue
offering National City stock as an investment option. Compl., ¶ 7.
Plaintiffs’ Count IV alleges that certain Defendants failed to avoid or ameliorate inherent
conflicts of interests which crippled their ability to function as independent, “single-minded”
fiduciaries with only the Plan’s and its participants’ best interests in mind. Compl., ¶ 8. Plaintiffs’
Count V alleges that the Administrative Committee of the Plan breached its fiduciary duties by
authorizing or causing the Plan to invest in Allegiant Funds, a family of funds established, managed,
and distributed by Allegiant Management. Compl., ¶ 9. These actions by the Plan’s fiduciaries
allegedly resulted in breaches of the duties of prudence and loyalty under ERISA § 404(a)(1)(A) and
(B). Lastly, Plaintiffs’ Count VI alleges that the Administrative Committee of the Plan knew or
should have known that the Plan was engaged in transactions which constituted sales or exchanges
of property between the Plan and parties-in-interest in violation of Sections 406(a) and (b) of
ERISA. Compl., ¶ 10.
-5 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 14 of 41. PageID #: 6138
B. Investigation of Claims and Plaintiffs’ Complaint
Before filing the initial complaints in this matter, Co-Lead Counsel consulted with experts,
reviewed pertinent cases, researched legal claims and reviewed voluminous public records regarding
the Company. The same scope of research, and further consultations with experts, were performed
in filing Plaintiffs’ 119 page, 331 paragraph Complaint. Indeed, Co-Lead Counsel have conducted a
thorough investigation into Plaintiffs’ claims and allegations set forth in the Complaint. These
efforts included, but were not limited to, (i) review of documents produced by Defendants, including
Plan-related documents in response to Plaintiffs’ request for such documents pursuant to ERISA
§104(b), (ii) review of publicly-available materials relating to the Company and the Plan, (iii)
analysis of specific corporate transactions, and (iv) interviews of Plan participants. These efforts
enabled Plaintiffs to identify as defendants the persons or entities with discretionary fiduciary
authority or control over the Plan and its assets. The Complaint details Defendants’ operation and
administration of the Plan.
C. Summary of the Litigation
This complex litigation was hotly contested by Defendants from the outset. On September
10, 2008, Defendants filed a motion to dismiss the Complaint with prejudice pursuant to F ED. R.
CIV. P. 12(b)(6) (Dkt. No 32). Defendants asserted, inter alia, that the Complaint should be
dismissed because (1) Plaintiffs failed to exhaust their administrative remedies under the Plan; (2)
that Defendants were required by the Plan’s terms to maintain Company stock as an investment
option for the Plan; (3) that Plaintiffs’ “misrepresentation” claims should be dismissed for failure to
allege detrimental reliance; and (4) the claims regarding the Allegiant Funds should be dismissed because it was not a “prohibited transaction” to offer the Allegiant Funds as a Plan investment
option. The consolidated matter was transferred to the docket of Judge Solomon Oliver, Jr. on
October 30, 2008. Plaintiffs filed an opposition to Defendants’ motion to dismiss on October 27,
-6 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 15 of 41. PageID #: 6139
2008 (Dkt. No. 42) fully addressing each of Defendants’ points. Thereafter, Defendants filed a reply
in support of their motion to dismiss on December 5, 2008 (Dkt. No. 57).
After briefing on Defendants’ motion to dismiss was complete, the Parties continued to
submit notices of supplemental authority to the Court advising it of recently decided decisions that
were relevant to Defendants’ motion to dismiss. On August 5, 2009, the Court referred Defendants’
motion to dismiss to Magistrate Judge Nancy A. Vecchiarelli for a report and recommendation (Dkt.
No. 104). On August 28, 2009, the Parties filed a joint motion to the Court asking the Court to
temporarily withhold issuance of a report and recommendation because the Parties had initiated
settlement discussions. (Dkt. No. 108). The Court granted the Parties’ request on October 8, 2009
issuing an order temporarily withholding issuance of a report and recommendation on Defendants’
motion to dismiss while the Parties explored the possibility of settlement. (Dkt. No. 109). By letter
dated February 12, 2010, the Parties informed the Court that they had reached a proposed Settlement
and would file an appropriate motion with the Court once the Settlement had been finalized. (Dkt.
No. 120).
D. Settlement Negotiations
The settlement negotiations in this matter were hard fought, lengthy and certainly arms’
length. Indeed, the Parties discussed the possibility of settlement at various points in time during the
litigation. In August 2009, the Parties began to discuss engaging an independent mediator and
agreed upon a well-known, respected and experienced mediator, David Geronemus of JAMS. The
mediation was held over two separate days on February 4 and February 9, 2010 in New York City,
New York. In preparation for the mediation, Plaintiffs engaged in time-consuming research, damage
analysis, and litigation review, including filings in other factually related litigation against National
City, culminating in the drafting and submission of a 30 page opening mediation memorandum and
15 page reply memorandum.
-7 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 16 of 41. PageID #: 6140
The mediation before Mr. Geronemus was vigorously contested. Transpiring over two days, discussions were intense and at times contentious. It was not until very late in the evening of the second day of mediation that the Parties reached agreement on the principal terms of the Settlement.
Following agreement of the principal terms of Settlement, several months of further intense negotiation ensued regarding the specific terms of the Settlement. The Parties engaged in spirited and intense negotiations before resolving all issues.
In short, the negotiations in this matter were undoubtedly arms’ length, intense and complex with both sides strenuously arguing their respective positions.
E. The Proposed Settlement
The Settlement provides that the Defendants will pay $43,000,000 to the Plan to be allocated to participants pursuant to a Court-approved Plan of Allocation. In exchange, the Plaintiffs and the
Plan will dismiss all claims in the Complaint (and release related claims), as set forth more fully in the Settlement Agreement. The Settlement Agreement also sets forth the proposed Notice Plan to
Class members and provides for the payment of attorneys’ fees and Plaintiffs’ Case Contribution
Awards (both subject to Court approval).
F. Reasons for the Settlement
Plaintiffs have entered into this Settlement with a full and comprehensive understanding of the strengths and weaknesses of their claims, which are based on Co-Lead Counsel’s extensive investigation during the prosecution of this Action as well as their unique experience with these claims. As noted, before filing the Complaint, and afterward, Co-Lead Counsel consulted with merits and damages experts, reviewed pertinent cases, researched legal claims and reviewed voluminous public records regarding the Company.
Before agreeing to settle Plaintiffs’ claims, Plaintiffs reviewed a significant quantity of Plan materials produced by Defendants at Plaintiffs’ request under Section 104 of ERISA including, but
-8 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 17 of 41. PageID #: 6141
not limited to, Plan documents, the Plan Statement of Investment Policy, Plan educational materials,
Plan prospectuses, and summary Plan descriptions and insurance information. Plaintiffs also
reviewed Plan participant data covering a multi-year period with regard to the National City Stock
Fund, and retained well-known, non-testifying experts to review damages for the Prudence Claim
and the Allegiant Funds Claim. Co-Lead Counsel followed up on the produced information in a
series of conference calls with Defendants’ counsel prior to the mediation. In addition, the Parties
have substantially briefed their factual and legal positions in the aforementioned mediation
statements and replies exchanged prior to mediation. Plaintiffs also reviewed hundreds of pages of
testimony, and exhibits thereto, of certain Company directors and executives taken as part of a
shareholder lawsuit filed in Delaware State Court: In Re National City Corp. Shareholders Litig.,
C.A. No. 4123-CC (Del. Chancery). Lastly, as agreed to by the Parties in the Settlement Agreement,
Plaintiffs will conduct confirmatory discovery related to the matters asserted in the Complaint. This
confirmatory discovery has already begun and includes review of the following category of
documents: Board of Directors and the Plan’s Administrative Committee minutes, communications
with Plan participants during the Class Period, employee investment education programs, and
information regarding the setting of loan loss reserves.
In addition to the foregoing, Co-Lead Counsel, in assessing the merits of the proposed
Settlement, considered the risks and uncertainties of proceeding with the litigation and ultimately prevailing at trial in light of various factors. For instance, assuming Plaintiffs defeated Defendants’
motion to dismiss, Plaintiffs would still be required to prove that each Defendant was a fiduciary of
the Plan with regards to Plan investments and, separately, that each Defendant breached his or her
fiduciary duties under ERISA which caused losses to the Plan, Plaintiffs and the proposed Settlement
Class. Moreover, Plaintiffs would also have to defeat Defendants’ numerous defenses to liability,
including that the Plan required that the National City Stock Fund be an investment option of the
-9 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 18 of 41. PageID #: 6142
Plan. Even if Plaintiffs overcame these defenses, they would then also face the challenge of
calculating and proving damages, a process which is still relatively uncertain under relevant ERISA jurisprudence.
Thus, as with any litigated case, the Plaintiffs would face an uncertain outcome if the Action
were to continue against the Defendants. In sum, based upon their extensive investigation, analysis
of the risks inherent in continued litigation, the risks of establishing liability and damages, and likely
appeals regardless of which side prevailed at trial, Co-Lead Counsel’s judgment counsels
unequivocally in favor of preliminarily approving the proposed Settlement to provide a certain benefit to the Settlement Class members.
G. Proposed Timetable
The proposed Preliminary Approval Order (“Order”) includes a blank date for the date of the
Final Approval Hearing, which must be completed by the Court in order to properly effectuate the
Settlement. In this regard, the Parties have consented to the following generalized schedule of
events if the Court is inclined to preliminarily approve the Settlement Agreement:
Event Time for Compliance
Deadline for Mailing of Class Notice to 30 days after entry of the Order (See Order, members of the Settlement Class (the “Notice ¶ 5) Date”) Deadline for Publishing Notice in Business Wire 30 days after entry of the Order ( See Order, and on the dedicated Settlement website ¶ 5) Deadline for filing of Objections 21 days prior to the date of the Fairness Hearing (See Order, ¶ 6)
Deadline for Appearance of Counsel regarding 21 days prior to the date of the Fairness Hearing Objections (See Order, ¶ 6) Deadline for Filing Intention to Appear at Final 21 days prior to the date of the Fairness Hearing Fairness Hearing regarding Objection (See Order, ¶ 6) Filing of Motion in Support of Final Approval of 7 days prior to the date of the Fairness Hearing Settlement and Motion for Counsel Fees, Reimbursement of Expenses, and for Case Contribution Awards to Named Plaintiffs Settlement Hearing Date On or after 90 days after entry of the Order, or at
-10 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 19 of 41. PageID #: 6143
the Court’s convenience (but not less than 90 days after entry of the Order)
Many of the events set forth above are tied to the Fairness Hearing Date, which the Parties respectfully request be scheduled for approximately ninety (90) days after the entry of the proposed
Preliminary Approval Order, or later at the Court’s convenience.
III. THE PROPOSED NOTICE PLAN SHOULD BE APPROVED A. Description of Notice Plan
The proposed Notice Plan will fully inform Settlement Class members about the Action, the proposed Settlement, and the facts that they need to make informed decisions about their rights. The
Notice Plan includes multiple components designed to reach the largest number of Class members possible. The Class Notice, attached as Exhibit 1 to the Preliminary Approval Order will be sent by first-class mail to the last known address of the Class members within 30 days of entry of the
Preliminary Approval Order. Additionally, by that same date, the Summary Notice, attached as
Exhibit 2 to the Preliminary Approval Order, will be published in the Business Wire, at least once
(together, the Class Notice and Summary Notice are referred to as “Notices.”) Plaintiffs will post both forms of notice on a dedicated Settlement website, established by Co-Lead Counsel. 6 The number and variations of these types of notices will help ensure the dissemination of adequate and reasonable notice and information consistent with standards employed in notification programs designed to reach unidentified members of settlement groups or classes. All Notices will provide potential Class members with contact information for Co-Lead Counsel.
B. The Proposed Notice Plan Meets The Requirements of Due Process
In order to satisfy due process considerations, notice to Class members must be “reasonably
6 Other documents related to this litigation will be posted to the website such as a list of frequently asked questions and the Settlement Agreement and all its exhibits.
-11 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 20 of 41. PageID #: 6144
calculated under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Central Bank & Trust Co., 339
U.S. 306, 314 (1950). Courts in this Circuit have determined that direct mailings to class members’
last known address coupled with publication of notice provide class members with reasonable notice.
See Hainey v. Parrott, 617 F. Supp. 2d 668, 672-673 (S.D. Ohio 2007). Here, Plaintiffs’ proposed
means of class notice exceed these standards and thus more than satisfies the mandates of due process. Plaintiffs believe that the combination of the direct mail, Business Wire, and Internet
website presence will result in a very high percentage of actual notice to affected participants and beneficiaries.
Here, the form and method of notice of the proposed Settlement agreed to by the Parties
satisfies all due process considerations and meets the requirements of F ED. R. CIV. P. 23(e)(1)(B).
The proposed Notices describe in plain English (i) the terms and operation of the Settlement; (ii) the
nature and extent of the release of claims; (iii) the maximum counsel fees and Plaintiffs’ Case
Contribution Awards that may be sought; (iv) the procedure and timing for objecting to the
Settlement; and (v) the date and place of the Fairness Hearing. Similar Notice Plans utilized in the
settlement of analogous actions have been judicially approved as appropriate, fair and adequate. See
In re Lear ERISA Litig. No. 06-cv-11735 (E.D. Mich.) (Dkt. No. 93); In re Visteon Corp. ERISA
Litig., No. 05-cv-71205 (E.D. Mich. March 9, 2007) (order granting final approval of the settlement
approving form and method of notice) (Dkt. No. 58); Gee v. UnumProvident Corp., et al, No. 03-cv-
147 (E.D. Tenn. Jan. 25, 2008) (order that the settlement class received proper and adequate notice)
(Dkt. No. 135); Rankin v. Rots, No. 02-CV-71045, 2006 U.S. Dist. LEXIS 45706, at *13-14 (E.D.
-12 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 21 of 41. PageID #: 6145
Mich. June 28, 2006). 7 As such, the proposed Notices satisfy the requirements of due process. See
Newberg on Class Actions, § 8.34 (4th Ed. 2002).
IV. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE AND SHOULD BE APPROVED BY THE COURT
A. The Law Favors and Encourages Settlements
Strong judicial policy favors resolution of litigation prior to trial, particularly in class actions.
Franks v. Kroger Co., 649 F.2d 1216, 1224 (6th Cir. 1981), vacated on other grounds and modified,
670 F.2d 71 (1982) (the law generally favors and encourages the settlement of class actions); In re
Nationwide Fin. Servs. Litig., No. 08-CV-249, 2009 U.S. Dist. LEXIS 126962, at *3 (S.D. Ohio
Aug. 18, 2009) (same); In re Broadwing, Inc. ERISA Litig., 252 F.R.D. 369 (S.D. Ohio 2006); 6
James Wm. Moore et al., Moore’s Federal Practice (3d Ed. 1999); Manual for Complex Litigation
(Third) § 30.42 (1995); Newberg & Conte, N EWBERG ON CLASS ACTIONS §11.41 (3d ed. 1992)
(“[T]here is an overriding public interest in settling and quieting litigation,” and this is “particularly
true in class action suits.”) Because settlement is a preferred means of dispute resolution, there is a
strong presumption by courts in favor of settlement. In re Telectronics Pacing Sys., Inc., Accufix
Atrial “J” Leads Prod. Liab. Litig., 186 F.R.D. 459, 476 (S.D. Ohio 1999).
In the Sixth Circuit, the district courts consider several factors in evaluating the fairness,
adequacy and reasonableness of a proposed settlement: (1) the plaintiff’s likelihood of ultimate
success on the merits balanced against the amount and form of relief offered in settlement;(2) the
complexity, expense and likely duration of the litigation; (3) the stage of the proceedings and the
amount of discovery completed; (4) the judgment of experienced trial counsel; (5) the nature of the
7 See also See, e.g. Evans v. Akers, No. 04-CV- 113 80-WGY (D. Mass. June 8, 2009) (Dkt No.237); In re Loral Space ERISA Litig. No. 03-CV-9729 (LTS) (S.D.N.Y. Sept. 9, 2008) (Dkt. No. 58); Lewis v. El Paso Corp., No. H-02-4860 (S.D. Tex. Feb. 3, 2009) (Dkt. No. 134).
-13 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 22 of 41. PageID #: 6146
negotiations; (6) the objections raised by the class members; and (7) the public interest. Williams v.
Vukovich, 720 F.2d 909, 922 (6th Cir. 1983); In re Broadwing, Inc. ERISA Litig., 252 F.R.D. at 372.
The decision to grant or deny approval of a settlement lies within the broad discretion of the trial
court. Detroit Police Officers, 920 F. Supp. at 761, citing Bailey, 908 F.2d at 42.
B. The Proposed Settlement Should be Approved 1. Plaintiffs’ Likelihood of Ultimate Success on the Merits Balanced Against the Amount and Form of Relief Offered in Settlement a. Likelihood Of Success
The likelihood of success on the merits balanced against the relief obtained through
settlement is an important factor for evaluating the propriety of settlement approval. Gen Tire &
Rubber Co. Sec. Litig., 726 F.2d 1075, 1086 (6th Cir. 1984); In re Broadwing, Inc. ERISA Litig., 252
F.R.D. 369, 372 (S.D. Ohio 2006). However, the Court “has no occasion to determine the merits of
the controversy or the factual underpinning of the legal authorities advanced by the parties.”
Williams, 720 F.2d at 921, citing Carson v. American Brands, 450 U.S. 79, 88 n. 14 (1981). Rather,
the focus is on “whether the interests of the class as a whole are better served if the litigation is
resolved by the settlement rather than pursued.” UAW v. General Motors Corp., No. 05-CV-73991,
2006 WL 891151, at *15 (E.D. Mich. Mar. 31, 2006), citing In re Cardizem CD Antitrust Litig., 218
F.R.D. 508, 522 (E.D. Mich. 2003) (citations omitted).
While Co-Lead Counsel believes that Plaintiffs would be successful at trial, they recognize
that ultimate success is not assured and believe that this substantial Settlement, when viewed in light
of the risks of proving liability, is undoubtedly fair, adequate, and reasonable. See In re Broadwing,
Inc. ERISA Litig., 252 F.R.D. at 373 (approving settlement while noting that “little authority
supports the theories that are fundamental to Plaintiffs’ [ERISA] claims. Moreover, if litigation
were to continue, Plaintiffs would need to establish new law to overcome Defendants’ defenses to
liability.”); Rankin v. Rots, No. 02-CV-71045, 2006 U.S. Dist. LEXIS 45706, at *10-*11 (E.D.
-14 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 23 of 41. PageID #: 6147
Mich. June 28, 2006) (noting that “[a]lthough plaintiffs survived a motion to dismiss by defendants,
whether they would prevail on the merits of their [ERISA] breach of fiduciary duty claims is far
from clear.”); Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D. 54, 68-69 (D. Mass. 1997)
(approving settlement of Class action where plaintiffs “faced substantial obstacles to success if
litigation were to proceed” with “recovery after trial. . . far from assured”); Maley v. Del Global
Techs. Corp., 186 F. Supp. 2d 358, 364 (S.D.N.Y. 2002) (“while plaintiffs believe there is
substantial evidence to support their claims, the complexities and uncertainties of this litigation
nevertheless warrant the approval of the Settlement”).
Despite the strengths of Plaintiffs’ case, they face numerous hurdles to proving liability and
damages. Defendants would likely assert several defenses, including: 1) that, as a matter of law,
National City stock was not an “imprudent” Plan investment; 2) that Defendants were not ERISA
fiduciaries with regard to Plan investments in the National City Stock Fund; or 3) that Defendants
did not breach their fiduciary duty to monitor their alleged appointees, or their fiduciary duty to
disclose complete and accurate information to Plan participants (to the extent that such a duty
exists). Further, there have been several recent plaintiff-adverse decisions, including one decision
within this Circuit. 8
b. The Amount and Form of Relief Offered in Settlement A proposed class action settlement must fall “within the ‘range of reasonableness.” Manners,
1999 WL 33581944, at *20, citing In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 319
(N.D. Ga. 1993) (“[i]n assessing the settlement, the court must determine whether it falls within the
8 See In re Huntington Bancshares Inc. ERISA Litig., No. 2:08-cv-0165 (S.D. Ohio Feb. 9, 2009) (Court granted defendants’ FED. R. CIV. P. 12(b)(6) motion and dismissed plaintiffs’ complaint in its entirety.); In re Citigroup ERISA Litig., No. 07-cv-9790, 2009 WL 2762708 (SDNY Aug. 31, 2009) (finding no breach of fiduciary duty where retirement plan allegedly required investment in company stock).
-15 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 24 of 41. PageID #: 6148
range of reasonableness, not whether it is the most favorable possible result in the litigation”).
Indeed, settlements never result in the recovery of full amount of alleged losses. UAW v. General
Motors Corp., No. 05-CV-73991-DT, 2006 WL 891151, at *17 (E.D. Mich. Mar. 31, 2006). Rather,
a “just” settlement is generally “an arbitrary point between competing notions of reasonableness.”
Id., citing In re Corrugated Container Antitrust Litig. (II), 659 F. 2d 1322, 1325 (5th Cir. 1981).
Plaintiffs also acknowledge they may face substantial risk in proving damages. ERISA
requires the breaching fiduciaries to make good to the plan the difference between the most profitable plan alternative and the challenged imprudent investment. See, e.g., Graden v. Conexant
Sys., Inc., 496 F.3d 291, 301 (3d Cir. 2007) (“the measure of damages is the amount that affected
accounts would have earned if prudently invested”) citing Donovan v. Bierwirth, 754 F.2d 1049,
1056 (2d Cir. 1985).
In general, the calculation of “ERISA” damages would be “complex, time-consuming and
expensive,” In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 460 (S.D.N.Y. 2004).
Calculation of damages would have to be brought through full discovery process and adjudication
where the judge, as fact-finder, can set the relevant time period when the relevant investment was to be considered “imprudent” for the plan at issue (a factually intensive question in and of itself).
Damages calculations in ERISA cases generally require both expert and computer based analysis,
requiring a sophisticated computer model of the plans involved to track the purchase and sale of
assets held by the plan and its participants. These calculations must be for each participant’s account
as well as the plan as a whole. An expert must create a reliable and legally admissible model, which
he or she must then test and be able to effectively present to the court. This intricate and complex process creates the possibility of glitches and can have unexpected results. This type of complexity
favors early resolution. In re Warner Communications Sec. Litigation, 618 F. Supp. 735, 744
(S.D.N.Y. 1985); Milken & Assoc. Sec. Lit., 150 F.R.D. 46, 54 (S.D.N.Y. 1993) (approving
-16 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 25 of 41. PageID #: 6149
settlement and noting that damage calculations are often a “battle of experts at trial, with no
guarantee of the outcome”); Bonime v. Doyle, 416 F. Supp. 1372 (S.D.N.Y. 1976), aff’d, 556 F.2d
555 (2d Cir. 1977) (difficulty in determining damages a factor supporting settlement).
Here, the $43 million Settlement provides valuable relief to all applicable Plan participants.
Once approved, the Settlement Fund will be allocated to each Class Member’s account without the
need for any further action to be taken by the Class Members to avail themselves to relief. This
settlement amount is among the highest ever achieved in this specific type of ERISA “company
stock” class action. Thus, on balance, the risk of continued litigation compared with the form of
relief favors approval of the Settlement.
2. The Complexity, Expense and Likely Duration of the Litigation Favors Settlement
Courts must evaluate the complexity, expense and likely duration of litigation before
approving a class action settlement. In re Telectronics Pacing Systems, Inc., 137 F. Supp. 2d 985,
1013 (S.D. Ohio 2001). Courts in this Circuit have aptly characterized class action trials as a “long,
arduous process requiring great expenditures of time and money on behalf of both the parties and the
court.” Levell v. Monsanto Research Corp., 191 F.R.D. 543, 556 (S.D. Ohio 2000), quoting In re
Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 318 (3d Cir. 1998). Class action
trials of claims alleging breach of fiduciary duty under ERISA are no different.
Here, in the absence of settlement, the Parties would recommence litigation in earnest,
focusing on Defendants’ pending motion to dismiss. Assuming that the Court denies the motion to
dismiss, the Parties will conduct ERISA and merits discovery, including extensive depositions, all of
which will lead to dispositive motions, trial, and likely multiple appeals. Were this case to proceed
to judgment on the merits, both sides would retain experts in numerous areas - including experts on
accounting issues and pension costs, fiduciary responsibility and damages. In addition, the huge
-17 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 26 of 41. PageID #: 6150
volume of documents and the complexity of the underlying factual issues would necessitate the presentation of large numbers of fact witnesses and exhibits at trial. In short, the parties and the
Court would face burdensome litigation without the Settlement.
The certain and immediate benefits to the Class as a result of the Settlement outweigh the possibility of obtaining a better result at trial, particularly when factoring in the additional expense
and long delay inherent in prosecuting this complex litigation through trial and appeal. Cardizem,
218 F.R.D. at 525. See also In re Global Crossing Securities and ERISA Litig., 225 F.R.D. 436, 456
(S.D.N.Y. 2004)(noting that determining the “numerous legal issues concerning fiduciary liability
in connection with company stock in 401(k) plans ... would substantially increase the ERISA cases’
complexity, duration, and expense – and thus militate in favor of settlement approval.”); In re Xcel,
364 F. Supp. 2d 980, 992 (D. Minn 2005) (“This is the type of complex [ERISA] litigation that
easily could have dragged on for several more years.”).
Although Co-Lead Counsel believe that they can overcome the potential obstacles to
establishing Defendants’ liability and damages, they recognize the inherent uncertainties of litigation
which militate in favor of settlement at this time.
3. The Stage of the Proceedings and the Amount of Discovery Completed
Exhaustive discovery is not a prerequisite for preliminary approval of class action
settlements. Manners v. American General Life Ins. Co., No. Civ. A. 3-98-0266, 1999 WL
33581944, at *21 (M.D. Tenn. Aug. 11 1999). Neither is formal discovery. UAW v. General Motors
Corp., No. 05-CV-73991-DT, 2006 WL 891151, at *19 (E.D. Mich. March 31, 2006). Rather, “the
relevant inquiry is whether the parties have conducted sufficient discovery to assess the strengths
and weaknesses of their claims and defenses.” Manners, 1999 WL 33581944, at *21, citing
Woodward v. NOR-AM Chem. Co., No. Civ. 94-0780-CB-C, 1996 WL 1063670, at *21 (S.D. Ala.
May 23, 1996).
-18 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 27 of 41. PageID #: 6151
The volume and substance of Plaintiffs’ knowledge of this case are unquestionably adequate
to support the Settlement. Even before filing the Complaint, Co-Lead Counsel conducted an
extensive investigation and informal discovery in relation to the lawsuit, including the: (a) review
and analysis of Plan-related documentation and communications, including Plan annual reports to
the SEC and Department of Labor (“DOL” ); (b) analysis of National City’s publicly disseminated
financial statements; (c) review of media reports and public financial analyst reports; (d) review and
analysis of voluminous publicly-available materials – media reports, filings in factually related cases
– with regards to the factual predicates outlined in the Complaint; (e) research and review of filings
and pleadings in related litigation involving the Company; (f) interview of a number of participants,
including the Plaintiffs, as well as potential fact witnesses; (g) extensive research of the applicable
law with respect to the claims asserted in the Complaint and Defendants’ potential defenses thereto;
and (h) monitoring and evaluating the performance of National City stock during and after the proposed Class Period. Thereafter, Co-Lead Counsel reviewed newly filed and published public
filings, annual reports, press releases and other public statements as part of their ongoing
investigation.
In preparation for mediation and before agreeing to settle Plaintiffs’ claims, Plaintiffs also
reviewed a significant quantity of Plan materials produced by Defendants including, but not limited
to, Plan documents, the Plan Statement of Investment Policy, Plan educational materials, Plan prospectuses, and summary Plan descriptions and insurance information. Plaintiffs have also
reviewed Plan participant data covering a multi-year period with regard to the National City Stock
Fund, and retained well-known, non-testifying experts to review damages for the Prudence Claim
and the Allegiant Funds Claim. In addition, Plaintiffs also reviewed hundreds of pages of testimony,
and exhibits thereto, of certain Company directors and executives taken as part of a shareholder
lawsuit filed in Delaware State Court: In Re National City Corp. Shareholders Litig., C.A. No. 4123-
-19 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 28 of 41. PageID #: 6152
CC (Del. Chancery).
Further, Plaintiffs have negotiated as part of the Settlement that substantial confirmatory discovery will be produced to Plaintiffs for review. Such discovery, described supra at section II.F has already commenced and will be complete prior to the Fairness Hearing. Plaintiffs respectfully submit that their investigative efforts coupled with the confirmatory discovery conducted in this litigation provided them with more than ample information to properly and fairly assess the merits of the proposed Settlement Agreement.
4. The Recommendation and Experience of Counsel Courts also recognize that the opinion of experienced and informed and competent counsel in favor of settlement should be afforded substantial consideration. Williams v. Vukovich, 720 F.2d
909, 922-23 (6th Cir. 1983); UAW, 2006 WL 891151, at * 18 (“It is . . . well recognized that the court should defer to the judgment of experienced counsel who has competently evaluated the strength of the proofs.”) (citing Mich. Hosp. Ass’n v. Babcock, No. 5:89-CV-00070, 1991 U.S. Dist LEXIS
2058, at *6 (W.D. Mich. Feb. 11, 1991)). Here, Co-Lead Counsel have substantial experience in handling class actions, other complex litigation, and claims of the type asserted in this Action. Co-
Lead Counsel, together and separately, have litigated numerous similar ERISA class action cases.
Indeed, Co-Lead Counsel BTKMC has the rare benefit of having tried a similar company stock action to verdict (upon information and belief, one of only four to ever go through trial). Thus, they are in a unique position to truly evaluate the wisdom of settling the claims prior to a risk-fraught trial. Here, BTKMC, headed by Joseph H. Meltzer, chair of the ERISA Litigation Department, and his partner Edward W. Ciolko at BTKMC are experienced ERISA class action attorneys and recommend this Settlement. 9 Mr. Meltzer and BTKMC have been named Lead or Co-Lead Counsel
9 See firm resume of BTKMC attached as Exhibit B.
-20 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 29 of 41. PageID #: 6153
in numerous breach of fiduciary class actions across the nation, including the following within this
Circuit: In re Huntington Bancshares ERISA Litig., No. 08-CV-00197 (S.D. Ohio); Nowak v. Ford
Motor Co., No. 06-CV-11718 (E.D. Mich.); In re Lear ERISA Litig., No. 06-CV-11735 (E.D. Mich.
Apr. 10, 2006); In re Diebold ERISA Litig., No. 06-CV-0170 (N.D. Ohio); Gee v. UnumProvident
Corp., No. 03-CV-1552 (E.D. Tenn.). 10 BTKMC’s ERISA department, under Mr. Meltzer and Mr.
Ciolko’s guidance, has prosecuted numerous ERISA cases, with courts rendering favorable opinions
in a number of decisions denying defendants’ motions to dismiss and/or for summary judgment. 11 In
addition to its extensive litigation experience, the firm has also successfully engaged in extensive,
intricate and intense settlement negotiations, including court-ordered mediations.
Stull, Stull & Brody (“SSB”) also has extensive ERISA class action experience in the Sixth
Circuit, and, indeed, throughout the country. For example, SSB served as co-lead counsel for the
ERISA class in In re: Cardinal Health ERISA Litigation, 225 F.R.D. 552 (S.D. Ohio 2005). SSB
also served as co-lead counsel (with BTKMC and another firm) in In re AOL Time Warner ERISA
Litigation (Grant v. AOL Time Warner, Inc., 2003 U.S. Dist. LEXIS 16895, No. 02 CV 8853, MDL
Docket No. 1500 (S.D.N.Y. 2003), where a $100 million settlement was obtained and approved as
10 Other actions in which BTKMC was appointed Lead or Co-Lead Counsel include: In re Advanta Corp. ERISA Litig., No. 09-CV-04974 (E.D. Pa. June 4, 2010); In re R.H. Donnelley ERISA Litig., No. 09-CV-07571 (N.D. Ill. Mar. 16, 2010); Hanna v. YRC Worldwide, Inc. et al., No. 09-cv- 02593-JWL/JPO (D. Kan. Mar. 2, 2010); Dann v. Lincoln National Corp. et al., No. 08-CV-5740 (E.D.P.A. June 1, 2009); In re: SLM Corp. ERISA Litig., et al., Master File No. 08-CV-4334 (S.D.N.Y. Sept. 30, 2008); Dresslar v. Wellpoint, Inc. et al., No. 08-CV-00679-DFH-TAB (S.D. Ind. May 22, 2008); In re Beazer Homes USA, Inc. ERISA Litig., No. 07-CV-00952-RWS (N.D. Ga. Apr. 30, 2007).
11 See, e.g., Dann v. Lincoln National Corp. et al., No. 08-CV-5740, 2010 WL 1644276 (E.D. Pa. Apr. 20, 2010); In re Hartford Fin. Svc. Grp. Inc. ERISA Litig., No. 08-CV-01708 (PCD), 2010 WL 135186 (D. Conn. Jan. 13, 2010); In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-CV- 1974, 2009 WL 2834792 (D.N.J. Sept. 1, 2009); Board of Trustees of the AFTRA Retirement Fund, et al. v. JPMorgan Chase Bank, N.A., et al., No. 09-CV-00686 (S.D.N.Y. May 28, 2009); Brieger v. Tellabs, Inc., 473 F. Supp. 2d 878 (N.D. Ill. 2007); In re Lear ERISA Litig., No. 06-CV-11735 (E.D. Mich. Apr. 10, 2006).
-21 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 30 of 41. PageID #: 6154
fair. 12 Among the other appointments of SSB in ERISA actions are In re AEP ERISA Litig., No. C2-
03-67 (S.D. Ohio July 8, 2003); Overby v. Tyco Int’l Ltd., No. 2-CV-1357-B (D.N.H. Dec. 20,
2002); and Hill v. The Tribune Company, 2005 U.S. Dist. LEXIS 23931 (N.D. Ill. Oct. 13, 2005).
Edwin J. Mills, an experienced attorney in ERISA, is Of Counsel to SSB, and was the lead attorney
from SSB handling this matter.
Based on (1) their extensive and broad based experience litigating and successfully resolving
ERISA breach of fiduciary duty cases, and (2) after diligently investigating the claims and fully
exploring the claims and defenses during the mediation process and while negotiating a potential
settlement, Co-Lead Counsel strongly recommend this Settlement.
5. The Nature of the Negotiations
“So long as the integrity of the arm’s length negotiation process is preserved . . . a strong
initial presumption of fairness attaches to the proposed settlement.” In re PaineWebber Ltd. P’ships
Litig., 171 F.R.D. 104, 125 (S.D.N.Y. 1997). See also Manual for Complex Litigation § 30.43 at
289 (3d Ed. 2002); Newberg & Conte, Newberg on Class Actions § 11.41 (4 th Ed. 2002). Settlement
approval is appropriate where the parties reach an agreement after arm’s length negotiations, where
there is no collusion or benefit to certain parties to the detriment of the class as a whole. See In re
Dun & Bradstreet Credit Services Customer Litig., 130 F.R.D. 366, 372 (S.D. Ohio 1990); Manners,
1999 WL 33581944, at *22 (settlement approved as “product of extensive, contentious arm’s length
negotiations that lasted for close to a year.”).
The Parties reached settlement in this case after intensive drawn out and adversarial
negotiations. See also discussion supra at Section IID. The Parties recognized a unique opportunity
to resolve this litigation while Defendants’ motion to dismiss was pending and seized upon it.
12 See firm resume of SSB attached hereto as Exhibit C.
-22 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 31 of 41. PageID #: 6155
Moreover, as noted above, after the principal terms of settlement had been reached, several months
of further negotiation ensued regarding the specific terms of the Settlement. Thus, this factor also
weighs in favor of approving the Settlement.
6. The Objections Raised by the Class Members At this stage of the litigation, prior to preliminary approval, and class notice, no members of
the Settlement Class have raised any objections to the Settlement Agreement. Each of the Plaintiffs,
who are Settlement Class members, approves this Settlement.
7. Public Interest Public policy favors settlement, especially in complex matters, such as class actions alleging breach of fiduciary duty claims under ERISA. Indeed, the Sixth Circuit has expressly recognized the public interests served through compromise:
Settlement agreements should . . . be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before overburdened courts, and to citizens whose taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute.
Stotts v. Memphis Fire Dept., 679 F.2d 541, 555 n.1 1 (6th Cir. 1982), rev’d on other grounds, 467
U.S. 561 (1984); In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 530 (E.D. Mich. 2003)
(“[T]here is a strong public interest in encouraging settlement of complex litigation and class action
suits because they are ‘notoriously difficult and unpredictable’ and settlement conserves judicial
resources.”) (citing also Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992)).
The Settlement of this litigation brings closure to litigation, which if litigated through trial
and appeal would consume an enormous amount of the parties’ time and the valuable resources of
this Court. Further, the Settlement brings significant benefit to the Class years earlier than the
uncertain amount to be gained years from now after trial. Accordingly, the public interest, as well as
the Class members’, interests are served by resolution of this action now.
-23 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 32 of 41. PageID #: 6156
V. CONDITIONAL CLASS CERTIFICATION FOR SETTLEMENT PURPOSES
A. The Proposed Class Meets the Prerequisites for Class Certification Under Rule 23(a)
Plaintiffs pursuant to the Settlement Agreement, seek certification of the following class for
settlement purposes only:
All current and former participants and beneficiaries of the Plan (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan held interests in any of the mutual funds of Allegiant Asset Management Company (formerly known as “Armada Funds”) offered as investment alternatives in the Plan at any time during the period March 25, 2002 to December 31, 2009, inclusive.
The Supreme Court has acknowledged the propriety of certifying a class solely for settlement purposes. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 618 (1997). In conducting this task, the
court’s “dominant concern” is “whether a proposed class has sufficient unity so that absent members
can fairly be bound by the decisions of class representatives.” Id. at 621.
Plaintiffs’ claims for breach of fiduciary duty under ERISA are well-suited for certification.
Time and again, courts have certified similar ERISA claims for breach of fiduciary duty for class
treatment. See, e.g., In re Nortel Networks Corp. ERISA Litig., No. 03-md-01537, 2009 WL
3294827 (M.D. Tenn. Sept. 2, 2009) (magistrate report and recommendation) (certifying claims for breach of fiduciary duty under Rule 23(b) 1)); Shirk v. Fifth Third Bancorp, No. 05-cv-049, 2008 WL
4425535, at *5 (S.D. Ohio Sept. 30, 2008) (same); In re CMS Energy ERISA Litig., 225 F.R.D. 539
(E.D. Mich. 2004) (same); Rankin v. Rots, 220 F.R.D. 511 (E.D. Mich. 2004) (same). 13
13 See also, Moore v. Comcast Corp., No. 08-CV-0773, 2010 WL 1375462 (E.D.Pa. Apr. 6, 2010) (certifying 23(b)(1)(B) class); Stanford v. Foamex L.P., 263 F.R.D. 156 (E.D. Pa. 2009) (certifying 23(b)(1)(A) and (B) class); Jones v. Novastar Fin., Inc., 257 F.R.D. 181 (W.D. Mo. 2009) (same); Merck & Co., Inc. Securities, Derivative & ERISA Litig., MDL No. 1658, 2009 WL 331426
-24 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 33 of 41. PageID #: 6157
Class certification for settlement purposes under Rule 23 of the Federal Rules of Civil
Procedure entails a two-step analysis. First, the Court must determine whether Rule 23(a)’s prerequisites are met, which are: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy
of representation. Next, the court must determine whether Plaintiffs have met the requirements of
Rule 23(b). See In re Cardizem, 218 F.R.D. at 517. Here, Plaintiffs can easily satisfy the prerequisites of Rule 23(a) as well as the alternative requirements of Rule 23(b)(1).
1. Rule 23(a)(1) – “Numerosity” To satisfy the numerosity requirement, the court must find that the class is “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). A plaintiff is not required to state
the exact number of class members to satisfy the numerosity requirement. See Stewart v. Abraham,
275 F.3d 220, 226-27 (3d Cir. 2001) (court explaining a class exceeding 40 will satisfy numerosity).
But there should be no dispute that the proposed Class satisfies the numerosity requirement.
Defendants do not dispute numerosity and the Plan’s publicly filed documents reveal that
there were thousands of participants in the Plan and that National City Stock was one of the largest
assets held in the Plan. For example, the Plan’s Form 5500 for Plan year 2006 indicates that the
Plan had 41,153 participants at the end of 2006. Thus, numerosity is satisfied. See, e.g., Crawford
v. TRW Automotive U.S. LLC, No. 06-CV-14276, 2007 WL 851627, at *7 (E.D. Mich. March 21,
2007) (finding that a class including forty or more members generally satisfies Rule 23’s numerosity
requirement); Stanford, 263 F.R.D. at 166 (finding 576 members satisfied “numerosity” requirement
in certifying claim brought pursuant to ERISA § 502(a)(2)).
(D.N.J. Feb. 10, 2009) (same); Abbott v. Lockheed Martin Corp., No. 06-cv-0701, 2009 WL 969713, at * 9 (S.D. Ill. Apr. 03, 2009) (same).
-25 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 34 of 41. PageID #: 6158
2. Rule 23(a)(2) – “Commonality” Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” The
Class proposed in this action easily meets this requirement. “[T]here need be only a single issue
common to all members of the class,” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996),
and “the resolution of [that common issue] will advance the litigation.” Sprague v. Gen. Motors
Corp., 133 F.3d 388, 397 (6th Cir. 1998).
The paramount question of law and fact shared by all class members is whether the
Defendants breached their fiduciary duties owed to the Plan and its participants by allowing the Plan
to invest in Company stock when Defendants knew or should have known of non-public financial
and operational problems that affected the prudence of National City stock as an investment of the
Plan during the Class Period. See Rankin v. Rots, 220 F.R.D. 511, 517-18 (E.D. Mich. 2004)
(finding commonality in analogous action alleging nearly identical common questions of law and
fact); see also, In re CMS Energy ERISA Litig., 225 F.R.D. 539, 543-544 (E.D. Mich. 2004) (finding
in ERISA company stock case that the plaintiffs had “persuaded the court that common issues, the
resolution of which would advance the litigation, certainly exist among members of the proposed
class, including whether the company stock was an imprudent investment for the Plan); Moore, 2010
WL 1375462, at *5 (“[Plainitff] has established, as well, that a number of common issues pervade
this case, including whether defendants were fiduciaries of the Plan and whether defendants breached their fiduciary duties by allowing the Plan to invest in the Company Stock Fund. A plaintiff need show only one common issue to fulfill the commonality requirement.”) This ERISA
case undoubtedly satisfies the commonality requirement.
3. Rule 23(a)(3) – “Typicality” Typicality exists where plaintiffs’ claim “arises from the same event or practice or course of
conduct that gives rise to the claims of the other class members, and if his or her claims are based on
-26 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 35 of 41. PageID #: 6159
the same legal theory.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996). See Rankin v.
Rots, 220 F.R.D. at 518. “The premise of the typicality requirement is simply stated: as goes the
claim of the named plaintiff, so go the claims of the class.” Sprague, 133 F.3d at 399. Typicality is
often met in putative class actions brought for breaches of fiduciary duty under ERISA. See, e.g., In
re CMS ERISA Litig., 225 F.R.D. 539, 543-544 (E.D. Mich. 2004) (typicality exists where plaintiffs’
and the putative class claims stem from the same alleged facts and circumstances); Stanford, 263
F.R.D. at 167 (finding the “typicality” requirement of Rule 23 satisfied “because plaintiff challenges
the same conduct that affects both the plaintiff and the absent class members.”)
Plaintiffs’ claims are clearly typical of those of the proposed Class. The claims of the
Plaintiffs and the Class arise from Defendants’ alleged breaches of fiduciary duty and Plaintiffs and
the Class seek to recover based upon the very same legal theories. Each class member alleges injury
arising out of Defendants’ alleged wrongful conduct of breaching of their fiduciary duties and
violating ERISA during the Class Period as alleged in the Complaint. Therefore, the typicality
requirement of Rule 23(a)(3) is easily met. See, e.g., Rankin, 220 F.RD. at 519 (ERISA company
stock cases are properly certified since “the appropriate focus in a breach of fiduciary duty claim is
on the conduct of the defendants”) (quoting In re IKON Office Solutions, Inc. Sec. Litig., 191 F.R.D.
457, 465 (E.D. Pa. 2000)).
4. Rule 23(a)(4) – Adequacy of Representation Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the
interests of the class.” Given the binding effect of a class action judgment, due process demands a
finding of adequate representation. In re Am. Med. Sys., Inc., 75 F.3d at 1083, citing Hansberry v.
Lee, 311 U.S. 32, 61 (1940).
This Circuit has set out two criteria for determining the adequacy of representation: “(1) the
representative must have common interests with unnamed members of the class, and (2) it must
-27 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 36 of 41. PageID #: 6160
appear that the representatives will vigorously prosecute the interests of the class through qualified
counsel.” Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). See, e.g., Am. Med. Sys.,
75 F.3d at 1083; Cross v. Nat’l Trust Life Ins. Co., 553 F.2d 1026, 1031 (6th Cir. 1977) (adequacy
rule tests “the experience and ability of counsel for the plaintiffs and whether there is any
antagonism between the interest of the plaintiffs and other members of the class they seek to
represent”).
Plaintiffs here meet both of the Sixth Circuit’s criteria. The first prong of the “adequacy”
requirement largely overlaps with the commonality and typicality requirements of Rule 23 (a)(2)-(3).
Plaintiffs’ interests here are not antagonistic to those of the Class. Instead, Plaintiffs have been
harmed by the same wrongdoing by Defendants as the absent Class members. Their interests are
united in proving Defendants’ alleged fiduciary misconduct and achieving the maximum possible
recovery. Each individual Plaintiff’s focus is on recovering losses to the Plan (and, only indirectly,
to themselves). See Rankin, 220 F.R.D. at 520. Here, Plaintiffs’ interests are squarely in line with
those of the proposed Class. Moreover, each Plaintiff has contributed to the efficient prosecution of
this litigation evidenced by their production of documents pertinent to this litigation. Also, each
Plaintiff was prepared to make himself or herself available for a deposition by Defendants if the case proceeded into discovery.
Second, as detailed above, Plaintiffs have retained qualified, experienced attorneys who are
at the forefront of this type of ERISA breach of fiduciary duty class action. See Discussion supra in
section III.B.4; see also Co-Lead Counsel firm resumes attached hereto. Thus, Plaintiffs and Co-
Lead Counsel have more than adequately represented the Class, and will continue to do so.
B. The Class May Be Properly Certified Under Rule 23(b)(1) In addition to the four prerequisites of Rule 23(a), a case may proceed as a class action if it
also satisfies one of the three alternative requirements of Rule 23(b). F ED. R. CIV. P. 23(b).
-28 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 37 of 41. PageID #: 6161
Plaintiffs request certification of a Settlement Class under Rule 23(b)(1), which states a class may be certified if: (1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests . ...
FED. R CIV. P. 23(b)(1). 1. Subsection 23(b)(1)(B) Many courts have relied on Rule 23(b)(1)(B) in certifying a class in similar cases, because it is particularly suited for cases alleging breach of a defendant’s fiduciary obligations to plaintiffs.
See FED. R. CIV. P. 23(b)(1)(B), Advisory Comm. Notes to 1996 Amendment (stating certification under 23(b)(1) is appropriate “in cases [such as the instant one] charging breach of trust by fiduciary to large class of beneficiaries”); see also Moore, 2010 WL 1375462 (certifying 23(b)(1)(B) class); In re Nortel Networks, Corp. “ERISA ” Litig., No. 03-md-1537, 2009 WL 3294827 (M.D. Tenn. Sept.
2, 2009) (certifying 23(b)(1)B) and 23(b)(1) (A) class); In re CMS Energy ERISA Litig., 225 F.R.D.
539 (same). 2. Subsection 23(b)(1)(A) It is not uncommon for courts to certify ERISA class actions under both subsections
23(b)(1)(A) and 23(b)(1)(B). See, e.g., Smith, 238 F.R.D. at 617; Rankin v. Rots, 220 F.R.D. at 522;
Stanford, 263 F.R.D. at 173-174; In re Nortel Networks Corp. ERISA Litig., 2009 WL 3294827 at *
16; Jones, 257 F.R.D. at 193-194; Merck, 2009 WL 331426, at *10-11. Again, the representative nature of Plaintiffs’ ERISA claims alleging Defendants’ plan-wide fiduciary misconduct illustrates
-29 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 38 of 41. PageID #: 6162
the propriety of certification under this subsection. Therefore, if necessary, it is clear that the proposed Class could be certified under Rule 23(b)(1)(A).
3. Rule 23(g) is Satisfied Rule 23(g) requires the Court to examine the capabilities and resources of counsel for the
Class to determine whether they will provide adequate representation to the Class. Here, counsel for
the Class satisfy Rule 23(g) because Class counsel has substantial experience in handling class
actions, other complex litigation, and claims of the type asserted in this action. See Discussion supra
in section III.B.4. Of particular relevance here, Class Counsel has litigated numerous similar ERISA
class action cases and has recovered hundreds of millions of dollars for plan participants and retirees
in these cases.
The capabilities and resources of counsel for the Class are demonstrated by the work performed to date in this case. Co-Lead Counsel have done substantial work to identify or
investigate potential claims in the Action and have also vigorously pursued the interests of the class
through extensive negotiations. Hence, Co-Lead Counsel’s extensive efforts in prosecuting this
case, in combination with the in-depth knowledge of counsel for the Class, satisfy Rule 23(g).
VI. CONCLUSION
Based on the foregoing, Plaintiffs respectfully move this Court to grant their Motion for
Preliminary Approval of Settlement, Conditional Certification of a Settlement Class, approval of
Class Notice and scheduling a Final Fairness Hearing.
-30 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 39 of 41. PageID #: 6163
Dated: August 20, 2010 /s/ Edward W. Ciolko Edward W. Ciolko Joseph H. Meltzer Mark K. Gyandoh BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 Interim Co-Lead Counsel for ERISA Plaintiffs
STULL, STULL & BRODY Edwin J. Mills Michael J. Klein 6 East 45th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022
Interim Co-Lead Counsel for ERISA Plaintiffs
JAMES E. ARNOLD & ASSOCIATES, LPA James E. Arnold Scott J. Stitt 471 East Broad Street, Suite 1400 Columbus, OH 43215 Telephone: (614) 460-1600 Facsimile: (614) 469-1066
LAW OFFICES OF ALFRED G. YATES, JR., PC Alfred G. Yates, Jr. 519 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219
McTIGUE & PORTER, LLP J. Brian McTigue Gregory Y. Porter Jennifer H. Strouf 5301 Wisconsin Avenue, NW, Suite 350
-31 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 40 of 41. PageID #: 6164
Washington, DC 20015 Telephone: (202) 364-6900 Facsimile: (202) 364-9960
THE GRIFFIN LAW FIRM Mark Griffin 175 Honeybelle Oval Orange, OH 44022 Telephone: (216) 346-7376 Facsimile: (216) 861-6679
IZARD NOBEL LLP Robert A. Izard 20 Church St., Suite 1700 Hartford, CT 06103 Telephone: (860) 493-6292 Facsimile: (860) 493-6290
MEHRI & SKALET, PLLC Cyrus Mehri Janelle Carter 1250 Connecticut Avenue, NW, Suite 300 Washington, DC 20036 Telephone: (202) 822-5100 Facsimile: (202) 822-4997
MAJOR KHAN, LLC Major Khan 20 Bellevue Street Weehawken, NJ 07086 Telephone: (646) 546-5664 Facsimile: (646) 546-5755 Thomas J. McKenna
GAINEY & McKENNA Thomas J. McKenna 295 Madison Avenue New York, NY 10017 Telephone: (212) 983-1300 Facsimile: (212) 983-0383
LINER YANKELEVITZ SUNSHINE & REGENSTREIF, LLP Ronald S. Kravitz 199 Fremont Street, 20th Floor San Francisco, CA 94105-2255 Telephone: (415) 489-7700
-32 - Case: 1:08-nc-70000-SO Doc #: 124-1 Filed: 08/20/10 41 of 41. PageID #: 6165
Facsimile: (415) 489-7701
POWERS FRIEDMAN LINN, PLL Laurence Powers 23240 Chagrin Boulevard, Suite 180 Cleveland, OH 44122-5469 Telephone: (216) 514-1180 Facsimile: (216) 514-1185
WEISMAN KENNEDY & BERRIS CO., LPA R. Eric Kennedy Daniel P. Goetz Midland Building 101 Prospect Avenue Cleveland, OH 44115 Telephone: (216) 781-1111
COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP Samuel H. Rudman David A. Rosenfeld Mark Reich Mario Alba, Jr. 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173
Attorneys for ERISA Plaintiffs
-33 - Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 1 of 77. PagetD #: 6166
EXHIBIT A Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 2 of 77. PageID #: 6167
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
:Case No. 08-nc-70000 In re NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA :JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
CLASS ACTION SETTLEMENT AGREEMENT
This Class Action Settlement Agreement ("Settlement Agreement") is entered into be- tween Named Plaintiffs (defined below), for themselves and on behalf of the Settlement Class
(defined below) and the Plan (defined below), on the one hand, and Defendants (as defined be- low) on the other, in consideration of the promises, covenants and agreements herein described and for other good and valuable consideration acknowledged by each of them to be satisfactory and adequate.
The Settlement Agreement is intended to fully, finally and forever resolve, release, dis- charge and settle the Released Claims (defined below), subject to the approval of the Court and the terms and conditions set forth in the Settlement Agreement. Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 3 of 77. PageID #: 6168
I. THE LITIGATION
Procedural History of this Action
1. Plaintiff James Elsinghorst, a former employee of National City and participant in the National City Savings and Investment Plan, filed his initial Class Action Complaint on Janu- ary 10, 2008 pursuant to Sections 409 and 502 of the Employee Retirement Income Security
Act, as amended ("BRISA"), 29 U.S.C. §§ 1109 and 1132, against National City and certain oth- er alleged named and unnamed fiduciaries of the Plan, who allegedly are and were responsible for the investment of the Plan's assets. Thereafter, six additional, substantially identical cases were filed in this Court. By Order dated April 8, 2008, the Court consolidated the then-filed ER-
ISA cases as well as any thereafter filed in or transferred to the Northern District of Ohio arising out of the same facts and claims.
2. By Order dated May 12, 2008, the Court appointed James Elsinghorst and Bar- bara Grosick as co-lead Plaintiffs and the firms of Barroway Topaz Kessler Meltzer & Check,
LLP and Stull, Stull & Brody as interim Co-Lead Counsel.
3. On June 26, 2008, co-lead Plaintiffs filed a Consolidated Complaint for Viola- tions of ERISA. The following Named Plaintiffs were identified in the Consolidated Complaint:
Sharon A. Deucher, Deborah Douglas, James Elsinghorst, Barbara Grosick, Charles C. Gunning,
Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr., George Rithianos, Loretta D. Rogers,
Robert Steinberg, and Ella R. Whitlow.
4. On September 10, 2008, Defendants filed a motion to dismiss with prejudice pur- suant to, inter alia, Rule 12(b)(6). The consolidated cases were transferred to the docket of
Judge Solomon Oliver, Jr. on October 30, 2008. On August 5, 2009, the Court referred the mo-
CLASS ACTION SETTLEMENT AGREEMENT 2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 4 of 77. PageID #: 6169
tion to dismiss to Magistrate Judge Nancy A. Vecchiarelli for a report and recommendation. The motion to dismiss remains pending as of the date of this agreement.
5. On November 26, 2008, the United States Judicial Panel on Multidistrict Litiga- tion issued an order establishing a multidistrict litigation ("MDL") proceeding before Judge
Oliver, captioned In re National City Corporation Securities, Derivative and ERISA Litigation,
MDL No. 2003. The MDL encompasses the consolidated ERISA cases, as well as other securi- ties, shareholder and derivative cases based on related facts and allegations.
Settlement Discussions
6. Counsel for Plaintiffs and Defendants discussed the possibility of settlement at various points in time during the litigation. In or about August 2009, the parties began to discuss engagement of an independent mediator and agreed upon a well-known, respected and experi- enced mediator, David Geronemus of JAMS. The parties also agreed to file a joint motion for an order to temporarily withhold issuance of a report and recommendation on the pending motion to dismiss during the pendency of settlement efforts and, on October 8, 2009, the Court entered an order granting that motion.
7. Defendants have produced a significant quantity of Plan materials to Plaintiffs in- cluding, but not limited to, Plan documents, the Plan Statement of Investment Policy, Plan edu- cational materials, Plan prospectuses, and summary Plan descriptions. Further, in connection with settlement discussions, Defendants provided Plan participant data regarding the National
City Stock Fund over a multi-year period. In advance of the mediation, Defendants also pro- vided to Plaintiffs certain insurance information and copies of Plan agreements. Defendants also responded to several factual inquiries from Plaintiffs in a series of conference calls prior to the mediation.
CLASS ACTION SETTLEMENT AGREEMENT 3 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 5 of 77. PageID #: 6170
8. Before filing the initial complaints in this matter, Plaintiffs' counsel consulted with experts, reviewed pertinent cases, researched legal claims and reviewed voluminous public records regarding the Company. The same scope of research, and further consultations with ex- perts, were performed in filing Plaintiffs' 119 page, 331 paragraph Consolidated Complaint. Be- fore agreeing to settle Plaintiffs' claims, Plaintiffs' counsel reviewed a significant quantity of
Plan materials produced by Defendants including, but not limited to, Plan documents, the Plan
Statement of Investment Policy, Plan educational materials, Plan prospectuses, and summary
Plan descriptions and insurance information. Plaintiffs' counsel have also reviewed Plan par- ticipant data covering a multi-year period with regard to the National City Stock Fund, and re- tained well-known, non-testifying experts to review damages for the Prudence Claim and the
Allegiant Funds Claim. Plaintiffs followed up on the produced information in a series of confer- ence calls with Defendants' counsel prior to the mediation. In addition, the Parties have sub- stantially briefed their factual and legal positions in a series of mediation statements and replies exchanged prior to mediation. Plaintiffs also reviewed hundreds of pages of testimony, and ex- hibits thereto, of certain Company directors and executives taken as part of a shareholder lawsuit filed in Delaware State Court: In Re National City Corp. Shareholders Litig., C.A. No. 4123-CC
(Del. Chancery). Lastly, as agreed to by the Parties in section 12.14 below, Plaintiffs will con- duct confirmatory discovery related to the matters asserted in the Consolidated Complaint.
9. On February 4 and 9, 2010, after submitting their respective mediation statements and supporting materials, the Parties participated in a two-day mediation with Mr. Geronemus in
New York City, at the conclusion of which the parties agreed to a settlement in principle.
II. THE BENEFITS OF SETTLEMENT 1. Named Plaintiffs believe that the claims asserted in the Action have merit and that the evidence developed to date supports the claims. Despite the strengths of their case, Named
CLASS ACTION SETTLEMENT AGREEMENT 4 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 6 of 77. PageID #: 6171
Plaintiffs are mindful of the problems of proof under, and possible defenses to, the claims in the
Action — alleged breaches of fiduciary duty under ERISA — a complex and still developing area of the law. Named Plaintiffs further recognize and acknowledge the expense and length of continued proceedings necessary to prosecute the Action against Defendants through trial, post- trial proceedings and appeals. Named Plaintiffs have taken into account the uncertain outcome and the risk of any litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation. Named Plaintiffs believe that the Settlement set forth in this Settlement Agreement confers substantial benefits upon, and is in the best interests of, the
Settlement Class and the Plan and is otherwise fair, reasonable and adequate.
2. Defendants have denied, and continue to deny, that they have committed any vio- lations of the law whatsoever, including each and al] of the claims and contentions alleged by
Named Plaintiffs in the Action. Defendants expressly have denied, and continue to deny, all charges of wrongdoing 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. Defendants further de- ny that Named Plaintiffs or the Settlement Class or the Plan suffered damages, deny that offering the National City Stock Fund as an investment alternative in the Plan violated ERISA in any way, deny that offering Allegiant Funds as investment alternatives in the Plan violated ERISA in any way, and deny that the price of National City stock was artificially inflated during the Set- tlement Class Period as a result of any alleged misrepresentations, omissions, or other acts of
Defendants. Defendants also assert that after March 19, 2008 the Prudence Claim may be as- serted only against U.S. Trust, which was retained as an independent fiduciary for the National
City Stock Fund. Defendants have nevertheless concluded that further litigation of the Action would be protracted and expensive. Defendants have also considered the uncertainty inherent in
CLASS ACTION SETTLEMENT AGREEMENT 5 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 7 of 77. PageID #: 6172
any litigation, especially in complex cases like this. Defendants have, therefore, determined to settle the Action in the manner and upon the terms and conditions set forth in the Settlement
Agreement.
III. TERMS AND CONDITIONS OF THE SETTLEMENT NOW THEREFORE, without any admission or concession on the part of Named Plain- tiffs of any lack of merit of the Action whatsoever, and without any admission or concession by
Defendants of any liability or wrongdoing or lack of merit in their defenses whatsoever, it is he- reby STIPULATED AND AGREED, by and among the parties to this Settlement Agreement, through their respective attorneys, subject to approval of the Court pursuant to Rule 23(e) of the
Federal Rules of Civil Procedure, in consideration of the benefits flowing to the parties hereto from the Settlement, that all Released Claims (as defined below) as against Defendants and the
Released Persons (as defined below) shall be compromised, settled, released, discharged and dismissed with prejudice, upon and subject to the following terms and conditions.
1. Definitions.
As used in this Settlement Agreement, italicized and capitalized terms and phrases not otherwise defined have the meanings provided below:
1.1 "Action " shall mean the ERISA cases consolidated as part of In re National City Corporation Securities, Derivative & ERISA Litigation, Case No. 1:08-nc-70000, United States District Court for the Northern District of Ohio, Eastern Division. The consolidated ERISA cas- es (a/k/a In re National City Corporation ERISA Litigation) include the following, and any and all cases now or hereafter consolidated therewith: Elsinghorst v. National City Corp., et al., 1:08-nc-70001-SO; Grosick v. National City Corp., et al., 1:08-nc-70002-SO; Whitlow, et al. v. National City Corp., et al., 1:08-nc-70007-SO; Ranallo, et al. v. National City Corp., et al., 1:08- nc-70008-SO; Gunning v. National City Corp., et al., 1:08-nc-70009-SO; Rithianos v. National City Corp., et al., 1:08-nc-70010-SO; Douglas v. National City Corp., et al., 1:08-nc-70011-SO.
1.2 "Agreement Execution Date " shall mean the date on which this Settlement Agreement is fully executed.
1.3 "Allegiant Funds" shall mean those mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan.
CLASS ACTION SETTLEMENT AGREEMENT 6
Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 8 of 77. PageID #: 6173
1.4 "Allegiant Funds Claim" shall mean those portions of Plaintiffs' claims that relate to the offering of Allegiant Funds as investment alternatives in the Plan.
1.5 "Case Contribution Award' means the monetary amount up to but not to exceed $7,500.00 per Co-Lead Plaintiff and $2,000.00 per each remaining Named Plaintff, which Co- Lead Counsel will ask the Court to award in recognition of their assistance in the prosecution of this Action. The amount is to be paid from the Settlement Fund.
1.6 "Claims " shall have the meaning set forth in Section 4.2.
1.7 "Class Counsel" shall mean Stull, Stull & Brody; Barroway Topaz Kessler Melt- zer & Check, LLP; Goldman Scarlato & Karon, P.C.; McTigue & Veis LLP; Bailey & Glasser LLP; Major Khan, LLC; Gainey & McKenna; Liner Yankelevitz Sunshine & Regenstreif, LLP; and Coughlin Stoia Geller Rudman & Robbins, LLP.1
1.8 "Class Notice " shall mean the forms of notice appended as Exhibits 1 and 2 to the form of Preliminary Approval Order, attached hereto as Exhibit A.
1.9 "Class Period" shall mean, as to the Allegiant Funds Claim, the period from March 25, 2002 to December 31, 2009, inclusive, and as to the Prudence Claim, the period from September 5, 2006 to December 31, 2008, inclusive.
1.10 "Class Settlement Amount" shall have the meaning set forth in Section 8.2.
1.11 "Co-Lead Counsel" shall mean: Stull, Stull & Brody and Barroway Topaz Kess- ler Meltzer & Check, LLP.
1.12 "Co-Lead Plaintiffs" shall mean James Elsinghorst and Barbara Grosick.
1.13 "Company" or "National City" shall mean National City Corporation, each of National City's predecessors and Successors-In-Interest (including The PNC Financial Services Group, Inc. for the time period on or after December 31, 2008), and each Person that controls, is controlled by, or is under common control with National City, and any of its direct and indirect parents and subsidiaries and any company whose employees participated in an ERISA plan set up or sponsored by National City. For the purposes of this Settlement Agreement only, one com- pany "controls" another company if (i) the former company directly or indirectly or acting through one or more other persons owns or has power to vote greater than 50 per centum or more of any class of voting securities of the latter company or (ii) the former company has the right to determine in any manner the election of a majority of the directors or trustees of the latter com- pany.
1.14 "Complaint" or "Consolidated Complaint" shall mean the Consolidated Com- plaint for Violations of ERISA, filed June 26, 2008.
1 The firm of McTigue & Veis was formerly known as McTigue & Porter LLP. Gregory Porter, Esq. who was associated with McTigue & Porter LLP is now associated with Bailey & Glasser LLP.
CLASS ACTION SETTLEMENT AGREEMENT 7
Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 9 of 77. PageID #: 6174
1.15 "Court" shall mean the United States District Court for the Northern District of Ohio, Eastern Division.
1.16 "Defendants" shall mean the following persons and/or entities: National City Corporation, National City Bank, the Board of Directors of National City Corporation, the Ad- ministrative Committee of the National City Savings and Investment Plan, David A. Daberko, and Jon N. Couture.
1.17 "ERISA " shall mean the Employee Retirement Income Security Act of 1974, as amended, including all regulations promulgated thereunder, and court decisions interpreting ER- ISA, as amended or regulations promulgated thereunder.
1.18 "Fairness Hearing" shall have the meaning set forth in Section 2.
1.19 "Final" shall mean, with respect to any judicial ruling or order, that the period for any appeals, petitions, motions for reconsideration, rehearing, or certiorari or any other proceed- ings for review ("Review Proceeding") has expired without the initiation of a Review Proceed- ing, or, if a Review Proceeding has been timely initiated, that there has occurred a full and final disposition of any such Review Proceeding without a reversal or any material modification, in- cluding the exhaustion of proceedings in any remand and/or subsequent appeal after remand.
1.20 "Financial Institution " shall have the meaning set forth in Section 8.1.1.
1.21 "Independent Fiduciary" shall mean the Person retained by the Company for the purposes set forth in Section 3.5.
1.22 "Judgment" shall have the meaning set forth in Section 2. A proposed form of the Order and Final Judgment is attached hereto as Exhibit B.
1.23 "Named Plaintiffs" shall mean Sharon A. Deucher, Deborah Douglas, James El- singhorst, Barbara Grosick, Charles C. Gunning, Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr., George Rithianos, Loretta D. Rogers, Robert Steinberg, and Ella R. Whitlow.
1.24 "Parties" shall mean the Plaintiffs and the Defendants.
1.25 "Person " shall mean an individual, partnership, corporation, governmental entity or any other form of entity or organization.
1.26 "Plaintiffs" shall mean Named Plaintiffs and each member of the Settlement Class.
1.27 "PlaintiffReleasees " shall have the meaning set forth in Section 4.4.
1.28 "Plan " shall mean the National City Savings and Investment Plan, together with its predecessors and successors (including The PNC Financial Services Group, Inc. Incentive Savings Plan, its successor by plan merger), and any trust created under such plan.
CLASS ACTION SETTLEMENT AGREEMENT 8 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 10 of 77. PageID #: 6175
1.29 "Plan of Allocation " shall mean the plan of allocation attached as Exhibit C here- to.
1.30 "Preliminary Approval Order" shall have the meaning set forth in Section 2.
1.31 "Preliminary Motion" shall have the meaning set forth in Section 2.
1.32 "Prudence Claim" shall mean those portions of Plaintiffs' claims that relate to the offering of the National City Stock Fund as an investment alternative in the Plan and the holding of National City stock in the National City Stock Fund.
1.33 "Released Claims" shall have the meaning set forth in Section 4.2.
1.34 "Released Parties " shall mean the Defendants, any Person who served as a trus- tee or named or functional fiduciary of the Plan, and any director, officer, executive, employee or agent of National City, together with, for each of the foregoing, any predecessors, Successors- In-Interest, present and former Representatives, direct or indirect parents, affiliates and subsidi- aries, insurers, re-insurers, consultants, accountants, auditors, administrators, investment advi- sors, financial advisors, investment bankers, underwriters, and any Person that controls, is con- trolled by, or is under common control with any of the foregoing.
1.35 "Releases" shall mean the releases set forth in Section 4.
1.36 "Representatives " shall mean representatives, attorneys, agents, directors, offi- cers, executives or employees.
1.37 "Securities Action" shall mean Casey v. National City Corporation, et al., Case No. 1:08-nc-70004-SO (a/k/a In re National City Corporation Securities Litigation), United States District Court for the Northern District of Ohio, Eastern Division, and any and all cases now or hereafter consolidated therewith, or, in the event of a withdrawal or dismissal of the Ca- sey action, any related subsequently-filed securities class action alleging substantially the same claims under the Exchange Act and the Securities Act of 1933, on behalf of the same class, for the same class period and against the same defendants as in the Casey action, but only to the ex- tent of such substantially same claims.
1.38 "Settlement" shall mean the settlement to be consummated under this Settlement Agreement.
1.39 "Settlement Class" shall mean: all current and former participants and beneficiar- ies of the Plan (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan held interests in any of the Alle- giant Funds at any time during the period March 25, 2002 to December 31, 2009, inclusive.
1.40 "Settlement Fund" shall have the meaning set forth in Section 8.1.1.
CLASS ACTION SETTLEMENT AGREEMENT 9 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 11 of 77. PageID #: 6176
1.41 "Successor-In-Interest" shall mean a Person's estate, legal representatives, heirs, successors or assigns, including successors or assigns that result from corporate mergers or other structural changes.
2. Certain Settlement Procedures.
2.1 As soon as reasonably possible after the full execution of this Settlement Agree- ment by the Parties and the commencement of the Confirmatory Document Discovery described in Section 12.14, Plaintiffs will file a motion ("Preliminary Motion') with the Court for an order preliminarily approving the settlement, certifying the Settlement Class, scheduling a settlement hearing (the "Fairness Hearing"), and directing the Class Notice be distributed to the Settlement Class, substantially in the form annexed hereto as Exhibit A, including the exhibits thereto (the "Preliminary Approval Order'). The Fairness Hearing shall be not less than 90 days after the entry of the Preliminary Approval Order by the Court..
2.2 On the date and in the manner set by the Court in its Preliminary Approval Order, the Plaintiffs shall cause the Class Notice to be disseminated in the form and manner approved by the Court as directed in the Preliminary Approval Order.
2.3 Within 10 days after the Settlement Agreement is filed with the Court, Defendants shall serve a notice of the settlement under the Class Action Fairness Act of 2005, 28 U.S.C. § 1715(b), upon the persons required to receive such notice.
2.4 Prior to the Fairness Hearing and in accordance with the schedule prescribed by the Court in the Preliminary Order, Plaintiffs shall move the Court for an order and final judg- ment, in the form annexed hereto as Exhibit B (the "Judgment"), approving the Settlement and dismissing the Action with prejudice to Plaintiffs and all members of the Settlement Class. The Plaintiffs shall move the Court that such order and final judgment be entered and Defendants will not object to such motion.
2.5 Plaintiffs will further move the Court, on or before the date set by the Court for the Fairness Hearing, for a determination by the Court: (i) whether to enter Judgment finally ap- proving the Settlement; and (ii) what legal fees, compensation, and expenses should be awarded to Class Counsel, and what Case Contribution Awards should be awarded to the Co-Lead Plain- tiffs and Named Plaintiffs as contemplated by Section 11 of this Settlement Agreement.
2.6 The Parties stipulate to certification of the Settlement Class for purposes of this Settlement only. The Parties agree that if the Court does not enter the Judgment, or if the Judg- ment does not become Final, then no Settlement Class will be deemed to have been certified by or as a result of this Settlement Agreement, and the Action will for all purposes with respect to the Parties revert to its status as of February 9, 2010. In such event the Defendants will not be deemed to have consented to the certification of any class, the agreements and stipulations in this Settlement Agreement concerning class definition or class certification shall not be used as evi- dence or argument to support class certification or class definition, and the Defendants will retain all rights to oppose class certification.
2.7 The Parties shall cooperate in good faith, including by taking all steps and efforts contemplated by this Settlement Agreement and any other steps or efforts which may become ne-
CLASS ACTION SETTLEMENT AGREEMENT 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 12 of 77. PageID #: 6177
cessary by order of the Court (unless such order materially modifies the terms of this Settlement Agreement), to carry out this Settlement Agreement and to satisfy the conditions to the Settlement set forth below.
3. Conditions to Finality of the Settlement
This Settlement shall be final when each of the following conditions in Sections 3.1 through 3.5 has been satisfied or waived.
3.1 Class Certification. The Court shall have certified this Action as a class action for settlement purposes only pursuant to Rule 23(a)(1)-(4), 23(b)(1)(A)-(B) and 23(e) of the Federal Rules of Civil Procedure, with Named Plaintiffs as the named Class Representatives, with Co- Lead Counsel as counsel for the Plaintiffs and the Settlement Class, and with a Settlement Class defined as set forth in Section 1.36 above as a non-opt-out class.
3.2 Preliminary Approval Order. The Court shall have entered the Preliminary Ap- proval Order substantially in the form annexed hereto as Exhibit A.
3.3 Finalitv of Judgment. The Court shall have entered the Judgment substantially in the form attached as Exhibit B hereto, and the Judgment shall have become Final.
3.4 Funding of Class Settlement Amount. The Defendants shall have caused the Class Settlement Amount to be deposited at the time prescribed by, and otherwise as provided for in, Section 8.2.
3.5 Settlement Authorized by Independent Fiduciary. The Company may retain an Independent Fiduciary to review and approve the Settlement in accordance with Prohibited Transaction Class Exemption 2003-39, if it wishes to do so. If the Company retains an Inde- pendent Fiduciary, then at least thirty days prior to the Fairness Hearing, the Independent Fidu- ciary (whose identity shall be agreed on by the Parties) shall have approved and authorized in writing the Settlement in accordance with Prohibited Transaction Class Exemption 2003-39. If the Independent Fiduciary disapproves or otherwise does not authorize the Settlement, then the Defendants shall have the option to waive this condition. Such option is to be exercised in writ- ing within the earlier of (i) ten (10) days of the Defendants' receipt of the Independent Fiduci- ary's written determination, or (ii) ten (10) days prior to the date set for the Fairness Hearing. If the Defendants elect in writing to waive this condition, then the Settlement shall become Final if all other conditions in Section 2 are satisfied. If the Defendants elect not to waive this condi- tion, then the Settlement Agreement shall terminate and become null and void and the provisions of Section 10.2 shall apply. If the Independent Fiduciary has not rendered a written report re- garding the Settlement by the thirtieth day prior to the date set for the Fairness Hearing, the De- fendants may ask the Court to continue the Fairness Hearing to allow the Independent Fiduciary to complete its assessment of the Settlement, and Plaintiffs shall not oppose such request. The Independent Fiduciary shall have no authority to renegotiate any of the terms of the Settlement.
4. Releases.
4.1 Releases of the Released Parties. Subject to Section 10 herein, effective upon the entry of the Judgment by the Court, Named Plaintiffs on behalf of themselves and on behalf of
CLASS ACTION SETTLEMENT AGREEMENT 11 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 13 of 77. PageID #: 6178
the Settlement Class and the Plan absolutely and unconditionally forever release, relinquish and discharge with prejudice the Released Parties from Released Claims that the Plan, the Plaintiffs, the Settlement Class or Named Plaintiffs directly, indirectly, derivatively, or in any other capac- ity ever had, now have or hereafter may have, except that the release under this Section 4.1 shall not include claims to enforce the covenants or obligations set forth in this Settlement Agreement. Also effective upon entry of the Judgment by the Court, the Plan, the Plan's fiduciaries, the Named Plaint ffs and all other members of the Settlement Class shall be permanently and finally barred and enjoined from instigating, commencing, maintaining or prosecuting any actions or other proceedings asserting any of the Released Claims either directly, indirectly, derivatively, or in any other capacity, against any of the Released Parties.
4.2 Released Claims. Subject to Section 4.5 below, the Released Claims shall be: any and all claims of any nature whatsoever (including claims for any and all losses, damages, de- mands, debts, obligations, costs, liabilities, benefits, rights, actions, judgments, suits, unjust en- richment, attorneys' fees, expert or consultant fees, disgorgement of fees, litigation costs, injunc- tion, declaration, contribution, indemnification, matters and issues of any kind whatsoever or any other type or nature of legal or equitable relief), whether accrued or not, fixed or contingent, liq- uidated or unliquidated, whether known, unknown, or unsuspected, in law or equity, matured or unmatured, foreseen or unforeseen, whether class, individual or derivative in nature, whether based on United States federal, state or local statutory or common law or any other law, rule or regulation, whether foreign or domestic, as well as any claim or right obtained by assignment, brought by way of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise (collectively, "Claims"), in any court or other tribunal, arising out of or in any way related to, directly or indirectly, any or all of the acts, omissions, facts, matters, transactions or occurrences (i) that have been asserted in the Action against any of the Released Parties, (ii) that could have been asserted in the Action or in any forum by the Named Plaintiffs, members of the Settlement Class, or the Plan, or any of them or by their heirs, agents, executors, fiduciaries, administrators, beneficiaries, predecessors, successors or assigns (in their capacities as such), against any of the Released Parties, which arise out of or are related to (x) the allegations, transactions, facts, mat- ters or occurrences, representations or omissions involved, set forth or referred to in the Com- plaint, including without limitation any public statement, or any statement in any document relat- ing to the Plan, by any Released Parry during the Class Period, and (y) any purchase, sale, or retention of National City common stock or units of the National City Stock Fund in connection with the Plan during the Class Period, or (iii) that would be barred by principles of res judicata had the claims asserted in the Complaint been fully litigated and resulted in a Final judgment or order.
4.3 Scope of Releases. The Parties intend and agree that the Releases granted in this Article 4 shall be effective as a bar to any and all claims within the scope of their express terms and provisions that are currently unsuspected, unknown, or partially known to exist in their favor that might have affected their decision(s) with respect to the Settlement. Accordingly, the Par- ties stipulate and agree that by operation of the Judgment becoming Final, Named Plaintiffs shall have expressly waived, and each member of the Settlement Class and the Plan shall be deemed to have waived, and the Defendants shall have expressly waived, any and all rights and benefits respectively conferred upon them by the provisions of Section 1542 of the California Civil Code and all similar provisions of the statutory or common laws of any other State, Territory, or other jurisdiction. Section 1542 reads in pertinent part:
CLASS ACTION SETTLEMENT AGREEMENT 12 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 14 of 77. PageID #: 6179
A general release does not extend to claims that 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. Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement Class and on behalf of the Plan, and the Defendants each hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code and all similar provisions of the sta- tutory or common law of any other State, Territory, or other jurisdiction was separately bar- gained for and that neither Named Plaintiffs, on the one hand, nor the Defendants, on the other, would enter into this Settlement Agreement unless it included a broad release of unknown claims. Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement Class and on behalf of the Plan, and the Defendants each expressly agree that all release provisions in this Settlement Agreement shall be given full force and effect in accordance with each and all of their express terms and provisions, including those terms and provisions relating to unknown, unsus- pected, and future claims, demands, and causes of action. Named Plaintiffs assume for them- selves, and on behalf of the Settlement Class, the Plan, and any party acting on behalf of the Plan or the Settlement Class, and the Defendants assume for themselves, the risk of his, her or its respective subsequent discovery or understanding of any matter, fact, or law, that if now known or understood, would in any respect have affected his, her, or its entering into this Settlement Agreement. 4.4 Defendants' Releases of Named Plaintiffs, the Settlement Class and Plaintiffs' Counsel. Subject to Section 10 herein, effective upon the entry of the Judgment by the Court, the Defendants absolutely and unconditionally release and forever discharge with prejudice the Named Plaintiffs, the Settlement Class, and Class Counsel and other counsel for Plaintiffs listed in the signature block of the Complaint (collectively, the "Plaintiff Releasees") from any and all Claims relating to the institution or prosecution of the Action or the settlement of any Released Claims, except that the release under this Section 4.4 shall not include claims to enforce the co- venants or obligations set forth in this Settlement Agreement.
4.5 Claims Not Released. Nothing in this Settlement Agreement shall release, bar, waive, or otherwise affect the Claims that actually have been asserted, before the date of execu- tion of this Settlement Agreement, by or on behalf of the Plan and/or any member of the Settle- ment Class in: 1) the Securities Action; 2) Tomascik et al. v. National City Corporation et al., No. 1:09-CV-00251-SO (N.D. Ohio); 3) Parker et al. v. National City Corporation et al., No. CV-08-657360 (Cuyahoga Cty., Ohio, Common Pleas Ct.); or 4) Reagan v. National City Cor- poration et al., No. 1:08-nc-70015 (N.D. Ohio). Nothing herein shall preclude the Plan from filing a claim in connection with any settlement or judgment fund established in any action refer- enced in this Section 4.5.
5. Covenants.
The Parties covenant and agree as follows:
5.1 Taxation of Class Settlement Amount. The Released Parties shall have no re- sponsibility for any taxes due with respect to funds deposited in, income earned on or funds dis- tributed from the Settlement Fund, including funds that the Plaintiffs or Class Counsel receive
CLASS ACTION SETTLEMENT AGREEMENT 13 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 15 of 77. PageID #: 6180
from the Class Settlement Amount. Any such taxes, and any professional, administrative or other expenses associated with such tax payments incurred by the Settlement Fund shall be paid out of the Settlement Fund, as set forth more fully in Section 8.1.2 below.
5.2 Cooperation. The Company shall cooperate with Co-Lead Counsel by providing or causing to be provided, in electronic format, the names and addresses of Persons to whom the Class Notice is to be sent pursuant to the Preliminary Approval Order. Plaintiffs will use any information provided by the Company pursuant to the preceding sentence solely for the purpose of providing notice to the Settlement Class and for no other purpose. The Parties shall reasona- bly cooperate with each other to effectuate this Settlement, and shall not do anything or take any position inconsistent with obtaining a prompt Judgment approving the Settlement unless ex- pressly permitted by this Settlement Agreement.
5.3 Covenant Not to Sue. Subject to Section 10 herein, Plaintiffs covenant and agree on their own behalf, and on behalf of the Settlement Class and the Plan: (i) not to instigate, commence, maintain or prosecute against any Released Party any Claim based on, related to, or arising from any Released Claim; and (ii) that the foregoing covenants, agreements and releases shall be a complete defense to any such Claims against any of the respective Released Parties.
6. Representations and Warranties.
6.1 Parties' Representations and Warranties. The Parties, and each of them, repre- sent and warrant as follows, and each Party acknowledges that each other Party is relying on these representations and warranties in entering into this Settlement Agreement:
6.1.1 That they have conducted voluminous discovery and have acted diligently in connection with this Action; that they are voluntarily entering into this Settlement Agreement as a result of arm's-length negotiations among their counsel, with the assistance and recommen- dation of an experienced mediator; that in executing this Settlement Agreement they are relying solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently selected counsel, concerning the nature, extent and duration of their rights and claims hereunder and regarding all matters which relate in any way to the subject mat- ter hereof; and that, except as otherwise explicitly set forth in this Settlement Agreement, they have not been influenced to any extent whatsoever in executing this Settlement Agreement by any representations, statements, or omissions pertaining to any of the foregoing matters by any Party or by any Person representing any Party to this Settlement Agreement. Each Party as- sumes the risk of mistake as to facts or law.
6.1.2 That they have carefully read the contents of this Settlement Agreement, and this Settlement Agreement is signed freely by each Person executing this Settlement Agree- ment on behalf of each of the Parties. The Parties, and each of them, further represent and war- rant to each other that he, she, or it has made such investigation of the facts pertaining to the Set- tlement, this Settlement Agreement, and all of the matters pertaining thereto, as he, she, or it deems necessary.
6.1.3 That in entering into this Settlement Agreement, the Plaintiffs have not re- lied on any representations or arguments by the Defendants that a class can, could, or should be
CLASS ACTION SETTLEMENT AGREEMENT 14 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 16 of 77. PageID #: 6181
certified for any purpose; that the Plaintiffs would not be prejudiced if (i) this Settlement were not approved or such approval were reversed on appeal and (ii) the Defendants were later to ob- ject to the certification of any proposed class in this action; and that in the event that this Settle- ment does not become Final, the Plaintiffs will not assert that the Defendants are equitably or judicially estopped from contesting the certification of any class in this Action.
6.2 Signatories' Representations and Warranties. Each Person executing this Settle- ment Agreement on behalf of any other Person does hereby personally represent and warrant to the other Parties that he or she has the authority to execute this Settlement Agreement on behalf of, and fully bind, each principal whom such individual represents or purports to represent.
7. No Admission of Liability.
The Parties understand and agree that this Settlement Agreement embodies a compromise settle- ment of disputed claims, and that nothing in this Settlement Agreement, including the furnishing of consideration for this Settlement Agreement, shall be deemed to constitute any finding of fidu- ciary status under ERISA or wrongdoing by any of the Defendants or Released Parties, or give rise to any inference of fiduciary status under ERISA or wrongdoing or admission of wrongdoing or liability in this or any other proceeding. This Settlement Agreement and the payments made hereunder are made in compromise of disputed claims and are not admissions of any liability of any kind, whether legal or factual. The Defendants specifically deny any such liability or wrongdoing and state that they are entering into this Settlement Agreement to eliminate the bur- den and expense of further litigation. Further, the Named Plaintiffs, while believing that all Claims brought in the Action have merit, have concluded that the terms of this Settlement Agreement are fair, reasonable and more than adequate to the Plan, themselves and members of the Settlement Class given, among other things, the inherent risks, difficulties and delays in complex ERISA litigation such as this. Neither the fact nor the terms of this Settlement Agree- ment shall be used or offered or received in evidence in any action or proceeding for any pur- pose, except in an action or proceeding to enforce this Settlement Agreement or arising out of or relating to the Judgment, by Defendants as a defense in an action or proceeding where the Re- leases provided pursuant to this Settlement Agreement or the consideration paid hereunder may serve as a bar to, or reduction of, recovery, or by Defendants in any action or proceeding con- cerning the application of any insurance coverage to this Settlement.
8. The Settlement Fund; Deliveries into the Settlement Fund.
8.1 The Settlement Fund.
8.1.1 Within fourteen (14) days after the Agreement Execution Date, Co-Lead Counsel shall establish at a federally-insured financial institution (the "Financial Institution ") identified to and reasonably agreed on by counsel for the Defendants, an escrow account to hold the Class Settlement Amount (the "Settlement Fund" ) which shall be considered a common fund created as a result of the Action. Co-Lead Counsel shall designate at least one person with signa- ture authority over this account (the "Signers"), and shall direct the Financial Institution to make distributions from the Settlement Fund only in accordance with this Settlement Agreement upon written direction from each Signer. For the avoidance of doubt, the Financial Institution shall be instructed that, absent a Court order, no funds are to be paid or withdrawn from the Settlement
CLASS ACTION SETTLEMENT AGREEMENT 15 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 17 of 77. PageID #: 6182
Fund except pursuant to Section 9 of this Settlement Agreement (and the Sections of this Settle- ment Agreement explicitly cross-referenced therein) or, upon termination of this Settlement Agreement, pursuant to Section 10 of this Settlement Agreement. Co-Lead Counsel shall promptly notify the other Parties of the account number and the date of the establishment of the Settlement Fund, shall confirm the identity of the Financial Institution, and shall confirm that withdrawals and distributions from the Settlement Fund are subject to the restrictions set forth in the preceding sentence.
8.1.2 The funds on deposit in the Settlement Fund shall bear interest and shall be invested only in United States Treasury securities and/or securities of United States agencies backed by the full faith and credit of the United States Treasury, repurchase agreements collater- alized by such securities, and mutual funds or money market accounts that invest exclusively in the foregoing securities. The Settlement Fund shall be structured and managed to qualify as a "qualified settlement fund" described in the Treasury regulations promulgated under Section 468B of the Internal Revenue Code and no Party shall take any position in any filing or before any tax authority that is inconsistent with such treatment. The Financial Institution or another person designated by Co-Lead Counsel (other than a Released Party) shall be the Settlement Fund "administrator," as that term is used in the Section 468B Treasury regulations (the "Admin- istrator"). The Administrator shall (a) prepare and file all income tax and information returns required to be filed, and provide payees with copies of such information returns; (b) pay all taxes owed by the Settlement Fund; (c) at the Company's request, join with the Company in timely making the "relation-back" election permitted under the Section 468B Treasury regulations in the form prescribed therein; and (d) obtain and provide to the Company the Settlement Fund's federal taxpayer identification number on or before the date that the Company transfers funds to the Settlement Fund. The Administrator shall be authorized to retain a certified public account- ing firm for these purposes. All taxes on the income of the Settlement Fund and tax-related ex- penses incurred in connection with the administration of the Settlement Fund shall be paid solely out of the Settlement Fund, shall be considered a cost of administration of the Settlement, and shall be timely paid without further order of the Court. All fees and expenses of the Financial Institution, and of professional advisors engaged by the Financial Institution in connection with the Settlement Fund, shall be funded solely from the Settlement Fund. Defendants shall have no responsibility for any such taxes, fees or expenses. Except as provided for in Section 10, the Set- tlement will be non-recapture, i.e., the Company shall have no ability to recover from the Settle- ment Fund any amounts it has paid into the Settlement Fund.
8.2 The Class Settlement Amount. In consideration of all of the promises and agree- ments set forth in this Settlement Agreement, the Company will (contingent upon receipt of satis- factory wire or other delivery instructions and an executed IRS Form W-9 for the Settlement Fund) cause to be deposited into the Settlement Fund the aggregate sum of forty-three million dollars in United States currency ($43,000,000.00) (the "Class Settlement Amount"). Of that amount, $2,000,000 will be deposited within twenty (20) days after the entry of the Preliminary Approval Order, and the remaining $41,000,000 will be deposited within fourteen (14) days after the Judgment becomes Final.
CLASS ACTION SETTLEMENT AGREEMENT 16 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 18 of 77. PageID #: 6183
9. Payments From The Settlement Fund.
9.1 Expenses of Class Notice. After the entry of the Preliminary Approval Order, Co- Lead Counsel shall direct the Financial Institution in writing to disburse from the Settlement Fund an amount for the payment of reasonable costs of the Class Notice. If the Settlement Agreement is terminated for any reason, Co-Lead Counsel shall have no obligation to reimburse to the Settlement Fund the costs of the Class Notice, or any other costs or expenses of the Settle- ment Fund charged to the Settlement Fund under this Settlement Agreement. In connection with Class Notice, the Company shall request as soon as reasonably possible that records reasonably available in computer readable format sufficient to reflect the names and last known addresses of members of the Settlement Class be made available from the Plan to Co-Lead Counsel to be used solely for purposes of this Settlement. The Company shall pay the provider of such records for reasonable costs incurred by them in providing these requested records.
9.2 Disbursements from Settlement Fund. Co-Lead Counsel shall direct the Financial Institution to disburse money from the Class Settlement Fund as follows:
9.2.1 For Attorneys' Fees and Expenses. As provided in Section 11.2 herein.
9.2.2 For Co-Lead Plaintiffs and Named Plaintiff Case Contribution Awards. Not less than ten (10) days after the Judgment becomes Final.
9.2.3 For taxes and expenses of the Settlement Fund. As provided in Section 8.1.2 herein.
9.2.4 For fees and expenses of the Independent Fiduciary. Co-Lead Counsel shall direct the Financial Institution to disburse money from the Class Settlement Fund to pay the reasonable fees and expenses of the Independent Fiduciary retained pursuant to Section 3.5, to undertake the activities contemplated by that section, in an amount not to exceed $50,000. Any fees and expenses of the Independent Fiduciary above $50,000 shall be paid by the Com- pany. If the Settlement Agreement is terminated for any reason, Co-Lead Counsel shall have no obligation to reimburse to the Settlement Fund the fees and expenses of the Independent Fiduci- ary charged to the Settlement Fund under this Settlement Agreement.
9.2.5 For the Plan ofAllocation. The Plan of Allocation attached as Exhibit C hereto provides for the allocation of the Settlement Fund net of the disbursements called for in Sections 9.2.1, 9.2.2, 9.2.3 and 9.2.4 ("Net Proceeds"). Pursuant to the terms of the Plan ofAl- location, Co-Lead Counsel shall direct the Financial Institution to disburse the Net Proceeds to the trust created under the Plan for distribution to or for the benefit of members of the Settlement Class after the occurrence of all of the following events: (i) the Judgment becoming Final as provided in Section 3.3; (ii) the determination and disbursement of the amounts payable pursuant to Sections 9.2.1, 9.2.2, 9.2.3 and 9.2.4; (iii) the calculation of the amounts to be distributed to Settlement Class Members pursuant to the Plan of Allocation; and (iv) Defendants' Counsel and Co-Lead Counsel having been provided notice of such amounts. The Parties agree that the de- posit of the Net Proceeds into the trust created under the Plan shall constitute "restorative pay- ments" within the meaning of Revenue Ruling 2002-45 for all purposes. Defendants shall direct PNC Bank, N.A., or any successor Plan Trustee, or any other authorized entity, to distribute the
CLASS ACTION SETTLEMENT AGREEMENT 17 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 19 of 77. PageID #: 6184
Net Proceeds received by the Plan trust according to the Plan of Allocation and shall notify Co- Lead Counsel as to the date(s) and amount(s) of said distribution(s), but Defendants shall have no liability in the event of any failure by PNC Bank, N.A., or any successor Plan Trustee, or any other authorized entity, to follow such directions provided that, in the event of any failure by PNC Bank, N.A., or any successor Plan Trustee, or any other authorized entity, to follow direc- tions from Defendants given pursuant to this Section 9.2.5, the Defendants shall assist Plaintiffs in seeking to enforce such directions. All reasonable fees and expenses of PNC Bank, N.A., or any predecessor or successor Plan Trustee, or any other authorized entity, with respect to imple- mentation of the Plan of Allocation shall be paid by the Company. Defendants warrant that they either have obtained or will obtain the authority to direct that the Net Proceeds received by the Plan trust be distributed according to the Plan of Allocation. The Plan of Allocation is a matter separate and apart from the Settlement between the Parties, and no decision by the Court that modifies the Plan of Allocation shall in any manner affect the validity of this Settlement Agree- ment, or the finality of the Settlement, or the binding character of the releases provided for here- under. The Net Proceeds shall be allocated 96% to the Prudence Claim and 4% to the Allegiant Funds Claim, subject to confirmatory discovery.
10. Termination of the Settlement Agreement.
10.1 Termination. This Settlement Agreement may be terminated (a) by any Party, if the Court declines to enter the Judgment in any material respect, (b) by any Party, if the Judg- ment entered by the Court is reversed or modified in any material respect on appeal or otherwise does not become Final, (c) by any Party, if the Court declines to approve the Settlement as set forth in this Stipulation; (d) by Defendants, if the Independent Fiduciary does not approve the Settlement as set forth in Section 3.5, and such condition is not waived in writing by Defendants, or (e) by the Company, if the Department of Labor takes any of the actions described in Section 10.3. Notwithstanding the foregoing, this Settlement Agreement shall not be subject to termina- tion solely on the basis that a court of competent jurisdiction modifies, reverses, or refuses to en- ter any order relating to the award of legal fees and expenses, Named Plaintiff compensation, or the Plan of Allocation. If within thirty-one (31) days after the date when any reversal or modifi- cation which would cause this Settlement Agreement to terminate becomes Final the Parties have not agreed in writing to proceed with all or part of the Settlement Agreement in light of such ruling, then this Settlement Agreement shall automatically terminate and thereupon become null and void.
10.2 Conseguences of Termination of the Settlement Agreement. If the Settlement Agreement terminates, the following shall occur:
10.2.1 Co-Lead Counsel and Defendants' Counsel shall within ten (10) days after the date of termination of the Settlement Agreement jointly notify the Financial Institution in writing to return to the Company the amount contributed by it to the Settlement Fund, with all net income earned thereon, after deduction of the amounts, if any, earlier disbursed for the Class No- tice and fees and expenses to the Independent Fiduciary and the expenses charged by the Finan- cial Institution, directing the Financial Institution to effect such return within fourteen (14) days after such notification. Prior to the return of amounts contemplated by this Section 10.2.1, the Financial Institution shall fully and finally fulfill all tax obligations of the Settlement Fund as set
CLASS ACTION SETTLEMENT AGREEMENT 18 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 20 of 77. PageID #: 6185
forth in Section 8.1.2 and the Defendants shall have no past, present, or future liability whatso- ever for any such tax obligations.
10.2.2 The Action shall for all purposes with respect to the Parties revert to its status as of February 9, 2010. Any and all statutes of limitations, statutes of repose and/or other defenses based upon the passage of time applicable to the Claims asserted in this Action shall be tolled from February 9, 2010 to the termination of this Settlement Agreement.
10.2.3 All provisions of this Settlement Agreement shall be null and void except as otherwise explicitly provided in this Settlement Agreement.
10.3 Intervention by the Department of Labor. If, prior to the entry of the Judgment in this case, the Department of Labor disapproves of or opposes the Parties' settlement of this mat- ter, or moves to intervene in the Action or files its own lawsuit against the Company or any Re- leased Person asserting any of the Released Claims, then the Company shall have the right to terminate this Settlement Agreement at its sole discretion.
11. Attorneys' Fees and Expenses and Named Plaintiff Compensation.
11.1 Application for Attorneys' Fees and Expenses and Co-Lead Plaintiffs' and Named Plaintiffs' Case Contribution Awards. As provided in Section 2, and pursuant to the common fund doctrine and/or any applicable statutory fee provision, Co-Lead Counsel may apply to the Court for an award to Class Counsel of attorneys' fees of up to 30% of the Settlement Fund and for reimbursement of expenses, to be paid solely from the Settlement Fund. Co-Lead Counsel also may apply to the Court for Case Contribution Awards to Co-Lead Plaintiffs and Named Plaintiffs, payable solely from the Settlement Fund, in amounts no greater than $7,500.00 for each Co-Lead Plaintiff and no greater than $2,000.00 for the remaining Named Plaintiffs, and Co-Lead Plaintiffs and Named Plaintiffs shall be entitled to receive such awards from the Settle- ment Fund to the extent granted by the Court. Defendants agree to take no position with respect to such applications.
11.2 Disbursement of Attornevs' Fees and Expenses. If the Court enters one or more orders allowing payment of attorneys' fees and/or expenses, and in the event that Co-Lead Coun- sel seek to have such attorneys' fees and/or expenses paid out of the Settlement Fund prior to the Settlement becoming Final, Co-Lead Counsel may, not less than five (5) days after such award(s), instruct the Financial Institution in writing to disburse the payments set forth in such order(s) from the Settlement Fund, which the Financial Institution shall do within five (5) busi- ness days of receiving such direction, regardless of the existence of any objection to or appeal of the Settlement or the award of attorneys' fees and expenses; provided, however, that Co-Lead Counsel, as a condition of receipt of any attorneys' fees and expenses award, shall provide to the Financial Institution, after good faith consultation with Defendants' counsel, a surety bond, in favor of the Financial Institution issued by an appropriate entity on behalf of Co-Lead Counsel, in form and substance satisfactory to Defendants' counsel who agrees to review it in good faith and respond to such request with seven (7) days, in the amount of such attorneys' fees and ex- penses awarded by the Court plus accrued interest ("Surety Bond"). In the further event that the attorneys' fees and expenses award approved by the Court is reduced or reversed after it has been paid from the Settlement Fund or the approval of the Settlement is reversed on appeal and is
CLASS ACTION SETTLEMENT AGREEMENT 19 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 21 of 77. PageID #: 6186
no longer subject to further appeal or review, Co-Lead Counsel shall redeposit into the Settle- ment Fund the amount of attorneys' fees and expenses originally paid out of the Settlement Fund to Co-Lead Counsel that has been so reduced or reversed, plus interest accrued thereon for the period from payment from the Settlement Fund to Co-Lead Counsel at a rate equal to the rate of interest earned by the Settlement Fund during the same period (the "Repayment Amount"). Such repayment will be due within thirty (30) calendar days of the event that results in the Settlement terminating or failing to become Final or that results in the reduction or reversal of the award of attorneys' and expenses. If Co-Lead Counsel fails to redeposit the entirety of the Repayment Amount, the Financial Institution shall immediately order the Surety Bond forfeited and shall de- posit the forfeited amount in the Settlement Fund. Co-Lead Counsel shall remain obligated for any shortfall in the Repayment Amount after the proceeds from the Surety Bond have been ap- plied. The Defendants, the Company and its insurers shall bear no liability whatsoever for any costs, fees, expenses, damages, taxes, or other amounts that may arise in connection with this ¶ 11.2, and shall bear no further liability for any claim of attorneys' fees, expenses or costs.
11.3 Co-Lead Counsel may make a supplemental application to the Court for an award of expenses with respect to post-settlement proceedings and administration, and any such award shall be payable only from the Settlement Fund and not by any Defendant.
12. Miscellaneous Provisions.
12.1 Governing Law. This Settlement Agreement shall be governed by the laws of the State of Ohio without giving effect to the conflict of laws or choice of law provisions thereof, except to the extent that the law of the United States governs any matter set forth herein, in which case such federal law shall govern.
12.2 Amendment. Before entry of the Judgment, the Settlement Agreement may be modified or amended only by written agreement signed by or on behalf of all Parties. Following entry of the Judgment, the Settlement Agreement may be modified or amended only by written agreement signed by or on behalf of all Parties and approved by the Court.
12.3 Waiver. The provisions of this Settlement Agreement may be waived only by an instrument in writing executed by the waiving party. The waiver by any party of any breach of this Settlement Agreement shall not be deemed to be or construed as a waiver of any other breach, whether prior, subsequent, or contemporaneous, of this Settlement Agreement.
12.4 Construction. None of the Parties hereto shall be considered to be the drafter of this Settlement Agreement or any provision hereof for the purpose of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof.
12.5 Principles of Interpretation. The following principles of interpretation apply to this Settlement Agreement:
12.5.1 Headings. The headings in this Settlement Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Settlement Agreement.
CLASS ACTION SETTLEMENT AGREEMENT 20 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 22 of 77. PageID #: 6187
12.5.2 Singular and Plural. Definitions apply to the singular and plural forms of each term defined.
12.5.3 Gender. Definitions apply to the masculine, feminine, and neuter genders of each term defined.
12.5.4 References to a Person. References to a Person are also to the Person's permitted successors and assigns.
12.5.5 Terms of Inclusion. Whenever the words "include," "includes," or "in- cluding" are used in this Settlement Agreement, they shall not be limiting but rather shall be deemed to be followed by the words "without limitation."
12.5.6 Time. References to "days" in this Settlement Agreement are to calendar days, unless otherwise stated.
12.6 Further Assurances. All Parties agree, without further consideration, and as part of finalizing the Settlement hereunder, that they will in good faith execute and deliver such other documents and take such other actions as may be necessary to consummate and effectuate the subject matter and purpose of this Settlement Agreement.
12.7 Survival. All representations, warranties and covenants set forth in this Settle- ment Agreement shall be deemed continuing and shall survive the termination or expiration of this Settlement Agreement.
12.8 Notices. Any notice, demand, or other communication under this Settlement Agreement (other than the Class Notice, or other notice given at the direction of the Court) shall be in writing and shall be deemed duly given upon receipt if it is addressed to each of the in- tended recipients as set forth below and personally delivered, sent by registered or certified mail (postage prepaid), sent by confirmed facsimile, or delivered by reputable express overnight cou- rier:
IF TO NAMED PLAINTIFFS:
Edwin J. Mills STULL STULL & BRODY 6 East 45th Street New York, NY 10017 Phone: (212) 687-7230 Fax: (212) 490-2022
Edward W. Ciolko BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Fax: (610) 667-7056
CLASS ACTION SETTLEMENT AGREEMENT 21 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 23 of 77. PageID #: 6188
IF TO DEFENDANTS:
John M. Newman, Jr. Geoffrey J. Ritts JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 Phone: (216) 586-3939 Fax: (216) 579-0212
Any Party may change the address at which it is to receive notice by written notice delivered to the other Parties in the manner described above.
12.9 Entire Agreement. This Settlement Agreement and its exhibits contain the entire agreement among the Parties relating to this Settlement. It specifically supersedes any settle- ment terms or settlement agreements relating to the Defendants that were previously agreed upon orally or in writing by any of the Parties.
12.10 Counterparts. This Settlement Agreement may be executed by exchange of exe- cuted signature pages by facsimile or Portable Document Format ("PDF") as an electronic mail attachment, and any signature transmitted by facsimile or PDF via electronic mail for the pur- pose of executing this Settlement Agreement shall be deemed an original signature for purposes of this Settlement Agreement. This Settlement Agreement may be executed in several counter- parts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument.
12.11 Binding Effect. This Settlement Agreement binds and inures to the benefit of the Parties hereto, their assigns, heirs, administrators, executors, and successors.
12.12 Agreement Execution Date. The date on which the final signature is affixed be- low shall be the Agreement Execution Date.
12.13 Communications Regarding the Settlement and the Action. Prior to the Court's entry of the Preliminary Approval Order, to the extent any non-party (other than the Court) in- quires about the Settlement, all Parties and their counsel shall not respond to such inquiry, except that the Company may (a) notify the other Defendants, their auditors and legal advisors about this Settlement and share this Settlement Agreement with them and (b) to the extent required by law or by the rules and regulations of the New York Stock Exchange, the Company may disclose the existence and terms of this Settlement. Nothing in this Section 12.13 shall prevent Class Counsel from discussing the Settlement with any of the Named Plaintiffs or counsel representing any of the Named Plaintiffs.
12.14 Confirmatory Document Discovery. The Parties agree that, upon execution of the Settlement Agreement, Plaintiffs will commence appropriate confirmatory document discov- ery sufficient to confirm the facts and positions set forth by the Parties in their briefing and at mediation. The Confirmatory Document Discovery will be subject to a confidentiality agree-
CLASS ACTION SETTLEMENT AGREEMENT 22 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 24 of 77. PageID #: 6189
may disclose the existence and terms of this Settlement. Nothing in this Section 12.13 shall prevent Class Counsel from discussing the Settlement with any of the Mamed Plaintiffs• or counsel representing any of the Aranied Plaintiffs.
12.14 Confirmatory Document Discovery. The Parties agree that, upon execution of the Settlement Agreement, Plaintiffs will commence appropriate confirmatory document discovery sufficient to confirm the facts and positions set forth by the Parties in their briefing and at mediation. The Confirmatory Document Discovery will be subject to a confidentiality agreement between the Parties, which will provide, among other things, that the d.octunents to be produced'will be used for the sole purpose of confirming facts and positions set forth by the Parties in their briefing and at mediation, that they will trot be disseminated to anyone other than Class Counsel absent court order to the contrary, that they will not be used for any purpose other than to confirm the facts and positions set forth by the Patties in their briefing and at mediation, and that the documents and all copies thereof will be promptly returned or destroyed following the filing of the motion for the Preliminary Approval Order, and all documents and copies thereof (and the information contained therein) will not be disclosed to any other person and for any other reason.
IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement on the dates set forth below.
FOR. THE PLA1 5:
Dated: B 'y. Edwin J. Mills STULL, STULL .• "RODY 6 East 45"' Street New York, NY 10017 (212) 687-7230
Dated: By: Edward W. Ciolko BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 (610) 667-7706
Co-Lead Counsel for Plaintiffs
CLASS ACTION SETTLEMENT AGREEMENT 23 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 25 of 77. PageID #: 6190
ment between the Parties, which will provide, among other things, that the documents to be pro- duced will be used for the sole purpose of confirming facts and positions set forth by the Parties in their briefing and at mediation, that they will not be disseminated to anyone other than Class Counsel absent court order to the contrary, that they will not be used for any purpose other than to confirm the facts and positions set forth by the Parties in their briefing and at mediation, and that the documents and all copies thereof will be promptly returned or destroyed following the filing of the motion for the Preliminary Approval Order, and all documents and copies thereof (and the information contained therein) will not be disclosed to any other person and for any oth- er reason.
IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement on the dates set forth below.
FOR THE PLAINTIFFS:
Dated: By: Edwin J. Mills STULL, STULL & BRODY 6 East 45d' Street New York, NY 10017 (212) 687-7
Dated: g l ^t7 ` o^D By: Edward W. Ciolko BARROWAY TOPAZ KESSLER MELT- ZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 (610)667-7706
Co-Lead Counsel for Plaintiffs
CLASS ACTION SETTLEMENT AGREEMENT 23 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 26 of 77. PageID #: 6191
FOR THE DEFENDANTS:
Dated: 01 6 C20 /p / n M. Newman, Jr. leoffrey J. Riffs JONES DAY North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190 (216) 586-3939
Attorneys for Defendants National City Corporation, National City Bank, Adminis- trative Committee of the National City Sav- ings and Investment Plan, David A. Da- berko, and Jon N. Couture
CLASS ACTION SETTLEMENT AGREEMENT 24 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 27 of 77. PageID #: 6192
EXHIBITS TO THE SETTLEMENT AGREEMENT
Exhibits
A Preliminary Approval Order
1. Notice 2. Summary Notice
B Judgment
C Plan of Allocation Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 28 of 77. PageID #: 6193
EXHIBIT A Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 29 of 77. PageID #: 6194
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, APPROVING FORM AND MANNER OF CLASS NOTICE AND SETTING DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT
This Action involves claims for alleged violations of the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. §§ 1001, et seq. ("ERISA"), with respect to the
National City Savings And Investment Plan (the "Plan ").
The terms of the Settlement are set out in the Class Action Settlement Agreement fully executed as of August 20, 2010 (the "Agreement" or "Settlement Agreement"), by counsel on behalf of the Named Plaintiffs and the Defendants. l
Pursuant to Named Plaintiffs' Motion for Preliminary Approval, on , the
Court preliminarily considered the Settlement to determine, among other things, whether the
Settlement is sufficient to warrant the issuance of notice to members of the proposed Settlement
Class. Upon reviewing the Settlement Agreement and the matter having come before the Court on , it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1 Capitalized and Italicized terms not otherwise defined in this Order shall have the same meaning as ascribed to them in the Settlement Agreement fully executed as of August 20, 2010. Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 30 of 77. PageID #: 6195
1. Class Findings: Solely for the purposes of the Settlement, the Court finds that the requirements of the Federal Rules of Civil Procedure, the Constitution of the United States, the Rules of the Court and any other applicable law have been met as to the Settlement Class defined in paragraph 2 below, in that:
(a) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. CIV. P. 23(a)(1), the Settlement Class is ascertainable from records kept with respect to the Plan and from other objective criteria, and that the members of the Settlement
Class are so numerous that their joinder before the Court would be impracticable.
(b) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(2), there are one or more questions of fact and/or law common to the Settlement Class.
(c) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(3), the claims of the Named Plaintiffs are typical of the claims of the Settlement Class.
(d) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(4), the Named Plaintiffs will fairly and adequately protect the interests of the Settlement Class in that: (i) the interests of the Named Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Settlement Class, (ii) there appear to be no conflicts between or among the Named Plaintiffs and the Settlement Class, and
(iii) the Named Plaintiffs and the members of the Settlement Class are represented by qualified, reputable counsel who are experienced in preparing and prosecuting large, complex ERISA class actions.
2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 31 of 77. PageID #: 6196
(e) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. C[v. P. 23(b)(1), the prosecution of separate actions by individual members of the Settlement Class would create a risk of. (i) inconsistent or varying adjudications as to individual Settlement Class members that would establish incompatible standards of conduct for the parties opposing the claims asserted in this Action and (ii) adjudications as to individual
Settlement Class members that would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications, or substantially impair or impede the ability of such persons to protect their interests.
(f) The Court preliminarily finds for purposes of settlement only, that, as required by FED. R. Civ. P. 23(g), Co-Lead Counsel are capable of fairly and adequately representing the interests of the Settlement Class, in that Co-Lead Counsel (i) have done appropriate work identifying and investigating potential claims in the action, (ii) are experienced in handling ERISA class actions, and (iii) have committed the necessary resources to represent the Settlement Class.
2. Class Certification — The Court, in conducting the settlement approval process required by FED. R. Civ. P. 23 certifies, for purposes of settlement only, the following class under FED. R. Civ. P. 23(b)(1) (the "Settlement Class"):
All current and former participants and beneficiaries of the National City Savings and Investment Plan (the "Plan") (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan held interests in any of the mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan at any time during the period March 25, 2002 to December 31, 2009, inclusive.
3 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 32 of 77. PageID #: 6197
The Court appoints the Named Plaintiffs as representatives for the Settlement Class and
Co-Lead Counsel as counsel for the Named Plaintiffs and the Settlement Class under Fed R. Civ
P. 23(g)(1). Any certification of a preliminary Settlement Class pursuant to the terms of the
Settlement Agreement shall not constitute and does not constitute, and shall not be construed or used as an admission, concession, or declaration by or against Defendants, that (except for the purposes of the Settlement) this Action or any other action is appropriate for class treatment under FED. R. Civ. P. 23 or any similar federal or state class action statute or rule.
3. Preliminary Findings Regarding Proposed Settlement — The Court preliminarily finds that (i) the proposed Settlement resulted from extensive arm's-length negotiations, (ii) the Settlement Agreement was executed only after Co-Lead Counsel had conducted appropriate investigation and fact-finding discovery regarding the strengths and weaknesses of Plaintiffs' claims, (iii) Co-Lead Counsel have substantial experience in ERISA class action cases and Co-Lead Counsel concluded that the proposed Settlement is fair, reasonable and adequate, and (iv) the proposed Settlement is sufficiently fair, reasonable and adequate to warrant sending notice of the proposed Settlement to the Settlement Class. Having considered the essential terms of the Settlement Agreement under the recommended standards for preliminary approval of settlements as set forth in relevant jurisprudence, the Court finds that those whose claims would be settled, compromised, dismissed and/or released pursuant to the
Settlement must be given notice and an opportunity to be heard regarding final approval of the
Settlement and other relevant matters.
4. Fairness Hearing — A hearing is scheduled for at
—.m. (the "Fairness Hearing') to determine, among other things:
• Whether the Settlement merits final approval as fair, reasonable and adequate;
4 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 33 of 77. PageID #: 6198
• Whether the Action should be dismissed with prejudice pursuant to the terms of
the Settlement;
• Whether the notice method proposed by the Parties: (i) constitutes the best
practicable notice, (ii) constitutes notice reasonably calculated, under the
circumstances, to apprise members of the Settlement Class of the pendency of the
litigation, their right to object to the Settlement, and their right to appear at the
Fairness Hearing, (iii) is reasonable and constitutes due, adequate, and sufficient
notice to all persons entitled to notice and (iv) meets all applicable requirements
of the Federal Rules of Civil Procedure and any other applicable law;
• Whether Co-Lead Counsel adequately represented the Settlement Class for
purposes of entering into the Settlement;
• Whether the proposed Plan of Allocation should be approved; and
• Whether any motion(s) for attorneys' fees and reimbursement of expenses and
Case Contribution Awards to the Named Plaintiffs is fair and reasonable and
should be approved.
5. Class Notice — The Named Plaintiffs and Co-Lead Counsel have presented to the
Court a proposed form of Class Notice, appended hereto as Exhibit 1, and a Summary Notice appended hereto as Exhibit 2. The Court finds that such forms fairly and adequately: (a) describe the terms and effect of the Settlement Agreement, the Settlement and the Plan of
Allocation, (b) notify the Settlement Class that Co-Lead Counsel will seek for themselves and for
Class Counsel attorneys' fees and reimbursement of expenses from the Settlement Fund up to limits stated therein and for Case Contribution Awards up to $7,500 for the two Co-Lead
Plaintiffs and $2,000 per each remaining Named Plaintiff for their service in such capacities, (c)
5 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 34 of 77. PageID #: 6199
give notice to the Settlement Class of the time and place of the Fairness Hearing, and (d) describe how the recipients of the Class Notice may object to any of the relief requested. Named
Plaintiffs and Co-Lead Counsel have proposed the following manner of communicating the notice to members of the Settlement Class, and the Court finds that such proposed manner is the best notice practicable under the circumstances. Accordingly, the Court directs that Co-Lead
Counsel shall:
• By no later than , 2010, cause the Notice of Class Action Settlement
in the form of Exhibit 1 hereto, with such non-substantive modifications thereto
as may be agreed upon by the Parties, to be mailed by first-class mail, postage
prepaid, to the last known address of each member of the Settlement Class who
can be identified by reasonable effort. In connection with Class Notice, the
Company shall request as soon as reasonably possible that records reasonably
available in computer readable format sufficient to reflect the names and last
known addresses of members of the Settlement Class be made available from the
Plan to Co-Lead Counsel to be used solely for purposes of this Settlement. The
names and addresses Co-Lead Counsel obtains pursuant to this Order shall be
used solely for the purpose of providing notice of this Settlement and for no other
purpose.
• By no later than , 2010, cause the Summary Notice in the form
appended hereto as Exhibit 2 to be published in Business Wire.
6. Objections to Settlement — Any member of the Settlement Class who wishes to object to the fairness, reasonableness or adequacy of the Settlement, to any term of the Settlement
Agreement, to the Plan of Allocation, to the proposed award of attorneys' fees and expenses or to
6 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 35 of 77. PageID #: 6200
the request for Case Contribution Awards for the Named Plaintiffs may file an objection. An objector must file with the Court Clerk a statement of his, her, or its objection(s), specifying the reason(s), if any, for each such objection, including any legal support and/or evidence that such objector wishes to bring to the attention of the Court or introduce in support of such objection, as well as information sufficient to show that the objector is a member of the Settlement Class. The objector must also mail copies of the objection and all supporting law and/or evidence to Co-
Lead Counsel and to counsel for the Defendants. The addresses for filing objections with the
Court and service on counsel are as follows:
For Filing:
Clerk of the Court, United States District Court for the Northern District of Ohio (Eastern Division) Carl B. Stokes United States Court House 801 West Superior Avenue Cleveland, Ohio 44113-1838 Re: Case No. 1:08-nc-70000
To Co-Lead Counsel:
STULL, STULL & BRODY BARROWAY TOPAZ Attn: Edwin J. Mills, Esq. KESSLER MELTZER & Michael J. Klein, Esq. CHECK, LLP 6 East 45th Street Attn: Edward W. Ciolko, Esq. New York, NY 10017 Mark K. Gyandoh, Esq. 280 King of Prussia Road Radnor, PA 19087
To Defendants' Counsel:
JONES DAY Attn: John M. Newman Jr., Esq. Geoffrey J. Ritts, Esq. North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190
7 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 36 of 77. PageID #: 6201
The objector or his, her, or its counsel (if any) must effect service of copies of the objection on counsel listed above and file it with the Court by no later than If an objector hires an attorney to represent him, her, or it for the purposes of making such objection pursuant to this paragraph, the attorney must both effect service of a notice of appearance on counsel listed above and file it with the Court by no later than . Any member of the Settlement Class or other person who does not timely file and serve a written objection complying with the terms of this paragraph shall be deemed to have waived, and shall be foreclosed from raising, any objection to the Settlement (in this proceeding, on any appeal or in any other proceedings), and any untimely objection shall be barred absent an Order from the
Court.
7. Appearance at Fairness Hearing — Any objector who files and serves a timely and valid written objection in accordance with paragraph 6 above may also appear at the
Fairness Hearing either in person or through qualified counsel retained at the objector's expense.
Objectors or their attorneys intending to appear at the Fairness Hearing must effect service of a notice of intention to appear setting forth, among other things, the name, address, and telephone number of the objector (and, if applicable, the name, address, and telephone number of the objector's attorney), and information sufficient to show that the objector is a member of the
Settlement Class, on Co-Lead Counsel and Defendants' counsel (at the addresses set out above) and file it with the Court Clerk by no later than . Any objector who does not timely file and serve a notice of intention to appear in accordance with this paragraph shall not be permitted to appear at the Fairness Hearing, except by Order of the Court.
8. Class Notice Expenses — The expenses of printing and mailing and publishing all notices required hereby shall be paid from the Settlement Fund.
8 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 37 of 77. PageID #: 6202
9. Service of Papers — Defendants' counsel and Co-Lead Counsel shall promptly furnish each other with copies of any and all objections that come into their possession.
10. Termination of Settlement — This Order shall become null and void, ab initio, and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions as of the February 9, 2010, if the Settlement is terminated in accordance with the terms of the Settlement Agreement.
11. Use of Order — This Order is not admissible as evidence for any purpose against
Defendants in any pending or future litigation involving any of the Parties. This Order shall not be construed or used as an admission, concession, or declaration by or against Defendants of any fault, wrongdoing, breach, or liability and Defendants specifically deny any such fault, breach, liability or wrongdoing. This Order shall not be construed or used as an admission, concession, or declaration by or against Plaintiffs or the Settlement Class that their claims lack merit or that the relief requested in the Action is inappropriate, improper or unavailable. This Order shall not be construed or used as an admission, concession, declaration or waiver by any party of any arguments, defenses, or claims he, she, or it may have, including, but not limited to, any objections by Defendants to class certification, in the event that the Settlement Agreement is terminated. Moreover, the Settlement Agreement and any proceedings taken pursuant to the
Settlement Agreement are for settlement purposes only. Neither the fact of, nor any provision contained in the Settlement Agreement or its exhibits, nor any actions taken thereunder shall be construed as, offered into evidence as, received in evidence as, and/or deemed to be evidence of a presumption, concession, or admission of any kind as to the truth of any fact alleged or validity of any defense that has been, could have been, or in the future might be asserted.
9 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 38 of 77. PageID #: 6203
12. Jurisdiction — The Court hereby retains jurisdiction for purposes of implementing the Settlement, and reserves the power to enter additional orders to effectuate the fair and orderly administration and consummation of the Settlement as may from time to time be appropriate, and to resolve any and all disputes arising thereunder.
13. Bar Order. Pending final determination of whether the Settlement should be approved, the Named Plaintiffs, the Plan, the Plan's fiduciaries, and all members of the
Settlement Class are each hereby barred and enjoined from instigating, instituting, commencing, maintaining or prosecuting any action in any court or tribunal that asserts any Released Claim against any Released Party.
14. Continuance of Hearing — The Court reserves the right to continue the Fairness
Hearing without further written notice.
SO ORDERED this day of , 2010.
HON. SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE
10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 39 of 77. PageID #: 6204
EXHIBIT I Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 40 of 77. PageID #: 6205
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION SECURITIES, DERIVATIVE & ERISA JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
NOTICE OF CLASS ACTION SETTLEMENT TO: ALL CURRENT AND FORMER PARTICIPANTS AND BENEFICIARIES OF THE NATIONAL CITY SAVINGS AND INVESTMENT PLAN (THE "PLAN") (a) FOR WHOSE INDIVIDUAL ACCOUNTS THE PLAN PURCHASED AND/OR HELD INTERESTS IN THE NATIONAL CITY STOCK FUND AT ANY TIME DURING THE PERIOD SEPTEMBER 5, 2006 TO DECEMBER 31, 2008, INCLUSIVE; OR (b) WHOSE INDIVIDUAL ACCOUNTS IN THE PLAN HELD INTERESTS IN ANY OF THE ALLEGIANT FUNDS (AS DEFINED BELOW) AT ANY TIME DURING THE PERIOD MARCH 25, 2002 TO DECEMBER 31, 2009, INCLUSIVE ("SETTLEMENT CLASS"). PLEASE READ THIS NOTICE CAREFULLY. A FEDERAL COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER. YOU HAVE NOT BEEN SUED. YOUR LEGAL RIGHTS MIGHT BE AFFECTED IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS DEFINED ABOVE. United States District Judge Solomon Oliver, Jr., of the United States District Court for the Northern District of Ohio (Eastern Division) (the "Court") has preliminarily approved a proposed settlement (the "Settlement") of a class action lawsuit brought under the Employee Retirement Income Security Act of 1974 ("ERISA"). The Settlement will provide for payments to the Plan and for allocation of those payments to the accounts of members of the Settlement Class who had portions of their Plan accounts invested in National City Corporation ("National City") common stock and/or in mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan (the "Allegiant Funds"). The Settlement is summarized below. The Court has scheduled a Fairness Hearing to consider the Named Plaintiffs' Motion for Final Approval of the Settlement and Class Counsel's Motion for Attorneys' Fees, Reimbursement of Expenses and Case Contribution Awards for the Named Plaintiffs. That hearing has been scheduled for , in the Courtroom of Judge Oliver, at the Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113-1838. Any objections to the Settlement or the Motion for Attorneys' Fees, Reimbursement of Expenses and Case Contribution Awards for the Named Plaintiffs must be served in writing on Class Counsel identified on Page 9 of this Notice, and on Defendants' attorneys, who are also identified on Page 9 of this Notice. The procedure for objecting is described below. This Class Notice contains summary information with respect to the Settlement. The terns and conditions of the Settlement are set forth in a Class Action Settlement Agreement (the "Settlement Agreement"). Capitalized terms used in this Class Notice but not defined in this Class Notice have the meanings assigned to them in the Settlement Agreement. The Settlement Agreement, and additional information with respect to this lawsuit and the Settlement, is available at an Internet site dedicated to the Settlement, www. corn. PLEASE READ THIS CLASS NOTICE CAREFULLY AND COMPLETELY. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS TO WHOM THIS CLASS NOTICE IS ADDRESSED, THE SETTLEMENT WILL AFFECT YOUR RIGHTS. YOU ARE NOT BEING SUED. YOU DO NOT HAVE TO APPEAR IN COURT. YOU DO NOT HAVE TO HIRE AN ATTORNEY. IF YOU ARE IN FAVOR OF THE SETTLEMENT, YOU DO NOT HAVE TO DO ANYTHING. IF YOU DISAPPROVE, YOU MAY OBJECT TO THE SETTLEMENT BY FOLLOWING THE PROCEDURES DESCRIBED BELOW. Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 41 of 77. PageID #: 6206
YOUR LEGAL RIGHTS AND OPTIONS VNDER'THE SETTLEMENT
YOU ARE NOT REQUIRED If the Settlement is approved by the Court and you are a member of the Settlement Class, you will TO DO ANYTHING. not have to do anything to receive a payment. The portion, if any, of the Settlement Fund to be allocated to you will be calculated as part of the implementation of the Settlement. NO ACTION IS NECESSARY If you are currently participating in the Plan and are a member of the Settlement Class, any share of the TO RECEIVE A PAYMENT. Settlement Fund to which you are entitled will be deposited into your Plan account. If you no longer are a Plan participant but are a member of the Settlement Class, any share of the Net Proceeds to which you are entitled will be deposited in a Plan account that will be established for you, if necessary, and you will be notified of such account. YOU MAY OBJECT TO THE If you wish to object to any part of the Settlement, you may (as discussed below) write to the Court SETTLEMENT BY and counsel identified on Page 9 of this Class Notice about why you object to the Settlement.
YOU MAY ATTEND THE If you submit a written objection to the Settlement to the Court and counsel before the Court- FAIRNESS HEARING TO BE approved deadline, you may (but do not have to) attend the Fairness Hearing and present your HELD ON objections to the Court. You may attend the Fairness Hearing even if you do not file a written objection, but you will be allowed to speak at the Fairness Hearing only if you file written comments in advance of the Fairness Hearing and file a notice of intention to appear.
• These rights and options — and the deadlines to exercise them — are explained in this Class Notice. • The Court still has to decide whether to approve the Settlement. Payments will be made only if the Court approves the Settlement and that approval is upheld in the event of any appeal. Further information regarding this litigation and this Class Notice may be obtained by contacting Class Counsel, who are: STULL, STULL & BRODY BARROWAY TOPAZ KESSLER Attn: Edwin J. Mills, Esq. MELTZER & CHECK, LLP Michael J. Klein, Esq. Attn: Edward W. Ciolko, Esq. 6 East 45th Street Mark K. Gyandoh, Esq. New York, NY 10017 280 King of Prussia Road Radnor, PA 19087
Class Counsel has established a toll-free phone number to receive your comments and questions: (XXX) XXX-XXXX. You may also send an email to @ com.
_ WHAT HI T NOTICE- S OTIC CONTAINS C NT S
SUMMARY OF SETTLEMENT 3 BASIC INFORMATION 3 1. Why Did I Get This Notice Package? 3 2. What is the Action about? 4 3. Why is this case a class action? 5 4. Why is there a Settlement? 5 5. How do I know whether I am part of the Settlement? 5 THE SETTLEMENT BENEFITS — WHAT YOU GET 5 6. What does the Settlement provide? 5 7. How much will my payment be? [Plan of Allocation] 6 8. How can I get a payment? 7 9. When would I get my payment? 8 10. Can I opt out of the Settlement? 8 THE LAWYERS REPRESENTING YOU 8 13. How do I tell the Court if I do not like the Settlement or the Motion for attorneys' fees, reimbursement of expenes and named plaintiffs' case contribution awards? 8
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 2 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 42 of 77. PageID #: 6207 THE FAIRNESS HEARING 9 14. When and where will the Court decide whether to approve the Settlement? 9 15. Do I have to come to the Fairness hearing? 9 16. May I speak at the Fairness hearing? 9 IF YOU DO NOTHING 10 17. What happens if I do nothing at all? 10 GETTING MORE INFORMATION 10 18. Are there more details about the Settlement? 10
SUMMARY OF SETTLEMENT This litigation (the "Action") is a consolidated class action in which Named Plaintiffs allege that the Defendants breached fiduciary duties owed to the participants in and beneficiaries of the Plan under ERISA arising from the Plan's investments in the National City Stock Fund (consisting primarily of National City common stock) and the Plan's investment in Allegiant Funds (proprietary mutual funds offered by a National City subsidiary), during certain time periods. Copies of the Consolidated Complaint and other documents filed in the Action are available at www. com or from Class Counsel. A Settlement Fund consisting of forty-three million dollars ($43,000,000.00) in cash is being established in the Action. The net amount in the Settlement Fund, including accrued interest earned on the Settlement Fund but less any taxes, expenses, approved attorneys' fees and expenses and compensation to the Named Plaintiffs, will be paid to the Plan and then be allocated to Settlement Class members according to a Plan of Allocation to be approved by the Court. STATEMENT OF POTENTIAL OUTCOME OF THE ACTION Plaintiffs face an uncertain outcome if this Action continues. Defendants strongly dispute the claims asserted in the Action. When the agreement in principle was reached to settle this case, Defendants had pending before the Court a motion to dismiss which, if granted, would have resulted in no recovery either to the Named Plaintiffs or to members of the Settlement Class. Even if that motion to dismiss had been denied and Plaintiffs' case proceeded to trial, Plaintiffs could have faced a judgment or verdict greater or less than $43 million, or no recovery at all. The Named Plaintiffs and the Defendants disagree on liability, and dispute the amount that would be recoverable even if the Plaintiffs were to prevail at trial. The Defendants have denied and continue to deny all claims and contentions by the Named Plaintiffs. The Defendants deny that they are liable to the Class, and that the Class or the Plan has suffered any damages for which the Defendants could be held legally responsible. Nevertheless, the Defendants have considered the uncertainty and risks inherent in any litigation, particularly in a complex case such as this, and have concluded that it is desirable that the Action be fully and finally settled on the terms and conditions set forth in the Settlement Agreement. STATEMENT OF ATTORNEYS' FEES AND COSTS SOUGHT IN THE ACTION Class Counsel will apply to the Court for an order awarding attorneys' fees not in excess of thirty percent (30%) of the amount recovered in the Settlement, plus reimbursement of expenses. Any amount awarded will be paid from the proceeds of the Settlement Fund. Defendants take no position on this application. WHAT WILL THE NAMED PLAINTIFFS GET? The Named Plaintiffs will share in the allocation of the Net Proceeds paid to the Plan on the same basis as all other members of the Settlement Class. In addition, the Named Plaintiffs will ask the Court to award up to $7,500 to each of the two Co-Lead Plaintiffs and up to $2,000 to each of the additional ten Named Plaintiffs in recognition of their representation of the Settlement Class. Any such compensation will be paid solely from the Settlement Fund. BASIC INFORMATION i 1. WHY, DID I:GET;THIS NOTICE,PACKAGET
You or someone in your family may have been a participant in or beneficiary of the Plan at some time between March 25, 2002 and December 31, 2009. The Court directed that this Class Notice be sent to you because, if you fall within that group, you may be a member of the Settlement Class and thus may have a right to know about the Settlement and the options available to you regarding the Settlement, before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and after any objections and appeals are resolved, the net amount of the Settlement Fund will be paid to the Plan and then allocated among Settlement Class members according to a Plan of Allocation. This Class Notice describes the Action, the Settlement, the proposed Plan of Allocation, your legal rights, what benefits are available, who is eligible for them and how to get them.
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. Com. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 3 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 43 of 77. PageID #: 6208 The Court in charge of this case is the United States District Court for the Northern District of Ohio (Eastern Division). The persons who sued are called "Named Plaintiffs," and the people they sued are called "Defendants." The Named Plaintiffs are Sharon A. Deucher, Deborah Douglas, James Elsinghorst, Barbara Grosick, Charles C. Gunning, Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr., George Rithianos, Loretta D. Rogers, Robert Steinberg, and Ella R. Whitlow. James Elsinghorst and Barbara Grosick were appointed as Co-Lead Plaintiffs by the Court by Order dated May 12, 2008 and are referred to herein as "Co-Lead Plaintiffs." The Defendants are National City Corporation ("National City" or the "Company"), National City Bank, the Board of Directors of National City Corporation, the Administrative Committee of the National City Savings and Investment Plan, David A. Daberko, and Jon N. Couture.
2. WHAT IS THE ACTION ABOUT?
The Consolidated Complaint for Violations of ERISA was filed on June 26, 2008 on behalf of the Plan to recover losses to the Plan allegedly caused by alleged breaches of fiduciary duty under ERISA. Named Plaintiffs allege that Defendants violated ERISA by, among other things, (1) permitting the Plan to purchase and hold shares of National City common stock from September 5, 2006 to December 31, 2008, inclusive, when it is alleged that Defendants knew or should have known it was imprudent to do so and (2) by permitting the Plan to purchase and hold shares of certain proprietary mutual funds called Allegiant Funds offered by the Company from March 25, 2002 to December 31, 2009 when it is alleged that offering Allegiant Funds as investment alternatives in the Plan violated ERISA. Participants in the Plan were able to allocate their account balances among various investment funds, including a fund primarily invested in National City common stock (the "National City Stock Fund") and certain Allegiant Funds. Many Plan participants chose to have contributions to the Plan invested in the National City Stock Fund, Allegiant Funds or both. The Action claims that, under ERISA, the Defendants owed fiduciary duties of loyalty, care and prudence to the Plan, and that they violated those duties in connection with the Plan's investments in National City stock and Allegiant Funds. Specifically, Named Plaintiffs allege that (1) National City stock was an imprudent investment during the relevant period as a result of National City's massive losses in connection with subprime lending, construction loans, home equity loans and other highly risky lending practices; (2) Defendants allowed the Plan to maintain and augment its investment in National City stock despite their actual or constructive knowledge of National City's alleged problems, as described above; (3) Defendants allegedly disseminated inaccurate and misleading material information to Plan participants regarding investment of Plan assets in National City stock and, additionally, withheld material information important in making informed investment decisions; (4) Defendants, because of their positions as corporate insiders with a stake in the Company (monetarily through National City equity ownership and personally through their positions at the Company) had an interest in withholding information concerning National City's alleged business and operational problems; (5) Defendants allowed the Plan to invest in Allegiant Funds and to purchase products and services from National City's subsidiaries and affiliates on terms, and under circumstances, prohibited by ERISA; and (6) Defendants knew or should have known that the Plan was engaged in transactions which constituted sales or exchanges of property between the Plan and parties-in-interest in violation of ERISA. THE DEFENSES IN THE ACTION The Defendants deny that they have liability to the Plan or its participants or beneficiaries. If Defendants' pending motion to dismiss had been denied and if the Action were to continue, the Defendants would raise numerous defenses to liability, including that: • Defendants were not each fiduciaries of the Plan, or, to the extent any defendant was a fiduciary, his/her/its fiduciary duties did not extend to the matters at issue in the Action; • National City common stock was a prudent investment for the Plan and its participants; • Defendants fully and prudently discharged any fiduciary duties, including any disclosure duties under ERISA; and • Even if they failed to discharge any duty under ERISA, any such failure did not cause the Plan or its participants to suffer any loss. • They did not violate any law or breach any duty in offering the Allegiant Funds to Plan participants. THE ACTION HAS BEEN VIGOROUSLY LITIGATED Class Counsel has extensively investigated the allegations in the Action. Class Counsel has obtained and reviewed thousands of pages of documents, including Plan-governing documents and materials, Securities and Exchange Commission ("SEC") filings, press releases, public statements, news articles and other publications, discovery from other litigations, and other documents regarding the matters that the Complaint alleges made investment in National City stock an imprudent Plan investment. This Action was litigated by the Named Plaintiffs and Class Counsel for over two years before an agreement on settlement terms was reached. Plaintiff Elsinghorst filed his complaint against Defendants on January 10, 2008. Thereafter, six additional, substantially identical cases were filed. On April 8, 2008, the Court consolidated the then-filed ERISA cases and appointed James Elsinghorst and
QUESTIONS? CALL I-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 4 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 44 of 77. PageID #: 6209 Barbara Grosick as Co-Lead Plaintiffs and the firms of Stull, Stull & Brody and Barroway Topaz Kessler Meltzer & Check, LLP as Interim Class Counsel. On June 26, 2008, Named Plaintiffs filed a Consolidated Complaint for Violations of ERISA (the "Complaint") which superseded their previous complaints. On September 10, 2008, Defendants moved to dismiss Complaint, which Plaintiffs opposed. The Court had not yet ruled on Defendants' motion to dismiss when this Settlement was reached. SETTLEMENT DISCUSSIONS The proposed Settlement is the product of lengthy negotiations between Class Counsel and the Defendants' counsel, which negotiations were facilitated by a professional mediator. Throughout the negotiations, Class Counsel and Defendants' counsel were advised by individuals with expertise in the estimation of potential losses or damages in cases involving ERISA fiduciary liability.
3. WHY IS THIS CASE A CLASS ACTION?:
In a class action, one or more plaintiffs, called "class representatives" or "Named Plaintiffs," sue on behalf of people who have similar claims. All of these people who have similar claims collectively make up the "Class" and are referred to individually as "class members." One case resolves the issues for all Settlement Class members together. Because the wrongful conduct alleged in this Action affected a large group of people — tens of thousands of participants of the 401(k) plan during the relevant time period — in a similar way, the Named Plaintiffs filed this case as a class action.
4. WHY IS THERE A SETTLEMENT?
The parties settled this case after significant litigation had taken place. While Named Plaintiffs and Class Counsel believe their Action has merit, they recognize that the outcome was uncertain. Named Plaintiffs faced lengthy litigation on the merits of their claims, including motion practice, discovery, class certification proceedings, expert proof issues, trial and likely appeals. As in any litigation, the Named Plaintiffs faced an uncertain outcome. On the one hand, continuation of the case could result in a judgment greater than this Settlement. But continuing the case could also result in no recovery at all or a recovery less favorable than the Settlement. Based on these factors, Named Plaintiffs and Class Counsel have concluded that the proposed $43 million cash Settlement is in the best interests of all Settlement Class members.
5. HOW DO_ I KNOW WHETHER I AM PART OF THE SETTLEMENT? .
You are a member of the Settlement Class if you fall within the definition of the Settlement Class approved by the Court, which is: All current and former participants and beneficiaries of the National City Savings and Investment Plan (The "Plan") (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan held interests in any of the Allegiant Funds at any time during the period March 25, 2002 to December 31, 2009, inclusive. If you are a member of the Settlement Class, the amount of money you will receive, if any, will depend upon the amount of your loss as calculated in accordance with the Plan of Allocation described below. THE SETTLEMENT BENEFITS — WHAT YOU GET
6. WHAT DOES THE SETTLE MENT PROVIDE?
A Settlement Fund consisting of $43 million is being established in the Action. The net amount in the Settlement Fund, including interest, but less payment of, or establishment of reserves for, any taxes and Court-approved costs, attorneys' fees, and expenses, including fees and expenses of Class Counsel, the Settlement Administrator and any Court-approved Case Contribution Awards to be paid to the Named Plaintiffs, will be paid to the Plan and, after payment of expenses incurred in calculating, satisfying and administering the allocation, the remaining amount will be allocated to the Plan accounts of members of the Settlement Class according to a Plan of Allocation to be approved by the Court. If necessary, an account will be created for those members of the Settlement Class who no longer have Plan accounts. If the Settlement is approved by the Court, all Settlement Class members and anyone claiming through them shall be deemed to fully release the "Released Parties" from "Released Claims." The "Released Parties" are broadly defined, and include Defendants, any Person who served as a trustee or named or functional fiduciary of the Plan, and any director, officer, executive, employee or agent of National City, together with, for each of the foregoing, any predecessors, Successors-In-Interest, present and former Representatives, direct or indirect parents, affiliates and subsidiaries, QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 5 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 45 of 77. PageID #: 6210 insurers, re-insurers, consultants, accountants, auditors, administrators, investment advisors, financial advisors, investment bankers, underwriters, and any Person that controls, is controlled by, or is under common control with any of the foregoing. "Representatives" mean any representatives, attorneys, agents, directors, officers, executives or employees. "Successor-In-Interest" means a Person's estate, legal representatives, heirs, successors or assigns, including successors or assigns that result from corporate mergers or other structural changes. The "Released Claims" are also broadly defined and include any and all claims of any nature whatsoever (including claims for any and all losses, damages, demands, debts, obligations, costs, liabilities, benefits, rights, actions, judgments, suits, unjust enrichment, attorneys' fees, expert or consultant fees, disgorgement of fees, litigation costs, injunction, declaration, contribution, indemnification, matters and issues of any kind whatsoever or any other type or nature of legal or equitable relief), whether accrued or not, fixed or contingent, liquidated or unliquidated, whether known, unknown, or unsuspected, in law or equity, matured or unmatured, foreseen or unforeseen, whether class, individual or derivative in nature, whether based on United States federal, state or local statutory or common law or any other law, rule or regulation, whether foreign or domestic, as well as any claim or right obtained by assignment, brought by way of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise , in any court or other tribunal, arising out of or in any way related to, directly or indirectly, any or all of the acts, omissions, facts, matters, transactions or occurrences (i) that have been asserted in the Action against any of the Released Parties, (ii) that could have been asserted in the Action or in any forum by the Named Plaintiffs, members of the Settlement Class, or the Plan, or any of them or by their heirs, agents, executors, fiduciaries, administrators, beneficiaries, predecessors, successors or assigns (in their capacities as such), against any of the Released Parties, which arise out of or are related to (x) the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth or referred to in the Complaint, including without limitation any public statement, or any statement in any document relating to the Plan, by any Released Party during the Class Period, and (y) any purchase, sale, or retention of National City common stock or units of the National City Stock Fund in connection with the Plan during the Class Period, or (iii) that would be barred by principles of res judicata had the claims asserted in the Complaint been fully litigated and resulted in a Final judgment or order. The Parties intend and agree that the Releases contemplated by the Settlement shall be effective as a bar to any and all claims within the scope of their express terms and provisions that are currently unsuspected, unknown, or partially known to exist in their favor that might have affected their decision(s) with respect to the Settlement. Accordingly, the Parties have stipulated and agreed that by operation of the Judgment becoming Final, Named Plaintiffs shall have expressly waived, and each member of the Settlement Class and the Plan shall be deemed to have waived, and the Defendants shall have expressly waived, any and all rights and benefits respectively conferred upon them by the provisions of Section 1542 of the California Civil Code and all similar provisions of the statutory or common laws of any other State, Territory, or other jurisdiction. Section 1542 reads in pertinent part: A general release does not extend to claims that 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.
Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement Class and on behalf of the Plan, and the Defendants have acknowledged that the foregoing waiver of the provisions of Section 1542 of the California Civil Code and all similar provisions of the statutory or common law of any other State, Territory, or other jurisdiction was separately bargained for and that neither Named Plaintiffs, on the one hand, nor the Defendants, on the other, would enter into the Settlement Agreement unless it included a broad release of unknown claims. Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement Class and on behalf of the Plan, and the Defendants each expressly agree that all release provisions in this Settlement Agreement shall be given full force and effect in accordance with each and all of their express terms and provisions, including those terms and provisions relating to unknown, unsuspected, and future claims, demands, and causes of action. Named Plaintiffs assume for themselves, and on behalf of the Settlement Class, the Plan, and any party acting on behalf of the Plan or the Settlement Class, and the Defendants assume for themselves, the risk of his, her or its respective subsequent discovery or understanding of any matter, fact, or law, that if now known or understood, would in any respect have affected his, her, or its entering into the Settlement Agreement. The above description of the proposed Settlement is only a summary. The complete terms, including the definitions of the Released Parties and Released Claims, are set forth in the Settlement Agreement (including its exhibits), which may be obtained at a dedicated Settlement Internet site, www. com or by contacting Class Counsel listed on Page 9 below.
7; HOW MUCH WILL KY,-,PAYMENT BE? PLAN, ALLOCATION]
The Court has been asked to approve a Plan of Allocation which, first, divides the Net Proceeds into, in effect, two pools of money, one for the holders of National City Stock Fund units at any time between September 5, 2006 and December 31, 2008, inclusive (the "Stock Fund Proceeds"), and a separate and smaller pool of money for holders of Allegiant Funds at any time between March 25, 2002 and December 31, 2009, inclusive (the "Allegiant Fund Proceeds"). Because the potential damages attributable to the holding of National City Stock Fund units greatly exceed the potential losses attributable to the holdings of the Allegiant Funds, and also due to other factors relating to the strength and weaknesses of the different claims, the Plan of Allocation will provide that 96 % of the Net QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 6 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 46 of 77. PageID #: 6211 Proceeds will be distributed among holders of the National City Stock Fund units in the time period identified above and 4 % will be distributed among holders of Allegiant Funds during the time period identified above. Thus, and strictly by way of illustration, if the Net Proceeds amounts to $30 million, $28.8 million would be distributed among the above-described holders of National City Stock Fund units and $1.2 million would be distributed among the above identified holders of Allegiant Funds. Please note that if you held both National City Stock Fund units and Allegiant Funds during the time periods described above you are eligible to receive distributions from both pools of money, although you will ultimately receive only a single payment into your Plan account (or into a new account which will be established for you if you no longer have a Plan account).
Within each pool, the distribution will not be made on a per capita basis, that is, the pool of money will not be divided equally among all holders during the relevant time period. The distributions will, instead, be made in accordance with each holder's loss in connection with the holding of National City Stock Fund units or Allegiant Funds as the case may be. The rules for determining each holder's loss are set out in full in the Plan of Allocation (which is available online at or by calling Class Counsel at ) but those rules are summarized as follows: • For the National City Stock Fund claims, each Settlement Class member's "Stock Fund Net Loss" will be calculated by an agreed-upon third party administrator (the "Agreed Calculation Administrator"). For each Settlement Class member, his or her Net Loss will be equal to: (a) the dollar value, if any, of his or her account balance in the National City Stock Fund on September 5, 2006; plus (b) the dollar value, if any, of all purchases of interests in the National City Stock Fund for his or her account during the period from September 5, 2006 until December 31, 2008, as of the time of purchase(s); minus (c) the dollar value, if any, of all dispositions of interests in the Company stock in his or her account during the period from September 5, 2006 until December 31, 2008, as of the time of the disposition(s); minus (d) the dollar value of the balance in the Company stock remaining in his or her account on the close of business on December 31, 2008. • For the Allegiant Fund Claims, each Settlement Class member's "Allegiant Fund Weighted Dollar Average" shall be calculated by determining each Participant's average holdings in all Allegiant Funds during the Allegiant Fund Class Period, based upon each Participant's end of calendar quarter balance in each fund within the Allegiant Fund Class Period. • Each Settlement Class member's Stock Fund Net Loss will be aggregated to yield the total loss over the Class Period on a preliminary basis for the Stock Fund Claims. For purposes of aggregation, Settlement Class members who profited in their investment in the National City Stock Fund shall be deemed to have a Stock Fund Net Loss of zero. Each Settlement Class member's Allegiant Fund Weighted Dollar Average will be aggregated to yield the total weighted average Allegiant Fund balance over the Class Period on a preliminary basis for the Allegiant Fund Claims. • Each Settlement Class member's percentage of the total loss for the Stock Fund Claims and of the total weighted average balance for the Allegiant Fund Claims will be calculated by the Agreed Calculation Administrator. Applying those percentages to the Stock Fund Proceeds and Allegiant Fund Proceeds, respectively, the Agreed Calculation Administrator will calculate each Settlement Class members' shares of such proceeds. • All Settlement Class members whose preliminary share of either the Stock Fund Proceeds or the Allegiant Fund Proceeds is greater than zero but less than or equal to ten dollars ($10.00) will be deemed to have a Final Individual Dollar Recovery of zero for such proceeds. The Agreed Calculation Administrator will then recalculate the net loss percentage of those Settlement Class members whose preliminary share was greater than $10.00 for each of the Stock Fund Claims and the Allegiant Fund Claims, to arrive at each such Settlement Class member's final share of the Stock Fund Proceeds and the Allegiant Fund Proceeds. • Defendants in the Action shall be deemed to have a Final Individual Dollar Recovery of zero for both the Stock Fund Claims and the Allegiant Fund Claims.
Do not worry if you do not have records that show your Plan activity. If you are entitled to a share of the Net Proceeds, you will receive a statement showing the amount of your share. If you have questions regarding the allocation of the Settlement proceeds, please contact Class Counsel listed on Page 9 below.
8.. HOW CAN I GET, A PAYMENT?
You do not need to file a claim. If you are a Settlement Class member entitled to receive a share of the Settlement proceeds and you are a current Plan participant, your share will be deposited in your Plan account. If you are a Settlement Class member entitled to receive a share of the Settlement proceeds but are no longer a Plan participant, an account will be established for you in the Plan, and you will be notified of the account along with how to withdraw the proceeds. If you are a former Plan participant and have not provided the Plan with your current address, please contact Class Counsel who are listed on Page 9 below.
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 7 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 47 of 77. PageID #: 6212
9. WHEN WOULD I GET MY PAYMENT? T 4
The Settlement cannot be completed unless and until several events occur. These events include final approval of the Settlement by the Court, transfer of the Settlement payment to the Plan, and calculation of the amount of the Settlement proceeds owed to each Settlement Class member. If objections are made to the Settlement or appeals are taken by objectors from approval of the Settlement, this process may take a long time to complete, possibly several years. The Settlement Fund, however, will be invested in a secure, interest-bearing account, and the interest income will be included in the amount paid to the Plan and allocated to Settlement Class members. THERE WILL BE NO PAYMENTS IF THE SETTLEMENT AGREEMENT IS TERMINATED The Settlement Agreement may be terminated for several reasons, including if. (1) the Court does not approve, or materially modifies, the Agreement; or (2) the Court approves the Settlement Agreement but the approval is reversed or materially modified by an appellate court. If the Settlement Agreement is terminated, the Action will proceed as if the Settlement Agreement had not been entered into.
10. CAN I OPT OUT OF THE SETTLEMENT?
You do not have the right to exclude yourself from the Settlement. The Settlement Agreement provides for certification of the Settlement Class as a non-opt class action under Federal Rule of Civil Procedure 23(b)(1) and the Court has preliminarily determined that the requirements of that Rule have been satisfied. Thus, it is not possible for any Settlement Class member to exclude themselves from the Settlement. As a Settlement Class member, you will be bound by any judgments or orders that are entered in the Action for all claims that were or could have been asserted in the Action or are otherwise released under the Settlement. Although you cannot opt out of the Settlement, you can object to the Settlement. See Answer to Question No. 13 below. THE LAWYERS REPRESENTING YOU
DO ,I- ALAWYER IN,7H -jCASE? [ -< _
The Court has appointed the law firms of Stull, Stull & Brody and Barroway Topaz Kessler Meltzer & Check, LLP as Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense.
12. HOW WILL THEE LAWYERS, BE PAID?
Class Counsel will file a motion for the award of attorneys' fees of not more than thirty percent (30%) of the Settlement Fund, plus reimbursement of expenses incurred in connection with the prosecution of the Action. This motion will be considered at the Fairness Hearing described below.
13. HOW DO I TELL-THE COURT IF I DO NOT-LIKE`THE- SETTLEMENT ORTTHE MOTION, FOR ATTORNEYS' - FEES AND PRESENTATION OF EXPENSES AND NAMED PLAINTIFFS' CASE'CONTRIBUTION AWARDS?'
If you are a Settlement Class member, you can object to the Settlement, proposed fee and expense motion or Named Plaintiffs' case contribution awards. To object, you must send a letter or other writing stating that you object to the Settlement, attorneys' fee motion, and/or motion for Named Plaintiffs' Case Contribution Awards in In re National City Corporation Securities, Derivative & ERISA Litigation, Case No. 1:08-nc-70000. Be sure to include your name, address, telephone number, signature, a full explanation of all the reasons why you object to the Settlement and proof that you are a member of the Settlement Class. Your written objection must be served on the following counsel so that it is received by no later than , 2010:
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW, COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 8 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 48 of 77. PageID #: 6213 CLASS COUNSEL STULL, STULL & BRODY BARROWAY TOPAZ KESSLER Attn: Edwin J. Mills, Esq. MELTZER & CHECK, LLP Michael J. Klein, Esq. Attn: Joseph H. Meltzer, Esq. 6 East 45th Street Edward W. Ciolko, Esq. New York, NY 10017 Mark K. Gyandoh, Esq. 280 King of Prussia Road Radnor, PA 19087
DEFENDANTS' COUNSEL JONES DAY Attn: John M. Newman Jr., Esq. Geoffrey J. Ritts, Esq. North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190
You must also file your objection with the United States District Court for the Northern District of Ohio (Eastern Division) by . The address is: Clerk of the Court, Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113-1838. The objection must refer prominently to In re National City Corporation Securities, Derivative & ERISA Litigation, Case No. 1:08-nc- 70000. Your objection must be postmarked no later than 12010. THE FAIRNESS HEARING The Court will hold a hearing to decide whether to approve the Settlement as fair, reasonable and adequate (the "Fairness Hearing"). You may attend the Fairness Hearing, and you may ask to speak, but you do not have to attend.
14. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO''APPROVE THE SETTLEMENT?
The Court will hold the Fairness Hearing at a.m. on , 2010, at the United States District Court for the Northern District of Ohio (Eastern Division), Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113-1838, Courtroom _ or in the Courtroom then occupied by United States District Judge Solomon Oliver, Jr. The Court may adjourn the Fairness Hearing without further notice to the Class, so, if you plan to attend, you may want to confirm the date and time of the Fairness Hearing with Class Counsel before doing so. At the Fairness Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will also rule on the motion for attorneys' fees and reimbursement of expenses and for compensation to the Named Plaintiffs. It cannot be estimated how long these decisions of the Court will take or whether appeals will be taken.
15. DO I HAVE TO COME TO THE FAIRNESS HEARING?
No. You may come at your own expense or retain an attorney at your own expense to attend, but such attendance is not necessary. The Court will consider any written objections even if you do not attend the Fairness Hearing.
16. MA:::T-SPEAK AT THE -FAIRNESSJH
If you are a Settlement Class member, you or your attorney may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter or other writing stating "A Notice of Intention to Appear at Fairness Hearing in In re National City Corporation Securities, Derivative & ERISA Litigation, Case No. 1:08-nc-70000." Be sure to include your name, address, telephone number, and your signature. Your notice of intention to appear must be filed and served on the attorneys listed in the Answer to Question No. 13 above, so that it is received by , 2010, and must be filed with the Clerk of the Court at the address listed in the Answer to Question No. 13 no later than , 2010.
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT W W W. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 9 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 49 of 77. PageID #: 6214 IF YOU DO NOTHING
17. WHAT HAPPENS IF I DO NOTHING AT ALL?
If you do nothing and you are a Settlement Class member, you will share in the Settlement of the Action as described in the answer to question 7. GETTING MORE INFORMATION
18. ARE THERE MORE DETAILS ABOUT THE SETTLEMENT?
Yes. This Class Notice summarizes the proposed Settlement. The complete terms are set forth in the Settlement Agreement. You may obtain a copy of the Settlement Agreement by making a written request to Class Counsel listed on Page 9 above. Copies may also be obtained at a dedicated Settlement Internet site, www. com, by calling the toll-free number 1- (XXX)-XXX-XXXX or by sending an email to Ja, com. You are encouraged to read the complete Settlement Agreement. INJUNCTION
Pending final determination of whether the Settlement should be approved, the Court has ordered that Named Plaintiffs and all members of the Settlement Class are each barred and enjoined from instituting, instigating, commencing, maintaining or prosecuting any action in any court or tribunal that asserts any Released Claim against any Released Party.
PLEASE DO NOT CALL THE COURT, THE COURT CLERK'S OFFICE OR NATIONAL CITY.
DATED: , 2010 By order of the United States District Court for the Northern District of Ohio (Eastern Division)
QUESTIONS? CALL 1-(XXX)-XXX-XXXX TOLL FREE, OR VISIT WWW. COM. PLEASE DO NOT CALL THE COURT OR NATIONAL CITY WITH YOUR QUESTIONS. Page 10 of 10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 50 of 77. PageID #: 6215
EXHIBIT 2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 51 of 77. PageID #: 6216
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
SUMMARY NOTICE OF CLASS ACTION SETTLEMENT
TO: ALL CURRENT AND FORMER PARTICIPANTS AND BENEFICIARIES OF THE NATIONAL CITY SAVINGS AND INVESTMENT PLAN (THE "PLAN") (a) FOR WHOSE INDIVIDUAL ACCOUNTS THE PLAN PURCHASED AND/OR HELD INTERESTS IN THE NATIONAL CITY STOCK FUND AT ANY TIME DURING THE PERIOD SEPTEMBER 5, 2006 TO DECEMBER 31, 2008, INCLUSIVE; OR (b) WHOSE INDIVIDUAL ACCOUNTS IN THE PLAN HELD INTERESTS IN ANY OF THE MUTUAL FUNDS OF ALLEGIANT ASSET MANAGEMENT COMPANY (FORMERLY KNOWN AS "ARMADA FUNDS") OFFERED AS INVESTMENT ALTERNATIVES IN THE PLAN. (THE "ALLEGIANT FUNDS") AT ANY TIME DURING THE PERIOD MARCH 25, 2002 TO DECEMBER 31, 2009, INCLUSIVE ("SETTLEMENT CLASS").
PLEASE READ THIS NOTICE CAREFULLY. A FEDERAL COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION. YOU ARE NOT BEING SUED.
A Settlement has been preliminarily approved by a federal court in a consolidated class action lawsuit against National City Corporation ("National City" or the "Company"), certain of its former officers and directors and others alleging breaches of fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA"). All capitalized terms not otherwise defined in this Summary Notice of Class Action Settlement have the meaning provided in the Class Action Settlement Agreement (the "Settlement Agreement") available on the Settlement website identified in this notice. The Settlement will provide for a payment of $43 million to the Plan (minus Court-approved attorneys' fees, certain expenses and case contribution awards to the Named Plaintiffs), which will then be allocated to the accounts of participants of the Plan who had portions of their Plan accounts invested in National City common stock or fund units in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008 and to Plan participants who held Allegiant Funds in their Plan accounts at any time from March 25, 2002 to December 31, 2009. You will receive a payment if you qualify under a Court-approved Plan of Allocation. You do not need to send in a claim form or take any other action to participate in the Settlement. The United States District Court for the Northern District of Ohio (Eastern Division) authorized this Notice. Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 52 of 77. PageID #: 6217
WHO IS INCLUDED IN THE SETTLEMENT?
If you were a member of the Settlement Class as defined above than you are included in the Settlement automatically.
WHAT IS THIS CASE ABOUT?
The Named Plaintiffs claimed, among other things, that the Defendants breached their fiduciary duties under ERISA by allowing the investment of the Plan's assets in National City common stock or National City Stock Fund units during a time when they knew or should have known that such investment was imprudent and by other related acts, and that Defendants breached their fiduciary duties by allowing the Plan to invest in Allegiant Funds in violation of ERISA. All Defendants deny all wrongdoing.
WHAT DOES THE SETTLEMENT PROVIDE?
Defendants have agreed to create a Settlement Fund of $43 million to be divided among eligible Settlement Class Members after payment of attorneys' fees and expenses to Class Counsel and Case Contribution Awards to the Named Plaintiffs, and payment of other costs and expenses of the Settlement, including notice and Settlement administration, as the Court may allow. The Settlement Agreement and long-form Class Notice, available along with other related documentation and a list of Frequently Asked Questions at the website identified below, describes the details of the proposed Settlement. The Settlement releases certain claims relating to the investment of the Plan's assets in National City common stock or common stock fund units and claims related to the Plan's offering of Allegiant Funds during the time periods listed above.
HOW DO I RECEIVE A PAYMENT?
If you are a Settlement Class member and are entitled to a share of the Settlement Fund according to the Settlement Agreement, you are not required to do anything to receive a payment. The payment will be made directly to your Plan account(s). If you no longer are a participant in the Plan, a Plan account will be established for you and you will be notified of this account along with further instructions. If your address has changed since you closed your Plan account(s), please contact Class Counsel toll-free at (XXX) XXX-XXXX to advise of the change of address.
CAN I OBJECT TO OR OPT OUT OF THE SETTLEMENT?
You cannot opt out of the Settlement, but you may object to all or any part of the Settlement in accordance with the Class Notice. You will be bound by any judgments or orders that are entered in this Action, and if the Settlement is approved, you will be deemed to have released all of the Defendants from all claims that were or could have been asserted in this case.
The Court will hold a hearing in this case on , 2010 at A.M. in the Courtroom of United States District Judge Solomon Oliver, Jr., United States District Court for the Northern District of Ohio (Eastern Division), Carl B. Stokes United States Court House, 801 West Superior Avenue, Cleveland, Ohio 44113-1838, to consider whether to approve the
2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 53 of 77. PageID #: 6218
Settlement and any motion(s) by the lawyers representing Settlement Class members for attorneys' fees, reimbursement of expenses and Case Contribution Awards to the Named Plaintiffs, and for other case-related expenses. If approved, these amounts will be paid from the Settlement Fund. You may ask to speak at the hearing by filing a notice of your intention to appear, but you are not required to appear at the hearing.
HOW DO I GET MORE INFORMATION? This notice summarizes the proposed Settlement. If you are a Settlement Class member and would like to receive additional information or to receive a copy of the long form Class Notice, which more completely describes the Settlement and your rights thereunder (including your right to object to the Settlement), please call toll-free (XXX) XXX-XXXX or visit www.XOCXXXXXX.com.
3 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 54 of 77. PageID #: 6219
EXHIBIT B Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 55 of 77. PageID #: 6220
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
ORDER AND FINAL JUDGMENT
This Action came on for hearing on to determine the fairness of the proposed settlement (the "Settlement") which has been presented to the Court and which was the subject of this Court's Order Granting Preliminary Approval of Class Action Settlement (Doc.
). The issues having been duly heard and a decision having been duly reached,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:
Except as otherwise defined herein, all capitalized and/or italicized terms used in this
Order and Final Judgment shall have the same meanings as ascribed to them in the Class Action
Settlement Agreement ("Settlement Agreement") between Plaintiffs and Defendants.
1. The Court has jurisdiction over the subject matter of the Action and over all parties to the Action, including all members of the Settlement Class.
2. For the sole purpose of settling and resolving the Action, the Court certifies this action as a class action under FED. R. CIV. P. 23(a) and 23(b)(1). The Settlement Class is defined as:
All current and former participants and beneficiaries of the National City Savings and Investment Plan (the "Plan") (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 56 of 77. PageID #: 6221
individual accounts in the Plan held interests in any of the mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan (the "Allegiant Funds") at any time during the period March 25, 2002 to December 31, 2009, inclusive.
3. Named Plaintiffs Sharon A. Deucher, Deborah Douglas, James Elsinghorst,
Barbara Grosick, Charles C. Gunning, Robert Huenefeld, Rita Klabenesh, Rodolfo Ranallo, Jr.,
George Rithianos, Loretta D. Rogers, Robert Steinberg and Ella R. Whitlow (the "Named
Plaintiffs") are appointed as Settlement Class representatives, and Stull, Stull & Brody and
Barroway Topaz Kessler Meltzer & Check, LLP (collectively "Co-Lead Counsel") are appointed as counsel for the Named Plaintiffs and the Settlement Class pursuant to FED. R. Civ. P. 23(g).
4. The Court finds for the sole purpose of settling and resolving the Action that:
(a) The Settlement Class is so numerous that it is impractical to
bring all Settlement Class members before the Court individually. National City's
public statements represent that the Plan had over 41,150 Participants as of
December 31, 2003 (see Complaint 163 n.5), thus there are likely thousands of
Settlement Class members.
(b) The class allegations, which are denied by Defendants,
present common questions of law and/or fact, including:
(i) Whether the Defendants breached fiduciary
obligations to the Plan and participants by causing the Plan to offer National City
stock or the National City Stock Fund (used interchangeably herein) as an
investment option for the Plan at a time when the Defendants knew or should
have known that the stock was not a prudent investment for the Plan;
(ii) Whether the Defendants breached fiduciary
obligations to the Plan and its participants by causing the Plan to make and
2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 57 of 77. PageID #: 6222
maintain investments in National City stock, at such times when and on such
terms and conditions that it was not prudent to do so;
(iii) Whether the Defendants breached fiduciary
obligations to the Plan and its participants by providing incomplete and
inaccurate information to participants regarding the propriety of investing in
National City stock;
(iv) Whether certain Defendants breached fiduciary
obligations to the Plan and its participants by failing to prudently monitor other
appointed Defendants, such that the Plan and its participants' interests were not
adequately protected and served;
(v) Whether the Defendants breached fiduciary
obligations to the Plan and participants by causing the Plan to offer Allegiant
Funds on terms, and under circumstances, prohibited by ERISA; and
(v) Whether as a result of the alleged fiduciary breaches engaged in by the Defendants, the Plan and its participants and beneficiaries suffered losses.
(c) FED. R. Civ. P. 23(x)(3) requires that the claims of the
proposed representative plaintiffs be typical of the claims of the proposed class.
That requirement is satisfied where the claims of the proposed representative
plaintiffs arise from the same alleged course of conduct that gives rise to the
claims of the proposed class members, and where the claims are based on the
same legal theory. In the present case, the Named Plaintiffs allege that they were
Plan participants or beneficiaries during the Class Period with Plan accounts that
included investments in National City stock and/or Allegiant Funds, that the
3 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 58 of 77. PageID #: 6223
Plan's fiduciaries treated them and all other Plan participants alike, and that Plan-
wide relief is necessary and appropriate under ERISA. Under these
circumstances, for purposes of the Settlement only, and subject to the foregoing,
the claims asserted by the Named Plaintiffs are sufficiently typical of the claims
asserted by the Settlement Class as a whole to satisfy FED. R. Civ. P. 23(a)(3).
(d) The requirements of FED. R. Ov. P. 23(a)(4) are also
satisfied. The Court is satisfied that Co-Lead Counsel are qualified, experienced,
have represented and are further prepared to represent the Settlement Class to the
best of their abilities. For the purposes of this Settlement, the Court finds that the
Named Plaintiffs have no conflicting interests with absent members of the
Settlement Class.
(e) The Settlement Class satisfies the requirements of FED. R.
CIV. P. 23(a), and also the requirements of FED. R. Civ. P. 23(b)(1). Given the
Plan-representative nature of the Named Plaintiffs' breach of fiduciary duty
claims, there is a risk that prosecution of separate actions by individual members
of the Settlement Class could result in adjudications with respect to individual
Settlement Class members that would, as a practical matter, be dispositive of the
interests of the other members not parties to the adjudications or that would
substantially impair or impede their ability to protect their interestsand, there is
also a risk of inconsistent dispositions that might prejudice the Defendants. This
case is appropriate for class certification, for the purposes of this Settlement,
under FED. R. Civ. P. 23 (b)(1).
4 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 59 of 77. PageID #: 6224
(f) The Court has also considered each of the elements
required by FED. R. Civ. P. 23(g) in order to ensure that Co-Lead Counsel will
fairly and adequately represent the interests of the Settlement Class. Co-Lead
Counsel has done the work necessary to identify or investigate potential claims in
the Action, to investigate the allegations made in the Consolidated Complaint,
including interviewing witnesses, reviewing publicly available information,
reviewing documents and materials uncovered in their investigation and during
certain discovery and consulting with experts. Co-Lead Counsel has extensive
and successful experience in handling class actions and claims of the type asserted
in this Action. They have refined their allegations through a consolidated
amended pleading. Co-Lead Counsel have also demonstrated in connection with
the pending motion to dismiss (Doc. 32) extensive knowledge of the applicable
law. The Court concludes that Co-Lead Counsel have fairly and adequately
represented the interests of the Settlement Class.
(g) The Settlement Class has received proper and adequate
notice of the Settlement Agreement, the Fairness Hearing, Co-Lead Counsel's
motion for attorneys' fees and reimbursement of expenses and for the Named
Plaintiffs' Case Contribution Awards, and the Plan of Allocation, such notice
having been given in accordance with the Order Granting Preliminary Approval
of Class Action Settlement. Such notice included individual notice to all
members of the Settlement Class who could be identified through reasonable
efforts, as well as a summary notice via national business wire service, and
provided valid, due, and sufficient notice of these proceedings and of the matters
5 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 60 of 77. PageID #: 6225
set forth therein, and included information regarding the procedure for the making
of objections. Such notice fully satisfied the requirements of FED. R. Civ. P. 23
and the requirements of due process.
5. Pursuant to FED. R. Civ. P. 23(e), the Court hereby approves and confirms the
Settlement embodied in the Settlement Agreement as a fair, reasonable and adequate settlement and compromise of the Action, and more particularly finds:
(a) The Settlement was negotiated vigorously and at arm's-
length by counsel for the Defendants, on the one hand, and Co-Lead Counsel on
behalf of the Settlement Class, on the other;
(b) This Action settled after the Parties had fully briefed their
respective positions on Defendants' motion to dismiss, which was pending when
the settlement in principle was reached. The Settlement was also reached
following arm's-length negotiations among counsel with the assistance of an
experienced mediator. Co-Lead Counsel and Defendants had sufficient
information to evaluate the settlement value of the Action;
(c) If the Settlement had not been achieved, Named Plaintiffs
and Defendants faced the expense, risk, and uncertainty of extended litigation;
(d) The amount of the Settlement is fair, reasonable, and
adequate. The Settlement amount is within the range of settlement values
obtained in similar cases;
(e) At all times, Co-Lead Counsel and Named Plaintiffs have
acted independently of Defendants and in the interest of the Settlement Class; and,
6 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 61 of 77. PageID #: 6226
(f) The Court has duly considered any objections to the
Settlement that were filed.
6. The Court hereby approves the Settlement Agreement and orders that the
Settlement Agreement shall be consummated and implemented in accordance with its terms and conditions. [The Court has duly considered each objection that was filed to the proposed
Settlement, and each objection is hereby overruled.]
7. The Plan of Allocation is approved as fair and reasonable, and the Parties are directed to administer the Plan of Allocation in accordance with its terms and provisions.
8. Neither the Plaintiffs nor the Defendants have, for the purposes of any form of estoppel, "prevailed" upon any argument or position related to class certification with respect to this Action and Plaintiffs would not be prejudiced if (i) this Settlement were not approved or such approval were reversed on appeal and (ii) Defendants later objected to the certification of any proposed class in this Action.
9. Defendants have filed a Declaration of Compliance with the Class Action
Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1715. Defendants timely mailed notice of the settlement agreement pursuant to 28 U.S.C. § 1715(b), including notices to the Attorney General of the United States of America, the Federal Reserve Board, the Office of the Comptroller of the
Currency and the Attorneys General of all states in which members of the Settlement Class reside. The notice contains the documents and information required by 28 U.S.C. § 1715(b)(1)-
(8). The Court finds that Defendants have complied in all respects with the requirements of 28
U.S.C. § 1715.
7 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 62 of 77. PageID #: 6227
10. All persons who have not made their objections to the Settlement in the manner provided in the Notice are deemed to have waived any objections by appeal, collateral attack or otherwise.
11. The Action is hereby dismissed with prejudice, each party to bear his, her, or its own costs, except as expressly provided herein.
12. The Court has approved the following Releases and injunctive relief as set forth in Section 4 of the Settlement Agreement:
(a) Plaintiffs', the Settlement Class's and the Plan's Releases. Effective upon the entry of the Judgment, Plaintiffs shall and hereby do conclusively, absolutely, unconditionally, irrevocably, and forever release and discharge, and the Plan and the Settlement
Class shall, by operation of the Judgment, be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged any and all claims of any nature whatsoever (including claims for any and all losses, damages, demands, debts, obligations, costs, liabilities, benefits, rights, actions, judgments, suits, unjust enrichment, attorneys' fees, expert or consultant fees, disgorgement of fees, litigation costs, injunction, declaration, contribution, indemnification, matters and issues of any kind whatsoever or any other type or nature of legal or equitable relief), whether accrued or not, fixed or contingent, liquidated or unliquidated, whether known, unknown, or unsuspected, in law or equity, matured or unmatured, foreseen or unforeseen, whether class, individual or derivative in nature, whether based on United States federal, state or local statutory or common law or any other law, rule or regulation, whether foreign or domestic, as well as any claim or right obtained by assignment, brought by way of demand, complaint, cross-claim, counterclaim, third-party claim or otherwise
(collectively, "Claims"), in any court or other tribunal, arising out of or in any way related to,
8 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 63 of 77. PageID #: 6228
directly or indirectly, any or all of the acts, omissions, facts, matters, transactions or occurrences
(i) that have been asserted in the Action against any of the Released Parties, (ii) that could have been asserted in the Action or in any forum by the Named Plaintiffs, members of the Settlement
Class, or the Plan, or any of them or by their heirs, agents, executors, fiduciaries, administrators, beneficiaries, predecessors, successors or assigns (in their capacities as such), against any of the
Released Parties, which arise out of or are related to (a) the allegations, transactions, facts, matters or occurrences, representations or omissions involved, set forth or referred to in the
Complaint, including without limitation any public statement, or any statement in any document relating to the Plan, by any Released Party during the Class Period, and (b) any purchase, sale, or retention of National City common stock or units of the National City Stock Fund in connection with the Plan during the Class Period, or (iii) that would be barred by principles of res judicata had the claims asserted in the Complaint been fully litigated and resulted in a Final judgment or order.
(i) "Released Parties" mean the Defendants, any Person who served as a trustee or named or functional fiduciary of the Plan, and any director, officer, executive, employee or agent of National City, together with, for each of the foregoing, any predecessors,
Successors-In-Interest, present and former Representatives, direct or indirect parents, affiliates and subsidiaries, insurers, re-insurers, consultants, accountants, auditors, administrators, investment advisors, financial advisors, investment bankers, underwriters, and any Person that controls, is controlled by, or is under common control with any of the foregoing.
(ii) "Representatives" mean representatives, attorneys, agents, directors, officers, executives or employees.
9 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 64 of 77. PageID #: 6229
(iii) "Successor-In-Interest" means a Person's estate, legal representatives, heirs, successors or assigns, including successors or assigns that result from corporate mergers or other structural changes.
(b) Defendants' Releases. Effective upon the entry of the Judgment, the
Defendants absolutely and unconditionally release and forever discharge with prejudice the
Named Plaintiffs, the Settlement Class, and Co-Lead Counsel (collectively, the "Plaintiff
Releasees ") from any and all Claims relating to the institution or prosecution of the Action or the settlement of any Released Claims, except that this release shall not include claims to enforce the covenants or obligations set forth in the Settlement Agreement.
(c) Scope of Releases.
(i) The Parties intend and agree that the Releases granted in this
Judgment shall be effective as a bar to any and all claims within the scope of their express terms and provisions that are currently unsuspected, unknown, or partially known to exist in their favor that might have affected their decision(s) with respect to the Settlement. Accordingly, the
Parties have stipulated and agreed that by operation of this Judgment becoming Final, Named
Plaintiffs shall have expressly waived, and each member of the Settlement Class and the Plan shall be deemed to have waived, and the Defendants shall have expressly waived, any and all rights and benefits respectively conferred upon them by the provisions of Section 1542 of the
California Civil Code and all similar provisions of the statutory or common laws of any other
State, Territory, or other jurisdiction. Section 1542 reads in pertinent part:
A general release does not extend to claims that 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.
10 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 65 of 77. PageID #: 6230
Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement Class and on behalf of the Plan, and the Defendants each hereby acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code and all similar provisions of the statutory or common law of any other State, Territory, or other jurisdiction was separately bargained for and that neither Named Plaintiffs, on the one hand, nor the Defendants, on the other, would enter into the Settlement Agreement unless it included a broad release of unknown claims. Named Plaintiffs, on their own behalf and on behalf of all members of the Settlement
Class and on behalf of the Plan, and the Defendants each expressly agree that all release provisions in the Settlement Agreement shall be given full force and effect in accordance with each and all of their express terms and provisions, including those terms and provisions relating to unknown, unsuspected, and future claims, demands, and causes of action. Named Plaintiffs assume for themselves, and on behalf of the Settlement Class, the Plan, and any party acting on behalf of the Plan or the Settlement Class, and the Defendants assume for themselves, the risk of his, her or its respective subsequent discovery or understanding of any matter, fact, or law, that if now known or understood, would in any respect have affected his, her, or its entering into the
Settlement Agreement.
(d) Nothing in this Judgment shall release, bar, waive, or otherwise affect the
Claims that actually have been asserted, before the date of execution of the Settlement
Agreement, by or on behalf of the Plan and/or any member of the Settlement Class in: 1) the
Securities Action; 2) Tomascik et al. v. National City Corporation et al, No. 1:09-CV-00251-SO
(N.D. Ohio); 3) Parker et al. v. National City Corporation et al., No. CV-08-657360 (Cuyahoga
Cty., Ohio, Common Pleas Ct.); or 4) Reagan v. National City Corporation et al., No. 1:08-nc-
70015 (N.D. Ohio). Further, nothing in this Judgment shall preclude the Plan from filing a claim
11 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 66 of 77. PageID #: 6231
in connection with any settlement or judgment fund established in any action referenced in this sub-paragraph.
(i) The releases set forth in this section are not intended to include the release of any rights or duties of the parties arising out of the Settlement Agreement, including the express warranties and covenants contained herein.
13. The Named Plaintiffs, the Plan, the Plan's fiduciaries, and all members of the
Settlement Class are each hereby premanently barred and enjoined from instigating, instituting, commencing, maintaining or prosecuting any action in any court or tribunal that asserts any
Released Claim against any Released Party.
14. Neither this Order and Final Judgment, the Settlement Agreement, nor any of its terms and provisions, nor any of the negotiations or proceedings connected with it, nor any of the documents or statements referred to therein, shall be:
(i) offered or received against the Defendants or any other Released Party as evidence of or construed as or deemed to be evidence of any presumption, concession, or admission by any of the Defendants with respect to the truth of any fact alleged by any of the plaintiffs or the validity 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 proceeding, or of any liability, negligence, fault, or wrongdoing of the
Defendants;
(ii) offered or received against the Defendants or any other Released Party as evidence of a presumption, concession or admission of any fault, misrepresentation or omission with respect to any statement or written document approved or made by any Defendant or any of the Released Parties;
12 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 67 of 77. PageID #: 6232
(iii) offered or received against the Defendants or any other Released Party 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
Defendants or Released Parties, in any other civil, criminal or administrative action or proceeding, other than such proceedings as may be necessary to effectuate the provisions of the
Settlement Agreement; provided, however, that Defendants or Released Parties may refer to it to effectuate the liability protection granted them hereunder;
(iv) construed against the Defendants or any other Released Party as an admission or concession that the consideration to be given hereunder represents the amount which could be or would have been recovered after trial or of the validity of any claims in the
Action or of any wrongdoing; or
(v) construed as or received in evidence as an admission, concession or presumption against the Named Plaintiffs or any of the Settlement Class members that any of their claims are without merit, or that any defenses asserted by the Defendants have any merit, or that damages recoverable under the Complaint would not have exceeded the Settlement Fund.
15. Co-Lead Counsel are hereby awarded % of the Class Settlement
Amount as and for their attorneys' fees, which sum the Court finds to be fair and reasonable. Co-
Lead Counsel are hereby awarded $ in reimbursement of their litigation expenses, which expenses the Court finds to have been reasonably incurred. Co-Lead Plaintffs are hereby awarded case contribution awards in the amount of $ each, and the other Named
Plaintiffs are hereby awarded case contribution awards in the amount of $ each. The award of attorneys' fees and expenses, with interest on such amounts from the date the
Settlement Fund was funded to the date of payment at the same net rate the Settlement Fund
13 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 68 of 77. PageID #: 6233
earns, and the case contribution awards shall be paid from the Settlement Fund pursuant to the terms of the Settlement Agreement. Any modification or change in the award of attorneys' fees and expenses or in the Case Contribution Awards to the Named Plaintiffs that may hereafter be approved shall in no way disturb or affect this Judgment or the releases provided hereunder and shall be considered separate from this Judgment.
16. This Action is dismissed with prejudice. The Court shall retain exclusive jurisdiction to resolve any disputes or challenges that may arise as to the performance of the
Settlement Agreement or any challenges as to the performance, validity, interpretation, administration, enforcement, or enforceability of the Class Notice, the Judgment, the Settlement
Agreement or the termination of the Settlement Agreement.
17. All other provisions of the Settlement Agreement are incorporated into this
Judgment as if fully rewritten herein. To the extent that the terms of this Judgment conflict with the terms of the Settlement Agreement, the Settlement Agreement shall control.
18. Without further order of the Court, the parties may agree to reasonable extensions of time to carry out any of the provisions of the Settlement Agreement.
19. In the event that the Settlement Agreement is terminated in accordance with its terms, this Judgment shall be rendered null and void, ab initio, and shall be vacated nunc pro tunc, and this Action shall for all purposes with respect to the Parties revert to its status as of
February 9, 2010. The Parties shall be afforded a reasonable opportunity to negotiate a new case management schedule.
IT IS SO ORDERED.
DATED: 2010 THE HONORABLE SOLOMON OLIVER, JR.
14 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 69 of 77. PageID #: 6234
UNITED STATES DISTRICT JUDGE
15 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 70 of 77. PageID #: 6235
EXHIBIT C Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 71 of 77. PageID #: 6236
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA : JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
PLAN OF ALLOCATION
I. Definitions
A. Except as indicated in this Plan of Allocation, the capitalized and italicized terms used herein shall have the meanings ascribed to them in the Class Action
Settlement Agreement.
B. "Plan" shall mean: the National City Savings and Investment Plan.
C. The "Stock Fund Class Period" means the period of time from September
5, 2006 to December 31, 2008, inclusive.
D. The "Allegiant Fund Class Period" means the period of time from March
25, 2002 to December 31, 2009, inclusive.
E. "Trustee" means the Plan's Trustee.
F. "Participant" means a member of the Settlement Class certified in this
Action by the Court, under Fed. R. Civ. 23(b)(1) and/or 23(b)(2) consisting of:
All current and former participants and beneficiaries of the Plan (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 72 of 77. PageID #: 6237
held interests in any of the mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan (the "Allegiant Funds") at any time during the period March 25, 2002 to December 31, 2009, inclusive. G. The "Allegiant Fund Net Proceeds" means an amount equal to Four
Percent (4%) of the Net Proceeds.
H. The "Stock Fund Net Proceeds" means an amount equal to Ninety-Six
Percent (96%) of the Net Proceeds.
II. Calculation of Allocation
A. Stock Fund Claims:
1. For each Participant's Stock Fund Claims, a third party hired to perform the calculations under this Part II, the identity of which shall be agreed on by
Defendants and Class Counsel (an "Agreed Calculation Administrator"), shall determine the approximate alleged net loss ("Net Stock Fund Loss") as follows: Net Stock Fund
Loss = A + B - C - D, where, for each Participant's account:
a. A = the dollar value, if any, of the balance in the National City Stock Fund on the first day of the Stock Fund Class Period;
b. B = the dollar value, if any, of all of the purchases of interests in the National City Stock Fund during the Stock Fund Class Period as of the time of purchase(s);
C. C = the dollar value, if any, of all dispositions of interests in the National City Stock Fund during the Stock Fund Class Period as of the time of the disposition(s); and
d. D = the dollar value, if any, of the balance in the National City Stock Fund remaining on the last day of the Stock Fund Class Period.
2. Participants whose Net Stock Fund Losses are negative (that is, they received a gain rather than a loss as a result of the calculations in Section II.A.I above) shall be deemed to have a Net Stock Fund Loss of zero ($0).
2 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 73 of 77. PageID #: 6238
3. The Net Stock Fund Losses of the Participants as calculated in
Section II.A.1-2 above will be totaled to yield the loss of the Stock Fund Class as a whole over the Stock Fund Class Period (the "Total Stock Fund Loss").
4. The Agreed Calculation Administrator shall calculate for each
Participant his or her "Initial Net Stock Fund Distribution" on a pro rated basis by first dividing each Participant's Stock Fund Loss by the Plan's Total Stock Fund Loss (each
Participant's "Stock Fund Loss Percentage"), and then multiplying each Participant's
Stock Fund Loss Percentage by the Stock Fund Net Proceeds.
B. Allegiant Fund Claims:
1. The Agreed Calculation Administrator shall perform the following calculations to determine each Participant's losses for the Allegiant Fund
Claims. First, the "Allegiant Fund Weighted Dollar Average" for each Participant shall be calculated by determining each Participant's average holdings in all Allegiant Funds during the Allegiant Fund Class Period, based upon each Participant's end of calendar quarter balance in each fund within the Allegiant Fund Class Period. If a Participant did not hold any Allegiant Funds at the end of any calendar quarter during the Allegiant Fund
Class Period, that Participant's end of quarter balance shall count as a zero for purposes of calculating that Participant's Allegiant Fund Weighted Dollar Average.
2. The Allegiant Fund Weighted Dollar Average of the
Participants as calculated in Section II.B.1 above will be totaled to yield the total
Allegiant Fund Weighted Dollar Average of the Allegiant Fund Class as a whole over the
Allegiant Fund Class Period (the "Total Allegiant Fund Holdings").
3. The Agreed Calculation Administrator shall calculate for each
Participant his or her "Initial Net Allegiant Fund Distribution" on a pro rated basis by
3 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 74 of 77. PageID #: 6239
first dividing each Participant's Allegiant Fund Weighted Dollar Average by the Total
Allegiant Fund Holdings (each Participant's "Allegiant Fund Loss Percentage"), and then multiplying each Participant's Allegiant Fund Loss Percentage by the Allegiant
Fund Net Proceeds.
C. De Minimis and Settlement Allocation Calculations
1. The Agreed Calculation Administrator shall then add the Initial
Net Allegiant Fund Distribution and the Initial Net Stock Fund Distribution for each
Participant to determine each Participant's "Preliminary Individual Dollar Recovery."
2. Each Participant whose Preliminary Individual Dollar
Recovery is less than ten dollars ($10) (the "De Minimis Amount") shall be excluded from further calculations. All Participants whose Preliminary Individual Dollar
Recovery is less than or equal to the De Minimis Amount shall be deemed to have a Final
Individual Dollar Recovery of zero.
3. Participants who are Defendants in the Action are excluded from further calculations under this Plan of Allocation and shall be deemed to have a
Final Individual Dollar Recovery of zero.
4. The Agreed Calculation Administrator shall then re-perform the calculations in Sections II.A and II.B, omitting from the recalculation those Participants whose Preliminary Individual Dollar Recovery was equal to or less than the De Minimis
Amount or are otherwise excluded from further calculations under Section II.C.3 so as to arrive at each such Participant's "Final Individual Dollar Recovery." The sum of all
Final Individual Dollar Recoveries must equal the Net Proceeds.
D. Notice To Counsel Of Settlement Allocation Calculations
4 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 75 of 77. PageID #: 6240
1. Fifteen (15) days prior to the allocation to Settlement Class members, the Agreed Calculation Administrator shall provide to Counsel for Defendants and Plaintiffs' Co-Lead Counsel the methodology used in calculating losses as described herein (or otherwise modified) as well as a sampling of the summaries, compilations, calculations, or tabulations of the claims and amounts described herein, including a complete listing setting out the dollar amount ultimately allocated to each Participant.
III. Allocation of the Net Proceeds to the Settlement Class
A. No less than fifteen (15) days after the Agreed Calculation Administrator has provided the notice to Counsel for Defendants and Plaintiffs' Co-Lead Counsel as set forth in Section II.D.1 herein, Co-Lead Counsel shall direct the Financial Institution to disburse the Net Proceeds to the Plan for distribution to or for the benefit of Settlement
Class members. Defendants shall then direct the Trustee to allocate the Net Proceeds received by the Plan to the Settlement Class members according to the allocation methods described herein.
B. Current Participants in the Plan. As promptly as possible after deposit of the Net Proceeds into the Plan, the Trustee shall allocate into each current Participant's account his or her Final Individual Dollar Recovery, as calculated above, less any expenses or administrative charges approved by the Court. Each current Participant's
Final Individual Dollar Recovery shall be allocated among the Participant's investment options in accordance with the existing investment elections then in effect and treated thereafter for all purposes under the Plan as assets of the Plan properly credited to that
Participant's account. The Participant may reallocate his or her Final Individual Dollar
Recovery if and as then permitted by the Plan. If a Settlement Class member does not have an existing investment election for new contributions, pending instruction from the
5 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 76 of 77. PageID #: 6241
Settlement Class member, the deposited amount shall be invested in any default
investment option(s) designated by the Plan, and if the Plan has not designated a default
investment option(s), in a money market fund or similar fund under the Plan.
C. Former Participants in the Plan. With respect to former Participants who
withdrew their account balances after the beginning of the Class Period but prior to the
Judgment becoming Final, the Trustee will establish an account for each former
Participant, and each former Participant will be notified of such account along with
further instructions on how to access his or her account. As promptly as possible after
deposit of the Net Proceeds into the Plan, the Trustee shall allocate into each former
Participant's newly established account his or her Final Individual Dollar Recovery, as
calculated below. Pending instruction from such former Participant, the deposited
amount in his or her account shall be invested in any default investment option(s)
designated by the Plan, and if the Plan has not designated a default investment option(s),
in a money market fund or similar fund under the Plan.
D. If any Participant with a Final Individual Dollar Recovery greater than
zero is deceased or cannot be located despite reasonable efforts, such Participant's Final
Individual Dollar Recovery shall be administered in accordance with the existing procedures of the Plan regarding deceased and unlocatable Participants. If a Qualified
Domestic Relations Order is in effect which applies to a Participant, the procedures of the Plan regarding Qualified Domestic Relations Orders shall apply.
IV. Qualifications and Continuing Jurisdiction A. In light of the manner in which the data is kept and the ease with which it
can be analyzed, it may be appropriate to simplify some of the features of these
calculations. Such simplifications are acceptable as long as the two basic features of the
6 Case: 1:08-nc-70000-SO Doc #: 124-2 Filed: 08/20/10 77 of 77. PageID #: 6242
distribution are preserved: (1) that each Participant receives a share of the Net Proceeds based approximately on (a) for the Stock Fund Claims, the decline in the value of
National City stock he or she held over the Stock Fund Class Period in comparison with the decline in value of National City stock held by the other Participants in the Plan and
(b) for the Allegiant Fund Claims, the difference between the total return of the Allegiant
Funds held and the average performance of other mutual funds of the same asset class during the Allegiant Fund Class Period; and (2) that the distribution take place through the Plan so as to realize any tax advantage of investment in the Plan. Any such changes will be presented to the Court for approval pursuant to section IV.B below.
B. The Court will retain jurisdiction over the Plan of Allocation to the extent necessary to ensure that it is fully and fairly implemented.
7 Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 1 of 31. PageID #: 6243
EXHIBIT B Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 2 of 31. PageID #: 6244
...Ygb BARROWAYTOPAZ KESSLERMELTZERCHECKLLP
280 King of Prussia Road, Radnor, Pennsylvania 19087 . 610-667-7706 • Fax: 610-667-7056 • [email protected] 580 California Street, Suite 1750, San Francisco, CA 94104 . 415-400-3000 • Fax: 415-400-3001 • [email protected] www.btkmc.com
FIRM PROFILE
Barroway Topaz Kessler Meltzer & Check, LLP (`Barroway Topaz"), headquartered just outside of Philadelphia, Pennsylvania, specializes in representing shareholders and consumers in complex class action litigation in state and federal courts throughout the United States. Since the firm's inception in 1987, Barroway Topaz has recovered billions of dollars on behalf of defrauded shareholders, employees and aggrieved consumers.
Recognized by courts and our clients for achieving exemplary results, Barroway Topaz has grown into one of the largest and most successful plaintiff's class action firms in the country. With over eighty attorneys, a superior support staff and in-house investigative team, Barroway Topaz has emerged as the leading firm in the campaign to eradicate securities fraud and corporate malfeasance. Barroway Topaz's considerable resources and extensive experience in prosecuting class actions place it in a unique position to track, advise, prosecute and resolve complex actions.
Barroway Topaz represents various institutional investors from the United States, Canada, Europe and around the world — including pension funds, mutual fund managers, investment advisors, insurance companies, and hedge funds — and has secured landmark recoveries on behalf of our clients and the classes we represent. The firm, with the guidance and assistance of our clients serving as lead plaintiff, is especially proud of our ability to create and structure resolutions with financially troubled companies and, when appropriate, to institute meaningful corporate governance reforms when serving as lead counsel in shareholder actions.
Barroway Topaz is also at the forefront of protecting the rights of employees. The firm's nationally recognized ERISA Litigation Department specializes in breach of fiduciary duty actions brought pursuant to the Employee Retirement Income Security Act of 1974. Barroway Topaz has helped pensioners across the country recover hundreds of millions of dollars in retirement savings lost as a result of mismanaged pension assets. Further, Barroway Topaz's Wage and Hour Department represents thousands of workers across the country pursuing claims for unpaid wages under the Fair Labor Standards Act and relevant state compensation laws.
Barroway Topaz's Competition Group combats violations of federal and state antitrust laws (and deceptive trade practice laws) including price-fixing, bid-rigging, monopolization, resale price maintenance and price discrimination. The Group's attorneys in this highly specialized area of the law have extensive experience and expertise and have been appointed by courts to leadership positions in several important antitrust actions filed in state and federal courts throughout the country. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 3 of 31. PageID #: 6245 NOTEWORTHY ACHIEVEMENTS During the firm's successful history, Barroway Topaz has recovered billions of dollars for defrauded stockholders and consumers. The following are among the firm's notable achievements:
In re Tyco International, Ltd. Sec. Litig., No. 02-1335-B (D.N.H. 2002): Barroway Topaz, which served as Co-Lead Counsel in this highly publicized securities fraud class action on behalf of a group of institutional investors, achieved a record $3.2billion settlement with Tyco International, Ltd. ("Tyco") and their auditor PricewaterhouseCoopers, LLP ("PwC"). The $2.975 billion settlement with Tyco represents the single-largest securities class action recovery from a single corporate defendant in history. In addition, the $225 million settlement with PwC represents the largest payment PwC has ever paid to resolve a securities class action and is the second-largest auditor settlement in securities class action history.
As presiding Judge Paul Barbadoro aptly stated in his Order approving the final settlement, "[i]t is difficult to overstate the complexity of [the litigation]." Judge Barbadoro noted the extraordinary effort required to pursue the litigation towards its successful conclusion, which included the review of more than 82.5 million pages of documents, more than 220 depositions and over seven hundred discovery requests and responses. In addition to the complexity of the litigation, Judge Barbadoro also highlighted the great risk undertaken by Co-Lead Counsel in pursuit of the litigation, which he indicated was greater than in other multi-billion dollar securities cases and "put [Plaintiffs] at the cutting edge of a rapidly changing area of law." In sum, the Tyco settlement is of historic proportions for the investors who suffered significant financial losses and it has sent a strong message to those who would try to engage in this type of misconduct in the future.
In re Tenet Healthcare Corp. Sec. Litig., No. CV-02-8462-RSWL (Rx) (C.D. Cal. 2002): Barroway Topaz serves as Co-Lead Counsel in this action. A partial settlement was approved on May 26, 2006. The partial settlement was comprised of three distinct elements, including a substantial monetary commitment by the company in the amount of $215 million, personal contributions by two of the individual defendants totaling $1.5 million and the enactment and/or continuation of numerous changes to the company's corporate governance practices, which have led various institutional rating entities to rank Tenet among the best in the U.S. in regards to corporate governance. The significance of the partial settlement was heightened by Tenet's precarious financial condition. Faced with many financial pressures — including several pending civil actions and federal investigations, with total contingent liabilities in the hundreds of millions of dollars — counsel was concerned that Tenet would be unable to fund a settlement or satisfy a judgment of any greater amount in the near future. By reaching the partial settlement, Barroway Topaz, on behalf of the Plaintiffs' class, was able to avoid the risks associated with a long and costly litigation battle and provide a significant and immediate benefit to the class. Barroway Topaz also obtained a rarity in securities class action litigation — personal financial contributions from individual defendants. Following the partial settlement with the Tenet defendants, Barroway Topaz actively litigated the case against Tenet's external auditor, KPMG. After more than two years of hard-fought litigation, including dispositive motion practice and merits and expert discovery, Barroway Topaz, on behalf of the Plaintiffs' class, settled the matter against KPMG for $65 million. While the settlement is not yet final, Barroway Topaz is very pleased with the result as it stands, as one of the largest recoveries against an auditor in U.S. history.
In re AremisSoft Corp. Sec. Litig., C.A. No. 01-CV-2486 (D.N.J. 2002): Barroway Topaz is particularly proud of the results recently achieved before the Honorable Joel A. Pisano in this case. This case was exceedingly complicated, as it involved the embezzlement of hundreds of millions of dollars by former officers of the Company, some of whom are now fugitives. In settling the action, Barroway Topaz, as sole Lead Counsel, assisted in reorganizing AremisSoft as a new Company which allowed for it to continue operations, while successfully separating out the securities fraud claims and the bankrupt Company's claims into a litigation trust. Pursuant to the Settlement, the litigation trust has distributed more than 16 million shares of the reorganized Company to members of the class. The Court-appointed co-trustees, Joseph P. LaSala, Esq. and Fred S. Zeidman, retained Barroway Topaz to continue prosecuting the actions on behalf of the litigation trust. After extensive litigation in the Isle of Man, including the successful freezing of more than $200 million of stolen funds, the trust settled its action against one of the principal wrongdoers and recovered approximately $200 million. Thus far, the trust has distributed to beneficiaries of the trust more than 28% of their recognized losses (excluding the value of the equity of the new Company), and is poised to recover even more. Recently, the trust commenced further litigation in Cyprus, where it obtained a Mareva injunction and interim ancillary relief against various bank accounts and assets owned and/or controlled by the other principal wrongdoer. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 4 of 31. PageID #: 6246 In re CIS Corporation Sec. Litig., C.A. No. 01-11464 JLT (D.Mass. 2001): After more than three years of contentious litigation and a series of protracted mediation sessions, Barroway Topaz, serving as Co-Lead Counsel, secured a $110 million recovery for class members in the CVS Sec. Litig. Specifically, the suit alleged that CVS violated accounting practices by delaying discounts on merchandise in an effort to prop up its earnings. In addition, the suit charged that in 2001 the Company and its Chief Executive Officer, Thomas M. Ryan, improperly delayed announcement of its intention to close approximately 200 underperforming stores, and that an industry-wide pharmacist shortage would have a materially negative impact on the Company's performance. Settlement was reached just days prior to the commencement of trial, and shortly after the district court had denied the defendants' motions for summary judgment. This substantial recovery represents the third-largest settlement in a securities class action case in the First Circuit.
In re Delphi Corp. Sec. Litig., Master File No. 1:05-MD-1725 (E.D. Mich. 2005): In early 2005, various securities class actions were filed against auto-parts manufacturer Delphi Corporation in the Southern District of New York. Barroway Topaz its client, Austria-based mutual fund manager Raiffeisen Kapitalanlage-Gesellschaft m.b.H. ("Raiffeisen"), were appointed as Co-Lead Counsel and Co-Lead Plaintiff, respectively. The Lead Plaintiffs alleged that (i) Delphi improperly treated financing transactions involving inventory as sales and disposition of inventory; (ii) improperly treated financing transactions involving "indirect materials" as sales of these materials; and (iii) improperly accounted for payments made to and credits received from General Motors as warranty settlements and obligations. As a result, Delphi's reported revenue, net income and financial results were materially overstated, prompting Delphi to restate its earnings for the five previous years. Complex litigation involving difficult bankruptcy issues has potentially resulted in an excellent recovery for the class, but is awaiting Delphi's exit from bankruptcy before the settlement of cash and stock, can be finalized. In addition, Co-Lead Plaintiffs have also reached a settlement of claims against Delphi's outside auditor, Deloitte & Touche, LLP, for $38.25 million on behalf of Delphi investors, which has already been approved.
Royal Dutch Shell European Shareholder Litigation: Barroway Topaz was instrumental in achieving a landmark settlement worth at least $352million in cash on behalf of non-US investors with Royal Dutch Shell plc relating to Shell's 2004 restatement of oil reserves. This settlement of securities fraud claims on a class-wide basis under Dutch law was the first of its kind, and sought to resolve claims exclusively on behalf of European and other non-United States investors. Uncertainty over whether jurisdiction for non-United States investors existed in a 2004 class action filed in federal court in New Jersey prompted a significant number of prominent European institutional investors from nine countries, representing more than one billion shares of Shell, to actively pursue a potential resolution of their claims outside the United States. Among the European investors which actively sought and supported this settlement were Alecta pensionsforsakring, omsesidigt, PKA Pension Funds Administration Ltd., Swedbank Robur Fonder AB, AP7 and AFA Insurance, all of which were represented by Barroway Topaz. This settlement was approved by Order dated 6/26/08.
In re The Interpublic Group of Companies Sec. Litig., No. 02 Civ. 6527 (S.D.N.Y. 2002): Barroway Topaz served as sole Lead Counsel in this action on behalf of an institutional investor and received final approval of a settlement consisting of $20 million in cash and 6,551,725 shares of IPG common stock. As of the final hearing in the case, the stock had an approximate value of $87 million, resulting in a total settlement value of approximately $107 million. In granting its approval, the Court praised Barroway Topaz for acting responsibly and noted the firm's professionalism, competence and contribution to achieving such a favorable result.
In re Digital Lightwave, Inc. Sec. Litig., Consolidated Case No. 98-152-CIV-T-24E (M.D. Fla. 1999): The firm served as Co-Lead Counsel in one of the nation's most successful securities class actions in history measured by the percentage of damages recovered. After extensive litigation and negotiations, a settlement consisting primarily of stock was worth over $170 million at the time when it was distributed to the Class. Barroway Topaz took on the primary role in negotiating the terms of the equity component, insisting that the class have the right to share in any upward appreciation in the value of the stock after the settlement was reached. This recovery represented an astounding approximately two hundred percent (200%) of class members' losses. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 5 of 31. PageID #: 6247 In re Initial Public Offering Sec. Litig., Master File No. 21 MC 92 (SAS) (S.D.N.Y. Dec. 12, 2002): Barroway Topaz holds a prominent position as an Executive Committee member in this action. Of the sixty plaintiffs firms which originally filed actions in these coordinated proceedings, Barroway Topaz was one of only six firms selected to serve on the Executive Committee. The coordinated actions, which have been filed against 309 separate issuers of publicly traded securities, challenge the legality of the practices which accompany the allocations of shares in initial public offerings. In addition to suing the issuers of such securities, the 309 coordinated actions also name as defendants the primary investment banking firms which underwrote the offerings. This case, which has received a great deal of national and international media attention, is widely considered the largest securities class action litigation in history and has resulted in numerous important rulings by the Court.
In re Global Crossing, Ltd. ERISA Litigation, No. 02 Civ. 7453 (S.D.N.Y. 2004): Barroway Topaz served as Co-Lead Counsel in this novel, complex and high-profile action which alleged that certain directors and officers of Global Crossing, a former high-flier of the late 1990's tech stock boom, breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA") to certain company-provided 401(k) plans and their participants. These breaches arose from the plans' alleged imprudent investment in Global Crossing stock during a time when defendants knew, or should have known, that the company was facing imminent bankruptcy. A settlement of plaintiffs' claims restoring $79 million to the plans and their participants was approved in November 2004. At the time, this represented the largest recovery received in a company stock ERISA class action.
In re AOL Time Warner ERISA Litigation, No. 02-CV-8853 (S.D.N.Y. 2006): Barroway Topaz, which served as Co-Lead Counsel in this highly-publicized ERISA fiduciary breach class action brought on behalf of the Company's 401(k) plans and their participants, achieved a record $100 million settlement with defendants. The $100 million restorative cash payment to the plans (and, concomitantly, their participants) represents the largest recovery from a single defendant in a breach of fiduciary action relating to mismanagement of plan assets held in the form of employer securities. The action asserted claims for breach of fiduciary duties pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") on behalf of the participants in the AOL Time Warner Savings Plan, the AOL Time Warner Thrift Plan, and the Time Warner Cable Savings Plan (collectively, the "Plans") whose accounts purchased and/or held interests in the AOLTW Stock Fund at any time between January 27, 1999 and July 3, 2003. Named as defendants in the case were Time Warner (and its corporate predecessor, AOL Time Warner), several of the Plans' committees, as well as certain current and former officers and directors of the company. In March 2005, the Court largely denied defendants' motion to dismiss and the parties began the discovery phase of the case. In January 2006, Plaintiffs filed a motion for class certification, while at the same time defendants moved for partial summary judgment. These motions were pending before the Court when the settlement in principle was reached. Notably, an Independent Fiduciary retained by the Plans to review the settlement in accordance with Department of Labor regulations approved the settlement and filed a report with Court noting that the settlement, in addition to being "more than a reasonable recovery" for the Plans, is "one of the largest ERISA employer stock action settlements in history."
In re Honeywell International ERISA Litigation, No. 03-1214 (DRD) (D.N.J. 2004): Barroway Topaz served as Lead Counsel in a breach of fiduciary duty case under ERISA against Honeywell International, Inc. and certain fiduciaries of Honeywell defined contribution pension plans. The suit alleged that Honeywell and the individual fiduciary defendants, allowed Honeywell's 401(k) plans and their participants to imprudently invest significant assets in company stock, despite that defendants knew, or should have known, that Honeywell's stock was an imprudent investment due to undisclosed, wide-ranging problems stemming from a consummated merger with Allied Signal and a failed merger with General Electric. The settlement of plaintiffs' claims included a $14 million payment to the plans and their affected participants, and significant structural relief affording participants much greater leeway in diversifying their retirement savings portfolios.
In re Remeron Antitrust Litigation, No. 02-CV-2007 (D.N.J. 2004): Barroway Topaz was Co-Lead Counsel in an action which challenged Organon, Inc.'s filing of certain patents and patent infringement lawsuits as an abuse of the Hatch-Waxman Act, and an effort to unlawfully extend their monopoly in the market for Remeron. Specifically, the lawsuit alleged that defendants violated state and federal antitrust laws in their efforts to keep competing products from entering the market, and sought damages sustained by consumers and third-party payors. After lengthy litigation, including numerous motions and over 50 depositions, the matter settled for $36 million. The settlement is pending final approval by the court. 1:08-Zc-70000-SO Doc #: 124-3 Filed: 08/20/10 6 of 31. PageID #: 6248 Henry Case: e The firm served as Co-Lead Counsel for one of the largest consumer class actions in history, consisting of approximately I million Sears credit card holders whose interest rates were improperly increased in connection with the transfer of the credit card accounts to a national bank. Barroway Topaz successfully negotiated a settlement representing approximately 66% of all class members' damages, thereby providing a total benefit exceeding $156 million. All $156 million was distributed automatically to the Class members, without the filing of a single proof of claim form. In approving the settlement, the District Court stated: "... I am pleased to approve the settlement. I think it does the best that could be done under the circumstances on behalf of the class.... The litigation was complex in both liability and damages and required both professional skill and standing which class counsel demonstrated in abundance."
In re Transkaryotic Therapies, Inc. Sec. Litig., Civil Action No.: 03-10165-RWZ (D. Mass. 2003): After five years of hard-fought, contentious litigation, Barroway Topaz as Lead Counsel on behalf of the Class, has entered into one of largest settlements ever against a biotech company with regard to non-approval of one of its drugs by the U.S. Food and Drug Administration ("FDA"). Specifically, the Plaintiffs alleged that Transkaryotic Therapies, Inc. ("TKT") and its CEO, Richard Selden, engaged in a fraudulent scheme to artificially inflate the price of TKT common stock and to deceive Class Members by making misrepresentations and nondisclosures of material facts concerning TKT's prospects for FDA approval of Replagal, TKT's experimental enzyme replacement therapy for Fabry disease. With the assistance of the Honorable Daniel Weinstein, a retired state court judge from California, Barroway Topaz secured a $50 million settlement from the Defendants during a complex and arduous mediation.
In re Assisted Living Concepts, Inc. Sec. Litig., Lead Case No. 99-167-AA (D. Or. 1999): Barroway Topaz served as Co-Lead Counsel and was instrumental in obtaining a $30 million recovery for class members from the Company, its executive officers and directors, and several underwriters for their role in an alleged complex accounting fraud involving the use of a purportedly independent joint venture to absorb the Company's start-up losses. Even after this $30 million recovery, through counsel's efforts, an additional $12.5 million was obtained from the auditors providing for a total recovery of $42.5 million.
Wanstrath v. Doctor R. Crants, et. al. Shareholders Litigation, No. 99-1719-111 (Tenn. Chan. Ct., 20th Judicial District, 1999): Barroway Topaz served as Lead Counsel in a derivative action filed against the officers and directors of Prison Realty Trust, Inc., challenging the transfer of assets from the Company to a private entity owned by several of the Company's top insiders. Numerous federal securities class actions were pending against the Company at this time. Through the derivative litigation, the Company's top management was ousted, the composition of the Board of Directors was significantly improved, and important corporate governance provisions were put in place to prevent future abuse. Barroway Topaz, in addition to achieving these desirable results, was able to effectuate a global settlement of all pending litigation against the backdrop of an almost certain bankruptcy. The case was resolved in conjunction with the federal securities cases for the payment of approximately $50 million by the Company's insurers and the issuance of over 46 million shares to the class members.
In re PNC Financial Services Group, Inc. Sec. Litig., Case No. 02-CV-271 (W.D. Pa. 2002): Barroway Topaz served as Co-Lead Counsel in a securities class action case brought against PNC bank, certain of its officers and directors and its outside auditor, Ernst & Young, LLP (`B&Y"), relating to the conduct of defendants in establishing, accounting for and making disclosures concerning three special purpose entities ("SPEs") in the second, third and fourth quarters of PNC's 2001 fiscal year. Plaintiffs alleged that these entities were created by defendants for the sole purpose of allowing PNC to secretly transfer hundreds of millions of dollars worth of non-performing assets from its own books to the books of the SPEs without disclosing the transfers or consolidating the results and then making positive announcements to the public concerning the bank's performance with respect to its non-performing assets. Barroway Topaz was instrumental in obtaining a $30 million recovery for class members from PNC and the assignment of certain claims it may have had against its audit and other third party law firms and insurance companies. An additional $6.6 million was recovered from the insurance company and the law firms and an agreement in principle has now been reached with the audit to resolve all claims for another $9.075 million, providing for a total recovery from the Sec. Litig. of $45.675. When coupled with the $156 million restitution fund established through government actions against some of the same defendants and third parties, the total recovery for class members exceeds $200 million, which has now been distributed with PNC paying all costs associated with notifying the Class of the settlement. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 7 of 31. PageID #: 6249 In re New Power Holdings, Inc. Sec. Litig., No. 02 Civ. 1550 (S.D.N.Y. 2002): Barroway Topaz served as Co-Lead Counsel and was instrumental in obtaining a recovery of $41 million in cash for class members against a bankrupt company, certain of its officers and directors and the underwriters of the Company's offering. Claims involved New Power, an offshoot of Enron, that was formed to re-enter the deregulated energy market and pursued an IPO with no viable plan to hedge against volatile energy prices.
In re Liberate Technologies Sec. Litig., No. C-02-5017 (MJJ) (N.D. Cal. 2005): Plaintiffs alleged that Liberate engaged in fraudulent revenue recognition practices to artificially inflate the price of its stock, ultimately forcing it to restate its earning. As sole Lead Counsel, Barroway Topaz successfully negotiated a $13.8 million settlement, which represents almost 40% of the damages suffered by the class. In approving the settlement, the district court complimented Lead Counsel for its "extremely credible and competent job."
In re Sodexho Marriott Shareholders Litigation, Consol. C.A. No. 18640-NC (Del. Ch. 1999): Barroway Topaz was Class Counsel in this case which was pending in Delaware Chancery Court, in which Class Counsel was partially responsible for creating an aggregate financial benefit of approximately $166 million for members of the class.
In re Riverstone Networks, Inc. Sec. Litig., Case No. CV-02-3581 (N.D. Cal. 2002): Barroway Topaz served as Lead Counsel on behalf of plaintiffs alleging that Riverstone and certain of its officers and directors sought to create the impression that the Company, despite the industry-wide downturn in the telecom sector, had the ability to prosper and succeed and was actually prospering. In that regard, plaintiffs alleged that defendants issued a series of false and misleading statements concerning the Company's financial condition, sales and prospects, and used inside information to personally profit. After extensive litigation, the parties entered into formal mediation with the Honorable Charles Legge (Ret.). Following five months of extensive mediation, the parties reached a settlement of $18.5 million.
In re McLeod USA Inc. Sec. Litig., No. CO2-0001-MWB (N.D. Iowa 2002): Barroway Topaz served as Co-Lead Counsel on behalf of plaintiffs, alleging that McLeod USA and certain of its officers misrepresented the health and prospects of the company's business. After more than three years of litigation, Barroway Topaz helped obtain a settlement of $30 million from the defendants.
In re Viacom, Inc. Shareholder Derivative Litig., Index No. 602527/05 (New York County, NY 2005): Barroway Topaz represented the Public Employees Retirement System of Mississippi and served as lead counsel in a derivative action alleging that the members of the Board of Directors of Viacom, Inc. paid excessive and unwarranted compensation to Viacom's Executive Chairman and CEO, Sumner M. Redstone, and co-000s Thomas E. Freston and Leslie Moonves, in breach of their fiduciary duties. Specifically, Barroway Topaz alleged that in fiscal year 2004, when Viacom reported a record net loss of $17.46 billion, the board improperly approved compensation payments to Redstone, Freston, and Moonves of approximately $56 million, $52million, and $52million, respectively. Judge Ramos of the New York Supreme Court denied Defendants' motion to dismiss the action as Barroway Topaz overcame several complex arguments related to the failure to make a demand on Viacom's Board; Defendants then appealed that decision to the Appellate Division of the Supreme Court of New York. Prior to a decision by the appellate court, a settlement was reached in early 2007. Pursuant to the settlement, Sumner Redstone, the company's Executive Chairman and controlling shareholder, agreed to a new compensation package that, among other things, substantially reduces his annual salary and cash bonus, and ties the majority of his incentive compensation directly to shareholder returns.
In re Computer Associates Sec. Litig., No. 02-CV-1226 (E.D.N.Y. 2002): Barroway Topaz served as Co-Lead Counsel on behalf of plaintiffs, alleging that Computer Associates and certain of its officers misrepresented the health of the company's business, materially overstated the company's revenues, and engaged in illegal insider selling. After nearly two years of litigation, Barroway Topaz helped obtain a settlement of $150 million in cash and stock from the company. Case: 1 :08 -nc-70000-SO Doc #: 124-3 Filed: 08/20/10 8 of 31. PageID #: 6250 Barroway Topaz served as sole Lead Counsel on behalf of plaintiffs, alleging that Key Energy, as well as certain of its officers and directors, had made materially false and misleading statements in the company's public filings and press releases relating to its financial results, particularly its net income and fixed asset records. After nearly four years of litigation, Barroway Topaz secured a settlement of $15.425 million, which was recently approved by the Court.
In re Family Dollar Stores, Inc. Derivative Litig., Master File No. 06-CVS-16796 (Mecklenburg County, NC 2006): Barroway Topaz served as Lead Counsel, derivatively on behalf of Family Dollar Stores, Inc., and against certain of Family Dollar's current and former officers and directors. The actions were pending in Mecklenburg County Superior Court, Charlotte, North Carolina, and alleged that certain of the company's officers and directors had improperly backdated stock options to achieve favorable exercise prices in violation of shareholder-approved stock option plans. As a result of these shareholder derivative actions, Barroway Topaz was able to achieve substantial relief for Family Dollar and its shareholders. Through Barroway Topaz's litigation of this action, Family Dollar agreed to cancel hundreds of thousands of stock options granted to certain current and former officers, resulting in a seven-figure net financial benefit for the company. In addition, Family Dollar has agreed to, among other things: implement internal controls and granting procedures that are designed to ensure that all stock options are properly dated and accounted for; appoint two new independent directors to the board of directors; maintain a board composition of at least 75 percent independent directors; and adopt stringent officer stock- ownership policies to further align the interests of officers with those of Family Dollar shareholders. The settlement was approved by Order of the Court on August 13, 2007.
In re Barnes & Noble, Inc. Derivative Litig., Index No. 06602389 (New York County, NY 2006): Barroway Topaz served as Lead Counsel, derivatively on behalf of Barnes & Noble, Inc., and against certain of Barnes & Noble's current and former officers and directors. This action was pending in the Supreme Court of New York, and alleged that certain of the company's officers and directors had improperly backdated stock options to achieve favorable exercise prices in violation of shareholder-approved stock option plans. As a result of this shareholder derivative action, Barroway Topaz was able to achieve substantial relief for Barnes & Noble and its shareholders. Through Barroway Topaz's litigation of this action, Barnes & Noble agreed to re-price approximately $2.64 million unexercised stock options that were alleged improperly granted, and certain defendants agreed to voluntarily repay approximately $1.98 million to the Company for the proceeds they received through exercise of alleged improperly priced stock options. Furthermore, Barnes & Noble has agreed to, among other things: adopt internal controls and granting procedures that are designed to ensure that all stock options are properly dated and accounted for; at least once per calendar year, preset a schedule of dates on which stock options will be granted to new employees or to groups of twenty (20) or more employees; make final determinations regarding stock options at duly-convened committee meetings; and designate one or more specific officer(s) within the Company who will be responsible for, among other things, compliance with the Company's stock option plans. The settlement was approved by Order of the Court on November 14, 2007.
In re Sepracor, Inc. Derivative Litig., Case No. 06-4057-BLS (Suffolk County, MA 2006): Barroway Topaz served as Lead Counsel, derivatively on behalf of Sepracor, Inc., and against certain of Sepracor's current and former officers and directors. This action was pending in the Superior Court of Suffolk County, Massachusetts, and alleged that certain of the company's officers and directors had improperly backdated stock options to achieve favorable exercise prices in violation of shareholder-approved stock option plans. As a result of this shareholder derivative action, Barroway Topaz was able to achieve substantial relief for Sepracor and its shareholders. Through Barroway Topaz's litigation of this action, Sepracor agreed to cancel or re-price more than 2.7 million unexercised stock options that were alleged to have been improperly granted. Furthermore, Sepracor has agreed to, among other things: adopt internal controls and granting procedures that are designed to ensure that all stock options are properly dated and accounted for; not alter the exercise prices of stock options without shareholder approval; hire an employee responsible for ensuring that the Company's complies with its stock option plans; and appoint a director of internal auditing. The settlement was approved by Order of the Court on January 4, 2008. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 9 of 31. PageID #: 6251
PARTNERS
RAMZI ABADOU, a partner in the firm's San Francisco office, received his Bachelor of Arts from Pitzer College in Claremont, California in 1994 and his Master of Arts from Columbia University in the City of New York in 1997. Prior to attending law school, Mr. Abadou was a political science adjunct professor at Foothill College in Los Altos Hills, California. Mr. Abadou graduated from the Boston College Law School and clerked for the United States Attorney's Office in San Diego, California. Prior to joining the firm, Mr, Abadou was a partner with Coughlin Stoia Geller Rudman & Robbins LLP in San Diego, California.
Mr. Abadou concentrates his practice on prosecuting securities class actions and is also a member of the firm's lead plaintiff litigation practice group. Mr. Abadou has been responsible for a number of significant rulings and/or recoveries, including: In re UnitedHealth Group, Inc. Sec. Litig., 2007 U.S. Dist. LEXIS 40623 (D. Minn. 2007); In re Cardinal Health, Inc. Sec. Litig., 22 6 F.R.D. 298 (S.D. Ohio 2005); In re NorthWestern Corp. Sec. Litig., 299 F. Supp. 2d 997 (D.S.D. 2003); Borochoff v. GlaxoSmithKline PLC, 246 F.R.D. 201 (S.D.N.Y.2007); Kuriakose v. Federal Home Loan Mortgage Co., 2008 U.S. Dist. LEXIS 95506 (S.D.N.Y. 2008); In re Direct Gen. Corp. Sec.Litig., 2006 U.S. Dist. LEXIS 56128 (M.D. Tenn. 2006); Ross v. Abercrombie & Fitch Co., 2007 U.S. Dist. LEXIS 24903 (S.D. Ohio 2007) and In re Unumprovident Corp. Sec. Litig., 2003 U.S. Dist. LEXIS 24633 (E.D. Tenn. 2003).
Mr. Abadou was a featured panelist at the American Bar Association's 11th Annual National Institute on Class Actions and was a faculty member at the Practicing Law Institute's 2008 Advanced Securities Litigation Workshop. Mr. Abadou was named as one of the Daily Journal's Top 20 lawyers in California under age 40 for 701 n A4, A1,nAnn hoe Olen 1Pn+-1 A nn --4;- 14irtofinn at *ha Un;17 r-;fU of Con Tlinrtn onil Rnetnn On]]- how schools. He is admitted to the California Bar and is licensed to practice in all California state courts, as well as the United States District Courts for the Southern, Northern, and Central Districts of California.
ANDREW L. BARROWAY, a partner of the firm, received his law degree from the University of Pennsylvania Law School, where he was a member of the ABA Negotiation team. He is licensed to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania. Mr. Barroway frequently lectures on securities class action and lead plaintiff issues, and spoke at the 2005 Institutional Investor Hedge Fund Workshop in New York City and the Public Funds Summit 2005 in Phoenix, Arizona. Mr. Barroway has been actively involved in all aspects of litigation on behalf of the firm and has played pivotal roles in the resolutions of In re The Interpublic Group of Companies Sec. Litig., No. 02Civ. 6527 (S.D.N.Y. 2002) (settled — settlement value of approximately $107 million); In re Digital Lightwave, Inc. Sec. Litig., Consolidated Case No. 98-152-CIVT-24E (M.D. Fla. 1999) (settled — settlement value of $170 million); In re Tyco International, Ltd. Sec. Lit., No. 02-1335-B (D.N.H. 2002) (settled — $3.2 billion); and Kaltman, et al. v Key Energy Services, Inc., et al., No. 04-CV-082-RAJ (W.D. Tex. 2004) (settled — $15.425 million). Mr. Barroway also represents numerous public pension funds, private investment funds, money management firms, and individuals in securities fraud litigation in which Barroway Topaz has been appointed as Lead or Co-Lead Counsel.
STUART L. BERMAN, a partner of the firm, concentrates his practice on securities class action litigation in federal courts throughout the country, with a particular emphasis on representing institutional investors active in litigation. Mr. Berman regularly counsels and educates institutional investors located around the world on emerging legal trends, new case ideas and the rights and obligations of institutional investors as they relate to securities fraud class actions and individual actions. In this respect, Mr. Berman has been instrumental in courts appointing the firm's institutional clients as lead plaintiffs in class actions as well as in representing institutions individually in direct actions. Mr. Berman is currently representing institutional investors in direct actions against Vivendi and Merck, and took a very active role in the precedent setting Shell settlement on behalf of many of the firm's European institutional clients. In Case: 1:08-nc-70000-SO Doc #: a 124-3s Filed: 08/20/10 10 of 31. PageID #: 6252 as they relate to institutional investors, at events such as The European Pension Symposium in Florence, Italy; the Public Funds Symposium in Washington, D.C.; the Pennsylvania Public Employees Retirement (PAPERS) Summit in Harrisburg, Pennsylvania; the New England Pension Summit in Newport, Rhode Island; the Rights and Responsibilities for Institutional Investors in Amsterdam, Netherlands; and the European Investment Roundtable in Barcelona, Spain.
Mr. Berman is an honors graduate from Brandeis University and received his law degree from George Washington University National Law Center.
MICHAEL J. BONELLA, a partner in the firm, concentrates his practice on intellectual property litigation and particularly complex patent litigation. He earned his law degree magna cum laude from the Duke University School of Law. Michael is one of a few attorneys who is both registered to practice before the Patent and Trademark Office and that also holds an LLM degree in Trial Advocacy, which he obtained from Temple University. In addition, Michael obtained a bachelor of science degree cum laude in mechanical engineering from Villanova University. Michael also served five years in the U.S. Naval Submarine program. While serving in the Navy, Michael was certified by the U.S. Navy as a nuclear engineer and received advance training in electrical engineering.
Michael is currently the co-chair of the firm's intellectual property department. Michael has served as the lead lawyer on patent litigations involved pharmaceutical and consumer products. Michael was the case manager for TruePosition, Inc. and was instrumental in achieving a settlement valued at about $45 million for TruePosition, Inc. in TruePosition, Inc. v. Allen Telecom, Inc., No. 01-0823 (D. Del.). Michael has also been the attorney that was primarily responsible for obtaining favorable settlements for defendants (e.g., Codman & Shurtleff, Inc. v. Integra LifeSciences Corp., No. 06-2414 (D. N.J.) (declaratory judgment action). Michael has litigated patent cases involving a wide range of technologies including balloon angioplasty catheters, collagen sponges, neurosurgery, sutures, shoulder surgery, knee surgery, orthopedic implants, pump technology, immunoassay testing, cellular telephones, computer software, signal processing, and electrical hardware. Michael has also served as a case manager for a plaintiff in a multidistrict patent litigation (MDL) involving multiple defendants and complex signal processing
Michael has written numerous articles and most recently authored an article entitled Valuing Patent In Actions After the Supreme Court's eBay Decision (2008). In 2005, Michael was named a Rising Star by Pennsylvania SuperLawyer.
GREGORY M. CASTALDO, a partner of the firm, received his law degree from Loyola Law School, where he received the American Jurisprudence award in legal writing. He received his undergraduate degree from the Wharton School of Business at the University of Pennsylvania. He is licensed to practice law in Pennsylvania and New Jersey.
Mr. Castaldo served as Barroway Topaz's lead litigation partner in In re Tenet Healthcare Corp., No. 02-CV- 8462 (C.D. Cal. 2002), securing an aggregate recovery of $281.5 million for the class, including $65 million from Tenet's auditor. Mr. Castaldo also played a primary litigation role in the following cases: In re Liberate Technologies Sec. Litig., No. C-02-5017 (MJJ) (N.D. Cal. 2005) (settled — $13.8 million); In re Sodexho Marriott Shareholders Litig., Consol. C.A. No. 18640-NC (Del. Ch. 1999) (settled — $166 million benefit); In re Motive, Inc. Sec. Litig., 05-CV-923 (W.D.Tex. 2005) (settled — $7 million cash, 2.5 million shares); and In re Wireless Facilities, Inc., Sec. Litig., 04-CV-1589 (S.D. Cal. 2004) (settled — $16.5 million).
DARREN J. CHECK, a partner of the firm, concentrates his practice in the area of securities litigation and institutional investor relations. He is a graduate of Franklin & Marshall College and received his law degree from Temple University School of Law. Mr. Check is licensed to practice in Pennsylvania and New Jersey.
Currently, Mr. Check concentrates his time as the firm's Director of Institutional Relations and heads up the firm's Portfolio Monitoring and Business Development departments. He consults with institutional investors from Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 11 of 31. PageID #: 6253 around the world regarding their rights and responsibilities with respect to their investments and taking an active role in shareholder litigation. Mr. Check assists clients in evaluating what systems they have in place to identify and monitor shareholder and consumer litigation that has an effect on their funds, and also assists them in evaluating the strength of such cases and to what extent they may be affected by the conduct that has been alleged. He currently works with clients in the United States, Canada, the Netherlands, United Kingdom, France, Italy, Sweden, Denmark, Finland, Norway, Germany, Austria, and Switzerland.
Mr. Check regularly speaks on the subject of shareholder litigation, corporate governance, investor activism, and recovery of investment losses. Mr. Check has spoken at or participated in panel sessions at conferences around the world, including MultiPensions; the European Pension Symposium; the Public Funds Summit; the European Investment Roundtable; The Rights & Responsibilities of Institutional Investors; the Corporate Governance & Responsible Investment Summit; the Public Funds Roundtable; The Evolving Fiduciary Obligations of Pension Plans: Understanding the New Era of Corporate Governance; the International Foundation for Employee Benefit Plans Annual Conference; the Florida Public Pension Trustees Association Annual Conference, the Pennsylvania Association of Public Employees Retirement Systems Annual Meeting; and the Australian Investment Management Summit.
Mr. Check has also been actively involved in the precedent setting Shell settlement, direct actions against Vivendi and Merck, and the class action against Bank of America related to its merger with Merrill Lynch.
EDWARD W. CIOLKO, a partner of the firm, received his law degree from Georgetown University Law Center, and an MBA from the Yale School of Management. He is licensed to practice law in the State of New Jersey, and has been admitted to practice before the United States District Court for the District of New Jersey and the United States Courts of Appeals for the First, Fourth, Ninth and Eleventh Circuits. Mr. Ciolko concentrates his practice in the areas of ERISA, Antitrust, RESPA and Consumer Protection.
Mr. Ciolko is counsel in several pending nationwide ERISA breach of fiduciary duty class actions, brought on behalf of retirement plans and their participants alleging, inter alia, imprudent investment of plan assets which caused significant losses to the retirement savings of tens of thousands of workers. These cases include: In re Beazer Homes USA, Inc. ERISA Litig., 07-CV-00952-RWS (N.D. Ga. 2007); Nowak v. Ford Motor Co., 240 F.R.D. 355 (E.D. Mich. 2006); Gee v. UnumProvident Corp., 03-1552(E.D. Tenn. 2003); Pettit v. JDS Uniphase Corp. et al., C.A. No. 03-4743 (N.D. Ca. 2003); Hargrave v. TXU, et al., C.A. No. 02-2573 (N.D. Tex. 2002); Evans v. Akers, C.A. No. 04-11380 (D. Mass. 2004); Lewis v. El Paso Corp. No. 02-CV-4860 (S.D. Tex. 2002); and In re Schering-Plough Corp. ERISA Litig. No. 03-CV-1204 (D.N.J. 2003).
Mr. Ciolko's efforts have also helped achieve a number of large recoveries for affected retirement plan participants: In re Sears Roebuck & Co. ERISA Litig., C.A. No. 02-8324 (N.D. Ill. 2002) (settled — $14.5 million recovery); and In re Honeywell Intern'l ERISA Litig., No. 03-CV-1214 (DRD) (D.N.J. 2003) (settled — $14 million recovery, as well as significant structural relief regarding the plan's administration and investment of its assets).
Mr. Ciolko has also concentrated part of his practice to the investigation and prosecution of pharmaceutical antitrust actions, medical device litigation, and related anticompetitive and unfair business practices including In re Wellbutrin SR Antitrust Litigation, 04-CV-5898 (E.D. Pa. Dec. 17, 2004); In re Remeron End-Payor Antitrust Litigation, Master File No. 02-CV-2007 (D.N.J. Apr. 25, 2002); In re Modafinil Antitrust Litigation, 06-2020 (E.D. Pa. May 12, 2006); In re Medtronic, Inc. Implantable Defibrillator Litigation, 05-CV-2700 (D. Minn 2005); and In re Guidant Corp. Implantable Defibrillator Litigation, 05-CV-2883 (D. Minn. 2005).
Before coming to Barroway Topaz, Mr. Ciolko worked for two and one-half years as a Law Clerk and Attorney Advisor to Commissioner Sheila F. Anthony of the Federal Trade Commission ("FTC"). While at the FTC, Mr. Ciolko reviewed commission actions/investigations and counseled the Commissioner on a wide range of antitrust and consumer protection topics including, in pertinent part: the confluence of antitrust and intellectual property law; research and production of "Generic Drug Entry Prior to Patent Expiration: An FTC Study," and an administrative complaint against, among others, Schering-Plough Corporation regarding allegedly unlawful QaWOn -l1c-7&&&&-MnRo n1?4nFile&n&8/?&/1&n n31bnPa Rn#'sn6?% (K-Dur).
SEAN M. HANDLER, a partner of the firm, received his Bachelor of Arts degree from Colby College, graduating with distinction in American Studies. Mr. Handler then earned his Juris Doctor, cum laude, from Temple University School of Law.
After law school, Mr. Handler practiced labor law at Reed Smith, LLP in Philadelphia. Since joining Barroway Topaz, Mr. Handler has concentrated his practice in the area of securities litigation, with a particular emphasis on litigation strategy and lead plaintiff litigation. In this role, Mr. Handler has been responsible for numerous reported decisions.
In addition to these responsibilities, Mr. Handler also spends considerable time litigating ongoing securities litigation matters on behalf of institutional clients including In re Delphi Corporation Sec. Litig., No. 06-10026 (GER) (E.D. MI. 2006); Smajlaj v. Brocade Communications Systems, Inc., et al., No. 05-cv-02042(CRB) (N.D. Cal. 2005); and State of New Jersey and Its Division of Investment v. Sprint Corporation, et al., No. 03-2071-JWL (D. Kan. 2003).
MICHAEL J. HYNES, a partner of the firm, received his law degree from Temple University School of Law, and is a graduate of Franklin and Marshall College. Mr. Hynes is licensed to practice law in Pennsylvania, New Jersey and Montana, and has been admitted to practice in the United States Court of Appeals for the Ninth Circuit, and the United States District Courts for the Eastern and Middle Districts of Pennsylvania. Prior to joining Barroway Topaz, Mr. Hynes practiced law at Cozen O'Connor, where he concentrated on bankruptcy and commercial litigation. He was an attorney with the Defenders' Association of Philadelphia from 1991 to 1996, where he defended thousands of misdemeanor and felony cases. At Barroway Topaz, Mr. Hynes concentrates his practice in the area of shareholder derivative litigation.
JOHN A. KEHOE, a partner of the firm, received his B.A. from DePaul University and M.P.A., with high honors, from the University of Vermont. He earned his J.D., magna cum laude, from Syracuse University College of Law, where he was Associate Editor of the Syracuse Law Review, Associate Member of the Moot Court Board, and Alternate Member on the National Appellate Team.
Mr. Kehoe has litigated many high profile securities and antitrust actions in state and federal courts, including Ohio Public Employees Retirement System et al. v. Freddie Mac et al., 03-CV-4261 (S.D.N.Y.) (resulting in a $410 million combined class and derivative settlement); In re Bristol-Myers Squibb Sec. Litig., 02-CV-22 51 (S.D.N.Y.) (resulting in a $300 million class settlement); In re Adelphia Communications Corp.Sec. & Der. Litig., No. 03 MD 1529 (S.D.N.Y.) (resulting in a $460 million class settlement); and In re Vitamins Antitrust Litig., MDL No. 1285 (D.D.C.) (resulting in more than $2 billion in federal and state class and direct action settlements). Mr. Kehoe is currently among the lead trial attorneys representing individual and institutional investors in 309 separate class actions that have been consolidated for pretrial purposes in In re Initial Public Offering Sec. Litig., No. 21 MC 92 (S.D.N.Y.).
Prior to joining Barroway Topaz Kessler Meltzer & Check, Mr. Kehoe spent six years as a litigation associate with Clifford Chance LLP, where he represented Fortune 100 corporations and their officers and directors in complex commercial litigation and criminal or civil actions brought by the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission. From 1986 to 1994, he served as a police officer in the State of Vermont, where he was a member of the Special Reaction Team and Major Accident Investigation Team.
Mr. Kehoe is currently admitted to practice before the courts of New York State, the U.S. District Court for the Southern District of New York, the Court of Appeals for the Second Circuit, and the Court of Appeals for the Eleventh Circuit.
DAVID KESSLER, a partner of the firm, graduated with distinction from the Emory School of Law. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 13 of 31. PageID #: 6255 He is licensed to practice in Pennsylvania, New Jersey and New York, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania, the United States District Court for the District of New Jersey, and the United States District Court for the Southern District of New York. Prior to practicing law, Mr. Kessler was a Certified Public Accountant in Pennsylvania. In addition, Mr. Kessler often lectures on securities litigation related topics. Mr. Kessler also manages the firm's nationally recognized securities department and in this capacity, has achieved or assisted in obtaining Court approval for the following outstanding results in federal securities and consumer class action cases: In re Tyco International, Ltd. Sec. Lit., No. 02-1335-B (D.N.H. 2002) (settled — $3.2 billion); In re PNC Financial Services Group, Inc. Sec. Litig., Case No. 02-CV-271 (W.D. Pa. 2002) (settled — $45.675million); Henry v. Sears, et al., Case No. 98 C 4110 (N.D. Ill. 1999) (settled — $156 million); In re Assisted Living Concepts, Inc. Sec. Litig., Lead Case No. 99-167-AA (D. Or. 1999) (settled — $42.5 million); In re Tenet Healthcare Corp. Sec. Litig., No. CV-02-8462-RS WL (Rx) (C.D. Cal. 2002) (settled — $216.5 million with Company and $65 million with auditor). Mr. Kessler is also currently serving as the firm's primary litigation partner in what is widely recognized as the largest securities class action case in history in In re Initial Public Offering Sec. Litig., Master File No. 21 MC 92(SAS) (S.D.N.Y. Dec. 12, 2002).
PETER ("Tad") H. LeVAN, Jr., a partner of the firm, graduated with distinction from the University of Cincinnati College of Law, where he was a member of the University of Cincinnati Law Review and received the Awards for Excellence in Criminal Law and Conflicts of Law. Mr. LeVan received his undergraduate degree, cum laude and Phi Beta Kappa, from Miami University. Upon graduating from law school, Mr. LeVan served as judicial clerk to the Honorable John M. Manos of the United States District Court for the Northern District of Ohio. Mr. LeVan is licensed to practice law in Pennsylvania, New Jersey and Ohio. In addition, he is admitted to practice before the United States District Courts for the Eastern District of Pennsylvania, the Middle District of Pennsylvania, the District of New Jersey, and the Northern District of Ohio, as well as the United States Courts of Appeals for the Third, Sixth and Federal Circuits.
Mr. LeVan's practice focuses on ERISA and other complex litigation. A Fellow of the Academy of Advocacy at the Temple University School of Law, Mr. LeVan was the Recipient of the Equal Justice Award, given in recognition of his outstanding dedication and pro bono service to the cause of equal justice.
Prior to joining Barroway Topaz, Mr. LeVan was a shareholder at the law firm of Hangley Aronchick Segal & Pudlin, where he also served on the firm's Board of Directors.
JOSEPH H. MELTZER, a partner of the firm and a member of Barroway Topaz's Management Committee, concentrates his practice in the areas of ERISA and Antitrust complex litigation.
Mr. Meltzer leads the firm's ERISA Litigation Department, which has excelled in the highly specialized area of prosecuting claims on behalf of participants in 401(k) and other retirement savings plans. Mr. Meltzer is lead counsel in numerous nationwide class actions brought under ERISA, including Lewis v. El Paso Corp., 02-CV- 4860 (S.D. Tex. Dec. 19, 2002); In re Loral Space ERISA Litig., 03-CV-9729 (S.D.N.Y. Dec. 8, 2003) and In re Schering-Plough Corp. ERISA Litig., 03-CV-1204 (D.N.J. Mar. 18, 2003). Since founding the ERISA Litigation Department, Mr. Meltzer has recovered well over $250 million for retirement plan participants, including in In re AOL Time Warner ERISA Litig., C.A. No. 02-8853 (S.D.N.Y. 2002) (settled — $100 million) and In re Global Crossing Ltd. ERISA Litig., No. 02-7453 (S.D.N.Y. 2002) (settled — $79 million).
A frequent lecturer on ERISA litigation and employee benefits issues, Mr. Meltzer is a member of the ABA's Section Committee on Employee Benefits and has been recognized by numerous courts for his ability and expertise in this complex area of the law.
Mr. Meltzer also manages the firm's Antitrust and Pharmaceutical Pricing practice groups. Here, Mr. Meltzer focuses on helping clients that have been injured by anticompetitive and unlawful business practices, including with respect to overcharges related to prescription drug and other health care expenditures. Mr. Meltzer serves as lead counsel in numerous nationwide actions representing such clients as the Pennsylvania Turnpike Commission, the Southeastern Pennsylvania Transportation Authority (SEPTA) and the Sidney Hillman Health Center of Case:r: 1:08-nc-70000-SO Doc #:124-3 to Filed: 08/20/10 14 of 31. PageID #: 6256 f his success in these areas include In re Remeron Antitrust Litig., 02-CV-2007 (D.N.J.) (settled — $36 million) and In re Augmentin Antitrust Litig., 02-442(E.D. Va.) (settled $29 million). Mr. Meltzer lectures on issues related to antitrust litigation and is a member of the ABA's Section Committee on Antitrust Law.
Mr. Meltzer is an honors graduate of the University of Maryland and received his law degree with honors from Temple University School of Law. Honors include being named a Pennsylvania Super Lawyer in 2008.
PAUL B. MILCETIC, a partner in the firm, concentrates his practice in the area of patent and intellectual property litigation. He earned his law degree from the Cornell Law School, received an LLM in trial advocacy from the Temple University School of Law and also holds a degree in Computer Science from Rutgers University, summa cum laude. Paul is licensed to practice law in Pennsylvania, New York and New Jersey.
He is currently co-chair of the firm intellectual property litigation department. Paul has been the lead trial lawyer on multiple patent litigations. In 2007, Paul achieved a $45 million patent infringement verdict as lead trial lawyer in TruePosition v Andrew Corp. and in 2009 he successfully argued for a $20 million post verdict punitive damages award. Paul was quoted in the following articles that spotlighted some recent achievements: "Philadelphia Lawyers Win $45 Mil in Patent Case," The Legal Intelligencer, September 19, 2007 and "Cell Phone Co. Loses Gamble, Ordered to Pay $20 Mil. More in Damages," Delaware Law Weekly, May 20, 2009. According to Chambers USA 2010, Paul is "confident and assertive in the courtroom."
Paul is a frequent speaker on topics relating to intellectual property. He was recently interviewed by the Law Business Inside Radio Show. He is also the author of a book about standards related patent litigation that was published in January 2008 entitled "Technology Patent Infringement Case Strategies." In 2009 and 2010, Paul was named a Pennsylvania Superlawyer.
PETER A. MUHIC, a partner of the firm, is a graduate of Syracuse University and an honors graduate of the Temple University School of Law, where he was Managing Editor of the Temple Law Review and also was a member of the Moot Court Board. He is licensed to practice law in Pennsylvania and New Jersey and also is admitted to practice before the United States Courts of Appeals for the Third, Fifth Circuits and Ninth Circuits, the United States District Courts for the Eastern and Middle Districts of Pennsylvania and the District Court of New Jersey.
Mr. Muhic has substantial trial experience involving complex actions in federal and state courts throughout the country. In 2009, Mr. Muhic was co-lead trial counsel in one of the few class action ERISA cases ever to be tried, which involved claims against the fiduciaries of the 401k plan of an S&P 500 company for imprudent investment in company stock and misrepresentations to plan participants. In addition to his significant trial recoveries, he has successfully resolved numerous actions through arbitrations and mediations in an array of forums. Mr. Muhic currently prosecutes class actions and/or collective actions concerning the FLSA, ERISA, FHA, ECOA and numerous state consumer protection statutes and laws. Prior to joining Barroway Topaz Kessler Meltzer and Check, Mr. Muhic was a senior member of a prominent national firm based in Philadelphia.
Mr. Muhic serves as a Judge Pro Tern for the Court of Common Pleas of Philadelphia County, is a former Board Member of the SeniorLAW Center in Philadelphia and a past recipient of the White Hat Award for outstanding pro bono contributions to the Legal Clinic for the Disabled, a nonprofit organization in Philadelphia.
MATTHEW L. MUSTOKOFF, a partner of the firm, is an experienced securities and corporate governance litigator. He has represented clients at the trial and appellate level in the federal and state courts and before arbitration panels. Mr. Mustokoff has litigated numerous high-profile shareholder class actions and derivative lawsuits involving a wide array of matters, including accounting irregularities and financial fraud, market manipulation, market timing and late trading of mutual funds, and backdating of stock options. He is also experienced in mergers and acquisitions cases and other corporate transactional litigation implicating the fiduciary responsibilities of directors and officers. Ca see 1e08-nc-70000-SO Doc #e 1 24-3 Filede 08/20/10 15 of 31.e PageI D #e 6257 Prior eil, represented public companies and financial institutions in SEC enforcement and white collar criminal matters, shareholder litigation and contested bankruptcy proceedings. He also conducted internal investigations on behalf of boards of directors, audit committees and special litigation committees in connection with parallel civil, criminal and regulatory actions.
Mr. Mustokoff currently serves as Co-Chair of the American Bar Association's Subcommittee on Securities Class Actions and Derivative Litigation. He writes frequently on developments in corporate and securities litigation. His articles include: "The Pitfalls of Waiver in Corporate Prosecutions: Sharing Work Product with the Government and the Future of Non-Waiver Agreements," Securities Regulation Law Journal (Fall 2009); "Scheme Liability Under Rule lOb-5: The New Battleground in Securities Fraud Litigation," The Federal Lawyer (June 2006); "District Court Weighs Novel Theories of Rule l Ob-5 Liability in Mutual Fund Market Timing Litigation," Securities Regulation Law Journal (Spring 2006); "Sovereign Immunity and the Crisis of Constitutional Absolutism: Interpreting the Eleventh Amendment After Alden v. Maine," Maine Law Review (2001).
Mr. Mustokoff is a Phi Beta Kappa honors graduate of Wesleyan University. He received his law degree from the Temple University School of Law, where he was the articles and commentary editor of the Temple Political and Civil Rights Law Review and the recipient of the Raynes, McCarty, Binder, Ross and Mundy Graduation Prize for scholarly achievement in the law. As a third year law student, he served as intern law clerk to The Honorable Anthony J. Scirica, Chief Judge of the United States Court of Appeals for the Third Circuit.
Mr, Mustokoff is admitted to practice in the courts of the State of New York and before the United States District Courts for the Southern and Eastern Districts of New York.
SHARAN NIRMUL, a partner of the firm, focuses on securities and corporate governance litigation. He has represented investors successfully in major securities fraud litigation including financial frauds involving Global Crossing Ltd, Qwest Communications International, WorldCom Inc., Delphi Corp., Marsh and McLennan Companies, Inc. and Able Laboratories. Mr. Nirmul has also represented shareholders in derivative and direct shareholder litigation in the Delaware Chancery Court and in other state courts around the country. Prior to joining the firm, Mr. Nirmul was associated with the Wilmington, Delaware law firm of Grant & Eisenhofer, P.A.
Sharan Nirmul received his law degree from The George Washington University Law School (J.D. 2001) where he served as an articles editor for the Environmental Lawyer Journal and was a member of the Moot Court Board. He was awarded the school's Lewis Memorial Award for excellence in clinical practice. He received his undergraduate degree from Cornell University (B.S. 1996).
Mr. Nirmul is admitted to practice law in the state courts of New York, New Jersey, Pennsylvania and Delaware and in the U.S. District Courts for the Southern District of New York, District of New Jersey, District of Delaware, and District of Colorado.
KAREN E. REILLY, a partner of the firm, received her law degree from Pace University School of Law, where she was a member of the Moot Court Board and National Moot Court Team. Ms. Reilly received her undergraduate degree from the State University of New York College at Purchase. She is licensed to practice law in Pennsylvania, New Jersey, New York, Connecticut and Rhode Island, and has been admitted to practice before the United States District Courts for the Eastern District of Pennsylvania, District of New Jersey, Southern and Eastern Districts of New York, and the District of Connecticut. Prior to joining Barroway Topaz, Ms. Reilly practiced at Pelino & Lentz, P.C., in Philadelphia, where she litigated a broad range of complex commercial cases. Ms. Reilly concentrates her practice in the area of securities litigation.
In addition to actively litigating and assisting in achieving the historic Tyco settlement, Ms. Reilly has also assisted in achieving settlements in the following cases in which Barroway Topaz has served as lead or co- lead counsel: In re Liberate Technologies Sec. Litig., No. C-02-5017 (N.D. Cal. 2005) (settled - $13.8 million); In Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 16 of 31. PageID #: 6258 re Vodafone Group, PLC Sec. Litig., 02-CV-7592 (S.D.N.Y. 2002) (settled — $24.5 million); In re Check Point Technologies Ltd. Sec. Litig., 03-CV-6594 (S.D.N.Y. 2003) (settled — $13 million); In re Cornerstone Propane Partners LP Sec. Litig., 03-CV-2522 (N.D. Cal. 2003) (settled — $13.5 million); In re CVS Corporation Sec. Litig., C.A. No. 01-11464 JLT (D.Mass. 2001) (settled— $110 million); and In re ProQuest Company Sec. Litig., No. 2:06-CV-10619 (E.D. Mich. 2006) (settled - $20 million).
LEE D. RUDY, a partner of the firm, concentrates his practice in the areas of mergers and acquisition litigation and shareholder derivative actions. Most recently, Mr. Rudy has served as lead counsel in numerous high profile derivative actions relating to the "backdating" of stock options, including In re Monster Worldwide, Inc. Derivative Litigation, Index No. 06-108700 (New York County, NY); In re Barnes & Noble, Inc. Derivative Litig., Index No. 06-602389 (New York County, NY); In re Affiliated Computer Services, Inc. Derivative Litig., Cause No. 06-3403 (Dallas County, TX); In re Sepracor, Inc. Derivative Litig., Case No. 06-4057-BLS (Suffolk County, MA); and In re Family Dollar Stores, Inc. Derivative Litig., Master File No. 06-CVS-16796 (Mecklenburg County, NC). Settlements of these, and similar actions, have resulted in significant monetary and corporate governance improvements for those companies and their public shareholders.
Mr. Rudy has also served as lead counsel on behalf of shareholders of companies challenging mergers and other going-private transactions, including In re William Lyon Homes Shareholder Litigation, Consol. CA No. 2015-N (DE Ch. 2006) ($35 million class benefit); and In re Insight Communications Company, Inc. Shareholders Litigation, Consol. CA No. 1154-N (DE Ch. 2005) ($53.5 million class benefit).
Mr. Rudy has significant courtroom experience, both in trial and appellate courts across the country. Prior to civil practice, Mr. Rudy served for several years as an Assistant District Attorney in the Manhattan (NY) District Attorney's Office, and as an Assistant United States Attorney in the US Attorney's Office (DNJ). He has tried dozens of cases before juries in state and federal court, including several major fraud cases. He received his law degree from Fordham University, and his undergraduate degree, cum laude, from the University of Pennsylvania.
BENJAMIN J. SWEET, a partner of the firm, received his juris doctor, cum laude, from The Dickinson School of Law of the Pennsylvania State University, and his BA, cum laude, from the Schreyer Honors College of The Pennsylvania State University. While in law school, Mr. Sweet served as Articles Editor of the Dickinson Law Review, and was also awarded Best Oral Advocate and Best Team in the ATLA Mock Trial Competition.
Mr. Sweet concentrates his practice exclusively in the area of securities litigation and has helped obtain significant recoveries on behalf of class members in several nationwide federal securities class actions, including In re Tyco, Int'l Sec. Litig., No. 02-1335-B (D.N.H.) ($3.2 billion total recovery for class members), In re CVS, Inc. Sec. Litig., No. 01-11464-JLT (D. Mass.) ($110 million recovery for class members), In re PNC Fin. Svcs. Group Inc. Sec. Litig., No. 02-CV-271 (W.D. Pa.) ($39 million recovery for class members) and In re Wireless Facilities, Inc. Sec. Litig., No. 04-cv-01589, (S.D. Ca.) ($12 million recovery for class members).
Mr. Sweet is currently serving as one of the litigating partners in several nationwide federal securities class actions, including In re Pfizer Inc. Sec. Litig., No. 04-Civ 9866 (LTS) (S.D.N.Y.), In re Thornburg Mortgage, Inc. Sec. Litig., 1:07-cv-00815413-WDS (D.N.M.), In re Citigroup Inc. Bond Litigation, No. 08-Civ-9522 (SHS), (S.D.N.Y.), In re Wachovia Preferred Securities and Bond/Notes Litig., No. 09-Civ. 6351 (RJS), (S.D.N.Y.) and In re NeuroMetrix Inc. Sec. Litig., No. 08-cv-10434-RWZ (D. Mass.).
Prior to joining Barroway Topaz, Mr. Sweet practiced with Reed Smith LLP in Pittsburgh, where he specialized in antitrust and complex civil litigation. Mr. Sweet is licensed to practice law in the Commonwealth of Pennsylvania, the United States District Court for the Western District of Pennsylvania, and the United States Courts of Appeals for the Second, Third and Ninth Circuits.
Honors include being selected by his peers as a Pennsylvania Super Lawyers Rising Star, a distinction bestowed annually on no more than 2.5% of Pennsylvania lawyers under the age of 40. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 17 of 31. Pag eID #: 6259 he was an editor of the Temple Law Review and a member of the Moot Court Honor Society. He also received his Master of Law (L.L.M.) in taxation from the New York University School of Law, where he served as an editor of the New York University Tax Law Review. He is licensed to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania. Mr. Topaz oversees the firm's derivative, transactional and case development departments. In this regard, Mr. Topaz has been heavily involved in all of the firm's cases related to the subprime mortgage crisis, including cases seeking recovery on behalf of shareholders in companies affected by the subprime crisis, as well as cases seeking recovery for 401K plan participants that have suffered losses in their retirement plans. Mr. Topaz has also played an instrumental role in the firm's option backdating litigation. These cases, which are pled mainly as derivative claims or as securities law violations, have served as an important vehicle both for re-pricing erroneously issued options and providing for meaningful corporate governance changes. In his capacity as the firm's department leader of case initiation and development, Mr. Topaz has been involved in many of the firm's most prominent cases, including In re Initial Public Offering Sec. Litig., Master File No. 21 MC 92(SAS) (S.D.N.Y. Dec. 12, 2002); Wanstrath v. Doctor R. Crants, et al., No. 99-1719-111 (Tenn. Chan. Ct., 20th Judicial District, 1999); In re Tyco International, Ltd. Sec. Lit., No. 02-1335-B (D.N.H. 2002) (settled — $3.2 billion); and virtually all of the 80 options backdating cases in which the firm is serving as Lead or Co-Lead Counsel. Mr. Topaz has played an important role in the firm's focus on remedying breaches of fiduciary duties by corporate officers and directors and improving corporate governance practices of corporate defendants.
MICHAEL C. WAGNER, a partner of the firm, handles class-action transactional litigation and shareholder derivative litigation for the Firm's individual and institutional clients. Since joining Barroway Topaz, Mr. Wagner has enjoyed success in cases that achieved substantial monetary recoveries for stockholders of public companies in cases arising from corporate mergers and acquisitions, including: In re Genentech, Inc. Shareholders Litigation, Consolidated C.A. No. 3911-VCS (Del. Ch.) (settlement achieved a $3.9 billion benefit for Genentech's stockholders in a merger with Roche); In re Anheuser Busch Companies, Inc. Shareholders Litigation, Consolidated C.A. No. 3851-VCP (Del. Ch.) (settlement required enhanced disclosures to stockholders and resulted in a $5 per share increase in the price paid by InBev in its acquisition of Anheuser-Busch).
Mr. Wagner has also had a lead role in litigation that resulted in enhanced shareholder rights and corporate reforms in merger contexts, including: In re SkyTerra Communications, Inc. Shareholder Litigation, Consolidated C.A. No. 4987-CC (Del. Ch.) (settlement requires that a going-private merger with a controlling stockholder be approved by a majority vote of unaffiliated minority stockholders) (pending); In re Emulex Shareholder Litigation, Consolidated C.A. No. 4536-VCS (Del. Ch.) (litigation caused company to redeem "poison pill" stock plan and rescind supermajority bylaw); Solomon v. Take-Two Interactive Software, Inc., C.A. No. 3064-VCL (Del. Ch.) (settlement required substantial enhanced disclosures to stockholders regarding executive compensation matters in advance of director elections, and litigation caused company to redeem "poison pill" stock plan). Mr. Wagner has also been involved in shareholder derivative cases involving executive compensation matters, such as In re KV Pharmaceutical Co., Inc., Derivative Litigation, Case No. 4:07-cv-00384- HEA (E.D. Mo.) (litigation caused executives to make financial remediation of approximately $3 million and resulted in enhanced internal controls at the company concerning financial reporting); In re Medarex, Inc. Derivative Litigation, Case No. MER-C-26-08 (N.J. Super.) (settlement resulted in approximately $9 million in financial remediation and substantial corporate governance reforms related to executive compensation).
A graduate of Franklin and Marshall College and the University of Pittsburgh School of Law, Mr. Wagner has clerked for two appellate court judges and began his practice as a commercial litigator at a Philadelphia-based litigation firm, representing clients in business and corporate disputes across the United States. Mr. Wagner has also represented Fortune 500 companies in employment litigation. He has extensive nationwide litigation experience and is admitted to practice in the courts of Pennsylvania, the United States Court of Appeals for the Third Circuit, and the United States District Courts for the Eastern and Western Districts of Pennsylvania, the Eastern District of Michigan, and the District of Colorado.
ROBIN WINCHESTER, a partner of the firm, received her Bachelor of Science degree in Finance from St. Joseph's University. Ms. Winchester then earned her Juris Doctor degree from Villanova University School of Law, Casev 1v08-nIs-70000-SO DoIs #v 124-i Filedv 08/20/10 18 of i1. PageID #v 6260 as a law clerk to the Honorable Robert F. Kelly in the United States District Court for the Eastern District of Pennsylvania.
After joining BTKMC, Ms. Winchester concentrated her practice in the areas of securities litigation and lead plaintiff litigation. Presently, Ms. Winchester concentrates her practice in the area of shareholder derivative actions, and, most recently, has served as lead counsel in numerous high-profile derivative actions relating to the backdating of stock options, including In re Eclipsys Corp. Derivative Litigation, Case No. 07-80611-Civ- MIDDLEBROOKS (S.D. Fla.); In re Juniper Derivative Actions, Case No. 5:06-cv-3396-JW (N.D. Cal.); In re McAfee Derivative Litigation, Master File No. 5:06-cv-03484-JF (N.D. Cal.); In re Quest Software, Inc. Derivative Litigation, Consolidated Case No. 060000 1 15 (Cal. Super. Ct., Orange County); and In re Sigma Designs, Inc. Derivative Litigation, Master File No. C-06-4460-RMW (N.D. Cal.). Settlements of these, and similar, actions have resulted in significant monetary returns and corporate governance improvements for those companies, which, in turn, greatly benefits their public shareholders.
MICHAEL K. YARNOFF, a partner of the firm, received his law degree from Widener University School of Law. Mr. Yarnoff is licensed to practice law in Pennsylvania, New Jersey, and Delaware and has been admitted to practice before the United States District Courts for the Eastern District of Pennsylvania and the District of New Jersey. In addition to actively litigating and assisting in achieving the historic Tyco settlement, Mr. Yamoff served as the primary litigating partner on behalf of Barroway Topaz in the following cases: In re CVS Corporation Sec. Litig., C.A. No. 01-11464 JLT (D.Mass. 2001) (settled — $110 million); In re Transkaryotic Therapies, Inc. Sec. Litig., Civil Action No. 03-10165-RWZ (D.Mass. 2003) (settled — $50 million); In re Riverstone Networks, Inc. Sec. Litig., Case No. CV-02-3581 (N.D. Cal. 2002) (settled — $18.5 million); In re Zale Corporation Sec. Litig., 06-CV-1470 (N.D. Tex. 2006) (settled — $5.9 million); Gebhard v. ConAgra Foods Inc., et al., 04-CV-427 (D. Neb. 2004) (settled — $14 million); Reynolds v. Repsol YPF, S.A., et al., 06-CV-733 (S.D.N.Y. 2006) (settled — $8 million); and In re InfoSpace, Inc. Sec. Litig., 01-CV -913 (W.D. Wash. 2001) (settled — $34.3 million).
ERIC L. ZAGAR, a partner of the firm, received his law degree from the University of Michigan Law School, cum laude, where he was an Associate Editor of the Michigan Law Review. He has practiced law in Pennsylvania since 1995, and previously served as a law clerk to Justice Sandra Schultz Newman of the Pennsylvania Supreme Court. He is admitted to practice in Pennsylvania, California, and New York. In addition to his extensive options backdating practice, Mr. Zagar concentrates his practice in the area of shareholder derivative litigation. In this capacity, Mr. Zagar has served as Lead or Co-Lead counsel in numerous derivative actions in courts throughout the nation, including David v. Wolfen, Case No. 01-CC-03930 (Orange County, CA 2001) (Broadcom Corp. Derivative Action); and In re Viacom, Inc. Shareholder Derivative Litig., Index No. 602527/05 (New York County, NY 2005). Mr. Zagar has successfully achieved significant monetary and corporate governance relief for the benefit of shareholders, and has extensive experience litigating matters involving Special Litigation Committees. Mr. Zagar is also a featured speaker at Barroway Topaz's annual symposium on corporate governance.
ANDREW L. ZIVITZ, a partner of the firm, received his law degree from Duke University School of Law, and received a Bachelor of Arts degree, with distinction, from the University of Michigan, Ann Arbor.
Prior to joining Barroway Topaz, Mr. Zivitz practiced at Drinker Biddle & Reath, LLP, litigating complex commercial and environmental matters.
Mr. Zivitz concentrates his practice in the area of securities litigation. In this respect, Mr. Zivitz has served as one of the litigating partners on the following settled matters in which Barroway Topaz was Lead or Co-Lead Counsel: In re Tenet Healthcare Corp., 02-CV-8462 (C.D. Cal. 2002) (settled — $281.5 million); In re Computer Associates Sec. Litig., No. 02-CV-122 6 (E.D.N.Y. 2002) (settled — $150 million); In re McLeod USA Inc. Sec. Litig., No. CO2-0001-MWB (N.D. Iowa 2002) (settled — $30 million); In re Barrick Gold Sec. Litig., 03-cv- 04302 (S.D.N.Y. 2003) (settled — $24 million), In re Friedman's, Inc. Sec. Litig., 03-CV-3475 (N.D. Ga. 2003) (settled — $14.95 million); In re Check Point Technologies Ltd. Sec. Litig., 03-CV-6594 (S.D.N.Y. 2003) (settled Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 19 of 31. PageID #: 6261 — $13 million); In re Avista Corporation Sec. Litig., 03-CV-328 (E.D. Wash. 2003) (settled — $9.5 million); and In re Ligand Pharmaceuticals, Inc. Sec. Litig., 3:04 cv 01620 (S.D. Cal. 2004) (settled — $8 million).
Mr. Zivitz is admitted to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania and the United States District Court for the District of New Jersey. Mr. Zivitz also has litigated cases in federal district and appellate courts throughout the country, including two successful appeals before the United States Court of Appeals for the Ninth Circuit in In re Merix Sec. Litig., 04-cv-00826 (D.Or. 2004) and In re Leadis Sec. Litig., 05-cv-00882 (N.D.Ca. 2005). Mr. Zivitz also lectures and serves on discussion panels concerning securities litigation matters. Mr. Zivitz recently was a faculty member at the Pennsylvania Bar Institute's workshop entitled, "Securities Liability in Turbulent Times: Practical Responses to a Changing Landscape."
ASSOCIATES AND OTHER PROFESSIONALS
JULES D. ALBERT, an associate of the firm, concentrates his practice in mergers and acquisition litigation and stockholder derivative litigation. Mr. Albert is licensed to practice law in Pennsylvania, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania.
Mr. Albert has litigated in state and federal courts across the country, and has represented stockholders in numerous actions that have resulted in significant monetary recoveries and corporate governance improvements, including: In re Sunrise Senior Living, Inc. Deriv. Litig., No. 07-00143 (D.D.C.); Mercier v. Whittle, et al., No. 2008-CP-23-8395 (S.C. Ct. Com . Pl., 13th Jud. Cir.); In re K- V Pharmaceutical Co. Deriv. Litig., No. 06-00384 (E.D. Mo.); In re Progress Software Corp. Deriv. Litig., No. SUCV2007-01937-BLS2 (Mass. Super. Ct., Suffolk Cty.); In re Quest Software, Inc. Deriv. Litig. No 060000 115 (Cal. Super. Ct., Orange Cty.); and Quaco v. Balakrishnan, et al., No. 06-2811 (N.D. Cal.).
Mr. Albert received his law degree from the University of Pennsylvania Law School, where he was a Senior Editor of the University of Pennsylvania Journal of Labor and Employment Law and recipient of the James Wilson Fellowship. Mr. Albert also received a Certificate of Study in Business and Public Policy from The Wharton School at the University of Pennsylvania. Mr. Albert graduated magna cum laude with a Bachelor of Arts in Political Science from Emory University.
NAUMON A. AMJED, an associate of the firm, has significant experience conducting complex litigation in state and federal courts including federal securities class actions, shareholder derivative actions, suits by third-party insurers and other actions concerning corporate and alternative business entity disputes. Mr. Amjed has litigated in numerous state and federal courts across the country, including the Delaware Court of Chancery, and has represented shareholders in several high profile lawsuits, including: LAMPERS v. CBOT Holdings, Inc. et al., C.A. No. 2803-VCN (Del. Ch.); In re Alstom SA Sec. Litig., 454 F. Supp. 2d 187 (S.D.N.Y. 2006); In re Global Crossing Sec. Litig., 02— Civ. — 910 (S.D.N.Y.); In re Enron Corp. Sec. Litig., 465 F. Supp. 2d 687 (S.D. Tex. 2006); and In re Marsh McLennan Cos., Inc. Sec. Litig. 501 F. Supp. 2d 452 (S.D.N.Y. 2006).
Prior to joining the firm, Mr. Amjed was associated with the Wilmington, Delaware law firm of Grant & Eisenhofer, P.A. Mr. Amjed is a graduate of the Villanova University School of Law, cum laude, and holds an undergraduate degree in business administration from Temple University, cum laude. Mr. Amjed is a member of the Delaware State bar and is admitted to practice before the United States Court for the District of Delaware.
ANTHONY ANDREOLI, a staff attorney at the firm, received his law degree from Villanova University School of Law. Mr. Andreoli received his undergraduate degree, cum laude, from the University of Pennsylvania, where he concentrated in finance. Prior to Casel 1l08AncA70000ASO D qc #l 124A3 Filedl 08/20/10 20 qf 31. PageI D #l 6262 White Collar Litigation department. Mr. Andreoli is licensed to practice law in Pennsylvania and New Jersey, and concentrates his practice on securities fraud.
ALI M. AUDI, a staff attorney at the firm, received his law degree from The Pennsylvania State University, Dickinson School of Law, where he was a member of the Trial and Appellate Moot Court boards. He received his Bachelor of Arts in Journalism from The Pennsylvania State University. Mr. Audi is licensed to practice before the state courts of Pennsylvania and New Jersey, and the United States District Court for the District of New Jersey. He concentrates his practice in the area of securities litigation.
KRYSTN AVDOVIC, a staff attorney at the firm, received her law degree from the University of Miami School of Law and her undergraduate degree in Political Science and Spanish, cum laude, from Mount Saint Mary's University.
Prior to joining Barroway Topaz, Ms. Avdovic practiced employment law and was in-house counsel at Philadelphia Corporation for Aging. Ms. Avdovic is licensed to practice law in Pennsylvania and Nevada and is admitted to practice in the United States District Court for the Eastern District of Pennsylvania. She now concentrates her practice in the area of securities litigation.
DANIELL A. BROTTMAN, a staff attorney at the firm, received his J.D. from Rutgers School of Law - Camden. Mr. Brottman received a Bachelor of Science degree in Management Science and Information Systems from Rutgers University, New Brunswick. He is admitted to practice law in New Jersey and Pennsylvania.
Prior to joining Barroway Topaz, he was an associate at the Freehold, NJ based firm of Britt, Riehl & Spudic, P.C. Mr. Brottman now concentrates his practice in the area of securities litigation.
NICHOLE BROWNING, an associate in the firm's San Francisco office, received her B.A. degree from Emory University in 1994 and her J.D. degree from The American University, Washington College of Law in 1997. Ms. Browning attended the Universidad de Chile in Santiago, Chile in 1995, where she studied human rights law. She completed her final year of law school at Emory University School of Law.
Ms. Browning has spent most of her legal career representing plaintiffs in federal securities fraud and corporate governance claims. At Barroway Topaz, Ms. Browning concentrates her practice in the area of shareholders' derivative actions and securities class actions. Ms. Browning is admitted to practice law in California and Georgia and has been admitted to practice before the Ninth and Eleventh Circuit Courts of Appeals, all United States District Courts in California and the United States District Court for the Northern District of Georgia. Ms. Browning is the co-author of "Private Securities Litigation Reform Act of 1995 (PSLRA) Update," which was a chapter in the Class Actions ICLE of Georgia (2002).
MICHELLE A. COCCAGNA, an associate of the firm, received her law degree from Villanova University School of Law in 2007 and her Bachelor of Science degree, magna cum laude, in Finance and International Business from Villanova University in 2004. She is licensed to practice law in Pennsylvania and New Jersey and has been admitted to practice before the United States District Court for the District of New Jersey and the United States District Court for the Eastern District of Pennsylvania. Prior to joining Barroway Topaz, Ms. Coccagna worked as in-house counsel for a financial services firm in New York City. She concentrates her practice in the areas of consumer protection and wage and hour litigation.
JASON CONWAY, a staff attorney at the firm, received his law degree from the Queensland University of Technology, Australia in 2003, where he was published in the journal of the national plaintiff lawyers' association. While completing his studies, Mr. Conway clerked for a criminal defense firm where he participated in trials and related litigation. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 21 of 31. PageID #: 6263 Prior to joining Barroway Topaz, Mr. Conway worked with the Philadelphia law firm of Sheller, Ludwig & Badey, P.C., where he litigated complex class action matters, including tobacco, environmental and product liability cases. Mr. Conway is licensed to practice law in the State of New York and has been admitted to practice before the United States Court of Appeals for the 9th Circuit. Mr. Conway concentrates his practice in the area of FLSA and wage and hour litigation.
JOSHUA E. D'ANCONA, an associate of the firm, received his J.D., magna cum laude, from the Temple University Beasley School of Law in 2007, where he served on the Temple Law Review and as president of the Moot Court Honors Society. Before joining the firm in 2009, he served as a law clerk to the Honorable Cynthia M. Rufe of the United States District Court for the Eastern District of Pennsylvania. Mr. D'Ancona graduated with honors from Wesleyan University. He is licensed to practice in Pennsylvania and New Jersey, and practices in the securities litigation and lead plaintiff departments of the firm.
MARK S. DANEK, an associate of the firm, received his undergraduate degree in Architecture from Temple University in 1996, and his law degree from Duquesne University School of Law in 1999. Prior to joining Barroway Topaz, Mr. Danek was employed as in-house counsel of a real estate investment trust corporation that specialized in the collection of delinquent property tax receivables. He is licensed to practice law in the Commonwealth of Pennsylvania and has been admitted to practice before the Courts of the Commonwealth of Pennsylvania, the United States District Court for the Western District of Pennsylvania and the Supreme Court of the United States of America. Mr. Danek concentrates his practice in the area of securities litigation.
JEFFERY S. DAVIDSON, a staff attorney at the firm, received his law degree, cum laude, from Temple University Beasley School of Law, where he was the Executive Editor of the Temple Political and Civil Rights Law Review. Mr. Davidson earned his undergraduate degree in Marketing, with honors, from York College of Pennsylvania in 1993. From 1997-1999, Mr. Davidson clerked for the Honorable Louis C. Bechtle of the United States District Court for the Eastern District of Pennsylvania. Prior to joining the firm, Mr. Davidson was an antitrust and commercial litigation associate with Howrey LLP and served as a consumer protection attorney with the U.S. Federal Trade Commission, including a rotation as an Assistant United States Attorney for the U.S. Department of Justice. He concentrates his practice at Barroway Topaz in the area of securities litigation.
JONATHAN R. DAVIDSON, an associate of the firm, is a graduate of The George Washington University where he received his Bachelor of Arts, summa cum laude, in Political Communication. Mr. Davidson received his Juris Doctor and Dispute Resolution Certificate from Pepperdine University School of Law and is licensed to practice law in the state of California. Prior to joining the firm, Mr. Davidson served as In-House Counsel for a real estate development company in Los Angeles.
Mr. Davidson concentrates his practice at Barroway Topaz in the area of securities litigation, working in the firm's business development and portfolio monitoring departments. He consults with firm clients regarding their rights and responsibilities with respect to their investments and purchases and taking an active role in shareholder and consumer litigation.
BENJAMIN J. DE GROOT, a staff attorney at the firm, received his law degree from Columbia Law School where he was a Stone Scholar. He earned his B.A., with honors, in Philosophy and German Studies from the University of Arizona. Mr. de Groot is licensed to practice law in New York.
Prior to joining Barroway Topaz, Mr. de Groot was V.P. of Operations and counsel at AISG, a security integration company he helped establish in New York. Prior to that he practiced litigation as an associate at Cleary Gottlieb Steen and Hamilton, LLP. His practice focuses on managing the firm's ongoing litigation discovery.
DONNA EAGLESON, a staff attorney at the firm, received her law degree from the University of Dayton School of Law in Dayton, Ohio. Prior to joining Barroway Topaz, Ms. Eagleson worked as an attorney in the law enforcement field, and practiced insurance defense law with the Philadelphia firm Margolis Edelstein. Ms. Case: 1:08-nc-70000-SO Doc #: 124-3 Fdled: 08/20/10 22 of 31u PageID #: 6264 very matters.
JENNIFER L. ENCK, an associate of the firm, received her law degree, cum laude, from Syracuse University College of Law in 2003 and her undergraduate degree in International Politics from The Pennsylvania State University in 1999. Ms. Enck also received a Masters degree in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs.
Prior to joining Barroway Topaz, Ms. Enck was an associate with Spector, Roseman & Kodroff, P.C. in Philadelphia, where she worked on a number of complex antitrust, securities and consumer protection cases. Ms. Enck is licensed to practice law in Pennsylvania. She concentrates her practice in the areas of securities litigation and settlement matters.
WARREN GASKILL, a staff attorney at the firm, received his law degree from the Widener University School of Law, Wilmington, DE and his undergraduate degree from Rutgers, the State University of New Jersey, New Brunswick, NJ. Immediately following law school, Mr. Gaskill served as a law clerk for The Honorable Valerie H. Armstrong, A.J.S.C., New Jersey Superior Court, in Atlantic City, NJ. Prior to joining Barroway Topaz, Mr. Gaskill was an associate at the Atlantic City, NJ based law firm of Cooper, Levenson, April, Neidelman, and Wagenheim PA. Mr. Gaskill concentrates in the area of securities law and is admitted to bar in New Jersey and the U.S. District Court, District of New Jersey.
TYLER S. GRADEN, an associate of the firm, received undergraduate degrees in Economics and International Relations, cum laude, from American University, and his Juris Doctor degree, cum laude, from Temple Law School. Mr. Graden is licensed to practice law in Pennsylvania and New Jersey. In addition, he is admitted to practice before the United States District Courts for the Eastern District of Pennsylvania, the Western District of Pennsylvania, and the District of New Jersey. Mr. Graden concentrates his practice in the areas of ERISA, employment law and consumer protection litigation.
Prior to joining Barroway Topaz, Mr. Graden practiced with the Philadelphia law firm Conrad O'Brien where he litigated various complex commercial matters. Mr. Graden also has experience working in the legal department of a Fortune 500 company and prosecuting criminal matters on behalf of the Philadelphia District Attorney's Office. Prior to attending law school, Mr. Graden served as an investigator at the Equal Employment Opportunity Commission, where he investigated and resolved individual and systemic claims of employment discrimination.
ROBERT J. GRAY, an associate of the firm, received his law degree from the Temple University School of Law. Mr. Gray received a Bachelor of Sciences degree from La Salle University with a dual major of Accounting and Finance. Prior to joining Barroway Topaz, Mr. Gray was an associate at a Philadelphia boutique litigation firm practicing in the areas of complex commercial litigation and corporate transactions. Mr. Gray also worked as in-house counsel for a small, publicly-traded holding company. Prior to beginning his law career, Mr. Gray worked as a forensic accountant for six years, conducting a variety of investigations for numerous governmental agencies and law firms. He received his CPA license in 1997. Mr. Gray is licensed to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania. He concentrates his practice in the area of consumer protection.
JOHN J. GROSS, an associate of the firm, received his law degree from Widener University School of Law, and his undergraduate degree from Temple University. Mr. Gross is licensed to practice law in Pennsylvania, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania, the Ninth Circuit Court of Appeals and the United States Supreme Court. Mr. Gross concentrates his practice in the area of securities litigation.
MARK K. GYANDOH, an associate of the firm, received his undergraduate degree from Haverford College and his law degree from Temple University School of Law. While attending law school, Mr. Gyandoh served as the research editor for the Temple International and Comparative Law Journal. He also interned as a judicial clerk Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 23 of 31. PageID #: 6265 for the Honorable Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit and the Honorable Jerome B. Simandle of the U.S. District Court for New Jersey.
After graduating from law school Mr. Gyandoh was employed as a judicial clerk for the Honorable Dennis Braithwaite of the Superior Court of New Jersey Appellate Division. Mr. Gyandoh is the author of "Foreign Evidence Gathering: What Obstacles Stand in the Way of Justice?" 15 Temp. Int'l & Comp. L.J. (2001) and "Incorporating the Principle of Co-Equal Branches into the European Constitution: Lessons to Be Learned from the United States" found in Redefining Europe (2005).
Mr. Gyandoh is licensed to practice in New Jersey and Pennsylvania and concentrates in the area of ERISA, antitrust and consumer protection. Mr. Gyandoh litigates ERISA fiduciary breach class actions across the country and was recently part of one of the few trial teams that have ever tried a "company stock" imprudent investment case to verdict in Brieger et al. v. Tellabs, Inc., No. 06-CV-01882 (N.D. Ill.).
LIGAYA T. HERNANDEZ, an associate of the firm, received her J.D. and a Health Law Certificate from Loyola University Chicago. While in law school she served as Senior Editor for the Annals of Health Law Journal, received the CALI Award for highest grade in Appellate Advocacy, and was on the Dean's List. Ms. Hernandez also served as a judicial extern for the Honorable Mary Anne Mason of the Circuit Court of Cook County, Illinois.
Ms. Hernandez received a Master in Health Services Administration in Health Policy from The George Washington University and a Bachelor of Science degree in Biology from the University of Pittsburgh. She is licensed to practice law in Pennsylvania and New Jersey and is admitted to practice before the United States District Court for the Eastern District of Pennsylvania and the United States District Court for the District of New Jersey. Ms. Hernandez concentrates her practice in the areas of mergers and acquisitions and shareholder derivative actions.
JENNIFER L. JOOST, an associate of the firm, received her law degree, cum laude, from Temple University Beasley School of Law, where she was the Special Projects Editor for the Temple International and Comparative Law Journal. Ms. Joost earned her undergraduate degree in History, with honors, from Washington University in St. Louis in 2003. She is licensed to practice in Pennsylvania and New Jersey and admitted to practice before the United States Courts of Appeals for the Second, Fourth, Ninth, and Eleventh Circuits, and the United States District Courts for the Eastern District of Pennsylvania and the District of New Jersey. She concentrates her practice at Barroway Topaz in the area of securities litigation.
Ms. Joost has served as an associate on the following matters: In re Wireless Facilities, Inc., No. 04-CV-1589- JAH (NLS) (S.D. Cal.) and In re ProQuest Inc. Securities Litigation, No. 2:06-cv-10619 (E.D. Mich.). Additionally, she is currently serving as an associate on the following matters: In re UBSAG Securities Litigation, No. 1:07-cv-11225-RJS, currently pending in the United States District Court for the Southern District of New York; Luther, et al. v. Countrywide Financial Corp., No. BC 380698, currently pending in the Superior Court of the State of California, County of Los Angeles; and In re Citigroup, Inc. Bond Litig., No. 08 Civ. 9522 (SHS), currently pending in the United States District Court for the Southern District of New York.
TARA P. KAO, an associate of the firm, received her J.D. from Villanova University School of Law, where she was a Managing Editor of Student Works for the Villanova Law Review. During law school, she also published an article, titled "They Can Take Your Body But Not Your Soul — Or So You Thought — The Third Circuit's Application of the Turner Standard in Prisoners' Free Exercise Cases," in the Berkeley Journal of Criminal Law in December 2005. Ms. Kao received her Bachelor of Science in Business/Finance, with honors, from Carnegie Mellon University. She is licensed to practice law in Pennsylvania and New Jersey, and concentrates her practice in the areas of shareholder derivative actions and mergers and acquisitions.
STACEY KAPLAN, an associate in the firm's San Francisco office, received her Bachelor of Business Administration from the University of Notre Dame in 2002, with majors in Finance and Philosophy. Ms. Kaplan received her J.D. from the University of California at Los Angeles School of Law in 2005. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 24 of 31. PageID #: 6266 During law school, Ms. Kaplan served as a Judicial Extern to the Honorable Terry J. Hatter, Jr., United States District Court, Central District of California. Prior to joining the firm, Ms. Kaplan was an associate with Robbins Geller Rudman & Dowd LLP in San Diego, California.
Ms. Kaplan concentrates her practice on prosecuting securities class actions. She is admitted to the California Bar and is licensed to practice in all California state courts, as well as the United States District Courts for the Northern and Central Districts of California.
D. SEAMUS KASKELA, an associate of the firm, received his B.S. in Sociology from Saint Joseph's University, his M.B.A. from The Pennsylvania State University, and his law degree from Rutgers School of Law — Camden. Mr. Kaskela is licensed to practice law in Pennsylvania and New Jersey, and is admitted to practice before the United States District Court for the Eastern District of Pennsylvania and the United States District Court for the District of New Jersey. Mr. Kaskela works in the firm's case development department.
MATTHEW R. KAUFMANN, a staff attorney of the firm, received his JD/MBA from Temple University's Beasley School of Law and Fox School of Business, where he won the Terrence H. Klasky Memorial Award for outstanding achievement in banking, negotiable instrument, and consumer protection law. Mr. Kaufmann received his Bachelor of Science in Mathematics and Economics from Duke University. He is licensed to practice law in Pennsylvania, and concentrates his practice in the area of securities litigation.
JOHN Q. KERRIGAN, an associate of the firm, received his J.D. in 2007 from the Temple University Beasley School of Law. Before joining the firm in 2009, he was an associate in the litigation department of Curtin and Heefner LLP in Morrisville, Pennsylvania. Mr. Kerrigan graduated Phi Beta Kappa from Johns Hopkins University and received an MA in English from Georgetown University. He is licensed to practice law in Pennsylvania and New Jersey and concentrates his practice in the areas of mergers and acquisitions and shareholder derivative actions.
SHANNON O. LACK, an associate of the firm, received her law degree from the University of Pittsburgh School of Law and her undergraduate degree in International Relations and French from Bucknell University. While a law student, Ms. Lack served as a judicial clerk for the Honorable Max Baer of the Supreme Court of Pennsylvania. She also served as a Managing Editor of the University of Pittsburgh Journal of Law and Commerce. Ms. Lack has authored "Civil Rights for Trafficked Persons: Recommendations for a More Effective Federal Civil Remedy," University of Pittsburgh School of Law, Journal of Law and Commerce, Vol. 26 (2007). Ms. Lack is licensed to practice law in Pennsylvania and New Jersey. She concentrates her practice in the areas of ERISA and consumer protection litigation.
SETH A. LINEHAN, a staff attorney at the firm, received his law degree from the Widener University School of Law. Mr. Linehan received his Bachelor of Arts degree, magna cum laude, from Rider University. He served as law clerk to the Honorable Stephen B. Rubin, J.S.C., in both Somerset and Hunterdon Counties in New Jersey. Mr. Linehan is licensed to practice law in New Jersey and is admitted to practice before the United States District Court, District of New Jersey. He concentrates his practice in the area of securities litigation.
RONALD G. LOPIT II, an associate of the firm, received his Juris Doctor degree from Villanova University School of Law and graduated cum laude with a Bachelor of Arts in Politics from The Catholic University of America. Mr. Lopit has focused his career as an attorney in the areas of complex commercial litigation, including class action antitrust litigation and securities fraud. He is licensed to practice law in the State of New Jersey and has been admitted to practice before the United States District Court for the District of New Jersey. Presently, Mr. Lopit concentrates his practice in the areas of consumer protection and antitrust litigation.
JAMES A. MARO, JR., an associate of the firm, received his law degree from the Villanova University School of Law in 2000. He received a B.A. in Political Science from the Johns Hopkins University in 1997. Mr. Maro is licensed to practice law in Pennsylvania and New Jersey and is admitted to practice in the United States District Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 25 of 31. PageID #: 6267 Court for the Eastern District of Pennsylvania. He concentrates his practice in the area of ERISA, antitrust and consumer protection and also has experience in the areas of mergers and acquisitions and shareholder derivative actions.
KATRICE TAYLOR MATHURIN, a staff attorney at the firm, received her law degree from the University of Richmond School of Law. She received her undergraduate degree from The Johns Hopkins University. During law school, Ms. Mathurin practiced as an intern in the office of the United States Attorney for the Eastern District of Virginia, where she represented the United States in matters before the District Court. She also practiced in the University of Richmond Children's Law Center Disability Clinic. Prior to joining Barroway Topaz, Ms. Mathurin practiced in the areas of real estate and construction litigation. Ms. Mathurin is licensed to practice law in Pennsylvania and concentrates in the area of securities litigation.
LISA A. McNEELEY, a staff attorney at the firm, received her law degree from Temple University Beasley School of Law in 2008. She received her Bachelor of Arts in Sociology from the University of Pennsylvania in 2003. Ms. McNeeley is licensed to practice law in Pennsylvania and New Jersey, and concentrates her practice in the area of securities litigation.
JAMES H. MILLER, an associate of the firm, received his J.D. in 2005 from Villanova University School of Law, where he was enrolled in Villanova University's JD/MBA program. Mr. Miller received his Master of Business Administration from Villanova University in 2005, and received his Bachelor of Chemical Engineering from Villanova University in 2002. Mr. Miller is licensed to practice law in Pennsylvania and concentrates his practice in the areas of mergers and acquisitions and shareholder derivative actions.
LOUIS E. MOYA, an associate of the firm, received his law degree in 2008 from Rutgers School of Law — Camden, where he was the Managing Technical Editor of the Rutgers Journal of Law and Public Policy. While a law student, Mr. Moya served as an intern to the Office of the Attorney General for the State of New Jersey, Division of Law and Public Safety. Mr. Moya also served as an intern to Hon. Nitza Quinones-Alejandro, Court of Common Pleas of Philadelphia County, Pennsylvania. He earned his undergraduate degree, magna cum laude, with honors, at the University of New Mexico, receiving a Bachelor of Arts in Film and Media Arts.
Prior to joining the firm Mr. Moya served as an Attorney Advisor to Hon. Adele H. Odegard, District Chief Judge, U.S. Department of Labor, Office of Administrative Law Judges, where he addressed labor and employment issues and claims arising in federally regulated industries under statutes such as the Sarbanes-Oxley Act. Mr. Moya is licensed to practice in New Jersey and concentrates his practice in the area of mergers and acquisition litigation and shareholder derivative litigation.
CASANDRA A. MURPHY, an associate of the firm, received her law degree from Widener University School of Law and her undergraduate from Gettysburg College. Prior to joining Barroway Topaz, Ms. Murphy was an associate at Post & Schell, P.C. where she practiced general casualty litigation. Ms. Murphy is licensed to practice in Pennsylvania and New Jersey, and has been admitted to practice before the United State District Court for the Eastern District of Pennsylvania. Ms. Murphy has lectured for the Pennsylvania Bar Institute and the Philadelphia Judicial Conference. She concentrates her practice in the areas of consumer protection, ERISA, pharmaceutical pricing and antitrust litigation.
CHRISTOPHER L. NELSON, an associate of the firm, received his law degree from Duke University School of Law in 2000, and his undergraduate degree in Business, Economics, and the Law from Washington University in St. Louis in 1997.
Prior to joining Barroway Topaz, Mr. Nelson practiced with the Philadelphia law firm of Berger & Montague, P.C., where he was a securities litigator. Mr. Nelson is admitted to practice law in the Commonwealth of Pennsylvania, the Supreme Court of the United States, the United States Courts of Appeals for the Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits, and the United States District Court for the Eastern District of Pennsylvania. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 26 of 31. PageID #: 6268 Mr. Nelson has litigated in federal district and appellate courts across the country in numerous actions that have resulted in significant monetary recoveries, including: Johnson v. A jian et al., 394 F. Supp. 2d 1184 (C.D. Cal. 2004) (lead counsel, successfully argued opposition to defendants' motion to dismiss in insider trading case), 490 F.3d 778 (9th Cir. 2007) (successfully drafted and argued opposition to defendants' appeal before Ninth Circuit), cert. denied, 2008 U.S. LEXIS 2481 (U.S. Mar. 17, 2008). Class certified February 13, 2009, over defendants' opposition; Safron Capital Corp. v. Leadis Tech., Inc. (In re Leadis Tech. Inc. Sec. Litig.), No. 06-15623, 274 Fed. Appx. 540; 2008 U.S. App. LEXIS 8699 (9th Cir. 2008) (lead counsel, successfully appealed decision of District Court granting motion to dismiss, $4,200,000 recovery), cert. denied, 2009 U.S. LEXIS 1778 (U.S. Mar. 6, 2009); Cent. Laborers Pension Fund v. Merix Corp. (In re Merix Corp. Sec. Litig.), No. 06-35894, 275 Fed. Appx. 599; 2008 U.S. App. LEXIS 9073 (9th Cir. 2008) (lead counsel, successfully appealed decision of District Court granting motion to dismiss), cert. denied, 2008 U.S. LEXIS 9162 (U.S. Dec. 15, 2008); Kaltman v. Key Energy Servs. (In re Key Energy Sec. Litig.), 447 F. Supp. 2d 648 (W.D. Tex. 2006) (lead counsel, $15,425,000 recovery); In re MartekBiosciences Sec. Litig., No. MJG-05-122 4 (D.Md. June 14, 2006) (co-lead counsel, $6,000,000 recovery); Brody v. Zix. Corp., No. 3-04-CV-1931-K, 2006 U.S. Dist. LEXIS 69302 (N.D.Tex. Sept. 26, 2006) (co-lead counsel, $5,600,000 recovery); In re NUI Sec. Litig., 314 F. Supp. 2d 388 (D.N.J. 2004) (lead counsel, $3,500,000 recovery).
MICHELLE M. NEWCOMER, an associate of the firm, received her law degree from Villanova University School of Law in 2005. Ms. Newcomer received her undergraduate degrees in Finance and Art History from Loyola College in Maryland in 2002. Throughout her legal career, Ms. Newcomer has concentrated her practice in the area of securities litigation, representing individual and institutional investors and helping them to recover millions against corporate and executive defendants for violations of the federal securities laws. In this respect, Ms. Newcomer helped secure the following recoveries for investors: In re Tenet Healthcare Corp. Sec. Litig., No. 02-8462 (C.D. Cal.) (settled — $281.5 million); In re Acclaim Entertainment, Inc. Sec. Litig., No. 2:03-CV-1270 (JS) (ETB) (E.D.N.Y.) (settled — $13.65 million); In re Zale Corp. Sec. Litig., No. 3:06-CV-01470-N (settled — $5.9 million); and In re Leadis Tech., Inc. Sec. Litig., No. C-05-0882-CRB (N.D. Cal.) (settled — $4.2 million). Ms. ].Newcomer is also currently involved in several high profile securities fraud suits, including: In re Lehman Brothers Sec. & ERISA Litig., No. 09 MD 2017 (LAK) (S.D.N.Y.) and In re SemGroup Energy Partners, L.P. Sec. Litig., No. 08-MD-1989-GFK-FHM (N.D. Olka.).
Ms. Newcomer is licensed to practice law in the Commonwealth of Pennsylvania and the State of New Jersey and has been admitted to practice before the Supreme Court of the United States, the United States Court of Appeals for the Ninth and Tenth Circuits, and the United States District Court for the District of New Jersey.
VIVIAN BENZ PEIKIN, a staff attorney with the firm, received her law degree from Temple Law School. She is licensed to practice law in Pennsylvania and New Jersey and admitted to practice before the United States District Courts for the Eastern District of Pennsylvania and the District of New Jersey. She concentrates her practice at Barroway Topaz in the area of securities litigation.
Prior to joining Barroway Topaz, she worked as an associate representing plaintiffs in consumer product litigation and later as a staff attorney at Dechert, LLC representing a defendant in a mass-tort litigation.
Ms. Peikin was named a Pennsylvania Rising Star Super Lawyer in 2006. She currently serves on the Upper Merion Township Environmental Advisory Council.
ERIK PETERSON, an associate in the firm's San Francisco office, received his Bachelor of Arts from James Madison University and his Master of Public Administration, concentrating in public finance, with honors, from the University of Kentucky. Mr. Peterson graduated cum laude from the University of Kentucky College of Law, where he was Editor-in-Chief of the Journal of Natural Resources and Environmental Law. There he received the CALI Award in Federal Taxation and authored Navigating the Waters of Informational Standing in American Canoe Ass 'n, Inc. v. City of Louisa, 20 J. Nat. Resources & Envtl. L. 291 (2006). Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 27 of 31. PageID #: 6269 During law school, Mr. Peterson served as Judicial Intern to United States District Court Judge T.S. Ellis, III, Eastern District of Virginia. Following law school, Mr. Peterson served as Law Clerk to United States District Court Judge Gregory F. Van Tatenhove, Eastern District of Kentucky. Prior to joining the firm, Mr. Peterson was associated with Coughlin Stoia Geller Rudman & Robbins LLP in San Diego, California.
Mr. Peterson concentrates his practice on prosecuting securities class actions. He is licensed to practice in California and Kentucky and is admitted to practice before all United States District Courts in California, as well as the United States Court of Appeals for the Sixth Circuit, and is also a member of the firm's lead plaintiff litigation practice group.
DAVID PROMISLOFF, an associate of the firm, received his law degree from the University of Michigan in 2005. While in law school, he served as an associate editor of the Michigan Telecommunications and Technology Law Review. Mr. Promisloff received his undergraduate degree from Emory University in 2002, double majoring in political science and history. Mr. Promisloff is licensed to practice in Pennsylvania, and works in the firm's case development department.
STEVEN D. RESNICK, an associate of the firm, received his law degree from The Dickinson School of Law of The Pennsylvania State University, and his undergraduate degree, cum laude, from West Chester University. Mr. Resnick is licensed to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania, the United States Court of Appeals for the Third Circuit, the United States District Court for the District of New Jersey and the United States District Court for the District of Nebraska. Prior to joining Barroway Topaz, Mr. Resnick was an associate at the firm of German, Gallagher & Murtagh, where his practice concentrated in the defense of medical malpractice, products liability and premises liability. Mr. Resnick is active in the American Association for Justice and serves on the Board of Governors of the New Lawyers Division. Mr. Resnick has broad experience in Mass Tort litigation and now concentrates his practice in the area of securities litigation.
KRISTEN L. ROSS, an associate of the firm, concentrates her practice in shareholder derivative actions. Ms. Ross received her J.D., with honors, from the George Washington University Law School, and B.A., magna cum laude, from Saint Joseph's University, with a major in Economics and minors in International Relations and Business.
Ms. Ross is licensed to practice law in Pennsylvania and New Jersey, and has been admitted to practice before the United States District Courts for the District of New Jersey and the Eastern District of Pennsylvania. Prior to joining Barroway Topaz, Ms. Ross was an associate at Ballard Spahr LLP, where she focused her practice in commercial litigation, particularly foreclosure and bankruptcy proceedings. She also has experience in commercial real estate transactions. During law school, Ms. Ross served as an intern with the United States Attorney's Office for the Eastern District of Pennsylvania.
KIRK D. RUECKMANN, a staff attorney of the firm, received his J.D. from the University of Pittsburgh School of Law, where he was Managing Editor of the Journal of Law & Commerce. Mr. Rueckmann received his Bachelor of Arts in History and Political Science from the University of Rochester. He is licensed to practice law in the Commonwealth of Pennsylvania, and concentrates his practice in the area of securities litigation.
RICHARD A. RUSSO, JR., an associate of the firm, received his J.D. from the Temple University Beasley School of Law, cum laude, where he was a member of the Temple Law Review. Mr. Russo received his Bachelor of Science in Business Administration, cum laude, from Villanova University. He is licensed to practice law in Pennsylvania and New Jersey, and concentrates his practice in the area of securities litigation.
JOSHUA C. SCHUMACHER, an associate of the firm, received his undergraduate degree in Politics & Government from George Mason University, and his Juris Doctor degree, cum laude, from Case Western Reserve University. Mr. Schumacher concentrates his practice in the areas of ERISA and consumer protection litigation. Prior to Z 70 Montague, P.C. and Duane Morris LLP, where he litigated numerous individual and class cases on behalf of major institutional and corporate clients. Mr. Schumacher is admitted to practice law in the Commonwealth of Pennsylvania and before the United States District Court for the Eastern District of Pennsylvania, and has been admitted pro hac vice before numerous other state and federal courts.
Mr. Schumacher has litigated numerous successful actions involving significant recoveries on behalf of aggrieved individuals and investors, including In re CIGNA Corp. Securities Litigation ($93M recovery), In re Sepracor Securities Litigation ($52.5M recovery) and Ginsburg v. Philadelphia Stock Exchange, Inc. ($99M recovery). Mr. Schumacher has also represented a large state government in various civil enforcement proceedings against predatory and so-called "pay day" lenders. In addition, Mr. Schumacher has represented several Fortune 500 companies in wide reaching federal and state litigation, including federal multi-district litigation, employer non- compete clauses, and trademark infringement issues.
TRACEY A. SHREVE, a staff attorney at the firm, earned her Economics degree from Syracuse University where she was recognized as an International Scholar. Ms. Shreve received her law degree from California Western School of Law and was a member of the Pro Bono Honor Society. She is licensed to practice law in Pennsylvania and has been admitted to practice before the United States Supreme Court. Prior to joining Barroway Topaz, Ms. Shreve worked at a boutique litigation firm located in Center City Philadelphia, and worked as an Assistant Public Defender in Lehigh County. She now concentrates her practice in the area of ERISA and Consumer Rights.
JULIE SIEBERT-JOHNSON, an associate of the firm, received her law degree from Villanova University School of Law in 2008. She graduated cum laude from the University of Pennsylvania in 2003. Ms. Siebert- Johnson is licensed to practice law in Pennsylvania and New Jersey. She concentrates her practice in the area of ERISA and consumer protection litigation.
MEGHAN TIGHE, a staff attorney at the firm, received her law degree from Tulane University School of Law and has a L.L.M. in taxation from Villanova University. She received her undergraduate degree, with distinction, from the Eller College of Business at The University of Arizona. She is currently completing her L.L.M in Taxation at Villanova University.
Ms. Tighe is licensed to practice law in Pennsylvania and New Jersey and concentrates her practice in the area of securities litigation.
ALEXANDRA H. TOMICH, a staff attorney with the firm, received her law degree from Temple Law School and her undergraduate degree, from Columbia University, with a B.A. in English. She is licensed to practice law in Pennsylvania.
Prior to joining Barroway Topaz, she worked as an associate at Trujillo, Rodriguez, and Richards, LLC in Philadelphia. Ms. Tomich volunteers as an advocate for children through the Support Center for Child Advocates in Philadelphia and at Philadelphia VIP. She concentrates her practice in the area of securities litigation.
AMANDA R. TRASK, an associate with the firm, received her law degree from Harvard Law School and her undergraduate degree, cum laude, from Bryn Mawr College, with honors in Anthropology. She is licensed to practice law in Pennsylvania and has been admitted to practice before the United States District Court for the Eastern District of Pennsylvania.
Prior to joining Barroway Topaz, she worked as an associate at a Philadelphia law firm where she represented defendants in consumer product litigation. Ms. Trask has served as an advocate for children with disabilities and their parents and taught special education law. She currently serves on the Board of the Bryn Mawr College Club of Philadelphia. She concentrates her practice in the areas of ERISA, consumer protection and stockholder derivative actions. Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 29 of 31. PageID #: 6271 NEENA VERMA, an associate of the firm, received her law degree, magna cum laude, from Rutgers School of Law – Camden, where she was the Executive Editor of the Rutgers Journal of Law and Public Policy. While a law student, Ms. Verma served as a Judicial Extern to the Honorable Barry T. Albin of the New Jersey Supreme Court and as a Judicial Pupil at the United Kingdom Information Tribunal. She earned dual degrees, cum laude, at the University of Pennsylvania, receiving a Bachelor of Arts in Architecture and a Bachelor of Science in Economics from the Wharton School. Ms. Verma is licensed to practice in the District of Columbia, New Jersey and Pennsylvania and concentrates her practice in the area of securities litigation.
JOSEPH A. WEEDEN, an associate of the firm, received his law degree from the University of North Carolina School of Law, where he received the Gressman-Politt Award for outstanding oral advocacy. Mr. Weeden also received his undergraduate degree from the University of North Carolina at Chapel Hill, where he was a Joseph E. Pogue Scholar. Prior to joining the firm, Mr. Weeden was an associate at Kaufman & Canoles, P.C., where he practiced in the areas of commercial and business law. Mr. Weeden is licensed to practice law in Virginia, and concentrates his practice in the area of ERISA and consumer protection litigation.
KURT WEILER, a staff attorney at the firm, received his law degree from Duquesne University School of Law, where he was a member of the Moot Court Board and McArdle Wall Honoree. He received his undergraduate degree from the University of Pennsylvania.
Prior to joining Barroway Topaz, Mr. Weiler was associate corporate counsel for a Philadelphia-based mortgage company, where he specialized in the area of foreclosures and bankruptcy. Mr. Weiler is licensed to practice law in Pennsylvania and currently concentrates his practice in the area of securities litigation.
TERENCE S. ZIEGLER, an associate of the firm, received his law degree from the Tulane University School of Law and received his undergraduate degree from Loyola University. He has concentrated a significant percentage of his practice to the investigation and prosecution of pharmaceutical antitrust actions, medical device litigation, and related anticompetitive and unfair business practice claims. Specific examples include: In re Flonase Antitrust Litigation; In re Wellbutrin SR Antitrust Litigation; In re Modafinil Antitrust Litigation; In re Guidant Corp. Implantable Defibrillators Products Liability Litigation (against manufacturers of defective medical devices — pacemakers/implantable defibrillators — seeking costs of removal and replacement); and In re Actiq Sales and Marketing Practices Litigation (regarding drug manufacturer's unlawful marketing, sales and promotional activities for non-indicated and unapproved uses).
Mr. Ziegler is licensed to practice law in the State of Louisiana, and has been admitted to practice before several courts including the United States Court of Appeals for the Third Circuit.
OF COUNSEL
LAUREN WAGNER PEDERSON, of Counsel to the firm, received a B.S. degree in Business Administration from Auburn University. She launched her legal career after working in sales and marketing for Fortune 500 companies such as Colgate-Palmolive Company and earned her J.D., summa cum laude, from the Cumberland School of Law where she was Associate Editor of the Cumberland Law Review. Lauren served as Law Clerk to the Honorable Joel F. Dubina for the United States Court of Appeals for the Eleventh Circuit and currently is enrolled at Georgetown University Law Center in the Securities and Financial Regulation LL.M. program.
In her practice, Lauren serves as counsel to public pension funds, shareholders and companies in a broad range of complex corporate securities and corporate governance litigation. She has represented individuals and institutional investors in many high profile securities class actions and other actions in state and federal courts. She has represented the Ohio Public Retirement Systems in securities fraud actions arising out of the collapse of Enron Corp. and WorldCom, Inc. and represented three institutional investors as lead plaintiffs in a groundbreaking case against Oxford Health Plans, Inc. that resulted in a $300 million settlement. In addition, Lauren has litigated accounting and legal malpractice actions and recently recovered a judgment in Delaware federal court on behalf Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 30 of 31. PageID #: 6272 of Trust Company of the West in a legal malpractice action arising out of an international private equity transaction. She also has successfully argued and defended appeals before the Court of Appeals for the Eleventh Circuit and has represented individuals and companies in securities arbitrations before the NASD and New York Stock Exchange. Currently, Lauren is heavily involved in the firm's cases related to the subprime mortgage crisis, including cases pending against Countrywide Financial Corporation and IndyMac Bancorp, Inc.
Lauren also is a certified mediator and a member of the State Bars of New York, Delaware, Maryland, Georgia and Alabama and is admitted to practice in numerous federal courts. She also has been an Adjunct Professor of Law at the Widener University School of Law in Wilmington, Delaware, teaching a securities litigation seminar.
DONNA SIEGEL MOFFA, of Counsel to the firm, received her law degree, with honors, from Georgetown University Law Center in May 1982. She received her undergraduate degree, cum laude, from Mount Holyoke College in Massachusetts. Ms. Siegel Moffa is admitted to practice before the Third Circuit Court of Appeals, the United States Courts for the District of New Jersey and the District of Columbia, as well as the Supreme Court of New Jersey and the District of Columbia Court of Appeals. Prior to joining the firm, Ms. Siegel Moffa was a member of the law firm of Trujillo, Rodriguez & Richards, LLC, where she litigated, and served as co-lead counsel, in complex class actions arising under federal and state consumer protection statutes, lending laws and laws governing contracts and employee compensation. Prior to entering private practice, Ms. Siegel Moffa worked at both the Federal Energy Regulatory Commission (FERC) and the Federal Trade Commission (FTC). At the FTC, she prosecuted cases involving allegations of deceptive and unsubstantiated advertising. In addition, both at FERC and the FTC, Ms. Siegel Moffa was involved in a wide range of administrative and regulatory issues including labeling and marketing claims, compliance, FOIA and disclosure obligations, employment matters, licensing and rulemaking proceedings.
Ms. Siegel Moffa continues to concentrate her practice in the area of consumer protection litigation. She served as co-lead counsel for the class in Robinson v. Thorn Americas, Inc., L-03697-94 (Law Div. 1995), a case that resulted in a significant monetary recovery for consumers and changes to rent-to-own contracts in New Jersey. Ms. Siegel Moffa was also counsel in Muhammad v. County Bank of Rehoboth Beach, Delaware, 189 N.J. 1 (2006), U.S. Sup. Ct. cert. denied, 127 S. Ct. 2032(2007), in which the New Jersey Supreme Court struck a class action ban in a consumer arbitration contract. She has served as class counsel representing consumers pressing TILA claims, e.g. Cannon v. Cherry Hill Toyota, Inc., 184 F.R.D. 540 (D.N.J. 1999), and Dal Ponte v. Am. Mortg. Express Corp., CV- 04-2152(D.N.J. 2006), and has pursued a wide variety of claims that impact consumers and individuals including those involving predatory and sub-prime lending, mandatory arbitration clauses, price fixing, improper medical billing practices, the marketing of light cigarettes and employee compensation. Ms. Siegel Moffa's practice has involved significant appellate work representing individuals, classes, and non-profit organizations participating as amicus curiae, such as the National Consumer Law Center and the AARP. In addition, Ms. Siegel Moffa has regularly addressed consumer protection and litigation issues in presentations to organizations and professional associations. Ms. Siegel Moffa is a member of the New Jersey State Bar Association, the Camden County Bar Association, the District of Columbia Bar Association, the National Association of Consumer Advocates and the Public Justice Foundation.
CONSULTANTS
KEVIN P. CAULEY serves as an institutional liaison at the firm. Mr. Cauley has extensive experience working with public and Taft-Hartley pension funds regarding their rights and responsibilities with respect to their investments and purchases and taking an active role in shareholder and consumer litigation. In addition, Mr. Cauley assists clients in evaluating what systems they have in place to identify and monitor shareholder and consumer litigation that has an effect on their funds, and also assists them in evaluating the strength of such cases and to what extent they may be affected by alleged misconduct.
Mr. Cauley, a graduate of Temple University, also has prior experience at a multi-family office, in institutional fiduciary investment consulting, money manager selection, best trade executions, and asset allocation modeling. He has held the Series 7, 24, 63, and 65 licenses with the NASD. Mr. Cauley has also done political consulting in Case: 1:08-nc-70000-SO Doc #: 124-3 Filed: 08/20/10 31 of 31. PageID #: 6273 Southeastern Pennsylvania. He is also an active member of The Pennsylvania Future Fund, A.O.H. Division 88 "Officer Danny Boyle Chapter," The Clover Club of Philadelphia, The Foreign Policy Research Institute, The Princeton Committee on Foreign Relations, and is an elected member to The Pennsylvania Society and The Union League of Philadelphia, where he serves on the Armed Services Committee.
PETER KRANEVELD, an advisor to the firm, works with Barroway Topaz to analyze and evaluate corporate governance issues, shareholder rights and activism and how these fit into the interests of the firm's large international client base of pension funds and other institutional investors. An economist by training, Mr. Kraneveld has a long history of working with pension funds and other institutional shareholders. He recently completed an eight year stint working with Dutch pension fund PGGM, a public pension fund for the healthcare sector in the Netherlands, and one of the largest pension funds in Europe. Mr. Kraneveld's last three years at PGGM were spent as a Special Advisor for International Affairs where his main responsibilities included setting up a network among national and international lobbying organizations, domestic and foreign pension funds and international civil servants and using it to promote the interests of the pension fund industry. Mr. Kraneveld served as Chief Economist for PGGM's Investments Directorate from 1999 until 2004 where his accomplishments included the Tactical Asset Allocation process and designing alternative scenarios for Asset Liability Management. Prior to his work with PGGM, Mr. Kraneveld worked with the Organisation for Economic Co-operation and Development (OECD) and the Dutch Ministry of Economic Affairs.
DAVID RABBINER serves as Barroway Topaz's Director of Investigative Services and leads investigations necessary to further and strengthen the firm's class action litigation efforts. Although his investigative services are primarily devoted to securities matters, Mr. Rabbiner routinely provides litigation support, conducts due diligence, and lends general investigative expertise and assistance to the firm's other class action practice areas. Mr. Rabbiner plays an integral role on the firm's legal team, providing critical investigative services to obtain evidence and information to help ensure a successful litigation outcome. Before joining Barroway Topaz, Mr. Rabbiner enjoyed a broad based, successful career as an FBI Special Agent, including service as an Assistant Special Agent in Charge, overseeing multiple criminal programs, in one of the Bureau's largest field offices. He holds an A.B. in English Language and Literature from the University of Michigan and a Juris Doctor from the University of Miami School of Law. Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 1 of 24. PageID #: 6274
EXHIBIT C Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 2 of 24. PageID #: 6275
STULL, STULL & BRODY ATTORNEYS AT LAW
6 EAST 45TH STREET 10940 WILSHIRE BOULEVARD SUITE 500 SUITE 2300 NEW YORK, NY 10017 LOS ANGELES, CA 90024 TELEPHONE: (212) 687-7230 TELEPHONE: (310) 209-2468 FACSIMILE: (212) 490-2022 FACSIMILE: (310) 209-2087
FIRM RESUME I. Introduction Stull, Stull & Brody's excellent lawyering and results have been recognized for over forty years. Stull, Stull & Brody has offices in New York City and Los Angeles, enabling the firm to efficiently handle class actions on a nationwide basis. Due to the consistency and seniority of its attorneys, including six attorneys who have been with the firm for more than twenty years and an additional five attorneys who have been with the firm for more than ten years, we are able to leverage vast experience efficiently and effectively. Stull, Stull & Brody consistently delivers favorable results on behalf of the classes that it represents. Because of its successes over the past 40-plus years, Stull, Stull & Brody has developed a national reputation representing plaintiffs in complex class action and derivative cases. With fifteen attorneys and a full complement of secretarial and administrative personnel, Stull, Stull & Brody is capable of effectively prosecuting all types of complex litigation. Our lawyers possess outstanding credentials and our firm has repeatedly been acknowledged for its outstanding achievements.
Recently the firm has concentrated, in large part, on protecting the rights of retirement plan participants under Employee Retirement Income Security Act's ("ERISA") duties of prudence and loyalty. Stull, Stull & Brody has been one of the pioneers of ERISA company stock fund litigations since the filing of In re Lucent Technologies, Inc. ERISA Litig., which was one of the first cases of its kind (described in more detail below, and which the Lucent Court recognized as "new ground"). Stull, Stull & Brody has been on the forefront of ERISA company stock fund litigations since their inception. The 'Firm has briefed and continues to brief cutting- edge legal arguments and analyses to maximize its recoveries on behalf of 401(k) plans and plans participants.
The firm has represented claimants in numerous class actions alleging ERISA violations. In these ERISA actions, Stull, Stull & Brody has recovered hundreds of millions of dollars on behalf of 401(k) plan participants for alleged violations of ERISA's fiduciary duties. Stull, Stull & Brody has extensively briefed all aspects of these ERISA company stock fund litigations, including summary judgment briefings on liability and damages. The In re AOL Time Warner ERISA Litigation Court noted that Stull, Stull & Brody and co-lead counsel's recovery in that case was "one of the largest ERISA settlements to date" and it remains the second largest Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 3 of 24. PageID #: 6276
recovery in an ERISA stock fund litigation to date.' In total, Stull, Stull & Brody has been counsel for the plaintiffs in seven of the twenty largest recoveries in such ERISA cases.2
Stull, Stull & Brody's ERISA experience is further detailed below.
Stull, Stull & Brody has also handled every aspect of securities class action litigation, including initial investigation, extensive pre-trial discovery, trial, post-trial motions, and appeals. Stull, Stull & Brody has been involved in a host of such litigations, having successfully represented plaintiffs, as a lead counsel, in hundreds of cases recovering billions of dollars in damages on behalf of investors.
The firm's efforts have been recognized, as reflected in the letter annexed hereto, by a late member of the United States Congress, the Representative Paul E. Gillmor, Rep. Ohio 5th District. As The Honorable Paul E. Gillmor wrote to The Honorable Stanley E. Chesler, U.S.D.J. on January 2, 2007, in connection with the In re Merck & Co., Inc. Securities, Shareholder Derivative and ERISA Litig., (MDL 1658); Case no 3:05-CV-01151: I was one of the court appointed lead plaintiffs in In re Safety-Kleen Rollins Shareholders Litigation, Civil Action No. 3:00-CV1343-17, which was pending before Judge Joseph Anderson in the District of South Carolina. In that case, which alleged, among other things, violation of the Securities Exchange Act of 1934, 1 and the other court appointed lead plaintiffs selected Stull, Stull & Brody to be one of the lead counsel for the plaintiffs. That case resulted in a settlement recovery for the class of a very substantial portion of the money that could have been recovered if the case had gone to trial net of attorneys fees, expenses and administration fees.
During the course of that litigation, which lasted for about five years, Stull, Stull & Brody kept me apprised of all significant developments in the action such as class certification, settlement negotiations, litigation strategy, pending motions, court rulings and trial preparation. I would regularly speak to counsel by telephone at which time the foregoing topics would typically be discussed and I would have the opportunity to ask questions and provide input.
11. Courts Routinely Recognize the Excellent Lawyering of Stull, Stull & Brody
Stull, Stull & Brody has been recognized by numerous Courts for the high quality of its legal representation and for its excellence in the field of ERISA litigation as evidenced by the
' See ERISA Class Action Settlements & Attorney Fees chart maintained by Fiduciary Counselors Inc., available at http://www.erisasettlements.com/press/ERISA-Chart.pdf.
2 See Fiduciary Counselors Chart, supra, and Settled ERISA Actions, Section III.A, infra.
-2- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 4 of 24. PageID #: 6277
following comments of judges in cases where Stull, Stull & Brody has taken a leading role. For example:
Counsel take justifiable pride in their accomplishments. The quality of their filings was impressive. Counsel defeated well developed motions to dismiss, filed by skilled and renowned defense lawyers. Even more importantly, they used the mediation process to persuade reluctant and determined defendants to part with settlement dollars well above those expected.
The service was praiseworthy in all respects....
In re AOL Time Warner, Inc. Securities and ERISA Litig., No. 02-1500 (S.D.N.Y), Report & Recommendation of Special Master dated August 7, 2007 at 30, approved by the Court by Memorandum Opinion dated October 26, 2007; id. at 37 (noting that Stull, Stull & Brody and co- counsel's obtaining an additional $30 million recovery for the class in addition to the independent fiduciary's expected settlement value of $70 million "stands out as some of the hardest work and most outstanding results" and finding that "counsel exceeded the expectations of the independent fiduciary and stretched the defendants' settlement tolerances beyond their limits."); id. at 42-43 (recognizing counsel's "commendable work and their fidelity to the class in the face of risks.")
As recognized by the court in In re Lucent Technologies, Inc. ERISA Litig.:
[Stull, Stull & Brody and co-counsel] vigorously and aggressively pursued every possible source of value, even achieving meaningful therapeutic relief. The Settlement is reasonable in light of the best possible recovery and represents [] a very substantial portion of the likely recovery in this case....
... As noted above, Plaintiffs were embarking on "new ground" in pursuing this litigation[.] Plaintiffs could rely on only a single favorable case, Ikon, at the time. With little case law and challenging substantive proofs ahead, the outcome of the lawsuit was, at best, questionable.
Case No. 10-cv-3491 (S.D.N.Y.) (Opinion and Order, March 15, 2004, at p. 21) (Pisano, J.) (emphasis in original). See also Reinhart v. Lucent Techs., Inc. (In re Lucent Techs., Inc. Sec. Litig.), 327 F. Supp. 2d 426, 446 (D.N.J. 2004):
This case involved alleged breaches of fiduciary duties relevant to Lucent stock funds held by 401k plan participants. This type of ERISA claims is novel - so much so, that Lucent and its insurers initially contended that the ERISA Class could not recover even if the Class proved the alleged fraud. The ERISA Class, however, maintained its claims and sought monetary damages to recoup their
-3- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 5 of 24. PageID #: 6278
losses and therapeutic changes to the structure of the Plans, particularly the LTSSP... .
As recognized by the court in In re Cardinal Health, Inc. ERISA Litig.:
Each firm has an impressive resume and is qualified to be lead counsel, but the Court finds the McKeehan Plaintiffs' proposed counsel, Schatz & Nobel and Stull, Stull & Brody, will best be able to represent fairly and adequately the class because of their extensive experience in ERISA litigation. In re Terazosin Hydrochloride, 220 F.R.D. 672, 702 (S.D. Fla. 2004) (finding the proposed counsel's "experience in, and knowledge of, the applicable law in this field" the "most persuasive" factor when choosing lead counsel).
225 F.R.D. 552, 556 (S.D. Ohio 2005); id. ("[Co-counsel and] Stull, Stull & Brody have also demonstrated a commitment to identifying and investigating potential claims in the action").
[A] high level of skill in this area of the law was necessary to perform the legal services in this case properly[.] Plaintiffs' counsel possessed the requisite level of experience, reputation and ability in the field of ERISA class actions and other complex litigation[.] the high quality of plaintiffs' counsel's work culminated in the successful resolution of this complex case. This was demonstrated by their successful and commendable prosecution of this case through the motion to dismiss stage and the ultimate settlement of this case under favorable terms.");
In re Sprint Corp. ERISA Litig., No. 03-2202 (D. Kan.) (Aug. 3, 2006) at 335; id. at 33 ("the results obtained by virtue of the settlement are extraordinary compared to the anticipated difficulties of establishing significant amounts of damages even if plaintiffs could have overcome the numerous obstacles for establishing liability"); see also In re Tyco International, Ltd. Securities Litig., Case No. 02-1335 (D.N.H. Dec. 20, 2002) at 2 (finding that Stull, Stull & Brody and its co-counsel "have the necessary resources, skill and commitment to effectively represent the proposed class" and "extensive experience in both leading class actions and prosecuting ERISA claims." and that Stull, Stull & Brody and its co-counsel "have demonstrated their consistent commitment to this case by filing several well-argued briefs with the Court on a range of issues"); Hill v. Tribune Co., 2005 U.S. Dist. LEXIS 23931 (N.D. III. 2005) (finding "that the Stull Group has more experience and possibly greater resources" than the other applicant for lead counsel).
In addition, for over the past thirty years Stull, Stull & Brody has been recognized by numerous Courts for the high quality of its legal representation and for its excellence in the field of securities as evidenced by the following comments of judges in cases where Stull, Stull & Brody has taken a leading role:
All the firms involved in this litigation are highly experienced and well respected, particularly in the field of securities law litigation. The
-4- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 6 of 24. PageID #: 6279
Stull ... firm [is one] of this area's, if not the nation's most active and successful law firms specializing in securities litigation. Stull v. Baker, 410 F. Supp. 1326, 1332 (S. D. N.Y. 1976). The firms involved, I think we heard from several of them today, the papers that have been submitted, it is clear of the dedication, devotion, professionalism, and in the court's view efficiency of these firms, so there is no question in the court's mind of the quality of the representation. In re American Express Finl Advisors Sec. Litig., 04 Civ. 1773 (DAB) (S.D.N.Y. July 13, 2007). [T]his is one of the largest, if not the largest, securities fraud settlements in this district. The settlement size is particularly noteworthy as class counsel did not have the benefit of an SEC or other regulatory agency investigation and so prosecuted the case without assistance.... The management of the case was also of extremely high quality.... [C]lass counsel is of high caliber and has extensive experience in similar class action litigation. Each of the co-lead counsel firms has a national reputation for advocacy in securities class actions, and there is no doubt that this standing enhanced their ability to prosecute the case effectively and to negotiate credibly.... The submissions were of consistently high quality, and class counsel has been notably diligent in preparing filing in a timely manner even when under tight deadlines. In re Ikon Office Solutions, Inc Securities Litigation, 2000 U.S. Dist. LEXIS 6510 (E.D. Pa. May 9, 2000). 1 am satisfied that counsel in this case are highly competent, very skilled in this very specialized area and were at all times during the course of the litigation ... well prepared, well spoken, []knew their stuff and []were a credit to their profession. They are the top of the line. In Re Electro-Catheter Corporation Securities Litigation, Civ. No. 87-41 (D.N.J. Sept. 7, 1989). The court takes note of the competence of both plaintiffs' counsel and defendants' counsel and their extensive experience in litigating securities class actions. The competence of plaintiffs' counsel resulted in this case being vigorously and efficiently prosecuted against very able opponents over a twenty month period and was a factor in bringing about settlement. Schaffer v. Timberland Co., 94-634-JD (D. N.H. 1997).
-5- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 7 of 24. PageID #: 6280
This case is a "model for how commercial litigation should be conducted and can be resolved." Bash v. Diagnostek, CV 94-794 IVI (D.N.M.).
Indeed, I indicate to ... counsel for plaintiff that they have done an admirable job in this case in bringing it to finality and in bringing back to the shareholders of this corporation some moneys [sic] as a result of certain things which occurred during the course of the operation of this corporation which perhaps should not have occurred.
Finkel v. O'Brien, Civ. No. 85-2539 (D.N.J. March 27, 1990).
Stull, Stull & Brody's expertise in the field of securities litigation has also been recognized by the following courts: In re Frontier Group Insurance, Inc. Securities Litigation, 172 F.R.D. 31 (E.D.N.Y. 1997); In re Allegheny International Inc. Shareholder Litigation, 86-835 (W.D. Pa.) (Order, December 10, 1987, Diamond J.); Zucker v. United States Steel, C-1-79-588 (S.D. Ohio) (Order, October 14, 1981, Rubin, C.J.); Friedman v. Colgate Palmolive, 80 Civ. 2340 (CPS) (E.D. N.Y.) (Order, June 16, 1981, Sifton, J.); Zuckerman v. Sparton, G79-457-C.A. (W.D. Mich.) (Opinion and Order, April 14, 1981, Fox, J.); Mottoros v. Abrams, 524 F. Supp. 254 (N.D. Ill. 1981); Koenig v. Smith, 79 C 452 (ERN) (E.D.N.Y.) (Memorandum Opinion and Order, December 3, 1980, Neaher, J.); Koenig v. Kenneally, 79 Civ. 0487 (LBS) (S.D.N.Y.) (Opinion No. 49289, November 5, 1979, Sand, J.); In Re Commonwealth Oil-Tesoro Petroleum Securities Litigation, IVIDL No. 347 (Order, July 24, 1979, Higginbotham, J.); Wietschner v. McCulloch, CV 78-4036-RMT (C.D. Ca.) (Order, June 29, 1979, Takasugi, J.); Fruchthandler v. LTV Corp., 77C 1879 (E.D.N.Y.) (Order, May 10, 1978, Nickerson, J.); Lewis v. Adikes, 76 F.R.D. 68 (E.D.N.Y. 1977); Lewis v. Black, [1976-77 Transfer Binder] Fed. Sec. L. Rep. (CCH) % 95,738 (E.D.N.Y. 1976) (Mishler, C.J.); Fruchthandler v. Blakely, 73 F.R.D. 318 (S.D.N.Y. 1976).
111. Seminal Cases
Throughout its 40 year history, Stull, Stull & Brody has been involved with a number of seminal cases that have significantly affected the landscape of ERISA and securities litigation.
• In the Lucent ERISA litigation the firm was largely responsible for a frequently-cited ruling by the District Court dated February 11, 2002, where -the Court denied a motion to stay the ERISA litigation against Lucent until resolution of a related securities class action against the company. Stull, Stull & Brody's briefing on the stay motion pointed out the many significant differences between ERISA and securities class actions, even when the ERISA and securities cases involve the same factual issues. The District Court ultimately ruled that "resolution of the securities class action ... will not necessarily resolve all issues in this matter" and "[t]he legal issues here will still have to be determined, and a stay or continuance shall not change that fact." In re Lucent Technologies, Inc. ERISA Litig., Civil Action No. 01-cv-3491 (JAP) (D. N.J. 2005)
• In Merck & Co., Inc., v. Reynolds, No. 08-905, U.S. S. Ct. _, 2010 U.S. LEXIS 3671 (April 27, 2010), in a case brought on behalf of investors in Merck securities alleging that they were defrauded due to misrepresentations made by Merck, the United
-6- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 8 of 24. PageID #: 6281
States Supreme Court issued a ruling making it easier for defrauded investors to file actions claiming violation of the Securities Exchange Act of 1934 by holding that the statute of limitations does not begin to run on investors not only until the time an investor should have known that a false statement was made but also until the time that the investor should have known that the statement was either knowingly or recklessly made.
• In Rand v. Monsanto Company, 926 F.2d 596 (7th Cir. 1991),the firm appeared for the plaintiff in a landmark decision establishing the principle that a representative plaintiff need not be willing to bear all costs of an action to satisfy the adequacy of representation requirement.
• In Small v. Fritz Companies Inc., 30 Cal.4th 167 (2003), the firm successfully argued before the California Supreme Court that a non-trading shareholder has the right to sue a corporation for damages where the shareholder relies on false financial statements issued by the corporation. The decision represented a significant doctrinal change and was widely heralded as a potent new weapon for investors.
• In Lewis v. Black, 74 F.R.D. 1 (E.D.N.Y. 1975), the firm established that neither the personality nor the motive of a proposed class representative was determinative of whether he would provide vigorous advocacy for the class, thereby preventing defendant corporations from compelling representatives to respond to questions regarding motives and actions in past cases.
• In In re Cabletron Systems, Inc. Securities Litig., 311 F.3d 11 (1st Cir. 2002), the firm was instrumental in obtaining a reversal of a dismissal of a complaint under the pleading requirements of the Private Securities Litigation Reform Act. This case established in the First Circuit that plaintiffs are not required to provide the names of informants in a complaint.
• In In re Frontier Group Insurance Litig., Master File No. 94 Civ. 5213 (E.D.N.Y. 2002), the firm was instrumental in defeating a Daubert challenge and sustained the ability of the expert to testify as to aggregate damages based on the use of a trading model.
• In Harman v. Lyphomed, Inc., 122 F.R.D. 522 (N.D. III. 1988), the firm established the applicability of the fraud-on-the-market theory of reliance for stocks trading on NASDAQ.
• The firm was instrumental in establishing new law on "fraud on the market" theory in the 5th Circuit decision of Finkel v. Docutel/Olivetti Corporation, 817 F.2d 356 (5th Cir. 1987), cert. denied, 485 U.S. 959 (1988), and, in the Northern District of Illinois decision of Mottoros v. Abrams, 524 F. Supp. 254 (N.D. III. 1981).
• In Howard v. Everex, 228 F.3d 1057 (9th Cir. 2000), Stull, Stull & Brody successfully advocated that a corporate officer can be liable in a private antifraud action for signing a document filed with the SEC that he knows (or is reckless in not knowing) contained misrepresentations, even if the officer was not involved in preparing the document. The 9th Circuit decision was a precursor to Section 302(a) of the Sarbanes-Oxley Act of 2002 which now requires corporate officers that sign documents filed with the SEC to certify the accuracy of information therein.
-7- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 9 of 24. PageID #: 6282
As a lead counsel, Stull, Stull & Brody has successfully litigated hundreds of actions, recovering over one billion dollars on behalf of defrauded shareholders. A sampling of these cases in which Stull, Stull & Brody had a leading role include:
A. Settled ERISA Actions
• In re AOL Time Warner ERISA Litig., Civil Action No. 02 CV 8853 (SWK) (S.D.N.Y. 2006) (recovery of $100 million in cash to the company's 401(k) plan in what the court noted was "one of the largest ERISA settlements to date")
• In re Global Crossing Ltd. ERISA Litig., Master File No. 02-cv-7453 (GEL) (S.D.N.Y. 2004) (Stull, Stull & Brody served as liaison counsel for the class in a case which recovered a payment of $79 million to the company's 401(k) plan)
• Overby v. Tyco International, Ltd., Case No. 02-CV-1357-B (D.N.H.) (settlement of $70.525m in cash; over 80 million pages of discovery were produced to counsel and over 250 days of deposition were taken)
• In re Lucent Technologies, Inc. ERISA Litig., Civil Action No. 01-cv-3491 (JAP) (D.N.J. 2005) (recovery of $69 million in cash and stock to the company's 401(k) plan)
• In re Worldcom, Inc. ERISA Litig., Master File No. 02-4816 (DLC) (S.D.N.Y. 2005) (Stull, Stull & Brody served as local counsel for the class in a case which recovered $47.15 million for the company's 401(k) plan) • Harrington v. Household International, Inc., Civil Action No. 02 C 8257 (SY) (N.D. III. 2004) (recovery of $46.5 million in cash to the company's 401(k) plan)
• In re Cardinal Health, Inc. ERISA Litig., No. C2-04-643 (ALM) (S.D. Ohio 2007) (recovery of $40 million in cash to the company's 401(k) plan)
• Zilhaver et al. v. UnitedHealth Group, Inc. et al, Case No. 06-cv-2237 (JMR) (D. Minn.) (a settlement of $17 million cash to the company's 401(k) plan approved in August of 2009)
• In re Sears, Roebuck & Co. ERISA Litig., No. 02 C 8324 (JWD) (N.D. III. 2007) (recovery of $14.5 million in cash to the company's 401(k) plan)
• Russell v. Conseco Services, LLC 1:02-cv-1639-LJM (S. D. Ind. 2005) (recovery of $9.975 million in cash to the company's 401(k) plan)
• In re Sprint Corporation ERISA Litig., Master File No. 2:03-CV-02202-JWL (D. Kan. 2006) (recovery of $4 million in cash, as well as benefits to participants in the company's 401(k) plans including: increased vesting of employee accounts; increased company matching of employer contributions; a number of participant-friendly plan amendments; and improved participant communications)
• In Re Affiliated Computer Services ERISA Litig., Master File No. 06-CV-1592 (CBA) (N.D. Tex. 2008) (recovery of $1.5 million in cash, as well as benefits to the participants in the
-8- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 10 of 24. PageID #: 6283
company's 401(k) plans including: participant communications advising of the risk of investing individual accounts solely in ACS stock, matching in cash instead of company stock, lifting restrictions on company matching contributions, additional communications to all participants about the risks of the ACS stock fund)
• Jones v. Novastar Financial, Inc. et al., 4:08-cv-00490-NKL (W.D. Mo.) ($925,000 settlement)
• Page v. Impac Mortgage Holdings, Inc., 8:07-cv-01447-AG-MLG (C.D. Cal.) (recovery of $300,000 in stock deposited into plan participants retirement accounts)
B. Settled Securities Class Action Cases
• In re Initial Public Offerings Securities Litig., NIDL No. 1264 (S.D.N.Y. 2009) (Stull, Stull & Brody served as one of six members of Plaintiffs' Executive Committee, which recovered $586 million)
• In re Bankamerica Corp. Securities Litig., MDL No. 1264 (E.D. Mo. 2002) (recovery of $333.2 million)
• In re Geodyne Resources, Inc. Securities Litig. (Harris County Tex.) (recovery of $200 million)
• In re Computer Associates Sec. Litig., Master File No. 98-CV-4839 (TCP) (E.D.N.Y. 2003) (recovery of 5.7 million shares (estimated at $134 million))
• Spahn v. Edward D. Jones & Co., L.P. et al., 04-CV-00086 (E.D. Mo. 2007) (recovery of $72.5 million in credits for current Edward Jones customers and $55 million in cash for former Edward Jones customers. In addition, defendants paid all reasonable costs and expenses of class notice and settlement adrninistration)
• In re Peregrine Systems, Inc. Sec. Litig., Civil Action No. 02-CV-870 J (RBB) (S.D. Ca. 2006, S.D. Ca. 2009) (recovery of $117,567,922)
• In re American Express Financial Advisors Sec. Litig., 04-CV-1773 (S.D. N.Y.) (recovery of $100 million in cash and implementation of significant remedial measures. In addition, defendants paid all reasonable costs of class notice and settlement administration, which is currently estimated to be $15 to 18 million)
• In re Ikon Office Solutions, Inc. Securities Litig., IVIDL No. 1318 (E.D. Pa. May 9, 2000) (recovery of $111 million)
• In re Salomon Brothers Treasury Litig., Consolidated Action No. 91 Civ. 5471 (RPP) (S.D. N.Y. 1994) (recovery of $100 million)
• In re Priceline.com, Inc. Sec. Litig., Master File No. 3:000V01884 (AVC) (D. Conn.) (recovery of $80 million)
-9- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 11 of 24. PageID #: 6284
• In re Westinghouse Securities Litig., Civil Action No. 91-354 (W. D. Pa. 1999) (recovery of $67.25 million)
• In re Thomas & Betts Securities Litig., Case No. 00-2127 (W.D. Tenn. 2002) - related case: Pifko v. KPMG LLP, Civ. Action No. 01-CV-2553 (W. D. Tenn. 2004) (recovery of $51.15 million)
• In re Tenneco Inc. Securities Litig., Civ. Action No. H-91-2010 (S.D. Tex. 1992) (recovery of $50 million)
• In re Apria Healthcare Group Securities Litig., Master File No. 797060 (Superior Court of California, Orange County) (recovery of $42 million)
• Thomas Levitan v. John B. McCoy, Jr., et al., Case No. 00 C 5096 (N.D. III. 2006) (recovery of $39.9 million)
• In re Cannon Group Securities Litig., 86-5559-WIVIB (JRx) (C.D. Ca. 1988) (recovery of $33 million)
• Teichler v. DSC Communications Corporation, CA 3-85-2005-T (N.D. Tex. 1990) (recovery of $30 million)
• Berger v. Compaq Computer Corp., Civ. Action No. 98-1148 (S.D. Tex. 2002) (recovery of $28.65 million)
• In re: Northeast Utilities Securities Litig., Civil Action No. 397 CV 00189 AVC (D. Ct.) (recovery of $25 million)
• Lasky v. Brown (United Companies Financial Corporation) Securities Litig., Civil Action No. 99-1035-B-M2 (M.D. La. 2002) (recovery of $20.5 million)
• Lasker et al v. Kanas et. Al., (North Fork Bancorporation), Index No. 103557/06 (New York County, NY) (recovery of $20 million and other consideration)
• Feinberg v. Hibernia Corp., Civil Action No. 90-4245 (E.D. La. 1995) (recovery of $20 million)
• In re Dreyfus Aggressive Growth Mutual Fund Litig., Master File No. 98 Civ. 4318 (HB) (S.D.N.Y.) (recovery of $18.5 million)
• In re Rambus, Inc. Securities Litig., Master File No. C-06-4346-JF (N.D. Cal. 2008) (recovery of $18.33 million)
• In re C.R. Bard, Inc. Securities Litig., Master File No. 90-948 (AMW) (D.N.J. 1991) (recovery of $17.9 million)
• Spring v. Continental Illinois Corporation, 84 C 4648 (N.D. III. 1987) (recovery of $17.5 million)
-10- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 12 of 24. PageID #: 6285
• In re Rhythms Sec. Litig., Civil Action No. 02-K-35 (GCL) (D. Co.) (recovery of $17.5 million)
• Morse v. Abbott Laboratories, C.A. No. 90 C 1982 (N.D. III. 1994) (jury verdict of $15 million)
• In re Green Tree Financial Corporation Stock Litig., Master File No. 97-2666 (JRT/RLE) (D. Minn. 2003) ($12.45 million)
• In re Elscint Securities Litig., Civ. Action No. 85-2662-K (D. Mass. 1989) (recovery of $12 million)
• In re National Medical Enterprises Securities Litig. 11, Case No. CV 93-5224 TJH (Bx) (C.D. Ca.) (recovery of $11.65 million)
• Bash v. Diagnostic, Inc., Civil Action No. 94-784 (D.N.M.) (recovery of $10.7 million)
• In re Cybermedia, Inc. Securities Litig., Master File No. 98-1811CBM (Ex) (C.D. Ca.) (recovery of $10.5 million)
• In re Cabletron Systems, Inc. Sec. Litig., C 97-542 (D.R.I. 2006) (recovery of $10.5 million)
• In re Physicians Corp. of America Sec. Litig., Case No. 97-3678-CIV (S.D. Fla. 2003) (recovery of $10.2 million)
• In re Complete Management Inc. Sec. Litig., Master File No. 99 Civ. 1454 (NRB) (S.D.N.Y.) (recovery of $10.15 million)
• In re U.S.A. Detergent Securities Litig., 97-CV-2459 (D.N.J. 1999) (recovery of $10 million)
• In Re: Biopure Corporation Sec. Litig., Docket No. 03-CV-12628 (NG) (D. Mass. 2007) (cash recovery of $10 million)
• In re Nice Systems, Ltd. Securities Litig., Master File No. 2:01 CV 737 (Judge Greenaway) (D. N.J. 2003) (recovery of $10 million)
• Harman v. Lyphomed, 88 C 476 (N.D. III. 1989) (recovery of $9.99 million)
• In re Beverly Enterprises, Inc. Securities Litig., Master File No. CV 88-01189-RSWL (Tx) (C.D. Ca. 1992) (recovery of $9.975 million)
• Greenfield v. Compuserve Corp., Case No. 96-CV-06-4810 (Franklin County, Ohio) (recovery of $9.5 million)
• In re Stratosphere Securities Litig., Master File No. CV-S-96-00708-PMP (RLH) (D. Nev.) (recovery of $9 million)
-11- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 13 of 24. PageID #: 6286
• In re Steven Madden Ltd. Securities Litig., No. 00-CV-3676 (JG) (E.D.N.Y. 2002) (recovery of $9 million)
• In re Gibraltar Financial Corporation Securities Litig., CV 87-07876 MRP (Gx) (C.D. Ca. 1989) (recovery of $8.5 million)
• In re FHP Securities Litig., Master File No. SACV 91-580-GLT (RWRx) (C.D. Ca. 1992) (recovery of $8.25 million)
• Zucker v. Maxicare Health Plans, Inc., Case No. 88-02499-LEW (Tx) (C.D. Ca. 1991) (recovery of $8.1 million)
• In re Orion Pictures Corp. Securities Litig., Master File No. 91 CV 1903 (CBA) (E.D.N.Y. 1992) (recovery of $8 million)
• Berlinsky v. Alcatel, 94-CIV-9084 CBM (S.D.N.Y.) (recovery of $8 million)
• In re Triton Energy Corporation Securities Litig., Master File No. 3:92-CV-1069-H (N.D. Tex. 1993) (recovery of $8 million)
• Ganesh v. Computer Learning Center (E.D. Va. 1999). Settlement of $7.5 million for alleged misrepresentations to investors by trade school operator.
• In re Metris Companies, Inc. Sec. Litig., Civil Action No. 02-CV-3677 JMR/FLN (D. Minn. 2008) (recovery of $7.5 million)
• In re Cityscape, CV 97 5668 (E.D.N.Y.) (recovery of $7 million)
• In re Dime Savings Bank of New York Securities Litig., MDL Docket No. 846 (E.D.N.Y. 1993) (recovery of $6.8 million)
• In re Western Digital Securities Litig., SACV 91-375(A) GLT (RWRx) (C.D. Ca.) (recovery of $6.75 million)
• In re Bank of New England Corporation Class Action and Shareholder Litig., C.A. Nos. 89-2582-S, 89-2811-S (D. Mass. 1992) (recovery of $6.5 million)
• Bobbitt v. Andrew J. Filipowski, et al., No. 06-11072-PBS (D. Mass. 2008) (recovery of $6.3 million)
• In re Berkshire Realty Company, Inc. Shareholder Litig., C.A. No. 17242 (Delaware Chancery Court 2004) (recovery of $6.25 million)
• Gerstein v. Micron Technology, Inc., et al., Civil No. 89-1262 (D. Id. 1993) (recovery of $6 million)
• In re Ziff-Davis, Inc. Securities Litig., Master File No. 98-CIV-7158 (SWK) (S.D.N.Y. 2002) (recovery of $6 million)
-12- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 14 of 24. PageID #: 6287
• Dynegy Inc., et al. v. Bernard V. Shapiro, et al., No. 2002-00080, in the 129th Judicial District, Harris County, Texas (recovery of $6 million)
• In re Ascend Communications Securities Litig., Case No. 97-9376 MRP (AN) (C.D. Ca. 2002) (recovery of $5.45 million)
• In re Brightpoint, Inc. Securities Litig., Case No. IP 01 1796 C-T /K (recovery of $5.25 million)
• Kushner v. Wang Laboratories, Civil Action No. 89-1963-Y (D. Mass. 1994) (recovery of $5 million)
• In re SouthEast Banking Corp. Securities Litig., Master File No. 90-0760-CIV-MOORE (S.D. Fla. 1993) (recovery of $5 million)
• Wells v. Southmark Corporation, et al., CA3-85-1518 -G (N.D. Tex. 1992) (recovery of $5 million)
• In Re: Interlink Electronics Inc. Sec. Litig., 05-CV 08133 (AG) (SH) (C.D. Cal. 2009) (recovery of $5 million)
• In re Regeneron Pharmaceuticals, Inc. Securities Litig., Civil Action No. 03 CV 311 (RWS) (S.D.N.Y. 2005) (recover of $4.7 million)
• In re Sung/ass Hut Intl., Inc. Securities Litig., Case No. 97-0191-CIV -MOORE (S.D. Fl. 2001) (recovery of $4.5 million)
• Clive T. Miller v. Apropos Technology, Inc., et al., No. 01 C 8406 (N.D. III. 2004) (recovery of $4.5 million)
• In re Fidelity Holdings Securities Litig., Case No. CV 00 5078 (CPS) (WP) (E.D.N.Y. 2003) (recovery of $4.45 million)
• Adam Burstyn, et al. v. Worldwide Xceed Group, Inc., et al., Case No. 01 CV 1125 (GEL) (S.D.N.Y. 2005)(recovery of $4.4 million)
• In re NetEase.com Sec. Litig., Civil Action No. 01-CV-9405 (RO) (S.D.N.Y. 2003) (recovery of $4.35 million)
• In re Flextronics, Inc. Sec. Litig., No. C-03-2102 PJH (N.D. Ca. 2004) (recovery of $4.25 million)
• Schaffer v. Timberland Co., 94-634-JD (D.N.H. 1997) (recovery of $4.2 million)
• In re HMO America Securities Litig., Civ. No. 92 C 3305 (CPK) (N.D. III. 1993) (recovery of $4 million)
• In re Nanophase Technologies Corporation Securities Litig., Case No. 98 C 3450 (N.D. III.) (recovery of $4 million)
-13- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 15 of 24. PageID #: 6288
• In re Quintex Securities Litig., Master File No. CV-89-6182-R (C.D. Ca. 1990) (recovery of $4 million)
• Walsingham v. Biocontrol Tech. Inc., Civil Action No. 96-809 (W.D. Pa.) (recovery of $3.7 million)
• In re Irvine Sensors Corp. Sec. Litig., Master File No. SA 02-00159 GLT (MLGx) (C.D. Ca. 1994) (recovery of $3.5 million)
• In re iTurf Inc. Shareholders Litig., Consolidated Civil Action No. 18242 NC (Delaware Chancery Court) (recovery of $3.25 million)
• In re Safety Kleen Rollins Shareholder Litig., Case No. 3:00-1343-17 (D.S.C. 2005)(recovery of $3.15 million)
• In re Kay Jewelers Securities Litig., Civil Action No. 90-1663A (E.D. Va. 1991) (recovery of $3 million)
• Clarkson v. Greyhound Lines, Inc., 96-11329-C (Dist. Ct., Dallas County, Tex.) (recovery of $3 million)
• In re TwinLab Corp. Securities Litig., Master File No. 00-CV-6975 (DRH) (E.D.N.Y. 2005) (recover of $3 million)
• In re Spectrian Corp. Securities Litig., Master File No. C-97-4672-CW (N.D. Ca.) (recovery of $2.975 million)
• Moriarty v. Molina, Case No. 99-0255-CIV-MORENO (S.D. Fla. 2003) (recovery of $2.8 million)
• In re Peritus Software Services, Inc. Securities Litig., Civ. Action No. 98CV10955 WGY (D. Mass. 2000) (recovery of $2.8 million)
• In re 2TheMart.com, Inc. Sec. Litig., Case No. 99-1127 DOC (ANx) (C.D. Ca. 2002) (recovery of $2.7 million)
• McBride v. Vision Twenty-One, Inc., Case No. 99-138-CIV-T-25F (M.D. Fl. 2003) (recovery of $2.5 million)
• In re Pharmaprint Inc. Sec. Litig., Civ. No. 00-61 (AJL) (D.N.J. 2003) (recovery of $2.3 million)
• In Re: Columbia Entities Litig., 04-CV-11704 (D. Mass. 2004) (reduction in the overall rate charged as advisory fees (i.e., "breakpoints) when the mutual funds advised by the advisers reach certain levels of assets under management, enhanced shareholder communications, and a $100,000 contribution to research expenses for the benefit of some or all of the settling funds)
-14- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 16 of 24. PageID #: 6289
C. Settled Derivative Actions
• Esther Sadowsky Testamentary Trust, et al. v. Brendsel, et al. (Federal Home Loan Mortgage Corporation), 05-cv-2596 (Oct. 27, 2006) (recovery of approximately $100 million as well as significant corporate governance measures)
• In re Bank of New York Corporate Derivative Litigation, Index No. 604465/99 (Sup. Ct. NY) (recovery of $26.5 million for the company; and (b) the adoption of significant corporate governance measures) • In re FirstEnergy Shareholder Derivative Litigation, 03-CV-1826 (N.D. Oh. 2003) (recovery of approximately $25 million and the adoption of significant corporate governance measures)
• In re Hewlett-Packard Company Derivative Litig., 1:06-cv-071186 (Cal. Super. Ct., Santa Clara County 2006), 2426-VCN (Delaware Chancery Court 2006) (derivative action stemming from the board of directors' alleged leak of an investigation that ultimately led to the firing/resignation of various high level officers and directors of HP. Substantial corporate governance reforms were instituted as part of the settlement, with HP's special litigation committee agreeing to undertake numerous widespread corporate governance changes directed toward HP's code of business ethics and guidelines)
• In re Trump Hotels Shareholder Derivative Litig., 98-Civ-7820 (GEL) (S.D.N.Y. 2001) (recovery of assets for corporation valued in the range of $10 million)
• Gallic et al. v. Appelbaum et al., 3:06-cv-5523-FLW-TJB (D.N.J. 2005) (repayment of $1,387,471 for backdated stock options; repricing of stock options worth potentially $8,113,847; and significant corporate governance changes designed to strengthen the granting of, and accounting for, stock options)
• In re Foundry Networks, Inc. Deriv. Litig., 1:06-cv-068878 (Cal. Super. Ct., Santa Clara County Aug. 9, 2006) (recovery of $2.1 million, repricing of certain allegedely backdated stock options, and significant corporate governance reforms)
• Lasker v. Massengill (In re State Court Western Digital Corp. Deriv. Litig.), 06-CC-00159 (Cal. Super. Ct., Orange County Aug. 14, 2006) (derivative litigation challenging certain allegedly backdated stock option grants settled for $522,680 and significant corporate governance changes designed to strengthen the granting of, and accounting for, stock options)
• In re Titan Corporation Derivative Litigation, GIC 832018 (Cal. Super. Ct., San Diego County 2005) (resulting in increase in the merger consideration from $22.76 to $23.10 per share of Titan common stock; (b) a reduction in the termination fee; and (c) additional disclosures relating to the merger)
• Ekas v. Burris, et al. (Citrix Systems, Inc.), 07-016114-11, (Fla. Cir. Ct., Broward County 2007) (derivative litigation challenging certain allegedly backdated stock option grants
-15- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 17 of 24. PageID #: 6290
settled for significant corporate governance changes designed to strengthen the granting of, and accounting for, stock options)
• In Re Jabil Circuit Options Backdating Litig., 06-CV-01257 (M.D. Fla. 2006) (derivative litigation challenging certain allegedly backdated stock option grants settled for significant corporate governance changes designed to strengthen the granting of, and accounting for, stock options)
• Edelstein v. Brodie, et. al., Case No. 3:07-cv-00596- FLW-JJH (D.N.J. 2007) (derivative litigation challenging certain allegedly backdated stock option grants settled for significant corporate governance changes designed to strengthen the granting of, and accounting for, stock options)
• Soojian et al. v. Jacobs et al. f1b/o Royal Dutch Petroleum Company, No. 04- cv-4160 (DNJ 2005) (adoption of significant corporate governance changes)
IV. Pending Litigations
A. Pending ERISA Class Action Cases in which Stull, Stull & Brody is serving as Plaintiffs' Lead or Co-Lead Counsel
• In re. Computer Sciences Corporation ERISA Litig., Case 2:08-cv-02398-SJO- JWJ (C. D. Cal.) (grant of summary judgment to defendants is currently on appeal)
• Howell et al. v. Koenemann, et al, Case No. 03-CV-5044 (RRP) (N.D. III.) (grant of summary judgment to defendants is currently on appeal)
• In re: Diebold ERISA Litig., Case No. 06-cv-00170 (SEL) (N.D. Ohio) (proposed settlement pending)
• Lanfear et al. v. Home Depot, et al, 07-cv-197 (ODE) (N. D. Ga.)
• National City Corporation Securities, Derivative & ERISA Litig., 1:08-cv-07000 -PAG (N.D. Ohio)
• Leach v. Textron Inc., 09-383-ML-LDA (D. R.I.)
• Obester v. American Express Company et al., 1:08-cv-10834-JGK (S.D.N.Y.)
• In re: Intl Game Tech, ERISA Litig., 3:09-cv-00584-ECR-RAM (D. Nev.)
• In Re Sun Trust Banks, Inc. ERISA Litig., 1:08-cv-03384 -RWS (N.D. Ga.)
• Lipman v. Terex Corp., 3:10-cv-00006 -RNC (D. Conn.)
-16- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 18 of 24. PageID #: 6291
B. Pending ERISA Action which Stull, Stull & Brody is prosecuting but has not been officially appointed as Plaintiffs' Lead or Co-Lead Counsel
• In re Boston Scientific Corp. ERISA Litig., Master File No. 06-cv-10105 (JLT) (D. Mass.) (Stull, Stull & Brody is serving as counsel for Plaintiffs) (settlement pending)
• Taylor v. Keycorp et al., 1 :08-cv-01927-DCN (N.D. Ohio)
• Gearren et al. v. The McGraw-Hill Companies, Inc. et al., 1:08-cv-07890-RJS (S.D.N.Y.) (dismissed, appeal forthcoming)
• Brown v. Medtronic, Inc. et al., 0:08-cv-04904-RHK-AJB (D. Minn.) (dismissed, appeal pending)
• Patten v. Northern Trust Corp. et al., 1:08-cv-05912 (N.D. III.)
• Fisher v. JP Morgan Chase & Co., et al., 03-CV-3252 (SHS) (S.D.N.Y.)
• Kenney v. State Street Corp, No. 09-10750-PBS (D. Mass.)
• Walter v. Level 3 Communications, Inc., 1:09-cv-00658-REB (D. Colo.)
• Yates v. Rosoff, 2:09-cv-05746-CMR (E.D. PA.) (ERISA action against Advanta Corp.)
• Griffin v. Flagstar Bancorp, Inc., 2: 1 0-cv-1 0610 (E. D. Mich.)
• Ninow v. Hartford Fin Svc Group Inc., 3:08-cv-01708-PCD (D. Conn.) (Stull, Stull & Brody is serving as counsel for Plaintiffs)
• White v. Marshall & Ilsley Corporation, 2:10-cv-00311-JPS (E.D. Wisc.)
• Griffin v. Flagstar Bancorp, Inc., 2:10-cv-10610-PDB-MKM (E.D. Mich.)
C. Pending Securities Class Action Cases in which Stull, Stull & Brody is serving as Plaintiffs' Lead or Co-Lead Counsel
Stull, Stull & Brody is presently serving as plaintiffs' counsel in a number of pending actions in various district courts, including:
• Bachman v. AG Edwards, Inc., et al., Cause No. 22052-01266-02 (Mo. Cir. Ct.)
• In re Arotech Corp. Securities Litig., Master File No. 07-CV-1838 (RJD) (WP)
• In re FleetBoston Financial Corp. Sec. Litig., Civ. No. 02-4561 (WGB) (D.N.J.)
• In re Merck & Co., Inc., Securities, Derivative & "ERISA" Litig., MDL No. 1658 (SRC), Case No. 2:05-CV-01151-SRC-NIF, (D.N.J.); Case No. 2:05-CV-02367-SRC-NIF (D.N.J.)
-17- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 19 of 24. PageID #: 6292
• In re Mutual Funds Investment Litig., MDL 1586, Case No. 04-MD-15863 (JFM) (D. Md.); Parthasarathy v. RS Investment Management, L.P., et al., Case No. 04-cv-3798-JFM (D. Md.)
• In re Xerox Sec. Litig., Civil Action No. 3:99 CV 2374 (AWT) (D. Conn.)
• In re Herald, Primeo and Thelma Funds Sec. Litig., 1:09-cv-00289-RMB (S.D.N.Y.)
D. Pending Derivative Cases
• Pincus v. Browne, et al. (BP p.l.c.), 06-cv-6168 (S.D.N.Y. Aug. 14, 2006) (alleging gross mismanagement and breaches of fiduciary duty by BP's Officers and Directors which resulted in the 2005 explosion at BP's Texas City refinery, criminal and civil investigations and fines relating to BP's manipulation of the propane, crude oil and gasoline markets and caused the largest oil spill ever in Prudhoe Bay, Alaska, which ultimately caused the closing down of Prudhoe Bay's oil production) (appeal of dismissal pending)
• Stoll et al., v. Glenayre Technologies, Inc. et al., 07-CV-00608 (S.D.N.Y. 2008)
V. Attorneys
Stull, Stull & Brody maintains offices in New York and Los Angeles. The following section sets forth basic educational and experience information for each of Stull, Stull & Brody's attorneys.
A. New York Office
Jules Brody is a graduate of Brooklyn College, magna cum laude, and received his L.L.B. from the New York University School of Law in 1964. Mr. Brody made the Dean's List and was an editor of the Law Review. Mr. Brody was the author of "The Equitable Power to Assess Counsel Fees" which was published in the New York University Intramural Law Review in May 1964. At NYU, Mr. Brody was a John Norton Pomeroy Scholar and received the American Jurisprudence Prize in Commercial Law and graduated in the top 10% of his class. He was admitted to the New York State Bar in 1964. Mr. Brody received his LL.M. in taxation from the graduate division of the NYU School of Law in 1967. Mr. Brody is also admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York, the United States Courts of Appeals for the Second, Fourth and Fifth Circuits, and has been specially admitted to practice before various district courts throughout the United States.
Edwin J. Mills is Of Counsel to Stull, Stull & Brody. He is a graduate of Fordham University and received his J.D. from Brooklyn Law School in 1977. Mr. Mills was admitted to practice in the State of New York and in the Eastern District of New York in 1978. He has represented classes of purchasers of securities and shareholders for over 20 years in federal and state courts throughout the United States. Mr. Mills has extensive experience in all aspects of securities and ERISA class action litigation, including settlement negotiation and trial, including four class actions tried to verdict in the 1990's. Mr. Mills oversees all of the Firm's ERISA Actions, including several large ERISA class action cases brought on behalf of 401(k)
-18- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 20 of 24. PageID #: 6293
retirement plan participants and beneficiaries, including cases involving National City Corporation, Diebold, and Home Depot. Favorable outcomes of cases litigated by Mr. Mills include the 401(k) class actions involving AOL Time Warner ($100,000,000 settlement); Tyco International ($70.525 million); Lucent Technologies ($69,000,000) and Cardinal Health ($40,000,000).
Mark Levine is a graduate of the University of Maryland and received his J.D. from Brooklyn Law School in 1981. He was admitted to the New York State Bar in 1982 and is admitted to practice before the United States District Courts for the Southern, Western and Eastern Districts of New York and the Northern District of Illinois, the United States Court of Appeals for the Second, Fourth, Sixth, Ninth, Tenth and Eleventh Circuits, and has been specially admitted to practice before various other state and federal courts. He has participated in the litigation of securities class actions throughout the United States. Notable cases for which Mr. Levine had substantial responsibility include: In re American Express Financial Advisors Litigation (S.D.N.Y. 2007) (Settlement of $100 million for misrepresentations to mutual fund purchasers and misleading practices with respect to sale of American Express financial plans); Lasker v. Kanas (Sup. Ct. N. Y. Co. 2007) (settlement of $20 million plus interest on behalf of shareholders of North Fork Bancorporation in connection with its merger with CapitalOne); In re Computer Associates Sec. Litig (E.D.N.Y. 2003) (settlement valued at $150 million in securities for corporate misrepresentation of financial results and prospects); Spahn v. Edward Jones Company (E.D. Mo. 2007) (settlement valued at over $110 million in cash and credits for misrepresentations in connection with the sale of mutual funds); In re Northeast Utilities Securities Litigation, (D. Conn. 2001); (settlement of $25 million for misrepresentations to investors regarding safety of nuclear power plant); In Re Steven Madden Ltd. Securities Litigation (E.D.N.Y. 2002) (settlement of $9.0 million for misrepresentation to investors by shoe retailer); In Re: Regeneron Pharmaceuticals, Securities Litigation (S.D.N.Y. 2005) (settlement of $4.5 million for misrepresentations to investors regarding pharmaceuticals); Greenfield v. Compuserve Corp. (Court of Common Pleas, Franklin County, Ohio 2000) (settlement of $9.5 million for misrepresentations in registration statement of internet company); In re Thomas & Betts Securities Litigation (W.D. Tenn. 2002) (settlement of over $50 million for investors for alleged misrepresentations by technology company and its auditors); Lasky v. Brown (M.D. La. 2002) (settlement of $20 million for investors for misrepresentations by finance company); In re Ziff Davis Securities Litigation (S.D.N.Y. 2001) (settlement of $6 million for alleged misrepresentations to investors in an initial public offering); In re Trump Hotels Shareholder Litigation (S.D.N.Y. 2001) (obtained derivative settlement resulting in contribution to the company by its largest shareholder of an asset valued up to $10 million as well as the institution of corporate therapeutics); In re Cityscape Financial Securities Litigation (E.D.N.Y. 2001) (settlement of $7 million for alleged misrepresentations to investors by finance company); In Re Cabletron Systems Securities Litigation (D.N.H. 2006) (settlement of $10.5 million for alleged misrepresentations to investors by high tech company); Ganesh v. Computer Learning Center (E.D. Va. 1999) (settlement of $7.5 million for alleged misrepresentations to investors by trade school operator); Moriarity v. Molina (S.D. Fla. 2003) (settlement of $2.8 million for misrepresentations to investors by cell phone retailer); In re NetEase.com, Inc. Securities Litigation (S.D.N.Y. 2004) (settlement of $4.35 million for alleged misrepresentation to investors by internet company).
-19- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 21 of 24. PageID #: 6294
Howard T. Longman received his undergraduate degree from the University of Virginia and his J.D. from New York Law School in 1982. Mr. Longman is a member of the New York State Bar and has also been admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York. Some notable cases in which Mr. Longman had substantial responsibility include: In Re Peregrine Securities Litigation, Southern District of California (partial settlement valued at over $56 million), In Re Rambus Securities Class Action Litigation, Northern District of California, ($18 million settlement), In Re Biopure Securities Litigation, District of Massachusetts ($10 million settlement); In re Geodyne Securities Litigation, Harris County Texas and Southern District of New York ($125 million cash settlement plus contingent benefits of additional $75 million); In Re Dreyfus Aggressive Growth Mutual Fund Litigation, Southern District of New York ($18.5 million settlement).
Patrick K. Slyne received his J.D. from the University of Wyoming in 1988. He is a member of the Colorado, Connecticut and Wyoming state bars, and is admitted to practice before the United States District Courts for Wyoming, Connecticut, Eastern District of New York, and Southern District of New York, and the United States Court of Appeals for the First Circuit and Ninth Circuit. Notable cases for which Mr. Slyne had substantial responsibility include: In re Hewlett-Packard Co. Deriv. Litig., (Del. 2008) (conferred substantial benefit on HP through corporate governance changes to improve the functioning, interaction and working relationships among senior HP officers and outside members of the HP board of directors); Sadowsky v. Federal Home Loan Mortgage Corp., (S.D.N.Y. 2006) (assisted Freddie Mac in securing $100 million cash from D&O carriers and $9 million cash from certain counter parties for alleged breaches of -fiduciary duties in accounting for and reporting of complex multi-billion dollar derivatives transactions); In re Computer Associates Sec. Litig., (E.D.N.Y. 2003) (recovered 5.7 million CA shares worth $150 million for alleged improper revenue recognition on multi-year enterprise software license contracts); In re IKON Office Solutions, Inc. Sec. Litig., (E.D. Pa. 2000) (recovered $111 million cash for alleged misrepresentation of earnings and prospects in office equipment leasing and services business); In re Westinghouse Sec. Litig., (W.D. Pa. 1999) (recovered $67.25 million cash for alleged overstatement of financial position due to unrecognized losses in real estate portfolios); In re Salomon Brothers Treasury Litig., (S.D.N.Y. 1994) (recovered $100 million cash for alleged manipulation of public market prices of U.S. Treasury securities); In re Tenneco Inc., Sec. Litig., (S.D. Tex. 1992) (recovered $50 million cash for alleged overstatement of financial results for failure to mark-to-market dealer inventories of heavy machinery and equipment).
Melissa R. Emert received her undergraduate degree from the State University of New York at Stony Brook and her J.D. from Brooklyn Law School in 1988. Ms. Emert is a member of the New York State Bar and has also been admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York.
Aaron L. Brody received his undergraduate degree From Yeshiva University, summa cum laude, Class of 1990, and his J.D. from New York University School of Law in 1995. At NYU, Mr. Brody concentrated on securities law and was a staff editor on the Review of Law and Social Change. Mr. Brody is a member of the New York State Bar and is admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York. Cases in which Mr. Brody had substantial responsibility include: In re BankAmerica Corp.
-20- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 22 of 24. PageID #: 6295
Securities Litigation, MDL No. 1264 (recovery of $333.2 million); In re Computer Associates Securities Litigation, Master File No. 98-CV-4839 (E.D.N.Y.) (recovery of 5.7 million shares estimated at $150 million); Spahn v. Edward D. Jones & Co. L.P., 04-CV-00086 (recovery of $127.5 million); In re American Express Financial Advisors Securities Litigation, Civil Action No. 04-CV-1773 (S.D.N.Y.) (recovery of $118 million); and In re Ikon Office Solutions, Inc. Securities Litigation, MDL No. 1318 (E.D Pa.) (recovery of $111 million).
Tzivia Brody received her undergraduate degree from Stern College, magna cum laude, Class of 1992, and her J.D. from the Benjamin M. Cardozo School of Law in 1995. Ms. Brody is a member of the New York State Bar and is admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York.
Jason D'Agnenica received his undergraduate degree from Providence College in 1995, B.A., cum laude, and his J.D. from St. John's University School of Law in 1998. While at St John's, Mr. D'Agnenica participated in the Moot Court Honor Society advocacy competition and represented clients in consumer protection matters through St. John's Elder Law Clinic. Mr. D'Agnenica also served as judicial intern for Magistrate Judge Timothy M. Boudewyns, United States District Court for the District of Rhode Island. Mr. D'Agnenica is a member of the New Jersey State Bar and is admitted to practice before the United States District Court for the District of New Jersey and the Southern and Eastern Districts of New York.
James Henry Glavin IV received his undergraduate degree From Boston College, Class of 1999, and his J.D. from Fordham University School of Law in 2002. While at Fordham, Mr. Glavin served as an editor on the Moot Court Board and International Law Journal. Mr. Glavin is a member of the New York State Bar and is admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York.
Michael J. Klein received his undergraduate degree in 2001 from Emory University and his J.D., with honors, from the University of Connecticut School of Law in 2004. While at the University of Connecticut, Mr. Klein served as an executive editor of the Connecticut Law Review. Mr. Klein is a member of the New York and Connecticut State Bars and is admitted to practice before the United States Court of Appeals for the Ninth Circuit and the United States District Courts for the Southern District of New York, the Eastern Districts of New York, the Northern District of Illinois, and the District of Colorado. Cases in which Mr. Klein had substantial responsibility include: Overby v. Tyco International, Ltd., Case No. 02-CV-1357-B (D.N.H.) (settlement of $70.525m in cash; Mr. Klein participated in over eighty days of deposition); Zilhaver et al. v. UnitedHealth Group, Inc. et al, Case No. 06-cv-2237 (JMR) (D. Minn.) (a settlement of $17 million cash to the company's 401(k) plan approved in August of 2009); In Re Affiliated Computer Services ERISA Litig., Master File No. 06-CV-1592 (CBA) (N.D. Tex. 2008) (recovery of $1.5 million in cash, plus plan enhancements).
James E. Lahm received his undergraduate degree from The Ohio State University and his J.D. from Benjamin N. Cardozo School of Law in 2004. Mr. Lahm is a member of the New Jersey State Bar and is admitted to practice before the United States District Court for the Southern and Eastern Districts of New York and the District of New Jersey.
-21- Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 23 of 24. PageID #: 6296
Maksim Fuchs received his undergraduate degree from Boston University, class of 2003, and his J.D. from Seton Hall School of Law in 2006. While at Seton Hall Mr. Fuchs finished in the top 16 of the Eugene Gressman Moot Court competition and served as the President of the Jewish Law Society. Mr. Fuchs is a member of the New York and New Jersey Bars.
B. Los Angeles Office
Patrice L. Bishop received her undergraduate degree from New York University and her J.D. from Loyola Law School - Los Angeles in 1994. Ms. Bishop is a member of the California State Bar and is admitted to practice before the United States District Courts for the Northern, Central, Southern and Eastern Districts of California, the District of Colorado, and the United States Court of Appeals for the Eighth and Ninth Circuits.
Timothy J. Burke graduated magna cum laude from Suffolk University and received his J.D. from the University of California at Los Angeles in 1995. Mr. Burke is a member of the California State Bar, and is admitted to practice before the United States District Courts for the Northern, Central, Southern and Eastern Districts of California, and the United States Court of Appeals for the Ninth Circuit.Notable cases in which Mr. Burke had substantial responsibility include Small v. Fritz Co., Inc., 30 Cal. 4th 167 (Cal. 2003) and In re Complete Management Inc. Sec. Litig., 153 F. Supp. 2d 314 (S. D. N.Y 2001)
-22-
Case: 1:08-nc-70000-SO Doc #: 124-4 Filed: 08/20/10 24 of 24. PageID #: 6297
PAUL E, G)LLMOP -' CW4&IITT_E ON ENERGY RNO COMMERCE 57H D5141C:, DHIO 5i'` `^j % •^w^- _ Erl•+IaONYENT FNO HAZARDOUS M.Ttr-LS cow, is843ND 1PPRT). cr'. ! m— CN.W.w+ GANZFILE. FVLTD N, Himay, Hur.orc, LI:CPs lrLRTI, - pp M ep..CER IrART), PIq,L0oI3' PVTN+L'ni. SANOUSKY, SENSC+-. F ,ql I1` !S TELEA-',I"U le-4-MV 4 5 . 110 Tat 1N, EP.N r^ VPf+ WERT, Wfw. $, WOOD, "'Vv 007 WAXY) I li9J' , OEPUrr M&JORITY % 1 COMMIifeEONFINANCIALSEPACES ,^rr,,y ^ ^jj,'^^,jr^g. ,^ y, d '^y'^+ {{,JJ,,,,++ ' iL congr ..b'F+' , f `iteb tatel GaM/A MUABAC S,1 SVRPNCE PND GO'/SR!+?ISNT SPONSOR CONTiPFR15 LS e lo t y^ y4'S6`µyap} `", .i Duge :JL ^1grewt'1bit& C5 PIHfJYCtA( 1NSTrVT1aNS PNp caNSVe1ER (:+EO1T Uar ilingtnn, tBC 20515-3505 January 2, 2007
Via Federal Express and ECF The Honorable Stanley R. Chesler United States District Judge Martin Luther King, Jr. Federal Building and United States Courthouse 50 Walnut Street Newark, N7 08608
Re: In re Merck & Co, Inc. Securities, Shareholder Derivative and ERISA Litiv, {,'v1DL 165,8); Case No, 3:05-cv-01.151 SRC-MF
Dear Judge Chesler:
I was one of the court appointed lead plaintiffs in In re Safety-Kleen Rollins Shareholders Litigation, Civil Action No. 3:00-CV1343-17, which was pending before Judge Joseph Anderson in the District of South Carolina. In that case, which alleged, among other things, violation of the Securities Exchange Act of 1931,1 and the other court appointed lead plaintiffs selected Stull, Stull & Brody to be one of the lead counsel for the plaintiffs. That case resulted in a settlement recovery for the class of a very substantial portion of the money that could have been recovered if the case had gone to trial, net of attorneys fees, expenses and administrate fees.
During the course of that litigation, which lasted for about five years, Stull, Stull & Brody kept me apprised of all significant developments in the action such as class certification, settlement negations, litigation strategy, pending motions, court rulings and trial preparation. l would regularly speak to counsel by telephone at which time the foregoing topics would typically be discussed and I would have the opportunity to ask questions and provide input.
Res ectfully suu fitted,
:Paul E. Gillmor
N7AS)i1HGTON D°-71ANCE NORWALK TIFP)N 1 Z^3 CCI KaY/CR T`r+ HOUSE Of'<4 6+I" ra 61] WEST TN" STREV, 130 s:+.+OT LANE GRnrE S6 so'— WPSN :NCT0. STREET, surf 400 sti'+swl>,a:cN. CC 20515OR-3'_CS 42LE:a:ICE. 1.12 .14010; g, OH 14951 T:m.v' Oh 9452;, 1e2-??°-6CO3 419-^e?-;ss5 419-eee-0296 a:s ea ?o1s
htc;.-rvwvi houiGpasrtillrer TG' ! FR 20 01110 1-2L0-St;-6.ti6 TOLL i,£E iAx IN GHIC 1^LL-77's-9:OJ Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 1 of 10. PageID #: 6298
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
: Case No. 08-nc-70000 In re: NATIONAL CITY CORPORATION : SECURITIES, DERIVATIVE & ERISA JUDGE SOLOMON OLIVER, JR. LITIGATION
This Document Relates to: The ERISA Cases
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, APPROVING FORM AND MANNER OF CLASS NOTICE AND SETTING DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT
This Action involves claims for alleged violations of the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. §§ 1001, et seq. ("ERISA"), with respect to the
National City Savings And Investment Plan (the "Plan ").
The terms of the Settlement are set out in the Class Action Settlement Agreement fully executed as of August 20, 2010 (the "Agreement" or "Settlement Agreement"), by counsel on behalf of the Named Plaintiffs and the Defendants.1
Pursuant to Named Plaintiffs' Motion for Preliminary Approval, on , the
Court preliminarily considered the Settlement to determine, among other things, whether the
Settlement is sufficient to warrant the issuance of notice to members of the proposed Settlement
Class. Upon reviewing the Settlement Agreement and the matter having come before the Court on , it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1 Capitalized and Italicized terms not otherwise defined in this Order shall have the same meaning as ascribed to them in the Settlement Agreement fully executed as of August 20, 2010. Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 2 of 10. PageID #: 6299
1. Class Findings: Solely for the purposes of the Settlement, the Court finds that the requirements of the Federal Rules of Civil Procedure, the Constitution of the United States, the Rules of the Court and any other applicable law have been met as to the Settlement Class defined in paragraph 2 below, in that:
(a) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(1), the Settlement Class is ascertainable from records kept with respect to the Plan and from other objective criteria, and that the members of the Settlement
Class are so numerous that their joinder before the Court would be impracticable.
(b) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(2), there are one or more questions of fact and/or law common to the Settlement Class.
(c) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(3), the claims of the Named Plaintiffs are typical of the claims of the Settlement Class.
(d) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(a)(4), the Named Plaintiffs will fairly and adequately protect the interests of the Settlement Class in that: (i) the interests of the Named Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Settlement Class, (ii) there appear to be no conflicts between or among the Named Plaintiffs and the Settlement Class, and
(iii) the Named Plaintiffs and the members of the Settlement Class are represented by qualified, reputable counsel who are experienced in preparing and prosecuting large, complex ERISA class actions.
2 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 3 of 10. PageID #: 6300
(e) The Court preliminarily finds, for purposes of settlement only, that, as required by FED. R. Civ. P. 23(b)(1), the prosecution of separate actions by individual members of the Settlement Class would create a risk of. (i) inconsistent or varying adjudications as to individual Settlement Class members that would establish incompatible standards of conduct for the parties opposing the claims asserted in this Action and (ii) adjudications as to individual
Settlement Class members that would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications, or substantially impair or impede the ability of such persons to protect their interests.
(f) The Court preliminarily finds for purposes of settlement only, that, as required by FED. R. Civ. P. 23(g), Co-Lead Counsel are capable of fairly and adequately representing the interests of the Settlement Class, in that Co-Lead Counsel (i) have done appropriate work identifying and investigating potential claims in the action, (ii) are experienced in handling ERISA class actions, and (iii) have committed the necessary resources to represent the Settlement Class.
2. Class Certification — The Court, in conducting the settlement approval process required by FED. R. Civ. P. 23 certifies, for purposes of settlement only, the following class under FED. R. Civ. P. 23(b)(1) (the "Settlement Class"):
All current and former participants and beneficiaries of the National City Savings and Investment Plan (the "Plan") (a) for whose individual accounts the Plan purchased and/or held interests in the National City Stock Fund at any time during the period September 5, 2006 to December 31, 2008, inclusive; or (b) whose individual accounts in the Plan held interests in any of the mutual funds of Allegiant Asset Management Company (formerly known as "Armada Funds") offered as investment alternatives in the Plan at any time during the period March 25, 2002 to December 31, 2009, inclusive.
3 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 4 of 10. PageID #: 6301
The Court appoints the Named Plaintiffs as representatives for the Settlement Class and
Co-Lead Counsel as counsel for the Named Plaintiffs and the Settlement Class under Fed R. Civ
P. 23(g)(1). Any certification of a preliminary Settlement Class pursuant to the terms of the
Settlement Agreement shall not constitute and does not constitute, and shall not be construed or used as an admission, concession, or declaration by or against Defendants, that (except for the purposes of the Settlement) this Action or any other action is appropriate for class treatment under FED. R. Civ. P. 23 or any similar federal or state class action statute or rule.
3. Preliminary Findings Regarding Proposed Settlement — The Court preliminarily finds that (i) the proposed Settlement resulted from extensive arm's-length negotiations, (ii) the Settlement Agreement was executed only after Co-Lead Counsel had conducted appropriate investigation and fact-finding discovery regarding the strengths and weaknesses of Plaintiffs' claims, (iii) Co-Lead Counsel have substantial experience in ERISA class action cases and Co-Lead Counsel concluded that the proposed Settlement is fair, reasonable and adequate, and (iv) the proposed Settlement is sufficiently fair, reasonable and adequate to warrant sending notice of the proposed Settlement to the Settlement Class. Having considered the essential terms of the Settlement Agreement under the recommended standards for preliminary approval of settlements as set forth in relevant jurisprudence, the Court finds that those whose claims would be settled, compromised, dismissed and/or released pursuant to the
Settlement must be given notice and an opportunity to be heard regarding final approval of the
Settlement and other relevant matters.
4. Fairness Hearing — A hearing is scheduled for at
—.m. (the "Fairness Hearing') to determine, among other things:
• Whether the Settlement merits final approval as fair, reasonable and adequate;
4 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 5 of 10. PageID #: 6302
• Whether the Action should be dismissed with prejudice pursuant to the terms of
the Settlement;
• Whether the notice method proposed by the Parties: (i) constitutes the best
practicable notice, (ii) constitutes notice reasonably calculated, under the
circumstances, to apprise members of the Settlement Class of the pendency of the
litigation, their right to object to the Settlement, and their right to appear at the
Fairness Hearing, (iii) is reasonable and constitutes due, adequate, and sufficient
notice to all persons entitled to notice and (iv) meets all applicable requirements
of the Federal Rules of Civil Procedure and any other applicable law;
• Whether Co-Lead Counsel adequately represented the Settlement Class for
purposes of entering into the Settlement;
• Whether the proposed Plan of Allocation should be approved; and
• Whether any motion(s) for attorneys' fees and reimbursement of expenses and
Case Contribution Awards to the Named Plaintiffs is fair and reasonable and
should be approved.
5. Class Notice — The Named Plaintiffs and Co-Lead Counsel have presented to the
Court a proposed form of Class Notice, appended hereto as Exhibit 1, and a Summary Notice appended hereto as Exhibit 2. The Court finds that such forms fairly and adequately: (a) describe the terms and effect of the Settlement Agreement, the Settlement and the Plan of
Allocation, (b) notify the Settlement Class that Co-Lead Counsel will seek for themselves and for
Class Counsel attorneys' fees and reimbursement of expenses from the Settlement Fund up to limits stated therein and for Case Contribution Awards up to $7,500 for the two Co-Lead
Plaintiffs and $2,000 per each remaining Named Plaintiff for their service in such capacities, (c)
5 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 6 of 10. PageID #: 6303
give notice to the Settlement Class of the time and place of the Fairness Hearing, and (d) describe how the recipients of the Class Notice may object to any of the relief requested. Named
Plaintiffs and Co-Lead Counsel have proposed the following manner of communicating the notice to members of the Settlement Class, and the Court finds that such proposed manner is the best notice practicable under the circumstances. Accordingly, the Court directs that Co-Lead
Counsel shall:
• By no later than , 2010, cause the Notice of Class Action Settlement
in the form of Exhibit 1 hereto, with such non-substantive modifications thereto
as may be agreed upon by the Parties, to be mailed by first-class mail, postage
prepaid, to the last known address of each member of the Settlement Class who
can be identified by reasonable effort. In connection with Class Notice, the
Company shall request as soon as reasonably possible that records reasonably
available in computer readable format sufficient to reflect the names and last
known addresses of members of the Settlement Class be made available from the
Plan to Co-Lead Counsel to be used solely for purposes of this Settlement. The
names and addresses Co-Lead Counsel obtains pursuant to this Order shall be
used solely for the purpose of providing notice of this Settlement and for no other
purpose.
• By no later than 2010, cause the Summary Notice in the form
appended hereto as Exhibit 2 to be published in Business Wire.
6. Objections to Settlement — Any member of the Settlement Class who wishes to object to the fairness, reasonableness or adequacy of the Settlement, to any term of the Settlement
Agreement, to the Plan of Allocation, to the proposed award of attorneys' fees and expenses or to
6 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 7 of 10. PageID #: 6304
the request for Case Contribution Awards for the Named Plaintiffs may file an objection. An objector must file with the Court Clerk a statement of his, her, or its objection(s), specifying the reason(s), if any, for each such objection, including any legal support and/or evidence that such objector wishes to bring to the attention of the Court or introduce in support of such objection, as well as information sufficient to show that the objector is a member of the Settlement Class. The objector must also mail copies of the objection and all supporting law and/or evidence to Co-
Lead Counsel and to counsel for the Defendants. The addresses for filing objections with the
Court and service on counsel are as follows:
For Filing:
Clerk of the Court, United States District Court for the ].northern District of Ohio (Eastern Division) Carl B. Stokes United States Court House 801 West Superior Avenue Cleveland, Ohio 44113-1838 Re: Case No. 1:08-nc-70000
To Co-Lead Counsel:
STULL, STULL & BRODY BARROWAY TOPAZ Attn: Edwin J. Mills, Esq. KESSLER MELTZER & Michael J. Klein, Esq. CHECK, LLP 6 East 45th Street Attn: Edward W. Ciolko, Esq. New York, NY 10017 Mark K. Gyandoh, Esq. 280 King of Prussia Road Radnor, PA 19087
To Defendants' Counsel:
JONES DAY Attn: John M. Newman Jr., Esq. Geoffrey J. Ritts, Esq. North Point 901 Lakeside Avenue Cleveland, Ohio 44114-1190
7 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 8 of 10. PageID #: 6305
The objector or his, her, or its counsel (if any) must effect service of copies of the objection on counsel listed above and file it with the Court by no later than . If an objector hires an attorney to represent him, her, or it for the purposes of making such objection pursuant to this paragraph, the attorney must both effect service of a notice of appearance on counsel listed above and file it with the Court by no later than . Any member of the Settlement Class or other person who does not timely file and serve a written objection complying with the terms of this paragraph shall be deemed to have waived, and shall be foreclosed from raising, any objection to the Settlement (in this proceeding, on any appeal or in any other proceedings), and any untimely objection shall be barred absent an Order from the
Court.
7. Appearance at Fairness Hearing — Any objector who files and serves a timely and valid written objection in accordance with paragraph 6 above may also appear at the
Fairness Hearing either in person or through qualified counsel retained at the objector's expense.
Objectors or their attorneys intending to appear at the Fairness Hearing must effect service of a notice of intention to appear setting forth, among other things, the name, address, and telephone number of the objector (and, if applicable, the name, address, and telephone number of the objector's attorney), and information sufficient to show that the objector is a member of the
Settlement Class, on Co-Lead Counsel and Defendants' counsel (at the addresses set out above) and file it with the Court Clerk by no later than . Any objector who does not timely file and serve a notice of intention to appear in accordance with this paragraph shall not be permitted to appear at the Fairness Hearing, except by Order of the Court.
8. Class Notice Expenses — The expenses of printing and mailing and publishing all notices required hereby shall be paid from the Settlement Fund.
8 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 9 of 10. PageID #: 6306
9. Service of Papers — Defendants' counsel and Co-Lead Counsel shall promptly furnish each other with copies of any and all objections that come into their possession.
10. Termination of Settlement — This Order shall become null and void, ab initio, and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions as of the February 9, 2010, if the Settlement is terminated in accordance with the terms of the Settlement Agreement.
11. Use of Order — This Order is not admissible as evidence for any purpose against
Defendants in any pending or future litigation involving any of the Parties. This Order shall not be construed or used as an admission, concession, or declaration by or against Defendants of any fault, wrongdoing, breach, or liability and Defendants specifically deny any such fault, breach, liability or wrongdoing. This Order shall not be construed or used as an admission, concession, or declaration by or against Plaintiffs or the Settlement Class that their claims lack merit or that the relief requested in the Action is inappropriate, improper or unavailable. This Order shall not be construed or used as an admission, concession, declaration or waiver by any party of any arguments, defenses, or claims he, she, or it may have, including, but not limited to, any objections by Defendants to class certification, in the event that the Settlement Agreement is terminated. Moreover, the Settlement Agreement and any proceedings taken pursuant to the
Settlement Agreement are for settlement purposes only. Neither the fact of, nor any provision contained in the Settlement Agreement or its exhibits, nor any actions taken thereunder shall be construed as, offered into evidence as, received in evidence as, and/or deemed to be evidence of a presumption, concession, or admission of any kind as to the truth of any fact alleged or validity of any defense that has been, could have been, or in the future might be asserted.
9 Case: 1:08-nc-70000-SO Doc #: 124-5 Filed: 08/20/10 10 of 10. PageID #: 6307
12. Jurisdiction — The Court hereby retains jurisdiction for purposes of implementing the Settlement, and reserves the power to enter additional orders to effectuate the fair and orderly administration and consummation of the Settlement as may from time to time be appropriate, and to resolve any and all disputes arising thereunder.
13. Bar Order. Pending final determination of whether the Settlement should be approved, the Named Plaintiffs, the Plan, the Plan's fiduciaries, and all members of the
Settlement Class are each hereby barred and enjoined from instigating, instituting, commencing, maintaining or prosecuting any action in any court or tribunal that asserts any Released Claim against any Released Party.
14. Continuance of Hearing — The Court reserves the right to continue the Fairness
Hearing without further written notice.
SO ORDERED this day of , 2010.
HON. SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE
10