IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION
JEREMY BRADEN, individually and on behalf ) of all others similarly situated, ) Case No. 6:08-cv-3109-GAF ) Plaintiff; ) Hon. Gary A. Fenner ) v. ) CLASS ACTION ) WAL-MART STORES, INC., et al., ) ) Defendants. )
DECLARATION OF LYNN LINCOLN SARKO IN SUPPORT OF (1) NAMED PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, CERTIFICATION OF SETTLEMENT CLASS, APPROVAL OF FORMS AND METHODS OF NOTICE, APPROVAL OF THE PLAN OF ALLOCATION, AND ENTRY OF FINAL ORDER AND JUDGMENT AND (2) LEAD COUNSEL’S MOTION FOR ATTORNEYS’ FEES, REIMBURSEMENT OF COSTS AND EXPENSES, AND CASE CONTRIBUTION AWARD TO NAMED PLAINTIFF
Case 6:08-cv-03109-GAF Document 239 Filed 02/03/12 Page 1 of 51 TABLE OF CONTENTS
I. INTRODUCTION ...... 1
II. PROCEDURAL AND LITIGATION HISTORY...... 2
A. Investigation and Preparation of Comprehensive Claims...... 2
B. The Motions to Dismiss and the Appeal...... 4
C. Discovery...... 9
1. Preliminary Discovery and Scheduling Matters...... 9
2. Written Discovery Requests Among the Parties: Interrogatories, Requests for Production, and Requests for Admission...... 11
3. Third Party Discovery...... 12
4. Document Discovery...... 13
5. Depositions...... 15
6. Expert Witnesses...... 15
7. Discovery Disputes...... 16
D. Class Certification...... 16
E. Settlement Negotiations...... 17
F. Terms of the Settlement...... 19
1. Settlement Amount...... 19
2. Injunctive Relief...... 20
3. Plan of Allocation...... 20
4. Independent Fiduciary Approval...... 21
III. THE SETTLEMENT WARRANTS THE COURT’S APPROVAL...... 21
A. The Wireless Factors...... 21
IV. CLASS CERTIFICATION...... 27
A. Confirmation of Class Certification is Warranted Here...... 27
Case 6:08-cv-03109-GAF Documenti 239 Filed 02/03/12 Page 2 of 51 B. Lead Counsel Easily Meet the Requirements of Rule 23(g)...... 27
V. THE FORMS AND METHODS OF NOTICE EMPLOYED HERE SATISFY RULE 23 AND DUE PROCESS...... 28
VI. THE PROPOSED PLAN OF ALLOCATION SHOULD BE APPROVED...... 29
VII. TIME AND EFFORT DEDICATED TO THIS CASE...... 31
VIII. THE RECORD FULLY SUPPORTS THE AWARD OF REQUESTED ATTORNEYS’ FEES ...... 35
A. The Westerhaus Factors...... 36
B. The Allen Factors...... 38
a. Lead Counsel...... 40
b. Additional Plaintiff’s Counsel...... 43
c. Defense Counsel...... 43
IX. PLAINTIFF’S COUNSEL SHOULD BE REIMBURSED FOR THEIR REASONABLE EXPENSES ADVANCED IN THE LITIGATION...... 45
X. NAMED PLAINTIFF SHOULD BE GRANTED A CASE CONTRIBUTION AWARD ...... 46
XI. CONCLUSION...... 47
Case 6:08-cv-03109-GAF Documentii 239 Filed 02/03/12 Page 3 of 51 Pursuant to 28 U.S.C. § 1746, I, Lynn Lincoln Sarko, declare as follows:
I. INTRODUCTION
1. I am a member in good standing of the State Bar of Washington, the Managing
Partner of Keller Rohrback L.L.P., head of the firm’s Complex Litigation Group, and attorney for Plaintiff Jeremy Braden (“Braden” or “Named Plaintiff”). On December 5, 2011, the Court entered its Order Preliminarily Approving Class Action Settlement, Conditionally Certifying
Settlement Class, Directing Distribution of Class Notice, Appointing Class Counsel and Class
Representative, and Setting Hearing for Final Approval of Class Action Settlement (“Preliminary
Approval Order”) (Dkt. No. 231), in which it conditionally approved and appointed Keller
Rohrback as Lead Counsel and Aleshire Robb P.C. as Liaison Counsel (collectively, “Class
Counsel”).
2. I submit this declaration in support of (a) Named Plaintiff’s Motion for Final
Approval of Class Action Settlement, Certification of Settlement Class, Approval of Forms and
Methods of Notice, Approval of the Plan of Allocation, and Entry of Final Order and Judgment and (b) Lead Counsel’s Motion for Attorneys’ Fees, Reimbursement of Costs and Expenses, and
Case Contribution Award to Named Plaintiff.
3. The purpose of this Declaration is to summarize the factual and procedural history of this litigation—which has spanned nearly four years—including, without limitation, the initial filing and investigation of this matter, amending the complaint, motions practice, appellate practice, discovery, mediation and settlement negotiations, coordination of the efforts of all
Plaintiff’s Counsel, and litigation expenses. As Lead Counsel for Braden and the Class, we have been intimately involved in all aspects of this litigation from the outset to the present.
Case 6:08-cv-03109-GAF Document1 239 Filed 02/03/12 Page 4 of 51 4. Under the Class Action Settlement Agreement (Dkt. No. 229-1), 1 a Settlement
Fund of $13.5 million has been established, as well as the provision of other Non-Monetary
Considerations that will continue to improve the Plan and benefit the Settlement Class. The
Settlement represents an excellent result that will provide significant benefits to the Settlement
Class, while removing the risk and delay associated with further litigation.
5. As directed by the Court in Preliminary Approval Order, the Parties have provided notice to the Settlement Class. Thus far, no objections have been received. We have received inquiries from the lawyer for one Plan participant, whose questions regarding whether
Merrill Lynch actually contributed to the Settlement Fund we answered.
6. The Settlement is the result of hard-fought litigation in the face of a highly
complex and risky case, extensive briefing in this Court and before the Eighth Circuit, discovery,
and contentious settlement negotiations. I am pleased to present the Settlement to the Court for
its consideration and believe strongly that it should be approved.
II. PROCEDURAL AND LITIGATION HISTORY
A. Investigation and Preparation of Comprehensive Claims.
7. On March 27, 2008, Braden filed this ERISA action (Dkt. No. 2) challenging the
Wal-Mart Defendants’ 2 conduct in relation to excessive fees paid by the Wal-Mart Profit Sharing
and 401(k) Retirement Plan (the “Plan”) and—ultimately—the Plan’s participants.
8. On July 21, 2010, after significant discovery and one mediation session, Braden
filed his Amended Complaint for Violations of the Employee Retirement Income Security Act
(ERISA) (“Complaint”) (Dkt. No. 107) against the Wal-Mart Defendants and added claims
1 All capitalized terms not otherwise defined in this Declaration have the same meaning given them in the Settlement Agreement. 2 The Wal-Mart Defendants (“Wal-Mart”) and the Merrill Lynch Defendants (“Merrill Lynch”) discussed herein refer to the same groups defined in the Final Approval Memo and the Fee Petition.
Case 6:08-cv-03109-GAF Document2 239 Filed 02/03/12 Page 5 of 51 against the Merrill Lynch Defendants, including that Merrill Lynch charged undisclosed
excessive fees to the Plan and Plan participants.
9. In his eleven-count Complaint, Braden alleges that the Wal-Mart and Merrill
Lynch Defendants violated their fiduciary and co-fiduciary duties under the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”) by, inter alia ,
(a) failing to prudently and loyally manage the Plan and Plan assets; (b) failing to provide
complete and accurate information; (c) knowing of, participating in, and/or enabling breaches of
fiduciary duties, thereby assuming liability for co-fiduciaries; and (d) engaging in prohibited
transactions. Braden further alleged that the Wal-Mart Defendants violated ERISA by failing to
properly monitor the performance of their fiduciary appointees, and that the Merrill Lynch
Defendants violated ERISA by committing acts that constitute unjust enrichment under ERISA
and the federal common law and, alternatively, knowingly participating in a breach of fiduciary
duty.
10. Braden sought relief for Defendants’ fiduciary breaches on behalf of a class
consisting of all participants in and beneficiaries of the Plan who held assets in the Plan
Investment Options during the Class Period.
11. Braden alleges that Defendants knew or should have known that the Plan
Investment Options—which included retail mutual funds, funds that pay 12b-1 fees, and funds
that provide revenue sharing, per-position or per-participant sub-transfer agent fees, or other
fees, to interested parties, including the Plan’s trustee and recordkeeper, Merrill Lynch—were
not prudent retirement investments during the Class Period and that the Defendants acted
imprudently by allowing further investment in the Plan Investment Options, instead of replacing
them with lower-cost alternatives. Braden also alleges that the Merrill Lynch Defendants
Case 6:08-cv-03109-GAF Document3 239 Filed 02/03/12 Page 6 of 51 collected millions of dollars of undisclosed fees, unbeknownst to Wal-Mart or Plan participants,
and that the collection of these fees—which unjustly enriched Merrill Lynch and prevented Plan
fiduciaries from making fully-informed decisions about appropriate compensation to Merrill
Lynch—should have been detected by Plan fiduciaries.
12. The initial and amended complaints were the product of Lead Counsel’s extensive efforts to investigate and analyze reams of factual materials related to the Plan. See Complaint
¶¶ 46-152. Specifically, the Complaint alleges that (a) the fees and administration expenses charged by the Plan Investment Options were excessive and unjustified by the Plan Investment
Options’ performance, and that Defendants knew or should have known that the Plan Investment
Options were imprudent investments, id. ¶¶ 88-128; (b) Merrill Lynch was overcompensated by collecting undisclosed fees and that Wal-Mart knew or should have known that Merrill Lynch was doing so, id. ¶¶ 129-138; (c) fund selection was tainted by Merrill Lynch’s ability to obtain
revenue sharing and other payments from the fund companies, id. ¶¶ 139-142; and
(d) Defendants failed to provide complete and accurate information to Plan participants and
beneficiaries, and that Merrill Lynch knew or should have known that Wal-Mart Defendants
failed to provide complete and accurate information to Plan participants because Merrill Lynch
was concealing information from Wal-Mart, id. ¶¶ 143-152. These allegations support Braden’s
detailed causes of action. Id. ¶¶ 163-300.
B. The Motions to Dismiss and the Appeal.
13. Defendants fought Braden’s allegations repeatedly.
14. On July 11, 2008, the Wal-Mart Defendants filed their suggestions of law in
support of their motion to dismiss the initial complaint (Dkt. No. 29). The Wal-Mart
Defendants’ motion raised numerous challenges to the sufficiency of the initial complaint,
including arguments, inter alia , that Braden lacked constitutional standing and failed to state
Case 6:08-cv-03109-GAF Document4 239 Filed 02/03/12 Page 7 of 51 claim under ERISA for fiduciary imprudence or disloyalty, nondisclosure, prohibited
transactions, and deficient co-fiduciary and appointee monitoring.
15. On August 22, 2008, Braden filed his suggestions of law in opposition to the Wal-
Mart Defendants’ motion to dismiss (Dkt. No. 36), and his corrected suggestions of law on
August 26, 2008 (Dkt. No. 37). Braden’s opposition was thoroughly researched and extensively addressed each of the arguments raised by the Wal-Mart Defendants in their motion to dismiss.
16. On September 29, 2008, the Wal-Mart Defendants filed their reply suggestions in support of their motion to dismiss (Dkt. No. 44).
17. On October 28, 2008, this Court issued an order granting the Wal-Mart
Defendants’ motion to dismiss in its entirety (Dkt. No. 50).
18. On November 25, 2008, Braden filed a notice of appeal with the District Court
(Dkt. No. 52). On December 4, 2008, Plaintiff-Appellant Braden’s appeal was docketed with the
Eighth Circuit Court of Appeals and assigned Court of Appeals Case No. 08-3798 (App. Dkt.
No. 3495994).
19. On February 11, 2009, Plaintiff-Appellant Braden filed his opening brief (App.
Dkt. No. 3516027).
20. On March 16, 2009, the Secretary of Labor filed her brief as amicus curiae in support of Plaintiff-Appellant Braden’s appeal (App. Dkt. No. 3527381).
21. On April 7, 2009, the Wal-Mart Defendants-Appellees filed their response brief to
Braden’s opening brief (App. Dkt. No. 3534426).
22. On April 16, 2009, the ERISA Industry Committee, the Chamber of Commerce of the United States of America and the American Benefits Council filed their brief as amici curiae in support of the Wal-Mart Defendants-Appellees (App. Dkt. No. 3537827).
Case 6:08-cv-03109-GAF Document5 239 Filed 02/03/12 Page 8 of 51 23. On May 13, 2009, the Wal-Mart Defendants-Appellees filed their first Rule 28(j) letter in support of their response (App. Dkt. No. 3546882).
24. On May 15, 2009, Plaintiff-Appellant Braden filed his reply brief (App. Dkt. No.
3547901).
25. On May 19, 2009, Plaintiff-Appellant Braden filed a response to the Wal-Mart
Defendants-Appellees’ first Rule 28(j) letter (App. Dkt. No. 3548850).
26. On June 5, 2009, the Wal-Mart Defendants-Appellees filed their second Rule
28(j) letter in support of their response (App. Dkt. No. 3554449).
27. On June 10, 2009, Plaintiff-Appellant Braden filed a response to the Wal-Mart
Defendants-Appellees’ second Rule 28(j) letter (App. Dkt. No. 3556079).
28. On June 22, 2009, Plaintiff-Appellant Braden filed an additional response to the
Wal-Mart Defendants-Appellees’ second Rule 28(j) letter (App. Dkt. No. 3559599).
29. On July 8, 2009, the Wal-Mart Defendants-Appellees filed their response in
opposition to Plaintiff-Appellant Braden’s additional response (App. Dkt. No. 3564418).
30. On July 8, 2009, the Wal-Mart Defendants-Appellees filed their third Rule 28(j)
letter (App. Dkt. No. 3564421).
31. On July 16, 2009, Plaintiff-Appellant Braden filed a response to Defendants-
Appellees’ third Rule 28(j) letter (App. Dkt. No. 3567130).
32. On September 24, 2009, the parties presented oral argument on Braden’s appeal
before a three-judge panel of the Eighth Circuit Court of Appeals—Judges Diana E. Murphy,
Myron H. Bright, and William Jay Riley—and the case was submitted (App. Dkt. No. 3589297).
My partner, Derek Loeser, argued the appeal for Plaintiff Braden.
Case 6:08-cv-03109-GAF Document6 239 Filed 02/03/12 Page 9 of 51 33. On October 15, 2009, the Wal-Mart Defendants-Appellees filed their fourth Rule
28(j) letter (App. Dkt. No. 3595791).
34. On October 16, 2009, Plaintiff-Appellant Braden filed his response to the Wal-
Mart Defendants-Appellees’ fourth Rule 28(j) letter (App. Dkt. No. 3596280).
35. On November 25, 2009, in an opinion authored by Judge Murphy, the Eighth
Circuit vacated the judgment of the District Court and remanded the case for further proceedings
(App. Dkt. No. 3609110).
36. On December 9, 2009, the Wal-Mart Defendants-Appellees filed a petition for rehearing en banc (App. Dkt. No. 3613804).
37. On January 5, 2010, the Eighth Circuit denied the Wal-Mart Defendants-
Appellees’ petition for rehearing en banc or by panel (App. Dkt. No. 3621190).
38. The Eighth Circuit issued its mandate on January 14, 2010 (App. Dkt. No.
3624641). Upon remand, the parties negotiated a new case schedule and began discovery, as outlined more fully below.
39. On March 15, 2010, the Wal-Mart Defendants filed their answer and affirmative defenses (Dkt. No. 76), and their corrected answer and affirmative defenses on June 11, 2010
(Dkt. No. 95).
40. On July 2, 2010, after extensive early discovery and one mediation session—as described in more detail below—Braden filed his motion to amend the complaint and suggestions of law in support thereof (Dkt. No. 99).
41. On July 19, 2010, the Wal-Mart Defendants filed their response to Braden’s motion to amend the complaint (Dkt. No. 103), indicating that they did not oppose the amendment.
Case 6:08-cv-03109-GAF Document7 239 Filed 02/03/12 Page 10 of 51 42. On July 20, 2010, the Court granted Braden’s motion to amend the complaint
(Dkt. No. 105).
43. On July 21, 2010, Braden filed his Amended Complaint for Violations of the
Employee Retirement Income Security Act (ERISA) (Dkt. No. 107). Braden’s Complaint
reasserted five claims against the Wal-Mart Defendants and added six claims against the Merrill
Lynch Defendants, as described supra ¶ 9.
44. On October 1, 2010, the Wal-Mart Defendants and the Merrill Lynch Defendants
moved to dismiss and filed their suggestions of law in support of their motions to dismiss
Braden’s Complaint (Dkt. Nos. 156-159).
45. The parties continued discovery and prepared for a second mediation session
while these motions were pending. Between November 2, 2010 and January 18, 2011, the
parties filed four joint motions to extend the briefing schedule on the pending motions to dismiss
to allow the parties to explore the possibility of resolving the case through mediation (Dkt. Nos.
165, 167, 175, 187). The Court granted each of these motions (Dkt. Nos. 166, 168, 176, 188).
46. On December 22, 2010, Braden filed his suggestions of law in opposition to the
Merrill Lynch Defendants’ motion to dismiss (Dkt. No. 178).
47. On January 28, 2011, the Merrill Lynch Defendants filed their reply suggestions
of law in support of their motion to dismiss (Dkt. No. 190).
48. On February 4, 2011, Braden filed his suggestions of law in opposition to the
Wal-Mart Defendants motion to dismiss (Dkt. No. 191).
49. On March 4, 2011, the Wal-Mart Defendants filed their reply suggestions of law
in support of their motion to dismiss (Dkt. No. 195). By this time, the parties were making
progress negotiating the terms of a settlement.
Case 6:08-cv-03109-GAF Document8 239 Filed 02/03/12 Page 11 of 51 50. Between March 9, 2011 and September 2, 2011, the parties filed thirteen joint motions to stay and/or extend the stay of the case in light of ongoing settlement negotiations and/or to facilitate the filing of preliminary approval papers (Dkt. Nos. 196, 199, 201, 203, 205,
209, 211, 213, 215, 217, 219, 221, 223). The Court granted each of these motions (Dkt. Nos.
197, 198, 200, 202, 204, 206, 210, 212, 214, 216, 218, 220, 222, 224). The stay of proceedings also stayed Defendants’ pending motions to dismiss, all discovery, and any other deadlines established by the Court’s operative scheduling and trial order (Dkt. No. 112).
51. Defendants’ motions to dismiss were pending before the Court at the time the parties settled the case.
C. Discovery.
52. Over the course of the litigation, Class Counsel engaged in extensive discovery, including propounding and responding to discovery requests, reviewing hundreds of thousands of pages of documents, and preparing for and taking six depositions.
1. Preliminary Discovery and Scheduling Matters.
53. On August 8, 2008, Braden and the Wal-Mart Defendants exchanged Rule 26 disclosures (Dkt. Nos. 32-33).
54. On August 18, 2008, the Court issued the Scheduling and Trial Order which
detailed all discovery-related deadlines and set the case for trial (Dkt. No. 35).
55. On October 3, 2008, the Wal-Mart Defendants supplemented their disclosures
(Dkt. No. 45).
56. Thus, preliminary discovery took place prior to this Court’s dismissal of the case
on October 28, 2008. Upon remand in January of 2010, the parties negotiated a new discovery
plan and pretrial schedule.
Case 6:08-cv-03109-GAF Document9 239 Filed 02/03/12 Page 12 of 51 57. On February 12, 2010, on the parties’ proposed scheduling order (Dkt. No. 65),
the Court extended the discovery-related deadlines and set the case for trial on October 31, 2011
(Dkt. No. 66).
58. The parties had begun negotiating a protective order to govern the handling of confidential materials prior to dismissal of the case in October 2008. After remand, the parties picked up that negotiation and worked cooperatively in the early months of 2010 to negotiate an agreed protective order to present to the Court.
59. On March 10, 2010, the Court granted the parties’ Joint Motion for Protective
Order (Dkt. No. 75).
60. After Braden amended his Complaint in July of 2010, the parties conferred regarding necessary adjustments to the case schedule given the addition of the Merrill Lynch
Defendants as parties, the posture of class certification briefing and depositions that had been planned, and the likelihood that all Defendants would again file motions to dismiss. Defendants agreed to continue with discovery notwithstanding the anticipated second round of motions to dismiss, and the parties again cooperatively negotiated a proposed schedule and presented it to the Court. On the parties’ joint motion (Dkt. No. 108), the Court extended the discovery-related deadlines and set deadlines for dispositive motions on August 4, 2010 (Dkt. No. 112).
61. On September 8, 2010, the Court set the case for trial on May 31, 2011 (Dkt. No.
139), and then re-set the case for trial on March 26, 2012 (Dkt. No. 140).
62. On September 10, 2010, Braden supplemented his Rule 26 disclosures (Dkt. No.
152).
63. On September 16, 2010, the Merrill Lynch Defendants served their Rule 26 disclosures (Dkt. No. 153).
Case 6:08-cv-03109-GAF Document10 239 Filed 02/03/12 Page 13 of 51 64. As discussed in greater detail supra , the Court also extended the briefing schedule
on Defendants’ motions to dismiss and later stayed the proceedings with respect to Defendants’
pending motions to dismiss, all discovery, and any other deadlines established by the Court’s
operative scheduling and trial order at the parties’ request to facilitate the Settlement.
2. Written Discovery Requests Among the Parties: Interrogatories, Requests for Production, and Requests for Admission.
65. Written discovery practice commenced in the fall of 2008 and resumed after
remand in January 2010.
66. On September 10, 2008, Braden propounded his first requests for production to
the Wal-Mart Defendants (Dkt. No. 42).
67. On September 22, 2008, Braden propounded his first requests for admission to the
Wal-Mart Defendants (Dkt. No. 43).
68. On October 10, 2008, the Wal-Mart Defendants propounded their first requests for production on Braden (Dkt. No. 46). Braden responded on February 18, 2010 (Dkt. No. 67).
69. On January 29, 2010, Braden propounded his second requests for production to the Wal-Mart Defendants (Dkt. No. 61).
70. On February 2, 2010, Braden propounded his first set of interrogatories to the
Wal-Mart Defendants (Dkt. No. 64).
71. On May 4, 2010, Braden propounded his third requests for production to the Wal-
Mart Defendants (Dkt. No. 87).
72. On May 6, 2010, Braden propounded his second set of interrogatories and fourth
requests for production to the Wal-Mart Defendants (Dkt. Nos. 88-89).
73. On August 30, 2010, Braden propounded his first set of interrogatories to the
Merrill Lynch Defendants (Dkt. No. 138).
Case 6:08-cv-03109-GAF Document11 239 Filed 02/03/12 Page 14 of 51 74. On October 6, 2010, Braden propounded his third set of interrogatories to
Defendants Wal-Mart and Stephen Hunter, his second interrogatories to the Merrill Lynch
Defendants, his fifth requests for production to the Wal-Mart Defendants, and his first requests for production to the Merrill Lynch Defendants (Dkt. No. 161).
75. On October 8, 2010, Plaintiff propounded his second requests for admissions to the Wal-Mart Defendants and his first requests for admissions to the Merrill Lynch Defendants
(Dkt. No. 162).
3. Third Party Discovery.
76. Plaintiff served thirteen subpoenas for documents on third-party witnesses, including Plan Trustee Merrill Lynch & Co. Inc. on October 13, 2008 (Dkt. No. 47), and Plan
Investment Option and fund consultant entities, including, R.V. Kuhns & Associates, Inc. on
May 18, 2010; KPMG LLP and PricewaterhouseCoopers LLP on May 19, 2010; Ariel
Investments LLC, Allianz Global Investors Fund Management, Capital Research & Management
Co., and Davis Selected Advisers, L.P. on May 28, 2010; Franklin Templeton Portfolio
Advisors, Inc., Invesco Advisers, Inc., and Massachusetts Financial Services Company on June
1, 2010; and Ivy Investment Management Company and Putnam Investment Management on
October 14, 2010.
77. Lead Counsel first requested, negotiated, and received discovery from the Merrill
Lynch Defendants as third parties. Lead Counsel extensively negotiated ESI terms and protocols separately with Merrill Lynch as a third party. Indeed, much of the discovery produced by the
Wal-Mart Defendants and by Merrill Lynch as a third party enabled Braden to more fully investigate the Merrill Lynch Defendants’ role in the facts of the case and supported his decision to add them as defendants by amendment. Once Braden added the Merrill Lynch Defendants as parties through amendment of his Complaint, Braden propounded new requests to them as
Case 6:08-cv-03109-GAF Document12 239 Filed 02/03/12 Page 15 of 51 parties, as set forth above, which were subject to additional negotiation and production of
documents.
78. In addition, Lead Counsel negotiated extensively with separate counsel for each
of the additional twelve subpoenaed third parties regarding the scope of the subpoenas and the
production of responsive documents. Notably, due to considerable effort and time spent on these
negotiations, not one of the subpoenaed third parties moved to quash the subpoenas that Lead
Counsel served. Lead Counsel were able to cooperatively work through all objections with
counsel for the third parties and obtain reams of useful information from these entities that
pushed the litigation forward.
4. Document Discovery.
79. Document discovery was extensive in that Defendants produced over 550,000 pages of documents, and the Plan’s Investment Options and consultants to the Plan’s fiduciaries and the Plan’s funds produced over 100,000 pages of documents in response to third-party subpoenas issued by Braden.
80. Lead Counsel spent many months negotiating and refining ESI terms and search
protocols with the Wal-Mart Defendants and the Merrill Lynch Defendants. Through thorough
debate and cooperation, the parties arrived at agreed search terms, sampling techniques, and
custodial parameters for both sets of Defendants, pursuant to which considerable electronic
discovery was produced.
81. In order to efficiently review and manage the more than 650,000 pages of
documents received from Defendants and third parties in this case, Lead Counsel established an
electronic document depository as well as a system of coding and categorizing the documents
relevant to the parties’ claims and defenses.
Case 6:08-cv-03109-GAF Document13 239 Filed 02/03/12 Page 16 of 51 82. Attorneys and paralegals reviewed the above-listed discovery produced by
Defendants and third parties. Lead Counsel organized and supervised all attorneys to whom documents were assigned for review and each document reviewer reported on a regular basis.
83. In addition to the formal discovery process, Braden requested and received many core ERISA documents pursuant to ERISA § 104(b). Pursuant to his § 104(b) request, dated
December 3, 2007, on December 24, 2007, the Wal-Mart Defendants produced the latest updated summary plan description; the latest annual report, including audited financial report; the Trust
Agreement between Merrill Lynch Trust Company and Wal-Mart Stores, Inc.; the Merrill Lynch
Retirement Preservation Trust; the Merrill Lynch Equity Index Trust; the Merrill Lynch Small
Cap Index Trust; the most recently amended and restated Plan document, with all subsequent amendments; and the Investment Policy Statement. From these documents, Lead Counsel gathered additional information which was incorporated into the complaints and relied upon in opposition to Defendants’ motions to dismiss.
84. Additionally, Lead Counsel reviewed public documents, including press releases, news articles, and regulatory filings. Lead Counsel examined U.S. Securities and Exchange
Commission (“SEC”) filings by Wal-Mart Stores Inc., including Wal-Mart’s proxy statements
(Form DEF 14A), annual reports (Form 10-K), and the annual reports (Form 11-K) filed on behalf of the Wal-Mart Profit Sharing and 401(k) Plan (the “Plan”), reviewed the Forms 5500 filed by the Plan with the U.S. Department of Labor, reviewed fund prospectuses for the Plan
Investment Options. Lead Counsel also conducted interviews with participants of the Plan and reviewed available documents governing the operations of the Plan.
85. Lead Counsel reviewed and analyzed documents collected from Plan participant and Named Plaintiff Jeremy Braden.
Case 6:08-cv-03109-GAF Document14 239 Filed 02/03/12 Page 17 of 51 5. Depositions.
86. Lead Counsel took six depositions of fact witnesses, and noted and prepared for
the deposition of an additional fact witness. Lead Counsel expended significant time and effort
preparing and leading these depositions.
87. Lead Counsel took the depositions of one individual defendant (Steve Hunter) and
two Wal-Mart non-Defendant Plan personnel (Karen Light and Nathan Voris), as well as three
Merrill Lynch employees (Patrick Cassidy, Tami Cunningham, and John Lynch).
88. Lead Counsel noted up and began preparing for the 30(b)(6) deposition of the
Plan Trustee, the then-non-party Merrill Lynch (Dkt. No. 90). Due to the amendment of the
Complaint to add Merrill Lynch entities as defendants, this deposition was postponed and no
30(b)(6) depositions occurred before the parties settled.
89. Additionally, prior to the stay in this case, Lead Counsel prepared for Braden’s deposition, which was scheduled for July of 2010, but then cancelled to allow for a renewed class certification brief following the addition of the Merrill Lynch Defendants to the case and the second round of motions to dismiss.
6. Expert Witnesses.
90. Lead Counsel retained and met with three experts concerning the fees charged by the Plan’s Investment Options, the appropriate level of fees and expenses for a plan of this size, and the measurement of loss to the Plan and available damages theories and calculations. Lead
Counsel also consulted with the experts concerning other issues relevant to Braden’s claims, including, without limitation, standards for fiduciary conduct as applied to the conduct at issue in the action and the Defendants’ selection of the Plan’s Investment Options and related disclosures to participants and beneficiaries. Lead Counsel relied in part on the data generated by these
Case 6:08-cv-03109-GAF Document15 239 Filed 02/03/12 Page 18 of 51 experts in drafting the Complaint, opposing Defendants’ motions to dismiss, propounding
discovery, and preparing for and participating in mediation and settlement negotiations.
91. Lead Counsel was in frequent communication with the experts in order to provide
detailed information to assist them in developing opinions about the case.
92. Although the Settlement in this case was reached prior to exchange of any expert
reports or defense of any expert depositions, Lead Counsel had begun to prepare for the defense
of their own experts at deposition and for taking the depositions of Defendants’ experts.
7. Discovery Disputes.
93. Lead Counsel worked with Defendants’ counsel to resolve discovery disputes as they arose through “meet and confer” efforts, and carefully documented discovery issues as they arose, as revealed in many “meet and confer” letters and related correspondence and phone conferences. At the time this Settlement was reached, the parties were engaged in ongoing ESI and document production negotiations, and the production of documents was not yet complete.
However, concerning all other discovery-related matters discussed by the parties up through the point the case settled, the parties were able to cooperatively resolve their disputes without seeking assistance of the Court or filing a single motion to compel.
D. Class Certification.
94. On October 17, 2008, Braden filed his first motion for class certification (Dkt.
Nos. 48-49).
95. On April 21, 2010, following the Eighth Circuit’s reinstatement of the litigation and pursuant to the Court’s March 16, 2010 order (Dkt. No. 78), Braden filed a renewed motion for class certification (Dkt. Nos. 83-86).
96. Following Braden’s filing of his amended Complaint in July 2010, the Court amended the class certification briefing schedule in its August 4, 2010 Amended Scheduling and
Case 6:08-cv-03109-GAF Document16 239 Filed 02/03/12 Page 19 of 51 Trial Order (Dkt. No. 112), directing Braden to file a second renewed motion for class certification within thirty (30) days of the Court’s order on the motions to dismiss, with
Defendants’ oppositions and Braden’s replies to follow.
97. Because the motions to dismiss were still pending at the time the Settlement was reached, see section II.B supra , Braden has not filed his second renewed motion for class certification.
E. Settlement Negotiations.
98. The Settlement was achieved as a result of hard-fought, arm’s-length negotiations that stretched eighteen months between the parties’ first mediation session in June of 2010 and the signing of the Settlement Agreement in December of 2011.
99. Braden and the Wal-Mart Defendants participated in mediation in Newport
Beach, California on June 15, 2010, with the Hon. Layn R. Phillips, a retired U.S. District Court
Judge and experienced mediator.
100. Lead Counsel prepared thorough mediation memoranda with accompanying exhibits. Unfortunately, the parties were unable to resolve the case by the conclusion of the mediation session, but agreed to participate in mediation at a mutually agreeable time in the future.
101. On November 10, 2010, the parties—including newly added Merrill Lynch
Defendants and some additional Wal-Mart Defendants added by Braden’s amendment— participated in a second mediation with Judge Phillips in New York. Lead Counsel prepared supplemental mediation materials and exhibits prior to this session and reviewed supplemental mediation statements and additional material produced for the purposes of mediation that was submitted by the Wal-Mart Defendants and the Merrill Lynch Defendants. Once again, the parties were unable to resolve the case by the conclusion of the mediation session. However, in
Case 6:08-cv-03109-GAF Document17 239 Filed 02/03/12 Page 20 of 51 the weeks and months that followed, the parties participated in numerous telephonic discussions
and arm’s-length negotiations concerning the possibility of settlement, assisted at times by Judge
Phillips. Over the course of negotiations, the parties responded to three Mediator’s Proposals to
settle the case and extensively negotiated the injunctive relief provided for in the Settlement.
102. As the Settlement began to materialize, the parties sought and the Court granted
the parties’ successive motions to stay to facilitate ongoing negotiations (Dkt. Nos. 196-204).
See also supra ¶ 50.
103. As a result of the parties’ discussions, an agreement in principle was ultimately
reached between Braden and Defendants in May of 2011.
104. On May 24, 2011, the parties asked the Court to continue the stay to allow additional time to work out the details of the Settlement (Dkt. No. 205). On May 25, 2011, the
Court granted the parties’ motion, staying all proceedings in the case for sixty (60) days and directing Braden to file a motion for preliminary approval of the Settlement within that time
(Dkt. No. 206).
105. The parties then engaged in significant and extensive negotiations over the specific terms of the agreement, with the Court granting additional motions to extend the stay while the parties finalized the terms of the Settlement (Dkt. Nos. 209-224).
106. On November 4, 2011, the Court ordered Braden to file a status report (Dkt. No.
225). On November 7, 2011, Braden filed a status report updating the Court on the parties’ progress in finalizing the terms of the Settlement Agreement and indicating that Braden anticipated filing a motion for preliminary approval of the Settlement by November 30, 2011
(Dkt. No. 226).
Case 6:08-cv-03109-GAF Document18 239 Filed 02/03/12 Page 21 of 51 107. The Settlement Agreement, fully executed on December 2, 2011, is the result of
extensive negotiation concerning its detailed provisions. On that day, the Braden submitted the
signed Settlement Agreement to the Court and requested an order preliminarily approving the
Settlement, conditionally certifying a Settlement Class, approving a notice plan, and setting a
date for the Fairness Hearing (Dkt. Nos. 227-230). The Court entered its the Preliminary
Approval Order on December 5, 2011 (Dkt. No. 231).
108. In sum, after significant investigation and analysis of Braden’s claims through the
discovery process, the vetting of Braden’s claims through the motions to dismiss and an Eighth
Circuit appeal, as well as the settlement negotiations and mediations and consultation with
experts, Lead Counsel and Braden believe that they have a strong base from which to properly
evaluate the strengths and potential weaknesses of the case and the value of the lawsuit.
F. Terms of the Settlement.
109. The Settlement provides a release of claims against all Defendants and brings this
litigation to a close. The principal terms of the Settlement, which are described in the Settlement
Agreement previously filed with and preliminarily approved by the Court are summarized below:
1. Settlement Amount.
110. Under the Settlement, Defendants will pay a Settlement Amount of $13.5 million.
Id. ¶ 7.3. The Settlement Amount shall be used to pay (1) the expense of Class Notice,
(2) attorneys’ fees, expenses, and costs, (3) Class Plaintiff case contribution award, (4) taxes, and
(5) the expenses, if any, of Settlement administration. Id. ¶ 8.2. The balance of the Settlement
Amount after payment of the above-listed items shall be the Net Proceeds. Id. ¶ 8.2.
111. If the Settlement is finally approved and becomes final, such that it is non- appealable, the Net Proceeds will be paid directly to the Plan to be used by the Plan to pay
Case 6:08-cv-03109-GAF Document19 239 Filed 02/03/12 Page 22 of 51 certain Plan expenses and administration fees that otherwise would be charged to individual Plan
accounts in the future, according to the Plan of Allocation. Id. ¶ 8.2.
2. Injunctive Relief.
112. The Settlement provides for significant injunctive relief to ensure low-cost
investment options and improve participant education and fee disclosures. Id. ¶¶ 9.1-9.4.
3. Plan of Allocation.
113. Pursuant to the Plan of Allocation that is being submitted to the Court for approval, the Net Proceeds will reduce and offset expenses and administration fees charged to the Plan—and, ultimately, individual Plan participants—on a going-forward basis. The Plan of
Allocation that Braden requests the Court adopt is filed herewith as Exhibit C. In general terms, the Net Proceeds will be paid directly to the Plan to be used by the Plan to pay certain Plan expenses and administration fees, which will reduce the amount of fees that otherwise would be charged to individual Plan accounts in the future. Any Net Proceeds remaining at the end of the second Plan year in which the Net Proceeds are used to reduce and offset fees will be allocated to individual Plan participant accounts on a per capita basis, unless that is not feasible, in which case the Plan fiduciaries will decide how any remaining funds are used.
114. Calculating, identifying, and providing payment to almost two million former participants, in addition to over one million current participants, would be cost prohibitive and consume, at a minimum, a significant portion of the Net Proceeds. Thus, the Plan of
Allocation’s use of the Net Proceeds to reduce and offset future fees of current Plan participants—who easily may be identified and for whom the calculation and reduction of fees may be easily accomplished—maximizes the benefit of the Net Proceeds to the Settlement Class.
Case 6:08-cv-03109-GAF Document20 239 Filed 02/03/12 Page 23 of 51 4. Independent Fiduciary Approval.
115. Department of Labor regulations and the terms of the Settlement require that an
Independent Fiduciary examine the terms of the Settlement. Pursuant to these regulations, the
favorable review of an Independent Fiduciary—in this case, Lance Studdard of Reliance Trust—
exempts the Settlement from ERISA § 406(a)(1)(A), 29 U.S.C. § 1106(a)(1)(A). The
Independent Fiduciary extensively interviewed the parties’ counsel regarding the basis for the
terms of the Settlement, and will opine on whether it may be approved and authorized in
accordance with PTE 2003-39. Pursuant to the Settlement Agreement, the Independent
Fiduciary’s report is due twenty days before the Fairness Hearing, on February 16, 2012.
III. THE SETTLEMENT WARRANTS THE COURT’S APPROVAL
116. As fully explained in Plaintiff’s preliminary and final approval memoranda, the
Settlements satisfies the factors for evaluating the fairness, reasonableness and adequacy of a
class action settlement set forth in In re Wireless Tel. Fed. Cost Recovery Fees Litig. , 396 F.3d
922 (8th Cir. 2005) (citing Grunin v. Int’l House of Pancakes , 513 F.2d at 124 (8th Cir. 1975));
see also Van Horn v. Trickey , 840 F.2d 604, 607 (8th Cir. 1988). These factors are: “(1) the merits of the plaintiff’s case, weighed against the terms of the settlement; (2) the defendant’s financial condition; (3) the complexity and expense of further litigation; and (4) the amount of opposition to the settlement.” Wireless , 396 F.3d at 932.
A. The Wireless Factors.
117. As discussed in Plaintiff’s Preliminary Approval Memo subsections III.B.1 and 3,
Lead Counsel believes the claims in this case are solidly grounded in ERISA law, but it is beyond debate that the issues are complex. ERISA jurisprudence presents an ever changing legal landscape, and there is a constant risk that the law will change before judgment. While many recent decisions have upheld claims similar to those asserted here, as the parties contemplated
Case 6:08-cv-03109-GAF Document21 239 Filed 02/03/12 Page 24 of 51 settlement, there was no assurance a change in the law would not have affected, or negated, the claims in this lawsuit.
118. Defendants have raised numerous defenses, any one of which, if successful, might end or severely limit Braden’s case. For example, Defendants can be expected to dispute that they knew or should have known that the Plan’s Investment Options charged excessive fees that rendered the Investment Options imprudent investments during the Class Period, or that there is no way they could have known the fees Merrill Lynch was actually collecting as a result of its relationship to the Plan. See Preliminary Approval Memo subsection III.B.1. We disagree with
Defendants’ positions on the law and facts, but, nonetheless recognize that liability was vigorously disputed, the outcome of trial unpredictable, and appeals of any judgment highly likely.
119. The relief provided in the Settlement, combined with the changes to the Plan since the lawsuit began, target exactly the problems presented by high-cost mutual funds and their impact on long-term retirement savings that Braden set out to redress when he filed suit, as well as the pitfalls of asset-based fee structures in a Plan the size of Wal-Mart’s and the undisclosed fees collected by Merrill Lynch. Many of the investment options offered in the Wal-Mart Plan have changed during the pendency of this lawsuit. When this Action was initiated in March of
2008, the Plan still included seven of the ten mutual funds that Braden originally challenged as unduly expensive and from which Merrill Lynch was allegedly collecting undisclosed fees during the Class Period. Over the years since the lawsuit commenced, those funds were replaced with funds that charge lower investment management fees. In addition, the Wal-Mart
Defendants have replaced the Plan’s preexisting asset allocation program with other investment choices.
Case 6:08-cv-03109-GAF Document22 239 Filed 02/03/12 Page 25 of 51 120. As a result of these changes, as well as other changes that have been implemented by the Retirement Plans Committee in recent years, the Wal-Mart Plan looks very different today than it did in March of 2008 when this case began. It now provides participants with investment options that, overall, carry lower fees than those in the Plan when the case was filed. Moreover, the Settlement achieved by Braden here provides that for a period of two years commencing on the Effective Date of the Settlement, the Retirement Plans Committee will continue its ongoing process to remove from the Plan’s Investment Options, and shall not add as Investment Options, funds that are retail mutual funds, funds that pay 12b-1 fees, and funds that provide revenue sharing, per position or per-participant sub-transfer agent fees, or other fees, to any party in interest as defined in ERISA § 3(14)(A), 29 U.S.C. § 1002(14)(A), including the Plan’s trustee or recordkeeper. The Plan currently offers two index funds, and under the Settlement, the
Retirement Plans Committee will also consider, where and when appropriate, adding additional low-cost, passively managed investment vehicles to the Investment Options.
121. Additionally, the elimination over time of asset-based compensation to Merrill
Lynch and revenue sharing as a means to pay for Plan expenses and administrative costs has directly addressed the fundamental problem with Merrill Lynch’s compensation structure—and its ability to collect undisclosed fees—that Braden sought to redress with the allegations he added to the case when he amended his Complaint. Accordingly, given the current structure of the Plan, and the terms of the Settlement, Braden’s substantial achievement of what he set out to do makes settling this case now without further litigation of these issues appropriate and beneficial to Plan participants.
122. No ERISA excessive fee case has been tried to a fully successful conclusion, and, accordingly, no court has applied definitely a damage measure to a case such as this one after
Case 6:08-cv-03109-GAF Document23 239 Filed 02/03/12 Page 26 of 51 trial. This void, coupled with the Defendants’ vigorous defense of the damage aspects of the case, creates risk for Braden.
123. Defendants dispute that excessive fees were ever paid and argue that fees charged were reduced over time, so as to mitigate the effect of any excessive fees charged in the past.
They also contend that the claims of Braden and the Settlement Class predating 2002 are barred by statutes of limitations, eliminating nearly five years of the Class Period. Consequently, according to Defendants, the damages in the appropriate Class Period would be minimal. Braden disputes the validity of these defenses, but recognizes that the measure of damages would be significantly impacted if the case were so limited by the resolution of the Wal-Mart Defendants’ currently pending motions to dismiss in the Wal-Mart Defendants’ favor.
124. Braden would also face arguments that damages should be measured using different benchmark alternative index funds for calculating losses, which could reduce damages significantly or eliminate them altogether.
125. In the event Braden were to establish liability, and the Court were to accept
Braden’s damages methodology, as set forth in the Preliminary Approval Memo, the Settlement
Amount of $13.5 million represents between approximately 14% and 46% of the potentially provable losses to the Plan due to excessive fees during the period of 1997-2009 ($29.6 million to $97.5 million). Another potential measure of loss is the $10-20 million of undisclosed fees
Plaintiff alleges that Merrill Lynch collected from the Plan, unbeknownst to Wal-Mart, the Plan, or its participants. See Complaint ¶ 135. The Settlement Amount of $13.5 million falls squarely within the range of allegedly undisclosed fees collected by Merrill Lynch during the Class
Period. See id. Therefore, the Settlement Amount represents a range of recovery that is appropriate given the wide range of potential damages outcomes at trial (as well as the
Case 6:08-cv-03109-GAF Document24 239 Filed 02/03/12 Page 27 of 51 possibility of summary judgment or a verdict in favor of Defendants that would result in zero recovery) and the uncertainty of the Plans’ actual losses.
126. The Settlement was negotiated by counsel with extensive knowledge of the facts and law relevant to the Complaint obtained through investigation, research, discovery, and extensive briefing on motions to dismiss. Moreover, the Settlement was reached through extensive arm’s-length negotiations occurring in formal mediation and informal conversations over the course of eighteen months.
127. In sum, considering the present and time value of money, the probability of lengthy and costly litigation in the absence of this Settlement, including appeals that likely would occur, the risk that the Settlement Class would not succeed in proving liability against the
Defendants or defeating the pending motions to dismiss, the significant changes to the Plan provided by the Settlement and that occurred during the pendency of the litigation, and the range of possible recovery at trial, the Settlement is an excellent result that provides substantial benefits to the Class—a result that satisfies the first Wireless factor.
128. With respect to the third Wireless factor, it is particularly important to note the complexity and expense of this case. The Wal-Mart Plan is the single largest 401(k) plan in the country in terms of the number of participants—current and former. The parties did not agree on much with regard to how the Plan should have been operated, and the rapidly developing case law provides little consistent guidance. This Court, and likely appellate courts as well, would be required to address a number of complex issues of first impression. Moreover, the litigation to date demonstrates that both Wal-Mart and Merrill Lynch intended to forcefully dispute Braden’s claims and to spare no expense doing so. The case involved extensive motions practice, an appeal, document and deposition discovery, and negotiations spanning many months. We have
Case 6:08-cv-03109-GAF Document25 239 Filed 02/03/12 Page 28 of 51 no doubt that the case would continue to be hard-fought, expensive, and complex—risks that
Lead Counsel would continue to bear. If the case were to proceed to trial, we would expect a
battle of experts over a large number of issues, which itself would be enormously expensive.
129. This Settlement cuts short additional depositions and document discovery, and eliminates the substantial briefing that likely would occur going forward in this case, including, among other things, class certification and summary judgment briefing, as well as post-trial motions and appeals. Thus, the Settlement conserves judicial resources and reduces the significant, substantial expense required to prepare Braden’s case against Defendants for trial.
130. With regard to Class member reaction to the Settlement—the fourth Wireless factor—we note that to date not a single Class member has objected. We have received numerous inquiries from Class members in response to the Class notices. Specifically, between
December 9, 2011 and February 2, 2012, Lead Counsel responded to 69 telephone and 7 e-mail inquiries from 49 Settlement Class members or potential Settlement Class members.
131. Lead Counsel and Defendants’ Counsel received an inquiry from an attorney representing a Plan participant who requested verification that Merrill Lynch was contributing funds to the Settlement. We provided a response to this attorney and have not received any further inquiry from him.
132. As discussed in subsection III.B.4 of the Final Approval Memo, the Settlement has the unqualified support of Named Plaintiff Jeremy Braden and is being evaluated by the
Independent Fiduciary.
133. Under the provisions of the Preliminary Approval Order, ¶¶ 10-11, the deadline for filing and service of objections is February 17, 2012. Lead Counsel will respond to
Case 6:08-cv-03109-GAF Document26 239 Filed 02/03/12 Page 29 of 51 additional objections, if any, that are filed and served before this deadline by March 2, 2012, and will post these responses to the Settlement website.
IV. CLASS CERTIFICATION
A. Confirmation of Class Certification is Warranted Here.
134. As explained in Part IV of the Final Approval Memo, confirmation of the Court’s prior certification of the Settlement Class under Rule 23(b)(1)(A) and (B) is warranted here. See
Preliminary Approval Order ¶¶ 3-4; Settlement Agreement ¶ 1.44 (Settlement Class Definition).
Nothing with respect to the Settlement Class or the propriety of class certification has changed since the Court provisionally certified the Settlement Class.
B. Lead Counsel Easily Meet the Requirements of Rule 23(g).
135. Lead Counsel have made extensive efforts in successfully prosecuting this case and achieving this Settlement, and believe we satisfy the dictates of Rule 23(g), in accordance with the Court’s prior appointment of Keller Rohrback L.L.P. as Lead Counsel.
136. We have prepared a detailed and thorough initial complaint and amended the
Complaint after further investigation and discovery, extensively briefed the complex and novel issues in this case at the district court and appellate level, obtained reinstatement of the case from the Eighth Circuit, conducted extensive post-remand discovery, consulted with experts, participated in multiple mediation sessions, and engaged in lengthy, hard-fought, ultimately successful settlement negotiations with Defendants.
137. Lead Counsel includes some of the preeminent ERISA class action attorneys in the country with years of experience in ERISA law and in prosecuting and trying complex actions. Lead Counsel are experienced in ERISA litigation, and have litigated multiple cases involving allegations that ERISA plan fiduciaries imprudently selected plan investment options that charged excessive fees or were otherwise imprudent and did not adequately disclose this
Case 6:08-cv-03109-GAF Document27 239 Filed 02/03/12 Page 30 of 51 information to participants and beneficiaries. See, e.g. , section IV.B, supra , and Exhibit D attached hereto. Our experience and skill are demonstrated by the effective prosecution of this action, including the identification, investigation, and prosecution of the claims in this action, and by the substantial Settlement entered into with Defendants.
V. THE FORMS AND METHODS OF NOTICE EMPLOYED HERE SATISFY RULE 23 AND DUE PROCESS
138. In accordance with the Preliminary Approval Order, the conditionally certified
Settlement Class has been provided with ample and sufficient notice of the Settlement, including an appropriate opportunity to voice objections. The notice plan that was previously approved by the Court fully informed the Settlement Class of the lawsuit and the proposed Settlement, and enabled them to make informed decisions about their rights. Lead Counsel have performed their obligations under the notice plan and previously filed notification to that effect. See Plaintiff’s
Notice Regarding Publication of Notice of Class Action Settlement (Dkt. No. 232).
139. The parties’ notice plan, as approved by the Court and implemented by the parties, consisted of (a) Defendants publishing the Class Notice on www.Walmartbenefits.com and www.benefits.ml.com , web sites utilized by Plan participants in managing their retirement accounts; (b) Lead Counsel publishing the Summary Notice in the national edition of USA Today on January 5, 2012, see Verification of Publication (Dkt. No. 232-3), attached as Exhibit C to
Plaintiff’s Notice Regarding Publication of Notice of Class Action Settlement (Dkt. No. 232); see also Declaration of Toussaint Hutchison ¶¶ 3-7 (Dkt. No. 232-2), attached as Exhibit B to
Plaintiff’s Notice Regarding Publication of Notice of Class Action Settlement (Dkt. No. 232), and issuing the Summary Notice on BusinessWire on January 4, 2012, see Declaration of
Lindsay Pearson re Publication of Notice of Class Action Settlement ¶¶ 2-3 (Dkt. No. 232-1), attached as Exhibit A to Plaintiff’s Notice Regarding Publication of Notice of Class Action
Case 6:08-cv-03109-GAF Document28 239 Filed 02/03/12 Page 31 of 51 Settlement (Dkt. No. 232); and (c) Lead Counsel publishing the Class Notice on a dedicated web
site created and administered by Lead Counsel to provide information to Settlement Class
members, as well as a toll-free telephone number and e-mail address that Settlement Class
members may call or e-mail—and, in fact, have called and e-mailed—to obtain information
regarding the Settlement. Lead Counsel has fielded 69 calls and 7 emails responding to
questions from participants and Class Members.
140. The Class Notice provided detailed information about the Settlement, including
(1) a comprehensive summary of its terms; (2) detailed information about the Released Claims;
and (3) Class Counsel’s intent to request attorneys’ fees, reimbursement of expenses, and case
contribution award for Named Plaintiff. In addition, the Class Notice provided information about
the Fairness Hearing, the Settlement Class members’ rights to object (and deadlines and
procedures for objecting), and the procedure to receive additional information.
141. The notice forms and methods used here are substantially similar to those successfully used and approved by courts in other ERISA class settlements and satisfy the requirements of due process and Rule 23.
VI. THE PROPOSED PLAN OF ALLOCATION SHOULD BE APPROVED
142. The proposed Plan of Allocation, filed herewith, see Ex. C, reflects our informed consideration of the relevant legal and factual matters pertaining to the Settlement Class members’ claims. It provides recovery to the Plan, net of (1) the expense of Class Notice,
(2) attorneys’ fees, expenses, and costs, (3) Class Plaintiff’s case contribution award, (4) taxes, and (5) the expenses, if any, of Settlement administration.
143. In no case will funds “revert” to the Defendants as a result of the Plan of
Allocation. However, Defendants have reviewed the Plan of Allocation for feasibility and cost
implementation prior to its submission to the Court, pursuant to the Settlement Agreement, ¶ 8.2.
Case 6:08-cv-03109-GAF Document29 239 Filed 02/03/12 Page 32 of 51 144. As stated in the notice to the Settlement Class, the Net Proceeds of the Settlement
Amount will be paid directly to the Plan to be used by the Plan to pay certain Plan expenses and administration fees, which will reduce the amount of fees that otherwise would be charged to individual Plan accounts in the future. As such, the Net Proceeds will not be applied to reduce and offset fees previously charged to individual participant accounts, and no cash payments from the Net Proceeds will be made to members of the Settlement Class. Any Net Proceeds remaining at the end of the second Plan year in which the Net Proceeds are used to reduce and offset fees will be allocated to individual Plan participant accounts on a per capita basis, unless that is not feasible, in which case the Plan fiduciaries will decide how any remaining funds are used.
145. Lead Counsel have determined that application of the Net Proceeds of the
Settlement Fund to pay Plan expenses is the best and most economical use of the cash portion of the Settlement, particularly given the nature of Braden’s claims—that small dollar amounts of additional fees cause compounded losses in savings over time. While the present value of any given participant’s claimed losses due to the conduct alleged in the Amended Complaint are relatively small in terms of dollars, their effect on future retirement savings is what Braden has undertaken to redress. Thus, given the enormous cost and expense of attempting to locate all
Class Members (including approximately two million former Plan participants) and then mailing separate, often small, payments to them, Plan-wide use of the cash portion of the Settlement to offset the cost of administering the Plan puts that money to its best and most efficient use. The
Settlement Fund targets the very purpose of this case—to reduce Plan expenses and increase future savings
146. Accordingly, we believe that the proposed Plan of Allocation is fair, reasonable, and not unduly complicated or expensive and accordingly urge the Court to approve it.
Case 6:08-cv-03109-GAF Document30 239 Filed 02/03/12 Page 33 of 51 VII. TIME AND EFFORT DEDICATED TO THIS CASE
147. Lead Counsel, together with Liaison Counsel and additional Plaintiff’s Counsel, defined below, devoted more than 10,084 attorney and professional hours to the prosecution of this case.
148. Lead Counsel gathered and reviewed time and expense reports for our firm;
Liaison Counsel, Aleshire Robb P.C.; and additional Plaintiff’s Counsel, Edward H. Siedle
(collectively, “Plaintiff’s Counsel”).
149. In the Fee Petition, Braden seeks an award of fees and expenses on behalf of Lead
Counsel and the additional Plaintiff’s Counsel who are the firms that (a) performed work on the case pursuant to direction of or approved by Lead Counsel; and (b) followed the time reporting requirements established by Lead Counsel, in an effort to avoid duplicative or unproductive activities.
150. Lead Counsel and additional Plaintiff’s Counsel successfully created a common fund of $13.5 million, and accordingly are entitled to a reasonable share of that fund as a fee, to be awarded to and equitably distributed by Lead Counsel among Plaintiff’s Counsel identified herein, based on their contributions to the case and approved work performed.
151. As set forth in the Fee Petition, Lead Counsel are requesting reimbursement of their expenses from the common fund, as well as a fee of thirty percent (30%) of the common fund amount.
152. Lead Counsel allocated work in this case to maximize efficiency, assigning tasks within our firm and to others involved based on a number of considerations with the goal of minimizing duplication of effort. In addition, we carefully assigned work within our firm and among others involved to minimize fees in the case; thus, senior attorneys did not do the work that could be accomplished by more junior attorneys, and attorneys did not do work that could be
Case 6:08-cv-03109-GAF Document31 239 Filed 02/03/12 Page 34 of 51 completed by paralegals. Moreover, at Lead Counsel’s firm, Keller Rohrback L.L.P., the five
attorneys who worked the most on the case—myself, Derek W. Loeser, Michael D. Woerner,
Gretchen Freeman Cappio, and Gretchen S. Obrist—are responsible for over 83% of the attorney
reflected in Exhibit A. In addition, throughout the litigation, we balanced our resources—again,
within our firm and among others involved—to ensure that we litigated the matter in the most
efficient method. If Lead Counsel had not been stringent in these efforts, the number of hours
devoted to the case would have been much higher.
153. Since the inception of this case, in accordance with their normal business
practices, Lead Counsel and additional Plaintiff’s Counsel have and do maintain detailed and
contemporaneous records of time spent by their lawyers, law clerks, paralegals, and certain
personnel on this action. Our timekeepers have been and are required to keep daily time records,
both noting amounts of time spent on projects and providing descriptions of that work. These
records are then computerized, checked, and maintained in databases. These systems allow us to
be confident that the hours reported for this case are accurate.
154. The schedule attached as Exhibit A hereto summarizes the time spent by Keller
Rohrback L.L.P. attorneys and other professional support staff in this litigation, and the lodestar
calculation based on the firm’s current billing rates from inception of the case through February
3, 2012. For personnel no longer employed by the firm, the lodestar calculation is based upon
the billing rates for such personnel in his or her final year of employment by Keller Rohrback
L.L.P. Time spent in connection with the fee application process is excluded.
155. Attached as Exhibit E is the Declaration of William R. Robb, an attorney at
Liaison Counsel Aleshire Robb P.C., in Support of Lead Counsel’s Motion for an Award of
Case 6:08-cv-03109-GAF Document32 239 Filed 02/03/12 Page 35 of 51 Attorneys’ Fees, Reimbursement of Costs and Expenses, and Case Contribution Award to
Named Plaintiff, attesting to their hours and expenses in this litigation.
156. Attached as Exhibit F is the Declaration of Edward H. Siedle in Support of Lead
Counsel’s Motion for an Award of Attorneys’ Fees, Reimbursement of Costs and Expenses, and
Case Contribution Award to Named Plaintiff, attesting to his hours and expenses in this
litigation.
157. The hourly rates charged by Lead Counsel and additional Plaintiff’s Counsel in
this case are the rates that have been or could be charged as usual and customary hourly rates for
the work performed for non-contingency fee clients and in other class action cases. In preparing
our Fee Petition, Lead Counsel has audited all time recorded by the staff and attorneys within
Keller Rohrback as well as by additional Plaintiff’s Counsel to ensure the reasonableness of both
the time expended and the rates charged. The hourly rates charged by Lead Counsel in this case
are prevailing rates in their communities, have been approved in many judicial settlement
hearings, and are consistent with rates approved in this Circuit and others in many recent ERISA
class action cases.
158. Lead Counsels’ hourly rates have been paid by hourly clients and/or, separately, approved for payment by federal and state courts in other class and derivative litigations, for many years and throughout the time this litigation has been pending.
159. Keller Rohrback is a Seattle-based firm, with additional offices in New York City,
Phoenix, and Santa Barbara, and its rates are in line with the rates charged by other around the country that represent clients in major class action and complex financial cases. In addition,
Lead Counsel’s rates are comparable to rates charged by counsel with special expertise in complex ERISA, financial, and other class action litigation. The rates charged by counsel who
Case 6:08-cv-03109-GAF Document33 239 Filed 02/03/12 Page 36 of 51 specialize in large-scale, complex ERISA cases are relevant “because ERISA cases involve a
national standard, and attorneys practicing ERISA in the Ninth Circuit tend to practice in
different districts. Furthermore, ERISA cases are often considered to be complex, ERISA
plaintiff cases are often undesirable, and Plaintiff’s attorneys possess extensive experience in
ERISA law.” Mogck v. Unum Life Ins ., 289 F. Supp. 2d 1181, 1191 (S.D. Cal. 2003); see also
McAfee v. Metro. Life Ins. Co ., 625 F. Supp. 2d 956, 975 (E.D. Cal. 2008) (“ERISA cases
involve a national standard.”); Welch v. Metro. Life Ins. Co ., 480 F.3d 942, 946 (9th Cir. 2007)
(“Billing rates should be established by reference to the fees that private attorneys of an ability
and reputation comparable to that of prevailing counsel charge their paying clients for legal work
of similar complexity.”).
160. If Plaintiff’s Counsel’s hours had been billed on a “straight” hourly basis ( i.e. , no contingency and no risk of non-payment), the lodestar (hours times current billing rates) for this professional time would be approximately $4.56 million. On a firm-by-firm basis, the lodestar calculations are as follows:
Firm Hours Lodestar Keller Rohrback L.L.P. 8,787.36 $3,954,922.25 Aleshire Robb P.C. 251.00 $75,300.00 Edward H. Siedle 1,046.25 $530,002.50 Total 10,084.61 $4,560,224.75
161. The lodestar figures are based on each firm’s current billing rates and contemporaneous time records. For all firms, expense items are billed separately and such charges are not duplicated in any of the firms’ billing rates. The “blended” hourly rate for the entire case is $452.20 for all hours worked.
162. Based on Lead Counsel’s and additional Plaintiff’s Counsels’ collective current lodestar, the $4.05 million fee sought by Plaintiff only represents a “multiplier” of .87. In other words, the request is for only 86.9% of the dollar value of the time actually invested in the case.
Case 6:08-cv-03109-GAF Document34 239 Filed 02/03/12 Page 37 of 51 163. Significant attorney hours will be necessary after February 3, 2012, the date as of
which the above numbers were compiled, to complete the remaining work on this case. In
addition to incurring hours in connection with responding to any objections and preparing for the
Fairness Hearing, past experience teaches that we will spend a substantial amount of additional
time over the next year or more following final approval responding to inquiries from the
Settlement Class, interacting with Defendants with respect to technical matters concerning
administration of the Settlement, and generally shepherding implementation of the Settlement
affecting the Plan and its over one million participants. 3 Lead Counsel do not intend to apply for
reimbursement of additional fees, substantial as they may be, incurred after final approval of the
Settlement. However, for purposes of evaluating the reasonableness of the 30% fee request, and
as a lodestar cross-check, it is appropriate to consider the additional fees that Lead Counsel will
incur. Lead Counsel conservatively estimates that, at a minimum, additional fees will be
$100,000. Thus, whereas the current lodestar is $ 4,560,224.75, the estimated final lodestar will
be at least $ 4,660,224.75. Thus, Lead Counsel’s total fee request of $4.05 million represents a
final “multiplier” of .87 or 86.9% of the dollar value of the final time invested in the case.
VIII. THE RECORD FULLY SUPPORTS THE AWARD OF REQUESTED ATTORNEYS’ FEES
164. Lead Counsel and additional Plaintiff’s Counsel seek an award of attorneys’ fees
in the amount of $4.05 million, significantly less than the fee amount invested in the case—
$4,560,224.75—and reimbursement of out-of-pocket litigation expenses of $235,436.68. The
total fees and expenses requested are $4,285,436.68, which is $510,224.75 less than the total
3 In the Enron ERISA case, In re Enron Corp. Sec., Derivative & “ERISA” Litig., No. 01-3913 (S.D. Tex.), in which Lead Counsel in this case was co-lead counsel, Lead Counsel are still responding to occasional inquiries from class members, advising the district court of our views on various implementation matters, and monitoring the docket, even though the case settled in 2007.
Case 6:08-cv-03109-GAF Document35 239 Filed 02/03/12 Page 38 of 51 amount invested in the case in out-of-pocket expenses and attorney time: $4,795,661.43. In
addition, we request that the Court grant a case contribution award of $20,000 to Named Plaintiff
Jeremy Braden in recognition of his valuable service to the Settlement Class.
A. The Westerhaus Factors.
165. As set forth in subsection I.C.1 of the Fee Petition, the Eighth Circuit has set forth
five non-exclusive factors for courts to consider in evaluating the reasonableness of a fee
application:
(a) “the degree of the opposing parties’ culpability or bad faith;”
(b) “the ability of the opposing parties to satisfy an award of attorney’s fees;
(c) “whether an award of attorney’s fees against the opposing parties could deter other persons acting under similar circumstances;”
(d) “whether the parties requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question [sic] regarding ERISA itself;” and
(e) “the relative merits of the parties’ positions.”
First Nat’l Bank & Trust Co. of Mountain Home v. Stonebridge Life Ins. Co. , 619 F.3d 951, 956
(8th Cir. 2010) (quoting Lawrence v. Westerhaus , 749 F.2d 494, 496 (8th Cir. 1984) ( per curiam ) (quoting Iron Workers Local No. 272 v. Bowen , 624 F.2d 1255, 1266 (5th Cir. 1980))).
The record in this case supports each of the relevant factors.
166. The Westerhaus factors support Lead Counsel’s fee request in this case as explained in full in Lead Counsel’s Fee Petition.
167. With regard to the first Westerhaus factor—the degree of the opposing parties’ culpability or bad faith—I note that the parties have vastly different interpretations of what
ERISA requires and whether the Plan fiduciaries’ conduct fell short. Certainly, it has been our position that the Plan offered needlessly expensive investment options, and allowed Merrill
Case 6:08-cv-03109-GAF Document36 239 Filed 02/03/12 Page 39 of 51 Lynch to be overpaid for its services, and, as discovery unfolded, it became clear to us that
Merrill Lynch received a substantial amount of undisclosed fees. We think this conduct is
sufficient to establish culpability and bad faith, though we recognize that as of the time of the
Settlement, no court had adjudicated these facts, and thus they remained disputed.
168. The third Westerhaus factor asks whether “whether an award of attorney’s fees
against the opposing parties could deter other persons acting under similar circumstances.” First
Nat’l Bank & Trust Co. of Mountain Home v. Stonebridge Life Ins. Co. , 619 F.3d 951, 956 (8th
Cir. 2010). I believe that it would. Braden pursued a meritorious case with an important objective—to reduce the expenses he and other Plan participants were charged, and, hence to enhance their ability to save for retirement. This was a laudable public goal. The case received significant national attention. I appear regularly at ERISA conferences around the country, and there is no question that this case got the attention of plan fiduciaries for many plans—not just the Wal-Mart Plan. An award of fees would indicate to the fiduciary community that counsel who pursue meritorious ERISA fiduciary breach cases, will be fairly compensated for their effort. This, as well, is consistent with the letter and intent of ERISA, which authorizes suits on behalf of plans by participants, and the payment of fees for successful claims. In short, both the private right of action under ERISA and the award of attorneys’ fees in successful cases deter unlawful conduct and promote Congress’s statutory intent to protect retirement savings from waste and abuse.
169. The fourth Westerhaus factor—whether we sought to benefit the Plan as a whole
or resolve significant legal issues—is a particularly important one for us as ERISA litigators.
This case was brought by Jeremy Braden not just for his own losses, but for the Plan’s losses.
We advanced the cost of this litigation, and thoroughly pursued the claims likewise not just for
Case 6:08-cv-03109-GAF Document37 239 Filed 02/03/12 Page 40 of 51 Braden’s benefit, but for the benefit of the Class. The relief we obtained, as discussed above was consistent with these ambitions—and we view the recovery, as well as the changes to the Plan that occurred over the course of the litigation as significant achievements. The Plan is better, the fees are lower, and Settlement payment will be used to decrease the fees even more. In addition, the case sought to resolve a number of significant legal issues—not the least of which was whether fiduciaries of a large plan are required by ERISA to bargain for the benefits of participants in order to reduce expenses. This was a hotly contested issue with important ramifications for ERISA plans around the country.
170. The fifth Westerhaus factor concerns the relative merits of the parties’ positions.
As the extensive briefing in this case shows—both motion to dismiss practice, appeals, and the various summaries in the settlement approval pleadings, the parties vigorously disputed the law, and even the facts. I believe our interpretation of the law was correct, and that facts developed in discovery supported our claims. The Eighth Circuit agreed that our claims were plausible, and, thereafter, we conducted discovery in order to validate them. Nonetheless, we recognize that
ERISA breach of fiduciary law is an unsettled and developing area of law, affording the parties in this case the opportunity and providing the incentive to assert a variety of plausible arguments.
The record in this case—replete with extensive briefing and involving vast amounts of time and resources on behalf of the parties—reflects the thoroughness with which the parties have sought to support the merits of their respective positions
B. The Allen Factors.
171. In addition to the Westerhaus factors, the requested fee is supported by the factors set forth in Allen v. Tobacco Superstore, Inc. , 475 F.3d 931, 944 (8th Cir. 2007), as fully explained in subsection I.C.2 of the Fee Petition.
Case 6:08-cv-03109-GAF Document38 239 Filed 02/03/12 Page 41 of 51 172. The first Allen factor considers the time and labor required to litigate this case.
As the above summary makes clear, we dedicated enormous time and effort to this case since it
was filed. By all accounts, we litigated the case, and zealously represented our client and the
class. When the case was dismissed, we appealed, and after the appeal, we developed our claims
in discovery. In all, Lead Counsel and the additional Plaintiff’s Counsel identified herein
devoted more than 10,084 hours to the successful prosecution of the action over nearly four
years, and advanced expenses in the amount of $235,436.68. See Parts VII and IX herein.
173. The second Allen factor is the novelty and difficulty of the claims. As discussed above, ERISA breach of fiduciary excessive fee claims are both novel and complex and raise a host of difficult questions. The law is rapidly developing with the parties immediately incorporating new decisions into the motions practice. Many courts have noted that ERISA is a complex statute, and the ERISA claims in this case are no exception.
174. Despite the novelty and difficulty of the questions presented, the unsettled area of the law involved, and the vigorous defense the Defendants mounted at every juncture, we navigated this case to a successful resolution.
175. The third and ninth Allen factors concern the skill of class counsel and their experience, reputation, and ability. As noted above, this was a demanding case that presented difficult factual, procedural, and legal issues. It involved large amounts of money, multiple experts and potential witnesses, and voluminous and ongoing document discovery. It was defended by major national firms with significant ERISA experience. Despite abundant obstacles, we litigated the case to a successful conclusion. We believe the results achieved demonstrate our skill. We note as well that our ERISA and class action experience was integral to our success. This is not a case in which it would have been possible to learn on the job, and
Case 6:08-cv-03109-GAF Document39 239 Filed 02/03/12 Page 42 of 51 instead required detailed knowledge of ERISA, and careful attention to the ever-changing
ERISA landscape. Our significant ERISA and class action experience allowed us to provide the
high quality of services this case required, as further discussed below.
a. Lead Counsel.
176. As national leaders in ERISA breach of fiduciary duty litigation, Keller Rohrback
L.L.P. provided the necessary expertise garnered from its attorneys’ experience serving in leadership roles in what is now over 37 ERISA breach of fiduciary duty cases in which they have dealt with similar factual and legal issues as those presented in this case.
177. Additionally, recovery in this case would not have been possible without expertise
in and relevant knowledge of mutual funds and related litigation. Lead Counsel possessed and
demonstrated expertise in all of these areas in this action.
178. Keller Rohrback L.L.P. has played a leading role in the development of ERISA
fiduciary breach law by obtaining favorable landmark decisions and recovering over $1 billion
on behalf of employees in ERISA breach of fiduciary duty litigation. Keller Rohrback serves or
has served in a leadership capacity in numerous prominent ERISA breach of fiduciary duty cases
filed throughout the country.4 Keller Rohrback’s work as lead counsel in ERISA cases has been
widely praised. See Keller Rohrback Firm Resume at 2, attached as Exhibit D hereto.
179. As the firm’s Managing Partner, I lead Keller Rohrback’s Complex Litigation
Group and ERISA team. I received both my M.B.A degree in accounting and law degree from
the University of Wisconsin, where I served as Editor-in-Chief of the Wisconsin Law Review and
was selected by faculty as the outstanding graduate of my class. I am a former Assistant United
States Attorney and Ninth Circuit judicial law clerk (Hon. Jerome Farris). I have actively
4 The numerous ERISA breach of fiduciary duty class actions for which Keller Rohrback serves as lead or co-lead counsel are provided in Keller Rohrback’s Firm Resume, attached as Exhibit D hereto.
Case 6:08-cv-03109-GAF Document40 239 Filed 02/03/12 Page 43 of 51 engaged in the prosecution of complex litigation for over two decades. I have served as lead or
co-lead counsel in several leading ERISA breach of fiduciary duty cases, including the largest
and most complex—the Enron , WorldCom , and Global Crossing cases—and numerous other cases. In these cases, I have worked closely with the Department of Labor on numerous issues, have established relationships with many of the key experts in the field, and have worked extensively with counsel in related cases.
180. In addition to my work as lead or co-lead counsel in these cases, I have prosecuted a variety of class actions involving high profile matters including the Exxon Valdez
Oil Spill, the Microsoft civil antitrust case, the Vitamins price-fixing cases, and the MDL
Fen/Phen Diet Drug Litigation . Aided in part by my M.B.A. in accounting, I have also litigated numerous complex cases involving financial and accounting fraud, including actions against several of the nation’s largest accounting and investment firms.
181. I am a recipient of Trial Lawyer of the Year by the Trial Lawyers for Public
Justice Foundation and for the last 13 years was named a “Super Lawyer” among civil litigators by Washington Law and Politics magazine in its annual review of the State’s legal profession. I am a frequent commentator on ERISA litigation and I regularly speak at national ERISA conferences. Most recently, I spoke at the 24th Annual ERISA Litigation Conference in New
York. I am is considered one of the leading experts on ERISA breach of fiduciary duty class action litigation.
182. My partner Derek W. Loeser is a member of the firm’s ERISA team. He is one of the chief plaintiffs’ counsel in numerous ERISA breach of fiduciary duty cases, including, among others, the Polaroid , AIG , and Ford ERISA litigations. Mr. Loeser also played a lead
Case 6:08-cv-03109-GAF Document41 239 Filed 02/03/12 Page 44 of 51 role in the prosecution of many of the firm’s groundbreaking ERISA cases, including the Enron ,
HealthSouth , and CMS ERISA litigations.
183. Mr. Loeser has extensively researched, briefed, and argued a multitude of legal issues arising in ERISA class action case, including on motions to dismiss, class certification, and summary judgment, and has conducted extensive document, deposition, and expert discovery in these cases. He has played a lead role in successful settlement negotiations in several of the firm’s ERISA cases, including this one.
184. Mr. Loeser is a member of the American Bar Association’s Section of Labor &
Employment Law and the Employee Benefits Committee as a plaintiff’s attorney, and is a frequent speaker at national ERISA conferences. Before joining Keller Rohrback in 2002, Mr.
Loeser clerked for the Hon. Michael R. Hogan, United States District Court, District of Oregon, and was a trial attorney in the Employment Litigation Section of the Civil Rights Division of the
United States Department of Justice in Washington, D.C. Mr. Loeser obtained his B.A. from
Middlebury College, where he graduated summa cum laude, with highest departmental honors and Phi Beta Kappa. He graduated with honors from the University of Washington School of
Law. Mr. Loeser was named in 2007, 2008, 2009, 2010, and 2011 as a “Super Lawyer” among civil litigators.
185. My partners Michael D. Woerner and Gretchen Freeman Cappio and associate
Gretchen S. Obrist also contributed significantly to the litigation of this case and achieving the excellent Settlement. Their biographies and experience in ERISA and other class action litigation are detailed in our firm resume at 30, 15, and 25, respectively, attached as Exhibit D.
The Keller Rohrback Complex Litigation Group and ERISA team is highly accomplished, and includes many lawyers whose practices focus primarily on ERISA class action cases. See id.
Case 6:08-cv-03109-GAF Document42 239 Filed 02/03/12 Page 45 of 51 b. Additional Plaintiff’s Counsel.
186. The additional Plaintiff’s Counsel who have performed work and reported time at
Lead Counsel’s request and whose fee declarations are submitted herewith contributed to the successful results achieved. See Declarations of William R. Robb and Edward H. Siedle,
attached to the Sarko Declaration as Exhibits E and F.
c. Defense Counsel.
187. It is also important to note the large and extraordinarily high quality of the
Defense Counsel opposing Braden and his Counsels’ efforts, which bears further witness to the
caliber of representation that was necessary to achieve the $13.5 million Settlement. The Wal-
Mart Defendants were represented by Steptoe & Johnson LLP and the Merrill Lynch Defendants
were represented by O’Melveny & Myers, LLP. Like Keller Rohrback L.L.P., these firms are
nationally recognized for their ERISA litigation expertise and their attorneys are extremely
experienced and capable defense litigators.
188. Plaintiff’s Counsels’ ability to obtain a favorable settlement for the Settlement
Class in the face of such formidable legal opposition confirms the quality of their representation.
Lead Counsel possessed and effectively utilized the requisite skill to provide excellent legal
services for Braden and the Settlement Class.
189. The fourth Allen factor concerns the preclusion of other work as a result of
acceptance of the case. Lead Counsel expended thousands of hours and substantial financial
resources in the successful litigation of this case. See ¶¶ 147, 195. Given the considerable time
and resources devoted to this case, Lead Counsel were deterred and prevented from pursuing
other complex, class action cases.
190. The fifth and sixth Allen factors concern the customary fee and whether the fee is
fixed or contingent. Here, Lead Counsel took significant financial risks in pursuing this
Case 6:08-cv-03109-GAF Document43 239 Filed 02/03/12 Page 46 of 51 litigation in a complex and unsettled area of the law on a contingency basis with no guarantee of
recovery and should be compensated accordingly. The 30% fee requested is well within the
range for similar ERISA cases that Lead Counsel has litigated. See Fee Petition section I.B.
191. The eighth and twelfth Allen factors concern the amount involved, the results obtained and awards in other cases. These factors as well strongly support the requested fee.
The requested fee of $4.05 million, representing 30% of the common fund, is reasonable under the percentage of the recovery analysis. Moreover, the requested fee is well within the range of awards made by district courts in the Eighth Circuit.
192. As discussed in section I.B of the Fee Petition, many courts in the Eighth Circuit and elsewhere, in ERISA and non-ERISA cases, have awarded a higher percentage of fees than that requested here. For all the reasons I have discussed above, the Settlement is an excellent result in a hotly contested case. Under the circumstances, the requested fee is reasonable.
193. Although, as described in section I.B of the Fee Petition, the Eighth Circuit prefers the percentage of the recovery method to the lodestar method in common fund cases, as a cross-check, the requested fee of $4.05 million, represents only 86.9% of the lodestar in this case. It is well below the actual number of hours actually expended in pursuit of the successful resolution of this matter. It is, thus, plainly reasonable for this reason as well.
194. The tenth Allen factor concerns the “undesirability” of the case. It is worth noting that there was no stampede of firms battling for leadership in this case. Lead Counsel filed the only complaint, and by itself advanced the cost of this large-scale class action. The Defendants were formidable opponents, well known for their forceful defense of claims against them. The complexity, novelty, and expense of the claims made this an undesirable case. Nonetheless, we
Case 6:08-cv-03109-GAF Document44 239 Filed 02/03/12 Page 47 of 51 dedicated ourselves to the effort and achieved an excellent Settlement for the Class. For this
reason and the many others discussed above, we believe the 30% fee request is reasonable.
IX. PLAINTIFF’S COUNSEL SHOULD BE REIMBURSED FOR THEIR REASONABLE EXPENSES ADVANCED IN THE LITIGATION
195. Lead Counsel and additional Plaintiff’s Counsel advanced significant
unreimbursed expenses of this class action litigation, totaling $235,436.68. The expenses
incurred are commercially reasonable and are reflected on the books and records of each firm.
These books and records are prepared from expense vouchers, check records, and other source
materials and represent an accurate recordation of the expenses incurred. The expenses include
necessary travel, expert witness and mediation fees, as well as costs of copying, telephone, fax,
computer-aided research, and document database storage and maintenance. Summaries of Lead
Counsel’s and Additional Counsels’ expenses are attached hereto as Exhibits B, E, and F. On a
firm-by-firm basis, Keller Rohrback L.L.P. incurred expenses of $229,952.80, Aleshire Robb
P.C. incurred expenses of $354.16, and Edward H. Siedle incurred expenses of $5,129.72. 5
196. Because the expenses incurred here were incurred with no guarantee of recovery,
Lead Counsel and additional Plaintiff’s Counsel had a strong incentive to keep them at a reasonable level, and did so. Lead Counsel also audited expenses for reasonableness. We made a concerted effort to avoid unnecessary expenditures and economized whenever possible. The expenses were essential to the successful development and prosecution of the case, and amount to less than 1.75% of the recovery obtained for the Settlement Class.
5 Lead Counsel Keller Rohrback L.L.P. advanced the cost of publishing the Summary Notice, and has been reimbursed from the Settlement Fund for this cost, as previously approved by the Court, so we do not include those expenses in our request for reimbursement.
Case 6:08-cv-03109-GAF Document45 239 Filed 02/03/12 Page 48 of 51 X. NAMED PLAINTIFF SHOULD BE GRANTED A CASE CONTRIBUTION AWARD
197. Last, but by no means least, we wish to note the considerable effort made by the sole Named Plaintiff in this case—Jeremy Braden. Braden has been an active, hands-on participant in this litigation, expending a significant amount of his own time and creative ideas to benefit the Settlement Class. He came forward to initiate this action against his employer and the nation’s largest retailer. Thereafter Braden remained in close contact with Lead Counsel. He provided documents and information; responded to document requests and interrogatories; traveled to meetings with Lead Counsel; attended the argument before the Eighth Circuit Court of Appeals in St. Louis; began preparing for his deposition; reviewed and approved pleadings; and participated extensively in the settlement process by consulting with Lead Counsel on the adequacy of Defendants’ settlement proposals, participating in two separate full-day mediation sessions by phone and consulting frequently with Lead Counsel in connection with the many subsequent discussions that were necessary to negotiate with Defendants the substantial injunctive relief obtained in the Settlement. He devoted a considerable amount of time to help the Settlement Class prevail on behalf of the Plan over the nearly four years this litigation spanned. We ask the Court to recognize his efforts by awarding him a case contribution award in the amount of $20,000.
198. The Class Notice and Summary Notice disclosed that the Named Plaintiff would seek an award of up to $20,000 for his initiation of and efforts in the litigation. No objection to the proposed award has been received to date.
199. We therefore believe that payment of the case contribution award to Named
Plaintiff Jeremy Braden is well-deserved and wholly appropriate given the effort he devoted to this case.
Case 6:08-cv-03109-GAF Document46 239 Filed 02/03/12 Page 49 of 51 XI. CONCLUSION
200. For the reasons discussed herein, the Settlement is a fair, adequate, and reasonable resolution of the claims in this complex and hard-fought ERISA class action. The requested fees, expenses, and case contribution award are well-warranted. Thus, Braden, Lead Counsel, and additional Plaintiff’s Counsel respectfully request that the Court grant their motions in their entirety.
201. A Proposed Final Order and Judgment is attached hereto as Exhibit G.
I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct.
EXECUTED this 3rd day of February, 2012 at Seattle, Washington.
/s/ Lynn Lincoln Sarko Lynn Lincoln Sarko
Case 6:08-cv-03109-GAF Document47 239 Filed 02/03/12 Page 50 of 51 CERTIFICATE OF SERVICE
I hereby certify that on February 3, 2012, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which sent notification of such filing to the following: Paul Ondrasik, Morgan D. Hodgson, Eric Serron, Katherine R. Sinatra, William C.
Martucci, Richard N. Bien, James Moloney, Robyn L. Anderson, Shannon Barrett, Kristen A.
Page, William R. Robb, Edward H. Siedle and Robert N. Eccles. There are no non CM/ECF participants.
DATED this 3rd day of February, 2012.
/s/ Lynn Lincoln Sarko Lynn Lincoln Sarko
Case 6:08-cv-03109-GAF Document48 239 Filed 02/03/12 Page 51 of 51 EXHIBIT A
Case 6:08-cv-03109-GAF Document 239-1 Filed 02/03/12 Page 1 of 3 WAL-MART EXCESSIVE FEES LITIGATION FEE REPORT
FIRM NAME: Keller Rohrback LLP
REPORTING PERIOD: Inception - February 03, 2012
Hours Rate Lodestar Attorney: James Bloom 13.1 $350$ 4,585.00 Eric Fierro 114.50 $400$ 45,800.00 Gretchen Freeman-Cappio 696.05 $600$ 417,630.00 Laura Gerber 5.25 $480$ 2,520.00 Gary Gotto 11.70 $700$ 8,190.00 Ben Gould 245.20 $465$ 114,018.00 Meredith Gray 339.90 $250$ 84,975.00 Mark Griffin 1.20 $700$ 840.00 Ron Kilgard 28.60 $700$ 20,020.00 Sarah Kimberly 5.75 $460$ 2,645.00 Tana Lin 191.20 $625$ 119,500.00 Derek Loeser 684.00 $700$ 478,800.00 Gretchen Obrist 2649.90 $475$ 1,258,702.50 David Preminger 3.80 $700$ 2,660.00 Erin Riley 3.50 $550$ 1,925.00 Mark D. Samson 0.50 $700$ 350.00 Lynn Lincoln Sarko 511.85 $785$ 401,802.25 Margaret Wetherald 15.80 $660$ 10,428.00 Harry J. Williams IV 49.30 $495$ 24,403.50 Amy Williams-Derry 0.50 $625$ 312.50 Michael Woerner 585.35 $660$ 386,331.00 Subtotal 6,156.95 $ 3,386,437.75
Professionals: Lauren Arnaud 58.10 $225$ 13,072.50 Elise Bigley 42.00 $200$ 8,400.00 Jason Dillman 1370.70 $225$ 308,407.50 Ben Ellis 85.80 $195$ 16,731.00 Charlene Engle 1.00 $205$ 205.00 Laura Finely 15.90 $200$ 3,180.00 Erin Foran 2.75 $185$ 508.75 Holly Gale 8.20 $185$ 1,517.00 Mark Gangl 1.16 $200$ 232.00 Stephanie Gardner 15.00 $200$ 3,000.00 Mary Garner 2.20 $200$ 440.00 Kaarin Hect 6.00 $200$ 1,200.00 Anne Hertel 17.50 $200$ 3,500.00 Jennifer Hill 2.50 $225$ 562.50 Cathy Hopkins 0.30 $200$ 60.00 Erin Hoffrance 6.30 $200$ 1,260.00 Anne Kent 351.40 $180$ 63,252.00 David A. Maas 107.80 $147$ 15,846.60 David Maas 2.00 $200$ 400.00
Case 6:08-cv-03109-GAF Document 239-1 Filed 02/03/12 Page 2 of 3 Melissa L. LeClaire Madsen 0.50 $200$ 100.00 Robert McFadden 1.80 $225$ 405.00 Allison Menozzi 11.50 $185$ 2,127.50 Mary K Montgomery 0.50 $250$ 125.00 Corynn Neevel 19.90 $200$ 3,980.00 Alicia Novak 83.00 $200$ 16,600.00 Lindsay N. Pearson 18.50 $200$ 3,700.00 Melanie Pugh 11.00 $200$ 2,200.00 Rachel Roberts 30.50 $200$ 6,100.00 Brian Schiewe 5.70 $205$ 1,168.50 Milana Shenderovich 6.10 $200$ 1,220.00 Katie M. Sifferman 0.50 $200$ 100.00 James P. St. Peter 3.75 $195$ 731.25 Natalie Stephenson 48.60 $225$ 10,935.00 Christopher Tin 3.25 $210$ 682.50 Jennifer Tuato'o 142.00 $250$ 35,500.00 Graham VanLeuven 5.40 $250$ 1,350.00 Hilary Vargas 0.20 $147$ 29.40 Nicholas N. Wallace 15.90 $200$ 3,180.00 RoxAnn Ward 2.50 $200$ 500.00 Ben R. Watson 3.50 $200$ 700.00 Joanne Wedemeyer 5.70 $215$ 1,225.50 Julie Wilchins 113.50 $300$ 34,050.00 Subtotal 2,630.41 $ 568,484.50
TOTAL 8,787.36$ 3,954,922.25
Case 6:08-cv-03109-GAF Document 239-1 Filed 02/03/12 Page 3 of 3 EXHIBIT B
Case 6:08-cv-03109-GAF Document 239-2 Filed 02/03/12 Page 1 of 2 WAL-MART EXCESSIVE FEES LITIGATION EXPENSE REPORT
FIRM NAME: Keller Rohrback LLP
REPORTING PERIOD: Inception - February 03, 2012
Description Amount
Travel (Air fare, ground travel, meals, lodging)$ 42,485.43 Telephone/Facsimile $ 935.69 Postage/Express Delivery$ 4,296.18 Commercial Copies $ 5,627.05 Internal Document Printing & Copying$ 11,682.10 Experts/Consultants $ 44,311.09 Court Fees $ 1,705.00 Court Reporters/Transcripts/Videographers$ 19,126.65 Mediation Services $ 31,033.93 Process Services $ 2,504.00 Concordance $ 11,098.63 Computer Research $ 34,828.59 Class Communication/Publication$ 19,737.35 Miscellaneous Case Supplies $ 581.11
Total $ 229,952.80
Case 6:08-cv-03109-GAF Document 239-2 Filed 02/03/12 Page 2 of 2 EXHIBIT C
Case 6:08-cv-03109-GAF Document 239-3 Filed 02/03/12 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION
JEREMY BRADEN, individually and on behalf ) of all others similarly situated, ) Case No. 6:08-cv-3109-GAF ) Plaintiff; ) Hon. Gary A. Fenner ) v. ) CLASS ACTION ) WAL-MART STORES, INC., et al., ) ) Defendants. )
PLAN OF ALLOCATION 1
1. The Parties agreed to the Settlement of this Action for total cash payments by the
Wal-Mart Defendants and Merrill Lynch Defendants in the amount of $13.5 million, the
Settlement Amount. This Plan of Allocation describes how the Net Proceeds, that is, the
Settlement Fund plus interest earned thereon minus (1) the expense of Class Notice,
(2) attorneys’ fees, expenses, and costs, (3) Class Plaintiff case contribution award, (4) taxes, and
(5) the expenses, if any, of Settlement administration, will be allocated for the benefit of Plan participants.
A. Summary
2. The primary purpose and function of this Plan of Allocation is to reduce and
offset expenses and administration fees charged to the Plan going forward, which will reduce the
amount of fees that otherwise would be charged to individual Plan participant accounts. The Net
Proceeds of the Settlement Fund Amount will be paid directly to a Plan account to be used by the
1 Capitalized terms not otherwise defined in this Order shall have the same meaning ascribed to them in the Settlement Agreement, filed as Exhibit A to the Declaration of Derek W. Loeser in Support of Plaintiff’s Unopposed Motion for an Order Preliminarily Approving Class Action Settlement, Conditionally Certifying Settlement Class, Directing Distribution of Class Notice, Appointing Class Counsel and Class Representative, and Setting Hearing for Final Approval of Class Action Settlement (Dkt. No. 229).
Case 6:08-cv-03109-GAF Document1 239-3 Filed 02/03/12 Page 2 of 6 Plan in the Plan Year in which they are deposited or in the immediately succeeding Plan Year to
pay certain Plan expenses and administration fees charged to the Plan until the Net Proceeds are
exhausted. Any amounts not used to reduce Plan expenses by the end of the Plan Year
immediately succeeding the year in which they were deposited in the Plan account will be
allocated to individual participant accounts on a per capita basis. The Net Proceeds will be
applied on a going-forward basis, and will not be applied to reduce and offset fees already
charged to any individual participant accounts. No cash payments from the Net Proceeds will be
made to members of the Settlement Class.
B. Method of Allocation
3. After payment of expenses set forth in paragraph 1, the Net Proceeds shall be deposited into a “Settlement Proceeds Account,” to be held in trust by the Plan fiduciaries and to be disbursed as set forth below.
4. In the Plan year in which Net Proceeds are deposited into the Settlement Proceeds
Account, the Plan fiduciaries shall first exhaust any funds available for payment of the expenses
and administration fees charged by the Plan in the Plan’s Forfeiture Suspense Account, as
provided by Section 4.7 of the Plan. If the Forfeiture Suspense Account application does not
fully offset expenses and administration fees, the Plan fiduciaries shall apply funds in the
Settlement Proceeds Account to expenses and administration fees charged to the Plan during that
Plan year. Any Net Proceeds remaining in the Settlement Proceeds Account after payment of the
Plan expenses and administration fees will be held by the Plan fiduciaries in the Settlement
Proceeds Account to be applied to expenses and administration fees charged to the Plan in the
Plan year immediately succeeding the year in which they were deposited. However, if expenses
and administration fees charged to the Plan exceed the Net Proceeds, the Plan fiduciaries shall
apply the entire contents of Net Proceeds Account to the expenses and administration fees before
Case 6:08-cv-03109-GAF Document2 239-3 Filed 02/03/12 Page 3 of 6 assessing the remaining expenses and administration fees against individual Plan participant accounts as they ordinarily would do under Section 4.7 of the Plan.
5. In the Plan year immediately succeeding the year in which the Net Proceeds are deposited in the Settlement Proceeds Account, the Plan fiduciaries shall first exhaust any funds available for payment of the expenses and administration fees charged by the Plan in the Plan’s
Forfeiture Suspense Account, as provided by Section 4.7 of the Plan. If the Forfeiture Suspense
Account application does not fully offset expenses and administration fees, the Plan fiduciaries shall apply funds in the Settlement Proceeds Account to expenses and administration fees charged to the Plan during that Plan year. If expenses and administration fees charged to the
Plan exceed the Net Proceeds, the Plan fiduciaries shall apply the entire remaining contents of the Settlement Proceeds Account to the expenses and administration fees before assessing the remaining expenses and administration fees against individual Plan participant accounts as they ordinarily would do under Section 4.7 of the Plan. Any Net Proceeds not used to pay the expenses and administration fees charged to the Plan in the Plan year immediately succeeding the year in they were deposited in the Settlement Proceeds Account will be allocated to individual participant accounts on a per capita basis or, if a per capita allocation is not feasible for mathematical or cost reasons, allocated as determined by the Retirement Plans Committee.
C. Administration of Allocation
6. Costs of implementation of the Plan of Allocation shall be paid from the Net
Proceeds. The Parties do not contemplate that implementation will cause the Trustee or recordkeeper to perform any services beyond those the Trustee or recordkeeper is already obligated to perform as Trustee and recordkeeper of the Plan.
7. If the Plan of Allocation requires additional services (i.e. , services beyond those the Trustee or recordkeeper is already obligated to perform as Trustee and recordkeeper of the
Case 6:08-cv-03109-GAF Document3 239-3 Filed 02/03/12 Page 4 of 6 Plan) to implement the terms of the Plan of Allocation, the Trustee or recordkeeper will be
entitled to reasonable compensation for performing such additional services. However, such
additional services shall be performed by the Trustee or recordkeeper only after approval by an
authorized Plan fiduciary of both the services to be performed and the terms of the Trustee’s or
recordkeeper’s compensation for those services, as set forth in the Settlement Agreement, § 8.2.
8. Implementation of the Plan of Allocation involves two tasks: payments from the
Settlement Proceeds Account to offset Plan expenses and administration fees, and, in the event
that the Settlement Proceeds Account is not exhausted by the end of the Plan year immediately
succeeding the year in which the Net Proceeds are deposited in the Settlement Proceeds Account,
allocation of remaining Net Proceeds to the existing individual participant accounts on a per
capita basis, as described below:
a. The Plan of Allocation contemplates the following disbursements from the
Settlement Proceeds Account: (1) disbursements during the Plan year in which the Net Proceeds are deposited in the Settlement Proceeds Account in payment of the expenses and administration fees charged to the Plan; (2) disbursements during the Plan year immediately succeeding the year in which they were deposited in the Settlement Proceeds Account in payment of the expenses and administration fees charged to the Plan; and (3) if disbursements from (1) and (2) above do not exhaust the Settlement Proceeds Account, allocation of any remaining Net Proceeds to the existing individual participant accounts on a per capita basis.
b. If the expenses and administration fees charged to the Plan exceed the amount in the Settlement Proceeds Account in the Plan year in which they are deposited or in the immediately succeeding Plan year, the expenses and administration fees not reduced or offset
Case 6:08-cv-03109-GAF Document4 239-3 Filed 02/03/12 Page 5 of 6 will be assessed against individual participant accounts, in the same manner as Plan expenses and administration fees are assessed under the normal operation of the Plan.
Case 6:08-cv-03109-GAF Document5 239-3 Filed 02/03/12 Page 6 of 6 EXHIBIT D
Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 1 of 33 ERISA LITIGATION GROUP
Keller Rohrback L.L.P.—Seattle Keller Rohrback L.L.P.—New York 1201 Third Avenue, Suite 3200 770 Broadway, 2nd Floor Seattle, Washington 98101-3052 New York, New York 10003 Telephone: (206) 623-1900 Telephone: (646) 495-6198
Keller Rohrback P.L.C.—Phoenix Keller Rohrback L.L.P.—Santa Barbara 3101 North Central Avenue, Suite 1400 1129 State Street, Suite 8 Phoenix, Arizona 85012 Santa Barbara, CA 93101 Telephone: (602) 248-0088 Telephone: (805) 456-1496 www.ERISAfraud.com www.krcomplexlit.com
Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 2 of 33 ERISA LITIGATION GROUP
LEADERS IN ERISA CLASS ACTION LITIGATION KELLER ROHRBACK is one of the nation’s leading law Founded in 1919, today Keller firms committed to helping employees and retirees protect Rohrback has 60 attorneys and 84 their retirement savings and welfare medical and disability staff members who provide expert benefits under the Employee Retirement Income Security legal services to our clients Act of 1974, as amended (“ERISA”). nationwide. We use cutting-edge
technology and case management Keller Rohrback helped pioneer the development of breach of fiduciary duty law under ERISA and is a nationally techniques in the preparation and recognized leader in this area. Our efforts have resulted in trial of complex cases. Our excellent numerous published decisions upholding plaintiffs’ ERISA support staff includes in-house claims, granting class certification, and approving several programming personnel and multi-million dollar settlements. To date, Keller Rohrback experienced paralegals who has recovered monetary and equitable relief valued at over contribute significantly to our ability $1 billion for employees and retirees. to effectively and efficiently litigate complex class action cases Based on our extensive ERISA experience, Keller nationwide. The firm’s ERISA Rohrback’s attorneys are frequently invited to speak at Litigation Group regularly calls on ERISA continuing legal education seminars and firm attorneys in other practice areas conferences and have written numerous ERISA-related amicus briefs and articles. for expertise in bankruptcy, contracts, employment law, As a full-service law firm, Keller Rohrback regularly advises executive compensation, corporate employees, retirees, health care subscribers, businesses, transactions, financial institutions, and independent fiduciaries concerning their rights and insurance coverage, mergers and duties under ERISA. acquisitions, professional malpractice, and securities Federal courts throughout the country have recognized transactions. The firm’s in-house Keller Rohrback’s qualifications to vigorously pursue ERISA access to these resources class action claims. Thus, Keller Rohrback has served in a distinguishes Keller Rohrback from leadership position in almost every major ERISA breach of other class action firms and also fiduciary duty case involving 401(k) and ESOP plans, contributes to the firm’s success. including ERISA litigation against the following corporations:
• AIG • Global Crossing • Polaroid • Bear Stearns Cos. Inc. • Goodyear Tire & Rubber Co. • Providian • Beazer Homes USA • HealthSouth • Regions Financial Corp. • BellSouth • Household International • Southern Company • CIGNA • IndyMac • State Street • CMS Energy • Krispy Kreme Doughnut • Syncor • Colonial BancGroup, Inc. • Lucent Technologies • Visteon • Countrywide Financial • Marsh & McLennan • Wachovia Corp. • Delphi • Merck • Washington Mutual, Inc. • Dynegy • Merrill Lynch • Williams Companies • Enron • Mirant • WorldCom • Fremont General Corp. • Pfizer • Xerox
Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 3 of 33 ERISA LITIGATION GROUP
ERISA 401(k) and ESOP Cases
Keller Rohrback is proud to have an unparalleled track record of assisting our clients to allege highly technical claims, including the following: (1) failure to prudently and loyally manage the plan and plan assets; (2) failure to provide complete and accurate information regarding company stock to plan participants; and (3) failure to prudently monitor plan fiduciaries. We are honored that courts nationwide have repeatedly praised Keller Rohrback’s leadership and successful results in this highly complex and rapidly developing area of law.
“[Keller Rohrback] has performed an important public service in this action and has done so efficiently and with integrity . . . [Keller Rohrback] has also worked creatively and diligently to obtain a settlement from WorldCom in the context of complex and difficult legal questions. . . . [Keller Rohrback] should be appropriately rewarded as an incentive for the further protection of employees and their pension plans not only in this litigation but in all ERISA actions.” In re WorldCom, Inc. ERISA Litig., 59 Fed. R. Serv. 3d 1170, 33 Empl. Benefits Cas. (BNA) 2291 (S.D.N.Y. Oct. 18, 2004).
“The Court finds that [Keller Rohrback] is experienced and qualified counsel who is generally able to conduct the litigation as Lead Counsel on behalf of the putative class. Keller Rohrback has significant experience in ERISA litigation, serving as Co-Lead Counsel in the Enron ERISA litigation, the Lucent ERISA litigation, and the Providian ERISA litigation, and experience in complex class action litigation in other areas of the law. Mr. Sarko’s presentation at the August 26, 2002 hearing before the Court evidences Keller Rohrback’s ability to adequately represent the class.” In re Williams Cos. ERISA Litig ., No. 02-153 (N.D. Okla. Oct. 28, 2002) (order appointing Lead Counsel).
"Keller Rohrback presents the most compelling case for appointment as interim lead class counsel based on . . . its extensive experience handling ERISA class actions. . . ." In Re Wachovia Corp. ERISA Litig. , No. 08-5320 (S.D.N.Y. Dec. 24, 2008).
2 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 4 of 33 ERISA LITIGATION GROUP
Pioneering ERISA 401(k) and ESOP Cases
In re Enron Corp. ERISA Litigation, MDL No. 1446 (S.D. Tex.). Keller Rohrback served as Co-Lead Counsel in this class action filed in the Southern District of Texas. On September 30, 2003, Judge Melinda Harmon denied defendants’ numerous motions to dismiss in a landmark decision that addressed in detail defendants’ obligations as ERISA fiduciaries, and upheld plaintiffs’ core ERISA claims. Plaintiffs achieved four partial settlements totaling more than $264 million in cash to the Enron plans against Enron directors, officers, and plan fiduciaries.
In re Lucent Technologies, Inc. ERISA Litigation , No. 01-03491 (D.N.J.). Keller Rohrback was appointed Co-Lead Counsel in this class action brought on behalf of participants and beneficiaries of the Lucent defined contribution plans that invested in Lucent stock. The complaint alleged that the defendants withheld and concealed material information from participants, thereby encouraging participants and beneficiaries to continue to make and to maintain substantial investments in company stock and the plans. The settlement provided for, among other relief, the payment of $69 million in cash and stock to the plan. Judge Joel Pisano approved the settlement on December 12, 2003.
Whetman v. IKON Office Solutions, Inc. , MDL No. 10-01318 (E.D. Pa.) The current wave of 401(k) company stock cases began with Whetman v. IKON Office Solutions, Inc. In a first-of-its-kind complaint, we alleged that company stock was an imprudent investment for the plan, that the fiduciaries of the plan failed to provide complete and accurate information concerning company stock to the participants, and that they failed to address their conflicts of interest. This case resulted in ground-breaking opinions in the ERISA 401(k) area of law on motions to dismiss, class certification, approval of securities settlements with a carve-out for ERISA claims, and approval of ERISA settlements.
In re WorldCom, Inc. ERISA Litigation , No. 02-04816 (S.D.N.Y.). Keller Rohrback served as Lead Counsel in this class action filed in the Southern District of New York on behalf of participants and beneficiaries of the WorldCom 401(k) Salary Savings Plan. On June 17, 2003, Judge Denise Cote denied in part defendants’ motions to dismiss and on October 4, 2004, granted plaintiffs’ motion for class certification. Settlements providing for injunctive relief and payments of over $48 million to the plan were approved on October 26, 2004 and November 21, 2005.
Groundbreaking ERISA 401(k) and ESOP Settlements
Keller Rohrback’s qualifications to lead ERISA 401(k) and ESOP class actions is nowhere more evident than in the highly favorable settlements it has achieved for the
3 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 5 of 33 ERISA LITIGATION GROUP benefit of employees in several of its nationally prominent cases. In addition to the Enron, Lucent, IKON, and WorldCom settlements discussed above, these settlements include:
In re AIG ERISA Litigation, No. 04-09387 (S.D.N.Y.). On December 12, 2006, the late Judge John E. Sprizzo denied defendants’ motion to dismiss. On October 8, 2008, Judge Kevin T. Duffy, for Judge Sprizzo, issued final approval of the $25 million settlement negotiated by the parties.
Alvidres v. Countrywide Financial Corp., No. 07-05810 (C.D. Cal.). On November 16, 2009, Judge John F. Walter granted final approval of the $55 million settlement.
In re Beazer Homes USA, Inc. ERISA Litigation, No. 07-00952 (N.D. Ga.). On November 15, 2010, Judge Richard W. Story granted final approval of the $5.5 million settlement.
In re BellSouth Corporation ERISA Litigation, No. 02-02440 (N.D. Ga.). On March 4, 2004, Judge J. Owen Forrester denied defendants’ motion to dismiss. On December 5, 2006, Judge Forrester approved a settlement that provided structural relief for the plans valued at up to $90 million, plus attorneys fees and costs.
Buus, et al. v. WaMu Pension Plan, et al., No. 07-00903 (W.D. Wash.). The parties to the litigation negotiated and executed a settlement agreement on June 29, 2010. On October 29, 2010, the Court held a fairness hearing and approved the settlement of $20 million as fair, reasonable and adequate, approved the notice and publication notice and method of dissemination of such notices, approved the application for attorneys’ fees and expenses, and approved the proposed plan of allocation and the case contribution awards for the Named Plaintiffs.
In re CMS Energy ERISA Litigation, No. 02-72834 (E.D. Mich.). On March 31, 2004, Judge George Caram Steeh denied defendants’ motions to dismiss. On December 27, 2004, Judge Steeh granted plantiffs’ motion for class certification and subsequently approved the $28 million settlement negotiated by the parties.
Cokenour v. Household International, Inc., No. 02-07921 (N.D. Ill.). On March 31, 2004, Judge Samuel Der-Yeghiayan denied, in part, defendants’ motions to dismiss. The case subsequently settled for $46.5 million in cash to the plan. The court approved the settlement on November 22, 2004.
In re Dynegy, Inc. ERISA Litigation , No. 02-03076 (S.D. Tex.). On March 5, 2004, the court denied, in part, defendants’ motions to dismiss. Subsequently, the parties reached a settlement that provided for the payment of $30.75 million in cash to the plan. On December 10, 2004, Judge Sim Lake approved the settlement.
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In re Fremont General Corporation Litigation , No. 07-02693 (C.D. Cal.). On August 17, 2007, Judge Florence-Marie Cooper appointed Keller Rohrback sole Interim Lead Counsel, and on May 29, 2008, Judge Cooper denied defendants’ motion to dismiss. The parties reached an agreement to settle the litigation for $21 million. On April 26, 2011, the Honorable Jacqueline Nguyen granted preliminary approval of the Stipulation and Agreement of Settlement. On August 10, 2011, Judge Nguyen granted final approval of the Settlement.
In re Global Crossing Ltd. ERISA Litigation , No. 02-07453 (S.D.N.Y.). The Global Crossing ERISA Litigation settlement provided for, among other relief, the payment of $79 million to the plan. Judge Gerard Lynch approved the settlement on November 10, 2004.
In re The Goodyear Tire & Rubber Company ERISA Litigation, No. 03-02180 (N.D. Ohio). On July 6, 2006, Judge John R. Adams denied defendants’ motions to dismiss. On October 22, 2008, the Court issued final approval of the $8.375 million settlement.
In re HealthSouth Corp. ERISA Litigation, No. 03-01700 (N.D. Ala.). On June 28, 2006, Judge Karon Bowdre approved a settlement in the amount of $28.875 million, with a possible additional $1 million from any HealthSouth recovery in the derivative action.
In re IndyMac ERISA Litigation , No. 08-04579 (C.D. Cal.). On January 19, 2011, Judge Dean Pregerson granted final approval of the $7 million settlement.
Lilly, et al. v. Oneida Ltd. Employee Benefits Admin. Committee, et al. , No. 07- 00340 (N.D.N.Y.). On May 8, 2008, Judge Neal P. McCurn issued an order in which he denied defendants’ motion to dismiss. On October 4, 2010, the Court granted approval of a $1.85 million settlement and entered an Order and Final Judgment.
In re Marsh ERISA Litigation, No. 04-8157, (S.D.N.Y.). On December 14, 2006, the Honorable Shirley Wohl Kram issued an order in which she granted in part and denied in part the defendants’ motions to dismiss. The parties subsequently reached a settlement in the amount of $35 million, which was approved by the Court on January 29, 2010.
In re Merck & Co., Inc. “ERISA” Litigation, MDL No. 1658 (D.N.J.). On July 11, 2006, the Honorable Stanley R. Chesler granted in part and denied in part defendants’ motions to dismiss. On February 9, 2009, the Court granted in part and denied in part plaintiffs’ motion for class certification. On November 29, 2011, Judge Chesler granted final approval of the $49.5 million settlement negotiated by the parties.
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In re Merrill Lynch & Co., Inc. Securities, Derivative & ERISA Litigation, No. 07- 10268 (S.D.N.Y.). On August 21, 2009, Judge Jed S. Rakoff granted final approval of the $75 million settlement in the ERISA action.
In re Mirant Corporation ERISA Litigation, No. 03-01027 (N.D. Ga.). On November 16, 2006, the Court approved the settlement, including a payment of $9.7 million in cash to the plan for losses suffered by the certified settlement class.
In re Polaroid ERISA Litigation, No. 03-08335 (S.D.N.Y.). On March 31, 2005, Judge William H. Pauley III granted in part and denied in part defendants’ motion to dismiss. On September 29, 2006, Judge Pauley granted plaintiffs’ motion for class certification. The parties subsequently reached a settlement in the amount of $15 million, which was approved by the Court on June 25, 2007.
In re Providian Financial Corp. ERISA Litigation, No. 01-05027 (N.D. Cal.). The Providian ERISA Litigation settlement provided for structural changes to the plan, as well as the payment of $8.6 million in cash to the plan. The Court approved the settlement on June 30, 2003.
Smith v. Krispy Kreme Doughnut Corporation, No. 05-06187 (M.D.N.C.). The Krispy Kreme ERISA Litigation settlement provided for structural changes to the plan, as well as the payment of $4.75 million in cash. On January 10, 2007, Judge William L. Osteen approved the settlement.
Spivey v. Southern Co., et al., No. 04-01912 (N.D. Ga.). On August 14, 2007, the Court granted final approval of the settlement, including a payment of $15 million in cash to the plan for losses suffered by the certified settlement class.
In re State Street Bank and Trust Co. ERISA Litigation , No. 07-08488 (S.D.N.Y.). On February 19, 2010, Judge Richard J. Holwell granted final approval of the $89.75 million settlement in the ERISA action.
In re Syncor ERISA Litigation, No. 03-02446 (C.D. Cal.). On August 23, 2004, Judge Baird denied, in part, defendants’ motions to dismiss. Judge Baird subsequently granted plaintiffs’ motion for class certification on March 28, 2005. The case settled, but was dismissed on summary judgment before the settlement could be approved. On February 19, 2008, the Ninth Circuit Court of Appeals reversed the district court’s decision and remanded the case for further proceedings consistent with the Court’s order. On October 22, 2008, Judge R. Gary Klausner granted final approval of the settlement, including a payment of $4 million in cash to the plan for losses suffered by the certified class.
In re Visteon Corporation ERISA Litigation, No. 05-71205 (E.D. Mich.). On March 9, 2007, Judge Avern Cohn approved a settlement in the amount of $7.6 million. 6 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 8 of 33 ERISA LITIGATION GROUP
In re Wachovia Corp. ERISA Litigation , No. 09-00262 (W.D.N.C.). On October 24, 2011, the Honorable Martin Reidinger granted final approval of the $12.35 million settlement.
In re Washington Mutual, Inc. ERISA Litigation, No. 07-01874 (W.D. Wash.). On January 7, 2011, the Honorable Marsha J. Pechman granted final approval of the $49 million settlement in the ERISA action.
In re Williams Companies ERISA Litigation, No. 02-00153 (N.D. Okla.). On November 16, 2005, the Court approved the settlement for $55 million in cash, plus equitable relief in the form of a covenant that Williams will not take any action to amend the plan to (i) reduce the employer match thereunder below four percent prior to January 1, 2011, or (ii) require that the employer match be restricted in company stock prior to January 1, 2011.
In re Xerox Corporation ERISA Litigation, No. 02-01138 (D. Conn.). Since 2007, Judge Alvin Thompson has issued two opinions denying in significant part defendants’ motions to dismiss. On April 14, 2009, Judge Thompson approved the $51 million settlement negotiated by the parties.
Pending ERISA Cases
In addition to the cases listed above, Keller Rohrback has been appointed to a leadership position in numerous other ongoing ERISA 401(k) and ESOP class actions. Through these cases, Keller Rohrback has again and again demonstrated its expertise in ERISA law, and its ability to vigorously, creatively, and successfully pursue employees’ rights under ERISA. Keller Rohrback’s leading role in the development of this law is unique and distinguishes the firm from any other in the country. Notable pending cases include:
In re American International Group, Inc. ERISA Litigation II, No. 08-05722 (S.D.N.Y.). On March 19, 2009, Keller Rohrback was appointed Interim Co-Lead Counsel to represent the proposed class of participants and beneficiaries of the AIG Incentive Savings Plan. On March 31, 2011, Judge Laura Taylor Swain denied in large part defendants’ motion to dismiss.
In re Bear Stearns Cos., Inc. ERISA Litigation , No. 08-02804 (S.D.N.Y.). On December 29, 2008, Keller Rohrback was appointed Interim Co-Lead Counsel to represent the proposed class of participants and beneficiaries of The Bear Stearns Cos. Inc. Employee Stock Ownership Plan. On April 20, 2009, Co-Lead Counsel filed an amended consolidated complaint. On January 9, 2011, the Court granted defendants' motion to dismiss. Plaintiffs filed an appeal, and on September 13, 2011, the Court granted Plaintiffs' motion to alter or amend the January 19 order. Plaintiffs filed a second amended consolidated complaint on September 26, 2011. 7 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 9 of 33 ERISA LITIGATION GROUP
In re Colonial BancGroup, Inc. ERISA Litigation, No. 09-00792 (M.D. Ala.). On November 24, 2009, Judge Myron H. Thompson consolidated the related ERISA actions and appointed Keller Rohrback Interim Co-Lead Counsel. On January 11, 2010, plaintiffs field an amended consolidated complaint.
In re Pfizer ERISA Litigation, MDL No. 1688 (S.D.N.Y.). On October 21, 2005, the Court appointed Keller Rohrback as sole Interim Lead Counsel. A consolidated class action complaint was filed on June 5, 2006. On March 20, 2009, the Honorable Laura T. Swain issued an order in which she denied in large part defendants’ motion to dismiss.
In re Regions Morgan Keegan ERISA Litigation, No. 08-2192 (W.D. Tenn.). On October 8, 2008, the Honorable Samuel H. Mays, Jr. consolidated the various pending ERISA cases and appointed Keller Rohrback L.L.P. as Interim Co-Lead Counsel. On March 9, 2010, Judge Mays denied defendants’ motions to dismiss on all disputed counts of plaintiffs’ consolidated complaint, and scheduled the case for trial in 2013. On May 20, 2011, plaintiffs filed their Third Amended Consolidated Class Action Complaint for Violation of ERISA.
Representative Securities Fraud Cases
In addition to its work in the ERISA arena, Keller Rohrback also has served as Lead or Co-Lead Counsel in a number of securities fraud class action cases where it has represented purchasers of securities.
In re 2TheMart.com, Inc. Securities Litigation, No. 99-01127 (C.D. Cal.). Keller Rohrback served as Co-Lead Counsel in this securities fraud class action filed in the Central District of California, Southern Division. The class achieved settlements totaling $2.7 million.
In re Anicom, Inc. Securities Litigation, No. 00-04391 (N.D. Ill.). Keller Rohrback was one of three counsel representing the State of Wisconsin Investment Board in this securities fraud class action. Counsel achieved settlements on behalf of the class and other parties in excess of $39 million, including a payment of $12.4 million directly from one of the named defendants, described as “one of the largest payments obtained in connection with allegations of securities and accounting fraud in recent times.” In all, over 80% of the total recovery was obtained from sources other than Anicom’s insurance policy.
In re Apple, Inc. Derivative Litigation, No. 06-04128 (N.D. Cal.). Keller Rohrback served on the Plaintiffs’ Management Committee in the federal derivative shareholder action against nominal defendant Apple Computer, Inc. and current and former officers and members of Apple’s Board of Directors. Plaintiffs alleged, among other things,
8 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 10 of 33 ERISA LITIGATION GROUP breach of fiduciary duty, unjust enrichment, and gross mismanagement arising from the practice of backdating stock options granted between 1993 and 2001, which practice diverted millions of dollars of corporate assets to Apple executives. Counsel achieved a settlement that awarded $14 million to Plaintiffs—one of the largest cash recoveries in a stock backdating case—and required Apple to adopt a series of unique and industry-leading corporate enhancements.
In re Foundry Networks, Inc. Derivative Litigation, No. 06-05598 (N.D. Cal.). Keller Rohrback was appointed Co-Lead Counsel in this federal derivative shareholder action against nominal defendant Foundry Networks, Inc., and current and former officers and members of Foundry’s Board of Directors. Plaintiffs alleged, among other things, breach of fiduciary duty, unjust enrichment, and gross mismanagement arising from the practice of backdating stock options granted between 2000 and 2003, diverting millions of dollars of corporate assets to Foundry executives. On February 20, 2009, the Court entered an order approving settlement.
Getty, et al. v. Harmon, et al., No. 98-00178 (W.D. Wash.). Keller Rohrback served as Lead Counsel in this securities fraud action filed in Western Washington federal court involving a “Ponzi” scheme. Plaintiffs allege that at least one key person responsible for this scheme was affiliated with SunAmerica Securities, which knew or should have known that securities laws were being violated. The class achieved settlements totaling $7 million.
In re IKON Office Solutions, Inc. Securities Litigation, MDL No. 10-01318 (E.D. Pa.). Keller Rohrback served as Co-Lead Counsel representing the City of Philadelphia and eight other lead plaintiffs in this certified class action alleging securities fraud. Class Counsel achieved the highest securities fraud settlement in the history of the Court by settling with defendant IKON Office Solutions, Inc. for $111 million. At that time, the settlement was listed as one of the “largest settlements in class-action securities-fraud lawsuits since Congress reformed securities litigation in 1995” by USA Today .
Lasky v. Brown, et al. (United Companies Financial Corp. Securities Litigation), No. 99-01035 (M.D. Fla.). Keller Rohrback served as Co-Lead Counsel in this class action lawsuit filed in the Middle District of Louisiana, on behalf of individual shareholders who purchased or otherwise acquired equity securities in United Companies Financial Corporation between April 30, 1998 and February 2, 1999, inclusive. The class recovered $20.5 million in settlements.
In re Scientific-Atlanta, Inc. Securities Litigation, No. 01-01950 (N.D. Ga.). Keller Rohrback serves as Co-Lead Counsel in this case, in which plaintiffs allege that defendants engaged in a course of fraudulent conduct by misrepresenting and omitting material information pertaining to Scientific-Atlanta’s financial results and by engaging
9 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 11 of 33 ERISA LITIGATION GROUP in extensive channel stuffing in order to enable the company to meet its stated earnings expectations.
In re WorldPort Comm., Inc., et al., No. 99-01817 (N.D. Ga.). This shareholder class action was brought in Georgia federal court alleging securities fraud. Parties in this case reached a $5.1 million settlement.
Other Representative Cases
In re Carpet Antitrust Litigation, No. 95-00193 (N.D. Ga.). This case was filed in the Northern District of Georgia and resulted in a $50 million settlement. United States District Judge Harold L. Murphy stated that the attorneys’ "efforts in this case to date have demonstrated their great skill and ability" and that "the Court’s own observations of Plaintiffs’ counsel support a determination that Plaintiffs’ counsel are highly reputable and responsible attorneys."
In re Commercial Tissue Products Antitrust Litigation, MDL No. 97-01189 (N.D. Fla.). This antitrust case involved allegations of a nationwide price-fixing conspiracy among the major manufacturers of facial tissue, toilet paper, paper towels, and related paper products used in “away from home” settings, such as office buildings, hotels, restaurants, and schools. Parties entered into a settlement agreement valued at $56.2 million in cash and coupons.
Cox, et al. v. Microsoft Corp., et al., MDL No. 00-01332 (D. Md.). Keller Rohrback served on the Executive Committee of Plaintiffs’ Counsel in this class action challenging Microsoft’s monopolistic practices. A class of direct purchasers of operating system software achieved a settlement of $10.5 million in the United States District Court for the District of Maryland.
In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, MDL No. 2:16-1203 (E.D. Pa.). These cases involved numerous plaintiffs in Washington and other states who were seeking medical monitoring and/or personal injury compensation in relation to their ingestion of the prescription diet drugs Pondimin and Phentermine (i.e., Fen-Phen) or Redux. Keller Rohrback served as class counsel for a certified medical monitoring class of Washington patients who ingested these diet drugs. In addition, the federal court judge in Philadelphia who supervised the national settlement and litigation appointed Lynn Lincoln Sarko, Keller Rohrback’s managing partner, to serve as a member of the MDL 1203 Plaintiffs’ State Liaison Counsel Committee. Keller Rohrback has represented numerous plaintiffs in pursuing individual personal injury claims through the American Home Products’ Nationwide Class Action Diet Drug Settlement or through individual lawsuits brought in state or federal courts.
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Erickson v. Bartell Drug Co., No. 00-1213 (W.D. Wash.). Keller Rohrback was proud to represent the plaintiff class in the landmark opinion issued in this case. Judge Robert Lasnik held that when an otherwise extensive health plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a “gaping hole in the coverage offered to female employees, leaving a fundamental and immediate healthcare need uncovered. . . . Title VII requires employers to recognize the differences between the sexes and provide equally comprehensive coverage, even if that means providing additional benefits to cover women-only expenses.” Erickson v. Bartell Drug Co .,141 F. Supp. 2d 1266, 1277 (W.D. Wash. 2001). This monumental decision has paved the way for implementation of non-discriminatory prescription coverage in employee benefit plans nationwide.
In re the Exxon Valdez, No. 89-00095 (D. Alaska). Keller Rohrback represented fishermen, Alaska natives, municipalities, and other injured plaintiffs in this mass tort lawsuit arising out of the March 24, 1989, oil spill in Prince William Sound, Alaska. After a three-month jury trial, plaintiffs obtained a judgment of $5 billion in punitive damages—at the time the largest punitive damages verdict in U.S. history. Keller Rohrback played a leadership role during discovery and at trial, and was chosen to serve as administrator of both the Alyeska and Exxon Qualified Settlement Funds. The amount of punitive damages was subsequently reduced by the United States Supreme Court to $507.5 million, upon which interest was added. Keller Rohrback is currently distributing the punitive damages and interest via the Exxon Qualified Settlement Fund.
Ferko, et al. v. NASCAR, No. 02-00050 (E.D. Tex.). Keller Rohrback was counsel for plaintiff in a lawsuit that charged NASCAR with breach of contract, unlawful monopolization, and of conspiring with International Speedway Corporation ("ISC") to restrain trade in violation of the antitrust laws. Keller Rohrback represented the shareholders of Speedway Motorsports, Inc. ("SMI"), a publicly traded company that owns six motorsports facilities, including Texas Motor Speedway ("TMS"). In May 2004, the parties reached a settlement agreement, pursuant to which, among other things, ISC sold North Carolina Speedway to SMI for $100.4 million and NASCAR sanctioned the Nextel Cup Series race previously hosted by Rockingham at TMS in the 2005 season. The settlement was approved by the United States District Court for the Eastern District of Texas.
Lawrence, et al. v. Phillip Morris Co., et al., No. 94-01494 (E.D.N.Y.). This shareholder class action was brought in New York federal court alleging misrepresentations regarding various inventory and trade loading practices used to distort the timing of sales. This case was settled as part of a $115 million settlement.
In re Linerboard Antitrust Litigation, MDL No. 1261 (E.D. Pa.). The class actions in this litigation were resolved with the recovery of more than $202 million for the benefit of a class of businesses that purchased corrugated boxes and sheets.
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In re Monosodium Glutamate Antitrust Litigation, MDL No. 00-01328 (D. Minn.). Keller Rohrback represented the plaintiff class in this case in the United States District Court for the District of Minnesota. Over $123 million was recovered for the benefit of a class of businesses which purchased food flavor enhancers from suppliers in the U.S., Japan, Korea, and Taiwan. Businesses that participated in the recovery received nearly 200% of the amounts they were overcharged.
Rosted, et al. v. First USA Bank, No. 97-01482 (W.D. Wash.). This class action was filed on behalf of owners of credit cards issued by First USA Bank who signed up for “introductory rate” credit cards that were subject to false and deceptive “repricing.” A settlement in this class action resulted in an automatic depricing benefit of over $50 million, plus over $36 million in benefits from other settlement-related offers.
Salloway v. Malt-O-Meal Co., No. 27-98-008931 (Minn. Dist. Ct. 4th Cir.). This nationwide product liability class action arose out of a salmonella outbreak in the Malt- O-Meal plant in Northfield, Minnesota. It was brought on behalf of all people who became ill after eating cereal manufactured by Malt-O-Meal (under names such as “Toasty-Os”). A class settlement was granted final approval in this case filed in Hennepin County Court of Minnesota.
In re Vitamin Antitrust Litigation, MDL No. 1285 (D.D.C.). Keller Rohrback played an extensive role in trial preparation in this case, one of the largest and most successful antitrust cases in history. Chief Judge Thomas Hogan of the United States District Court for the District of Columbia certified two classes of businesses who directly purchased bulk vitamins and were overcharged as a result of a ten year global price- fixing and market allocation conspiracy. Through settlement and verdict, recoveries were achieved, including four major settlements between certain vitamin defendants and class plaintiffs. One landmark partial settlement totaled $1.1 billion.
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Lynn Lincoln Sarko Lynn Lincoln Sarko has been the managing partner of Keller Rohrback since 1991, where he leads the firm’s nationally recognized Complex Litigation Group. An accomplished trial lawyer, he regularly serves as lead counsel in multi-party and class action lawsuits involving ERISA, employee benefits, antitrust, and securities fraud claims. Mr. Sarko first came to Seattle for a federal clerkship and returned after serving as an Assistant U.S. Attorney for the District of Columbia. He has been appointed lead or co-lead counsel in some of the most important ERISA company stock cases, including Enron , WorldCom , and Global Crossing . Additionally, Mr. Sarko serves or has served as lead or co-lead counsel in numerous other ERISA 401(k) plan, ESOP, and cash balance cases, such as American International Group, Inc., Countrywide Financial Corp., Dell Inc. , Delphi Corp., Ford Motor Co., Fremont General Corp., Goodyear Tire & Rubber Co., ING, JPMorgan Chase & Co., Marsh & McLennan Cos., Inc., Merck & Co., Inc., Merrill Lynch & Co., Inc., Pfizer, Inc., Southern Co., State Street Bank & Trust Co., Wal-Mart Stores, Inc., Xerox Corp., BellSouth, Dynegy, Inc., HealthSouth, Household International, Lucent Technologies, Inc., Mirant Corp. , Polaroid, Williams Cos., Inc., and Visteon .
Mr. Sarko’s ERISA practice focuses on prosecuting matters raising sophisticated ESOP and 401(k) plan issues, including ERISA preemption, fiduciary breaches, imprudent investment of plan assets, blackout period and mapping violations, plan asset diversification, prohibited transactions, directed trustee duties, and ERISA § 404 (c) defenses. He regularly appears in federal courts across the country, maintaining an active national ERISA litigation practice.
In addition to his ERISA work, Mr. Sarko has prosecuted a variety of class action lawsuits involving high profile matters including the Exxon Valdez oil spill, Microsoft civil antitrust case, and Fen-Phen/Redux diet drug litigation, as well as notable civil rights cases such as Erickson v. Bartell Drug Co. , establishing a woman’s right to prescription contraceptive health coverage. Additionally, Mr. Sarko has litigated numerous complex cases involving financial and accounting fraud, which have included some of the nation’s largest accounting and investment firms.
Mr. Sarko received his undergraduate, business, and law degrees from the University of Wisconsin, where he served as the editor-in-chief of the law review and was selected by the faculty as the outstanding graduate of his law school class. Mr. Sarko is a featured speaker at many continuing education seminars and conferences nationwide. All other bios listed alphabetically
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Laurie Ashton Laurie Ashton is a member of Keller Rohrback P.L.C., based in Phoenix, Arizona. Her practice emphasizes bankruptcy, commercial, ERISA, and environmental litigation. Ms. Ashton has been very active in the Arizona State Bar, having served on the Ethics Committee for six years, and frequently lectures on bankruptcy issues and other matters. Additionally, Ms. Ashton has taught semester courses in Advanced Chapter 11 Bankruptcy and Lawyering Theory and Practice at the ASU College of Law, and for several years running, has been a guest lecturer on Chapter 11 at Harvard Law School. She is the co-author of Arizona Legal Forms: Limited Liability Companies and Partnerships , 1996-2002. Following law school Ms. Ashton served as law clerk for the Honorable Charles G. Case, U.S. Bankruptcy Court, for the District of Arizona for two years. Ms. Ashton graduated from Arizona State University College of Law, where she has twice returned as an Adjunct Professor to teach semester courses in Lawyering Theory and Practice and Advanced Chapter 11. Ms. Ashton is admitted to practice in Arizona and Colorado.
James A. Bloom James Bloom is based in Keller Rohrback’s Phoenix office. He practices in the firm’s nationally recognized complex liti- gation group, focusing on ERISA litigation, and has worked on many landmark ERISA cases including In re State Street Bank & Trust Co. ERISA Litigation and Johnson v. Couturier . James graduated cum laude from Washington University in St. Lous School of Law in 2008, where he was an executive editor of the Washington University Law Review. He earned a B.A. in History and Philosophy from Tulane University. James also worked in the Civil Justice Clinic at Washington Univer- sity, helping under-served individuals obtain needed legal services.
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Gretchen Freeman Cappio
As a member of Keller Rohrback’s Complex Litigation Group, Gretchen Cappio enjoys a diverse practice in the areas of consumer protection, ERISA, mutual funds, and employment litigation. She represents plaintiffs in several cutting-edge complex cases, including In re Mattel, Inc., 588 F. Supp. 2d 1111 (C.D. Cal. 2008) (allowing the majority of consumers’ claims related to lead-contaminated and hazardous magnetic toys to proceed), and Braden v. Wal-Mart Stores, Inc ., 588 F.3d 585 (8th Cir. 2009) (upholding plaintiff’s claims alleging that excessive fees associated with the Plan’s ten mutual funds resulted in losses of tens of millions of dollars in retirement savings, and that these funds—all retail off-the- shelf funds rather than lower-fee institutional class funds, most of which charged 12b-1 fees, and all of which paid revenue sharing to the Plan’s trustee—were selected as a result of a flawed process). Ms. Cappio serves on the Plaintiffs’ Steering Committee in In re: Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, MDL No. 1967 (W.D. Mo.), consumer litigation in which plaintiffs assert claims for breach of the implied warranty of merchantability, fraudulent and negligent omissions of material fact, and unjust enrichment against certain plastic bottle manufacturers. Ms. Cappio also represented plaintiffs in Erickson v. Bartell Drug Co. , 141 F. Supp. 2d 1266 (W.D. Wash. 2001), in which the Honorable Robert S. Lasnik ruled that an employer violated Title VII of the Civil Rights Act when its coverage failed to cover prescription contraceptives on an equal basis as to other prescription drugs. Ms. Cappio graduated from the University of Washington School of Law where she served as the Executive Comments Editor of The Pacific Rim Law & Policy Journal . She earned her B.A. degree magna cum laude from Dartmouth College, where she graduated Phi Beta Kappa and with honors. Ms. Cappio has been named a “Rising Star” three times by Washington Law and Politics in its annual review of the state’s legal professionals.
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T. David Copley David Copley enjoys the art of advocacy. His career has encompassed product liability defense work, civil rights litigation, real property disputes, employment law litigation and counseling, mass torts, antitrust, breach of fiduciary duty and ERISA, consumer protection, the preparation and trial of several class action cases, and numerous appeals including, most recently, In re Syncor ERISA Litigation . Mr. Copley graduated from Northwestern University School of Law, where he served as an editor of the Law Review . He earned his B.A. at the University of Iowa, with Distinction and Honors in Political Science and English. In 1985, Mr. Copley was honored as Trial Lawyer of the Year for his work on behalf of injured fishermen and other class members in In re the Exxon Valdez oil spill litigation. He is admitted to practice in the states of Washington and Arizona, in the United States District Courts of Western Washington, Eastern Washington, Arizona, the Northern District of California, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court.
Juli E. Farris Ms. Farris has been a member of Keller Rohrback L.L.P.'s
Complex Litigation group since 1991 and an instrumental part of the firm’s securities litigation class action practice since its inception. She has over fifteen years of experience litigating securities cases at the trial and appellate levels. Her practice also focuses on antitrust, ERISA fraud and other areas of financial misconduct. Ms. Farris also defends financial institutions and other clients in complex, multi-party federal court litigation. She is admitted to practice in Washington State, California and Washington, D.C. and in a variety of federal district and appellate courts. Before coming to Keller Rohrback, Ms. Farris practiced at Sidley & Austin, focusing on general and appellate litigation.
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Raymond J. Farrow Ray Farrow’s practice focuses on complex litigation with an emphasis on antitrust and consumer protection. Mr. Farrow has played a leading role litigating antitrust claims involving various Microsoft products, Thermus Aquaticus DNA Polymerase (“Taq”), NASCAR, Vitamins, Intel microprocessors, carbon black, and nurse compensation in various cities across the country. Mr. Farrow has also litigated claims for improperly withheld overtime in the various industries as well as state security claims arising from an alleged Ponzi scheme. Mr. Farrow graduated with high honors from the University of Washington School of Law, where he was articles editor of the Washington Law Review. Prior to law school, he was a member of the Economics faculty at Seattle University, the University of Washington, and Queen’s University in Ontario, Canada. Mr. Farrow holds graduate degrees in economics from the University of Essex (U.K.) and Princeton University. He currently serves as Chair of the Consumer Protection, Antitrust & Unfair Business Practices Section of the Washington State Bar Association. Mr. Farrow is licensed to practice in Washington State and numerous Federal Courts around the country
Eric J. Fierro Eric Fierro is based in Keller Rohrback’s Phoenix office and practices in the firm’s nationally recognized complex litigation group. He has broad experience in electronic discovery and litigation support matters. While attending law school in the evening, Mr. Fierro worked full-time for the U.S. Attorney’s Office for the District of Massachusetts. There he provided technical support for all criminal and civil units. In particular, Mr. Fierro supported the electronic discovery and trial con- sulting needs for the healthcare fraud, securities fraud, and other white collar crime units. He also worked as a part-time summer law clerk for the computer crime and intellectual property unit at the U.S. Attorney’s office. Before joining Kel- ler Rohrback, Mr. Fierro was a managing consultant with Huron Consulting Group, providing consultative services for complex electronic discovery and document review matters.
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Laura R. Gerber Laura R. Gerber joined Keller Rohrback in 2005 and practices in the firm’s nationally recognized complex litigation group where she handles a variety of cases in federal courts across the United States. Laura’s practice focuses on class actions and derivative cases, and ranges from ERISA breach of fiduciary duty cases to mutual fund excessive fee cases to consumer class actions concerning the safety of children’s products . Laura graduated from the University of Washington School of Law in 2003. While in law school, she concurrently received an M.P.A. degree from the Daniel J. Evans School of Public Affairs at the University of Washington and was a member of the Moot Court Honor Board.
Gary Gotto Gary Gotto is a member of Keller Rohrback P.L.C., based in Phoenix, Arizona. Since joining the firm's Complex Litigation Group in 2002, Mr. Gotto has held leadership positions in many matters of national prominence involving claims of financial misconduct and fiduciary imprudence, including class action litigation involving Enron, Xerox Corp., Merrill Lynch, Delphi, CMS Energy Corp., Dynegy, Global Crossing, WorldCom, IKON Office Solutions, State Street Bank & Trust, and Principal Financial Group. The aggregate recoveries for our clients in these matters exceeds $650 million. He has currently involved in several matters involving claims of negligence or fraud involving mortgage-backed securities and other financial products. In his nearly thirty year career, Mr. Gotto has had extensive experience in securities and financial matters, both from a compliance and litigation perspective. Mr. Gotto also has substantial experience with complex Chapter 11 bankruptcy matters, which has proven invaluable in cases in which defendants are also debtors in bankruptcy. He chaired the Arizona State Bar Subcommittee on Revising the Limited Partnership Act and co- authored Arizona Legal Forms: Limited Liability Companies and Partnerships. Mr. Gotto speaks and teaches regularly on a number of topics, including an annual real estate bankruptcy case study presented at Harvard Law School. He earned his J.D. from Arizona State University summa cum laude , where he was a member of the Order of the Coif and the Special Projects Editor of the Arizona State Law Journal . Mr. Gotto received his B.A. from the University of Pennsylvania cum laude . He has been admitted to practice in the state of Arizona since 1982.
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Benjamin Gould Benjamin Gould practices in Keller Rohrback’s nationally recognized complex litigation group, where he has helped to litigate ERISA fiduciary breach, cash balance pension plan, and excessive fee cases, as well as consumer protection cases. He is a graduate of Yale Law School, where he was an editor of the Yale Law Journal . Prior to joining Keller Rohrback, he worked as a Legal Fellow of the ACLU Drug Law Reform Project, litigating cases related to drug policy and civil rights. He has also served as a clerk to the Hon. Diana E. Murphy of the United States Court of Appeals for the Eighth Circuit and the Hon. Betty B. Fletcher of the United States Court of Appeals for the Ninth Circuit. Additionally, Mr. Gould received a 2010 Burton Award for Legal Achievement for the article, “The Continuing Applicability of Rule 23(b)(1) to ERISA Actions for Breach of Fiduciary Duty,” which was published in Pension & Benefits Daily on August 31, 2009.
Gary D. Greenwald Before joining Keller Rohrback’s Phoenix office in 2006, Gary Greenwald practiced in Columbus, Ohio, where he was the senior litigation partner for the firms of Schottenstein, Zox, & Dunn and Shayne & Greenwald. He has a broad range of experience as a commercial litigator, having tried more than 200 cases in the federal and state courts across the U.S. Mr. Greenwald’s trial experience includes securities litigation, ERISA breach of fiduciary duty claims, trademark litigation, trade secrecy claims, professional malpractice, and a wide range of contract and real estate disputes. He spent five years as an Adjunct Professor of Trial Law Practice at the Ohio State University College of Law and has been a frequent speaker on the subject of Employee Stock Ownership Plans. Mr. Greenwald received his B.A. from Miami University and his J.D. from Ohio State University College of Law.
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Amy N. L. Hanson
Amy N. L Hanson’s practice is focused on class action and other complex litigation, including dangerous drugs, ERISA breach of fiduciary duty, and antitrust cases. Her practice is national in scope and includes representation of clients in both state and federal trial courts and on appeal. In this capacity, she has successfully represented numerous patients who suffered heart valve injuries in dangerous drug cases against Wyeth, which were resolved either in conjunction with a $4.75 billion nationwide class settlement or through resolutions outside of that nationwide class settlement relating to the prescription drugs Pondimin and/or Redux. Additionally, she is currently representing numerous patients who suffered heart attacks or strokes in dangerous drug cases against Merck & Co., Inc. who are now participating in the $4.85 billion national settlement relating to the prescription drug Vioxx, in In re Vioxx Products Liability Litigation, MDL No. 1657 (E.D. La.), where she also serves on the Consumer Claims Committee of the Plaintiffs’ Steering Committee. She is also representing numerous employees who have lost hard-earned retirement savings in In re Pfizer ERISA Litigation , MDL 1688 (S.D.N.Y), in which Keller Rohrback L.L.P. serves as sole lead counsel for the plaintiffs. She earned her B.A. degree summa cum laude in Economics and Political Science from the University of Minnesota. She is licensed to practice in Washington and Wisconsin and in the United States District Courts of Western Washington, Eastern Washington, Eastern Michigan, and the Court of Appeals for the Ninth Circuit.
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Ron Kilgard Mr. Kilgard is a Phoenix native and a founding member of Keller Rohrback, P.L.C., based in Phoenix, Arizona. In over thirty years of practice, he has litigated a broad array of commercial matters for both plaintiffs and defendants, in both state and federal courts. In the last decade he has been extensively involved in litigating cases on behalf of pension plan participants, involving claims of financial and fiduciary misconduct. In particular, he has been actively involved in several national class actions arising under the Employee Retirement Income Security Act (ERISA) involving the plans of Enron, WorldCom, Global Crossing, Xerox, Merrill Lynch, Marsh McLennan, and many others. Mr. Kilgard is also involved in non-ERISA pension plan cases concerning a “church plan” in Minnesota and a “governmental plan” in Arizona. He has served on the Arizona State Bar’s Civil Practice and Procedure Committee and is a founding member of the Arizona State Bar’s Class Action Committee. He is also a frequent speaker at seminars, for both lawyers and judges, on litigation and pension plan issues. Mr. Kilgard received bachelor’s and master’s degrees from Harvard before returning home to Arizona for law school. He graduated from the A.S.U. College of Law as the Editor-In-Chief of the law review and was selected by faculty as the outstanding graduate of his class. Upon earning his law degree, Mr. Kilgard clerked for the Hon. Mary Schroeder on the Ninth Circuit Court of Appeals before entering private practice. He has been admitted in Arizona since 1979.
Sarah H. Kimberly Sarah Kimberly’s practice focuses on complex ERISA breach of fiduciary duty litigation. She has successfully litigated numerous class actions, including Alvidres v. Countrywide Financial Corp . Ms. Kimberly is also actively involved in In re IndyMac ERISA Litigation , In re Fremont General Corp. Litigation , and In re Marsh ERISA Litigation . Ms. Kimberly graduated from The George Washington University Law School, where she worked as a legal fellow in a community legal clinic and as a law clerk in the National Security Section of the United States Attorney’s Office for the District of Columbia. Prior to law school, Ms. Kimberly worked as an editor at a major publishing company in Boston. She earned her B.A. in Art History from Dartmouth College, and is admitted to practice in Washington State and the Western District of Washington. Ms. Kimberly is also a member of the Washington State, King County, and American Bar Associations, as well as Washington Women Lawyers.
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David J. Ko David Ko practices in Keller Rohrback’s nationally recognized complex litigation group, where he represents plaintiffs pri- marily in the areas of consumer protection and ERISA class action litigation. Prior to joining the firm, David completed a two year clerkship for the Honorable Ricardo S. Martinez, United States District Judge in the Western District of Wash- ington. After earning his J.D at Seattle University School of Law, David obtained an LL.M. in Taxation at the University of Washington, where he represented low-income individuals against the IRS in the Federal Tax Clinic. During law school, he served as a Rule 9 intern for a local public defender’s of- fice, and also interned at a civil litigation firm. David received the top grade in his class in Constitutional Law and Legal Writing II, and was selected to the National Order of the Bar- risters for excellence in oral advocacy.
Cari Campen Laufenberg Cari Campen Laufenberg’s practice focuses on complex litigation with an emphasis on ERISA litigation. She has made significant contributions in cases such as In re Marsh ERISA Litigation , In re Williams Cos. ERISA Litigation , In re HealthSouth Corp. ERISA Litigation , and In re Goodyear Tire & Rubber Co. ERISA Litigation . Ms. Laufenberg earned a J.D. and Masters of Public Administration from the University of Washington. During law school, she served as a judicial extern for U.S. District Court Judge Barbara Jacobs Rothstein. Ms. Laufenberg received her B.A. from the University of California, San Diego in Art History and Criticism. She is admitted to the bar of the State of Washington and the U.S. District Courts for the Western and Eastern Districts of Washington. She is a member of the King County Bar Association, Federal Bar Association, American Bar Association, American Association for Justice, and Washington Women Lawyers. Ms. Laufenberg was recognized in 2008 and 2009 as a “Rising Star” by Washington Law and Politics in its annual review of the State’s legal professionals.
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Elizabeth A. Leland Beth Leland’s practice focuses on securities and investment fraud litigation, as well as ERISA breach of fiduciary duty class action cases. She has served as lead counsel in numerous complex cases that have resulted in multimillion dollar settlements. Ms. Leland has more than fifteen years of experience litigating complex cases arising from investment fraud at both the trial and appellate levels, and is also experienced in consumer protection, mass tort, and antitrust litigation. Ms. Leland has made significant contributions in securities and ERISA cases such as the In re Apple, Inc. Derivative Litigation , In re Anicom, Inc. Securities Litigation , In re Dynegy, Inc. ERISA Litigation , In re IKON Office Solutions, Inc. Securities Litigation , In re Merrill Lynch & Co., Inc. ERISA Litigation , In re Visteon Corporation ERISA Litigation and the In re Xerox Corporation ERISA Litigation . She is an active member of the King County, Washington State, and American Bar Associations, including the American Bar Association’s Section of Labor & Employment Law. She earned her B.A. in Business Administration with concentrations in Finance and Business Economics from the University of Washington and graduated cum laude from the University of Puget Sound School of Law. Ms. Leland is admitted to practice in Washington State and Federal Courts, as well as the Ninth and other Circuits across the country. Tana Lin Tana Lin’s practice includes representing employees in ERISA breach of fiduciary duty class actions, mutual fund shareholders in suits alleging breaches of fiduciary duty by investment advisors in violation of the Investment Company Act, and nurses in cases alleging that hospitals depressed their wages in violation of the Sherman Act. Ms. Lin began her career as a trial attorney with the Public Defender Service for the District of Columbia. She then joined and became a senior trial attorney with the Employment Litigation Section of the Civil Rights Division of the United States Department of Justice and, subsequently, the Equal Employment Opportunity Commission. She has prosecuted employment discrimination cases against governmental entities and private corporations such as Wal-Mart. Ms. Lin also developed and implemented impact projects to address systemic problems affecting the poor as the litigation coordinator for the Michigan Poverty Law Program. She received her A.B. with Distinction from Cornell University and her J.D. from New York University School of Law, where she was a Root-Tilden-Snow Scholar.
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Derek W. Loeser Derek Loeser is a partner in the firm’s Complex Litigation Group. His practice focuses on ERISA class action, securities fraud, and investment mismanagement cases, which he has litigated throughout the country. He has recovered hundreds of millions of dollars for employees, retirees, and retirement plans, as well as institutional investors. In addition to his work on cases that have been resolved, including Enron, WorldCom, Countrywide, and Washington Mutual, Mr. Loeser currently serves as Lead or Co-Lead Counsel in several large-scale ERISA breach of fiduciary duty cases, and represents institutional investors, including Federal Home Loan Banks, in mortgage-backed securities cases brought against Wall Street banks and other financial institutions under state blue sky and federal securities laws.
Mr. Loeser is a member of the American Bar Association’s Section of Labor & Employment Law and the Employee Benefits Committee as a Plaintiff attorney, and is a frequent speaker at national ERISA conferences. Before joining Keller Rohrback in 2002, he clerked for the Hon. Michael R. Hogan, United States District Court, District of Oregon, and was a trial attorney in the Employment Litigation Section of the Civil Rights Division of the United States Department of Justice in Washington, D.C. Mr. Loeser obtained his B.A. from Middlebury College, where he graduated summa cum laude , with highest departmental honors, and as a member of Phi Beta Kappa. He graduated with honors from the University of Washington School of Law. Mr. Loeser was named in 2007, 2008, and 2009 as a “Super Lawyer” among civil litigators and recognized in 2005 and 2006 as a “Rising Star” by Washington Law and Politics magazine in its annual review of the State’s legal profession. Mr. Loeser was named a recipient of the 2010 Burton Award for Legal Achievement for the article, " The Continuing Applicability of Rule 23(b)(1) to ERISA Actions for Breach of Fiduciary Duty ," which was published in Pension & Benefits Daily on August 31, 2009. Mr. Loeser also co-authored the article “ The Case Against the Presumption of Prudence ,” which was published in BNA Pension & Benefits Daily , Sept. 10, 2010 (174 PBD, 9/10/10).
He is admitted to practice in Washington State, United States District Courts for the Western and Eastern Districts of Washington, the Eastern District of Michigan, Northern District of Illinois, United States Courts of Appeals for the Second, Sixth, Eighth, Ninth and Eleventh Circuits, and on a pro hac vice basis in federal district courts throughout the country.
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Gretchen S. Obrist Gretchen Obrist joined Keller Rohrback’s complex litigation group in 2007. She has a broad federal court practice. Ms. Obrist has litigated ERISA fiduciary breach, cash balance pension plan, and excessive fee cases, as well as antitrust, RICO, consumer protection, and torts claims. While Ms. Obrist primarily represents plaintiffs, she has also represented defendants and third parties in complex cases. She has made significant contributions in Braden v. Wal-Mart Stores, Inc. , In Re Bear Stearns Cos. Inc. ERISA Litigation , the Washington Mutual and J.P. Morgan pension plan litigations, In re Dry Max Pampers Litigation , and the firm’s mortgage-related practice area. Prior to joining Keller Rohrback, Ms. Obrist worked for two years as a law clerk to the Hon. John C. Coughenour, U.S. District Judge for the Western District of Washington. Ms. Obrist earned her J.D. from the University of Nebraska, where she was Editor-in-Chief of the Nebraska Law Review. During law school, Ms. Obrist worked at a public defender’s office and the Nebraska Domestic Violence Sexual Assault Coalition. She also has worked on legal issues generated by welfare reform. Ms. Obrist was named a “Rising Star” by Washington Law and Politics in 2010. She is admitted to practice in Washington State.
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David S. Preminger David Preminger is a partner in the firm’s Complex Litigation Group. His practice focuses on ERISA class action cases as well as individual benefit claims. He has been the lead counsel or co-counsel on numerous ERISA class action, breach of fiduciary duty cases with multimillion dollar settlements. While perhaps divulging too much, Mr. Preminger has been litigating ERISA cases on behalf of employees and retirees since the Act’s passage in 1974. He also has extensive experience litigating anti-trust, real estate and general commercial and corporate matters. Mr. Preminger speaks frequently on issues concerning employee benefits litigation and is a former co-chair of the Fiduciary Responsibility Subcommittee of the Labor and Employment Section of the American Bar Association and was also previously the co-chair of the Subcommittee on ERISA Preemption and the Subcommittee on ERISA Reporting and Disclosure. Mr. Preminger has also served on the Employee Benefits Committee of the Association of the Bar of the City of New York and on that Association Committee on Legal Problems of the Elderly of which he was the chair of the Subcommittee on Pension and Welfare Benefit Plans. Mr. Preminger is also a senior editor of Employee Benefits Law (BNA), a widely used treatise on the subject, and has written law review articles on topics concerning ERISA as well. Mr. Preminger is also a charter member of the American College of Employee Benefits Counsel. Criteria for membership include at least 20 years of employee benefit experience including significant writing, lecturing and public service and recognition of the member by his or her peers for expertise in the field and intellectual excellence. He has also been reognized as a Suyper Lawyer in the field of employee benefits for the last several years. Prior to joining Keller Rohrback, Mr. Preminger was a partner at Rosen Preminger &Bloom LLP where his practice concentrated on ERISA litigation. Mr. Preminger was previously a Supervisory Trial Attorney for the Equal Employment Opportunity Commission, a Senior Attorney with Legal Services for the Elderly Poor and a Reginald Heber Smith Fellow with Brooklyn Legal Services.
Mr. Preminger received his B.A. degree in mathematics from Rutgers University in New Brunswick, NJ, and his law degree at New York University School of Law where he was a member of the Journal of International Law & Politics . He is admitted to the bar of the State of New York State and to the United States Supreme Court, the United States Courts of Appeal for the Second, Fourth, Seventh, Ninth and District of Columbia Circuits, and the United States District Courts for the Southern, Eastern, Western and Northern Districts of New York.
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Erin M. Riley Erin Riley’s practice focuses on ERISA breach of fiduciary duty litigation. She has successfully litigated numerous class actions, including In re Merrill Lynch & Co., Inc. ERISA Litigation . Ms. Riley is also actively involved in In re Washington Mutual, Inc., et al. ERISA Litigation , In re IndyMac ERISA Litigation , and In re Wachovia Corp. ERISA Litigation . She graduated cum laude from the University of Wisconsin School of Law and was a managing editor of the Wisconsin Law Review . She received her B.A. in French and History from Gonzaga University, where she graduated cum laude . Ms. Riley is licensed to practice in both Washington and Wisconsin and is a member of the American Bar Association’s Section of Labor & Employment Law and the Employee Benefits Committee as a plaintiff attorney. Ms. Riley was recognized in 2009 as a “Rising Star” by Washington Law and Politics in its annual review of the State’s legal professionals and co-authored the article “ The Case Against the Presumption of Prudence ,” which was published in BNA Pension & Benefits Daily , Sept. 10, 2010 (174 PBD, 9/10/10).
27 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 29 of 33 BIOGRAPHIES
Karin B. Swope Karin Swope practices in the firm’s nationally recognized complex litigation group. Karin’s practice focuses on ERISA and consumer class actions. Prior to joining the firm, Karin litigated commercial cases, primarily in the areas of intellectual property, and business disputes. She also has significant experience in responding to government enforcement activities, including white collar criminal prosecutions, federal civil enforcement actions, and government investigations, and has counseled clients on internal corporate investigations.
Karin is an Associate Editor of the American Bar Association Tort, Trial, and Insurance Practice Law Journal . She is also an adjunct professor at Seattle University School of Law where she teaches in the Art Law Clinic. She is a frequent speaker for Washington State Bar Association CLE programs.
Karin clerked for the Hon. John C. Coughenour, United States District Court, District of Western Washington from 1993 to 1995, and for the Hon. Robert E. Cowen, United States Court of Appeals for the Third Circuit from 1995 to 1996. She graduated Phi Beta Kappa with a B.A. in English and Political Science from Amherst College in 1987 and earned her J.D. from Columbia University School of Law in 1993, where she was Executive Articles Editor for the Columbia Human Rights Law Review, and a Harlan Fiske Stone Scholar and Paul Bernstein Award recipient. She has been recognized as a “Rising Star” by Washington Law and Politics Magazine.
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Havila Unrein Havila Unrein practices in Keller Rohrback’s nationally recognized complex litigation group. Havila received a concurrent J.D./LL.M. (Tax), with honors, from the University of Washington School of Law in 2008. During law school, Havila provided tax and business advice to low-income entrepreneurs and high-tech start-ups as a student in the Entrepreneurial Law Clinic. She also served as an extern to the Hon. Stephanie Joannides of the Anchorage Superior Court. Prior to law school, Havila worked and studied abroad in Russia, Azerbaijan, and the Czech Republic. She received her B.A. in Russian Area Studies from Dartmouth College, where she graduated magna cum laude .
Margaret E. Wetherald Margie Wetherald is a partner of Keller Rohrback and serves on the firm’s executive committee. Throughout her practice, Ms. Wetherald has handled complex litigation in multiple state and federal jurisdictions with a concentration on commercial insurance coverage and bad faith, ERISA breach of fiduciary duty, and class action litigation. Ms. Wetherald has also handled mass tort litigation involving transmission of AIDS to hemophiliacs through blood. She graduated from Cornell Law School. Ms. Wetherald taught at the Columbus School of Law at Catholic University in Washington, D.C. from 1983 to 1985. She chaired the Northwest Environmental Claims association at various times over a ten-year period and has been a frequent author and speaker on insurance coverage issues. She is admitted to practice in the United States Supreme Court, the United States Court of Appeals for the Ninth Circuit, the United States District Courts for Eastern and Western Washington and in the State Courts in Washington and Oregon.
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Amy Williams-Derry Since joining Keller Rohrback’s Complex Litigation Group in 2005, Amy Williams-Derry has spearheaded numerous class action lawsuits for the firm, specializing in ERISA litigation on behalf of retirement plan beneficiaries and consumer protection cases. She has litigated at both the trial and appellate levels, and has successfully represented clients in mediation and arbitration before the National Labor Relations Board, the National Association of Securities Dealers, and the New York Stock Exchange. Prior to joining Keller Rohrback, Ms. Williams-Derry litigated in both the private and non-profit sectors, with a diverse background in corporate and environmental matters. Ms. Williams-Derry earned her A.B with honors from Brown University and her J.D. from the University of Virginia, where she served as Editor-in-Chief of the Virginia Environmental Law Journal . She is admitted to practice in the Western and Eastern Districts of Washington, the Eastern District of Michigan, and before the Second and Ninth Circuit Courts of Appeal. Washington Law & Politics magazine has named Ms. Williams-Derry a “Rising Star” among civil litigators every year from 2003 through 2009.
Michael D. Woerner
Mike Woerner joined Keller Rohrback in 1985. His practice focuses on class action, mass tort, and cases involving excessive fees in mutual funds and retirement accounts. Mike was a member of the litigation team that received the Trial Lawyers for Public Justice’s 1995 Trial Lawyer of the Year Award for his work in In re the Exxon Valdez . He represented hundreds of clients in multiple states injured by fen-phen diet drugs. More recently, he has brought cases against mutual fund investment advisers for charging excessive fees to mutual fund investors and was co-counsel on Jack Bogle’s (founder of Vanguard) amicus brief in the United States Supreme Court in the case of Jones v. Harris .
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Additional Keller Rohrback attorneys working with the ERISA Litigation Group:
Corporate Banking Securities Stephen R. Boatwright* Stephen R. Boatwright* Stephen R. Boatwright* Alicia M. Corbett* Alicia Corbett* Alicia M. Corbett* Glen P. Garrison Glen P. Garrison Rob J. Crichton Scott C. Henderson Thomas A. Sterken Juli E. Farris Amy E. Hughes Glen P. Garrison Robert S. Over Elizabeth A. Leland Thomas A. Sterken Bankruptcy Robert S. Over Benson D. Wong Deirdre Glynn Levin William C. Smart John T. Mellen Michael D. Woerner
Contracts Employment Law Insurance Coverage Rob J. Crichton Ian S. Birk Chloethiel W. DeWeese Mark A. Griffin Rob J. Crichton Maureen M. Falecki Benjamin J. Lantz Benjamin J. Lantz Irene M. Hecht John T. Mellen William C. Smart Michael G. Howard David J. Russell Benson D. Wong David J. Russell Mark D. Samson* Margaret E. Wetherald William C. Smart
Professional Malpractice John Mellen
*Admitted to practice in the State of Arizona only.
31 Seattle │ Phoenix │ New York │ Santa Barbara www.ERISAfraud.com www.krcomplexlit.com Case 6:08-cv-03109-GAF Document 239-4 Filed 02/03/12 Page 33 of 33 EXHIBIT E
Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 1 of 7 Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 2 of 7 Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 3 of 7
EXHIBIT E-A
Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 4 of 7 WAL-MART ERISA LITIGATION FEE REPORT
FIRM NAME: Aleshire Robb, P.C.
REPORTING PERIOD: Inception - January 31, 2012
Timekeeper Hours Rate Lodestar Gregory W. Aleshire (Attorney) 69.50$ 300.00 $ 20,850.00 William R. Robb (Attorney) 181.50$ 300.00 $ 54,450.00
Total 251.00 $ 75,300.00
Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 5 of 7
EXHIBIT E-B
Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 6 of 7 WAL-MART ERISA LITIGATION EXPENSE REPORT
FIRM NAME: Aleshire Robb P.C.
REPORTING PERIOD: Inception - January 31, 2012
Description Amount
Travel Telephone/Facsimile Postage/Express Delivery Messenger Commercial Copies Internal Copies Experts/Consultants Court Fees $ 350.00 Court Reporters/Transcripts Service Fees Computer Research $ 4.16 Miscellaneous (Describe)
Total $ 354.16
Case 6:08-cv-03109-GAF Document 239-5 Filed 02/03/12 Page 7 of 7 EXHIBIT F
Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 1 of 9 Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 2 of 9 Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 3 of 9 Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 4 of 9 Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 5 of 9
EXHIBIT F-A
Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 6 of 9 WAL-MART ERISA LITIGATION FEE REPORT
FIRM NAME: Edward H. Siedle Law Offices
REPORTING PERIOD: Inception - January 31, 2012
Timekeeper Hours Rate Lodestar Edward Siedle (Attorney) 554.25$ 650.00 $ 360,262.50 Edward Siedle (Attorney) 492.00$ 345.00 $ 169,740.00
Total 1046.25 $ 530,002.50
Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 7 of 9
EXHIBIT F-B
Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 8 of 9 WAL-MART ERISA LITIGATION EXPENSE REPORT
FIRM NAME: Edward H. Siedle Law Offices
REPORTING PERIOD: Inception - January 31, 2012
Description Amount
Travel $ 4,559.72 Telephone/Facsimile Postage/Express Delivery$ 150.00 Messenger Commercial Copies Internal Copies $ 420.00 Experts/Consultants Court Fees Court Reporters/Transcripts Service Fees Computer Research Miscellaneous (Describe)
Total $ 5,129.72
Case 6:08-cv-03109-GAF Document 239-6 Filed 02/03/12 Page 9 of 9 EXHIBIT G
Case 6:08-cv-03109-GAF Document 239-7 Filed 02/03/12 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION
JEREMY BRADEN, individually and on behalf ) of all others similarly situated, ) Case No. 6:08-cv-3109-GAF ) Plaintiff, ) Hon. Gary A. Fenner ) v. ) CLASS ACTION ) WAL-MART STORES, INC., et al., ) ) Defendants. )
[PROPOSED] FINAL ORDER AND JUDGMENT
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 Wal-Mart Stores, Inc. Profit Sharing and 401(k) Plan (the “Plan”). This matter came before the Court for a hearing pursuant to the Preliminary Approval Order of this Court entered on December 5, 2011, on the application of Plaintiff for final approval of the Settlement set forth in the Class Action Settlement Agreement (“Settlement Agreement”), executed on December 2, 2011, and filed with the Court on December 2, 2011.1 Before the Court are: (1) Plaintiff’s Final Approval Motion; and (2) Plaintiff’s Application for Attorneys’ Fees and Expenses and Compensation to Named Plaintiff. The Court has received declarations attesting to the distribution of the Class Notice and Summary Notice via www.Walmartbenefits.com and www.benefits.ml.com, as well as in USA Today and on BusinessWire, in accordance with the Preliminary Approval Order. The Court also has received a declaration attesting to the mailing of the notices pursuant to the Class Action Fairness Act of 2005.
1 All capitalized terms used in this Final Order and Judgment and not defined herein shall have the meanings assigned to them in the Settlement Agreement. Class Counsel means Keller Rohrback L.L.P. and Aleshire Robb P.C.
Case 6:08-cv-03109-GAF Document1 239-7 Filed 02/03/12 Page 2 of 6 Due and adequate notice has been given to the Settlement Class as required in the Preliminary Approval Order, and the Court has considered all papers filed and proceedings in
this case, and is otherwise fully informed in the premises. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
1. This Court has jurisdiction over the subject matter of this Action and over all Parties to the Action, including all members of the Settlement Class.
2. On January 4 and 5, 2012, the Summary Notice was distributed via BusinessWire and USA Today , respectively, and on ______the Class Notice was
posted on www.Walmartbenefits.com and www.benefits.ml.com in accordance with the
Preliminary Approval Order. Information regarding the Settlement was also made available on www.WalMartERISASettlement.com . 3. The Class Notice and Summary Notice fully informed Settlement Class members of their rights with respect to the Settlement, including the right to object to the Settlement, Class Counsel’s application for an award of attorneys’ fees, reimbursement of expenses, and for the payment of the case contribution award to Class Plaintiff, all from the Settlement Fund. 4. The notice provided to the Settlement Class met the statutory requirements for notice under the circumstances and fully satisfied the requirements of Federal Rule of Civil Procedure 23 and due process. 5. Defendants have complied fully with the notice provisions of the Class Action Fairness Act of 2005, 28 U.S.C. § 1715. 6. For settlement purposes the Court certifies the Action as a non-opt-out class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(1)(A) and (B) with the Settlement Class defined as follows: (a) all Persons, except Defendants, who are or were participants in the Wal-Mart Stores, Inc. Profit Sharing and 401(k) Plan, or the predecessors or successors thereto, who have held assets in the Plan Investment Options at any time between July 1, 1997 to the Agreement Execution Date, inclusive, and (b) as to each Person within the scope of subsection (a) of [Settlement Agreement] Section 1.44, his, her, or its beneficiaries, alternate payees, Representatives and Successors in Interest.
Case 6:08-cv-03109-GAF Document2 239-7 Filed 02/03/12 Page 3 of 6 7. This Action and all claims asserted in it, as well as all of the Released Claims, are dismissed with prejudice as to Class Plaintiff, the Settlement Class, and the Plan, and as against the Released Parties. The Parties are to bear their own costs, except as otherwise provided in the Settlement Agreement or in this Order.
8. The Court finds that the Settlement is fair, reasonable, and adequate as to each member of the Settlement Class. The Plan of Allocation is approved as fair and reasonable.
Any modification or change in the Plan of Allocation that may hereafter be approved shall in no way disturb or affect this Judgment and shall be considered separate from this Judgment. The
Settlement is finally approved in all respects.
9. By operation of this Judgment and effective upon entry of this Final Order: (a) Class Plaintiff, the Plan, and each member of the Settlement Class have absolutely and unconditionally released and forever discharged the Released Parties from the Released Claims as specified in the Settlement Agreement; (b) Defendants have absolutely and unconditionally released and forever discharged Class Plaintiff, the Plan, and the Settlement Class from Defendants’ Released Claims as specified in the Settlement Agreement. 10. Class Counsel are hereby awarded attorneys’ fees in the amount of $______, which the Court finds to be fair and reasonable, and $______in reimbursement of Class Counsel’s reasonable expenses incurred in prosecuting the Action. The attorneys’ fees and expenses so awarded shall be paid exclusively out of the Settlement Fund pursuant to the terms of the Settlement Agreement without additional contribution or payment by Defendants. 11. Named Plaintiff is hereby awarded a Case Contribution Award in the amount of $______, to be paid exclusively out of the Settlement Fund pursuant to the terms of the Settlement Agreement without additional contribution or payment by Defendants. 12. In making this award of attorneys’ fees and reimbursement of expenses to Class Counsel, and the Case Contribution Award to Named Plaintiff, the Court has considered and found that:
Case 6:08-cv-03109-GAF Document3 239-7 Filed 02/03/12 Page 4 of 6 a) The Settlement Fund will benefit the Plan and thousands of Settlement Class members who have Plan accounts;
b) The Settlement has resulted in significant injunctive relief that will inure to the benefit of Plan participants;
c) Class Counsel have conducted the litigation and achieved the Settlement with skill, perseverance, and diligent advocacy;
d) The Action involves complex factual and legal issues prosecuted over more than three years and, in the absence of a settlement, would involve further lengthy
proceedings with uncertain resolution of the complex factual and legal issues;
e) Without the Settlement, there would remain a significant risk that Class Plaintiff and the Settlement Class could have recovered less or nothing from Defendants; f) The amount of attorneys’ fees awarded and expenses reimbursed from the Settlement Fund are consistent with awards in similar cases; and g) Class Plaintiff rendered valuable service to the Plan and to the Settlement Class by undertaking this Action. 13. Without affecting the finality of this Judgment in any way, and subject to the arbitration provisions, as applicable, of the Settlement Agreement, this Court hereby retains continuing jurisdiction over: (a) implementation and enforcement of the Settlement Agreement and (b) hearing and determining applications for attorneys’ fees, costs, interest, and reimbursement of expenses in the Action. 14. This Final Order and Judgment shall not be considered or used as an admission, concession, or declaration by or against Releasees of any fault, wrongdoing, breach, or liability, and this Court makes no such finding or determination. 15. In the event that the Settlement does not become Final in accordance with the terms of the Settlement Agreement, then this Judgment shall be rendered null and void and shall be vacated nunc pro tunc , and the Action shall proceed in accordance with the Settlement Agreement.
Case 6:08-cv-03109-GAF Document4 239-7 Filed 02/03/12 Page 5 of 6 16. Final Judgment shall be entered herein approving the Settlement of this Action. IT IS SO ORDERED. ______Gary A. Fenner, Judge United States District Court
DATED: ______, 2012
Case 6:08-cv-03109-GAF Document5 239-7 Filed 02/03/12 Page 6 of 6