IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUI T IN RE BANK AMERICA CORPORATION SECURITIES LITIGATION CAROL MACKAY, Appellant, vs . Appeal No . 02-3783 HUGH McCOLL, et al ., Appeal from the Eastern District of Missouri Appellees. MOTION TO SUPPLEMENT THE RECORD ON APPEA L Comes now Carol Mackay, executrix for the Estate of Joseph I . Sir, deceased, appellant in the above-referenced matter, and under the authority of Fed.R.App .P. Rule 10(e), respectfully move s this Court for an Order, allowing for the Record on Appeal to be supplemented, if deemed necessary, and as grounds shows unto the Court the following : 1 . This appeal arises from the district court's Order approving a class action se ttlement regarding the shareholders of NationsBank and Bank of America . 2. The Notice of the Settlement was sent out to the shareholders and, in part, provide d for comments and objections to the Settlement to be heard at a scheduled fairness hearing . 3 . Carol Mackay, executrix for the Estate of Joseph I . Sir, deceased , through her counsel , filed objections to the Settlement, a motion to intervene, and a proposed complaint in intervention . 4. In the motion to intervene, counsel represented to the district court that Carol Mackay , in her representative capacity, was a shareholder in NationsBank prior to the merger . That was the only proof offered of membership in the class . The district court accepted her status as a clas s member and granted her motion to intervene . Appellees have not appealed that Order . 5. Appellees now seek to dismiss this appeal based upon the fact that no proof wa s provided of either Carol Mackay's appointment as executrix for the Estate of Joseph I . Sir, deceased, or that Joseph I . Sir, prior to his death, was a member of the class . ' 6. Assuming arguendo that the Court requires additional evidence, Carol Mackay requests the opportunity to supplement the Record by filing : Exhibit "A" attached hereto which is a certified copy of the Letters Testamentary appointing her as executrix for the Estate of Joseph I . Sir; Exhibit `B" attached hereto which is a copy of Joseph I . Sir's account with Prudential Financia l for the period of September 1- 30, 1998, showing holdings in NationsBank of 2,011 .586 shares ; and Exhibit "C" attached hereto which is a copy of a letter, dated April 23, 2002, issued from Prudentia l Financial to Joseph I . Sir, after his death, stating that " [o]ur records indicate that you meet th e requirements of eli ibility" . to participate in this class action . 7. Such requests have been granted when justice so demands . Dakota Industries, Inc. v. Dakota Sportswear, Inc., 988 F .2d 61, 63 (8`h Cir . 1993), citing with approval Turk v. United States, 429 F.2d 1327, 1329 (8" Cir. 1970); and Dickerson v. Alabama, 667 F .2d 1364, 1367 (11`h Cir.) cert. denied, 459 U .S. 878, 103 S .Ct. 173, 74 L .Ed.2nd 142 (1982). WHEREFORE, PREMISES CONSIDERED, Carol Mackay, as executrix for the Estate o f ' Appellees failed to challenge Ms . Mackay's status at the fairness hearing and, with all due respect, should be estopped from doing so now . 2 Joseph I. Sir, respectfully request that the Court grant appellant's motion, and allow Exhibits "A" , "B", and "C" attached hereto to become a part of the Record on Appeal, if necessary, and grant suc h other and further relief as is just . Respectfully submitted , Edward W . Cochran, Esq. Frank H. Tomlinson, Esq. OH Bar No. 0032942 AL Bar No . ASB-7042-T66F 2872 Broxton Road Pritchard, McCall & Jones, LLC Shaker Heights OH 44120 505 N. 20"' Street, Suite 800 Telephone: (216) 751-5546 Birmingham, AL 35203 Facsimile : (216) 751-663 0 Telephone : (205) 328-9190 Facsimile: (205) 458-003 5 N. Albert Bacharach, Jr. Florida Bar Number: 209783 Paul S. Rothstein 115 Northeast 6`h Avenue Florida Bar Number: 310123 Gainesville, Florida 32601 626 NE 1St Street Telephone : (352) 378-9859 Gainesville, FL 32601 Facsimile: (352) 338-1858 Telephone : (352) 376-7650 Facsimile : (352) 374-713 3 ATTORNEYS FOR APPELLANT CAROL MACKAY, AS EXECUTRIX FOR THE ESTATE OF JOSEPH I. SIR, DECEASED 3 CERTIFICATE OF SERVIC E The undersigned certifies that a true and complete copy of the foregoing was served by mailing the same by the U .S. Mail, first-class postage prepaid, this 7`h day of February, 2003, to each counsel of record at the addresses of record noted below : Mitchell A. Margo Curtis Oetting Heinz Garrett & Soule,P .C . Warren R. Stern 130 South Bemiston, Suite 20 0 Wachtell Lipton Rosen & Katz Clayton, MO 63105 51 West 52"d Street Fax : (314) 725-8789 New York, NY 10019-6150 Counsel for appellants Koehler and Oetting Fax: (212) 403-2000 Counsel for defendants-appellees Martin M. Green Bank of America Corp., et al. Jonathan F . Andres Joe D. Jacobson John Michael Clear Green, Schaff & Jacobson, P .C. Bryan Cave, L.L.P. 7733 Forsyth Boulevard, Suite 700 211 North Broadway, Suite 3600 Clayton, MO 6310 5 St. Louis, MO 63102-275 0 Fax: (314) 862-1606 Fax: (314) 259-202 0 Liaison Counsel and Lead Counsel Counsel for defendants-appellees for the NationsBank Classes Bank ofAmerica Corp., et al. Arthur N. Abbey Ronald L. Olson Abbey Gardy, LLP Munger, Tolles & Olson, LLP 212 East 39`h Street 355 S. Grand Avenue, 35th Floor New York, NY 10016 Los Angeles , CA 9007 1 Fax: (212) 684-519 1 Fax: (213) 687-3702 Counsel for plaintiffs-appellees Counselfor defendants-appellees BankAmerica Classes Coulter, Higgins, and O'Neill Barry A. Short Lewis Rice & Fingersh 500 North Broadway, Suite 2000 St. Louis, MO 63102 Fax: (314) 241-605 6 Counsel for defendants-appellees Coulter, O'Neill, and Higgins SO CERTIFIED : 4 EXHIBIT "A" LETTERS TESTAM State of Tennessee , County l U~ Der- vf~ b.r kCIA - A Citizen of_ County : WHEREAS , It appears to the Court here that _ of said Coty, is dead , and hath made h_ I Will and Testament in writing, in which _ he hath appointed (`L1-C, \ th - `M G C \L1 CL-. ExecutY _ to the same , which Wil l hath been exhibited in Court , and proved A the law directs ; it is therefore ordered by the said Court that Letters Testamentary of all and singular the goods and chatt Is, rights and credits of the said r ,_~_oS~ h 7 4J'_ `f' deceased , issue to the said Is 1- ~-L having been qualified according to law. These are , therefore , to empower you, the said ~.._. , to enter into and upon all and singular the goods and chattels, rights and credits of the said e -~- biLc deceased , and the same in your possession take wheresoever the same may be found . and a true and perfect inventory thereof to make and return to our ensuing Clerk & Master, and all just debts of the said AO 9=Q h T. h I deceased , to pay ; and also well and truly pay and deliver all the legacies contained and specified in said Testament, as far as the said goods, chattels a dits will thereunto d and the la arge you . Witness Clerk of said Court , at office, this day o f rs 2 1 S _, Clerk & Master. 4 4-1 , D . C. STATE OF TENNESSEE , N V`n.C o Y\ -COUNTY. ITor're ) o solemnly swear that I Forte will honestly and faithfully discharge the duties of Executrl of the estate of according to law, to the best of my knowledge and ability. So he p me God . ~ ~y , v'` (.ice ~ -) ~ 4~~rc _ Subscribed and sworn to before me, this day of Clerk & Master. S T A T E OF TENNESSEE , ' k "~_c In-- COUNTY. I, I or, ;CL T J . L irr (4 . T e :2 , Clerk & Master of ~+ in cC ~ YZ_, County, Tennessee , do hereby ce rt ify that the within is a true and complete copy of the Letters Testamentary issued o the 1 s day of ' a , 1h aO to _ C-L'tY-O 1 t r 'ill 1.&I OIt_.L as Execu t of the estate of O49.(J? deceased . And that the said adct~ \ tY- XC'Y' a-" is now the duly qualified •+.i,d acting Execut r X of said estate . ♦ n Witness my hand and official seal at office in TE Tennessee, he - tQ day of z i rx~ , I' :~_S __ L\P Clerk & Master. 0. irl II ( ^ O Vn coon 1 ~ d n l w fD _N d EXHIBIT "B" COWLA O ACCOXT PAGE 2 FOR WE PERIOO : A(Y,OIN7 WLAt l SEP I - SEP 30 . 1998 J0SER1 ISAAC SIR OW-213242-65 vuR ► FOLIO DETAIL ESTIMATED ES1U 4TE0 CtARENI Clfiflt$4I tCCitUED LALI ZE D CIAAEM I Sr ML OJANFIIV PRICE VALUE INTT34ES1 It E YIELD COMMENT S EQUITIES-96 .71 OF POATFQ.1 0 FIRST 1F2 ESSEE IMf IONAL C941CF AT I ON F TEN 7 .23 4 .558 27 .313 5197 .597 .411 S4 .1`74 2 .42% M 3371 $ INiERRllkTION/U4 . BUSINESS W10AIW-S IBM 5 .117 128 .500'• ia'57 .53 34 .61% N 45$2 C MTIONSBW( CoN P N8 2,011 .566 53 .500" $ 107 .619 .85 31 .058 2 SAX Y 6385E IIfSICO IN C PEP $00 29 .134 " 32 .943 .80 152 1 .77% 14 7134 4 7RICON GU'L RESTAL .*HTS INC Ylll 10 39 .123" 5191 .25 M 8969 TOTAL I$IICED SECUR17IE6 VALUE £309 .209 .81 57 .888 WhEY PAWS FIRM •1 .3% OF POATFOL10 :004VM 11014EY FII D 4,034 1 .000 14,014 .00 $206 5 .10% 7-Day Yield m 200(5 TOTAL hOWIFY I KET FUN 0S $4,034 .00 S206 tI&r117E0 CAMS (LO63ES ) HIS SECTION PRESEf11S ESIIlAI ED V4W-1.I2E11 CMNS QR L06SE8 FQi '*1w IW-OP40AIlON OR-Y .