UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
IN RE: LANDAMERICA 1031 EXCHANGE SERVICES, INC., INTERNAL REVENUE SERVICE § 1031 TAX DEFERRED EXCHANGE LITIGATION
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Case No. MDL No. 2054 Southern District of California C.A. No. 3:09-cv-00054 District of South Carolina C.A. No. 8:09-cv-00415
Class Action
[Jury Trial Demanded]
Angela M. Arthur, et al., Plaintiffs, vs.
SunTrust Bank, et al., Defendants.
MOTION TO APPROVE NOTICE OF PROPOSED
CLASS ACTION SETTLEMENT PURSUANT TO 28 U.S.C. § 1715
Defendants Theodore L. Chandler, Jr., G. William Evans, Stephen Connor, Ronald B. Ramos, Devon M. Jones and Brenton J. Allen, (collectively the “Settling
Defendants”), by their undersigned counsel, respectfully request that the Court approve the form of their proposed Notice of Proposed Class Action Settlement pursuant to section 3 of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715 (the “CAFA Notice”). A copy of the proposed CAFA Notice is attached to this Motion.
The Plaintiffs in the above-captioned class action filed a proposed settlement on June 27, 2012. CAFA requires each defendant participating in a proposed class action settlement to deliver notice of the proposed settlement to all appropriate Federal and State officials not later than ten (10) days after the proposed settlement is filed in court. See 28 U.S.C. 1715(b). The notice must include the following:
1. A copy of the complaint, including any materials filed therewith, and any
amended complaints;
2. Notice of any scheduled judicial hearing in the class action;
3. Any proposed or final notification to class members of: (A) the class members’
opt-out rights or, if no opt-out right exists, a statement to that effect, and (B) the proposed settlement;
4. Any proposed or final class action settlement;
5. Any settlement or other agreement contemporaneously made between class counsel and counsel for the defendants;
6. Any final judgment or notice of dismissal;
7. The names of class members residing in each state and the estimated
proportionate share of their claims to the entire settlement, or, if this is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated proportionate share of their claims to the entire settlement; and
8. Any written or judicial opinion relating to items 3 through 6, above.
See 28 U.S.C. § 1715(b)(1)-(8).
The Settling Defendants plan to serve the proposed CAFA Notice, including a CD containing the materials listed in Appendix A, on the Federal and State authorities listed in Exhibit B. The Notice (not including the CD) is enclosed as Exhibit A. The proposed CAFA Notice complies with 28 U.S.C. § 1715 and satisfies all requirements of section 1715(b). The Settling Defendants will serve the proposed CAFA Notice on the appropriate Federal and State officials within 10 days of the filing of the proposed settlement with this Court. Once service is accomplished, the Settling Defendants will submit appropriate proof of the required service.
For the reasons stated above, the Settling Defendants respectfully request that this
Court approve their proposed CAFA Notice.
Dated: June 28, 2012. Respectfully submitted,
s/ John J. Pringle, Jr.
John J. Pringle, Jr.
Ellis, Lawhorne & Sims, P.A.
1501 Main Street, 5
thFloor Columbia, SC 29201 (t) 803.343.1270
Attorneys for Defendants Theodore L. Chandler, Jr.;
G. William Evans; Ronald B. Ramos; Devon M.
Jones; and Brenton J. Allen Scott L. Fredericksen David A. Hickerson Foley & Lardner LLP Washington Harbour 3000 K Street, N.W.
Suite 600
Washington, D.C. 20007-5109 (t) 202.672.5300
Attorneys for Defendants Theodore L. Chandler, Jr.;
G. William Evans; Ronald B. Ramos; and Devon M.
Jones
Steven A. Reiss
Weil, Gotshal & Manges LLP 757 Fifth Avenue
New York, New York 10153 (t) 212.310.8174
Attorneys for Brenton J. Allen s/ Henry L. Parr, Jr.
Henry L. Parr, Jr.
Wyche
44 East Camperdown Way Greenville, SC 29601 (t) 864.242.8209
Attorneys for Stephen Connor John J. Eklund
Calfee, Halter & Griswold LLP The Calfee Building
1405 East Sixth Street Cleveland, OH 44114 (t) 216.622.8211
Attorneys for Stephen Connor
Appendix A
1. A copy of the complaint and any materials filed with the complaint and any amended complaints (except such materials shall not be required to be served if such materials are made electronically available through the Internet and such service includes notice of how to electronically access such material)
a. Complaint, Arthur v. SunTrust Banks,, C.A. No. 3:09-cv-00054 (S.D.
Calif.) (filed January 14, 2009)
b. Class Action Complaint, Terry v. SunTrust Banks, Inc., C.A. No. 2009- CP-04-00373 (S. Carolina Court of Common Pleas, Tenth Judicial Circuit) (filed February 2, 2009 )
c. Amended Class Action Complaint, Terry v. SunTrust Banks, Inc.,C.A. No.
2009 –CP-04-00373 (S. Carolina Court of Common Pleas, Tenth Judicial Circuit) (filed February 17, 2009)
d. Amended Consolidated Complaint, In re: LandAmerica 1031 Exchange Services, Inc. Internal Revenue Service §1031 Tax Deferred Exchange Litigation, Case No. MDL No. 2054 (D.S.C.) (filed August 3, 2009)
e. Second Amended Consolidated Complaint In re: LandAmerica 1031 Exchange Services, Inc. Internal Revenue Service §1031 Tax Deferred Exchange Litigation, Case No. MDL No. 2054 (D.S.C..) (filed October 6, 2010)
2. Notice of any scheduled judicial hearing in the class action.
a. If a document is entered in the docket noticing the July 12, 2012 hearing, we will include that notice
3. Any proposed or final notification to class members of— ‘‘(A)(i) the members’
rights to request exclusion from the class action; or (ii) if no right to request exclusion exists, a statement that no such right exists; and (B) a proposed settlement of a class action.
a.
The Notice of (a) Certification of a Settlement Class; (b) Appointment of Class Counsel, and (c) Application for Approval of Class Settlement, attached to
Plaintiffs’ Memorandum in Support of Motion for Order Approving Certification of a Rule 23(b)(3) Settlement Class, For Appointment of Class Representatives and Class Counsel, and for Approval of Form and Manner of Notice to the Class, filed June 27, 2012.
4. Any proposed or final class action settlement;
a. The Class Action Settlement Agreement, attached to Plaintiffs’
Memorandum in Support of Motion for Order Approving Certification of a Rule 23(b)(3) Settlement Class, For Appointment of Class Representatives and Class Counsel, and for Approval of Form and Manner of Notice to the Class, filed June 27, 2012.
5. Any settlement or other agreement contemporaneously made between class
a. The Settlement Agreement between the LFG Trustee, the LES Trustee, certain former officers and directors of LFG and/or LES; Settlement Class Counsel, and certain insurers, referenced in Plaintiffs’ Memorandum in Support of Motion for Order Approving Certification of a Rule 23(b)(3) Settlement Class, For Appointment of Class Representatives and Class Counsel, and for Approval of Form and Manner of Notice to the Class, filed June 27, 2012.
6. Any final judgment or notice of dismissal;
a. The Order dated June 15, 2011, dismissing the second amended
complaint, insofar as it related to SunTrust, for failure to state a claim upon which relief may be granted.
7. If feasible, the names of class members who reside in each State and the estimated proportionate share of the claims of such members to the entire settlement to that State’s
appropriate State official; or ‘‘(B) if the provision of information under subparagraph (A) is not feasible, a reasonable estimate of the number of class members residing in each State and the estimated proportionate share of the claims of such members to the entire settlement;
a. The CD will contain a schedule based on a spreadsheet prepared by Class Counsel based on records of the LES bankruptcy. In addition to commingled exchangers, the schedule will contains the names of assignors who have been assigned claims by commingled exchangers. For each commingled exchanger and assignee listed, the schedule will set forth the name of the last known addresses provided to Class Counsel by the LES Trustee, the amount of the allowed claim and the state of residency. The CD will also contain a spreadsheet setting forth for each state, a reasonable estimate of the proportionate share of the settlement attributable to class members residing in the state.
This spreadsheet will assume there are no opt-outs and, with respect to assignments, will attribute settlement amounts to the assignee, not the assignor.
8. Any written or judicial opinion relating to items 3 through 6, above.
a. None
VIA U.S. M
AILClass Action Fairness Act (“CAFA”) Notice of Proposed Class Action Settlement
July ___, 2012
Re: Notice of Proposed Class Action Settlement in
In Re: LandAmerica 1031 Exchange Services, Inc. Internal Revenue Service § 1031 Tax Deferred Exchange Litigation
Dear Sir or Madam:
Pursuant to Section 3 of the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715, you are hereby notified of the proposed settlement (the “Settlement Agreement”) of certain purported class actions that were consolidated by the Judicial Panel on Multidistrict Litigation in the above- captioned action (the “Action”) currently pending before the United States District Court for the District of South Carolina, Anderson Division (the “Court”).
1This notice is provided on behalf of individual defendants Theodore L. Chandler, Jr., G. William Evans, Stephen Connor, Ronald B. Ramos, Devon M. Jones and Brenton J. Allen, (collectively the “Settling Defendants”).
In the Action, the plaintiffs allege that the claims stated in the Amended Consolidated Complaint arise out of the failure of LandAmerica 1031 Exchange Services, Inc. (“LES”) to complete Internal Revenue Code Section 1031 Exchange transactions. The lawsuit alleges that the Settling Defendants, former officers and/or directors of LES and/or its parent company, LandAmerica Financial Group, Inc. (“LFG”) breached a fiduciary duty, were negligent, engaged in fraud and/or fraudulent concealment, engaged in constructive fraud, which proximately resulted in losses to certain LES commingled exchangers. The Settling Defendants dispute these allegations, assert that they acted reasonably and appropriately at all times with respect to the commingled exchangers, and maintain that they did not engage in any misconduct of any kind.
The Settling Defendants have moved to dismiss all claims against them on multiple grounds, including but not limited to, alleged absence of subject matter jurisdiction, alleged non-existence of tort duties to the commingled exchangers, etc. However, to avoid further expense,
inconvenience, and burdensome and protracted litigation, the Settling Defendants have agreed with the plaintiffs to settle this action, as discussed below.
As required under section 3 of CAFA, the Settling Defendants state as follows:
(1) The Complaints, including all amended complaints, are provided in electronic form on the enclosed CD. In addition, the Complaints filed in the Action are available on the Internet via the federal government’s Pacer service at https://ecf.scd.uscourts.gov/cgi- bin/iqquerymenu.pl?164851. Additional information about the federal government’s Pacer service may be found at http://pacer.psc.uscourts.gov.
1 A list of these purported class actions is attached as Exhibit F.
