UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE IN RE REGIONS MORGAN KEEGAN ERISA
LITIGATION
This Document Relates to:
In re Regions Morgan Keegan ERISA Litig., No. 2:08-cv-2192-SHM-dvk
Case No. 2:09-md-02009-SHM
NOTICE OF PROPOSED SETTLEMENT OF ERISA CLASS ACTION LITIGATION,
SETTLEMENT FAIRNESS HEARING, AND MOTION FOR ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES AND PROPOSED NAMED PLAINTIFFS’ CASE CONTRIBUTION AWARDS
(Customer Plans Settlement Subclass Notice)
Based on records maintained by Regions Financial Corporation (“Regions”), it appears that the [INSERT PLAN NAME] (“Your Plan”) is a member of the proposed Customer Plans Settlement Subclass in the above-captioned Class Action (the “Action”) which asserts claims under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). This Notice provides important information with respect to the Action and a proposed class action settlement (the “Settlement”) that has been preliminarily approved by the United States District Court for the Western District of Tennessee (the “Court”).
The Settlement applies to a proposed Settlement Subclass of ERISA Customer Plans (the “Customer Plans Settlement Subclass”), including Your Plan, which consists of all employee benefit plans governed by Part 4 of Title I of ERISA as to which Regions Bank, whether in its own name or doing business as “Regions Morgan Keegan Trust,” either (i) provided trustee, custodial, investment management or investment advisory services or (ii) otherwise provided access to a platform of investments, and had any assets invested in any one of the “RMK Bond Funds” during the period from November 9, 2006 through July 29, 2008 inclusive (the “Customer Plans Subclass Period”). Excluded from the Customer Plans Settlement Subclass are the Customer Plans that previously signed agreements releasing one or more of the Defendants from claims encompassed by the Released Claims. The “RMK Bond Funds” include the RMK Advantage Income Fund; RMK High Income Fund; RMK Multi-Sector High Income Fund; RMK Strategic Income Fund; RMK Select High Income Fund; RMK Select Intermediate Bond Fund; and RMK Select Short Term Bond Fund. The Customer Plans Settlement Subclass does not include any employee benefit plan sponsored by Regions Financial Corporation or any present or former subsidiary or affiliate.
IF YOU HAVE NO OBJECTION TO THE PROPOSED SETTLEMENT YOU DO NOT HAVE TO TAKE ANY ACTION IN ORDER FOR YOUR PLAN TO PARTICIPATE IN THE SETTLEMENT AND RECEIVE ANY PAYMENT TO WHICH IT IS ENTITLED UNDER THE SETTLEMENT. IF YOU DISAPPROVE OF ANY ASPECT OF THE SETTLEMENT, YOU MAY OBJECT IN ACCORDANCE WITH THE PROCEDURES DESCRIBED BELOW. YOUR PLAN MAY ALSO REQUEST TO EXCLUDE ITSELF FROM THE CUSTOMER PLANS SETTLEMENT SUBCLASS AND THE SETTLEMENT IN ACCORDANCE WITH THE PROCEDURES DESCRIBED BELOW.
IMPORTANT INSTRUCTION FOR PLAN FIDUCIARIES: IF YOU ARE A FIDUCIARY OF YOUR PLAN, YOU ARE DIRECTED BY THE COURT TO FURNISH THE TEXT OF THE SUMMARY NOTICE ATTACHED TO THIS DOCUMENT TO YOUR PLAN’S PARTICIPANTS, BENEFICIARIES, AND OTHER FIDUCIARIES NO LATER THAN SEPTEMBER 7, 2014. YOU MAY DO THIS BY ANY METHOD CUSTOMARILY USED TO COMMUNICATE WITH YOUR PLAN’S PARTICIPANTS, BENEFICIARIES, AND OTHER FIDUCIARIES ABOUT YOUR PLAN, INCLUDING, IF APPLICABLE, POSTING A COPY OF THE SUMMARY NOTICE ON YOUR PLAN’S WEBSITE. IF YOU HAVE ANY QUESTIONS REGARDING PROVIDING THE SUMMARY NOTICE TO YOUR PLAN’S PARTICIPANTS, BENEFICIARIES, AND OTHER FIDUCIARIES, PLEASE CONTACT PLAINTIFFS’ CO-LEAD COUNSEL LISTED BELOW IN RESPONSE TO QUESTION 14.
This notice advises you of a proposed settlement of a class action lawsuit brought by Named Plaintiffs that include James K. Smith, II, both as a participant of, and on behalf of, the Keith Smith Company Inc. Employee Profit Sharing Plan, the Briscoe Production Company Employees Retirement Plan (the “Representative Customer Plans”), and C. Fred Daniels solely in his capacity as the court-appointed Trustee ad Litem of trusts for the two Representative Customer Plans. Named Plaintiffs and Defendants are referred to as the “Parties.” Other capitalized terms used in this Notice and not defined in it have the meaning assigned to them in the Settlement Agreement.
The Court has preliminarily approved the Settlement and has scheduled a hearing to evaluate the fairness and adequacy of the Settlement. At the hearing, the Court will consider the Named Plaintiffs’ requests for final approval of the Settlement, for class certification, for approval of the Plan of Allocation, for an award of attorneys’ fees, litigation expenses, and for Case Contribution Awards for the Named Plaintiffs. The hearing has been scheduled for December 15, 2014, at 9:00 am in Courtroom 2 of the United States District Court for the Western District of Tennessee, Clifford Davis/Odell Horton Federal Building, 167 North Main Street, 11th Floor, Memphis, Tennessee 38103.
The terms of the Settlement are contained in the Class Action Settlement Agreement (“Settlement Agreement”), a copy of which is available at www.RMKERISASettlement.com. You can also obtain a copy of the Settlement Agreement and information about the Settlement by contacting (877) 940-0108 (toll free) or emailing Administrator@RMKERISASettlement.com. Please do not contact the Court, Regions, or counsel for Defendants. They will not be able to answer your questions.
PLEASE READ THIS NOTICE CAREFULLY AND COMPLETELY. IF YOU ARE A MEMBER OF THE CUSTOMER PLANS SETTLEMENT SUBCLASS, THE SETTLEMENT WILL AFFECT YOUR RIGHTS. YOU ARE NOT BEING SUED, YOU DO NOT HAVE TO APPEAR IN COURT, AND YOU DO NOT HAVE TO HIRE AN ATTORNEY IN THIS CASE.
SUMMARY OF ACTIONS YOU MAY TAKE IN THE SETTLEMENT
NO ACTION IS NECESSARY FOR YOUR PLAN TO RECEIVE PAYMENT.
If the Settlement is approved by the Court, Your Plan is not required to do anything to receive a payment. Your Plan’s allocable portion of the Class Settlement Amount will be calculated as part of the implementation of the Settlement.
If Your Plan did not receive this Notice by mail and you believe you should have, please contact the Claims Administrator at (877) 940-0108 (toll free) or Administrator@RMKERISASettlement.com to ensure that Your Plan’s current address is entered into the database that will be used to distribute money from the Settlement.
YOUR PLAN (ACTING THROUGH ITS PLAN FIDUCIARIES) MAY ASK TO
BE EXCLUDED FROM THE SETTLEMENT (“OPT-OUT”
OF THE CLASS) (Opt-outs must be postmarked by October 31, 2014 and received by
November 7, 2014.)
A fiduciary of Your Plan may file, on behalf of Your Plan, a written request to exclude Your Plan (“opt-out”) from the Customer Plans Settlement Subclass and the Settlement. The procedure for excluding or opting-out Your Plan from the Settlement is described in response to Question 10 below. Opting out is the only option under which Your Plan, its fiduciaries, participants, or beneficiaries, could be permitted to bring their own separate lawsuit against the Defendants or any of the other Defendant Releasees asserting any claims that would be released by the Settlement. However, if Your Plan excludes itself from the Customer Plans Settlement Subclass, it will not participate in the Settlement and will not receive any portion of the recovery to which it would otherwise be entitled under the Settlement. YOU CAN OBJECT
(Objections must be filed with the Court and received by the lawyers no later than October 28,
2014.)
If you wish to object to any part of the Settlement, the Plan of Allocation, the request for attorneys’ fees and expenses, or the Named Plaintiff Case Contribution Awards, you can write to the Court, Plaintiffs’ Co-Lead Counsel, and Defendants’ Counsel to explain why you do not like the Settlement, as set forth in the response to Question 14.
YOU CAN GO TO THE HEARING ON DECEMBER 15,
2014.
You may (but do not have to) attend the Fairness Hearing even if you do not file a written objection. You will only be allowed to speak at the
Fairness Hearing, however, if you both: (a) submit a written objection to the Settlement to the Court and the lawyers identified below before the Court-approved deadline, as set forth in the response to Question 14, and (b) submit a written Notice of Intent to Appear at Fairness Hearing to the Court and the lawyers identified below before the Court-approved deadline as set forth in response to Question 18.
Copies of some of the relevant documents filed with the Court are available at www.RMKERISASettlement.com or by contacting (877) 940-0108 or Administrator@RMKERISASettlement.com.
SUMMARY OF SETTLEMENT ... 4
BASIC INFORMATION ... 5
1. Why is this Notice being provided? ... 5
2. What is the lawsuit about? What has happened so far? ... 6
3. Why is this case a class action? ... 6
4. Why is there a Settlement? ... 6
5. How do I know whether my Plan is part of the Customer Plans Settlement Subclass? ... 7
6. What does the Settlement provide?. ... 7
7. How much will my Plan get? ... 8
8. How can my Plan get its portion of the recovery? ... 8
9. When can my Plan expect to receive its payment? ... 8
EXCLUDING YOUR PLAN FROM THE SETTLEMENT ... 9
10. Can a Customer Plan opt-out of the Settlement? What is the procedure for opting-out? ... 9
11. What is the effect of opting-out? ... 9
THE LAWYERS REPRESENTING YOU ... 9
12. Does my Plan have a lawyer in the case? ... 9
13. How will the lawyers be paid? ... 9
OBJECTING TO THE SETTLEMENT OR THE ATTORNEYS’ FEES ... 10
14. How do I tell the Court if I don’t like the Settlement ... 10
15. What is the difference between objecting and opting out of the Customer Plans Settlement Subclass? ... 10
THE COURT’S FAIRNESS HEARING ... 11
16. When and where will the Court decide whether to approve the Settlement? ... 11
17. Do I have to come to the hearing? ... 11
18. May I speak at the hearing? ... 11
IF YOU DO NOTHING ... 11
19. What happens if I do nothing at all? ... 11
THE COURT EXPRESSES NO OPINION ABOUT THE MERITS OF THE ACTION ... 11
20. Is the Court taking a position on this case? ... 11
GETTING MORE INFORMATION ... 12
21. How do I get more information? ... 12 SUMMARY OF SETTLEMENT
A Qualified Settlement Fund has been established consisting of $22.5 million (the “Class Settlement Amount”) to settle all Released Claims against all Defendants. As explained in the Settlement Agreement, the share of the Class Settlement Amount allocated to settlement of the claims asserted by the Customer Plans Settlement Subclass is 10.667% (approximately $2.4 million) (“Customer Plans Settlement Subclass Amount”). Information about the three other Settlement Subclasses included in the Settlement is available at www.RMKERISASettlement.com. The Settlement Subclass Amounts, which will consist of the Class Settlement Amount minus certain amounts described in the Settlement Agreement, including Court-approved attorneys’ fees, litigation expenses, Case Contribution Awards to Named Plaintiffs, and costs of administering the Settlement, will be allocated among the Settlement Subclasses in accordance with Section 8.2.1 of the Settlement Agreement and the Plan of Allocation to be approved by the Court. (See Question 7 below for details about the Plans of Allocation.) YOUR PLAN HAS ALREADY BEEN DETERMINED BY THE PARTIES TO BE A MEMBER OF THE PROPOSED CUSTOMER PLANS SETTLEMENT SUBCLASS.
Claims asserted by three In-House Plans Settlement Subclasses (which involve Plans sponsored by Regions Financial Corporation) are also at issue in the Action and will be settled under the Settlement Agreement as well. A separate Notice applies to the In-House Plans Settlement Subclasses.
As with any lawsuit, the Parties would face an uncertain outcome if the Action were not settled. Continued litigation of the Action could result in a verdict greater or less than the recovery under the Settlement Agreement, or in no recovery at all. This Action has been highly contested from the outset. Named Plaintiffs and Defendants have disagreed about whether
Defendants did anything wrong, and they do not agree on the amount that would be recoverable if the case were tried. Defendants, among other things: (1) have denied, and continue to deny, all allegations asserted in the Action; (2) have denied, and continue to deny, any wrongdoing or liability whatsoever; (3) believe that they acted at all times reasonably, prudently and lawfully with respect to the Plans, their participants and beneficiaries, and the Settlement Subclasses, including the Customer Plans Settlement Subclass; (4) would assert certain other defenses if the Settlement is not consummated; and (5) are entering into the Settlement solely to avoid the cost, disruption, and uncertainty of litigation. Plaintiffs’ Co-Lead Counsel will ask the Court for an order awarding them fees not in excess of 30% of the Class Settlement Amount, plus reimbursement of expenses. The two Representative Customer Plans identified above will share in the allocation of the money paid to the Customer Plans on the same basis and to the same extent as all other members of the Customer Plans Settlement Subclass, except that, in addition, Named Plaintiffs will apply to the Court for a Case Contribution Award of up to $10,000.00 each. Any Case Contribution Award granted to Named Plaintiffs by the Court will be payable from the proceeds of the Settlement. C. Fred Daniels as the court-appointed Trustee ad Litem of trusts for the two Representative Plans will not seek a Case Contribution Award or an award of attorneys’ fees.
BASIC INFORMATION 1. Why is this Notice being provided?
The Court has directed that this Notice be sent to the Customer Plans because they have a right to know about the proposed Settlement with Defendants (including Regions) before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and any related objections and appeals are favorably resolved, the Customer Plans Settlement Subclass Amount will be allocated among the Customer Plans according to a Court-approved Plan of Allocation, and the Customer Plans and the fiduciaries, participants and beneficiaries of such Customer Plans, will release Regions and the other Defendant Releasees as more fully defined in the Settlement Agreement from all Released Claims, as set forth in the Settlement Agreement.
This Notice explains the Action, the Settlement, the legal rights of the Customer Plans and their fiduciaries, participants and beneficiaries, what benefits are available under the Settlement, who is eligible for them, and how payment will be made to the Customer Plans. The purpose of this Notice is to inform you of a hearing (“Fairness Hearing”) to be held by the Court to consider the fairness, reasonableness and adequacy of the proposed Settlement and to consider the application of Plaintiffs’ Co-Lead Counsel for attorneys’ fees and reimbursement of litigation expenses as well as an application for Case Contribution Awards to Named Plaintiffs. Another purpose of this Notice is to explain how Your Plan can exclude itself from (opt-out of) the Settlement and how you can object to the Settlement, the application of Plaintiffs’ Co-Lead Counsel for attorneys’ fees and expenses, or the application for Case Contribution Awards to Named Plaintiffs.
The Fairness Hearing will be held at 9:00 am on December 15, 2014, before the Honorable Samuel H. Mays, Jr. of the United States District Court for the Western District of Tennessee, in the Clifford Davis/Odell Horton Federal Building, 167 North Main Street, 11th Floor, Memphis, Tennessee 38103, to determine:
(a) Whether the Settlement should be approved as fair, reasonable, and adequate;
(b) Whether the Action should be dismissed with prejudice pursuant to the terms of the Settlement;
(c) Whether this Notice and the way it was disseminated constituted proper notice and met all applicable legal requirements;
(d) Whether the Settlement Subclasses should be certified for the purposes of settlement only and whether Interim Plaintiffs’ Co-Lead Counsel should be appointed as Plaintiffs’ Co-Lead (Class) Counsel for the Settlement Subclasses;
(e) Whether the application for attorneys’ fees and expenses filed by Plaintiffs’ Co-Lead Counsel should be approved; and
(f) Whether the application for Case Contribution Awards for Named Plaintiffs should be approved.
If the Court approves the Settlement, payment to the Settlement Subclasses will be made after all related appeals, if any, are favorably resolved. It is hard to tell whether such appeals, if any, will be favorably resolved, and resolving them can take time, perhaps more than a year. Please be patient.
2. What is the lawsuit about? What has happened so far?
With respect to the Customer Plans Settlement Subclass, Named Plaintiffs allege that Defendants were fiduciaries of the Customer Plans and violated fiduciary duties under the ERISA by allowing the Customer Plans to invest or remain invested in the RMK Bond Funds when they were allegedly unsuitable and imprudent investments for the Customer Plans. Named Plaintiffs further allege that Defendants violated ERISA by failing to adequately monitor appointees, by failing to provide information pertinent to the RMK Bond Funds to other fiduciaries, by failing to provide participants with complete and accurate information about the RMK Bond Funds, by failing to monitor the performance of other fiduciaries or otherwise prevent or remedy breaches of duty by other fiduciaries, and by knowingly participating in the breaches. Named Plaintiffs sought to recover from Defendants the losses that the Customer Plans suffered when the value of the RMK Bond Funds declined during the Customer Plans Subclass Period. Defendants deny that they have any liability to the Customer Plans, their fiduciaries, participants or beneficiaries, and deny that Named Plaintiffs, the Customer Plans, and the Customer Plans’ participants and beneficiaries have suffered any losses attributable to Defendants’ actions. Additional and different claims are asserted on behalf of the In-House Plans Settlement Subclasses.
Plaintiffs’ Co-Lead Counsel have conducted an extensive investigation of the facts and claims in this Action, including of the alleged losses suffered by the Customer Plans as a result of the breaches of fiduciary duty alleged in the Action. Through that investigation and through discovery of additional information in the Action, Plaintiffs’ Co-Lead Counsel have obtained documents and materials governing the Customer Plans, Regions’ Securities and Exchange Commission filings, press releases, public statements, news articles and other publications. Plaintiffs’ Co-Lead Counsel have reviewed and analyzed these materials and thousands of documents and electronically stored information produced by Defendants and conclude that the Settlement is fair, reasonable and adequate and in the best interest of the Customer Plans Settlement Subclass. The Court denied Defendants’ first motions to dismiss the Complaint. Plaintiffs filed amended and supplemental complaints, including the Third Amended Complaint. Defendants’ motions to dismiss the Third Amended Complaint were denied by the Court as to certain claims and remained pending as to others at the time of Settlement.
This Settlement is the product of intensive, arm’s-length negotiations between Plaintiffs’ Co-Lead Counsel and Defendants’ Counsel, during which the terms of the Settlement were extensively debated and negotiated. The Settlement should not be construed or seen as evidence of or an admission or concession on the part of any Defendant with respect to any claim or of any fault or liability or wrongdoing or damage whatsoever, or any infirmity or weakness in the defenses that Defendants have asserted.
3. Why is this case a class action?
In a class action, one or more plaintiffs, called “Named Plaintiffs,” sue on behalf of people who have similar claims. With respect to the Customer Plans Settlement Subclass, the individuals on whose behalf Named Plaintiffs are suing are members of a “class” of certain fiduciaries, participants, beneficiaries, and former fiduciaries, participants, and beneficiaries of the Customer Plans. Here, there are four Subclasses, of which the Customer Plans Settlement Subclass is one, because there are different types of claims at issue.
4. Why is there a Settlement?
In reaching the Settlement, the Parties have avoided the cost, time and risk associated with a trial. As with any litigation, Named Plaintiffs would face an uncertain outcome if this Action proceeded, including the risk of losing on appeal or at trial. On the one hand, pursuing the case against Defendants could result in a verdict offering relief greater than this Settlement. On the other hand, continuing the case against Defendants could result in a verdict for less money than Named Plaintiffs have obtained in this Settlement, or even no recovery at all. Based on these risks and an evaluation of the particular risks presented by this case, Named Plaintiffs and Plaintiffs’ Co-lead Counsel believe the Settlement is in the best interests of the Customer Plans Settlement Subclass.
5. How do I know whether my Plan is part of the Customer Plans Settlement Subclass?
The Court has preliminarily certified this case to proceed as a class action for purposes of Settlement. The Customer Plans Settlement Subclass consists of all employee benefit plans governed by Part 4 of Title I of ERISA for which Regions Bank, whether in its own name or doing business as “Regions Morgan Keegan Trust,” either (i) provided trustee, custodial, investment management or investment advisory services or (ii) otherwise provided access to a platform of investments, and had any assets invested in any one of the RMK Bond Funds during the period from November 9, 2006 through July 29, 2008 inclusive (the “Customer Plans Subclass Period”). Excluded from the Customer Plans Settlement Subclass are the Customer Plans that previously signed agreements releasing one or more of the Defendants from claims encompassed by the Released Claims. The Customer Plans Settlement Subclass does not include any employee benefit plan sponsored by Regions Financial Corporation or any present or former subsidiary or affiliate.
If Your Plan is a member of the Customer Plans Settlement Subclass, Your Plan’s share of the Customer Plans Settlement Subclass Amount, if any, will be determined in accordance with the Court-approved Plan of Allocation, described in the response to Question 7 below.
6. What does the Settlement provide?
The Settlement Agreement provides for the payment of $22.5 million (the “Class Settlement Amount”) into a Qualified Settlement Fund. As explained in the Settlement Agreement, 10.667% of the Class Settlement Amount (approximately $2.4 million) will be allocated to the Customer Plans Settlement Subclass and 89.333 % of this payment will be allocated to the three In-House Plans Settlement Subclasses, which are also being settled under the Settlement Agreement. The Class Settlement Amount (including interest, but after payment of certain amounts described in the Settlement Agreement, including Court-approved attorneys’ fees and litigation expenses, Named Plaintiff Case Contribution Awards, taxes, and costs related to administration of the Settlement) will be allocated to the subclasses, including to the Customer Plans Settlement Subclass, according to Section 8.2.1 of the Settlement Agreement and the Plan of Allocation. The portion paid to the Customer Plans Settlement Subclass is referred to as the Customer Plans Settlement Subclass Amount.
In exchange for the settlement payment and other consideration, all Customer Plans Settlement Subclass members and anyone claiming through them will fully release all Defendant Releasees from all Released Claims, and will be barred from bringing any Released Claim against any Defendant Releasee. The specific Defendant Releasees are identified in the Settlement Agreement; generally they are Defendants and certain affiliated or otherwise related persons and entities. The Released Claims, as specifically defined in the Settlement Agreement and only summarized here, generally include, subject to certain limitations set forth in the Settlement Agreement, all claims asserted in the Action, as well as any claims that could have been asserted by or on behalf of Customer Plans Settlement Subclass members which arise from, out of, or in connection with any of the acts, omissions, facts, matters, transactions, or occurrences that are alleged, referred to, described, or mentioned in the Complaint. This means that Customer Plans Settlement Subclass members will not have the right to sue the Defendant Releasees for any such Released Claims if the Settlement is approved. The Released Claims do not include claims to enforce the settlement or the claims asserted in: In re Regions Morgan Keegan Open-End Mutual Fund Litigation, Case No. 2:07-2784-SHM-dkv; In re Regions Morgan Keegan Closed-End Fund Litigation, Case No. 2:07-cv-02830-SHM-dkv; Landers et al. v. Morgan Asset Management, Inc. et al., 2:08-cv-02260-SHM; and In re Helios Closed-End Funds Derivative Litigation, 2:11-cv-02935-SHM, which are separate lawsuits and which are not affected by this Settlement. Similarly, any rights of Customer Plans Settlement Subclass members to receive payments or distributions from the SEC Fair Fund are not Released Claims and are not affected by the Settlement. However, Settlement Subclass members shall not be entitled to recover more than 100% of their losses.
7. How much will my Plan get?
Plaintiffs’ Co-Lead Counsel have submitted the Plan of Allocation to the Court for approval by the Court at or after the Fairness Hearing. The Plan of Allocation for the Customer Plans Settlement Subclass Amount, which may be obtained at www.RMKERISASettlement.com, or by contacting (877) 940-0108 or Administrator@RMKERISASettlement.com, describes how the Customer Plans Settlement Subclass Amount will be distributed to Customer Plan Accounts. For the Customer Plans Settlement Subclass, the Plan of Allocation generally provides that each Customer Plan Account’s share of the Customer Plans Settlement Subclass Amount will be calculated in proportion to its Net Bond Fund Losses. The Plan of Allocation provides that, at a minimum, each Customer Plan Account will be allocated $100.00.
The Claims Administrator will calculate each Customer Plan Account’s Net Bond Fund Loss by: (i) taking the market value of the Customer Plan Account’s investments in the RMK Bond Funds at the beginning of the Customer Plans Subclass Period (i.e., on November 9, 2006); (ii) adding the purchase price or market value of any additional shares of the RMK Bond Funds that were purchased or otherwise acquired by the Customer Plan Account during the Subclass Period; (iii) subtracting the dollar amounts received by or credited to the Customer Plan Account as a result of any dispositions (e.g., sales, redemptions, transfers, etc.) of shares of the RMK Bond Funds during the Subclass Period; (iv) subtracting the market value of the Customer Plan Account’s investments in RMK Bond Funds at the end of the Subclass Period (i.e., on July 29, 2008); (v) subtracting the dollar amount of any payment from the States’ Fund to the Customer Plan Account; and (vi) subtracting $100.
The Claims Administrator will assign each Customer Plan Account a Net Bond Fund Loss Percentage determined by dividing the sum of all Customer Plan Accounts’ Net Bond Fund Losses into each Customer Plan Account’s individual Net Bond Fund Loss. Each Customer Plan Account’s share of the Customer Plans Settlement Subclass Amount will be equal to $100.00 plus the Customer Plans Settlement Subclass Amount (less fees and expenses) multiplied by the Customer Plan Account’s Net Bond Fund Loss Percentage.
The Claims Administrator will perform all calculations and determine whether Your Plan is entitled to a share of the Customer Plans Settlement Subclass Amount and, if so, Your Plan’s allocated share. Defendants and, where applicable, the Trustee ad Litem, will provide the Claims Administrator with their available Plan records so you do not need to be concerned if you no longer have your Plan account statements.
8. How can my Plan get its portion of the recovery?
Neither you nor Your Plan need to file a claim. Your Plan’s allocated share, if any, will be distributed to Your Plan.
9. When can my Plan expect to receive payment?
Payment is conditioned on several things, including the Court’s approval of the Settlement and that approval becoming a Final Order and no longer subject to any appeals. Depending on the court process, distribution could take many months or more than a year; please be patient. Allocation and distribution within Your Plan of the amount Your Plan receives from the Settlement, if any, is to be decided solely by Your Plan and is not addressed or determined by the Settlement Agreement or Plan of Allocation in this Action.
10. Can a Customer Plan opt-out of the Settlement? What is the procedure for opting out?
Under the Settlement a fiduciary of a Customer Plan may cause that Customer Plan to exclude itself (“opt-out”) from the Settlement. To do so, a Plan fiduciary must send a letter signed by the fiduciary or an authorized representative of a Plan fiduciary clearly manifesting an intent that the Customer Plan be excluded from the Customer Plans Settlement Subclass. The letter must include the full legal name of the Plan, the name, telephone number and address of the Plan fiduciary or other duly authorized representative of the Plan fiduciary executing the opt-out request on behalf of a Customer Plan. The written opt-out request must also state the title or position of each person submitting the exclusion request on behalf of a Customer Plan, and include a statement that the person(s) executing the request is authorized to do so on behalf of the Customer Plan. The Plan fiduciaries for a Customer Plan should be identified in the documents establishing and governing the Plan. Often, the employer (Plan sponsor) is the Plan Administrator and is, therefore, a fiduciary. Questions concerning identification of Plan fiduciaries who can exercise the right of a Customer Plan to exclude itself (“opt-out”) from the Settlement can be directed to Plaintiffs’ Co-Lead Counsel (see response to Question 14 below). Any requests for exclusion must be mailed by First Class Mail (preferably by Certified First Class Mail, Return Receipt Requested) postmarked no later than October 31, 2014 and received by November 7, 2014 by the Claims Administrator at the following address:
Regions Morgan Keegan ERISA Settlement c/o GCG
P.O. Box 35105 Seattle, WA 98124-5015 11. What is the Effect of Opting Out?
Any Customer Plan that opts out-of the Settlement will not receive any share of the Customer Plans Settlement Subclass Amount, or any other proceeds under the Settlement. Further, any Customer Plan that opts-out of the Settlement will not be bound by the provisions of the Settlement that prevent any Customer Plan from pursuing a legal proceeding against the Defendant Releasees on any of the Released Claims. Therefore, if a Customer Plan’s fiduciaries would prefer to bring their own suit against Defendants for any of the Released Claims—instead of having that Customer Plan receive its pro rata share of the Customer Plans Settlement Subclass Amount—a Plan fiduciary must submit a request to opt-out of the Settlement on behalf of the Plan.
THE LAWYERS REPRESENTING YOU 12. Does my Plan have a lawyer in the case?
Yes. The Court thas appointed the law firms of Keller Rohrback L.L.P. and Feinstein Doyle Payne & Kravec, LLC as Interim Co-Lead Counsel for the Named Plaintiffs, the Customer Plans, and the Customer Plans Settlement Subclass. Your Plan will not be charged directly by these lawyers. If Your Plan wants to be represented by its own lawyer, Your Plan may hire one at its own expense. If Your Plan does hire its own attorney, the attorney must both effect service of a Notice of Appearance on counsel listed in the answer to Question 14 below and file the Notice of Appearance with the Court no later than November 14, 2014. To speak at the Fairness Hearing, you or Your Plan’s attorney must file a Notice of Intent to Appear at Fairness Hearing as explained below in Question 18.
13. How will the lawyers be paid?
Plaintiffs’ Co-Lead Counsel will apply for an award of attorneys’ fees and reimbursement of litigation expenses. The application for attorneys’ fees will not exceed 30% of the Class Settlement Amount. Any award of fees and additional expenses will be paid from the Class Settlement Amount prior to allocation and payment to the Customer Plans Settlement Subclass. The written application for fees and expenses, together with the application for Case Contribution Awards to Named Plaintiffs, will be filed on September 23, 2014, and the Court will consider this application at the Fairness Hearing. A copy of the application will be available at www.RMKERISASettlement.com. Any objection to the application for attorneys’ fees and litigation expenses must be BOTH (a) filed with the Clerk of the Court c/o the address listed below in response to Question 14, and (b) received by all of the counsel listed below in response to Question 14 by no later than October 28, 2014. To date Plaintiffs’ Co-Lead Counsel have not received any payment for their services in prosecuting this Action on behalf of the Customer Plans Settlement Subclass, nor have counsel been reimbursed for their
OBJECTING TO THE SETTLEMENT, THE ATTORNEYS’ FEES, OR THE CASE CONTRIBUTION AWARDS
14. How do I tell the Court if I don’t like the Settlement?
As a fiduciary of a Customer Plan, or a participant or beneficiary of a Customer Plan, you may object to the Settlement if you do not like any part of it. To object, you must send a letter or other written statement saying that you object to the Settlement, the application for an award of attorneys’ fees and expenses, and/or the Case Contribution Awards in In Re Regions Morgan Keegan ERISA Litigation, No. 2:08-cv-2192-SHM-dvk. Such written objections must: (a) state all the supporting bases and reasons for the objections; (b) set forth the basis of your membership in the Customer Plans Settlement Subclass; (c) describe any witnesses, documents and any other evidence of any kind that you may wish to present at the Fairness Hearing in connection with such objections; and (d) provide a summary description of the substance of any testimony that you may wish to offer yourself or through any witnesses in support of your objections. Along with the information set forth in items (a) through (d), be sure that your objection includes your name, address, telephone number, and signature.
Any written objection, together with all required supporting documents, must be BOTH (a) filed with the Clerk of the Court c/o of the address listed below, and (b) received by upon all of the counsel listed below, by no later than October 28, 2014. To speak at the Fairness Hearing, you or Your Plan’s attorney must also file a Notice of Intent to Appear at Fairness Hearing as explained below in response to Question 18.
All written objections must be received by the Clerk of the Court and the lawyers listed below by October 28, 2014:
CLERK OF THE COURT PLAINTIFFS’ CO-LEAD
COUNSEL: COUNSEL FOR DEFENDANTS:
United States District Court for the Western District of Tennessee Clifford Davis/Odell Horton Federal
Building 167 North Main Street Memphis, Tennessee 38103 Re: 2:08-cv-2192-SHM-dvk
Derek W. Loeser KELLER ROHRBACK L.L.P.
1201 Third Avenue Suite 3200 Seattle, WA 98101
Michael J. Prame GROOM LAW GROUP,
CHARTERED
1701 Pennsylvania Avenue, N.W. Suite 1200
Washington, DC 20006-5811 Ellen Doyle
FEINSTEIN DOYLE PAYNE & KRAVEC, LLC
1705 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219
William B. Wahlheim, Jr. MAYNARD COOPER
& GALE, P.C. 1901 - 6th Avenue N.
Suite 2400 Birmingham, AL 35203 15. What is the difference between objecting and opting-out of the Customer Plans Settlement Subclass?
Objecting is simply telling the Court that you disapprove of some aspect of the Settlement. You can object only if Your Plan stays in the Customer Plans Settlement Subclass. If a Customer Plan opts-out of the Subclass, it will no longer be part of the Subclass or participate in the Settlement.
UNLESS OTHERWISE ORDERED BY THE COURT, ANY SETTLEMENT SUBCLASS MEMBER WHO DOES NOT OBJECT IN THE MANNER DESCRIBED ABOVE WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION AND SHALL BE FOREVER FORECLOSED FROM OBJECTING TO THE PROPOSED SETTLEMENT AND THE APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES AND CASE CONTRIBUTION AWARDS.
THE COURT’S FAIRNESS HEARING 16. When and where will the Court decide whether to approve the Settlement?
The Court will hold a Fairness Hearing at 9:00 am on December 15, 2014, in Courtroom 2 of the United States District Court for the Western District of Tennessee, Clifford Davis/Odell Horton Federal Building, 167 North Memphis Street, 11th Floor, Memphis, Tennessee 38103.
IF YOU DO NOT WISH TO OBJECT TO THE PROPOSED SETTLEMENT OR THE APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES AND CASE CONTRIBUTION AWARDS, YOU DO NOT NEED TO ATTEND THE FAIRNESS HEARING.
At the hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. After the Fairness Hearing, the Court will decide whether to approve the Settlement and certify the Settlement Subclasses. The Court will also consider the motions for attorneys’ fees and expenses and Case Contribution Awards to Named Plaintiffs, as well as the proposed Plan of Allocation. We do not know how long these decisions will take.
You should be aware that the Court may change the date and time of the Fairness Hearing without further notice to the Class. If you plan to attend the Fairness Hearing, you should confirm the date and time with Plaintiffs’ Co-Lead Counsel. 17. Do I have to come to the hearing?
No, but you are welcome to come at your own expense. If you submit a written objection, you do not have to come to Court to talk about it. As long as your written objection is filed and received on time, it will be before the Court when the Court considers whether to approve the Settlement. You may also have your own lawyer – at your own expense – attend the Fairness Hearing, but such attendance is not mandatory.
18. May I speak at the hearing?
You or Your Plan’s attorney may speak at the Fairness Hearing and explain (i) why you think the proposed Settlement of this Action should not be approved as fair, reasonable and adequate; (ii) why you think that a judgment and order granting final approval of the Settlement should not be entered; and/or (iii) why any requested application for an award of attorneys’ fees and expenses and Case Contribution Awards should not be granted in whole or in part; if you timely: (a) file your objection with the Court in writing and (b) ask the Court for permission to speak by sending a letter or other paper called a “Notice of Intent to Appear at Fairness Hearing in In Re Regions MorganKeegan ERISA Litigation, No. 2:08-cv-2192-SHM-dvk.” The Notice of Intent to Appear must be BOTH (a) received by the attorneys listed in the response to Question No. 14 above no later than November 14, 2014, and (b) filed with the Clerk of the Court at the address listed in the response to Question No. 14 no later than November 14, 2014. Be sure to include your name, address, telephone number, and signature, and, if applicable, the name, address and phone number of Your Plan’s attorney. Any objector or objector’s attorney who does not timely file and serve a Notice of Intent to Appear in accordance with this paragraph will not be permitted to speak at the Fairness Hearing, except for good cause shown.
IF YOU DO NOTHING 19. What happens if I do nothing at all?
If you do nothing and you are a Customer Plans Settlement Subclass member, you will participate in the Settlement as described in this Notice if the Settlement is approved, and you will be deemed to have released all Released Claims against all of the Defendant Releasees.
THE COURT EXPRESSES NO OPINION ABOUT THE MERITS OF THE ACTION 20. Is the Court taking a position on this case?
No. By authorizing this Notice to be sent to the Customer Plans in the Customer Plans Settlement Subclass, the Court expresses no opinion on the merits of the parties’ claims or defenses.
GETTING MORE INFORMATION 21. How do I get more information?
This Notice summarizes the proposed Settlement. Full details about the Settlement are in the Settlement Agreement. You may obtain copies of the Settlement Agreement, as well as copies of the motion seeking preliminary approval of the Settlement Agreement and the Preliminary Approval Order, at www.RMKERISASettlement.com Settlement Agreement or by contacting (877) 940-0108 or Administrator@RMKERISASettlement.com.
Please Do Not Call the Court with Questions about the Settlement. DATED: June 23, 2014.
