Joint Declaration of Lynn L. Sarko and Marc I ... - Cohen Milstein

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on its own feet in the face of deteriorating market conditions without support from both Bank of America (whose capital to support Merrill’s illiquid assets are far from unlimited) and the federal government. It would be irresponsible for Plaintiffs to assume that such support will necessarily continue throughout the course of continued litigation which, with appeals, could last many years. 36. In sum, after significant investigation and analysis of Plaintiffs’ claims and further intense legal analysis of the strength and weaknesses of the case in connection with Plaintiffs’ preparation of their opposition to Defendants’ motion to dismiss, as well as the settlement negotiations and consultation with experts, Plaintiffs believe they had a strong base from which to properly evaluate the strengths and potential weaknesses of the case and the value of the lawsuit. E. Terms of the Settlement 37. This is a global settlement resulting in a release of claims against all Defendants that will bring this litigation to a close. The principal terms of the Settlement, which are described in the Settlement Stipulation previously filed with and preliminarily approved by the Court and attached as Exhibit 1 to the [proposed] Final Order and Judgment, are summarized as follows: 1. Settlement Class 38. The Settlement Stipulation contemplates that the Court will certify the following settlement class under Fed. R. Civ. P. 23(b)(1) and (b)(2): 4 (a) all current and former participants and beneficiaries of any of the Plans whose individual Plan account(s) included investments in Merrill Lynch stock at any time during the Class Period 4 and (b) as to each Person within the scope of subsection (a) of this Paragraph 1.3, his, her or its beneficiaries, alternate payees Defined as September 30, 2006 through December 31, 2008. 11
(including spouses of deceased Persons who were participants of one or more of the Plans), Representatives and Successors-In-Interest, provided, however, that the Class shall not include any Defendant or any of their Immediate Family, beneficiaries, alternate payees (including spouses of deceased Persons who were Plan participants), Representatives or Successors-In-Interest, except for spouses and immediate family members who themselves are or were participants in any of the Plans, who shall be considered members of the Class with respect to their own Plan accounts. a. Settlement Amount 39. Under the Settlement, Defendants will pay a Settlement Amount of $75 million. The Settlement Amount was placed in an interest-earning account following the Court’s entry of the Preliminary Approval Order and now constitutes what is referred to as the “Settlement Fund.” The Settlement Fund, less Court-approved attorneys’ fees, expenses and case contribution awards to the Named Plaintiffs, will, if the settlement is finally approved and such approval becomes non-appealable, be distributed to the Plans for allocation to the accounts of Class members. Settlement Stip. 3.1-3.4. b. Released Claims 40. Plaintiffs release their and the Class’s ERISA claims against the Defendants and certain associated entities arising during the Class Period. Settlement Stip. 2.1-2.4. c. Plan of Allocation 41. The Net Proceeds will be allocated to Plan accounts of Class members pursuant to a detailed Plan of Allocation that is being submitted to the Court for approval. 12 The proceeds of the Settlement are in addition to amounts the Plans might receive pursuant to the settlement of the Securities Action. Settlement Stip. 2.4 (“[a]mounts paid under the Settlement shall not constitute an offset or credit with respect to amounts to be paid in settlement of the Securities Action, nor shall amounts paid in settlement of the Securities Action constitute an offset or credit with respect to amounts payable in the Settlement.”). The Plan of Allocation that Plaintiffs
Page 1 and 2: -----------------------------------
Page 3 and 4: A. Class Certification is Warranted
Page 5 and 6: “27.5% fee request,” which is m
Page 7 and 8: 12. The initial and subsequent Comp
Page 9 and 10: C. Discovery 18. Plaintiffs started
Page 11 and 12: 25. Plaintiffs insisted that any se
Page 13: of Merrill’s balance sheet identi
Page 17 and 18: class members at their last known a
Page 19 and 20: 50. Plaintiffs’ claims raise a ho
Page 21 and 22: Fees, Expenses, and Case Contributi
Page 23 and 24: 9 documents cannot relieve fiduciar
Page 25 and 26: f. Defendants argue that neither Me
Page 27 and 28: turmoil experienced in the financia
Page 29 and 30: 77. With respect to breaches in 200
Page 31 and 32: H. The Reasonableness of the Settle
Page 33 and 34: 92. Defendants had no role in formu
Page 35 and 36: own firms and to the others involve
Page 37 and 38: Firm Hours Lodestar Harwood Feffer
Page 39 and 40: expenses of $372,312.94. In additio
Page 41 and 42: 116. Despite the complexity and unc
Page 43 and 44: 125. Keller Rohrback’s work as le
Page 45 and 46: litigation are also debtors in bank
Page 47 and 48: evaluating the fairness of both sec
Page 49 and 50: Sterling, LLP, and Simpson Thacher
Page 51 and 52: See, e.g., ERISA § 502(a), 29 U.S.
Page 53: X. NAMED PLAINTIFFS SHOULD BE GRANT

Joint Declaration of Lynn L. Sarko and Marc I ... - Cohen Milstein

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