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

54. Thus, a finding of liability would require careful presentation and analysis of
lengthy and detailed Plan documents, complex corporate financial and accounting matters, and
sophisticated judgments about the investment decisions the Defendants made.
55. Establishing damages would also require complex assessments and expert
testimony. In this case, the Defendants argued that even if the imprudence of Merrill stock as a
Plan investment could be established, that did not occur until so late in the Class Period that
Plaintiffs’ damages would be minimal. One of the principal challenges Plaintiffs faced was
showing that Merrill was an imprudent Plan investment early in the Class Period.
56. Assuming that the case survived Defendants’ motion to dismiss, the Parties stood
at the very beginning of a long and costly litigation process, with class certification, discovery,
motions for summary judgment, trial and appeals all ahead of them.
B. The Class’s Reaction to the Settlement
57. The Named Plaintiffs were kept informed of the settlement negotiations with the
Defendants throughout the negotiating process. They all support the Settlement without
qualification. See Declarations of Carl Esposito, Barbara Boland, Alan Maltzman and Mary
Gidaro, attached as Exhibits B through E hereto.
58. Between March 31, 2009 and June 24, 2009, Co-Lead Counsel have responded to
229 telephone and 62 email inquiries from 219 Class Members or potential Class Members and
the Settlement website has had 1,589 hits.
59. Furthermore, in response to the more than 70,000 Class Notices that were mailed,
as well as the Publication Notices, Plaintiffs have received only one objection, from David A.
Cross, who does not object to the Settlement, but only to maximum potential attorneys’ fees
stated in the Class Notice of 27.5%, which is more than Plaintiffs request here. In addition, as
discussed in the Memorandum of Law in Support of Plaintiffs’ Motion for Award of Attorneys’
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