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

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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’ 17
Fees, Expenses, and Case Contribution Awards (the “Fee Memo”) and in more detail in § VII(E) below, Mr. Cross recognizes that a multiplier of up to 3.0 is appropriate in complex cases such as this one. A copy of Mr. Cross’s objection is attached as Exhibit F hereto. 60. Under the provisions of the Preliminary Approval Order and the Class Notice, the deadline for filing and service of objections is July 6, 2009. Co-Lead Counsel will respond to additional objections, if any, that are filed and served before this deadline on or before July 20, 2009, and will post these responses on the Settlement website. C. The Stage of the Proceedings and Discovery Completed 61. We were mindful of the early stage of the litigation at the time the Settlement was reached. Consequently, the Settlement was made contingent on Co-Lead Counsel’s confirmation of the fairness, adequacy, and reasonableness of the Settlement after extensive confirmatory discovery. Settlement Stip. 8.1.3. 62. That confirmatory discovery has included the production of over 38 million pages of documents, including those produced by Merrill in regulatory investigations, materials presented to Merrill’s Board of Directors bearing on the riskiness of Merrill stock, and documents, including minutes and presentations, relating to the work of the Committees whose members are named as fiduciaries in the Complaint. 63. In addition, Co-Lead Counsel participated in a proffer conducted by Merrill’s in house counsel setting out Merrill’s view of the evidence, and in seven interviews, including of Merrill’s CEO, CFO, two Co-Presidents, the Investment Committee member who our document review indicated was the best informed about Merrill’s financial condition and subprime/CDO exposure, and the individual who served as Secretary to the Investment Committee, was a member of the Administrative Committee and performed the duties of the Administrative Committee. 18
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 and 14: of Merrill’s balance sheet identi
Page 15 and 16: (including spouses of deceased Pers
Page 17 and 18: class members at their last known a
Page 19: 50. Plaintiffs’ claims raise a ho
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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