Champlain Enterprises Inc. (CommutAir”) ESOP
This notice (“Notice”) advises you of a proposed settlement (the “Settlement”) of litigation (referred to herein as the “Action”) brought by Joseph Henry and Michael Malinky (the “Plaintiffs”) against Bank of America, N. A. formerly known as U.S. Trust Company of California, N.A. (“Defendant”). Plaintiffs and Defendant are referred to herein collectively as the “Parties.” In the Action, Plaintiffs seek to recover losses, which they allege were suffered by the CommutAir ESOP as the result of breaches of fiduciary duty by Defendant.
The United States District Court for the Northern District of New York (the “Court”) has preliminarily approved the Settlement, and has scheduled a hearing (the “Fairness Hearing”) to evaluate the fairness and adequacy of the Settlement at which the Court will consider: (i) whether to approve the Settlement as fair and adequate; (ii) whether to enter a judgment (the “Judgment”) which will bar you from filing your own lawsuit on issues raised in the Action; (iii) whether to approve the Plan of Allocation; and (iv) whether to award attorneys’ fees and expenses to Plaintiffs’ Counsel and incentive awards to Plaintiffs. The Fairness Hearing, before the Hon. Randolph F. Treece, has been scheduled for February 14, 2012, at 9:30 a.m., at the United States District Court for the Northern District of New York, James T. Foley U.S. Courthouse, 445 Broadway, Room 314, Albany, NY 12207. If the Court issues final approval of the Settlement, Defendant will cause the payment of Two Million Dollars ($2,000,000.00) into an Escrow Account. Following payment of all approved fees, expenses and incentive awards, the Net Settlement will be paid to the ESOP’s current trustee for allocation to Eligible Participants who qualify for benefits under the Plan of Allocation.
The terms of the Settlement are contained in a Settlement Agreement (the “Settlement Agreement”), a copy of which is available on this website.
Any questions regarding the Settlement should be directed to Plaintiffs’ Counsel: Gary Greenwald, Keller Rohrback P.L.C., 3101 N. Central Avenue, Suite 1400, Phoenix, Arizona 85012, tel: 602-230-6326, Terence Devine, Devine, Markovits & Snyder, LLP, 52 Corporate Circle, Albany, New York 12203, tel: 518-464-0640, or Stanley H. Shayne, Shayne Nichols LLC, Two Miranova Place, Suite 220, Columbus, Ohio 43215 tel: 614-221-2220. Plaintiffs’ Counsel has established a toll-free phone number, (800) 315-7082, for your questions or comments. Plaintiffs’ Counsel may also be contacted . Please do not contact the Court, as Court personnel will not be able to answer your questions.
Summary of Settlement
Under the Settlement, $2.0 million in cash will be paid into a qualified settlement fund (the “Settlement Fund”). This amount shall be disbursed as follows:
(a) Court awarded Plaintiffs’ Counsel’s attorneys’ fees and expenses, Plaintiffs’ incentive awards, and reasonable costs of the Settlement either approved by the Court or previously agreed to by the parties, shall be paid from the Settlement Fund.
(b) The balance in the Settlement Fund shall be disbursed to the ESOP’s current trustee, subject to the Plan of Allocation (the “Net Settlement”).
Disbursements will be made as promptly as practicable after the Court’s approval of the Settlement has become Final.
The Plan of Allocation
In general terms, the Plan of Allocation provides:
The Settlement Agreement provides for the Plaintiffs and the ESOP’s Independent Fiduciary to jointly submit to the Court a proposed Plan of Allocation that will provide for the allocation of amounts deposited into the Settlement Fund (after payment of Court-approved attorneys’ fees, expenses and Plaintiff incentive awards as well as other settlement related costs and expenses including the fee and any expenses of the Independent Fiduciary) to ESOP participants and beneficiaries.
Under the Plan of Allocation, “Eligible Participants” will be defined to include each individual who was (a) an employee of Champlain Enterprises, Inc. and an ESOP participant on January 3, 2001, or (b) a former employee of Champlain Enterprises, Inc. and an ESOP participant on January 3, 2001. Allocations will be made as of the appropriate Allocation Date based upon a formula which allocated to affected Participants’ Cash Account a share of the Net Proceeds of settlement in a ratio that the total balance of his Cash Account and his Stock Account on the Allocation Date (reduced by any distributions of Capital Accumulation made before or after the Allocation Date) bears to the sum of such Account Balances for all Eligible Participants as of the Allocation Date.
A detailed Plan of Allocation has been filed with the Court and is posted on this website.