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CNA ERISA Settlement

Welcome to the Dolins v. Continental Casualty Company Settlement website. This website is intended to keep Class members informed regarding the Class Action Settlement. While the District Court has approved the Notice of Proposed Settlement (the “Class Notice”) and ordered that certain documents filed with the Court be posted on this website, the content of this website is the responsibility of Plaintiffs’ Counsel and has not been approved by the Court.

Background

The case involves the CNA 401(k) Plus Plan (the “Plan”).  The Complaint was filed on September 14, 2016, on behalf of a proposed class of participants in the Plan who had invested some or all of their Plan Accounts in the CNA Fixed Income Fund (the “CNA Fund”). The Defendants include Continental Casualty Company, Continental Assurance Company, CNA Financial Corporation, the Investment Committee of the CNA 401(k) Plus Plan and Northern Trust Company (“Defendants”).

The Complaint arises out of a contract between the Plan and Continental Assurance Company that guaranteed that the rate of interest credited to the CNA Fund would never drop below 4% per year.  The Complaint alleges the decision of the Plan’s fiduciaries (the people running the plan) to cancel this contract harmed the Plaintiff and the class members as without this guarantee, the CNA Fund earned a lower rate of return on its assets.  The Complaint alleges a breach of fiduciary duty under the Employee Retirement Income Security Act (ERISA) and engaging in a prohibited transaction in violation of ERISA.

On December 5, 2016, Defendants moved to dismiss many of the claims in this case. Plaintiff filed his oppositions to Defendants’ motions to dismiss on January 20, 2017 and the matter was heard before the Court on February 27, 2017. On August 18, 2017, Judge Feinerman issued an order denying nearly all of Defendants’ motions to dismiss.

After months of extensive negotiations and mediation, with the assistance of an experienced neutral mediator, the parties reached a compromise, and on May 2, 2018, signed a Memorandum of Understanding containing the principal settlement terms. A Class Action Settlement Agreement (the “Settlement Agreement”) was finalized by the parties on May 31, 2018.

Settlement FAQs

Q: How do I know whether I am part of the Settlement Class?

On June 7, 2018, the Court entered an Order preliminarily approving the Settlement and certifying this Lawsuit as a class action for settlement purposes only. The Settlement Class consists of the following persons: all persons who are or were participants in or beneficiaries of the Plan who had funds in their Plan accounts invested in the CNA Fixed Income Fund at any time between January 1, 2012, and May 2, 2018. Excluded from the Settlement Class are any and all individuals who were members of the Plan’s Investment Committee at any time from November 16, 2009, through May 2, 2018.

Q: How will the Settlement be distributed? What will be my Share of the Settlement Fund?

 Class Counsel has submitted a detailed Plan of Allocation to the Court for approval at the Fairness Hearing. The Plan of Allocation is included in the Settlement Agreement, paragraph 9. It describes the way that the Net Settlement Amount will be distributed to Settlement Class members. In general terms, the Net Settlement Amount will be allocated to Settlement Class members on a pro rata basis such that the amount received by each Settlement Class member will depend on his or her calculated loss, relative to the losses of other Settlement Class members, related to Plan investments in the CNA Fixed Income Fund. Because the Net Settlement Amount is less than the total losses alleged to be suffered in the Lawsuit, each Settlement Class member’s proportionate recovery will be less than his or her alleged loss. You are not responsible for calculating the amount you may be entitled to receive under the Settlement. This calculation will be done as part of the implementation of the Settlement, and will be based on reasonably available Plan data. Settlement amounts will be paid through the Plan to the extent feasible consistent with the Plan’s rules and applicable law.

Members of the Settlement Class do not need to do anything in order to obtain the benefits and protections provided by the Settlement in this case. If you are a Settlement Class member entitled to a share of the Net Settlement Fund, your share will be deposited in your Plan account. If you are a former Plan participant, an account will be established for you in the Plan if necessary, and you will be notified of such account. If you are a former participant and have not provided the Plan with your current address, please contact the Plan Administrator at CNA immediately, or contact . Class Members will have available to them all of the distribution options that the Plan provides.

Q: What if I do nothing?

If you do nothing and you are a Class Member, you will participate in the Settlement as described above if the Settlement is approved.

Q: Can I exclude myself from the Settlement?

You do not have the right to exclude yourself from the Settlement. For settlement purposes, the Lawsuit was certified as a class action under Federal Rule of Civil Procedure 23(b)(1) (non-opt-out class) because the Court determined the requirements of that rule were satisfied. As a result, it is not possible for any of the members of the Settlement Class to exclude themselves from the Settlement. As a member of the Settlement Class, you will be bound by any judgments or orders that are entered in the Lawsuit for all claims that were or could have been asserted in the Lawsuit against Defendants or are otherwise included in the release under the Settlement.

Although members of the Settlement Class cannot optout of the Settlement, they can object to the Settlement and ask the Court not to approve the Settlement. See below.

Q: How will the lawyers be paid?

Class Counsel have not been paid for their time or reimbursed for their expenses.  Before the Fairness Hearing, Class Counsel will apply for an award of attorneys’ fees and reimbursement of expenses for their work and at their direction.  The application for attorneys’ fees and expenses (including settlement expenses) will not exceed $5,000,000.00 (20% of the Gross Settlement Fund).  That amount will include costs of Settlement Notice and the settlement administrator which is sending out notice and calculating the amounts to be allocated to Class Members. (Any Incentive Award to the Class Representative will also come out of the $5 million, so that the amount distributed to the Settlement Class will be no less than $20 million.) Any award of fees and expenses will be paid from the Settlement Fund, prior to allocation and payment to the Settlement Class.  The written application for fees and expenses, together with the application for an Incentive Award to the Class Representative will be filed by August 6, 2018, and the Court will consider this application at the hearing.  A copy of the application will be available on this website after it is filed or by requesting a copy from Class Counsel.

To date, Class Counsel have not received any payment for their services in prosecuting this Lawsuit on behalf of the Settlement Class, nor have Class Counsel been reimbursed for their out-of-pocket expenses. The attorneys’ fees requested would compensate Class Counsel for their efforts in achieving the Settlement for the benefit of the Settlement Class and for their risk in undertaking this representation on a contingency basis. The Court will determine the actual amount of the award.

The requested $10,000 Incentive Award for the Class Representative is in light of his substantial contributions to the Lawsuit, including collecting and producing documents, maintaining regular contact with Class Counsel, reviewing and approving the Complaint, participating in and staying abreast of settlement negotiations, and advising on the Settlement.

The Settlement Class

Members of the Settlement Class include:

All persons who are or were participants in or beneficiaries of the Plan who had funds in their Plan accounts invested in the CNA Fixed Income Fund (“the Fund”) at any time between January 1, 2012, and May 2, 2018. Excluded from the Settlement Class are any and all individuals who were members of the Plan’s Investment Committee at any time from November 16, 2009, through May 2, 2018.

As defined in the Settlement Agreement, the Settlement Date is the date on which the Settlement has been approved by a Final Order of the Court that has become Final.

The Settlement 

The Settlement resolves all claims against Defendants and applies to all past and present, vested and non-vested, participants in the Plan who held investments in the Fund in their Plan accounts, and their beneficiaries.

Benefits to the Settlement Class 

The Settlement Agreement provides for the total payment of $25,000,000.00. The Net Settlement Amount, calculated by subtracting from the $25,000,000 certain amounts as described in the Settlement Agreement, including expenses associated with Class Notice, Court-approved attorneys’ fees and expenses and Class Representative Incentive Award, taxes and other costs related to the administration of the Settlement Fund and implementation of the Plan of Allocation, will be allocated among and paid to members of the Settlement Class according to a Plan of Allocation to be approved by the Court. Disbursement of the Net Settlement Amount to Settlement Class members’ Plan accounts and payments of fees and expenses approved by the Court will occur only after the Settlement has become final—that is, after all appeals relating to the Settlement are favorably decided and all appeal periods have expired.

The above description of the operation of the Settlement is only a summary. The governing provisions are set forth in the Settlement Agreement.

Released Claims

The Class Representatives and their attorneys believe that this Settlement is in the best interests of the Class members.  As a result of the Settlement, the Class releases certain claims against Defendants. The Released Claims are: any and all actual or potential claims, actions, demands, rights, obligations, liabilities, damages, attorneys’ fees, expenses, costs, and causes of action, whether arising under local, state, or federal law, whether by statute, contract, common law, equity, or otherwise, whether brought in an individual, representative, or any other capacity, whether involving legal equitable, injunctive, declarative, or any other type of relief (including, without limitation, indemnification or contribution), whether, known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, that have been, could have been, or could be brought by or on behalf of all or any prior to the Court’s final approval of the Settlement, and that:

1. were asserted in the Lawsuit, and that might have been asserted in the lawsuit under any legal or equitable basis related in any way to the CNA Fixed Income Fund;

2. relate to or arise out of the defense or settlement of the Lawsuit, including any claim that the Settlement Agreement or any aspect of its implementation violates any applicable law or right of any Settlement Class Member;

3. would have been barred by the doctrine of res judicata or claim preclusion had the Lawsuit been fully litigated to a final judgment; or

4. relate to the investment by the Plan in group annuity contract GP-84111-R issued by the Continental Assurance Company (the “Contract”), the termination of the Contract, or the fact that that the Contract no longer is an investment in the Fixed Income Fund. The Class Representative’s and Settlement Class Members’ release will extend to Defendants, their subsidiaries and affiliates, the Plan, every person who was a director, officer, governor, management committee member, in-house counsel, employee, or agent of Defendants, and their subsidiaries and affiliates, or a trustee or fiduciary (including de facto fiduciaries) for the Plan, together with, for each of the foregoing, any present or former representatives, insurers, reinsurers, consultants, administrators, employee benefit plans, investment advisors, investment underwriters, and spouses.

The Released Claims shall not include claims (1) related to the enforcement of the Settlement Agreement, including, but not limited to, claims concerning the allocation and distribution of the Net Settlement Amount by the Plan to the Settlement Class Members; or (2) for individual or vested benefits separate from the claims asserted in the Lawsuit that are not within the scope of items 1-4 above. The Released Claims shall not include any claims that cannot be waived by law.

Additionally, under the Settlement Agreement, the Defendants will release the Class Representative from claims based on the Class Representative having brought the Lawsuit.

Fairness Hearing

The Court will hold a Fairness Hearing on September 20, 2018 at 9:15 a.m., at the U.S. District Court for the Northern District of Illinois and consider the fairness of the proposed Settlement.  The Court will also hear any objections and arguments concerning the proposed Settlement’s fairness at that time. No benefits can be issued to Class members until after the Court grants final settlement approval.

How to Object to the Settlement

Any member of the Settlement Class who wishes to object to the fairness, reasonableness, or adequacy of the Settlement, to any term of the Settlement Agreement, to the application for payment of attorneys’ fees and expenses, or to the application for incentive awards for the Named Plaintiff, may file an “Objection” in writing. Please see the Class Notice for more information on objecting to the settlement.

All written objections and supporting papers must: (1) be filed with the Court and either postmarked and mailed or faxed to Class Counsel and Defendants’ Counsel at the addresses below on or before August 27, 2018; (2) set forth your full name, current address, and telephone number; (3) set forth a statement of the position you wish to assert, including the factual and legal grounds for the position; (4) set forth the names and a summary of testimony of any witnesses that you might want to call in connection with the Objection; (5) provide copies of all documents that you wish to submit in support of your position; (6) provide the name(s), address(es) and phone number(s) of any attorney(s) representing you; (7) state the name, court, and docket number of any class action litigation in which you and/or your attorney(s) has previously appeared as an objector or provided legal assistance with respect to an objection; and (8) include your signature.

The addresses for filing objections with the Court and service on counsel are listed below. Your written objection must be filed with the Court, and mailed or faxed to the counsel listed below by no later than August 27, 2018:

File with the Clerk of the Court:
Clerk of the Court
United States District Court
Northern District of Illinois
219 South Dearborn Street
Chicago, IL  60604
Re: Civil Action No. 16-cv-08898

CLASS COUNSEL:
Jeffrey Lewis
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Fax: (206) 623-3384

DEFENDANTS’ COUNSEL:
Ian H. Morrison
SEYFARTH SHAW LLP
233 South Wacker Street, Suite 8000
Chicago, Illinois 60606-6448
Fax: (312) 460-7000

Contact

If you are a Settlement Class member and you have questions regarding the Settlement, please contact Class Counsel at (888) 684-9828 or via .

Please do not contact the Court. Its personnel will not be able to answer your questions.