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XEROX CORPORATION ERISA SETTLEMENT WEBSITE
www.KellerSettlements.com/XeroxERISA.html
Welcome to the Xerox ERISA Settlement website.
This website has been established to keep class members informed about the Class
Action Settlement reached in the Xerox Corporation ERISA Litigation,
Civ. No. 3:02-CV-01138 (AWT) (D.Conn.).
Settlement Update: Settlement
Distribution
We are pleased to announce that on April 14th,
2009, the Court held a fairness hearing, at which time United States District
Judge Alvin W. Thompson entered an Order and Final Judgment approving the
Settlement and Plan of Allocation. The proceeds have been distributed to participants of the Plan for whose individual accounts the Plan purchased and/or held interests in the Xerox Stock Fund at any time during the period May 12, 1997 through and including June 28, 2002. There were over 32,000 participants who, based on their losses, were eligible for a portion of the $34.8 million received by the Xerox 401(k) plan.
You will be able to view the settlement contribution by starting at the 401(k) Savings page on Your Benefits Resources at
http://resources.hewitt.com/xerox/. The amount of the contribution and its investment is located on the "Your Investment Activity Details" which is conveniently located in the "Find It Fast" dropdown menu. For the most up-to-date information about your 401(k) Savings Plan, call the Xerox Benefits Center at 1-888-979-9961.
Background
As described in more detail in the Third Consolidated
Amended Complaint filed in the ERISA litigation, this lawsuit concerns allegations
that Defendants breached fiduciary duties they purportedly owed to participants and
beneficiaries in The Xerox Corporation Savings Plan or The Savings Plan of Xerox
Corporation and the Xerographic Division, UNITE HERE, Formerly “The Savings Plan of
Xerox Corporation and the Xerographic Division, Union of Needletrades, Industrial and
Textile Employees, A.F.L.-C.I.O.-C.L.C.” (the “Plans”) during the Class Period of May
12, 1997 through June 28, 2002. The Defendants deny the allegations. Copies of
Plaintiffs’ Third Consolidated Amended Complaint and other documents filed in the
lawsuit are available via the Document Links on this website.
The Class
The Court has conditionally certified the
following Settlement Class:
All current and former participants and beneficiaries of The Xerox
Corporation Savings Plan or The Savings Plan of Xerox Corporation and the
Xerographic Division, UNITE HERE (Formerly “The Savings Plan of Xerox
Corporation and the Xerographic Division, Union of Needletrades, Industrial
and Textile Employees, A.F.L.-C.I.O.-C.L.C.”) (collectively, the “Plans”) for
whose individual accounts the Plans purchased and/or held interests in the
Xerox Stock Fund at any time during the period May 12, 1997 through and
including June 28, 2002, excluding the Individual defendants in the above captioned
litigation (collectively, the “Settlement Class”).
The Settlement
On January 28, 2009, the Court issued an Order Preliminarily
Approving the Settlement and Confirming Final Settlement Hearing, which granted preliminary
approval of the Settlement. By minute order dated February 5, 2009, the Fairness Hearing
Date was rescheduled to April 14, 2009 at 9:00 a.m.
At the Fairness Hearing, the Court will decide, among other
things, whether to approve the Settlement; whether to dismiss with prejudice the litigation
against the Defendants pursuant to the
Settlement Agreement; whether the notices and the
means of dissemination of same complied with all applicable law; whether to approve the Plan
of Allocation; and whether to approve the applications for attorneys’ fees and expenses and
compensation for Plaintiffs. Any objections relating to the Settlement must be filed
with the Court, with notice served on the parties, by March 31, 2009, as set forth in more
detail in the Notice of Proposed Settlement of ERISA Class Action Litigation, Settlement
Fairness Hearing, and Motion for Attorneys’ Fees and Reimbursement of Expenses and Case
Contribution Awards (the “Notice”).
You do not need to submit a claim form or any
documentation. For inquiries on the settlement or to update your address, please contact the
Settlement Plan Administrator at:
In re Xerox Corporation ERISA Litigation
c/o Gilardi & Co. LLC
P.O. Box 8040
San Rafael, CA 94912-8040
In addition, Co-Lead Counsel for the Class, Keller Rohrback
L.L.P. and Futterman Howard Watkins Wylie & Ashley, Chtd., have established a toll-free phone
number, 866-967-6851, and an email address,
XEROXERISASettlement@KellerRohrback.com, if you have questions or need additional information.
Please do not contact the Court, Xerox Corporation or the Xerox Benefits Center with questions.
Frequently asked questions
1. How do I know whether I am part of the Settlement?
You are a member of the Settlement Class if: (a) you were a participant in or
beneficiary of The Xerox Corporation Savings Plan or The Savings Plan of Xerox Corporation and the Xerographic
Division, UNITE HERE (Formerly “The Savings Plan of Xerox Corporation and the Xerographic Division, Union of
Needletrades, Industrial and Textile Employees, A.F.L.-C.I.O.-C.L.C.”) (collectively, the “Plans”), (b) your
individual accounts in the Plans held interests in the Xerox Stock Fund at any time during the period May 12,
1997 through and including June 28, 2002, and (c) you are not a Defendant in the Action.
2. What does the Settlement provide?
A Settlement Fund consisting of $51,000,000 in cash, plus interest, is being established
in connection with the Settlement of the Action, and for dismissal of the Action. If the Settlement is approved as
described above, the net amount in the Settlement Fund (after payment of, and establishment of reserves for, certain
amounts as described in the
Settlement Agreement, including expenses associated with Class Notice, attorneys’ fees and
expenses, case contribution awards, taxes and other costs related to the administration of the Settlement Fund) will be
allocated among and paid to members of the Class according to a Plan of Allocation to be approved by the Court. Allocations
will be made to accounts established for members of the Class. Disbursement of the Settlement Fund to the Class will occur
once the Settlement has become Final – after all appeals relating to the Settlement are favorably decided and all appeal
periods have run. In addition, the Settlement contains provisions relating to the ongoing administration of the Plans and
management of their assets.
This Action and the Settlement of it concern only alleged violations of ERISA with respect
to Xerox stock held in the two ERISA Plans described herein. This Action does not involve Xerox stock purchased or held
outside these Plans, or any other retirement or benefit plan, and does not involve any Xerox bonds.
The above description of the Settlement is only a summary. The full governing provisions
are set forth in the Settlement Agreement (including exhibits).
3. What will be my share of the Settlement Fund?
Your share of the Settlement Fund, if any, will be determined in accordance with a Plan of
Allocation approved by the Court. The proposed Plan of Allocation, to be considered by the Court at the Fairness Hearing,
is attached to the Settlement Agreement as Exhibit C. The proposed Plan of Allocation sets forth a methodology that takes
into account the value of any investments in Xerox stock in your account(s) at the beginning and end of the “Allocation Period,”
generally January 2, 1998 through June 28, 2002 (the beginning of the Allocation Period may be advanced to as early as May 12,
1997, in the cases of persons who provide adequate information with respect to 1997 acquisitions of Xerox stock in the Plan
accounts, see “Special Information Regarding 1997 Plan Activity” below), as well as the value of investments in the Xerox Stock
Fund in your account(s) (whether as a result of Company matching or voluntary contributions), and the proceeds of sales or
withdrawals from the Xerox Stock Fund in your account(s) during the Allocation Period.
The calculations necessary to determine your share of the Net Proceeds, if any, will be made
for you in connection with the administration of the Settlement and will determine both whether you are entitled to a share of
the Net Proceeds and your share amount. Those performing the calculations will have access to all relevant and available Plan
records and so, subject to the discussion immediately below with respect to 1997 Plan activity, you do not need to be concerned
if you no longer have your Plan account statements, and do not need to supply anyone with statements or records. The Court will
be asked to approve a more detailed statement of the Plan of Allocation, a copy of which is attached as Exhibit C to the Settlement
Agreement.
Special Information Regarding 1997 Plan Activity: If you have account records generated by
Xerox or other contemporaneous written documentation showing holdings, purchases or sales of the Xerox Stock Fund in your Plan
account during the period from May 12, 1997 through December 31, 1997, you may, but are not required to, submit such materials
to the Settlement Administrator on or before June 15, 2009, by mailing them to the Settlement Administrator at In re Xerox
Corporation ERISA Litigation, c/o Gilardi & Co. LLC, P.O. Box 8040, San Rafael, CA 94912-8040, first class postage prepaid.
If you submit such records, please retain a copy for your files. Such records will, to the extent they are deemed reliable by
the Settlement Administrator, be considered in calculating your share of the Settlement Fund. The submission of such records
may or may not affect the amount you receive from the Settlement; if they do affect it, they may increase or reduce your share
of the Settlement Fund. You are under no obligation to submit 1997 materials if you do not wish for your 1997 Plan activity to
be taken into account. Please do not contact the Plans, Xerox, or the Xerox Benefits Center requesting these records because
they do not have them and will not be able to provide them. Note: handwritten notes and similar personal records are not acceptable.
The only acceptable records are records generated by Xerox or other contemporaneous written documentation deemed reliable by the
Settlement Administrator.
4. What is the lawsuit about? What has happened so far?
The Action is a consolidation of several putative class action lawsuits that were brought on behalf of a purported class of individuals who were participants in or beneficiaries of the Plans during the Class Period, alleging violations of ERISA in connection with the Plans’ and their participants’ holdings in the Xerox Stock Fund option of the Plans. The Action has been pending since 2002.
Plaintiffs allege among other things, that the Defendants were fiduciaries of the Plans and violated their obligations under ERISA by causing the Plans to imprudently offer, purchase and hold units of the Xerox Stock Fund when Xerox stock was allegedly an unsuitable investment for the Plans. Plaintiffs further allege that the Defendants misrepresented to Plan participants the true financial condition of the Company and, consequently, the true value of the Xerox Stock Fund. Plaintiffs sought to recover from the Defendants losses to the Plans and their participants such as yourself caused by the Defendants’ alleged misconduct.
The Defendants have vigorously denied and continue to deny all of the claims and allegations against them. Defendants maintain that their actions and statements were in all respects lawful, prudent, proper and truthful, and deny that anyone has been harmed in any way by any action or inaction on their part.
Co-Lead Counsel have conducted extensive legal research and discovery regarding the facts and claims in this Action, including reviewing millions of pages of documents produced in this Action by Xerox and other entities, including but not limited to Xerox’s current and former auditors, and the Plans’ trustee, recordkeeper, and investment manager; conducting numerous depositions of past and present Xerox officers, directors and employees; and analyzing studies and reports authored by expert consultants retained on the Class’s behalf regarding a variety of matters, including estimated potential damages in the Action.
The Parties have also engaged in substantial motion practice, i.e., briefing and legal argument, before the Court. The Court has entered two opinions on Defendants’ motions to dismiss the Action, granting these motions in part, and denying them in part. In addition, a motion to certify the Action as a class action has been fully briefed and was pending undecided when the Settlement was reached.
After engaging in these litigation efforts, and negotiating for several months using an independent paid mediator, Co-Lead Counsel for Plaintiffs and counsel for the Defendants reached an agreement to settle the Action, subject to Court approval, on the terms set forth in the Settlement Agreement and summarized in the Notice.
5. Why is this case a class action?
This case is a class action because the claims of similarly situated persons can be resolved more efficiently in one proceeding than in many and because the claims of individual Plan participants are generally too small to warrant litigation unless they can be aggregated. In a class action, one or more plaintiffs, called “named plaintiffs,” sue on behalf of people who have similar claims. All of the individuals on whose behalf the Named Plaintiffs in this Action are suing are “Class members,” also referred to in this Notice as members of the Settlement Class.
6. Why is there a Settlement?
So that the Class can be assured of a prompt, fair and substantial recovery and avoid the expenses, risks, and delays of further contested litigation. Under the proposed Settlement, the Court will not decide the merits of the Action in favor of either the Plaintiffs or the Defendants; instead claims will be compromised and resolved without a trial. Co-Lead Counsel believe that the proposed Settlement is fair, reasonable, and adequate and in the best interest of the Class.
7. How can I get my portion of the recovery?
Subject to the discussion of Special Information Regarding 1997 Plan Activity above and also at Page 4 of the Notice, Members of the Class do not need to do anything to receive their share of the recovery in this Action.
8. When will I receive my payment?
It will be six months at the very least, and maybe considerably longer. Payment is conditioned on several matters, including the Court’s approval of the Settlement and that approval becoming Final and no longer subject to any appeals. If there are objections or appeals, the process could take one or more years. Upon satisfaction of the applicable conditions, and assuming the Settlement is not terminated according to its terms, the Net Proceeds will be allocated in accordance with the Plan of Allocation and credited to Class Members’ Plan accounts. Class members who no longer have an active account with the Plans will have an account created for purposes of receipt of Settlement funds. Class members will receive communications regarding their accounts as described herein and will be entitled to distributions of their account balances in accordance with the terms of the Plans. Any accrued interest on the Settlement Fund will be included in the amount allocated and paid to the Class members.
9. What rights am I giving up in the Settlement?
You are giving up your right to sue the Defendants for anything in any way related to the Plans’ investment in Xerox stock during the Class Period. If the Settlement is approved, the Court will enter a judgment that will end and dispose of the Action and all the claims asserted in it. It will also fully, finally, and forever release, relinquish, and discharge all of the Released Parties (generally, the Defendants and certain persons affiliated with the Defendants or fiduciaries of the Plans, all as set forth in the
Settlement Agreement) from any and all Released Claims (also as defined in the
Settlement Agreement, generally the claims that were or could have been asserted in the Action or would have been barred by law had the Action proceeded to final judgment in favor of the Defendants).
10. Can I exclude myself from the Settlement?
No. You do not have the right to exclude yourself from the Settlement. The Action was certified under Federal Rule of Civil Procedure 23(b)(1). Thus, it is not possible for any of the Class members to exclude themselves from the Settlement. As a member of the Class, you will be bound by any judgments or orders that are entered in the Action for all claims that were or could have been asserted in the Action against the Defendants or are otherwise included in the release under the Settlement.
11. Do I have a lawyer in the case?
Yes. The Court has appointed the law firms of Keller Rohrback L.L.P. and Futterman Howard Watkins Wylie & Ashley, Chtd. as Co-Lead and Class Counsel for the Named Plaintiffs, the Plans, and the Class (“Co-Lead Counsel”). You will not be charged directly by these lawyers. If you want to be represented by your own lawyer, you may hire one, but it will be at your own cost and expense.
12. How will the lawyers be paid?
At the Fairness Hearing, Co-Lead Counsel will apply for an award of attorneys’ fees and expenses on behalf of all Plaintiffs’ counsel. The application for attorneys’ fees will not exceed 30% of the gross amount recovered in the Settlement, plus reimbursement of expenses. Any award of fees and expenses will be paid from the Settlement Fund prior to allocation and payment to the Class members.
To date, neither Co-Lead Counsel nor any additional counsel have received any payment for their services in prosecuting this Action on behalf of the Class since the Action began in 2002, nor have counsel been reimbursed for any of their out-of-pocket expenses. To date, counsel working on behalf of the Class have expended in excess of 19,200 hours of uncompensated professional time and over $950,000 in unreimbursed expenses of litigation. The fee requested by Co-Lead Counsel would compensate all counsel who have worked on behalf of the Class for their efforts in achieving the Settlement and for the risk they have borne in undertaking this representation on a contingency basis. The Court will determine the amount of the fee and expense award.
13. How do I tell the Court if I like or don’t like the Settlement or the request for attorneys’ fees and expenses?
If you are in favor of the Settlement, you do not need to do anything. If you oppose the Settlement, or the request for attorneys’ fees and expenses or the request for Named Plaintiff awards, you may object. To object, you must file with the Court a written objection that is labeled “Objection” and that states the name of this Action:
In re Xerox ERISA Litigation, Master File No.: 02-CV-1138 (AWT). Your objection must state all the bases and reasons for the objection, set forth proof of your membership in the Settlement Class, clearly identify any and all witnesses, documents and other evidence of any kind that are to be presented at the Fairness Hearing or otherwise in connection with such objection, and further describe the substance of any testimony to be given either by you or any supporting witnesses. To file your objection you must send it to the Court or file it with the Court. Be sure to include your name, address, telephone number, and signature. Your written Objection must be filed with the Court, and mailed to the counsel listed below, postmarked and sent via facsimile or hand-delivered to counsel listed below on or before 5:00 p.m., Eastern Time, on March 31, 2009:
To file with the Clerk of the Court, mail or hand-deliver to:
Clerk of the Court
United States District Court for the District of Connecticut
Abraham Ribicoff Federal Building
450 Main Street, Hartford, CT 06103
To serve by mail and facsimile, mail and fax or hand-deliver to each of the following:
ERISA CO-LEAD COUNSEL FOR THE PLAINTIFFS:
Lynn Lincoln Sarko
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Fax: (206) 623-3384
Charles R. Watkins
FUTTERMAN HOWARD WATKINS
WYLIE & ASHLEY, CHTD.
122 S. Michigan Ave., Suite 1850
Chicago, IL 60603
Fax: (312) 427-1850
COUNSEL FOR DEFENDANTS:
Steven J. Sacher
Jones Day
51 Louisiana Ave. N.W.
Washington, DC 20001-2113
Fax: (202) 626-1700
Michael T. Hannafan
Hannafan & Hannafan, Ltd.
One East Wacker Drive, Suite 2800
Chicago, IL 60601
Fax: (312) 527-0220
John A. Valentine
Wilmer Cutler Pickering
Hale and Dorr LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
Fax: (202) 663-6363
Thomas D. Goldberg
Day Pitney LLP
One Canterbury Green
Stamford, CT 06901
Fax: (203) 977-7301
UNLESS OTHERWISE ORDERED BY THE COURT, ANY CLASS MEMBER WHO DOES NOT OBJECT IN THE MANNER DESCRIBED IN THE NOTICE WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION AND SHALL BE FOREVER FORECLOSED FROM MAKING ANY OBJECTION TO THE PROPOSED SETTLEMENT AND THE APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES AND CASE CONTRIBUTION AWARDS.
14. When and where will the Court decide whether to approve the Settlement?
At or after the Fairness Hearing. The Court will hold the Fairness Hearing at 9:00 a.m. on April 14, 2009, at the United States District Court for the District of Connecticut, Abraham Ribicoff Federal Building, 450 Main Street, Hartford, CT 06103. At the Fairness Hearing the Court will consider whether to approve the Settlement, and may consider any request for attorneys’ fees and expenses and the request for Plaintiff compensation awards.
If there are objections, the Court will consider them as well. At or after the Fairness Hearing, the Court will rule on these matters. We do not know how long these rulings will take.
15. Do I have to come to the Fairness Hearing?
No. Co-Lead Counsel will represent you at the Fairness Hearing, and answer questions Judge Thompson may have at that time. You are welcome to come at your own expense, however. If you send an objection, you do not have to come to Court to talk about it. As long as you mailed your written objection on time and otherwise complied with the requirements of Paragraph 14 herein, it will be before the Court when the Court considers whether to approve the Settlement as fair, reasonable and adequate. You may also have your own lawyer attend the Fairness Hearing at your expense, but such attendance is also not necessary.
16. May I speak at the Fairness Hearing?
If you are a member of the Class and you have filed a timely objection, you may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter or other paper labeled “Notice of Intention to Appear at Fairness Hearing in
In re Xerox ERISA Litigation, Master File No.: 02-CV-1138 (AWT).” Be sure to include your name, address, telephone number, and your signature on any such document. Your Notice of Intention to Appear must be served (i.e., mailed first class postage prepaid and faxed or hand-delivered) on the attorneys listed above, postmarked and sent via facsimile or hand-delivered no later than March 31, 2009, and must also be filed with the Clerk of the Court, United States District Court for the District of Connecticut, Abraham Ribicoff Federal Building, 450 Main Street, Hartford, CT 06103, no later than March 31, 2009.
The Fairness Hearing may be delayed by the Court without further notice. If you wish to attend the Fairness Hearing, you may wish to confirm its date and time in advance with Co-Lead Counsel.
17. What happens if I do nothing?
If you are a Class member, you will participate in the Settlement as described in the Notice, provided the Settlement is approved.
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