In re Merrill Lynch & Co., Inc. ERISA Litigation

On August 21, 2009, Judge Rakoff granted final approval of the Stipulation and Agreement of Settlement ERISA Action (“Settlement Stipulation”).

Case History:

The Consolidated Supplemental Complaint was filed in the United States District Court Southern District of New York on behalf of Plaintiffs and a class of all persons who were participants in or beneficiaries of the following Merrill Lynch sponsored plans: (1) the Merrill Lynch & Co., Inc. 401(k) Savings and Investment Plan; (2) the Merrill Lynch & Co., Inc. Retirement Accumulation Plan; and (3) the Merrill Lynch & Co., Inc. Employee Stock Ownership Plan (collectively, the “Plans”), and whose accounts included investments in Merrill Lynch common stock during the Proposed Class Period.

Plaintiffs alleged that during the Class Period the Defendants breached their fiduciary duties to Plaintiffs and the Class by:

  • failing to prudently and loyally manage the Plans’ assets;
  • failing to monitor fiduciaries;
  • failing to disclose necessary information to co-fiduciaries;
  • failing to provide complete and accurate information to the Class; and
  • co-fiduciary liability.

The Settlement:

The Settlement provides for a payment of $75 million, net of expenses described in the Settlement Stipulation, to the Plans for the benefit of the following Settlement Class:

(a) a current or former participant in or beneficiary of any of the Merrill Lynch & Co., Inc. 401(k) Savings and Investment Plan, the Merrill Lynch & Co., Inc. Retirement Accumulation Plan or the Merrill Lynch & Co., Inc. Employee Stock Ownership Plan (which are referred to herein individually as a “Plan” and collectively as the “Plans”), and your individual Plan account(s) included investments in Merrill Lynch & Co., Inc. (“Merrill Lynch”) stock at any time during the period September 30, 2006 and December 31, 2008, inclusive (the “Class Period”) or (b) a beneficiary, alternate payee, representatives or successor in interest to a person described in clause (a).

On March 16, 2009, the Court entered an Order Preliminarily Approving the Settlement. On June 26, 2009, Plaintiffs' Co-Lead Counsel filed and posted to the Settlement website (www.merrilllynchERISAsettlement.com) the following documents: Plaintiffs’ Motion and Memorandum of Law in Support of Motion for Final Approval of Class Action Settlement and Plan of Allocation; Plaintiffs’ Motion and Memorandum of Law in Support of Motion for Award of Attorneys’ Fees, Expenses, and Case Contribution Awards; the Joint Declaration of Lynn L. Sarko and Marc I. Machiz in Support of Motion for Final Approval of Class Action Settlement and Plan of Allocation and Motion for Award of Attorneys’ Fees, Expenses, and Case Contribution Awards; and the [Proposed] Order and Final Judgment.

Objections to Plaintiffs’ Motion for Final Approval of Class Action Settlement and Plan of Allocation and/or Plaintiffs’ Motion for an Award of Attorneys’ Fees, Expenses, and Case Contribution Awards were to be filed with the Court, and served upon the counsel listed in the Notice of Proposed Settlement, in the manner set forth in the Notice, by July 6, 2009.

On July 20, 2009, Plaintiffs filed their Reply in Further Support of Motion for Final Approval of Class Action Settlement and Plan of Allocation; Plaintiffs’ Motion and Memorandum of Law in Support of Motion for Award of Attorneys’ Fees, Expenses, and Case Contribution Awards, as well as the Supplemental Joint Declaration of Lynn L. Sarko and Marc I. Machiz in Support of Motion for Final Approval of Class Action Settlement and Plan of Allocation and Motion for Award of Attorneys’ Fees, Expenses, and Case Contribution Awards.

The Court held a Fairness Hearing on July 27, 2009, at 4:00 p.m. to decide whether to grant Plaintiffs’ Motion for Final Approval of Class Action Settlement and Plan of Allocation and Plaintiffs’ Motion for an Award of Attorneys’ Fees, Expenses, and Case Contribution Awards. On August 21, 2009, the Court granted final approval of the Settlement.

Additional information regarding the Settlement is available at www.MerrillLynchERISASettlement.com.

Case Documents