IP: 71.180.149.143
Posted on November 15, 2011 at 12:24:03 PM by Sonny Lefstead
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receive additional attorney's fees. If we prevail on appeal, Plaintiffs' attorney's fees may be
ordered to be paid out of the common fund.
If you decide to pay the opt-outs, there will still be sufficient money in this account to pay the
class members the amount of money to which they are entitled. It will cost approximately
$363,000 to pay the opt-outs the same amount of money that will be paid to the class members
pursuant to the Settlement Agreement. This will leave approximately $1.7 million in the account
at Wachovia (Wachovia is now Wells Fargo). If we prevail on the appeal, the class members
will pay a proportionate share of attorney's fees out of their recovery and there will also be
sufficient funds to pay attorney's fees if the class members are ordered to pay a proportionate
share. Mr. Gonyea has consulted 'with the insurance company and approval to pay the opt-outs
has been received. Further, retained appellate counsel has likewise agreed with the foregoing
analysis.
You should be aware that there is no legal requirement at this time that you pay the opt-outs.
The opt-outs have not sued. Under certain legal theories, there are arguments that no interest is
owed on the unpaid balance. If you do choose to pay the opt-outs you should receive an
appropriate release from each recipient of the check. By signing the Release in exchange for the
payment, the Pension Fund would be assured that it could not be sued by that person over the
13th Check for FYE September 30, 2004 or any additional interest from December 31, 2009 to
the date of payment. Both Mr. Gonyea and I realize that you have previously considered this
issue. Nevertheless, over two years has passed since then and the circumstances have changed
significantly. The Settlement with the class members has already been approved by the Court,
and a Final Judgment has been entered. The amount of attorney's fees for the trial level (which
is subject to change on appeal) has been determined. A Final Judgment has been rendered.
Because of these changes of circumstances, and others, Mr. Gonyea and I suggest that you
should consider anew at this time whether to offer a settlement to the opt-outs. Mr. Gonyea and
I both recognize that a decision to do so would be subject to attack but we both believe that
under the circumstances, it is appropriate and reasonable to do so.
If you approve payments in the amounts attached hereto, you will be paying substantially the
same amount of money that the persons who chose to stay in the class would be paid under the
Settlement Agreement. (The class members will receive a slightly higher amount, because they
will share in the earnings in the Evergreen account.) The amount of money that each class
member will receive from the earnings on the account is minimal.
Both Mr. Gonyea and I recommend that if you decide to offer payments to the opt-outs, that the
offer be in the amounts attached hereto and that no further interest payments or any payments be
made to them under this offer. There has been an issue whether, as a governmental agency under
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these circumstances, this Board is required to pay any interest.2 We understand that the decision
to pay the opt-outs, and the amount you pay, may be controversial and may be attacked. We
cannot tell you what form that attack will take or how it end, but we believe that you should
not initially offer more than the amounts set forth in the attached document. If a Release is
offered in exchange for the check, and persons decide to initiate suit instead of receiving the
Check, the Pension Fund will simply deal with it at that time.
Very truly yours,
Ronald J. Cohen
2 The Settlement Agreement specifically provides that it "shall not be construed or be deemed to be evidence of an
admission or concession in connection with the payment of interest; in this Action or any other action."
Amounts to be Paid
Eligible Retirees $1600.00
Eligible Surviving Spouses $800.00
DROP Participants
12/05 Distribution Date $2,200.00
12/06 Distribution Date $2,400.00
12/07 Distribution Date $3,600.00
12/08 Distribution Date $2,350.00
P
Documents\2007\07-04S\Amounts to be paid v2.docx
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