No, you are not being sued.
You or someone in your family are or may be a member of the Dudenhoeffer, et al., v. Fifth Third Bancorp, et al., Civil Action No. 1:08-CV-538-SSB Settlement Class, which is defined as:
All Persons, (excluding Defendants and their Immediate Family Members), who were participants in or beneficiaries (including alternate payees) of the Fifth Third Bancorp 401(k) Savings Plan, formerly known as the Fifth Third Bancorp Master Profit Sharing Plan, (the "Plan") at any time between July 19, 2007 and January 15, 2016 ("Settlement Class Period"), and whose Plan account included investments in Fifth Third.
If you fall within the definition of the Settlement Class, you have a right to know about the Settlement and all the options available to you regarding the proposed Settlement currently pending before the United States District Court for the Southern District of Ohio, Western Division (the "Court").
In this action ("Action"), Named Plaintiffs claim that Defendants breached their fiduciary duties owed to the participants in and beneficiaries of the Plan under the Employee Retirement Income Security Act of 1974 ("ERISA") arising from the Plan's investments in Fifth Third Stock during the Settlement Class Period.
Named Plaintiffs allege that Defendants allowed the imprudent investment of the Plan's assets in Fifth Third Stock throughout the Class Period, despite the fact that they knew or should have known that such investment was imprudent because, inter alia: (a) Fifth Third operating expenses were quickly increasing; (b) Fifth Third was undergoing higher loan losses due to its weakening credit quality; (c) Fifth Third was in need of a cash infusion to offset the undisclosed negative trends in loan losses; (d) Fifth Third's Non-Performing Assets were dangerously increasing; and (e) Fifth Third's Tier 1 capital base had declined precipitously and required a major infusion of capital and the price of Fifth Third Stock decreased dramatically. Named Plaintiffs allege that as a result of the above, the Plan and the Plan's participants incurred significant losses due to the substantial investments in Fifth Third Stock.
In a class action, one or more plaintiffs, called "named plaintiffs" sue on behalf of people who have similar claims. All of these people who have similar claims collectively make up the "class" and are referred to individually as "class members." One case resolves the issues for all class members together. Because the wrongful conduct alleged in this Action affected a large group of people – the participants in the Plan during the Settlement Class Period – in the same way, the Named Plaintiffs filed this case as a class action.
You are a member of the Class if you fall within the definition of the Settlement Class preliminarily approved by Judge Sandra S. Beckwith:
All Persons (excluding Defendants and their Immediate Family Members) who were participants in or beneficiaries (including alternate payees) of the Fifth Third Bancorp 401(k) Savings Plan, formerly known as the Fifth Third Bancorp Master Profit Sharing Plan (the "Plan") at any time between July 19, 2007 and January 16, 2016, (the "Settlement Class Period"), and whose Plan accounts included investment in Fifth Third Stock.
If you purchased or held units Fifth Third Stock within your Plan account during the Class Period above, you are a Settlement Class Member.
A Settlement Fund is being established in the Action. The proposed Settlement Amount is $6,000,000 (Six Million U.S. dollars), which comprises the Settlement Fund. The Settlement Fund will be distributed according to a Court-approved Plan of Allocation. In this case, the proposed Plan of Allocation provides that the amount in the Settlement Fund, including interest, and after payment of, or establishment of reserves for, any taxes and Court-approved costs, fees, and expenses, including fees and expenses of Class Counsel, and the Settlement Administrator, will be distributed to the Plan and thereafter allocated to Settlement Class Members who are entitled to a recovery pursuant to the Plan of Allocation.
The Settlement Agreement and proposed Plan of Allocation describe how the Net Settlement Fund will be distributed to Settlement Class Members. As promptly as reasonably possible after deposit of the New Settlement Fund into the Plan, the Settlement Administrator shall forward to the Plan Trustee the information needed for allocating into each Settlement Class Member's account under the Plan his or her Final Dollar Recovery as calculated above. The deposited amount shall be invested by the Plan Trustee pursuant to the Plan participant's election on file. If the Plan participant has no election on file, it shall be invested in any default investment option(s) designated by the Plan, and if the Plan has not designated any default investment option(s), in a stable value or similar fund under the Plan.
Settlement Class Members who withdrew their accounts under the Plan after the beginning of the Class Period or whose accounts were transferred to a beneficiary (including an alternate payee) ("Former Plan Participant") shall be handled in the following manner. For Former Plan Participants whose Final Dollar Recovery as calculated by the Settlement Administrator is determined to be $200 (Two Hundred U.S. Dollars) or more, such funds shall be paid to the Plan to be deposited into a Plan Account that the Plan Trustee shall establish for each such former Plan Participant. For Former Plan Participants whose Final Dollar Recovery is determined to be less than $200 (Two Hundred U.S. Dollars), such funds shall be paid directly to such Former Plan Participants by the Settlement Administrator. All such payments shall be used to restore losses to the Former Plan Participants on account of the investment in Fifth Third Stock Fund through the Plan and are intended by the Settlement to be "restorative payments" in accordance with the Internal Revenue Service Revenue Ruling 2002-45.
You are not responsible for calculating the amount you may be entitled to receive under the Settlement.
Your share (if any) of the Settlement Fund less the fees and expenses described above, will depend on your alleged loss, compared to other Settlement Class Members' alleged losses, related to Plan investments in Fifth Third Stock at any time during the period July 19, 2007 and January 15, 2015. Each Settlement Class Member's share will be calculated a Settlement Administrator according to a Court-approved Plan of Allocation. Because the Settlement proceeds are less than the total losses alleged by the Settlement Class, each Settlement Class Member's recovery will be less than his or her alleged loss. Your Settlement payment (subject to the minimum allocation provision) will be calculated in accordance with a Court-approved Plan of Allocation, the proposed version of which is available on this website.
If you have questions regarding allocation of the Settlement Fund, please contact Class Counsel at FifthThirdERISAsettlement@ktmc.com or by calling the toll-free number 855-979-7127.
The Court has appointed the law firm of Kessler Topaz Meltzer & Check, LLP and Gainey McKenna & Egleston as Class Counsel for the Plaintiffs in this Action. You will not be charged directly by these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. If you hire your own lawyer at your own expense for the purposes of filing an objection to the Settlement on your behalf, please see answer to question No. 14 below for further information.
In advance of the objection deadline, Class Counsel will file a motion for the award of attorneys' fees and reimbursement of out-of-pocket expenses. This amount applied for will be no more than thirty-three and one-third percent (33 1/3%) of the Settlement Fund, plus reimbursement of out of pocket litigation expenses incurred in connection with the prosecution of the Action. This motion will be considered at the Final Approval Hearing described below. Defendants will not take any position on Class Counsel's motion for attorneys' fees and expenses.
You do not have the right to exclude yourself from the Settlement. The proposed Settlement Class in this Action is a non-opt-out class action under Federal Rule of Civil Procedure 23(b)(1). Thus, it is not possible for any Class member to exclude himself or herself from the Settlement. As a Settlement Class Member, 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 or are otherwise released under the Settlement. Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve it. See answer to Question No. 13, below.
Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve it. Objecting is simply telling the Court that you do not like something about the Settlement or the request for attorneys' fees and reimbursement of litigation expenses or Case Contribution Awards for the Named Plaintiffs. Filing an objection will not have any bearing on your right to a Settlement distribution if the Court approves the Settlement.
If you are a Settlement Class Member, you may object to the Settlement if you do not like any part of it. You may also give reasons why you think the Court should not approve the Settlement. To object, you must send a letter or other writing saying that you object to the Settlement in the Dudenhoeffer, et al. v. Fifth Third Bancorp, et al., Civil Action No. 1:08-CV-538-SSB. Be sure to include your name, address, telephone number, signature, and a full explanation of all reasons you object to the Settlement. Your written objection must be mailed to The Clerk of the Court of the United States District Court for the Southern District of Ohio, Western Division via First-Class Mail and must be received no later than 5:00 p.m. on June 20, 2016. The mailing address is: Clerk of the Court, United States District Court, Eastern District of Virginia, Spottswood W. Robinson, III and Robert R. Merhige, Jr. Federal Courthouse, 701 East Broad Street, Richmond, Virginia 23219.
Written objections must also be sent to the following attorneys by 5:00 p.m. on June 20, 2016:
Edward W. Ciolko
Thomas J. McKenna
James E. Burke
You must also file your objection with the Clerk of the Court of the United States District Court for the Southern District of Ohio, Western Division, no later than 5:00 p.m. on June 20, 2016. The Clerk of the Court’s address is:
Clerk of the Court
United States District Court for the Southern District of Ohio
Potter Stewart United States Courthouse
Room 822, 100 East Fifth Street, Cincinnati, Ohio 45202
The Court will hold the Final Approval Hearing at 10:00 a.m. on July 11, 2016, at the United States District Court for the Southern District of Ohio, Western Division, Potter Stewart United States Courthouse, 100 East Fifth Street, Cincinnati, Ohio, in Courtroom 822, or the Courtroom then occupied by Judge Beckwith. The Court may adjourn the Final Approval Hearing without further notice to the Settlement Class, so, if you wish to attend, you should confirm the date and time of the Final Approval Hearing with Class Counsel before doing so. At the Final Approval Hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. The Court will also rule on the application for attorneys' fees and reimbursement of expenses and for Case Contribution Awards to the Named Plaintiffs. We do not know how long these decisions will take or whether appeals will be taken.
If you are a Settlement Class member, you may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter or other paper called a "Notice of Intention to Appear at Final Approval Hearing in "Dudenhoeffer, et al., v. Fifth Third Bancorp, et al., Civil Action No. 1:08-CV-538-SSB." Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be filed with the Clerk of the Court no later than June 20, 2016 at the address listed in the answer to Question No. 13, and must be served on the attorneys listed on page 8 of the Class Notice. Additionally, any attorney hired for purposes of representing a Settlement Class Member making an objection to the Settlement must file a Notice of Appearance with the Court no later than 5:00 p.m. on June 20, 2016, and also serve the Notice of Appearance on the attorneys listed on page 8 of the Class Notice so that it is actually received by them no later than 5:00 p.m. on June 20, 2016 as well.
Copies of the Notice of Class Action Settlement were mailed to the last known address of all members of the Settlement Class who were participants in the Plan during the Settlement Class Period. If you would like to review the Notice, please click on the link for the Notice on this website. To request that a Notice be mailed to you, call toll-free, 855-979-7127.
If you have additional questions regarding this case, please send an email to: FifthThirdERISAsettlement@ktmc.com. The email will go to Class Counsel and will be directed to the individuals handling the Settlement. Class Counsel has also set up a toll free number, 855-979-7127, if you prefer to call with your questions.
Payment is conditioned on several things, including the Court's approval of the Settlement and that approval becoming a "Final" Order and no longer subject to any appeals. Depending on the Court's process, distribution could take many months or more than a year; please be patient.