Taylor et al v. ANB Bancshares, Inc. et al

Filing 146

ORDER PRELIMINARILY APPROVING 142 Motion for Settlement; ( Final Approval and Fairness Hearing set for 10/26/2011 10:00 AM in Fort Smith -- 1st flr (Rm 1004) before Honorable Robert T. Dawson. All proceedings in the litigation, other than proceedin gs pursuant to the Settlement, shall be stayed. September 19, 2011 Bench Trial is Canceled. Signed by Honorable Robert T. Dawson on July 14, 2011. (Attachments: # 1 Exhibit 1 Notice of Pendency and Settlement of Class Action Lawsuit, # 2 Exhibit 2 Court-Ordered Legal Notice) (src)

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
JAN TAYLOR, CARLA C. CROSSWHITE,
and LAURA T. GODSEY, individually and
on behalf of a class of all other persons
similarly situated and on behalf of the ANB
Financial, N.A. Employee Stock Ownership
Plan,
Plaintiffs,
v.

Case No. 08-5170
HONORABLE ROBERT T. DAWSON

ANB BANCSHARES, INC.; DANIEL
DYKEMA; HARRY BROWN; GREGREY
D. LANDIS; DEBRA JACKSON; ERIC
BROWN, BLAKE EVANS, and VIC
EVANS,
Defendants.

COURT-ORDERED LEGAL NOTICE
(Summary)
TO ALL PERSONS WHO WERE PARTICIPANTS IN THE ANB
FINANCIAL, N.A. (“ANB”) EMPLOYEE STOCK OWNERSHIP PLAN
FROM JULY 1, 2005, TO MAY 9, 2008: YOUR RIGHTS MAY BE
AFFECTED BY THE SETTLEMENT OF A CLASS ACTION LAWSUIT.
PLEASE READ THIS NOTICE CAREFULLY.
This Notice is intended to inform you of the pendency and settlement of a lawsuit
involving the ANB Financial, N.A. Employee Stock Ownership Plan (“the Plan”). This Lawsuit
is about whether the Defendants improperly invested and/or maintained the investments of the
Plan in ANB stock up to its termination in May 2008. Three former Plan Participants, Jan
Taylor, Carla C. Crosswhite, and Laura T. Godsey (the “Named Plaintiffs”), have sued
defendants ANB Bancshares, Daniel Dykema, Harry Brown, Gregrey D. Landis, Debra Jackson,
Eric Brown, Blake Evans, and Vic Evans (“Defendants”), on behalf of all individuals who
participated in the Plan between July 1, 2005, to May 9, 2008 (the “Class period”). The United
States District Court for the Western District of Arkansas has certified this case as a class action

1

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 2 of 6

and authorized this notice.
The Court has preliminarily approved a proposed settlement of the Lawsuit (the
“Settlement”). The Settlement provides for a payment in the amount of $2 million that will be
allocated among the members of the Class, after payment of any Court-approved attorneys’ fees,
costs, incentive payments to the class representatives, and the settlement administrator’s fees.
The amount paid under the terms of the settlement will be allocated among members of the Class
in accordance with a Plan of Allocation based upon the vested balance in their accounts on May
9, 2008. If you did not have a vested balance on May 9, 2008, you will not receive an allocation
from the settlement proceeds. You do not need to send in a claim or take any other action unless
you object to the Settlement.
THE COURT WILL HOLD A HEARING ON ____________, TO DECIDE WHETHER
TO APPROVE THE SETTLEMENT.
1.

WHAT IS THE CASE ABOUT?
The Plaintiffs filed this lawsuit on July 29, 2008 (the “Lawsuit”). This case stems from

the investment of assets of the Plan in stock of ANB Bancshares, Inc., the bank holding company
for ANB Financial, N.A. (the “Bank”). The Bank was taken over by federal government
regulators on May 9, 2008, and as a result of the Bank’s failure, ANB stock became worthless.
The Plaintiffs allege that the Defendants acted improperly in investing Plan assets in ANB stock
during the Class period. The Defendants deny any and all wrongdoing and maintain that the
ANB stock was never imprudent and its demise was caused by the unforeseeable global
economic collapse. The Defendants deny that they have liability to the Plan or its participants or
beneficiaries. The Court has not yet determined which side is correct.

2

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 3 of 6

This is a class action lawsuit, where the Named Plaintiffs have sued on behalf of people
who have similar claims. All of the individuals on whose behalf the Named Plaintiffs are suing
are “Class Members.” One court will resolve the issues for all Class Members.
2.

WHO IS INCLUDED IN THIS LAWSUIT?
On November 4, 2010, the Court certified the following class (“the Class”):
All participants in the ANB Financial, N.A. Employee Stock
Ownership Plan (“the Plan”) for whose individual accounts the
Plan held shares of stock of ANB Bancshares, Inc., at any time
from July 1, 2005, through May 9, 2008. Excluded from the
Class are the individual defendants, officers and directors of
the corporate defendants, members of their immediate
families, and the beneficiaries, heirs, successors, or assigns of
any of the foregoing.
If you are a member of this class, the outcome of the case will affect your rights with

respect to your benefits under the Plan. As a member of the class, you are automatically
included as a plaintiff in these claims and do not have the right to withdraw yourself from this
litigation. You will be bound by any judgment made by the Court, whether favorable or
unfavorable to you.
3.

HOW WILL THE SETTLEMENT MONEY BE ALLOCATED?
If the Court approves the Settlement and no appeals are taken, or if the Court’s approval

is affirmed on appeal, then any Court-approved attorneys’ fees, costs, compensation to the
Named Plaintiffs, Settlement Administrator’s fees and costs, and any fees and taxes, will be paid
out of the Settlement fund. The remaining amount, including interest (“Net Settlement Fund”)
will be paid to the Plan. The amount paid to the Plan will be allocated among members of the
Class in accordance with the Plan of Allocation based upon the vested balance of each Class
Member’s employer stock fund account on May 9, 2008. If you did not have a vested balance on
May 9, 2008, you will not receive an allocation from the Net Settlement Fund.

3

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 4 of 6

Your share of the Net Settlement Fund paid into the Plan will depend on your
proportionate share of employer stock assets, excluding those assets allocated to the accounts of
persons excluded from the Class (such as Defendants), as of May 9, 2008. Each Class Member’s
proportionate share will be determined using a Plan of Allocation. Because the Net Settlement
Fund is less than the total investment losses alleged by the Class, each Class Member’s
proportionate recovery will be less than the amount of the Plan’s loss attributable to his or her
former employer stock fund account.
4.

WHAT FEES AND EXPENSES ARE BEING SOUGHT BY THE ATTORNEYS?
The lawyers who have prosecuted this case for the Plaintiffs and the Class have done so

on a contingency fee basis. They will apply to the Court for fees of 25% of the settlement
amount ($500,000), plus reimbursement of money they have paid out of their own pockets to
advance the case (approximately $50,000). The Court must approve any fees and expenses to
the attorneys. Class Members may file objections to the attorneys’ application for fees and
expenses.
5.

ARE THERE MORE DETAILS TO THE SETTLEMENT?
The Settlement includes a number of other important details. These include, but are not

limited to, provisions relating to releases of claims against the Defendants.
6.

HOW DO I GET MORE INFORMATION?
If you have received in the mail a Notice of Pendency and Settlement of Class Action

Lawsuit regarding this case, you should read that document for more information. It is more
detailed than this summary notice. Among other things, it includes a more detailed description
of the claims of the parties, the terms of the Settlement, a description of how the Settlement
payments will be allocated, a history of the case, an explanation of the reasons for the settlement

4

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 5 of 6

and detailed instructions for filing an objection to the Settlement and/or Plaintiff’s request for
payment of attorneys’ fees and expenses. If you did not receive a Notice of Class Action
Settlement in the mail, you may request one by calling the Settlement Administrator at (877)
385-911.

You may also contact the Settlement Administrator in writing at:

Nicholas L.

Saakvitne, 532 Colorado Avenue, Second Floor, Santa Monica, California 90401-2408.
Copies of the Settlement Agreement, the mailed Notice of Pendency and Settlement of
Class Action Lawsuit, and additional information regarding the Settlement are also available on
Class Counsel’s website at www.lewisfeinberg.com.
7.

WHAT ARE MY OPTIONS?
You cannot “opt out” or exclude yourself from the Settlement. If you object to the

Settlement, Plaintiff’s request for payment of attorney’s fees and expenses, compensation for
Named Plaintiffs, or the Plan of Allocation, you may file a written objection with the Court
postmarked no later than _____________, as described in the mailed Notice of Pendency and
Settlement of Class Action. If you do not want to object to the Settlement, you do not have to do
anything.
8.

WHAT HAPPENS NEXT?
The Court will hold a Fairness Hearing on ________. At that hearing, the Court will

consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the
Court will consider them. After the Fairness Hearing, the Court will decide whether to approve
the Settlement. If you are a Class Member, you may ask the Court for permission to speak at the
Fairness Hearing. To do so, you must send a letter or other paper called a Notice of Intention to
Appear at Fairness Hearing as set forth more fully in the Notice of Pendency and Settlement of

5

Case 5:08-cv-05170-RTD Document 144-4

Filed 07/12/11 Page 6 of 6

Class Action Lawsuit. After the Fairness Hearing, the Court will decide whether to approve the
Settlement.

6