Rafton v. Rydex Series Funds et al

Filing 102

ORDER re 101 Stipulation Regarding Production of Customer Data by Merrill Lynch. Signed by Judge Lucy H. Koh on 11/14/11. (lhklc3, COURT STAFF) (Filed on 11/14/2011)

Case5:10-cv-01171-LHK Document101

6

ALAN W. SPARER (No. 104921)
MARC HABER (No. 192981)
JAMES S. NABWANGU (No. 236601)
SPARER LAW GROUP
100 Pine Street, 33rd Floor
San Francisco, California 94111-5128
Telephone:
415/217-7300
Facsimile:
415/217-7307
[e-mail]
[e-mail]
[e-mail]

7

Filed11/10/11 Page1 of 4

CLASS COUNSEL

1
2
3
4
5

8
9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN JOSE DIVISION

12
13

JAMES RAFTON, TRUSTEE OF THE
JAMES AND CYNTHIA RAFTON TRUST,

No. CV 10-01171 LHK
Action Filed: March 19, 2010

14
Plaintiff,
15
16
17
18
19
20
21
22

v.
RYDEX SERIES FUNDS; PADCO
ADVISORS INC. d/b/a RYDEX
INVESTMENTS, INC.; RYDEX
DISTRIBUTORS, INC.; RICHARD M.
GOLDMAN; CARL G. VERBONCOEUR;
JOHN O. DEMARET; NICK BONOS;
MICHAEL P. BYRUM; COREY A.
COLEHOUR; J. KENNETH DALTON;
WERNER E. KELLER; THOMAS F. LYDON;
PATRICK T. MCCARVILLE; ROGER
SOMERS; and DOES 1 through 25, inclusive,

STIPULATION AND [PROPOSED]
ORDER REGARDING PRODUCTION OF
CUSTOMER DATA BY MERRILL
LYNCH

Defendants.

23
24
25
26
27
28
STIPULATION AND [PROPOSED] ORDER RE PRODUCTION OF
CUSTUMER DATA BY MERRILL LYNCH

No. CV 10-01171 LHK

Case5:10-cv-01171-LHK Document101

Filed11/10/11 Page2 of 4

1

Plaintiffs James Rafton and James Darst, Jr. (collectively, “Plaintiffs”), and Merrill

2

Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”) hereby stipulate as follows:

3

WHEREAS, on September 13, 2011, the Court entered an Order Granting Unopposed

4

Motion For Preliminary Approval Of Proposed Class Settlement And Approval Of Notice Plan

5

(Dkt. No. 99) (the “Order”);

6

WHEREAS, the Order directed certain Broker Dealers and Intermediaries to provide the

7

names, addresses and transaction data for investors who acquired Rydex Fund shares during the

8

Class Period within fifteen business days of receipt of the Intermediary Notification (up to and

9

including October 19, 2011) unless an Intermediary makes alternate arrangements for the

10
11
12
13

delivery of the data with the Claims Administrator, Garden City Group, Inc.;
WHEREAS, Plaintiffs and Merrill Lynch seek to clarify and confirm the specific data
called for Merrill Lynch to produce in connection with the Order;
NOW, THEREFORE, the undersigned parties, by and through their counsel, stipulate,

14

subject to approval of the Court, that Merrill Lynch will commence delivery within two (2)

15

business days following the entry of this Stipulation and Order, of the information requested by

16

Claims Administrator Garden City Group, Inc. in its letter to Merrill Lynch dated September 27,

17

2011, attached hereto as Exhibit A, subject to the terms of that letter and the non-disclosure

18

agreement between Garden City Group, Inc. and Merrill Lynch dated November 10, 2011.

19

Merrill Lynch shall deliver any remaining data that is not available within the 2 business day

20

time period, within five (5) business days following the entry of this Stipulation and Order.

21
22 Dated: November 10, 2011
23
24
25

ALAN W. SPARER
MARC HABER
JAMES S. NABWANGU
SPARER LAW GROUP
By:

/s/ Alan W. Sparer
ALAN W. SPARER

26
27
28

CLASS COUNSEL
Concurrence in the filing of this document has been obtained from each of the other
-1STIPULATION AND [PROPOSED] ORDER RE PRODUCTION OF
CUSTUMER DATA BY MERRILL LYNCH

No. CV 10-01171 LHK

Case5:10-cv-01171-LHK Document101

1

signatories.

2

Filed11/10/11 Page3 of 4

Dated: November 10, 2011

3
By:

4
5

/s/ Hassan Abedi
HASSAN ABEDI

Counsel for MERRILL LYNCH

6
7
8
9
10
11
12

PURSUANT TO STIPULATION, IT IS SO ORDERED.
IT IS FURTHER ORDERED THAT the parties shall by November 15, 2011 file a statement
of how this delay affects the schedule currently set and whether it requires the Court to move
the final approval 14, 2011
Dated: November hearing date. 2011
____________________,
Dated: November 14, 2011

______________________________________
HON. LUCY H. KOH
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2STIPULATION AND [PROPOSED] ORDER RE PRODUCTION OF
CUSTUMER DATA BY MERRILL LYNCH

No. CV 10-01171 LHK

Case5:10-cv-01171-LHK Document101-1

Filed11/10/11 Page1 of 3

EXHIBIT A

Case5:10-cv-01171-LHK Document101-1

Rafton v. Rydex Series Funds
Claims Administrator
c/o The Garden City Group, Inc.
P.O. Box 9769
Dublin, OH 43017-5669

Filed11/10/11 Page2 of 3

FORWARDING SERVICE REQUESTED

September 27, 2011

MERRILL LYNCH
ATTN: JEFFREY LEEDY
1190 WEST MARION AVENUE, SUITE 1
PUNTA GORDA, FL 33950

Re: RAFTON, et al. v. RYDEX SERIES FUNDS, et al. (N.D. Cal. Case No. Civ 10-01171 LHK)
CLASS ACTION SETTLEMENT
SPECIAL NOTICE TO FINANCIAL INTERMEDIARIES
You are receiving this notice because records indicate that you are a broker/dealer, financial advisor
or nominee (“Intermediary”) for one or more beneficial owners or former owners of shares of the Rydex
Inverse Government Long Bond Strategy Fund (“Rydex Fund”), and may be in possession of customer
information necessary to distribute settlement funds to such owner(s).
Pursuant to a Court Order dated September 13, 2011, you are hereby directed to provide in
electronic, searchable form, the contact and transaction information described below for each beneficial
owner, customer or client who purchased or otherwise acquired shares of the Rydex Fund, ticker symbols
RYAQX, RYJCX, RYJAX, and/or RYJUX, during the period described below. A copy of the Order may be
found at www.RydexFundSettlement.com/court.
Customer Account Information Required:
For each account in which Rydex Fund shares were acquired by purchase or otherwise during the
period from August 1, 2007 through July 31, 2009 (the “Class Period”), inclusive, please provide:
1. Name of Account Holder;
2. Address;
3. Telephone Number;
4. Exact Name on the Account;
5. Account Number;
6. Fund Name (Class of Shares);
7. For each acquisition of shares during the Class Period: the date of acquisition, Fund ID
(e.g.: “214,” “RYJAX,” etc.) and number of shares acquired on each date during Class Period;
8. Price per share acquired;
9. Date(s) and amount of any dividend received on above shares from July 1, 2007 through
April 26, 2010, inclusive;
10. For each redemption of shares from July 1, 2007 through April 26, 2010, inclusive: date of
sale, fund ID, and number of shares sold; and
11. Price per share sold.

1

Case5:10-cv-01171-LHK Document101-1

Filed11/10/11 Page3 of 3

If you have received this Notice in error or otherwise are not in possession of the above data, kindly
please so notify the Claims Administrator.
Pursuant to the Court’s Order you have 15 business days after the date of this Notice (until and
including October 19, 2011) to supply the information in the form requested. If it is not feasible to comply
fully within the deadline, the Order requires you to promptly notify the Claims Administrator and make
special arrangements to provide the information or explain the failure to do so. Please direct all responses
and questions to:

Rafton v. Rydex Series Funds
Claims Administrator
c/o The Garden City Group, Inc.
P.O. Box 9769
Dublin, OH 43017-5669
Telephone number: 1-888-404-8013
Email: [e-mail]
Settlement Website: www.RydexFundSettlement.com
Any information obtained from you will be maintained as confidential pursuant to a Non-Disclosure
Agreement entered into with Rydex. You may obtain reimbursement for your actual and reasonable
administrative costs which would not have been incurred but for the obligation to forward information, upon
submission of appropriate documentation to the Claims Administrator.
Thank you for your assistance,

Claims Administrator
The Garden City Group, Inc.

2