Bredthauer

Filing 221

STIPULATION AND ORDER - Ordered by Judge Joseph F. Bataillon. Member Cases: 4:10-cv-03132-JFB-TDT, 4:10-cv-03139-JFB-TDT, 8:10-cv-00326-JFB-TDT(AOA)

~FILED

IN THE UNITED STATES DISTRICT CO~\;)q{)T"R·(JCIT'STO~!CN7E~~~~~A
FOR THE DISTRICT OF NEBRASKA",~'ST
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SUSAN E. BREDTHAUER, et ai.,
Plaintiffs,
vs.
GILBERT G. LUNDSTROM, et ai.,
Defendants,
and
RONALD A. LAIRD, et aI.,
Plaintiffs,
vs.
GILBERT G. LUNDSTROM, et aI.,
Defendants,
and
SUSAN BARKER,
Plaintiffs,
vs.
SAMUEL P. BAIRD, et aI.,
Defendants.

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) 4:lOCV3132
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) 4:10CV3139
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) 8:10CV326
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28 PM 4: 56

OFFiCE OF THE CLERK

STIPULATION AND [PROPOSED] ORDER

NOW, this 28th day of February, 2013 (the "Effective Date"), Susan E. Bredthauer, John
F. Dean, Ronald Laird, Deborah Aycock, Larry Kubick, Janis Maryska, and Susan Barker
(together, "Named Plaintiffs" or "Plaintiffs"), participants in the TierOne Bank Savings Plan (the
"Saving Plan") or the TierOne Corporation Employee Stock Ownership Plan (the "ESOP" and
collectively with the Savings Plan, the "Plans"), and Rick D. Lange, Chapter 7 Bankruptcy
Trustee of TierOne Corporation (the "Trustee," together with the Named Plaintiffs, the
"Parties"), do hereby enter into this stipulation and agreement (the "Stipulation") as follows:

WHEREAS, Plaintiffs have reached an agreement with Defendants and Carriers (as
defined in the Class Action Settlement dated September 25, 2012 (the "Settlement")) to settle
this litigation (the "Action"), as preliminarily certified as a non-opt-out class action pursuant to
Federal Rules of Civil Procedure 23(a) and 23(b)(I) for settlement purposes only;
WHEREAS, On October 12, 2012 this Court preliminarily found that the proposed
Settlement of this class action was fair and reasonable, a conclusion also reached by the Court­
appointed Independent Fiduciary;
WHEREAS, TierOne Corporation and TierOne Bank were each named administrator (as
defined in section 3 of the Employee Retirement Income Security Act of 1974 ("ERISA")) of the
ESOP, and, as a result, the Trustee is to perform the duties required of the administrator of the
Plans to the extent set forth in 11 U.S.C. §704(a)(11) and has incurred fees and costs some of
which he asserts may be chargeable to the ESOP and expects to incur costs in the future with
regard to the administration or termination of the ESOP;
WHEREAS, the Trustee has filed a limited objection to the Settlement (Dkt. No. 213)
(the "Objection");
WHEREAS, in the Objection the Trustee has not objected to the Settlement amount or
the provision of fees to Class Counsel, but has instead objected for the limited reasons set forth
in his Objection; and
WHEREAS the Parties wish to resolve the instant dispute in the interest of expediting the
Final Approval of the Settlement by the Court.
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound, the Parties agree and stipulate

that:

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1.

The Trustee acknowledges and does not object to the Final Approval of the

Settlement for all purposes.
2.

Plaintiffs state that they did not intend for Plaintiffs' Released Claims in Section

4.1.2 ofthe Settlement to include the litigation captioned Lange v. Hoskins et al., Case No. CII2­
2486 filed in District Court of Lancaster County, Nebraska and removed to this Court at Case
No. 4:12-cv-03148-RGK-CRZ which is not released by virtue of the Settlement.
Notwithstanding the foregoing, however, the Parties acknowledge that pursuant to releases the
Plaintiffs and the Independent Fiduciary provided in the Settlement, any claims of the Trustee
that the Trustee may seek to assert on behalf of the Plans or any participants in the Plans for
alleged violations of ERISA against the Released Parties, including for any costs or expenses of
the Trustee associated with the administration or termination of the ESOP, are released.
3.

The Trustee shall continue to perform all necessary duties of the administrator of

the ESOP required by 11 U.S.C. 704(a)(1l), including but not limited to amending or
terminating the ESOP. The Trustee shall, in good faith, consult with Class Counsel and keep
Class Counsel informed of the status of the administration and termination of the ESOP and shall
be responsive to their inquiries regarding the same.
4.

The Trustee shall consult with Class Counsel before hiring any professionals

regarding the administration or termination of the ESOP.
5.

The Trustee shall provide Class Counsel with monthly updates on the progress of

the administration, distribution and termination of the ESOP, including a breakdown of all
expenses it incurs in pursuing its administrative responsibilities.
6.

The fees and expenses incurred by the Trustee or any professionals or third parties

hired by the Trustee of operating, administering, amending and/or terminating the ESOP (the

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"Administration Fees"), may be paid by the ESOP from that portion of the Net Settlement Fund
paid to the ESOP to the extent allowed by, without limitation, 29 U.S.C. §§ 1104(a)(1)(A) and
l103(c)(1) and other applicable law.

Provided, however, the Trustee shall not pay any

Administration Fees from that portion of the Net Settlement Fund paid to the ESOP without the
approval ofClass Counsel and the District Court.
7.

If the Trustee and Class Counsel disagree whether it is appropriate to pay any

Administration Fees, or any part of Administration Fees (the "Challenged Administration Fees")
from that portion of the Net Settlement Fund paid to the ESOP, the Trustee may file a motion
with the District Court for a determination as to whether the Challenged Administration Fees
should be from that portion of the Net Settlement Fund paid to the ESOP. If the District Court
determines that the Challenged Administration Fees, or any part thereof, may not be paid from
that portion of the Net Settlement Fund paid to the ESOP, then the Trustee may seek payment for
such disallowed fees from Debtor's bankruptcy estate, subject to Bankruptcy Court approval if
necessary.
8.

No costs or fees incurred by the Trustee for administration or termination of the

ESOP which have been incurred prior to the date of this Stipulation shall be allocated or paid
from the ESOP or, in particular, from that portion of the Net Settlement Fund paid to the ESOP
and no such costs or fees shall be included in the Administration Fees.
9.

Except as otherwise agreed to by the Trustee and Class Counsel and as otherwise

ordered by the District Court, as to the ESOP, the following Distribution Method shall be used to
distribute the Net Settlement Amount to the Settlement Class Members:
a.

Class Counsel shall direct the Financial Institution to deposit, and the

Financial Institution shall deposit, the appropriate respective portion of the Net Settlement

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Amount related to the ESOP to Delaware Charter Guarantee & Trust Company d/b/a Principal
Trust Company, the trustee of the ESOP. At the same time, the Settlement Administrator shall
provide the Recordkeeper with an electronic file in a format designated by the Recordkeeper
containing the Final Dollar Recovery of each Settlement Class Member (the "Electronic File").
The Recordkeeper shall follow the instructions of the Trustee (in consultation with Class
Counsel) pursuant to the terms of the ESOP and ERISA.
b.

Settlement Class Members with Accounts Under the ESOP. As soon as

practicable after deposit of the Net Settlement Amount into the ESOP trust and determination
and calculation of all allowed Administration Fees, the Recordkeeper shall take the Final Dollar
Recovery Amounts shown in the Electronic File (less approved Administration Fees) and credit
them to each Settlement Class Member's account in the ESOP and such amounts shall be treated
thereafter for all purposes as properly credited to that Settlement Class Member's account in the
ESOP. Until such accounts are credited, the Trustee shall, subject to consultation with Class
Counselor further court order, direct the Recordkeeper to invest and retain such amounts in a
money market fund or similar fund in the ESOP trust until distribution and such amounts shall be
treated thereafter for all purposes as assets ofthe ESOP.
c.

Settlement Class Members Without Accounts Under the ESOP. With

respect to Settlement Class Members who withdrew their accounts under the ESOP after the
beginning of the Class Period or whose accounts were transferred to a beneficiary (including an
alternate payee), the Recordkeeper will establish an account for each such Settlement Class
Member and shall follow the procedure set forth per Paragraph 8(b) of this Stipulation for the
allocation of such account(s).

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d.

If any Settlement Class Member with a Final Dollar Recovery cannot be

located despite reasonable efforts, such Settlement Class Member's Final Dollar Recovery shall
be administered in accordance with the procedures of the ESOP regarding participants who
cannot be located. If any Settlement Class Member with a Final Dollar Recovery is deceased,
such Settlement Class Member's Final Dollar Recovery shall be administered in accordance with
the procedures of the ESOP regarding deceased participants. If a Qualified Domestic Relations
order is in effect which applies to a Participant, the procedures of the ESOP regarding Qualified
Domestic Relations Orders shall apply. In all events the amounts for those items shall be subject
to reduction for payment of approved Administration Fees as set forth herein.
10.

Paragraph 8 of this Stipulation is subject to Bankruptcy Court approval, which the

Trustee agrees to seek, using best efforts. The Trustee further agrees to seek expedited approval
from the Bankruptcy Court of this Stipulation (i.e. subject to a shortened day objection I
resistance deadline rather than the usual 21 day objection I resistance deadline). To the extent
the Bankruptcy Court does not approve said Paragraph 7, the determination as to past incurred
fees shall be submitted to the District Court.

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11.

The Parties agree that all provisions of the Settlement remain in effect and are

unchanged, except as expressly stated in this Stipulation. In particular, the Parties agree and
acknowledge that nothing in this Stipulation modifies or otherwise affects the rights, obligations,
liabilities, or powers of the Defendants or the Carriers as stated in the Settlement.
SQUITIERI & FEARON, LLP

BY:~~

.....

By:

Stephen iFeOIl)f:'
32 East 57th Street
Ith Floor
New York, New York 10022
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Bri
1 1 Linco n Mall
uite 102
Lincoln, NE 68508
Telephone: [phone]
[e-mail]

k

Counsel for Rick D. Lange, Chapter 7
Bankruptcy Trustee of TierOne
Corporation

enwood Avenue
Su te 6' 0
Je int wn, PA 19046
Tele
e: [phone]
Facsimile: [phone]
[e-mail]
Class Counsel

SO ORDERED, this

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,2013

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