Bredthauer

Filing 228

ORDER - The Trustee and his general counsel, Rembolt Ludtke LLP, are entitled to compensation from the assets of the portion of the Net Settlement Fund paid to the TierOne Corporation Employee Stock Option Plan (the "ESOP") in the amount o f $10,255 for time spent or anticipated to be spent in the future. The Trustees special counsel, Matthew Borror, is entitled to compensation from the assets of the portion of the Net Settlement Fund paid to the ESOP in the amount of $18,9 87.50 for time spent or anticipated to be spent in the future. PenChecks is entitled to compensation in an amount as yet to be determined from the assets of the ESOP for PenChecks for future missing participant/default IRA and related services in accordance with the agreement attached to the stipulation as Exhibit B (Filing No. 225), which the Trustee is authorized to execute and deliver. Member Cases: 4:10-cv-03132-JFB-TDT, 4:10-cv-03139-JFB-TDT, 8:10-cv-00326-JFB-TDTOrdered by Judge Joseph F. Bataillon. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN E. BREDTHAUER, et al.,
Plaintiffs,

4:10CV3132

v.
ORDER
GILBERT G. LUNDSTROM, et al.,
Defendants.

RONALD A. LAIRD, et al.,
4:10CV3139
Plaintiffs,
vs.

ORDER

GILBERT G. LUNDSTROM, et al.,
Defendants.
SUSAN BARKER, et al.,
8:10CV326
Plaintiffs,
vs.

ORDER

SAMUEL P. BAIRD, et al.,
Defendants.

This matter is before the court on the Stipulation of Class Counsel and Rick D.
Lange, Chapter 7 Bankruptcy Trustee of TierOne Corporation, Filing No. 225 in
4:10CV3132; Filing No. 211 in 4:10CV3139, and Filing No. 184 in 8:10CV326. In the
Stipulation and Order entered February 28, 2013, and the Order and Final Judgment
entered March 4, 2013, that resolved these consolidated ERISA class action cases, it
was contemplated that the Trustee would perform certain duties in order to effectuate
the Settlement and would incur fees and costs for doing so that would be paid from the

Settlement Fund with the approval of Class Counsel and the District Court. See Filing
Nos. 221, Stipulation & Order at 2; Filing No. 222, Order & Final Judgment at 2.
Class Counsel and the Trustee stipulate that the Trustee and his general
counsel, Rembolt Ludtke, LLP, and his special counsel, Matthew Borror, and
PenChecks, Inc. (“PenChecks”), are entitled to compensation from the assets of the
portion of the Net Settlement Fund that were paid to the TierOne Corporation Employee
Stock Option Plan (the “ESOP”) as follows: $10,255 for time spent or anticipated to be
spent by the Trustee and his general counsel, Remboldt Ludtke, LLP; $18,987.50 for
time spent or anticipated to be spent by Matthew Borror, special ERISA counsel; and an
amount

yet

to

be

determined

amount

for

PenChecks

for

future

missing

participant/default IRA and related services in accordance with the schedule attached to
the stipulation as Exhibit B. See Filing No. 225, Stipulation at 2. No objections or other
responses to the stipulation have been filed.
In support of the stipulation, the parties submit copies of the invoices for the time
incurred and anticipated to be incurred by the Trustee and his general and special
counsel, as well as a fee schedule for PenChecks, Inc. Id., Ex. A, Invoices; Ex. B,
PenCheck Fee Schedule.
Under 29 U.S.C. §§ 1103(c)(1) and 1106(b)(2), assets held in an ERISA plan
such as the ESOP may be used to pay reasonable expenses of administering and
terminating the ESOP, including the expenses sought herein. The court has reviewed
the parties’ submissions and finds the compensation sought herein is fair and
reasonable.

2

Special Counsel Matthew Borror seeks fees for 54.25 hours of work at the rate of
$350.00 per hour for a total of $18,987.50, and general counsel, Remboldt Ludtke, LLP,
seeks fees in the amount of $10,255.00 for 37.4 hours of work at rates of $240 to $285
per hour. Id., Ex. A.
Based on its familiarity with the litigation, the court finds the time spent and/or
anticipated to be spent by counsel and the fees for PenChecks, Inc., are reasonable
and necessary in the administration and termination of the ESOP1. Further, based on
its familiarity with fees in this community, the court finds counsels’ rates are reasonable
in view of the nature of the litigation and the complexity of the issues. Accordingly, the
court hereby approves the compensation sought herein and will order the payments to
be made from the assets of the portion of the Net Settlement Fund that was paid to the
TierOne Corporation Employee Stock Option Plan.
IT IS ORDERED that:
1.

The Trustee and his general counsel, Rembolt Ludtke LLP, are entitled to

compensation from the assets of the portion of the Net Settlement Fund paid to the
TierOne Corporation Employee Stock Option Plan (the “ESOP”) in the amount of
$10,255 for time spent or anticipated to be spent in the future.
2.

The

Trustee’s

special

counsel,

Matthew

Borror,

is

entitled

to

compensation from the assets of the portion of the Net Settlement Fund paid to the

1

PenChecks, Inc. will be paid $45 per participant for its services in connection with sending
distribution election forms and tax notices to eligible ESOP participants, processing the requests of those
who respond, issuing corresponding IRS Form 1099-Rs and addressing all federal and/or state taxwithholding issues. Filing No. 225, Ex. B. For those who do not respond, PenChecks will be paid 20% of
the account balance not to exceed $25 for a setup fee, $45 per nonrespondent for an Administration Fee,
and 20% of the account balance not to exceed $20 for IRA Distribution Fee. Id.
3

ESOP in the amount of $18,987.50 for time spent or anticipated to be spent in the
future.
3.

PenChecks is entitled to compensation in an amount as yet to be

determined from the assets of the ESOP for PenChecks for future missing
participant/default IRA and related services in accordance with the agreement attached
to the stipulation as Exhibit B (Filing No. 225), which the Trustee is authorized to
execute and deliver.
DATED this 11th day of March, 2014,

BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

4