Rubin v. MF Global, Ltd. et al

Filing 195

DECLARATION of Daniel E. Bacine and Carol V. Gilden in Support re: 191 MOTION for Settlement Lead Plaintiffs' Notice of Motion and Motion for Final Approval of Proposed Class Action Settlement and Plan of Allocation., 193 MOTION for Attorney Fees Lead Plaintiffs' Notice of Motion and Plaintiffs' Counsel's Petition for an Award of Attorneys' Fees and Reimbursement of Expenses and Lead Plaintiffs' Petition for Reimbursement of Expenses.. Document filed by Central States, Southeast, Southwest Areas Pension Fund, Iowa Public Employees' Retirement System, Policement's Annuity & Benefit Fund of Chicago, State-Boston Retirement System. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Bunch, Stephen)

EXHIBIT 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MICHAEL RUBIN,
Plaintiff,
v.
MF GLOBAL, LTD., et al.,
Defendants.

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Case No. 08 Civ. 2233 (VM)

DECLARATION OF JAMES CONDON

I, James Condon, declare as follows pursuant to 28 U.S.C. § 1746:
1.

I am the Deputy Chief Legal Officer and Secretary to the Board of Trustees for

Lead Plaintiff Central States Southeast and Southwest Areas Pension Fund (“Central States” or
the “Fund”), which was appointed Lead Plaintiff in this action on June 23, 2008 together with
The State-Boston Retirement System, the Iowa Public Employees’ Retirement System, and the
Policemen’s Annuity & Benefit Fund of Chicago. I have personal knowledge of the statements
herein, and if called as a witness, could competently testify thereto.
2.

Among my responsibilities as Deputy Chief Legal Officer, I monitor litigation

matters for the Fund and supervise in-house and outside litigation counsel on its behalf and
report to the Central States Executive Director and General Counsel, Thomas Nyhan. I have
been the primary representative overseeing the above-referenced class action (the “Action”) on
behalf of Central States, reporting to the Fund’s Board of Trustees.
3.

I respectfully submit this declaration in support of Lead Plaintiffs’ motion for

final approval of the Settlement, Lead Counsel’s request for attorneys’ fees, and Central States’

TM:501045/08000018/10/19/11

application for reimbursement of wages and expenses directly relating to its representation of the
Class. The matters testified to herein are based on my personal knowledge and/or discussions
with outside counsel (i.e., Cohen Milstein Sellers & Toll PLLC) and Central States’ employees.
4.

Central States is among the largest Taft-Hartley Funds in the country, with

approximately $17 billion in assets for the benefit of its more than 450,000 active and retired
members. The Fund provides approximately $2.5 billion in benefits to more than 210,000 of
those participants annually. Between July 19, 2007 and February 28, 2008, which includes the
time period covered by this Settlement, Central States purchased 185,520 shares of MF Global,
Ltd. common stock and suffered out-of-pocket losses of $1,276,576.01.
5.

Like virtually all institutional investors, Central States’ investment portfolio

includes positions in a broad range of publicly traded companies. Because of its substantial
participation in America’s financial markets and its standing as an institutional investor, Central
States has a vested interest in the integrity of our capital markets and the meritorious
enforcement of the federal securities laws enacted to protect investors.
6.

Although Central States has suffered investment losses in numerous publicly

traded companies since the enactment of the Private Securities Litigation Reform Act of 1995
(“PSLRA”), it has been selective in choosing the cases in which it has sought to participate as an
appointed lead plaintiff and did so in the above-captioned action after determining that the case
merited institutional representation and participation. By seeking appointment as lead plaintiff in
this action, Central States responded to the call of Congress for institutional shareholders to
actively participate as a lead plaintiff in class action securities litigation and to further ensure that
these actions were controlled and supervised by the shareholders for whom they were brought
and prosecuted. Here, in seeking appointment as lead plaintiff, Central States understood its

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responsibility to serve the best interests of Class Members by supervising the effective
prosecution of this action, and actively undertook to do so at all times.
7.

Central States approves and supports the Settlement and the request for attorneys’

fees and expenses submitted by Co-Lead Counsel.
8.

Since the Court appointed Central States as Lead Plaintiff on June 23, 2008, the

Fund has been closely involved in the prosecution of the Action and its eventual settlement.
Central States zealously performed its role as Lead Plaintiff in pursuit of a favorable resolution
of this case, and as to the Settling Defendants, a favorable and substantial Settlement.
9.

I have regularly communicated with outside counsel, from initiation of the action

to the present, through telephone calls, written correspondence and electronic mail, and in-person
meetings. Outside counsel consulted frequently with me concerning litigation strategy (such as
decisions relating to amending the complaint, motion practice, appellate issues, mediation and
settlement) and kept me well-informed about the progress and status of this case. In addition, I
traveled to and attended the Court’s hearing on appointment of Lead Plaintiffs.
10.

I personally have spent approximately thirty (30) hours representing the Class in

this matter. During the periods that I and other members of the Fund’s Staff were occupied with
this Action, we were unable to perform our regular duties on behalf of Central States. The time
Central States’ Staff expended on this case, and services Staff performed, are set forth in the
attached Schedule 1.
11.

Schedule 1 also sets forth the estimated cost for Central States on an hourly basis

for the services of each Staff member who worked on this Action, in light of annual salaries,
benefits and related administrative overhead, and the number of hours Staff works on an annual
basis. These estimates are conservative in nature and reflect the minimum hourly costs to the

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Fund for the services of the individuals in question. As set forth in Schedule 1, the cost to the
Fund for time spent by Staff on the Action is $4,826.00.

In addition, the Fund has incurred

unreimbursed expenses of $586.54 as a result of its representation of the Class in this Action,
which includes expenses for travel.
12.

Accordingly, I respectfully request that Central States be awarded $5,412.54 for

wages of its employees and other expenses directly related to the Fund’s representation of the
Class as Lead Plaintiff.
13.

I respectfully submit this declaration in support of the Settlement of this Action,

the Fund’s request for reimbursement of its time and expenses, and approval of the payment of
attorney’s fees equaling 18% of the Settlement Fund, plus reimbursement of litigation expenses
in the amount of $254,531.79.

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SCHEDULE 1
SCHEDULE OF CENTRAL STATES’
LOST-TIME AND TRAVEL EXPENSES IN MF GLOBAL, LTD.
Time
Thomas C. Nyhan (TCN)
Executive Director and General Counsel
Services: reviewing legal memoranda and
consulting with JPC; preparation for
Board of Trustees discussion of
proposed settlement.
James P. Condon (JPC)
Deputy Chief Legal Officer
Services: review legal memos and
prepare same; re view trading data;
review pleadings; consult with,
monitor and direct outside counsel;
consult with TCN; attend lead Plaintiff’s
hearing; consultations with co-lead plaintiffs;
discuss proposed settlement with
Board of Trustees.
Charles H. Lee (CHL)
Associate General Counsel
Services: review pleadings and
consult with JPC; prepare
Lost-Time and Expenses Schedule.
George O. Hansen (GOH)
Senior Paralegal
Services: organize and
review pleadings.
Mark Vieu (MV)
Division Manager, Financial Department
Services: Prepare trading schedules and
review same.

1.5 hrs @ $160/hr

=

$240

30 hrs @ $125/hr

=

$3,750

0.8 hrs @ $95/hr

=

$76

2.0 hrs @ 55/hr

=

$110

10.0 hrs @ 65/hr

=

$650

Travel
JPC travel to New York for lead plaintiff hearing on 6/20/08

Total Time and Expenses:

$586.54

$5,412.54