Snitzer et al v. The Board of Trustees of the American Federation of Musicians and Employers' Pension Fund et al

Filing 161

ORDER: IT IS HEREBY ORDERED that, no later than 5:00 P.M. on May 15, 2020, the parties must review the Court's revisions and either adopt the changes and file a final version of the proposed documents on ECF, or file a joint letter explaining th e basis for any objection(s) to the Court's revisions. To the extent that there are any objections, the parties must attach proposed revisions and provide Word versions to the Court via email. SO ORDERED. (Signed by Judge Valerie E. Caproni on 5/14/2020) (ama)

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 1 of 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
ANDREW SNITZER and PAUL LIVANT,
:
individually and as representatives of a class of
:
similarly situated persons, on behalf of the
:
American Federation of Musicians and Employers' :
Pension Plan,
:
:
Plaintiffs,
:
:
-against:
:
THE BOARD OF TRUSTEES OF THE
:
AMERICAN FEDERATION OF MUSICIANS
:
AND EMPLOYERS' PENSION FUND, THE
:
INVESTMENT COMMITTEE OF THE BOARD :
OF TRUSTEES OF THE AMERICAN
:
FEDERATION OF MUSICIANS AND
:
EMPLOYERS' PENSION FUND, RAYMOND M. :
HAIR, JR., AUGUSTIN GAGLIARDI, GARY
:
MATTS, WILLIAM MORIARITY, BRIAN F.
:
ROOD, LAURA ROSS, VINCE TROMBETTA, :
PHILLIP E. YAO, CHRISTOPHER J.G
:
BROCKMEYER, MICHAEL DEMARTINI,
:
ANDREA FINKELSTEIN, ELLIOT H. GREENE, :
ROBERT W. JOHNSON, ALAN H. RAPHAEL, :
JEFFREY RUTHIZER, BILL THOMAS,
:
MAUREEN B. KILKELLY, and DOES NO. 1-6, :
WHOSE NAMES ARE CURRENTLY
:
UNKNOWN,
:
:
Defendants. :
-------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 05/14/2020

17-CV-5361 (VEC)
ORDER

VALERIE CAPRONI, United States District Judge:
WHEREAS the parties have submitted revisions to their proposed order for preliminary
approval and proposed notice of class action settlement; and
WHEREAS revised drafts of the preliminary approval order and settlement notice are
attached to this Order;

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 2 of 23

IT IS HEREBY ORDERED that, no later than 5:00 P.M. on May 15, 2020, the parties
must review the Court’s revisions and either adopt the changes and file a final version of the
proposed documents on ECF, or file a joint letter explaining the basis for any objection(s) to the
Court’s revisions. To the extent that there are any objections, the parties must attach proposed
revisions and provide Word versions to the Court via email.

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: May 14, 2020
New York, New York

2

Ex. 1

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 3 of 23

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
ANDREW SNITZER and PAUL LIVANT, individually
and as representatives of a class of similarly situated
persons, on behalf of the American Federation of
Musicians and Employers’ Pension Plan,
No. 1:17-cv-5361 (VEC)
Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE AMERICAN
FEDERATION OF MUSICIANS AND EMPLOYERS’
PENSION FUND, THE INVESTMENT COMMITTEE
OF THE BOARD OF TRUSTEES OF THE
AMERICAN FEDERATION OF MUSICIANS AND
EMPLOYERS’ PENSION FUND, RAYMOND M.
HAIR, JR., AUGUSTINO GAGLIARDI, GARY
MATTS, WILLIAM MORIARITY, BRIAN F. ROOD,
LAURA ROSS, VINCE TROMBETTA, PHILLIP E.
YAO, CHRISTOPHER J.G. BROCKMEYER,
MICHAEL DEMARTINI, ELLIOT H. GREENE,
ROBERT W. JOHNSON, ALAN H. RAPHAEL,
JEFFREY RUTHIZER, BILL THOMAS, JOANN
KESSLER, MARION PRESTON,
Defendants.
ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT, PROVISIONALLY CERTIFYING
SETTLEMENT CLASS, DIRECTING NOTICE TO THE SETTLEMENT CLASS,
AND SCHEDULING FAIRNESS HEARING
WHEREAS, Plaintiffs Andy Snitzer and Paul Livant, individually and on behalf of all
Class Members and the American Federation of Musicians and Employers’ Pension Plan (the
“Plan”), and Defendants The Board of Trustees of the American Federation of Musicians And
Employers’ Pension Fund (the “Board of Trustees”), The Investment Committee of The Board of
Trustees of the American Federation of Musicians and Employers’ Pension Fund (the “Investment
Committee”), Raymond M. Hair, Jr., Augustino Gagliardi, Gary Matts, William Moriarity, Brian

H0094383.2

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F. Rood, Laura Ross, Vince Trombetta, Phillip E. Yao, Christopher J.G. Brockmeyer, Michael
DeMartini, Elliot H. Greene, Robert W. Johnson, Alan H. Raphael, Jeffrey Ruthizer, Bill Thomas,
Marion Preston, and JoAnn Kessler (collectively, the “Defendants”) (together with Plaintiffs, the
“Parties”) have agreed to settle the above-captioned matter (the “Action”) on the terms and
conditions set forth in the Settlement Agreement dated March 25, 2020 and all exhibits thereto;
WHEREAS, Plaintiffs have filed a motion for an order that, inter alia, (1) certifies the
proposed class for Settlement purposes; (2) preliminarily approves the Settlement on the terms set
forth in the Settlement Agreement; (3) approves and authorizes the dissemination of notice to
members of the Settlement Class per the approved form and method of notice; (4) establishes
deadlines and procedures for members of the Settlement Class to object to the Settlement; and (5)
sets various deadlines and schedules a hearing to determine whether the Settlement should be
finally approved as fair, reasonable and adequate, and whether an order finally approving the
Settlement Agreement should be entered;
WHEREAS, Defendants do not agree with many of the factual representations and/or
characterizations made in Plaintiffs’ memorandum in support of their motion but do not oppose
the motion insofar as it seeks this Court’s preliminary approval of the Settlement;
WHEREAS, the Court, having read and considered the motion, the memorandum
submitted in support of the motion, the Settlement Agreement and the exhibits thereto, letters in
opposition submitted by a putative class member, Martin Stoner, and the Parties’ Joint letter (ECF
#157) in response to the Court’s May 4, 2020 Order (ECF #156) and the hearing held pursuant to
the Court’s May 11, 2020 Order (ECF #158), finds that substantial and sufficient grounds exist for
entering this Order Preliminarily Approving Class Action Settlement, Provisionally Certifying

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Settlement Class, Directing Notice to Settlement Class, and Scheduling Fairness

Hearing

(“Preliminary Approval Order”);
WHEREAS, the Court has adopted and incorporated the definitions and terms set forth in
the Settlement Agreement; and
WHEREAS, upon review and consideration of the foregoing materials, the Court has found
good cause for entering this Preliminary Approval Order;
NOW, THEREFORE, IT IS ORDERED THAT:
I.

CERTIFICATION OF SETTLEMENT CLASS
The Settlement Agreement provides for a class action settlement of the claims alleged in

this Action. The Court has considered the (1) allegations, information, arguments, and authorities
provided by the Parties in connection with pleadings previously filed in this case; (2) information,
arguments, and authorities provided by Plaintiffs in their brief in support of their motion for entry
of an order granting preliminary approval of the Settlement; (3) the terms of the Settlement
Agreement, including, but not limited to, the benefits to be provided to the Settlement Class; (4)
the Parties’ joint motion to certify a litigation class pursuant to Fed. R. Civ. P. 23(b)(1)(A) and
23(b)(1)(B) with a supporting memorandum of law; (5) the Joint Supplemental Memorandum on
Notice Issue (“Supplemental Memo”); and (6) letters in opposition to preliminary approval filed
by putative class member(s). See ECF ##130, 151, 155. Based on those considerations, the Court
hereby finds as follows:
A.

That the prerequisites for a class action under Rules 23(b)(1)(A) and 23(b)(1)(B)

of the Federal Rules of Civil Procedure have been satisfied. The Court finds, in the specific context
of this Settlement, that the following requirements are met: (a) the number of Class Members is
over 100,000 and is so numerous that joinder of all Class Members is impracticable; (b) there are
questions of law and fact common to the Class Members; (c) Plaintiffs’ claims are typical of the
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claims of the Class Members they seek to represent for purposes of this Settlement; (d) Plaintiffs
and Class Counsel have fairly and adequately represented the interests of the Settlement Class and
will continue to do so; (e) prosecuting separate actions would create a risk of inconsistent or
varying adjudications with respect to individual Class Members that would establish incompatible
standards of conduct for Defendants; (f) Defendants have acted on grounds that apply generally to
the Settlement Class, so that the benefits provided in the Settlement Agreement are appropriate for
the Settlement Class as a whole; (g) questions of law and fact common to the Class Members
predominate over any questions affecting any individual Settlement Class Member; and (h) a class
action provides a fair and efficient method for settling the controversy under the criteria set forth
in Rule 23.
B.

The Court also concludes that, because the Action is being settled rather than

litigated, the Court need not consider manageability issues that might otherwise be presented by
trial of a class action involving the issues in the Action.
C.

Pursuant to Federal Rules of Civil Procedure 23(b)(1)(A) and 23(b)(1)(B), the

Court hereby provisionally certifies the following Settlement Class:
All participants and beneficiaries of the American Federation of Musicians and
Employers’ Pension Plan (the “Plan”) from August 9, 2010 through the date of this
Order, excluding Defendants and their beneficiaries.
D.

For the purposes of Settlement only, Plaintiffs Andy Snitzer and Paul Livant are

appointed as the Class Representatives of the Settlement Class. The prior appointment of
Chimicles Schwartz Kriner & Donaldson-Smith LLP as Interim Class Counsel (ECF # 39) remains
in effect and Steven A. Schwartz and Robert J. Kriner of Chimicles Schwartz Kriner & DonaldsonSmith LLP, and their firm Chimicles Schwartz Kriner & Donaldson-Smith LLP are appointed as
Class Counsel.

4

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II.

PRELIMINARY APPROVAL OF THE TERMS OF THE SETTLEMENT
A.

The Settlement Agreement requires Defendants’ insurers to pay $26,850,000 as the

Gross Settlement Amount, of which at least $17 million will be paid into the Plan. Plaintiffs are
seeking the balance ($9,850,000) for Attorneys’ Fees, Costs and Service Awards.

In the

Settlement Agreement, Defendants and the Plan have also agreed to implement certain Governance
Provisions.
B.

On a preliminary basis, taking into account (1) the value and certainty of the

benefits to be provided by the Settlement to Class Members and the Plan; (2) the defenses asserted
by Defendants; (3) the risks to Plaintiffs and Class Members that Defendants would be successful
in whole or part at trial on the merits of the claims alleged in this Action; and (4) the length of time
that would be required for Class Members to obtain a final judgment after trials and appeals, the
Settlement appears sufficiently fair, reasonable, and adequate to authorize dissemination of notice
to the Settlement Class as set forth in the Settlement Agreement.
C.

Moreover, the Court finds that the Settlement falls within the range of

reasonableness because the Settlement has key indicia of fairness, in that (1) the Parties have
reached the Settlement after completing extensive discovery and shortly before trial, (2) the
extensive negotiations were contentious, arm’s length, and facilitated by an experienced
professional mediator (Robert Meyer, Esq., of JAMS), and (3) the proponents of the Settlement
are experienced in similar litigation.
D.

Accordingly, the Settlement, as modified by Plaintiffs’ agreement, as reflected in

the Parties’ joint letter filed at ECF #157, to modify Sections 5.1(f) and 9.1 of the Settlement
Agreement to remove the proposed release by Class Members as to Class Counsel, is hereby
preliminarily approved, except as to the proposed release by Class Members as to Class

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Representatives, subject to further evaluation by the Court in connection with final approval
proceedings.
III.

APPROVAL OF NOTICE PLAN
As set forth in the Settlement Agreement, and in connection with the Court’s May 4, 2020

Order (ECF # 156), and the hearing held pursuant to the Court’s May 11, 2020 Order (ECF #158),
and the Court’s May 14, 2020 Order (ECF # 161), the Parties have submitted a revised Notice of
Settlement (the “Notice”), ECF #16259.
A.

The Notice fairly, accurately, and reasonably informs Class Members of: (1)

appropriate information about the nature of this Action and the essential terms of the Settlement
Agreement; (2) appropriate information about how to obtain additional information regarding this
Action and the Settlement, in particular, through the Settlement Website, www.afmepfsettlement.com; and (3) appropriate information about how to object to the Settlement if they
wish to do so. The Notice of Settlement also fairly and adequately informs Class Members that if
they do not comply with the specified procedures and the deadline for objections, they will lose
any opportunity to have any objection considered at the Fairness Hearing or to otherwise contest
approval of the Settlement or appeal from any order or judgment entered by the Court in connection
with the Settlement.
B.

The Settlement Agreement provides that, within thirty (30) calendar days of the

date of this Order, the Plan shall send the Notice to each Class Member for whom the Plan has
either an email or mailing address on record with the Plan. For Participants and Beneficiaries in
the Settlement Class who reside at the same address, a single mailing or email shall suffice. The
Settlement Agreement also provides that, in recognition that the Plan has neither an email nor a
mailing address for 20,756 of the total 114,285 Class Members, ECF #151, the Notice and other
documents identified in the Settlement Agreement and in the parties’ joint letter (ECF #153), or
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links to those identified documents, will be posted to the Settlement Website and that the initial
posting of the Notice will occur no later than the date on which the Notice is first mailed or emailed
to Class Members.
C.

Within thirty (30) calendar days of the date of this Order, the Plan shall send the

Notice by either email or first-class mail to each Class Member for whom the Plan has an address,
as specified in the Settlement Agreement. On or before the date that Notice is sent, the Plan shall
establish the Settlement Website on which the Notice will be posted. In further recognition that
the parties lack both email and mailing addresses for 20,756 Class Members, as the parties agreed
in the Supplemental Memo, they will (1) include a link to the Settlement Website on a scrolling
banner on the Plan’s website at www.afm-epf.org and (2) include a call-out box with a link to the
Settlement Website in the monthly magazine of the American Federation of Musicians for two
consecutive months beginning the month in which the Notice is sent to Class Members. ECF
#151.
D.

At or before the Fairness Hearing, the Plan shall file with the Court a proof of timely

compliance with the foregoing requirements.
E.

The Notice satisfies the requirements of due process, Rule 23 of the Federal Rules

of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715 (“CAFA”), and any
other applicable laws, constitutes the best notice practicable under the circumstances, and shall
constitute due and sufficient notice to all persons entitled thereto.
F.

Accordingly, the Court hereby approves the proposed Notice and orders that the

form and content of the proposed Notice be provided to the Settlement Class by the Plan as set
forth in the Settlement Agreement, as supplemented by the Supplemental Memo.

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G.

The Parties have also submitted as Exhibit 4 to the Settlement Agreement a Form

Notice under the Class Action Fairness Act of 2005 (“CAFA”). The Court also approves the form
of the CAFA Notice. Defendants shall notify the appropriate Federal and State officials under
CAFA. Proof of compliance will be filed with the Motion for Final Approval. Upon mailing the
CAFA Notices, Defendants shall have fulfilled their obligations under CAFA.
IV.

PRELIMINARY INJUNCTION
Pending a final determination of whether the Settlement Agreement should be approved,

the Plan and each Class Member (and his or her heirs, beneficiaries, executors, administrators,
estates, past and present partners, officers, directors, agents, attorneys, predecessors, successors,
and assigns), are preliminarily enjoined from: (1) suing any Released Party in any action or
proceeding alleging any of the Released Claims, even if any Class Member may discover facts in
addition to or different from those which the Class Members or Class Counsel now know or
believe to be true with respect to the Action and the Released Claims; (2) directly,
representatively or derivatively, or in any other capacity, commencing, prosecuting or litigating,
in any local, state, or federal court, or in any tribunal, agency or other forum, any claim,
allegation, cause of action, matter, lawsuit, or action (including but not limited to actions pending
as of the date of this Order) against any Released Party that arises out of or relates in any way to
the Released Claims.
V.

OBJECTIONS
A.

All Class Members have the right to object to the Settlement pursuant to the

procedures and schedule set forth in the Settlement Agreement and the Notice.
B.

All written objections and supporting papers must: (1) clearly identify the case

name and number (Snitzer and Livant v. The Board of Trustees of the American Federation of
Musicians and Employers’ Pension Fund, et al., No. 1:17-cv-05361-VEC); (2) contain the
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objector’s printed name, address, telephone number, and email address; (3) state with specificity
the grounds for the objection along with any supporting papers, materials, briefs or evidence that
the objector may wish the Court to consider when reviewing the objection; (4) be signed by the
objector; and (5) state whether the objector or objector’s counsel intends to appear at the Fairness
Hearing. Additionally, if the objecting Settlement Class Member or his or her counsel has objected
to a class action settlement during the past 5 years, the objection must disclose all cases in which
he or she has filed an objection by caption, court and case number, and for each case, the
disposition of the objection, including whether any payments were made to the objector or his or
her counsel, and whether any incremental benefits were achieved for the class in exchange for
such payments.
VI.

FINAL APPROVAL HEARING
The Court hereby schedules the Fairness Hearing at 10:00 A.M. on August 26, 2020, which

date is approximately one hundred and ten (110) calendar days after the date this Preliminary
Approval Order is filed, to determine whether the certification of the Settlement Class, the
designation of Plaintiffs as Class Representatives, the appointment of Class Counsel, and the
Settlement should receive final approval. At that time, the Court will also consider Plaintiffs’
proposal for a release by Class Members of any claim(s) against Class Representatives, and
Plaintiffs’ Motion for Attorneys’ Fees, Costs and Service Awards, which shall be filed at least
sixty (60) calendar days before the Fairness Hearing, and any responses thereto, which shall be
posted on the Settlement Website; as well as Plaintiffs’ Motion for Final Approval of the
Settlement, which shall be filed no later than fourteen (14) calendar days before the Fairness
Hearing. The Fairness Hearing may be postponed or rescheduled by order of the Court without
further notice to the Settlement Class, but any rescheduled date must be posted on the Settlement
Website.
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VII.

STAY OF PROCEEDINGS
Pending final determination of whether the Settlement should be approved, the Court

hereby also stays all proceedings in this case, other than those proceedings necessary to carry out
or enforce the terms and conditions of the Settlement Agreement.
VIII. OTHER PROVISIONS
A.

In the event that the Settlement Agreement is not finally approved by the Court or

does not reach the Settlement Effective Date, or the Settlement Agreement is terminated pursuant
to its terms for any reason, the Parties reserve all of their rights, including the right to continue
with the Action and all claims and defenses pending at the time of the Settlement. All of the
following shall also apply:
1.

This Preliminary Approval Order and all findings contained within it shall

become null and void and have no force and effect whatsoever and shall not be admissible or
discoverable in this or any other proceeding.
2.

Nothing contained in this Preliminary Approval Order is to be construed as

a presumption, concession, or admission by or against Defendants or Plaintiffs of any default,
liability, or wrongdoing as to any facts or claims alleged or asserted in the Action, or in any actions
or proceedings, whether civil, criminal, or administrative, including, but not limited to, factual or
legal matters.
3.

Nothing in this Preliminary Approval Order or pertaining to the Settlement

Agreement, including any of the documents or statements generated or received pursuant to the
Settlement administration process, shall be used as evidence in any further proceeding in this case
or any other litigation or proceeding, including, but not limited to, motions or proceedings or trial.
4.

All of the Court’s prior orders shall, subject to this Preliminary Approval

Order, remain in force and effect.
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B.

Class Counsel and Counsel for Defendants are hereby authorized to use all

reasonable procedures in connection with approval and administration of the Settlement that are
not materially inconsistent with this Preliminary Approval Order or the Settlement Agreement,
including making, without further approval of the Court, minor changes to the Settlement
Agreement, to the form or content of the Settlement Notice, or to the form or content of any other
exhibits attached to the Settlement Agreement, that the Parties jointly agree are reasonable or
necessary, and which do not limit the rights of the Class Members under the Settlement Agreement.
C.

The Court shall maintain continuing jurisdiction over these Settlement proceedings

to assure the effectuation thereof for the benefit of the Settlement Class.
D.

The Court approves the following schedule for Settlement-related activities:

DATE
EVENT
May 1218, 2020 [Day 1] Entry of Preliminary Approval Order
June 12, 2020 [Day 30] Last day for the Plan to make the documents identified
in the Settlement Agreement and in the parties’ joint
letter (ECF #153) available online at www.afmepfsettlement.com, and in the case of subsequently
filed documents, within five (5) calendar days after
filing.
June 12, 2020 [Day 30] Last day for the Plan to email or mail the Notice to
Class Members (“Notice Date”)
June 26, 2020
Last day for Class Counsel to file Motion for
[60 days before Fairness Attorneys’ Fees, Costs, and Service Awards
Hearing]
July 27, 2020
Last day for Defendants to respond to Motion for
[30 days before Fairness Attorneys’ Fees, Costs, and Service Awards
Hearing]
July 27, 2020
Last day for Class Members to object to the Settlement.
[30 days before Fairness
Hearing]
August 12, 2020
Last Day for Class Counsel to file Motion for Final
[14 calendar days before Approval of the Settlement, and to submit
the Fairness Hearing]
determination from Independent Settlement Evaluation
Fiduciary
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August 26, 2020
[approx. 110 days from
Preliminary Approval
Order)]

Fairness Hearing

IT IS SO ORDERED.

Dated: ___________________, 2020

_____________________________________
Honorable Valerie Caproni, U.S.D.J.

12

Ex. 2

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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
TO: All Participants and Beneficiaries of the American Federation of Musicians and
Employers’ Pension Plan (the “Plan”) from August 9, 2010 through the date of the
Preliminary Approval Order [fill in date],, May 18, 2020, excluding the Defendants and
their Beneficiaries.
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
•

Please read this Notice and the Settlement Agreement available at www.afmepfsettlement.com carefully. Your legal rights may be affected whether you act or don’t
act. This Notice is a summary, and it is not intended to, and does not, include all of the
specific details of the Settlement Agreement. To obtain more specific details concerning
the Settlement, please read the Settlement Agreement and other Court documents available
on the website above, such as Plaintiffs’ Memorandum of Law in Support of Preliminary
Approval of Class Action Settlement (“Preliminary Approval Memorandum”). Any
amendments to the Settlement Agreement or any other settlement documents will be posted
on that website. You should visit that website if you would like more information about
the Settlement and any possible amendments to the Settlement Agreement or other
changes, including changes to the date, time, or location of the Fairness Hearing, or other
Court orders concerning the Settlement.

•

Plaintiffs Andy Snitzer and Paul Livant (“Plaintiffs” or “Class Representatives”) brought
this class action lawsuit against certain trustees of the Plan (“Defendants”) on behalf of Class
Members and the Plan, seeking recovery for breach of fiduciary duties and other violations
of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1000, et seq.
(“ERISA”). Plaintiffs believe their claims have merit for the reasons set forth in their
Preliminary Approval Memorandum. Defendants deny all claims, and nothing in the
Settlement is an admission or concession on Defendants’ part of any fault or liability
whatsoever.

•

To settle Plaintiffs’ claims, Defendants have agreed to pay $26.85 million and to implement
certain Governance Provisions negotiated by the parties that Plaintiffs believe address the
concerns raised in the Amended Complaint regarding the manner in which the Defendants
carried out their fiduciary duties. The Plan will receive at least $17 million of the total
Settlement. The balance is being sought by Plaintiffs for Attorneys’ Fees and Costs and
Service Awards. The Court will determine how much to award in Attorneys’ Fees and
Costs and Service Awards.

•

Your legal rights will be affected whether you act or don’t act. This Notice includes
information on the Settlement and the lawsuit. Please read the entire Notice carefully.

•

The Court in charge of this case has given its preliminary approval to the Settlement and
approved this Notice but has not yet decided whether to grant final approval of the
Settlement. If the Court finally approves the Settlement, it will issue an Order requiring

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Defendants to comply with the terms of the Settlement. Once the time for any appeals has
run or any such appeals have been rejected, the $26.85 million settlement amount (minus
any Attorneys’ Fees and Costs, and Service Awards to Messrs. Snitzer and Livant awarded
by the Court) will be transferred to the Plan and will be available to pay Plan costs and
benefits to Class Members, and the Plan Trustees will implement the Governance
Provisions provided for by the Settlement.
•

The following rights and options – and deadlines to exercise them – are explained in this
Notice.

DO NOTHING

OBJECT TO THE
SETTLEMENT
GO TO THE
HEARING

YOUR LEGAL RIGHTS AND OPTIONS
You do not need to do anything. Inclusion in
the Settlement is automatic, and if the Court _______________
approves the Settlement all Class Members
will be bound by its terms.
If you object to the Settlement, or otherwise
wish to comment on the Settlement, you can
write to the Court explaining why you agree _______________
or disagree with the Settlement, Attorneys’
Fees and Costs, or Service Awards.
Ask to speak in Court about your objection
to the Settlement.

_______________

BASIC INFORMATION
1.

What Is This Notice About?

This Notice is to inform you about a Settlement reached in this litigation before the Court
decides whether to grant final approval of this Settlement. This Notice explains the lawsuit, the
Settlement, and your legal rights. The Court in charge is the United States District Court for
the Southern District of New York. This litigation is known as Snitzer and Livant v. The Board
of Trustees of the American Federation of Musicians and Employers’ Pension Fund, et al., No.
1:17-cv-05361-VEC. The people who sued are called the “Plaintiffs” or “Class
Representatives.” The trustees they sued are called the “Defendants” or the “Defendant
Trustees.”
2.

What Is This Lawsuit About?

Plaintiffs allege that Defendants violated ERISA and breached their fiduciary duties in
connection with certain investment decisions they made and the processes they used to make
those decisions from 2010-2017.
Throughout the litigation and in the Settlement Agreement, Defendants have denied all claims
and have also denied that they committed any wrongdoing whatsoever. Defendants assert that
they have always managed the Plan, including its investments, loyally and prudently.

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 17 of 23

3.

What Is Not Part of this Lawsuit?

The Amended Complaint, which was filed in 2017, did not raise any claims – and thus does
not settle any claims – regarding the Trustees’ 2019 decision to seek approval for benefit cuts
under the Multiemployer Pension Reform Act of 2014 (“MPRA”). The proposed Settlement
does not have an impact on or impair any right Plan Participants and Beneficiaries may have
in connection with the pending MPRA process.
4.

Why Is This a Class Action?

In a class action, one or more people, called the “Class Representatives,” sue on behalf of
themselves and other people with similar claims in the specific class action. All of these people
together are the “class” or “class members.” In a class action, one court may resolve the issues
for all class members.
5.

Why Is There A Settlement?

The Court has not decided in favor of the Plaintiffs or Defendants. Instead, both sides have
agreed to the Settlement to avoid the costs and risks of a lengthy trial and appeals process.
Nothing in the Settlement Agreement is an admission or concession on Defendants’ part of any
fault or liability whatsoever, nor is it an admission or concession on Plaintiffs’ part that their
claims lacked merit. The Class Representatives and Class Counsel believe the Settlement is
fair, reasonable, and adequate, and in the best interests of the Class Members.
THE SETTLEMENT
6.

How Do I Know If I May Be Included in the Settlement Class?

The Settlement Class includes: All Participants and Beneficiaries of the Plan from August 9,
2010 through the date of the Preliminary Approval Order, excluding Defendants and their
Beneficiaries. The fact that you are included in the Settlement Class, and receiving this Notice,
does not mean that you are entitled to a Plan benefit now or in the future. It only means that
you (or, if you are a beneficiary, the person who designated you) were a Plan Participant during
the Class Period.
The Settlement Agreement, the Preliminary Approval Order, and other relevant pleadings and
Court orders are accessible on the website at www.afm-epfsettlement.com.
7.

How Much Money Does the Settlement Provide for the Plan?

To settle the lawsuit, Defendants will cause their insurers to pay $26.85 million. After a
deduction of Attorneys’ Fees and Costs, and Service Awards to Plaintiffs Snitzer and Livant
(see FAQ 12 below), as approved by the Court, the remaining balance will be transferred to
the Plan and will be available to pay Plan costs and benefits to Participants and
Beneficiaries. As discussed further below, Class Counsel and Plaintiffs will apply for
Attorneys’ Fees of up to one third of the Gross Settlement Amount plus $900,000 in costs,
which is inclusive of the $20,000 in Service Awards they are seeking for the Plaintiffs. If
approved, those amounts will be paid out of the Gross Settlement Amount, leaving at least $17
million for the Plan.

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 18 of 23

8.

What Governance Provisions Will the Plan Implement If the Court Approves the
Settlement?
In addition to the $26.85 million payment, the Trustees agreed in the Settlement to make certain
disclosures and Plan governance changes negotiated by the parties.
The following is a summary of the Governance Provisions agreed to as part of the Settlement.
More details about the Governance Provisions and the Settlement as a whole are set forth in
the Settlement Agreement, available at www.afm-epfsettlement.com.
•
Neutral Independent Fiduciary Trustee: Pursuant to the Settlement, the
Trustees will appoint Blakeman Crest Advisors, LLC (“BCA”) to serve as a Neutral
Independent Fiduciary Trustee for the Plan for 4-5 years, through its manager Andrew Irving.
Mr. Irving was jointly selected by Plaintiffs and Defendants. In its capacity as Neutral
Independent Fiduciary Trustee, BCA, through Mr. Irving, will serve as (a) a nonvoting member
of the Investment Committee; and (b) an advisory resource to the voting members of the
Investment Committee, including the Investment Committee Co-Chairs. BCA, through Mr.
Irving, shall also have the following responsibilities: (i) to work with, and provide input to, the
Union- and Employer-side Co-Chairs of the Investment Committee in fulfilling their functions
and responsibilities as Co-Chairs; (ii) with complete access to the information available to the
Union- and Employer-side Co-Chairs of the Investment Committee, to function in all respects
(other than voting authority) as those Co-Chairs; (iii) to participate in Investment Committee
meetings, deliberations and decisions, with all the authority and responsibilities of a Trustee
with respect to the Plan’s investments (other than voting authority); (iv) to participate in the
portion of the Board meetings, deliberations and decisions, with all the authority and
responsibilities of a Trustee, related to the Plan’s investments (other than voting authority); (v)
to state his assessment, including his reasoning for such assessment, of all matters under
deliberation or subject to a decision or vote related to the Investment Committee (including
asset management and allocation); (vi) to make recommendations, at least annually, regarding
changes (if any) in the processes pursuant to which the Investment Committee performs its
responsibilities; and (vii) in coordination with the Trustees and the Outsourced Chief
Investment Officer (“OCIO”), to prepare a written report regarding possible changes to the
Plan’s Investment Policy Statement.
The parties believe that Mr. Irving has the requisite expertise to act for BCA as Neutral
Independent Fiduciary Trustee in light of his experience acting as an independent fiduciary and
as an advisor to pension plan fiduciaries in fulfilling their responsibilities with respect to pension
investment and/or actuarial matters. Mr. Irving’s resume and his declaration filed with the Court
are available at www.afm-epfsettlement.com.
•
Replacement of Meketa as OCIO Monitor: The Trustees agreed to replace
Meketa with a new OCIO monitor pursuant to a request for proposal process negotiated by
Plaintiffs and Defendants. As described in the Amended Complaint, Meketa served as the
Plan’s investment consultant from 2010 to 2017, during which time the Trustees adopted the
asset allocations and made the investment decisions Plaintiffs allege were imprudent. In 2017,
the Plan Trustees elected to hire Cambridge Investment Group to serve as the Plan’s OCIO with
discretion to make Plan investments, at which time Meketa took on the role of OCIO monitor.
The Settlement requires the Neutral Independent Fiduciary Trustee to educate the OCIO

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 19 of 23

monitor candidates about the parties’ respective claims and defenses based on his review of
certain lawsuit materials, including the parties’ respective expert reports.
•
Website Disclosures: As part of the Settlement, the Trustees have agreed to post
on the Plan’s website certain reports, including charts showing a comparison of the Plan’s asset
allocation to the average asset allocations of large Taft-Hartley plans, plus a running
cumulative comparison of the Plan’s actual performance since Cambridge became the Plan’s
OCIO in October 2017 versus the performance of an appropriate index benchmark. These
comparisons are similar to those used by the Parties’ respective experts.
•
Disclosure of New Trustees: Pursuant to the Settlement, except under certain
circumstances where timing does not permit, the Trustees have agreed that, at least four weeks
before the effective date of any new Trustee’s appointment to serve on the Board, the Trustees
will post on the Plan’s website the identity of the new Trustee along with his or her bio and
any other experience relevant to his or her qualifications to serve as a Trustee. The Settlement
also acknowledges that at least one employer-designated Trustee and one union-designated
Trustee who are members of the Investment Committee have previously stated their intention
to resign from the Board within the next 18 months. As part of the Settlement, the Parties
agreed that those Trustees will be replaced by Trustees who were not previously members of
the Board and who will serve on the Investment Committee.
9.

What Am I Giving Up If the Court Approves the Settlement?

In exchange for the relief provided by the Settlement, the Parties agreed that the Plaintiffs and
all Class Members would forever release the Released Claims against the Released Parties. As
set out more fully in the Settlement Agreement, “Released Claims” means any and all claims
that were asserted in the Complaint or Amended Complaint or that arise out of, relate in any
way to, are based on, or have any connection with any of the factual or legal allegations asserted
in the Complaint or Amended Complaint, including, but not limited to, those that arise out of,
relate to, are based on, or have any connection with decisions made, prior to the OCIO
Management Date, regarding (i) the Plan’s asset allocation and the selection (including of the
Plan’s OCIO), retention, monitoring, oversight, compensation, fees, or performance of the
Plan’s investments or its investment managers; (ii) investment-related fees, costs, or expenses
charged to, paid, or reimbursed by the Plan; (iii) disclosures or failures to disclose information
regarding the Plan’s investments and/or funding; or (iv) any alleged breach of the duty of
loyalty, care, prudence, diversification, or any other fiduciary duties or prohibited transactions
in connection with (i) through (iii) above.
The governing releases are found within the Settlement Agreement at www.afmepfsettlement.com. The Settlement Agreement describes the Released Claims in further detail.
This is only a summary of the Released Claims, and it is not a binding description. Read the
Settlement Agreement carefully because those releases will be binding on you as a Settlement
Class Member if the Court grants final approval of the Settlement. The Settlement Agreement
is available at www.afm-epfsettlement.com.
THE LAWYERS REPRESENTING YOU

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 20 of 23

10.

Do I Have a Lawyer Representing Me?

The Court has appointed the following lawyers as Lead Plaintiffs’ Counsel to represent you
and all other members of the Settlement Class:
Steven A. Schwartz
[e-mail]
Mark B. DeSanto
[e-mail]
CHIMICLES SCHWARTZ KRINER &
DONALDSON-SMITH LLP
361 West Lancaster Avenue
Haverford, PA 19041
610.642.8500

Robert J. Kriner, Jr.
[e-mail]
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
[phone]

You will not be charged for contacting these lawyers. If you want to be represented by your
own lawyer, you may hire one at your own expense.
11.

How Will the Lawyers Be Paid?

Plaintiffs’ Counsel will ask the Court to pay them for the time they spent and reimburse them
for the expenses they incurred prosecuting the lawsuit. Plaintiffs’ Counsel will ask the Court
for attorneys’ fees not to exceed one-third of the $26.85 million Settlement amount, plus
litigation expenses or charges not to exceed $900,000. To date, Plaintiffs’ Counsel represent
that they have spent over 12,500 hours prosecuting the lawsuit, and they have not been paid
anything for their work yet. They also represent that they have advanced almost $900,000 in
costs to cover the expenses necessary to pursue the lawsuit, including experts, transcripts,
documents, and travel. Plaintiffs’ Counsel will file with the Court a detailed Motion supporting
their request for attorneys’ fees and reimbursement of expenses. Plaintiffs’ Counsel will file
that Motion before the deadline for objections, and you will be able to review it at www.afmepfsettlement.com. Any payment to the attorneys will be subject to Court approval, and the
Court may award less than the requested amount. Any Attorneys’ Fees and Costs will be paid
out of the Gross Settlement Payment. Defendants have reserved the right to object to such
requested amounts.
12.

What Will Plaintiffs’ Andy Snitzer and Paul Livant Receive Service Awards
and/or a Release?Out of the Settlement?

Plaintiffs’ Counsel will ask the Court to award each Plaintiff $10,000 as a Service Award for
his efforts and the accompanying risks each assumed in bringing this litigation. Both Plaintiffs
spent significant time consulting with counsel, produced numerous documents including
emails from 2010 through 2017, sat for full-day depositions by Defendants’ Counsel,
participated in mediation sessions, and reviewed various court and mediation documents.
Class Counsel have agreed that any Service Awards will be paid out of the amount awarded
by the Court for Attorneys’ Fees and Costs. Messrs. Snitzer and Livant have each committed
to donate any Service Award to an organization or organizations that they believe are fighting
to protect the rights of plan participants and beneficiaries. Defendants have reserved the right
to object to the payment of any Service Awards that are earmarked for an outside organization.

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 21 of 23

In addition, Plaintiffs’ Counsel will request that the Court approve the provisionprovisions in
Section Sections 5.1(f) and 9.1 of the Settlement Agreement that. Pursuant to those sections,
each Class Member shall be deemed to have fully, finally, and forever settled, released,
relinquished, waived, and dischargedsettle, release, relinquish, waive, and discharge any
claims he or she may have against the Class RepresentativesMessrs. Snitzer and Livant that
arise out of the institution, prosecution, settlement or dismissal of the Action.
OBJECTING TO THE SETTLEMENT
13.

How Do I Object to or Comment on the Settlement?

You can ask the Court not to approve the Settlement by filing an objection. You can also object
to the request for Attorneys’ Fees and Costs or, the proposed Service Awards for each of the
Plaintiffs, or Plaintiffs’ request that Class Members release any and all claim(s) against the
Class Representatives. You can’t ask the Court to order a different Settlement or order different
Governance Provisions; the Court can only approve or reject this Settlement. If the Court does
not approve, the Plan will not receive any of the $26.85 million Settlement payment negotiated
by the parties and the Trustees will not be required to implement the Governance Provisions
provided for by the Settlement.
Any objection to the proposed Settlement must be in writing. Any objection must be submitted
to the Court either by mailing it to the United States District Court for the Southern District of
New York, Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY,
10007 ATTN Judge Caproni, or by filing them in person with the Court. Any objection must
be filed or postmarked on or before July 27, 2020. If you file a timely written objection, you
may, but are not required to, appear at the Fairness Hearing, either in person or through your
own attorney. If you appear through your own attorney, you are responsible for hiring and
paying that attorney.
All written objections and supporting papers must include (a) the case name and number
(Snitzer and Livant v. The Board of Trustees of the American Federation of Musicians and
Employers’ Pension Fund, et al., No. 1:17-cv-05361-VEC); (b) your name, address, telephone
number, and email address; (c) the specific grounds for your objection along with any
supporting papers, materials, briefs or evidence that you wish the Court to consider when
reviewing the objection; (d) your signature; and (e) a statement whether you or your attorney
intends to appear at the Fairness Hearing. If you or your attorney has objected to a class action
settlement during the past 5 years, the objection must also disclose all cases in which you or
your attorney has filed an objection by caption, court and case number, and for each case, the
disposition of the objection, including whether any payments were made to the objector or his
or her counsel, and if so, the incremental benefits, if any, that were achieved for the class in
exchange for such payments.
Any party to the litigation may file a response to an objection before the Fairness Hearing.
If you do not comply with these procedures and timely object, you will lose any opportunity
to have your objection considered at the Fairness Hearing or to otherwise contest approval of
the Settlement or to appeal from any order or judgment entered by the Court in connection with
the Settlement.

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 22 of 23

14.

Can I Opt Out of the Settlement?

No. The Court has certified this case as a class action pursuant to Federal Rule of Civil
Procedure 23(b)(1), and that subsection of Rule 23 does not include provisions for class
members to opt out.
THE FINAL FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the Settlement and any requests by
Plaintiffs’ Counsel for fees, costs, and expenses and the proposed Service Awards for the
Plaintiffs. You may attend and you may ask to speak, but you do not have to do so.
15.

When and Where Will the Court Decide Whether to Approve the Settlement?

The Court will hold a Final Fairness Hearing at 10:00 A.M. on August 26, 2020, at Courtroom
443 of the United States District Court for the Southern District of New York, at Thurgood
Marshall United States Courthouse, 40 Foley Square, New York, NY, 10007. The hearing may
be moved to a different date or time without additional notice, so check www.afmepfsettlement.com or call Plaintiffs’ Counsel to confirm that the date has not been changed. At
this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate.
If there are objections or comments, the Court will consider them at that time and will listen to
people who have asked to speak at the hearing. The Court may also decide how much to pay
Plaintiffs’ Counsel and whether to reimburse Plaintiffs’ Counsel for certain costs, and whether
to pay Service Awards to the Plaintiffs. At or after the hearing, the Court will decide whether
to approve the Settlement.
16.

Do I Have to Attend the Hearing?

No. Plaintiffs’ Counsel will answer any questions the Court may have. But you are welcome
to attend, at your expense, if you wish. If you send an objection or comment, you do not have
to come to Court to talk about it. As long as you filed or mailed your written objection on time,
the Court will consider it. You may also hire your own lawyer at your own expense to attend
on your behalf, but you are not required to do so.
17.

May I Speak at the Hearing?

If you send an objection or comment on the Settlement, as long as your objection noted your
intention to appear, you or your counsel may have the right to speak at the Fairness Hearing as
determined by the Court.
GET MORE INFORMATION
18.

How Do I Get More Information?

This Notice summarizes the proposed Settlement. For the precise terms and conditions of the
Settlement, please see the Settlement Agreement available at www.afm-epfsettlement.com.
For more information on the Settlement, you may contact Lead Counsel identified above in
Question 10. Updates about the Settlement will be posted at www.afm-epfsettlement.com.
Finally, you may visit the office of the Clerk of the Court at the address above, between 8:30
a.m. and 5:00 p.m., Monday through Friday, excluding Court holidays and the period during
which the Court is not open to the public due to COVID-19.

Case 1:17-cv-05361-VEC Document 161 Filed 05/14/20 Page 23 of 23

PLEASE DO NOT TELEPHONE THE COURT, THE COURT CLERK’S OFFICE, OR
THE FUND OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.
Dated: ________

By Order of the Court, United States District
Court for the Southern District of New York