Frequently Asked Questions Related To This Settlement
- Am I being sued?
- Why did I get a notice package in the mail?
- What is the Action about?
- How do I know if I am part of the Settlement?
- Why is this Action a class action?
- What does the Settlement provide for me and other members of the Class?
- How may I obtain a payment?
- How much will my payment be?
- How will I receive my payment?
- Do I have a lawyer in this case?
- How will Class Counsel be paid?
- Can I exclude myself from the Settlement Class?
- What does it mean to object to the Settlement?
- How do I tell the Court that I object to the Settlement?
- May I speak at the Fairness Hearing regarding the Settlement?
- How do I receive a copy of the Settlement Notice?
- What if I have additional questions?
No, you are not being sued.
Why did I get a notice package in the mail?
You or someone in your family are or may be a member of the W.R. Grace ERISA Settlement Class. The Settlement Class is defined as follows:
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ALL PERSONS WHO WERE PARTICIPANTS IN OR BENEFICIARIES OF THE W. R. GRACE & CO. SAVINGS AND INVESTMENT PLAN (THE "PLAN") AT ANY TIME BETWEEN JULY 1, 1999 TO APRIL 19, 2004 ("CLASS PERIOD") AND WHOSE ACCOUNTS INCLUDED INVESTMENT IN THE COMPANY STOCK FUND AT ANY POINT DURING THAT TIME PERIOD, EXCLUDING DEFENDANTS ("SETTLEMENT CLASS").
If you fall within this group, you have a right to know about the Settlement and all the options available to you regarding the proposed Settlement currently pending before the United States District Court for the District of Massachusetts (the "Court").
In the Action, Plaintiffs claimed that Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA") by continuing to allow the investment of the Plan's assets in W.R. Grace Stock Fund at a time when, according to Plaintiffs, W.R. Grace Common Stock was an imprudent investment for the Plan. Plaintiffs also allege that Defendants violated ERISA by, among other things, disseminating inaccurate and misleading material information to Plan participants regarding investment of Plan assets in W.R. Grace stock, and withholding material information vital to making any such Plan investment decision; failing to monitor appointed fiduciaries and provide them with sufficient information; allowing fiduciary breaches of their co-fiduciaries; and failing to avoid or remedy inherent conflicts of interest between their corporate interests and fiduciary responsibilities to the Plan and their participants..
The Defendants are: John F. Akers, Ronald C. Cambre, Marye Anne Fox, John J. Murphy, Paul J. Norris, Thomas A. Vanderslice, H. Furlong Baldwin, Brenda Gottlieb, Robert M. Tarola, W. Brian McGowan, Michael Piergrossi, Eileen Walsh, David Nakashige, Elyse Napoli, Martin Hunter, Ren Lapadario ("Individual Defendants"), the Investments and Benefits Committee of the Plan, and the Administrative Committee of the Plan (collectively, "Defendants").
How do I know if I am part of the Settlement?
All Persons, excluding Defendants, who were participants in or beneficiaries of the W.R. Grace & Co. Savings and Investment Plan (the "Plan") at any time between July 1, 1999 to April 19, 2004 and whose account included investment in W.R. Grace Common Stock are members of the Settlement Class. Since this lawsuit does not allow you to opt out of the Settlement, if you are a member of the Settlement Class, you do not have the right to exclude yourself from the Settlement in this case. Therefore, you will be bound by any judgments or orders that are entered in this Action for all claims that were asserted in this case on your behalf, on behalf of the Plan or otherwise included in the release provided for by the Settlement. Although you may not opt out of the Settlement, you may object to the Settlement and ask the Court not to approve the Settlement. (See Frequently Asked Questions 12-14 for more information.)
Why is this Action a class action?
In a class action, one or more persons called class representatives or Named Plaintiffs sue on behalf of people who have similar claims. All of these people who have similar claims make up the class and are referred to individually as class members. One court/action resolves the issues for all class members. Because the Named Plaintiffs believe that the wrongful conduct they allege affected a large group of people in a similar way, the Named Plaintiffs filed this case as a class action. The Named Plaintiffs in this Action are Keri Evans, Timothy Whipps and Mark Siamis.
What does the Settlement provide for me and other members of the Class?
The Defendants have agreed to create a settlement fund of $10 million dollars, plus interest earned thereon, to be divided among eligible class members, after attorneys' fees, compensation payments to the Named Plaintiffs, and payment of other costs and expenses of the Settlement as the Court may allow. The Settlement Agreement, available on this website, describes the details of the proposed Settlement. This Settlement releases certain claims against the Defendants with respect to the investment of the Plan's assets in W.R. Grace Stock during the Class Period.
If the Court approves the Settlement, at some point thereafter, a distribution of your Settlement proceeds will be made to your Plan account if you are a class member and a current Plan participant. If you are a class member and no longer participate in the Plan, a new account will be created specifically for your settlement proceeds by the Plan's administrator and you will be notified by mail.
If you are a former participant and you have not provided Lead Counsel for Named Plaintiffs or W.R. Grace with your current address, please email your current address along with your previous address to
WRGraceERISAsettlement@btkmc.com or call, toll-free, (800) 951-5312.
Your share of the Settlement Fund will depend on the number of shares of W.R. Grace Stock you held in your Plan account during the Class Period, and the amount that you lost as a result of this holding. The formula will take into account your purchases and/or sales of W.R. Grace Stock in your Plan account. The more you lost due to the investment of W.R. Grace Stock in your Plan account, the larger your share of the Net Settlement Fund will be. Your share of the Net Settlement Fund, however, will be less than your actual losses, unless your actual losses are less than $10.00 (ten dollars). You are not responsible for calculating the amount you may be entitled to receive under the Settlement - this calculation will be done as part of the implementation of the settlement. Your settlement amount (subject to the minimum allocation provision) will be calculated in accordance with a Court-approved Plan of Allocation, the proposed version of which is available at this website. However, no class member will receive less than $10.00 (ten dollars).
How will I receive my payment?
You do not need to file a claim. If you are a Settlement Class member and a current Participant in the Plan as defined by the Plan of Allocation, then your share of the Net Proceeds will be deposited into your Plan account pursuant to the Plan of Allocation. If you are a Settlement Class member and a former Participant in the Plan as defined in the Plan of Allocation, a new account will be created by the Plan administrator and notification of such an account will be mailed to you. If you are a former Plan participant and you have not provided Lead Counsel for Plaintiffs or W.R. Grace with your mailing address, please email your current address along with your previous address to: WRGraceERISAsettlement@btkmc.com or contact Class Counsel at (800) 951-5312.
Do I have a lawyer in this case?
The Court has appointed the law firm of Barroway Topaz Kessler Meltzer & Check, LLP ("BTKMC"), as Lead Counsel for Plaintiffs in the Action. You will not be charged directly by these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
How will Class Counsel be paid?
At the Fairness Hearing, Lead Counsel for Plaintiffs will apply for an award of attorneys' fees not to exceed 30% of the Settlement Fund and reimbursement of all expenses incurred during the litigation. To date, counsel for Plaintiffs have not received any payment for their services in prosecuting this Action on behalf of the Settlement Class, nor have counsel been reimbursed for their out-of-pocket expenses.
Can I exclude myself from the Settlement Class?
You do not have the right to exclude yourself from the Settlement. The Action was conditionally certified under Federal Rule of Civil Procedure 23(a) and (b)(1) as a non "opt-out" class action because the Court preliminarily determined the requirements of the rule were satisfied. Thus, it is not possible for any participants or beneficiaries to exclude themselves from the benefits of the Settlement. As a Settlement Class member, you will be bound by any judgments or orders that are entered in the Action for all claims that were or could have been asserted in the Action or are otherwise included in the release under the Settlement.
What does it mean to object to the Settlement?
Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve it. Objecting is simply telling the Court that you do not like something about the Settlement or the request for attorneys' fees and reimbursement of expenses. Filing an objection will not have any bearing on your right to Settlement benefits if the Court approves the Settlement.
How do I tell the Court that I object to the Settlement?
If you are a Settlement Class member, you may object to the Settlement if you do not like any part of it. You may also give reasons why you think the Court should not approve the Settlement. To object, you must send a letter or other written filing saying that you object to the Settlement in Evans v. Akers and Siamis v. Akers, Consolidated Under Case No. 04-11380-WGY. Be sure to include your name, address, telephone number, signature, and a full explanation of all reasons you object to the Settlement. Your written objection must be mailed to the Clerk of the Court and all attorneys listed on pages 7-8 of the Notice and must be postmarked by no later than September 23, 2009.
May I speak at the Fairness Hearing regarding the Settlement?
The Court will hold a Fairness Hearing on October 7, 2009 at 2:30 p.m. at the United States District Court for the District of Massachusetts, in the Courtroom then occupied by the Honorable William G. Young, United States District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 2300, Boston, Massachusetts 02210, to decide whether to approve the Settlement. You may attend and you may ask to speak, but you are not required to do so.
If you submit a written objection to the Settlement to the Court and counsel before the Court-approved deadline, you may (but do not have to) attend the Court Hearing about the Settlement and present your objections to the Court. To do so, you must send a letter or other paper called a "Notice of Intention to Appear at Fairness Hearing" in Evans v. Akers and Siamis v. Akers, Consolidated under Case No. 04-11380-WGY. Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be served on the attorneys and Clerk of Court listed on pages 7-8 of the Notice and postmarked no later than September 23, 2009.
How do I receive a copy of the Settlement Notice?
Copies of the Notice were mailed out to the last known address of all members of the Plan who held interests in W.R. Grace Stock during the Class Period. If you would like to review the Notice, please click on the link for the Notice. To request a Notice be mailed to you, call (800) 951-5312; however, please be advised that requesting a Notice does not guarantee that you are a class member.
What if I have additional questions?
If you have additional questions regarding this case, please send an email to: WRGraceERISAsettlement@btkmc.com. This email will go to the law office of Barroway Topaz Kessler Meltzer & Check, LLP, and will be directed to the individuals handling the Settlement. Lead Counsel for Named Plaintiffs have also set up a toll free number, (800) 951-5312, if you prefer to call with your questions.