Frequently Asked Questions
- WHAT IS THIS LAWSUIT ABOUT?
- HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
- HOW DO I KNOW IF MY TRUST IS OPEN OR CLOSED?
- WHAT DOES THE SETTLEMENT PROVIDE?
- IS THERE ANY MONEY AVAILABLE NOW?
- YOUR RIGHTS AND OPTIONS—EXCLUDE YOURSELF
- YOUR RIGHTS AND OPTIONS— OBJECT TO THE SETTLEMENT
- WHAT IF MY ADDRESS OR OTHER INFORMATION HAS CHANGED OR CHANGES AFTER I RECEIVE MY NOTICE?
- IMPORTANT DATES
- IMPORTANT ADDRESSES
- WHAT IS THIS LAWSUIT ABOUT?
A class action lawsuit entitled Henderson, et al. v. BNY Mellon, N.A., Case No. 1:15-cv-10599-PBS, is pending in the U.S. District Court for the District of Massachusetts. The lawsuit claims that BNY Mellon breached its fiduciary duties to a class of trusts by allegedly charging excessive fees for the preparation of tax returns by a third party.
BNY Mellon denies that it charged any improper fees. To the contrary, BNY Mellon’s position is that the fees charged were reasonable and appropriate. BNY Mellon also contends that it has numerous other defenses to the action. The Court has not decided who is right or wrong.
Although no decision has been made about who is right and who is wrong, both sides have agreed to the proposed Settlement. A settlement avoids the expense, further delay and uncertainty of a trial and gives money and fee relief to Settlement Class Members more quickly. The Plaintiffs and the attorneys for the Settlement Class think the Settlement is best for all class members.
The lawsuit is called a “Class Action” because the Plaintiffs and Class Representatives are suing on behalf of other people with similar claims, called “Class Members.” In a class action, one court resolves the issues for everyone in the Class—except for those people who choose to exclude themselves from the Class.
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You may have received an earlier notice advising you that you are a member of the class in this Class Action. This earlier notice explained that the Court allowed, or “certified,” a class that included you. Since that first notice was sent, the parties reached the Settlement described in this second notice. The Court preliminarily approved the Settlement and ordered that this second notice be sent to you. - HOW DO I KNOW IF I AM PART OF THE SETTLEMENT?
The Settlement Class is defined as:
From 2008 to May 28, 2019, all grantors, settlors, co-trustees, and qualified beneficiaries of personal trusts for which: (1) BNY Mellon served or serves as trustee; (2) BNY Mellon charged line-item tax-preparation fees amounting to at least $400 per year for grantor trusts, at least $750 per year for revocable and “simple” irrevocable trusts, or at least $950 per year for “complex” irrevocable trusts for one or more of the covered years; (3) the preparer of the fiduciary return covered by the line item tax-preparation fee was PricewaterhouseCoopers; and (4) the trust’s tax preparation fees claim is not barred by the applicable state statute of repose.
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BNY Mellon’s records show that you are a member of the Settlement Class. The Settlement includes both open and closed trusts. If you have any questions about whether your BNY Mellon trust is open or closed, see below. - HOW DO I KNOW IF MY TRUST IS OPEN OR CLOSED?
Your trust is open if BNY Mellon is currently acting as a trustee and administering your trust. If your trust is open and you do not opt out of the Settlement, a cash payment will be deposited into your trust.
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Your trust is deemed closed for purposes of the Settlement if for any reason, BNY Mellon is no longer administering your trust and the account is closed at BNY Mellon. If your trust is closed, you may receive a cash payment if you submit a Verification Form confirming that you were a beneficiary, grantor, or settlor of the closed trust, as described in question 4 below, before the July 27, 2019 deadline. - WHAT DOES THE SETTLEMENT PROVIDE?
If the Court approves the Settlement, all Settlement Class Members who do not validly exclude themselves will be entitled to certain monetary benefits. If the Court does not approve the Settlement, Settlement Class Members will not get any benefits of the Settlement and the parties will go back to Court for further proceedings. The parties have made their best efforts to negotiate a settlement that is fair and reasonable under the circumstances.
Cash Payments. BNY Mellon will pay $10,000,000 into a Settlement Fund which will be used, after deductions for court approved attorneys’ fees and costs, administration costs, and any service awards to the Class Representatives, to make payments to open trusts and to Settlement Class Members who are beneficiaries, grantors, or settlors of closed trusts, on a proportional basis. Cash payments representing a trust’s proportional share of the Settlement Fund, after court approved deductions, will be made (i) by a payment to the trust principal for open trusts, (ii) by checks to beneficiaries, grantors, or settlors of trusts that closed on or before the date the Settlement received Preliminary Approval who submit valid Verification Forms, and (iii) by checks to beneficiaries, grantors, or settlors of trusts that closed after the date of Preliminary Approval, May 28, 2019, as described below.
Each trust’s pro rata share will be based on the proportion that the Tax Preparation Fees paid by that trust are to the total Tax Preparation Fees paid by all Open Class Trusts and Closed Class Trusts entitled to a pro rata share. For example, if the Tax Preparation Fees paid by a particular trust represent 2% of the total Tax Preparation Fees paid by Open Class Trusts plus Closed Class trusts for which a Verification Form is submitted or which closed after the date of Preliminary Approval, then the trust shall be entitled to 2% of the Net Cash Settlement Fund. The Plaintiffs estimate that on average the per trust payment will be approximately $830, but this amount will vary depending on how much your trust paid in tax preparation fees during the Class Period.
In addition to these payments, for those trusts still being charged a line-item Tax Preparation Fee (as that term is defined in the Settlement Agreement), BNY Mellon will waive and not collect such fees for a period of ten years. Absorbing the third-party cost of preparing such tax returns for this ten-year period has a present monetary value of approximately $621,350.
If your trust is still open you do NOT need to do anything to receive these benefits.
If Your Trust Is Closed. If your trust is closed, you must complete the Verification Form included with this Notice, which will confirm your identity and that you are a beneficiary of a closed irrevocable trust(s) and/or a grantor or settlor of a closed revocable trust(s), and entitled to a payment under the Settlement. Your completed Verification Form must be postmarked by July 27, 2019 and mailed to the Settlement Administrator at the address in section 6 below. If your trust closes between now and the date of distribution, your trust’s pro rata payment will be paid to the beneficiaries, grantors, or settlors of the trust in equal shares.
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The parties make no representations about the tax implications of any payments made in connection with this Settlement. You should seek your own tax advice before acting in response to this Notice. - IS THERE ANY MONEY AVAILABLE NOW?
No money or benefits are available now because the Court has not yet finally decided whether the Settlement should be approved. If the Court does finally approve the Settlement later this year, you or your trust will receive your portion of the recovery as soon as the Settlement Administrator determines your amount and sends you a check or distributes your trust’s payment. With thousands of people entitled to recovery, this takes time.
THE LAWYERS AND CLASS REPRESENTATIVES REPRESENTING YOU
The Court decided that the law firms of Bailey & Glasser LLP and Derek G. Howard Law Firm, Inc. are qualified to represent you and all Settlement Class Members. Their addresses are at the end of this Notice. Together the law firms are called “Settlement Class Counsel.” They are experienced in handling similar cases.
You have the right to retain your own lawyer to represent you in this case, but you are not obligated to do so. If you do hire your own lawyer, you will have to pay his or her fees and expenses. You also have the right to represent yourself before the Court without a lawyer.
Counsel for the Settlement Class may seek attorneys’ fees from the Settlement Fund of up to one-third of the Fund, plus expenses which are currently approximately $390,000, subject to approval by the Court at the Final Approval Hearing referred to below. Counsel for the Settlement Class will also apply to the Court for service awards of up to $100,000 total for the two Class Representatives, to compensate them for their efforts undertaken on behalf of the Settlement Class. If the Court approves the requests, the fees, costs, and service awards will be paid from the Settlement Fund, along with the costs of administration. The remainder (“The Net Settlement Fund”)will be distributed to the Class, as described above.
THE SETTLEMENT—WHAT YOU WILL GIVE UP
If the Court approves the proposed Settlement, unless you validly exclude yourself from the Settlement, you will be releasing BNY Mellon and the Released Parties from all of the claims described and identified in section 11 of the Settlement Agreement. A RELEASE MEANS THAT YOU WILL NOT BE ABLE TO FILE A LAWSUIT, CONTINUE PROSECUTING A LAWSUIT, OR BE PART OF ANY OTHER LAWSUIT AGAINST BNY MELLON, N.A. OR THE RELEASED PARTIES REGARDING CLAIMS RELATED TO THE CHARGING OF AND DISCLOSURE OF TAX PREPARATION FEES DURING THE PERIOD 2008 TO PRESENT.
Top - YOUR RIGHTS AND OPTIONS—EXCLUDE YOURSELF
If you are a Settlement Class Member, you are included in the Settlement unless you validly request to be excluded. If you remain in the Settlement Class and this Settlement is approved by the Court, you will receive the benefits described above.
If your trust is closed, and you do not want to participate in the Settlement, you can exclude yourself or “opt out.” If your trust is open, in order to validly exclude yourself, all of the beneficiaries of your trust must exclude themselves.
If you exclude yourself, you will not receive any benefits from the Settlement, but you will not be bound by any judgment or release in this Action and will keep your right to sue BNY Mellon on your own if you want. If you exclude yourself, you may not object to the Settlement.
To exclude yourself, you must send a letter or postcard with your original signature stating: (a) the name and case number of the Action, “Henderson v. BNY Mellon, N.A., Case No. 1:15-cv-10599-PBS”; (b) your full name, address, email address, and telephone number; and (c) a statement that you do not wish to participate in the Settlement, postmarked no later than July 27, 2019 to the Settlement Administrator at:
Henderson v. BNY Mellon Settlement Administrator
P.O. Box 40400
Louisville, KY 40233-4000
IF YOU DO NOT MAKE A TIMELY AND VALID REQUEST FOR EXCLUSION, YOU WILL REMAIN A SETTLEMENT CLASS MEMBER AND BE BOUND BY THE SETTLEMENT.
If you received an earlier notice advising you that you are a member of the class in this Class Action and you submitted a timely and valid request for exclusion following that notice, you are excluded from this Settlement unless you submit a request to revoke your exclusion to the Settlement Administrator at the above address, postmarked no later than July 27, 2019.
Top - YOUR RIGHTS AND OPTIONS— OBJECT TO THE SETTLEMENT
If you are a Settlement Class Member, you can object to the Settlement if you don’t like any part of it. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the case no longer affects you.
To object, you must send a letter saying that you object to the Henderson v. BNY Mellon Settlement. You should give reasons why you think the Court should not approve it, and state whether your objection applies only to you, to a specific subset of the Class, or to the entire Class. Be sure to include your name, address, telephone number, your signature, and if you are represented by counsel, the name, address, and telephone number of your counsel. The Court will consider your views.
Your objection will not be valid unless it is sent to Settlement Class Counsel, BNY Mellon’s Counsel, and the Court at the addresses provided below.
Mail the objection to these four different places, postmarked no later than July 27, 2019:SETTLEMENT CLASS COUNSEL BNY MELLON'S COUNSEL COURT Elizabeth Ryan
Bailey & Glasser LLP
99 High Street, Suite 304
Boston, MA 02110Derek G. Howard
Derek G. Howard Law Firm
42 Miller Avenue
Mill Valley, CA 94941K. Issac DeVyver
McGuireWoods LLP
260 Forbes Avenue
Pittsburgh, PA 15222United States District Court
John Joseph Moakley U.S. Courthouse,
1 Courthouse Way, Suite 2300
Boston, MA 02210FINAL APPROVAL HEARING
The Court will hold a hearing on September 6, 2019 at 2:00 p.m. in Courtroom 19, 7th Floor, at the U.S. District Court for the District of Massachusetts, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Boston, MA 02210, to decide whether to give final approval to the Settlement. The purpose of the Final Approval Hearing will be for the Court to determine whether the Settlement is fair, reasonable, adequate, and in the best interests of the Settlement Class; to consider the award of attorneys’ fees and costs to Class Counsel; to consider the request for a service award to the Class Representatives; and to consider whether the Settlement Class Members should be bound by the Release and be prohibited from suing over the release of claims about BNY Mellon charging line-item tax preparation fees. We do not know whether the Court will make its decision on the day of the hearing or sometime later.
The hearing may be postponed to a different date or time or location without notice. Please contact the Settlement Administrator or Class Counsel for any updates about the Settlement generally or the Final Approval Hearing specifically. At that hearing, the Court will hear any objections and arguments concerning the fairness of the Settlement. You may attend, but you do not have to. You may speak at the Final Approval Hearing only if (a) you have timely served and filed a proper objection, and (b) you have timely served and filed a Notice of Intent to Appear. Your Notice of Intent to Appear, along with any papers, exhibits, or other evidence you intend to present, must be filed with the Court and sent to Class Counsel and BNY Mellon’s Counsel (at the addresses listed in Question 7, above) no later than July 27, 2019.
If you have requested exclusion from the Settlement, however, you may not speak at the Final Approval Hearing.GETTING MORE INFORMATION
If you have additional questions you may contact Class Counsel at the address below. All of the records and other papers filed in the Action, including the Settlement Agreement, are on file with the Court and can be inspected during regular business hours at the Clerk’s Office. The Clerk of the Court is located at the John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 2300, Boston, MA 02210. Key documents are also available on the documents tab in the top right corner.
Please do not contact the Judge concerning this case.
Top - WHAT IF MY ADDRESS OR OTHER INFORMATION HAS CHANGED OR CHANGES AFTER I RECEIVE MY NOTICE?
It is your responsibility to inform the Settlement Administrator of your updated information so that a check may be sent to you, if the Settlement is approved and you have provided a timely and valid Verification Form in accordance with Question 4, above, or if your trust closed after Preliminary Approval. You may do so by sending your updated information to:
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Henderson v. BNY Mellon Settlement Administrator
P.O. Box 404000
Louisville, KY 40233-4000 - IMPORTANT DATES
TopJULY 27, 2019 ALL VERIFICATION FORMS FROM BENEFICIARIES, GRANTORS, AND SETTLORS OF CLOSED TRUSTS must be postmarked and mailed to Henderson v. BNY Mellon Settlement Administrator, P.O. Box 404000, Louisville, KY 40233-4000. JULY 27, 2019 All OPT-OUTS/REQUESTS FOR EXCLUSION must be postmarked and mailed to Henderson v. BNY Mellon Settlement Administrator, P.O. Box 404000, Louisville, KY 40233-4000. JULY 27, 2019 All OBJECTIONS, and any NOTICE OF INTENT TO APPEAR, must be postmarked and mailed to the Court, Settlement Class Counsel, and BNY Mellon’s Counsel, at the addresses above in Question 7. - IMPORTANT ADDRESSES
TopSETTLEMENT CLASS COUNSEL
BNY MELLON’S COUNSEL
John Roddy
Elizabeth Ryan
Bailey & Glasser LLP
99 High Street, Suite 304
Boston, MA 02110
(617) 439-6730
Derek G. Howard
Derek G. Howard Law Firm
42 Miller Avenue
Mill Valley, CA 94941
(415) 432-7192Jonathan M. Albano
S. Elaine McChesney
Morgan Lewis & Bockius LLP
One Federal Street
Boston, MA 02110
K. Issac deVyver
Nellie E. Hestin
McGuireWoods LLP
260 Forbes Avenue
Pittsburgh, PA 15222COURT
SETTLEMENT ADMINISTRATOR
United States District Court
John Joseph Moakley U.S. Courthouse
1 Courthouse Way, Suite 2300
Boston, MA 02210Henderson v. BNY Mellon Settlement Administrator
P.O. Box 404000
Louisville, KY 40233-4000