You or someone in your family may have been a participant in or a beneficiary of the Plan during the period from January 8, 2014 to April 8, 2021, during which time your Plan account included investments in any of the Plan's investment options.

The Court directed that the Notice be sent to you because if you fall within the definition of the Settlement Class, you have a right to know about the Settlement and the options available to you regarding the Settlement before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and after any objections and appeals are resolved, the Net Settlement Amount will be distributed to the Settlement Class members according to a Court-approved Plan of Allocation described below. The Notice describes the Action, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them. 

The Action claims that under ERISA, the Defendants owed fiduciary duties of loyalty, care, and prudence to the Plan and that they violated those duties in connection with the selection and monitoring of the Plan's investment options. During the Class Period, participants in the Plan were able to allocate their account balances among various investment funds. Named Plaintiffs allege that because the Plan had nearly half a billion dollars in assets, it had substantial bargaining power regarding the fees and expenses that were charged against participants' investments. Named Plaintiffs further allege that Defendants, however, did not try to reduce the Plan's expenses or exercise appropriate judgment to scrutinize each investment option that was offered in the Plan to ensure it was prudent. Additionally, Plaintiffs allege Defendants failed to prudently monitor the recordkeeping fees charged to Plan participants. Recordkeeping in simple terms refers to the suite of administrative services provided to retirement plan participants that generally includes provision of account statements to participants.

THE DEFENSES IN THE ACTION

Defendants deny all of the claims and allegations made in the Action and deny that they ever engaged in wrongful conduct. If the Action were to continue, the Defendants would raise numerous defenses to liability, including:

• Defendants did not engage in any of the allegedly improper conduct charged in the Complaint;
• Defendants reasonably and prudently managed the Plan's investment options and fees and fulfilled all of their fiduciary obligations;
• The Plan's investment options were and are reasonable, prudent, and sound investment options for Plan participants;
• Even if a court were to determine that Defendants failed to discharge any duty under ERISA, any such breach of fiduciary duty did not cause the Plan or its participants to suffer any loss.

THE ACTION HAS BEEN AGGRESSIVELY LITIGATED

Class Counsel has extensively investigated the allegations in the Action. Among other efforts, Class Counsel reviewed Plan-governing documents and materials, communications with Plan participants, U.S. Department of Labor filings, news articles and other publications, and other documents regarding the general and specific matters that were alleged in the original complaint filed on January 8, 2020. Following the filing of the initial complaint, in January and February 2020, the Parties engaged in informal discovery regarding the allegations in the complaint. Through this informal discovery, Defendants produced various disclosures and other documents regarding the fees associated with the Brenntag Plan, investment statements for some of the named Plaintiffs, and information from the Brenntag Plan's recordkeeper, Transamerica. After this discovery, Plaintiffs filed the Complaint against Defendants on March 20, 2020. In the Complaint, Plaintiffs allege that Defendants breached the fiduciary duties of prudence and loyalty under ERISA by selecting for the Plan individual investment options that purportedly charged excessive fees compared to "similar" investment options available to the Plan. Plaintiffs also allege that Defendants allowed the Plan to pay excessive administrative expenses. Prior to Defendants filing a motion to dismiss, the Parties asked the Court to stay the litigation pending the outcome of settlement talks. The Court granted the Parties' request stay the litigation on April 7, 2020.

SETTLEMENT DISCUSSIONS

On May 19, 2020, the Parties mediated the Action under the supervision of David Geronemus, Esq., a mediator experience in ERISA and other complex class actions. During the full-day mediation, counsel for the Parties conducted extensive, arm's length negotiations concerning a possible compromise and settlement of the Action, eventually resulting in the Parties agreeing to a proposed Settlement. The Parties subsequently negotiated the specific terms of the Settlement Agreement and related documents. On April 08, 2021, Named Plaintiffs filed a motion seeking preliminary approval of the Settlement as well as seeking related relief.

In a class action, one or more plaintiffs, called "Class Representatives" or "Named Plaintiffs," sue on behalf of people who have similar claims. All of these people who have similar claims collectively make up the "class" and are referred to individually as "class members." One case resolves the issues for all class members together. Because the conduct alleged in this Action is claimed to have affected a large group of people–participants in the Plan during the Class Period–in a similar way, the Named Plaintiffs filed this case as a class action.

As in any litigation, all parties face an uncertain outcome. On the one hand, continuation of the case against the Defendants could result in a judgement greater than this Settlement. On the other hand, continuing the case could result in no recovery at all or in a recovery that is less than the amount of the Settlement. Based on these factors, the Named Plaintiffs and Class Counsel have concluded that the proposed Settlement is in the best interests of all Settlement Class members.

You are a member of the Settlement Class if you fall within the definition of the Settlement Class preliminarily approved Judge M. Gallagher:

All persons who participated in the Plan at any time during the Class Period, including any Beneficiary of a deceased person who participated in the Plan at any time during the Class Period, and any Alternate Payee of a person subject to a Qualified Domestic Relations Order who participated in the Plan at any time during the Class Period. Excluded from the Settlement Class are Defendants and their beneficiaries.

If you are a member of the Settlement Class, the amount of money you will receive, if any, will depend upon the Plan of Allocation, described below.

Provided that the Settlement becomes Final, a Settlement Fund consisting of $2,300,00 will be established in the Action. The amount of money that will be allocated among members of the Settlement Class, after the payment of any taxes and Court-approved costs, fees, and expenses, including attorneys' fees and expenses of Class Counsel, any Court-approved Case Contribution Awards to be paid to the Named Plaintiffs, and payment of expenses incurred in calculating the Settlement payments and administering the Settlement, is called the Net Settlement Amount. The Net Settlement Amount will not be known until these other amounts are quantified and deducted. The Net Settlement Amount will be allocated to members of the Settlement Class according to a Plan of Allocation to be approved by the Court. The Plan of Allocation describes how Settlement payments will be distributed to Settlement Class members who receive a payment. 

If the Settlement is approved by the Court, all Settlement Class members and anyone claiming through them shall be deemed to fully release the Released Parties from Released Claims. The Released Parties are (a) Defendants, (b) Defendants' insurers, co-insurers, and reinsurers, (c) Brenntag's direct and indirect, past, present or future parents, subsidiaries, affiliates, divisions, joint ventures, predecessors, successors, Successors-In-Interest, and assigns, and each Person that controls, is controlled by, or is under common control with them, (d) the Plan and the Plan's current and past fiduciaries, administrators, plan administrators, recordkeepers, service providers, consultants, and parties-in-interest and (e) Defendants' agents, officers, employees, trustees, Board of Directors, members of the Board of Directors, independent contractors, Representatives, attorneys, administrators, fiduciaries, accountants, auditors, advisors, consultants, personal representatives, spouses, heirs, executors, administrators, associates, employee benefit plan fiduciaries (with the exception of the Independent Fiduciary), employee benefit plan administrators, service providers to the Plan (including their owners and employees), member of their immediate families, consultants, subcontractors, and all persons acting under, by, through, or in concert with any of them. Released Claims are defined in the Settlement Agreement and include all claims that were or could have been asserted in the Action. This means, for example, that Settlement Class members will not have the right to sue the Released Parties for failure to prudently select and monitor the Plan's investment options or fees, or related matters, that occurred during the Class Period. 

The above description of the proposed Settlement is only a summary. The complete terms, including the definitions of the Released Parties and Released Claims, are set forth in the Settlement Agreement (including its exhibits), which may be obtained on the Important Documents tab on this website, or by contacting Class Counsel:

Each Settlement Class member's share will be calculated according to a Court-approved Plan of Allocation by a third-party vendor ("Settlement Administrator") selected by Class Counsel. You are not required to calculate the amount you may be entitled to receive under the Settlement as the Settlement Administrator will do so under the Plan of Allocation. In general, your proportionate share of the Settlement will be calculated as follows:

• First, the Settlement Administrator will obtain balances for each Settlement Class member in their Plan accounts as of December 31, 2014, and on December 31 of each subsequent year of the Class Period up to and including 2020. For 2020, June 30, 2020 will be used. Each Class member's account balances for each year of the Class Period based on the account balances as of these dates will be summed. This summed amount will be that Class Member's "Balance".
• Second, the Balance for all Class Members will be summed.
• Third, each Class Member will receive a share of the Net Settlement Amount in proportion to the sum of that Class Member's Balance as compared to the sum of the Balance for all Class Members, i.e. where the numerator is the Class member's balance and the denominator is the sum of all Class Members' Balances.
• Class Members who are entitled to a distribution of less than the minimum amount of $10.00 (the "De Minimis Amount") will receive no allocation from the Net Settlement Amount. The amounts of resulting from this initial calculation will be known as the Preliminary Entitlement Amount. The Settlement Administrator will then, taking into account the Class Members who will receive nothing because they do not satisfy the De Minimis Amount, recalculate the amount to distribute to Class Members as many times as necessary so as to arrive at the Final Entitlement Amount for each remaining Class Member. The sum of the Final Entitlement Amount for each remaining Class Member will equal the dollar amount of the Net Settlement Amount.

You will not be required to produce records that show your Plan activity. If you are entitled to a share of the Settlement Fund, your share of the Settlement will be determined based on the Plan's records for your account. If you have questions regarding the allocation of the Net Settlement Amount, please contact Class Counsel listed in FAQ 8. 

Updates regarding payment timing will be posted to the settlement website once available.

You do not need to file a claim. The Entitlement Amount for Settlement Class members with an Active Account (an account with a positive balance) as of June 30, 2020 will be paid into the Plan. Former Participants will be paid directly by the Settlement Administrator by check. All such payments are intended by the Settlement Class to be "restorative payments" in accordance with Internal Revenue Service Revenue Ruling 2002-45. Checks issued to Former Participants pursuant to this paragraph shall be valid for 180 days from the date of issue. If you are a former Plan participant and have not provided the Plan with your current address, please contact Class Counsel listed on Page 2 above.

Each Class Member who receives a payment under this Settlement Agreement shall be fully and ultimately responsible for payment of any and all federal, state, or local taxes resulting from or attributable to the payment received by such person.

The Settlement cannot be completed unless and until several events occur. These events include final approval of the Settlement by the Court, approval of the Settlement by an independent fiduciary to the Plan, transfer of the Net Settlement Amount to the Plan, and calculation of the amount of the Settlement owed to each Settlement Class member. If objections are made to the Settlement or appeals are taken by objectors who oppose the approval of the Settlement, this process may take a long time to complete, possibly several years. Updates regarding payment timing will be posted to the settlement website once available.

There will be no payments if the Settlement Agreement is terminated.

The Settlement Agreement may be terminated for several reasons, including if (1) the Court does not approve, or materially modifies the Settlement Agreement, or (2) the Court approves the Settlement Agreement but the approval is reversed, or materially modified by an appellate court. If the Settlement Agreement is terminated, the Action will proceed again as if the Settlement Agreement had not been entered into. The Settlement is not conditioned upon the Court's approval of attorneys' fees or the reimbursement of expenses/costs sought by Class Counsel, the Case Contribution Awards sought by the Named Plaintiffs, or any appeals solely related thereto.

You do not have the right to exclude yourself from the Settlement. The Settlement Agreement provides for certification of the Settlement Class as a non-opt-out class action under Federal Rule of Civil Procedure 23(b)(1), and the Court has preliminarily determined that the requirements of that rule have been satisfied. Thus, it is not possible for any Settlement Class members to exclude themselves from the Settlement. As a Settlement Class member, you will be bound by any judgements or orders that are entered in the Action for all claims that were or could have been asserted in the Action or are otherwise released under the Settlement.

Although you cannot opt out of the Settlement, you could have objected to the Settlement and asked the Court not to approve it if you did so on or before July 9, 2021. For more information on how you could have objected to the Settlement, see FAQ 13.

The Court has preliminarily appointed the law firm of Capozzi Adler, P.C. as Class Counsel for the Named 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.

Class Counsel will file a motion for the award of attorneys' fees of not more than one third (33 1/3%) of the Settlement Amount, plus reimbursement of expenses incurred in connection with the prosecution of the Action. This motion will be considered at the Fairness Hearing described below.

OBJECTING TO THE ATTORNEYS' FEES

By following the procedures described in FAQ 13, you can tell the Court that you do not agree with the fees and expenses the attorneys intend to seek and ask the Court to deny their motion or limit the award.

If you are a Settlement Class Member, you had the right to object to the Settlement if you did not like any part of it.  The deadline to object to the Settlement was July 9, 2021. That deadline has now passed. 

You must have filed your objection with the Clerk of the Court of the United States District Court for the Eastern District of Pennsylvania no later than July 9, 2021. The address is:

A copy of your objection must also have been provided to Class Counsel and Defense Counsel, respectively, at the following addresses:

THE FAIRNESS HEARING

The Court will hold a Fairness Hearing on August 9, 2021 to decide whether to approve the Settlement as fair, reasonable, and adequate.  You may attend the Fairness Hearing, and you may ask to speak, but you do not have to attend to have your objection considered.  It was your obligation to ensure that your written objection was filed with the Court by no later than July 9, 2021.  The deadline to object to the Settlement has now passed.

The Court held a Fairness Hearing to decide whether to approve the Settlement as fair, reasonable, and adequate on August 9, 2021 and the entered the final approval order on August 10, 2021. The Court's Order embodying their decision can be found on the Important Documents tab of this website. The deadline to object to the Settlement was July 9, 2021; this deadline has passed.

No, but you are welcome to come at your own expense.  If you file an objection, you do not have to come to Court to talk about it.  As long as you mailed your written objection on time, it will be before the Court when the Court considers whether to approve the Settlement.  You also may pay your own lawyer to attend the Fairness Hearing, but such attendance is also not necessary.

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 Fairness Hearing and present your objections to the Court.  You may attend the Fairness Hearing even if you do not file a written objection, but you will only be allowed to speak at the Fairness Hearing if you file a written objection in advance of the Fairness Hearing AND you file a Notice of Intention To Appear, as described in this paragraph.  To do so, you must file with the Court a letter or other paper called a “Notice of Intention To Appear at Fairness Hearing in Buescher, et al, v. Brenntag et al., No. 5:20-cv-00147-JMG (E.D. Pa.).”  Be sure to include your name, address, telephone number, and your signature.  Your Notice of Intention To Appear must be received by the attorneys listed in the answer to FAQ 13, no later than July 23, 2021 and must be filed with the Clerk of the Court at the address listed in FAQ 13.

If you do nothing and you are a Settlement Class member, you will participate in the Settlement of the Action as described above in the Notice.

Yes. The Notice summarizes the proposed Settlement. The complete terms are set forth in the Settlement Agreement. You may obtain a copy of the Settlement Agreement by making a written request to Class Counsel listed in FAQ 13. Copies may also be obtained through the Important Documents on this website, by calling the toll-free number, 833-961-3968, or by sending an email to info@BrenntagERISAsettlement.com. You are encouraged to read the complete Settlement Agreement.

DO NOT CONTACT THE COURT, THE CLERK’S OFFICE, THE COMPANY, OR DEFENDANTS REGARDING THE NOTICE. THEY WILL NOT BE ABLE TO ANSWER YOUR QUESTIONS.