Fernandez v. Merrill Lynch





Distribution of Settlement Payments occurred on or about September 14, 2018. Checks were mailed to former Merrill Lynch account holders and credits were posted to the accounts of current Merrill Lynch account holders.

If you are the trustee and/or named fiduciary of an employee benefit plan that, at any time between January 1, 2006 and July 13, 2012, held any interest in one or more Merrill Lynch Retirement Cash Management Accounts classified as “05” or “retail pricing,” your rights may be affected by a class action lawsuit.

The purpose of this website is to provide information concerning the class action lawsuit entitled Benjamin Fernandez, et al. v. Merrill Lynch, Pierce, Fenner & Smith Incorporated, Case No. 15-cv-22782-Cooke/Torres.

Before Plaintiffs filed this lawsuit, Merrill Lynch entered into a Letter of Acceptance, Waiver and Consent (AWC) with the Financial Industry Regulatory Authority (FINRA), in which FINRA alleged that Merrill Lynch did not provide appropriate sales charge waivers for mutual fund purchases by small business retirement accounts held by certain retirement plans. As stated in the AWC, Merrill Lynch made two sets of remediation payments, one voluntary and another pursuant to the AWC (collectively, the Remediation), to the accounts that comprise the Settlement Class, which totaled about $79 million. Plaintiffs, believing the Remediation to be insufficient, filed this lawsuit alleging breaches of fiduciary duty under the Employee Retirement Income Security Act (ERISA).

This class action lawsuit is about whether Merrill Lynch was a “fiduciary” under ERISA and, if so, whether Merrill Lynch breached its fiduciary duties to certain customers. Plaintiffs in this case brought two claims for breach of fiduciary duty. The first claim alleged that Merrill Lynch violated its fiduciary duties by failing to discharge its duties solely in the interest of the plan participants and beneficiaries. The second claim alleged that Merrill Lynch dealt with plan assets in its own interest or for its own account. Plaintiffs sought both damages, or additional remediation, and disgorgement of profits that they contended Merrill Lynch earned as a result of its conduct.

On June 8, 2017, the parties entered into a Settlement Agreement and Release. Under the proposed settlement, if you are a Settlement Class Member, you will be entitled to receive full repayment of the sales charges for mutual funds purchased without sales charge waivers. It also provides significant, although not full, payment of the amount of additional profits that Plaintiffs contend Merrill Lynch earned as a result of the sales charges. Once you receive that money, it will be your responsibility as a fiduciary to determine how that money should or must be used to benefit your plan. You should consult with your own accountant or lawyer to determine what obligations you may have in that regard.

Following the Final Fairness Hearing the Court entered its Order Approving Settlement on December 18, 2017 granting final certification to the Settlement Class for settlement purposes, approving the settlement as fair, reasonable and adequate, awarding attorneys' fees and costs, and granting the Class Representatives an award for their help.

For more information about the Fernandez v. Merrill Lynch Settlement and to fully understand your rights please read the Settlement Notice.

This website will be updated periodically. Please continue to check back.

Last Updated October 30, 2017.

OBJECT BY DECEMBER 13, 2017 AT 3:00 P.M. (EST) You can write to the Court about why you do not agree with any aspect of the Proposed Settlement. See the Settlement Notice for more details.
GO TO THE FAIRNESS HEARING SCHEDULED FOR DECEMBER 13, 2017 AT 3:00 P.M. (EST) Ask to speak in Court about the Settlement. See the Settlement Notice for more details.

These rights and options – and the deadlines to exercise them – are more fully explained in the Settlement Notice. You may also wish to read the Frequently Asked Questions section of this website for additional information.

Settlement Notice