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Digitally signed

by Joseph Zernik
Human Rights Alert DN: cn=Joseph
Zernik, o, ou,
PO Box 526, La Verne, CA 91750 email=jz12345@e
Fax: 323.488.9697; Email: jz12345@earthlink.net arthlink.net, c=US
Blog: http://human-rights-alert.blogspot.com/ Date: 2010.11.05
08:02:27 +02'00'
Scribd: http://www.scribd.com/Human_Rights_Alert

10-11-04 SEC v BAC (1:09-cv -6829) – Correspondence with the Office of Fair Fund
Administrator in Effort to Gain Access to Valid and Effectual Court Records, and Plan
of Distribution (Dkt #110)

The records, which were posted online by the office of the Administrator, were deemed invalid, since they
failed to include attestation/authentication by the Clerk of the Court.

The following correspondence was initiated in effort to gain access, pursuant to First Amendment rights, to
valid and effectual court records, including the attestation/authentication by the Clerk (NEFs).

No access to the NEFs was gained.

1) November 4, 2010 Request for records by Dr Joseph Zernik

Date: Thu, 04 Nov 2010 22:32:33 +0200


To: info@secbacfairfund.com
From: joseph zernik <jz12345@earthlink.net>
Subject: RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund Distribution

Nov 4, 2010

SEC v. BAC Fair Fund


c/o Rust Consulting, Inc.
Distribution Agent
P.O. Box 2357
Faribault, MN 55021-9057

RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund Distribution

Dear Sir/Madam:

For a scholarly paper regarding the caption, referenced above, I request copy of the February 22, 2010 Final Consent
Judgment entered by the Hon Jed Rakoff (together with its authentication record - the NEF - Notice of Electronic Filing),
which established the Fair Fund Distribution, administered by you.

Sincerely,

Joseph Zernik, PhD

2) November 4, 2010 Response by the office of Administrator

From: secbacfairfund <secbacfairfund@rustconsulting.com>


To: joseph zernik <jz12345@earthlink.net>
Date: Thu, 4 Nov 2010 15:36:53 -0500
Subject: RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund
Distribution

Mr. Zernik,

Attached is the Plan of Distribution ordered by the Honorable Jed Rakoff. On page 3, line 8, Rust Consulting is
referenced as the Distribution for the Fair Fund Distribution.

Thank you,
z Page 2/2 November 5, 2010

Shawn Rodgers
Customer Service Representative
SEC v BAC Fair Fund Distribution Agent

From: joseph zernik [mailto:jz12345@earthlink.net]


Sent: Thursday, November 04, 2010 3:33 PM
To: info@secbacfairfund.com
Subject: RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund Distribution

Nov 4, 2010

SEC v. BAC Fair Fund


c/o Rust Consulting, Inc.
Distribution Agent
P.O. Box 2357
Faribault, MN 55021-9057

RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund Distribution

Dear Sir/Madam:

For a scholarly paper regarding the caption, referenced above, I request copy of the February 22, 2010 Final Consent
Judgment entered by the Hon Jed Rakoff (together with its authentication record - the NEF - Notice of Electronic Filing),
which established the Fair Fund Distribution, administered by you.

Sincerely,

Joseph Zernik, PhD

This message (including any attachments) may contain confidential or otherwise privileged information and is intended only for the individual(s) to
which it is addressed. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender
immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be
guaranteed to be secured or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses.
The sender therefore does not accept liability for any errors or omissions in the contents of this message or that arise as a result of e-mail
transmission. If verification is required please request a hard-copy version from the sender.

Rust Consulting, Inc.


www.RustConsulting.com

Attached: Rakoff+Ordered+Plan+of+Distribution.pdf;

3) November 4, 2010 Repeat request by Dr Joseph Zernik

Date: Fri, 05 Nov 2010 00:22:18 +0200


To: secbacfairfund <secbacfairfund@rustconsulting.com>
From: joseph zernik <jz12345@earthlink.net>
Subject: Amended - RE: SEC v. BAC Case No.: 09 Civ. 6829 (JSR) - Fair Fund Distribution

Dear Ms Rodgers:

Thank you for the quick response and for the record, which you provided with it - SEC v BAC (1:09-CV-06829) Dkt
#110 PLAN OF DISTRIBUTION, certified by the Hon Jed Rakoff.

However, to make it a judicial record of "full faith and credit" and valid and effectual court order, it should come with
an attestation/authentication record (NEF - Notice of Electronic Filing) by the Clerk of the respective court.

Could you please also provide the NEF pertaining to Dkt #110 to make the record, which you provided, a complete,
valid, and effectual judicial record?

Thanks for your help.

Joseph Zernik, PhD


BAC Stockholder
.. Case 1:09-cv-06829-JSR
II
Document 110
Iii
Filed 07/16/2010 Page 1 of 19
II

UNITED STATES DISTR! ( T COURT


SOUTHERN DISTRICT or NEW YORK

SECURITIES AND EXCH\\JGE COMMISSION,

Plaintiff,

-aga111"t- 09 Civ. 6829 (JSR)


10 Civ. 0215 (JSR)
BANK OF AMERICA COJ~I)ORATION, ECF Cases

Defendant.

PLAN OF DISTRIBUTION

A. Introduction

1. The Securitic" :md Exchange Commission ("Sl C" or "Commission") filed an

Amended Complaint on Octoher 19,2009 in the civil action oq Civ. 6829 (JSR) alleging that

the defendant Bank of Americ'l Corporation ("BAC") violated ~~ction 14 of the Securities

Exchange Act of 1934 ("Excl1dnge Act"), and Rules 14a-3 and 4a-9 thereunder, as a result
1

of its failure to adequately dl')l' lose information, in connection II ith the proxy solicitation for

the acquisition of Merrill Lyncll & Co., Inc. ("Merrill"), concenllng Merrill's payment of

year-cnd bonuses. The Com 1: i '>sion subsequently filed a Comp !:tint on January 12, 2010 in

the civil action 10 Civ. 0215 (J SR) alleging that BAC violated "-c'ction 14 of the Exchange

Act and Rule 14a-9 thereundlT as a result of its failure to adequ:!1 ely disclose, in connection

with the proxy solicitation for the acquisition of Merrill, inforn1:ltion concerning Merrill's

losses in the fourth quarter oJ}008 (docket numbers 09 Civ. 6g2\) (JSR) and 10 Civ. 0215

(JSR), collectively referred to herein as the "Actions").

2. The Court's Fin::! Consent Judgment, dated Febnmy 24,2010 ("Final

Judgment"), finds BAC liabIt h'r disgorgement of $1 and a CiVll penalty in the amount of
Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 2 of 19

$150,000,000 pursuant to Section 2l(d)(3) of the Exchange Act and provides for the

establishment of a distribution fund to compensate harmed BAC investors. Pursuant to the

Final Judgment, the distribution fund is to be distributed pursuant to the Fair Fund provisions

of Section 308(a) ofthe Sarbanes-Oxley Act of2002. The distribution shall be made in

accordance with the following principles: (a) the entire distribution, other than administrative

costs, will be made to current and/or former BAC shareholders who were affected by the

alleged non-disclosures that are the subjects ofthe Actions; (b) no distribution will be made

to BAC shareholders with respect to any Merrill shares that were exchanged for BAC shares

in the merger between BAC and Merrill on January 1,2009; and (c) no distribution will be

made to BAC or Merrill officers or directors and their related parties who had access to the

allegedly undisclosed information that is subject ofthe Actions.

3. By Order dated April 5, 2010, the Court appointed Rust Consulting, Inc. as

Distribution Agent to implement the distribution.

B. Definitions

As used in this Plan of Distribution, the following definitions shall apply:

4. "Approved Claim" shall mean the final amount ofa Potentially Eligible

Claimant's claim as expressed in the number of shares ofBAC common stock held that is

ultimately approved pursuant to this Plan of Distribution.

5. "Claims Filing Deadline" shall mean the date established in accordance with

this Plan of Distribution by which a Potentially Eligible Claimant's Proofof Claim Form

must be filed to avoid the denial of any right ofthe Potentially Eligible Claimant to

participate in any distribution from the Net Distribution Fund. The Claims Filing Deadline

shall be one hundred and twenty (120) days after Court approval of this Plan of Distribution.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 3 of 19

6. "Claims Determination Date" shall mean the date on which the Distribution

Agent is to reach its determination concerning the validity of each Potentially Eligible

Claimant's claim. Except as otherwise provided herein, the Claims Determination Date shall

be on or about ninety (90) days following the Claims Filing Deadline.

7. "Determination Notices" shall mean a notice sent by the Distribution Agent

to a Potentially Eligible Claimant stating the Distribution Agent's determination of the

validity ofthe Potentially Eligible Claimant's claim which may come in the form of a

deficiency letter, a no loss letter, or a de minimis letter.

8. "Distribution Agent" shall refer to Rust Consulting, Inc., which is

responsible for administering the Distribution Fund in accordance with the terms ofthis Plan

of Distribution and the Court's Orders.

9. "Distribution Fund" shall mean the money paid into the Court Registry

Investment System ("CRIS") by BAC pursuant to the terms of the Final Judgment, plus

accumulated interest and earnings thereon, plus any additions thereto as may be provided by

future Court Order or agreements in related cases or otherwise.

10. "Distribution Fund Escrow Fund" shall mean the cash or cash-equivalent of

the Distribution Fund, which shall be held in escrow by the Distribution Agent in an account

or accounts established by the Distribution Agent for the purpose of effectuating this Plan of

Distribution. The Distribution Fund Escrow Fund shall include any accumulated interest and

earnings thereon, less costs, fees, and other expenses paid or reimbursed pursuant to this Plan

ofDistribution. It is anticipated that distributions to Eligible Claimants shall be made from

the Distribution Fund Escrow Fund.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 4 of 19

11. "Eligible Claimants" shall mean those Potentially Eligible Claimants filing a

Proof of Claim Form with the Distribution Agent on or before the Claims Filing Deadline

who are finally determined by the Distribution Agent to be eligible for a distribution from the

Distribution Fund as provided herein as a result of their holding of the Eligible Securities as

ofthe Recovery Date. "Eligible Claimants" in no event shall include:

a. Any current or former BAC or Merrill officer or director or any of their past

or present affiliates (or any of their affiliates, assigns, creditors (provided that such

entity shall only be excluded in its capacity as such without regard to whether it may

otherwise be an Eligible Claimant), heirs, distributees, spouses, parents, children, or

controlled entities) who had access to the allegedly undisclosed information that is the

subject of the Actions. Specifically, no distribution shall be made to the following

present or former officers, directors and/or employees ofBAC: Kenneth Lewis,

Gregory Curl, Joe Price, Neil Cotty, Craig Rosato, Jeffrey Brown, John Steele

Alphin, Timothy Mayopoulos, Liam McGee, Bruce Hammonds, Barbara Desoer,

William Barnet, Frank Bramble, John Collins, Gary Countryman, Tommy Franks,

Charles Gifford, Walter Massey, Thomas May, Thomas Ryan, O. Temple Sloan,

Robert Tillman, Monica Lozano, Patricia Mitchell, Meredith Spangler and Jackie

Ward. Specifically, no distribution shall be made to the following present or former

officers, directors and/or employees of Merrill: John A. Thain, Carol T. Christ,

Armando M. Codina, Virgis W. Colbert, John Eisenberg, John D. Finnegan, Judith

Mayhew Jonas, Aulana L. Peters, Joseph W. Prueher, Ann N. Reese, Charles O.

Rossotti, Rosemary T. Berkery, Richard B. Alsop, Nelson Chai, Gary Carlin,

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 5 of 19

Christopher Hayward, Nancy Meloth, Eric Heaton, David Moser, Ed Moriarty and

Noel Donohoe.

b. Any Person who assigned that Person's right to obtain a recovery in the

Actions; and

c. Any assignee of another Person's right to obtain a recovery in the Actions,

provided, however, this provision shall not be construed to exclude those Persons

who obtained such a right by inheritance or devise.

12. "Eligible Claim Amount" is the number of shares ofBAC common stock

claimed as held as of the close of trading on January 16,2009 by an Eligible Claimant;

however, no Eligible Claim Amount will be awarded with respect to BAC shares to the

extent that such shareholders received those shares in exchange for Merrill shares in the

merger between the two companies on January 1, 2009.

13. "Eligible Security" shall refer to the common stock security registered with

the Securities and Exchange Commission issued by BAC.

14. "Final Determination Notice" shall mean the Distribution Agent's written

response to a written detailed request from a claimant requesting reconsideration ofthe

Distribution Agent's Determination Notice.

15. "Net Distribution Fund" shall mean the Distribution Fund, plus earned

interest, less any amounts expended or to be expended for administering the Distribution

Fund (e.g., reasonable fees and expenses incurred or to be incurred in administering this Plan

of Distribution, Court fees on income earned while the Fund is held with the eRIS, and the

payment of taxes on the Distribution Fund).

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 6 of 19

16. "Notice Packet" shall mean all the materials to be provided to Potentially

Eligible Claimants known to the Distribution Agent or to those who request such, including a

copy ofthe Notice and a ProofofClaim Form (together with instructions for completion of

the Proof of Claim Form).

17. "Notice Plan for Distribution" shall mean the notice given to Potentially

Eligible Claimants oftheir potential right to participate in the distribution ofthe Distribution

Fund and their obligation to file a Proof of Claim Form in order to participate. The

Distribution Agent shall design the Notice Plan for Distribution, consistent with the

provisions of this Plan of Distribution, and such Notice shall include, at a minimum, the

name of the Eligible Security, means of obtaining a Notice Packet (including ProofofClaim

Forms), instructions for submitting ProofofClaim Forms, and the Claims Filing Deadline.

The Notice Plan for Distribution shall advise Potentially Eligible Claimants that by

participating in the distribution ofthe Distribution Fund, they will not be releasing any rights

or claims they may have against any party, including, without limitation, BAC, Merrill

and/or their past and present directors, officers, advisors and agents.

18. "Person" shall mean natural individuals as well as legal entities including

corporations, partnerships, and governmental entities.

19. "Plan of Distribution" shall mean this Plan of Distribution in the form

approved by the Court.

20. "Potentially Eligible Claimants" shall mean those Persons identified by the

Distribution Agent as having a possible claim to the Distribution Fund under this Plan of

Distribution, or Persons asserting that they have possible claims to the Distribution Fund

under this Plan of Distribution.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 7 of 19

21. "Proof of Claim Form" shall mean the form designed by the Distribution

Agent in accordance with this Plan of Distribution for the filing of a proof of a Potentially

Eligible Claimant's claim, which form shall require, at a minimum, sufficient documentation

reflecting the Potentially Eligible Claimant's holding position of all Eligible Securities, the

complete name of the beneficial owner, and the Tax Identification Number of the Potentially

Eligible Claimant.

22. "Recovery Date" for the purposes ofthis Plan of Distribution shall mean

January 16, 2009.

23. "Tax Administrator" shall mean Damasco & Associates LLP, the firm

appointed by the Court on May 17, 2010.

C. Rights and Responsibilities of the Distribution Agent, and the Tax Administrator

The Distribution Agent and the Tax Administrator shall have the following rights,

responsibilities and obligations:

24. It is the Distribution Agent's responsibility, after consultation with the SEC,

to distribute the Distribution Fund in accordance with the Plan of Distribution.

25. The Distribution Agent, on behalf of the Distribution Fund, shall take all

necessary steps to enable the Distribution Fund to be a "qualified settlement fund" within the

meaning of the regulations issued under section 468B(g) of the Internal Revenue Code of

1986, as amended.

26. The Tax Administrator shall administer the tax obligations of the Distribution

Fund including, but not limited to: (A) obtaining a taxpayer identification number; (B) timely

filing applicable federa~ state, and local tax returns and paying taxes reported thereon; and

(C) satisfying any information reporting or withholding requirements imposed on

distributions from the Distribution Fund. The Distribution Fund constitutes a Qualified

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 8 of 19

Settlement Fund under Section 468B(g) ofthe Internal Revenue Code, 26 U.S.c. §468B(g),

and related regulations, 26 C.F.R. §§1.468B-I through 1.468B-5.

27. The Distribution Agent is entitled to pay from the Distribution Fund Escrow

Fund all reasonable costs, fees, and other expenses (including such fees as are incurred by

any attorney, agent, consultant or third parties retained by the Distribution Agent in

furtherance of its duties hereunder (collectively, "Agents")). Within twenty (20) days

following the conclusion of each month, the Distribution Agent shall provide the

Commission a detailed statement of the fees and expenses incurred by the Distribution Agent

and its Agents during such month ("Monthly Statement"). Unless the Commission disputes

in writing any fee or expense within ten (10) days following receipt of each respective

Monthly Statement, the Distribution Agent may pay itself and its Agents from the

Distribution Fund Escrow Fund an amount equal to 90% of the fees and 90% of the expenses

reflected in the respective Monthly Statement. Upon the submission to the Commission of

the list of Eligible Claimants, the Distribution Agent shall be entitled to pay itselfthe

accumulated 10% fee holdback.

28. The Distribution Agent, and its Agents, are entitled to rely on all outstanding

rules oflaw and Court Orders, and shall not be liable to anyone for any action taken or

omitted by them in connection with this Plan of Distribution, except upon a finding by the

Court that they acted or failed to act in bad faith, or acted or failed to act in reckless disregard

of their duties under this Plan of Distribution. The Distribution Agent is authorized to enter

into agreements with financial institutions ("Institutions") as may be appropriate or necessary

in the administration of the Distribution Fund. In connection with such agreements, the

Institutions shall be deemed to be "Agents" of the Distribution Agent under this Plan of

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 9 of 19

Distribution, and shall be indemnified as provided in this Plan of Distribution, provided,

however, that such indemnification is limited to claims made by Potentially Eligible

Claimants asserting a claim to a distribution under this Plan of Distribution, and shall not be

construed to extend to claims by governmental agencies or offices made in a capacity other

than as a Potentially Eligible Claimant. The Court retains exclusive and continuing

jurisdiction over all claims arising in connection with this Plan of Distribution, including, but

not limited to, any claims against the Distribution Agent and its Agents, asserting liability for

violation of any duty imposed by this Plan of Distribution or other Court Order.

29. The Distribution Fund shall indemnifY the Distribution Agent and its Agents

(each an "Indemnified Party") and hold them harmless against any losses, claims, damages or

liabilities in connection with any action taken or omitted by them in connection with this

Plan of Distribution, unless such losses, claims, damages or liabilities arise solely out ofbad

faith or reckless disregard of such Indemnified Party's duties under this Plan of Distribution.

Further, the Distribution Fund shall advance amounts to reimburse any Indemnified Party for

all reasonable expenses (including reasonable counsel fees and expenses) incurred in

connection with defending against any losses, claims, damages or liabilities in connection

with any action taken or omitted by them in connection with this Plan of Distribution, unless

such losses, claims, damages or liabilities arise solely out ofbad faith or reckless disregard of

such Indemnified Party's duties under this Plan of Distribution. Any Indemnified Party shall

be entitled to indemnification for such losses, claims, damages or liabilities in accordance

with the foregoing so long as a final, unstayed, unappealable detennination has not been

made by a court of competent trial and/or appellate jurisdiction that such losses, claims,

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 10 of 19

damages or liabilities arise solely out of bad faith by such Indemnified Party or reckless

disregard by such Indemnified Party of its duties under this Plan of Distribution.

30. Within thirty (30) days after the close of each calendar quarter, the

Distribution Agent shall submit to the Commission an accounting of all the funds in the

Distribution Fund Escrow Fund. Such an accounting shall be sufficient to inform the

Commission of the activities and status of the Distribution Fund Escrow Fund during that

calendar quarter, and shall specify, at a minimum, the location of the account comprising the

Distribution Fund Escrow Fund, the value of the account, any funds transferred between the

Distribution Fund Escrow Fund and CRIS accounts, funds distributed to Eligible Claimants

under this Plan of Distribution, and any funds expended from the Distribution Fund Escrow

Fund to satisfy any fees, taxes, costs and other expenses incurred in the administration of the

Distribution Fund and implementation of this Plan of Distribution.

31. The Distribution Agent may be removed at any time by the Court, and be

replaced by a successor. In the event the Distribution Agent decides to resign, the

Distribution Agent will fITst give written notice to the Commission and the Court of such

intention, and such resignation shall not be effective until the Commission has appointed a

successor. The Distribution Agent shall then follow such instructions as such successor, the

Commission, or the Court gives it concerning turning over custody, control and management

ofthe Distribution Fund Escrow Fund, and other property collected pursuant to the Plan of

Distribution.

D. Allocation Among Eligible Claimants

32. The Distribution shall be distributed to pay Eligible Claimants as provided

under the terms of this Plan of Distribution.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 11 of 19

33. The Distribution Agent shall distribute the Net Distnbution Fund to the

Eligible Claimants pro rata based upon the ratio ofthe Approved Claim of each Eligible

Claimant to the aggregate Approved Claims of all Eligible Claimants.

34. Ifthere are remaining funds after the Distribution Agent makes all

distributions to Eligible Claimants, the remaining funds shall be distributed in accordance

with a final plan of residual distribution to be proposed by the Commission. After all

reasonable efforts have been made to distribute the funds to the Eligible Claimants the

remaining funds shall be distributed to the United States Treasury.

E. Administration of the Claims Procedure

General Administrative Provisions

35. Approval of this Plan of Distribution by the Court authorizes the Clerk ofthe

Court, and the Clerk of the Court is hereby ordered to:

a. Retrieve from the CRIS account those monies deposited, together with

interest thereon; and

b. Deposit those monies into the Distribution Fund Escrow Fund, which

the Distribution Agent will establish and maintain as a separate

account.

36. The Distribution Agent shall forthwith invest and reinvest the assets in the

Distribution Fund Escrow Fund with a view toward: first, conserving and preserving the

principal; and second, maximizing investment return. The Distribution Agent may invest and

reinvest the assets of the Distribution Fund Escrow Fund only in one or more of the

following investments:

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 12 of 19

a. Direct obligations of, or obligations the principal of and interest on

which are unconditionally guaranteed by, the United States of

America ("United States");

b. Investments insured or guaranteed by a department, agency, or

instrumentality of the United States or backed by the full faith and

credit of the United States; and

c. Money market funds authorized to invest solely in direct obligations

ofthe United States or in investments that are insured and guaranteed

by a department, agency or instrumentality of the United States or

backed by the full faith and credit of the United States.

37. The Distribution Agent shall oversee the administration of the claims,

procedures and distributions as provided in this Plan of Distribution. The Distribution Agent

shall review the claims of Potentially Eligible Claimants and make determinations under the

criteria established herein as to the eligibility of Potentially Eligible Claimants to recover

monies and the amount of money to be distributed from the Distribution Fund to Eligible

Claimants in accordance with the provisions ofthis Plan of Distribution.

38. Any claim asserted by a Potentially Eligible Claimant shall be in writing and

shall provide adequate documentary evidence to substantiate the claim, including all

documentary evidence which the Distribution Agent deems necessary or appropriate,

including but not limited to available account statements and as noted in the instruction with

the ProofofClaim Form.

39. All claim forms must be fully executed by the Potentially Eligible Claimant

under penalty or perjury under the laws ofthe United States.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 13 of 19

40. No claim from a Potentially Eligible Claimant in an amount less than $10.00

will be paid. The Distribution Agent may aggregate the accounts held by an individual or

entity to reach the minimum distribution requirement in accordance with the following

aggregation rules:

a. Each Person who would like to aggregate accounts shall so designate

in the Proof of Claim Form, provided that a Person may only

aggregate accounts as follows:

1. with respect to an individual Person, such Person may

aggregate such Person's accounts, such Person's parent's,

child's or SIX.lUSe'S (collectively, "family") accounts, such

Person's or such Person's family's retirement accounts, and

accounts owned by a corporation or partnership in which such

Person or such Person's family is a majority owner; and

2. with respect to a Person that is a corporation or partnership,

such Person's accounts and Person's affiliates' accounts.

b. The Distribution Agent in its exclusive discretion may, but shall not

have any obligation to, for purposes ofthis paragraph, aggregate

accounts not designated for aggregation in a ProofofClaim Form.

41. All determinations of the Distribution Agent that are made in accordance with

the provisions ofthis Plan of Distribution shall be [mal, unless otherwise provided in this

Plan of Distribution.

42. To carry out the purposes of this Plan of Distribution, the Distribution Agent

is authorized to make such adjustments to the Plan of Distribution consistent with the

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 14 of 19

purposes ofthe Plan of Distribution as may be agreed upon between the Distribution Agent

and the Commission.

Identification of and Notice to Eligible Claimants

43. The Distribution Agent shall, insofar as is practicable, identify Potentially

Eligible Claimants from a review of supporting documentation and any other sources

available to it.

44. After approval of this Plan of Distribution, the Distribution Agent shall:

(A) establish a dedicated Distribution Fund website to post the Notice Packets in

downloadable form, the Plan of Distribution, answers to frequently asked questions, and

other relevant information; (B) publish a copy ofthe Summary Distribution Notice at least

once a week for a period oftwo (2) consecutive weeks in the national editions of Investor's

Business Daily and The Wall Street Journal; and (C) publish a press release over a new wire

agency summarizing the distribution notice. The Distribution Agent may also give additional

notice ofthe distribution process in such manner as the Distribution Agent, in its sole

discretion, deems appropriate.

45. Within forty-five (45) days following the entry by the Court ofan Order

approving this Plan of Distribution, the Distribution Agent shall cause to be mailed by United

States First Class Mail a Claims Packet consisting ofthe Distribution Plan Notice and a Proof

of Claim Fonn together with instructions for completion of the ProofofClaim Fonn to those

Potentially Eligible Claimants known to the Distribution Agent.

46. The Distribution Agent shall promptly provide a Notice Packet to any

Potentially Eligible Claimant who so requests in writing, phone call or email as set forth in

the Notice Plan of Distribution.

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47. To avoid being precluded from asserting a claim, on or before the Claims

Filing Deadline each Potentially Eligible Claimant must submit to the Distribution Agent a

properly completed Proofof Claim Form reflecting such Potentially Eligible Claimant's

claim, together with all supporting documentation, and any aggregation of accounts the

Potentially Eligible Claimant requests. Unless otherwise determined by the Distribution

Agent in its sole discretion, any Potentially Eligible Claimant that does not file a properly

completed and documented Proofof Claim Form so that such completed form and

documentation are postmarked on or before the Claims Filing Deadline shall be precluded

from asserting a claim against the Distribution Agent or the Distribution Fund.

Notification to Claimants of Deficient or Denied Claims

48. The Distribution Agent shall review each ProofofClaim Form to determine

its eligibility and the amount of such Potentially Eligible Claimant's Eligible Loss Amount,

together with any additional conclusions ofthe Distribution Agent on other issues relevant to

the claim. Each Potentially Eligible Claimant shall have the burden ofproofto establish its

eligibility and the amount of its claims, and that it qualifies as an Eligible Claimant, and the

Distribution Agent shall have the right to request, and the Potentially Eligible Claimant shall

have the burden ofproviding to the Distribution Agent, any additional information and/or

documentation requested. A Potentially Eligible Claimant will have twenty-one (21) days to

respond to a request from the Distribution Agent to cure a deficient aspect of his or her claim.

The Claims Determination Date, in generaL shall be ninety (90) days after the Claims Filing

Deadline.

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 16 of 19

Requests for Reconsideration of Denied Claims

49. Any Potentially Eligible Claimant that is dissatisfied with the Distribution

Agent's Determination Notice concerning its claim may request reconsideration of the

Determination Notice by filing a written request for reconsideration with the Distribution

Agent. Such written request must be mailed by the Potentially Eligible Claimant so that it is

postmarked no later than twenty-one (21) days after the date on the Distribution Agent's

Determination Notice to the Potentially Eligible Claimant. Such request for reconsideration

shall be no longer than two (2) double-spaced pages plus exhibits, and shall clearly explain

the Potentially Eligible Claimant's disagreement with the Determination Notice and shall

include copies of all relevant documentation not previously provided to the Distribution

Agent. A failure to properly and timely request reconsideration of the Determination Notice

shall permanently waive the Potentially Eligible Claimant's right to object or contest the

Determination Notice. The Distribution Agent shall respond to such request for

reconsideration by mailing by United States First Class Mail a Final Determination Notice to

the Potentially Eligible Claimant.

Appeal to Court of Reconsidered Claims

50. Any Potentially Eligible Claimant that is dissatisfied with a final

determination concerning its claim may appeal such decision. An appeal must be mailed to

the Distribution Agent which shall forward all appeals to the Court for final determination,

with copies to the Commission. Such written notice of appeal must be postmarked by the

appealing Potentially Eligible Claimant no later than twenty-one (21) days after the date on

which the Final Determination Notice was mailed to the Potentially Eligible Claimant by the

Distribution Agent. The notice of appeal shall be no longer than two (2) double-spaced

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 17 of 19

pages plus exhibits, and shall clearly explain the Potentially Eligible Claimant's

disagreement with the Final Determination Notice and shall include copies of all previously

submitted documentation to the Distribution Agent. A failure to properly and timely appeal a

fmal determination shall permanently waive the Potentially Eligible Claimant's right to

object to or contest that Final Determination Notice. The Distribution Agent shall have the

right to file with the Court a written response to any such appeal, with copies to the appealing

Potentially Eligible Claimant. The Potentially Eligible Claimant shall have the burden of

proof in any appeal of the Final Determination Notice.

51. The Court will review the documentation provided by the Potentially Eligible

Claimant and the Distribution Agent. At that time, the Court may make a final determination

or may set the matter for hearing and at the conclusion ofthe hearing make a final

determination. A final determination by the Court shall be final for all purposes under this

Plan of Distribution and there shall be no further proceedings or appeal related to the same.

52. No Potentially Eligible Claimant who has failed to file an appropriate timely

Proof of Claim Form, or to request reconsideration of the Determination Notice, or to appeal

a final determination, shall be permitted to object to the barring or treatment of its claim on

the basis that the Distribution Agent failed to mail, or failed to properly mail, or that such

Potentially Eligible Claimant failed to receive, a copy ofthe Notice Plan for Distribution,

Notice Packet or the relevant Determination Notice or Final Determination Notice, or that a

Proof of Claim Form, request for reconsideration, or appeal made by the Potentially Eligible

Claimant was improperly reflected as not having been received by, or properly recorded as

having been received by, the Distribution Agent or that a Potentially Eligible Claimant's

name and/or proper contact information was not properly reflected on the Distribution

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 18 of 19

Agent's records. The burden ofnotifying the Distribution Agent ofa Potentially Eligible

Claimant's current address and other contact information, and of ensuring that such

information is properly reflected on the Distribution Agent's records, shall be on the

Potentially Eligible Claimant.

Payment of Approved Claims

53. Following the completion of processing of all Potentially Eligible Claimant

claims, including the resolution of any review requests or appeals arising therefrom, the

Distribution Agent shall prepare a list of all Eligible Claimants and the Approved Claim for

each Eligible Claimant. After the Commission reviews the list of Eligible Claimants, the

Distribution Agent will prepare the specific distribution amount for each Eligible Claimant

by allocating the net settlement fund as provided for in this Plan of Distribution. The

Distribution Agent shall recommend such distributable amounts to the Commission. Upon

the Distribution Agent's written receipt of the Commission's approval of such distributable

amounts, the Distribution Agent shall initially distribute 80% of the cash Net Distribution

Fund to Eligible Claimants based on their allowed claim amount in comparison to the total

allowed claim amount of all Eligible Claimants (the "Initial Distribution"), with the

remaining 20% of the Net Distribution Fund held in reserve to address contingencies such as

paying newly disputed claims should the court determine that they be deemed valid;

correcting claims should any claimants establish that their initial distribution was improperly

calculated; paying administration costs and [mal fees; paying any federal, state or local taxes;

and thereafter distributing the remaining sums to Eligible Claimants. Under no

circumstances shall the Distribution Agent or its Agents incur any liability to any Person if it

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Case 1:09-cv-06829-JSR Document 110 Filed 07/16/2010 Page 19 of 19

makes a distribution in accord with the schedules previously submitted and approved by the

Court and all persons are enjoined from taking any action in contravention of this sentence.

54. Upon receipt and acceptance by an Eligible Claimant of a distribution from

the Distribution Fund, such Eligible Claimant shall be deemed to have released all claims

that such Eligible Claimant may have against the Distribution Agent and its Agents in

connection with the Plan of Distribution and the administration of the Distribution Fund, and

shall be deemed enjoined from prosecuting or asserting any such claims.

55. The submission ofthe ProofofClaim Form and the receipt and acceptance of

a distribution by an Eligible Claimant shall not affect an Eligible Claimant's rights and

claims as against any party (other than the Distribution Agent and his Agents), including,

without limitation, BAC, Merrill and their past or present directors, officers, advisors and

agents.

56. The Court reserves the right to amend this Plan of Distribution from time to

time.

SO ORDERED

~!llt:lill.
1-/5-/0

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