THOMPSON v. NCL CORPORATION LTD et al.

The United States District Court for the Southern District of Florida has authorized this notice to let you know about a proposed settlement of a class action lawsuit called Thompson, et al. v. NCL Corporation, et al, No. 1:22-cv-22962 (S.D. Fla.) (the “Class Action”), brought on behalf of a class of current and former participants and beneficiaries in the Plan.

You do not need to live in Florida to get a benefit under the Settlement. The Notice that you received describes the Settlement. Please read the notice carefully. Your rights and options – and the deadlines to exercise them – are explained in this notice. Please understand that if you are a Settlement Class Member, your legal rights are affected regardless of whether you act or not.

A class action is a lawsuit in which one or more plaintiffs sue on behalf of a group of people who allegedly have similar claims. After the parties reached an agreement to settle this case, the Court granted preliminary approval of the Settlement and preliminarily determined that the case should be treated as a class action for settlement purposes. Among other things, this preliminary approval permits Settlement Class Members to voice their support for or in opposition to the Settlement before the Court makes a final determination of whether to approve the Settlement. In a class action, the court resolves the issues for all class members.

Plaintiffs filed a class action complaint against NCL on behalf of a class of participants and beneficiaries in the Plan.  The complaint alleges that NCL breached its fiduciary duties under ERISA—that is, certain responsibilities under federal law—by failing to prudently monitor and manage the Plan’s administrative, recordkeeping, and investment fees, as well as certain investment options. A more complete description of what Plaintiffs alleged is in the Complaint and is available on the Settlement Website at www.thompsonnclsettlement.com.

NCL denies all of Plaintiffs’ claims of wrongdoing or liability against it, and asserts that its conduct was lawful.  NCL maintains that, at all relevant times, it has acted prudently and solely in the best interests of the Plan’s participants, in accordance with its fiduciary responsibilities under ERISA. Among other things, appropriate fiduciaries monitor, review, and evaluate the Plan’s investment options, performance and expenses, and the administrative fees paid by the Plan. NCL is settling the Class Action solely to avoid the expense, inconvenience, and disruption of litigation.

The Court has not conclusively decided in favor of either side in the case. Plaintiffs brought this Class Action under ERISA. Before filing this case, Plaintiffs’ counsel conducted a significant, in-depth analysis into Plaintiffs’ claims and Defendants’ Plan.  By way of specific example, on July 19, 2022, Class Counsel (on behalf of one of the Plaintiffs) sent a letter addressed to NCL “Plan Administrator” which requested certain Plan documents and submitted an administrative claim pursuant to the Plan’s mandatory administrative claims review process.  On August 25, 2022, NCL acknowledged receipt of the claim notice, notified Class counsel that the claim notice had been forwarded to the NCL Investment Committee (“Committee”) for review, and produced documents in response to Plaintiffs’ document requests.  The claim was denied, and Class Counsel submitted an administrative appeal, which was also denied. 

During the course of the administrative process, NCL produced over 3,800 pages of documents relevant to Plaintiffs’ claims, including (1) the Plan’s governing documents and trust agreements, (2) the Plan’s mandatory fee-related disclosures, (3) a full set of the Committee’s minutes dating back to 2016, along with presentations and reports shared with the Committee at those meetings, (4) the Plan’s contracts with Prudential, (5) all versions of the Plan’s Investment Policy Statement during the putative class period, (6) documents relating to the Plan’s recordkeeper requests for proposal in 2018 and 2022, and (7) relevant quarterly account statements.  On August 25, 2022, Defendants’ Plan Administrator responded to Class Counsel’s 29 U.S.C. § 1024(b)(4) request for information by providing approximately 3,800 pages of Plan-related documents.  Those documents, in turn, assisted Class Counsel with their analysis of the claims in this case, and the ERISA violations that formed the basis of this lawsuit. 

On January 9, 2023, Defendants moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) and for lack of standing pursuant Rule 12(b)(1). (ECF No. 9.) Defendants argued, among other things, that the Complaint failed to allege plausibly that Defendants breached their duty of loyalty, that the Plan paid excessive administrative/recordkeeping fees, or that the Defendants’ process for evaluating investment options was deficient. (Id.) Plaintiff Angelo filed her Opposition on January 23, 2023 (ECF No. 17), along with supporting documentation. Additionally, Plaintiff Angelo filed a Motion to Strike Extrinsic Evidence Attached to Defendants' Motion to Dismiss.  (ECF No. 18).  Defendants filed a Reply in support of its Motion to Dismiss (ECF No. 19) on January 30, 2023.  (ECF No. 19). 

At that point, the case was stayed to allow the parties sufficient time to mediate this case on a class basis.  On April 3, 2023, a full-day videoconference mediation was held with Robert Meyer, Esq. of JAMS, who has extensive experience handling ERISA fiduciary-breach lawsuits similar to this one.  After extensive arms-length negotiations—which lasted into evening—the parties reached a Settlement, the terms of which are memorialized in the Settlement Agreement.  The Parties have now asked the Court to approve their settlement. 

The Court decided that everyone who fits the following description is a member of the Settlement Class:

All persons who participated in the NCLC 401(k) Plan at any time from September 16, 2016, through March 31, 2023 (the “Settlement Class Period”), including any Beneficiary of a deceased person who participated in the Plan at any time during the Settlement 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 Settlement Class Period. 

Excluded from this Settlement Class are the following individuals: Lynn White, Howard Flanders, Faye Ashby, Mark Kansley, Steve Roth, Daniel S. Farkas, Jeffrey Anderson, Francisco “Frank” J. Del Rio, Harry Sommer, David Herrera, Andrea DeMarco a/k/a Andrea Sieger, Frank A. El Rio and Robin Lindsay.

If you meet the definition above, and are not one of the excluded individuals, you are a Settlement Class Member.

NCL has agreed to pay $615,000 into a Settlement Fund, which includes amounts for expenses associated with administering the Settlement, taxes, tax expenses, as well as, to the extent required and approved by the Court, attorneys’ fees and expenses to Class Counsel.  The amount of each Settlement Class Member’s payment is based on his or her average account balance in the Plan during the Settlement Class Period.

If you are a Settlement Class Member (see Question No. 5) and you are a Current Participant, your payment will be deposited into one or more of your accounts in the Plan, and invested initially in the relevant qualified default investment alternative. If you choose to do so, you may then change your investment elections in the same way that you may for the other amounts invested in the Plan.  If you are a Settlement Class Member and a Current Participant, but are determined to be a Zero Account Balance Current Participant at the time of payment, you will receive your payment in the form of a check.

If you are an Authorized Former Participant who has timely submitted (electronically or by mail) a Former Participant Claim you will receive any payment under the Settlement directly in the form of a check.

If you are a beneficiary entitled to receive payments on behalf of a Settlement Class Member (a “Beneficiary”), you will receive your payment under the Settlement directly in the form of a check.

If you are an alternate payee entitled to receive payments on behalf of a Settlement Class Member pursuant to a Qualified Domestic Relations Order (an “Alternate Payee”), you will receive your payment directly in the form of a check.  

After the Settlement Effective Date, the Settlement Administrator will cause the Net Settlement Amount to be allocated and distributed to Current Participants, Authorized Former Participants, and their Beneficiaries or Alternate Payees, in accordance with the Plan of Allocation set forth in Article 6 of the Settlement Agreement and as ordered by the Court. The Settlement Administrator will utilize the quarter-ending account balances invested in the Plan for each Settlement Class  

Member during the Settlement Class Period to calculate payments to Settlement Class Members. Payments will be calculated as follows:

1. The Settlement Administrator will calculate an average account balance for each Authorized Former Participant and Current Participant based on his or her total quarter-ending account balance invested in the Plan for the Class Period (“Average Account Balance”).
2. The Settlement Administrator will sum the Average Account Balances for all Authorized Former Participants and Current Participants.
3. The Settlement Administrator will then determine the total settlement payment available to each Authorized Former Participant and Current Participant by calculating each such participant’s pro-rata share of the Net Settlement Amount based on his or her Average Account Balance compared to the sum of the Average Account Balances for all Authorized Former Participants and Current Participants.
4. If the dollar amount of the settlement payment to an Authorized Former Participant is calculated by the Settlement Administrator to be less than $5.00, then that Authorized Former Participant’s payment or pro rata share shall be zero for all purposes.
5. The total amount of payments to Class Members pursuant to this Plan of Allocation may not exceed the Net Settlement Amount. In the event that the Settlement Administrator determines that the Plan of Allocation total would otherwise exceed the Net Settlement Amount, the Settlement Administrator is authorized to make such pro rata changes to the Plan of Allocation as are necessary to ensure that said total does not exceed the Net Settlement Amount.

The Settlement Administrator’s calculations regarding settlement payments will be final and binding under the Court-approved Plan of Allocation.

The Settlement Administrator will complete all payment calculations described above within thirty (30) calendar days after the Settlement Effective Date. Current Participants will receive their Settlement payments as contributions to their accounts in the Plan, as provided in the Settlement Agreement, unless the Current Participant is a Zero Account Balance Current Participant entitled to a payment by check in accordance with the Settlement Agreement. Current Participants are not required to submit a Former Participant Claim Form to receive a Settlement payment. 

Authorized Former Participants (meaning Former Participants who timely have submitted, electronically or by mail, a Former Participant Claim Form and qualify for Settlement payments) will receive their Settlement payment in the form of a check. 

Beneficiaries will receive payments in the manner corresponding to their entitlement as beneficiaries of the Current Participant or of the Authorized Former Participant.  Alternate Payees will receive payments by check if and to the extent they are entitled to receive a portion of a Current Participant’s or Authorized Former Participant’s allocation under Article 6 of the Settlement Agreement, in accordance with the terms of the applicable Qualified Domestic Relations Order on file with the Plans’ recordkeepers.

The hearing to consider the final fairness of the Settlement is scheduled for February 15, 2024.

If you are a Current Participant, then you should receive your pro rata share of the Net Settlement Amount in the form of a deposit into your Plan account approximately three (3) months after the Settlement has received final approval and/or after any appeals have been resolved in favor of the Settlement. If you are a Zero Account Balance Current Participant or an 

eligible Beneficiary or Alternate Payee of a Current Participant, then you should receive your Settlement payment in the form of a check approximately three (3) months after the Settlement has received final approval and/or after any appeals have been resolved in favor of the Settlement. 

If you are an Authorized Former Participant (or a Beneficiary or Alternate Payee of such participant) who has timely submitted, electronically or by mail, a Former Participant Claim Form, the Settlement Administrator will effect a payment in the form of a check, representing your pro rata share of the Net Settlement Amount within approximately five (5) months after the Settlement has received final approval and/or after any appeals have been resolved in favor of the Settlement. 

If you are a Former Participant (or a Beneficiary or Alternate Payee of such participant) who does not submit a Former Participant Claim Form, you are not eligible and will not receive a payment for your pro rata share of the Net Settlement Amount, and you will still not be entitled to bring a claim concerning these issues against NCL.

All checks will expire and become void 120 days after they are issued if they have not been cashed.  These payments may have certain tax consequences; you should consult your tax advisor. 

For purposes of the Settlement, the Court has appointed lawyers from the law firm Wenzel Fenton Cabassa, P.A., and McKay Law, LLC, as Class Counsel. If you want to be represented by your own lawyer, you may hire one at your own expense.   They may be contacted below:

Class Counsel has not received any payment for their services in prosecuting the case or obtaining the Settlement, nor have they been awarded any expenses which they have incurred. Class Counsel will apply to the Court for an award of attorneys’ fees not to exceed one-third (33.33%) of the total $615,000 Settlement amount, plus their expenses incurred in the prosecution of the case. The Court will determine the proper amount of any attorneys’ fees and expenses to award Class Counsel. Any attorneys’ fees and expenses awarded by the Court will be paid to Class Counsel from the Settlement Fund.

If the Court grants final approval of the Settlement, a final order and judgment dismissing the case will be entered in the Class Action. Payments under the Settlement will then be processed and distributed. The release by Settlement Class Members will also take effect. All members of the Settlement Class will release and forever discharge NCL and each of the 

Released Defendant Parties from any and all Plaintiffs’ Released Claims, which are defined in the Settlement Agreement as follows:

"Released Claims” means any and all actual or potential claims (including any Unknown Claims), actions, causes of action, demands, obligations, or liabilities (including claims for attorney’s fees, expenses, or costs), whether arising under federal, state, or local law, whether by statute, contract, tort or equity or otherwise, whether brought in an individual or representative capacity, whether known or unknown, suspected or unsuspected, for monetary, injunctive, and any other relief against the Released Parties through the date the Court enters the Final Approval Order and Judgment:

1. that were asserted in the Action that or that could have been asserted in the Action and arise out of the conduct alleged in the Complaint;
2. that arise out of, relate to, are based on, or have any connection with: (1) the selection, retention, performance, and monitoring of the Plan’s actual or potential investment options and service providers during the Class Period; (2) the performance, costs, fees, and other characteristics of the Plan’s investment options during the Class Period, including any revenue sharing paid by any such investment options or used to pay service provider fees; (3) the Plan’s fees and expenses during the Class Period, including without limitation its recordkeeping and other service provider fees; or (4) the nomination, appointment, retention, monitoring, and removal of the Plan’s fiduciaries during the Class Period;
3. that would be barred by res judicata based on entry of the Final Approval Order and Judgment;
4. that relate to the direction to calculate, the calculation of, and/or the method or manner of allocation of the Net Settlement Amount pursuant to the Plan of Allocation; or
5. that relate to the approval by the Independent Fiduciary of the Settlement Agreement, unless brought against the Independent Fiduciary alone.

No Settlement Class Member will be permitted to assert any Released Claims in any other litigation against NCL or any of the other Released Parties identified in the Settlement Agreement. If you object to any of the terms of the Settlement Agreement, you may notify the Court of your objection.

If the Settlement is not approved, the case will proceed as if no settlement had been attempted or reached. If the Settlement is not approved and the case resumes, there is no assurance that a class would be certified for litigation purposes or that members of any certified class will recover more than is provided for under the Settlement, or anything at all.

If you are a Current Participant, or a Beneficiary or an Alternate Payee of a Current Participant, and you do nothing, you still will participate in the Settlement of this Class Action as a Settlement Class Member, and you will release any claims you may have against NCL and the other Released Parties, as set forth above and in the Settlement Agreement. (See Question Nos. 11 and 14.) You may also receive a payment as described in Question No. 8. 

If you are a Former Participant, or a Beneficiary or an Alternate Payee of a Former Participant, and you do nothing, you will be bound by the Settlement of the Class Action as described in this Settlement Notice, if the Settlement is finally approved, BUT YOU WILL NOT RECEIVE ANY MONEY UNLESS YOU SUBMIT A FORMER PARTICIPANT CLAIM FORM, POSTMARKED BY THE CLAIMS DEADLINE TO BE ESTABLISHED BY THE COURT.

No. If the Court approves the Settlement, you will be bound by it and will receive whatever benefits you are entitled to under its terms. You cannot exclude yourself from the Settlement, but you may notify the Court of any objection you might have to the Settlement. (See Question No. 15.) If the Court approves the Settlement, it will do so under Federal Rule of Civil Procedure 23(b)(1), which does not permit class members to opt out of the Settlement Class. 

No. If the Court approves the Settlement, you will have released any right to sue NCL or any of the other Released Parties identified in the Settlement Agreement for the claims being resolved by this Settlement and any and all other “Released Claims,” as set forth in the Settlement Agreement and in Question No. 11 above.

If you are a Settlement Class Member, you can object to any part of the Settlement or to Class Counsel’s request for an award of attorneys’ fees and expenses. To object, you must submit a written statement giving the reasons why you think the Court should not approve the Settlement. The Court will consider your views. Your objection to the Settlement or Class Counsel’s request for attorneys’ fees and expenses must be received no later than January 16, 2024, and must be sent to the Court and the attorneys for the Parties at the addresses below:

The objection must be in writing and include the case name Thompson v. NCL Corporation Ltd., No. 1:22-cv-22962 (S.D. Fla.); as well as include: (a) your name; (b) your full mailing address; (c) a statement that you are a member of the Settlement Class; (d) the specific grounds for the objection (including any legal support or evidence that you wish to bring to the Court’s attention or introduce in support of such objection), (e) your signature; and (f) if you are represented by an attorney or wish to attend and speak at the Fairness Hearing, a notice to appear.

All objections must be filed no later than January 16, 2024. The Court will consider all properly filed objections or comments from Settlement Class Members.  Class Counsel will file with the Court and post on the Settlement Website its request for attorneys’ fees and expenses by December 17, 2023.

A hearing is scheduled at the United States District Court for the Southern District of Florida, the Honorable District Court Judge Raag Singhal, at the U.S. Federal Building and Courthouse 299 East Broward Boulevard, Courtroom 110, Fort Lauderdale, Florida 33301 at 3:00 p.m. on February 15, 2024 (the “Final Fairness Hearing”).  

At the hearing, the Court will hear any comments, objections, and arguments concerning the fairness of the proposed Settlement, including the amount requested by Class Counsel for attorneys’ fees and expenses. You do not need to attend this hearing. You also do not need to attend to have an objection considered by the Court. (See Question No. 17.) 

Note: The date and time of the Fairness Hearing are subject to change by Court Order and may be conducted via Zoom and or a conference call without any additional mailed notice, but any changes will be posted at www.thompsonnclsettlement.com.

No. Class Counsel will answer any questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you don’t have to come to discuss it with the Court. As long as any written objection you choose to make was filed and mailed on time and meets the other criteria described above, the Court will consider it. You may also retain another lawyer to attend at your own expense, but you do not have to.

If you are a Settlement Class Member, you may ask the Court for permission to speak at the hearing concerning any part of the proposed Settlement by submitting a notice of appearance no later than January 16, 2024.

This notice provides only a summary of the matters relating to the Settlement. For more detailed information, you may wish to review the Settlement Agreement. You can view the Settlement Agreement and get more information at www.thompsonnclsettlement.com. You can also get more information by writing to the Settlement Administrator at Thompson v NCLC, P.O. Box 23309, Jacksonville, FL 32241 or calling toll-free 1-800-636-5429. The Agreement and all other pleadings and papers filed in the case are available for inspection and copying during regular business hours at the office of the Clerk of the Court, U.S. Federal Building and Courthouse, 299 East Broward Boulevard, Fort Lauderdale, Florida 33301, re: Thompson v. NCL Corporation LTD, et al., Case No.: 1:22-cv-22962. 

If you would like additional information, you can also call Class Counsel’s law firm, Wenzel Fenton Cabassa, P.A. at 813-224-0431, by asking for attorney Brandon J. Hill.     

PLEASE DO NOT CONTACT THE COURT, THE JUDGE, OR NCL WITH

QUESTIONS ABOUT THE SETTLEMENT.