TERRY RZEPKOSKI and KRISTEN ASSELTA v. NOVA SOUTHEASTERN UNIVERSITY Settlement

You received a Notice because you or someone in your family is or may have been a participant in or a beneficiary of the Plan at some time between April 1, 2016 and September 30, 2024.

The Court ordered a notice to be sent to you because you have a right to know about the Settlement and all 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 allocated among Members of the Settlement Class according to a Court-approved Plan of Allocation.

The Court in charge of this case is the United States District Court for the Southern District of Florida, Ft. Lauderdale Division. The individuals who sued are called the “Plaintiffs,” and the parties they sued are called the “Defendant.” The legal action that is the subject of the notice and the Settlement is titled Rzepkoski v. Nova Southeastern University, Case No. 0:22-cv-61147 (S.D. Fla.).

The Action claims that the Defendant was a fiduciary to the Plan and violated fiduciary duties of prudence under ERISA that it owed to the Plan’s participants and beneficiaries. Plaintiff alleges Defendant breached certain fiduciary duties by causing the Plan to incur higher administrative fees and expenses than reasonable and necessary. Plaintiffs also allege Defendant breached certain fiduciary duties by selecting and continuing to offer certain investment options to the Plan participants under the Plan’s investment lineups. In the Complaint, Plaintiffs have asserted causes of action for losses they contend were suffered by the Plan as the result of these alleged breaches of fiduciary duty by Defendant.

Defendant denies each and every allegation of wrongdoing made in the operative Complaint and contends that it has no liability in the Action. Defendant specifically denies the allegations that it breached any fiduciary duty or any other provisions of ERISA in connection with the administrative fees or expenses incurred by the Plan, or the investments in the Plan, and further deny that it in any way failed to act prudently or loyally to the Plan’s participants and beneficiaries.

In a class action, one or more plaintiffs called “Class Representatives” sue on behalf of a large number of people who have similar claims. All the individuals on whose behalf the Class Representatives are suing are “Class Members.” One court resolves the issues for all Class Members. In its order setting the Final Fairness Hearing, the Court preliminarily certified the Settlement Class in the Action.

The Class Representatives in this Action, Dr. Terry Rzepkoski and Kristen Asselta, were participants in the Plan during the Class Period and are referred to as the “Plaintiffs.”

The Court has not reached any final decision in connection with Plaintiffs’ claims against the Defendant. Instead, Plaintiffs and Defendant have agreed to a Settlement. In reaching the Settlement, they have avoided the cost, risks, time, and disruption of prolonged litigation and trial.

Class Counsel believe that the Settlement is the best option for the Settlement Class Members, as described above in the section entitled “Statement of Potential Outcome of the Action.”

The Court has conditionally certified that this Settlement shall proceed on behalf of everyone who fits the following description:

• All persons who were participants in or beneficiaries of the Plan at any time during the Class Period.

The “Class Period” is defined as April 1, 2016 through September 30, 2024. A person was a participant in or beneficiary of the Plan during the Class Period if they had an account balance in the Plan during such period.

The Settlement provides that Defendant will pay $1,500,000.00 (the “Gross Settlement Amount”) into an account at a financial institution identified by Class Counsel and/or the Settlement Administrator. The net amount of the Gross Settlement Amount, after payment of Court-approved attorneys’ fees and costs, and any expenses incurred administrating the Settlement, will be allocated to the Members of the Settlement Class according to a Plan of Allocation to be approved by the Court if and when the Court enters an order finally approving the Settlement.

If you qualify, you will receive a pro rata share of the Net Settlement Amount. Class Counsel will file a detailed Plan of Allocation in advance of the Final Fairness Hearing. The Plan of Allocation will describe the manner in which the Net Settlement Amount will be distributed to Members of the Settlement Class. In general terms, the Plan of Allocation will provide that each Settlement Class Member’s share of the Net Settlement Amount will be calculated as follows:

            A. The Settlement Administrator will calculate an average account balance for each Settlement Class Member based on his or her total annual-ending account balance invested in the Plan for the Class Period (“Average Account Balance”).

            B. The Settlement Administrator will sum the Average Account Balances for all Settlement Class Members.

            C. The Settlement Administrator will then determine the total settlement payment available to each Settlement Class Member by calculating each such person’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 Settlement Class Members.

            D. If the dollar amount of the settlement payment to a Settlement Class Member is calculated by the Settlement Administrator to be less than $50.00, then that Settlement Class Member’s payment or pro rata share shall be zero for all purposes.

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

If the Settlement is given final approval, you will not have to do anything to get a payment from the Settlement if you are entitled to one under the Plan of Allocation.

The balance of the Net Settlement Amount will be allocated to Members of the Settlement Class pursuant to the Plan of Allocation after final approval has been obtained for the Settlement, including any appeals. Any appeal of the final approval may take a year or more. Please be patient.

There will be no payments if the Settlement is terminated.

The Settlement may be terminated on several grounds, which are described in the Settlement Agreement. In the event any of these conditions occur, there will be no Settlement payment made, and the litigation will resume.

No. In some class actions, class members have the opportunity to exclude themselves from the Settlement. This is sometimes referred to as “opting out” of the Settlement. Because of the legal issues involved in the Action, however, the class of participants affected by this Settlement has been preliminarily certified as a mandatory class. This means you cannot opt out of the benefits of the Settlement in order to pursue your own claims or for any other reason. Therefore, you will be bound by any judgments or orders that are entered in this Action, and if the Settlement is approved, you will be deemed to have released Defendant from any and all claims that were or could have been asserted in this case on your behalf or on behalf of the Plan or that are otherwise included in the release in the Settlement, other than your right to obtain the relief provided to you, if any, by the Settlement.

Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve the Settlement.

The Court has preliminarily designated Wenzel Fenton Cabassa, P.A., and McKay Law, LLC, as Class Counsel for the Settlement Class. If you want to be represented by your own lawyer, you may hire one at your own expense.

Class Counsel will file a petition for an award of attorneys’ fees and expenses by January 14, 2025, after which a copy will be posted on the settlement website www.NovaSoutheasternERISASettlement.com. This petition will be considered at the Final Fairness Hearing. Class Counsel have agreed to limit their application for an award of attorneys’ fees to not more than 33% of the Settlement Amount, plus out-of-pocket costs.

You have the right to object to this aspect of the Settlement even if you approve of the other aspects of the Settlement.

If you are a Member of the Settlement Class, you can object to the Settlement if you disagree with any part of it. You can give reasons why you think the Court should not approve the Settlement. The Court will consider your views. To object, you must send a letter or other written filing saying that you object to the Settlement. Be sure to include the following case caption and notation of: Rzepkoski v. Nova Southeastern University, Case No. 0:22-cv-61147 (S.D. Fla.).” In addition, your objection must also include your name, address, telephone number, signature, and the reasons why you object to the Settlement. Any objection must be signed by the Settlement Class member even if an attorney is retained by the Settlement Class member. Mail the objection to each of the addresses listed below, postmarked no later than January 29, 2025. You must mail your objection by this date. If you fail to do so, the Court will not consider your objections. If you plan to speak at the Fairness Hearing, you must send a Notice of Intention to Appear along with your objection, as described below:

The Court will hold a Final Fairness Hearing to decide whether to approve the Settlement as fair, reasonable, and adequate. You may attend the Final Fairness Hearing, and you may ask to speak, but you do not have to attend. The Court will hold the Final Fairness Hearing on February 28, 2025 at 10:30 a.m. at the U.S. District Court Courthouse, 299 East Broward Boulevard, Courtroom 205B, Fort Lauderdale, Florida 33301. This hearing has been moved to March 7, 2025.

At that hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. After the Final Fairness Hearing, the Court will decide whether to approve the Settlement. The Court will also rule on the motions for attorney’s fees and expenses.

No, but you are welcome to come at your own expense. If you send an objection, you do not have to attend the Fairness Hearing and voice your objection in person. As long as you mail your written objection on time, the Court will consider it when determining whether to approve the Settlement as fair, reasonable, and adequate. You also may pay your own lawyer to attend the Fairness Hearing, but attendance is not necessary.

Only if you have previously filed an objection to the Settlement may you ask the Court for permission to speak at the Final Fairness Hearing. To do so, you must send a letter or other paper called a “Notice of Intention to Appear at Final Fairness Hearing,” in Rzepkoski v. Nova Southeastern University, Case No. 0:22-cv-61147 (S.D. Fla.). Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be postmarked no later than January 29, 2025 and be sent to the Clerk of the Court, Class Counsel, and Defendant’s counsel at the addresses listed below.

If you do nothing and you are a Member of the Settlement Class and the Settlement is approved, you will participate in the Settlement of the Action as described in the notice.

This notice summarizes the proposed Settlement. The complete Settlement is set forth in the Settlement of Class Action Settlement Agreement. You may obtain a copy of the Settlement Agreement from the Importand Documents page on this website, or you may request one be emailed to you by contacting the Settlement Administrator at email: [email protected] or telephone: 888-665-4545.

Class Counsel may be reached at: Brandon J. Hill, Wenzel Fenton Cabassa, P.A., 1110 N. Florida Avenue, Suite 300, Tampa, Florida 33602; telephone: (813) 224-0431, email: [email protected]; or Michael McKay, McKay Law, LLC, 5635 N. Scottsdale Road, Suite 170, Scottsdale, Arizona 85250, telephone: (480) 681-7000. You may also contact the Settlement Administrator at 888-665-4545 or by email at [email protected]. Documents are available at the office of the Clerk located at the U.S. District Court Courthouse, 299 East Broward Boulevard, Courtroom 205B, Fort Lauderdale, Florida 33301, and on the Important Documents page of this website.