UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HEAVY & GENERAL LABORERS’ LOCAL 472 

& 172 PENSION AND ANNUITY FUNDS et al., 

individually and on behalf of all others similarly 

situated,

Plaintiff,

v.

FIFTH THIRD BANCORP, GREG D. 

CARMICHAEL, and TAYUN TUZUN,

Defendants.

Case No. 1:20-cv-02176

District Judge Sara L. Ellis

STEPHEN PEMBERTON, derivatively on behalf of 

Fifth Third Bancorp,

Plaintiff,

v.

GREG D. CARMICHAEL, TAYFUN TUZUN, 

NICHOLAS K. AKINS, JORGE L. BENITEZ, 

KATHERINE B. BLACKBURN, EMERSON L. 

BRUMBACK, JERRY W. BURRIS, C. BRYAN 

DANIELS, THOMAS H. HARVEY, GARY R. 

HEMINGER, JEWELL D. HOOVER, EILEEN A. 

MALLESCH, MICHAEL B. MCCALLISTER, and 

MARSHA C. WILLIAMS,

Defendants,

and

FIFTH THIRD BANCORP, Nominal Defendant.

Case No. 1:20-cv-04115

District Judge Joan B. Gottschall

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VINCE G. MEYER, AS TRUSTEE OF THE 

VINCE G. MEYER TRUST, derivatively on behalf 

of Fifth Third Bancorp,

Plaintiff,

v.

GREG D. CARMICHAEL, TAYFUN TUZUN, 

NICHOLAS K. AKINS, JORGE L. BENITEZ, 

KATHERINE B. BLACKBURN, EMERSON L. 

BRUMBACK, JERRY W. BURRIS, C. BRYAN 

DANIELS, THOMAS H. HARVEY, GARY R. 

HEMINGER, JEWELL D. HOOVER, EILEEN A. 

MALLESCH, MICHAEL B. MCCALLISTER, and 

MARSHA C. WILLIAMS,

Defendants,

and

FIFTH THIRD BANCORP, Nominal Defendant.

Case No. 1:20-cv-04244

District Judge Robert M. Dow Jr.

AGREED MOTION TO REASSIGN 

RELATED CASES TO THE HONORABLE SARA L. ELLIS 

Pursuant to Northern District of Illinois Local Rule 40.4, Defendants Greg D. 

Carmichael, Tayfun Tuzun, Nicholas K. Akins, Jorge L. Benitez, Katherine B. Blackburn, 

Emerson L. Brumback, Jerry W. Burris, C. Bryan Daniels, Thomas H. Harvey, Gary R. 

Heminger, Jewell D. Hoover, Eileen A. Mallesch, Michael B. McCallister, and Marsha C. 

Williams and Defendant and Nominal Defendant Fifth Third Bancorp, by and through their 

undersigned attorneys, respectfully request that this Court reassign two related cases, Pemberton 

v. Carmichael, No. 20-cv-4115 (N.D. Ill.), and Meyer v. Carmichael, No. 20-cv-4244 (N.D. Ill.), 

to the Honorable Sara L. Ellis who is presiding over a first-filed related action, Heavy & General 

Laborers’ Local 472 & 172 Pension and Annuity Funds v. Fifth Third Bancorp, No. 20-cv-2176 

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(“Laborers’ Funds”). Laborers’ Funds is a putative investor class action asserting violations of 

federal securities laws, and Pemberton and Meyer are nearly identical shareholder derivative 

actions that arise from the same alleged facts and circumstances as Laborers’ Funds and 

similarly allege violations of the securities laws, among other claims. It will be more efficient 

for the Court and all parties to have the cases before Judge Ellis.

In support of this agreed motion, Defendants state as follows:

I. PROCEDURAL BACKGROUND

1. On April 7, 2020, class member Lee Christakis filed a putative class action 

asserting that Defendants Fifth Third Bancorp, Greg D. Carmichael, and Tayun Tuzun violated 

Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 

10b-5 promulgated thereunder by issuing false and misleading statements and omissions related 

to alleged employee misconduct with customer accounts. That case, now captioned Heavy & 

General Laborers’ Local 472 & 172 Pension and Annuity Funds v. Fifth Third Bancorp, No. 20-

cv-2176 (“Laborers’ Funds”), is pending before Judge Ellis. 

2. On July 13, 2020, plaintiff Stephen Pemberton filed a shareholder derivative 

action, Pemberton v. Carmichael, No. 20-cv-4115, against the officers and directors of Fifth 

Third Bancorp asserting that they breached their fiduciary duties, were unjustly enriched, wasted 

corporate assets, and committed violations of Sections 14(a), 10(b), and 20(a) of the Securities 

Exchange Act. (Dkt. 1, Ex. A.) The claims in Pemberton are similarly based on the same 

alleged employee misconduct with customer accounts. Plaintiff indicated on the civil cover 

sheet that Laborers’ Funds is a related case. (Dkt. 2, Ex. B.) The case was assigned to Judge 

Gottschall. 

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3. On July 17, 2020, Plaintiff’s counsel in Pemberton filed a second shareholder 

derivative action, Meyer v. Carmichael, No. 20-cv-4244, which is substantially identical to 

Pemberton (together with Pemberton, the “Shareholder Derivative Actions”). (Dkt. 1, Ex. C.) 

Plaintiff indicated on the civil cover sheet that Pemberton is a related case. (Dkt 1-4, Ex. C.) 

The case was assigned to Judge Dow. 

II. ARGUMENT

4. Local Rule 40.4 provides for cases in the Northern District of Illinois to be 

reassigned to “promote[] efficient use of judicial resources by minimizing duplication of effort 

on cases that have a great deal in common.” Global Patent Holdings, LLC v. Green Bay 

Packers, Inc., 2008 WL 1848142, at *2 (N.D. Ill. Apr. 23, 2008). Two showings are required. 

First, to be eligible for reassignment, cases must be related as defined in Local Rule 40.4(a). 

Second, if related, a case may be reassigned to the judge presiding over an earlier-numbered case 

if: “(1) [all] cases are pending in [the Northern District of Illinois]; (2) the handling of [all] cases 

by the same judge is likely to result in a substantial saving of judicial time and effort; (3) the 

earlier case has not progressed to the point where designating a later filed case as related would 

be likely to delay the proceedings in the earlier case substantially; and (4) the cases are 

susceptible to disposition in a single proceeding.” L.R. 40.4(b).

5. Here, reassignment is appropriate because Laborers’ Funds and the Shareholder 

Derivative Actions meet the requirements of Local Rule 40.4(a) and (b).

A. The Lawsuits Are Related Under Local Rule 40.4(a)

6. Laborers’ Funds and the Shareholder Derivative Actions are related cases 

because all three actions “involve some of the same issues of fact or law” and grew “out of the 

same transaction or occurrence.” L.R. 40.4(a)(2)-(3). 

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7. All three actions stem from the Bureau of Consumer Financial Protection’s

allegations against Fifth Third Bank. (See Laborers’ Funds Compl. ¶¶ 8, 45; Pemberton Compl.

¶ 9; Meyer Compl. ¶ 9.) All three actions concern the same period of time. (See Laborers’

Funds Compl. ¶ 1 (“between February 26, 2016 and March 6, 2020”); Pemberton Compl. ¶ 1 

(“from February 26, 2016 through present”); Meyer Compl. ¶ 5 (same).) And all three actions 

assert that Fifth Third made false and misleading statements arising out of the same factual 

circumstances. (See, e.g., Laborers’ Funds Compl. ¶¶ 5, 39; Pemberton Compl. ¶ 5; Meyer 

Compl. ¶ 5.) 

8. Relying on allegations made by the Bureau of Consumer Financial Protection, all 

three actions allege that Fifth Third failed to institute sufficient internal controls to prevent 

employees from making unauthorized changes to customer accounts. (See, e.g., Laborers’

Funds Compl. ¶ 39; Pemberton Compl. ¶¶ 115-131, 156, 169-173; Meyer Compl. ¶¶ 100-116, 

153.) The complaints further assert that in light of the alleged unauthorized conduct with 

customer accounts, Fifth Third made materially false public statements in SEC filings regarding 

its business operations, compliance programs, and heightened risk of regulatory scrutiny. (See, 

e.g., Laborers’ Funds Compl. ¶¶ 5, 39; Pemberton Compl. ¶ 5; Meyer Compl. ¶ 5.) 

9. In addition to the same factual core, the cases involve many of the same issues of 

law. All three complaints allege, inter alia, violations of Sections 10(b) and 20(a) of the 

Exchange Act. (See Laborers’ Funds Compl. ¶¶ 57-72; Pemberton Compl. ¶¶ 264-274; Meyer 

Compl. ¶¶ 249-259). While Laborers’ Funds alleges the securities law violations damaged a 

class of Fifth Third investors, the Shareholder Derivative Actions assert that those same 

violations damaged Fifth Third itself in connection with stock repurchases. (See id.) 

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10. Accordingly, because the three cases involve overlapping issues of fact and law 

and grew out of the same transaction or occurrence, they are related under Local Rule 40.4(a). 

B. The Lawsuits Satisfy the Factors Set Forth in Local Rule 40.4(b)

11. The requirements set forth in Local Rule 40.4(b) are also met. 

12. First, all three cases are pending in the Northern District of Illinois. 

13. Second, the handling of all three cases by a single judge is likely to result in a 

substantial saving of judicial time and effort as the three cases involve the same underlying 

factual allegations and require disposition of overlapping legal issues and claims. Reassignment 

of the Shareholder Derivative Actions will thus conserve the judicial time and effort required to 

familiarize three separate judges with the same facts and issues. See Teachers Retirement Sys. of 

La. v. Black, 2004 WL 1244236, * 2 (N.D. Ill. Jun. 3, 2004) (reassigning securities fraud case 

where cases involved the same underlying factual allegations); cf. Hollinger Int’l, Inc. v. 

Hollinger, Inc., 2004 WL 1102327 (N.D. Ill. May 5, 2004) (denying motion to reassign 

derivative case where the derivative action was not premised on the same claims as the securities 

action and did not allege violations of the Securities Exchange Act); Lawrence E. Jaffe Pension 

Plan v. Household Int’l, Inc., 2003 WL 21011757 (N.D. Ill. May 5, 2003) (same). 

14. Third, the first-filed case, Laborers’ Funds, has not progressed to the point where 

designating the Shareholder Derivative Actions as related would delay the proceedings. Indeed, 

an amended complaint will not be filed in Laborers’ Funds until September 14, 2020. 

15. Fourth, although Laborers’ Funds and the Shareholder Derivative Actions cannot 

be disposed of in a single proceeding, the disposition of the securities fraud claims in Laborers’

Funds may significantly influence the outcome of the Shareholder Derivative Actions. 

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16. Counsel for the parties in Pemberton and Meyers have conferred and agree that 

the three actions are related and that the Shareholder Derivative Actions should be reassigned to 

Judge Ellis.

17. Plaintiff’s counsel in Laborers’ Funds have indicated they do not oppose this 

motion. 

III. CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court enter an order 

that the related actions, Pemberton v. Carmichael, 20-cv-4115, and Meyer v. Carmichael, 20-cv4244, be reassigned to Judge Ellis.

Dated: July 22, 2020.

Respectfully submitted, 

/s/ Charles F. Smith 

Charles F. Smith

Marcella L. Lape

Katherine F. Morgan

Daniel J. Scime

SKADDEN, ARPS, SLATE, 

 MEAGHER & FLOM LLP

155 N. Wacker Drive

Chicago, IL 60606

(312) 407-0700

charles.smith@skadden.com

Of Counsel:

Theodore N. Mirvis 

WACHTELL, LIPTON, ROSEN & KATZ 

51 West 52nd Street 

New York, NY 10019 

(212) 403-1204 

TNMirvis@WLRK.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that that a copy of the foregoing Agreed Motion 

to Reassign Related Cases was filed on July 22, 2020, with the Clerk of Court using the CM/ECF 

system, which will effect electronic service on all parties and attorneys registered to receive 

notifications via the CM/ECF system and that a copy of the foregoing was sent to Plaintiffs' 

counsel in Pemberton v. Carmichael, 20-cv-4115, and Meyer v. Carmichael, 20-cv-4244, via 

electronic mail and first class mail the same day. 

/s/ Charles F. Smith 

Charles F. Smith

Skadden, Arps, Slate, Meagher & Flom LLP

155 N. Wacker Drive, Suite 2700

Chicago, IL 60606

(312) 407-0700

Charles.smith@skadden.com

Counsel for Defendants

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