UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE FIFTH THIRD BANCORP DERIVATIVE 

LITIGATION

Case No. 1:20-cv-4115

District Judge Sara L. Ellis

JOINT INITIAL STATUS REPORT

1. Nature of the Case

(a) Attorneys of Record

Plaintiffs are represented by the following attorneys:

Phillip Kim (Co-Lead Counsel)

The Rosen Law Firm, P.A.

275 Madison Avenue, 40th Floor

New York, NY 10016

Email: pkim@rosenlegal.com

Timothy Brown (Co-Lead Counsel)

The Brown Law Firm, P.C,

240 Townsend Square

Oyster Bay, NY 11771

Email: tbrown@thebrownlawfirm.net

Matthew T. Heffner (Liaison Counsel)

Matthew T. Hurst (Liaison Counsel)

Heffner Hurst

30 North LaSalle Street, Suite 1210

Chicago, IL 60602

Email: mheffner@heffnerhurst.com 

Email: mhurst@heffnerhurst.com

Christopher M. Lash

Faruqi & Faruqi, LLP

1617 JFK Boulevard, Suite 1550

Philadelphia, PA 19103

Email: clash@faruqilaw.com

Counsel for Plaintiffs William Cox and 

Merrill Dill

Nina Varindani

Faruqi & Faruqi, LLP

685 Third Avenue, 26th Floor

New York, NY 10017

Email: nvarindani@faruqilaw.com

Counsel for Plaintiffs William Cox and 

Merrill Dill

Kyle Alan Shamberg

Carlson Lynch, LLP.

111 West Washington Street, Suite 1240

Chicago, IL 60602

Email: kshamberg@carlsonlynch.com

Counsel for Plaintiffs William Cox and 

Merrill Dill

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Daniel O. Herrera

Cafferty Clobes Meriwether & Sprengel LLP

150 South Wacker Drive, Suite 3000

Chicago, IL 60606

Email: dherrera@caffertyclobes.com

Counsel for Plaintiff Peter Hansen

Defendants are represented by the following attorneys:

Charles F. Smith, Jr. (Lead Trial Attorney)

Marcella Louise Lape

Katherine Fletcher Morgan

Elizabeth Ann Simon

Daniel James Scime

Skadden Arps Slate Meagher & Flom, LLP 

155 North Wacker Drive

Suite 2700

Chicago, IL 60606-1720

(312) 407-0700

Email: cfsmith@skadden.com

marcella.lape@skadden.com

katherine.morgan@skadden.com

elizabeth.simon@skadden.com

daniel.scime@skadden.com

(b) Nature of the Claims 

This is a consolidated shareholder derivative action brought on behalf of nominal 

defendant Fifth Third Bancorp (“Fifth Third”) against certain directors and officers of Fifth 

Third. Four cases have been consolidated into In re Fifth Third Bancorp Derivative Litigation: 

(i) Pemberton v. Carmichael, Case No. 20-cv-4115; (ii) Meyer v. Carmichael, Case No. 20-cv4244; (iii) Cox v. Carmichael, Case No. 20-cv-4660, and (iv) Hansen v. Carmichael, Case No. 

20-cv-5339. The Court appointed The Rosen Law Firm, P.A. and the Brown Law Firm, P.C. as 

co-lead counsel and Heffner Hurst as liaison counsel for Plaintiffs in the consolidated action. The 

Plaintiffs have not yet filed a consolidated complaint. 

The complaints generally allege that certain directors and officers of Fifth Third Bancorp 

breached their fiduciary duties, were unjustly enriched, wasted corporate assets, and violated 

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various provisions of the Securities Exchange Act of 1934 (“Exchange Act”) and regulations 

promulgated thereunder because Defendants allegedly knew since at least 2008 that Fifth Third’s 

sales strategies incentivized employees to engage in unauthorized account activity, but they 

covered it up by making public statements supporting the bank’s robust compliance policies and 

internal controls. The derivative complaints follow a March 2020 lawsuit brought by the 

Consumer Financial Protection Bureau against Fifth Third Bank asserting that it violated various 

federal laws in connection with the unauthorized account activity. There are no counterclaims or 

third party claims.

(c) Major Legal and Factual Issues

Major legal issues in this case include whether Plaintiffs have met their burden to excuse 

pre-suit demand on the Fifth Third Board of Directors; whether Plaintiffs otherwise state a claim

for relief; whether Defendants breached their fiduciary duties to Fifth Third; whether Defendants 

were unjustly enriched; whether Defendants violated and/or caused Fifth Third to violate the 

Exchange Act and regulations promulgated thereunder; whether Defendants caused Fifth Third 

Bank to violate the Consumer Financial Protection Act of 2010, the Truth in Lending Act, and 

the Truth in Savings Act, and their implementing regulations; and whether Fifth Third suffered 

any damages as a result of the alleged violations.

Major factual issues include whether Fifth Third failed to institute sufficient internal 

controls to prevent employees from making unauthorized changes to customer accounts, and 

whether Fifth Third made materially false or misleading public statements, including in SEC 

filings regarding its business operations, compliance programs, and heightened risk of regulatory 

scrutiny.

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(d) Relief Sought

Plaintiffs seek damages and restitution for Fifth Third; an order directing Fifth Third and 

the director and officer defendants to institute certain governance reforms; and an award of 

attorneys’ fees, expert fees, and costs.

2. Jurisdiction

There is federal question jurisdiction because there are Exchange Act claims made in this 

consolidated action and state law claims asserted in this consolidated action arising under Ohio 

corporate law that are based substantially on claims for violations of federal law made in in the 

related actions pending in this Court captioned Heavy & General Laborers’ Local 472 & 172 

Pension and Annuity Funds v. Fifth Third Bancorp, et al., Case No. 20-cv-02176 (“Securities 

Class Action”) and Bureau of Consumer Financial Protection v. Fifth Third Bank, National 

Association, Case No. 1:20-cv-01683 (“Consumer Financial Protection Bureau Action”). 

There is supplemental jurisdiction over the state law claims arising under Ohio corporate 

law by virtue of its federal question jurisdiction over related claims arising under the Exchange 

Act.

3. Status of Service

All defendants have been served. 

4. Consent to Proceed Before a United States Magistrate Judge

The parties do not unanimously consent to proceed before a Magistrate Judge. 

5. Motions

There are no pending motions at this time. 

Pursuant to this Court’s previous orders and Party submissions (Dkt. Nos. 16, 19, 24, 35), 

the Parties are required to propose a briefing schedule on or before Monday, October 5, 2020, 

which, if adopted, sets a date for Plaintiffs to file a consolidated amended complaint, as well as a 

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briefing schedule for Defendants to file their anticipated motion to dismiss. Additionally, 

pursuant to an August 25, 2020 Books and Record Demand sent to Fifth Third by Co-Lead 

Counsel Phillip Kim, Fifth Third has agreed to produce certain records to Plaintiffs, subject to 

the completion of a confidentiality agreement, which is currently being negotiated. Fifth Third 

anticipates that it will be able to produce the documents to Plaintiffs by October 16, 2020. 

Based on this assumption, the Parties propose the following schedule: 

Deadline for Plaintiffs to File Consolidated Complaint December 15, 2020

Deadline for Defendants to File Motion to Dismiss February 12, 2021

Deadline for Plaintiffs to Respond to Motion to Dismiss April 13, 2021

Deadline for Defendants to File Reply in Support of Motion to 

Dismiss

May 13, 2021

In the event production is delayed, the Parties may need to jointly move to revise the schedule. 

6. Case Plan

This case is not subject to the Mandatory Initial Discovery Pilot Project. The Parties 

have agreed to a stay of discovery pending resolution of Defendants’ anticipated motion(s) to 

dismiss. If Defendants’ motion(s) to dismiss are denied, the Parties will meet and confer 

regarding the scope and schedule for discovery, including the dates for (i) the exchange of Rule 

26(a)(1) disclosures; (ii) the issuance of written discovery; (iii) the completion of fact discovery; 

(iv) the completion of expert discovery; and (v) the filing of dispositive motions. 

The Plaintiffs have requested a jury trial. The Parties estimate that a trial would last 

approximately 2 weeks.

7. Status of Settlement Discussions 

The Parties have not engaged in settlement discussions and do not request a settlement 

conference at this time. 

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Respectfully submitted,

/s/ Matthew T. Hurst 

Matthew T. Heffner

Matthew T. Hurst

HEFFNER HURST

30 North LaSalle Street, 12th Floor

Chicago, IL 60602

Tel: (312) 346-3466

Fax: (312) 346-2829

Email: mheffner@heffnerhurst.com

Email: mhurst@heffnerhurst.com

Liaison Counsel for Plaintiffs

THE ROSEN LAW FIRM, P.A.

Phillip Kim (pro hac vice)

275 Madison Avenue, 40th Floor

New York, New York 10016

Tel: (212) 686-1060

Fax: (212) 202-3827

Email: pkim@rosenlegal.com

Co-Lead Counsel for Plaintiffs

THE BROWN LAW FIRM, P.C.

Timothy Brown (pro hac vice)

240 Townsend Square

Oyster Bay, New York 11771

Tel: (516) 922-5427

Fax: (516) 344-6204

Email: tbrown@thebrownlawfirm.net

Co-Lead Counsel for Plaintiffs

/s/ Marcella L. Lape 

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

marcie.lape@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 a copy of the foregoing Joint Initial Status 

Report was filed on October 1, 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.

/s/ Marcella L. Lape 

Marcella L. Lape

Skadden, Arps, Slate, Meagher & Flom LLP

155 N. Wacker Drive, Suite 2700

Chicago, IL 60606

(312) 407-0700

marcie.lape@skadden.com

Counsel for Defendants

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