IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT IN RE BANK AMERICA CORPORATION SECURITIES LITIGATION CAROL MACKAY, Appellant, vs. HUGH McCOLL, et al., Appellees. Appeal No. 02-3783 Appeal from the Eastern District of Missour i SECOND MOTION TO SUPPLEMENT THE RECORD ON APPEA L Comes now Carol Mackay, Executrix for the Estate of Joseph I. Sir, deceased, Appellant in the above-referenced matter, and under the authority of Fed.R.App.P. Rule 10(e), respectfully move s this Court for an Order, allowing for the Record on Appeal to be supplemented and as ground s shows unto the Court the following : 1. This appeal arises from the District Court's Order approving a class action settlement regarding the shareholders of NationsBank and Bank of America. 2. The Notice of the Settlement was sent out to the shareholders and, in part, provided for comments and objections to the Settlement to be heard at a scheduled fairness hearing. 3. Carol Mackay, Executrix for the Estate of Joseph I. Sir, deceased, through her counsel, filed objections to the Settlement, a motion to intervene, and a proposed complaint in intervention.
of standing. 4. Appellee's Plaintiffs Class filed a Motion to Dismiss the Appeal based upon the lac k 5. This Court granted the Appellee's Motion to Dismiss after granting Carol Mackay' s Motion to Supplement the Record on Appeal. 6. Carol Mackay requests the opportunity to further Supplement the Record by filin g the attached Exhibit "A" which is an Affidavit executed by Carol Mackay. WHEREFORE, PREMISES CONSIDERED, Carol Mackay, as Executrix for the Estate o f Joseph I. Sir, deceased, respectfully request that the Court grant Appellant's motion,, and allow th e Affidavit to become part of the Record, and grant such other and further relief as is just. Dated: March 12, 200 3 Edward W. Cochran, Esq. OH Bar No. 0032942 2872 Broxton Road Shaker Heights OH 44120 Telephone: (216) 751-5546 Facsimile: (216) 751-663 0 N. Albert Bacharach, Jr. Florida Bar Number: 209783 115 Northeast 61 Avenue Gainesville, Florida 32601 Telephone : (352) 378-9859 Facsimile : (352) 338-1858 Respectfully submitted, 6 a""v4 Frank H. Tomlinson, Esq. AL Bar No. ASB-7042-T66F Pritchard, McCall & Jones, LLC 505 N. 20th Street, Suite 800 Birmingham, AL 35203 Telephone : (205) 328-9190 Facsimile: (205) 458-003 5 Paul S. Rothstein Florida Bar Number: 310123 626 NE 1 S` Stree t Gainesville, FL 32601 Telephone: (352) 376-7650 Facsimile : (352) 374-713 3 ATTORNEYS FOR APPELLANT CAROL MACKAY, AS EXECUTRIX FOR THE ESTATE OF JOSEPH I. SIR, DECEASE D 2
CERTIFICATE OF SERVICE The undersigned certifies that a true and complete copy of the foregoing was served by mailing the same by the U.S. Mail, first-class postage prepaid, this day of March, 2003, to each counsel of record at the addresses of record noted below : Mitchell A. Margo Curtis Oetting Heinz Garrett & Soule,P.C. 130 South Bemiston, Suite 20 0 Clayton, MO 63105 Fax: (314) 725-8789 Counsel for appellants Koehler and Oetting Martin M. Green Jonathan F. Andres Joe D. Jacobson Green, Schaff & Jacobson, P.C. 7733 Forsyth Boulevard, Suite 700 Clayton, MO 6310 5 Fax: (314) 862-160 6 Liaison Counsel and Lead Counsel for the NationsBank Classes Arthur N. Abbey Abbey Gardy, LLP 212 East 39' Street New York, NY 10016 Fax: (211) 684-519 1 Counsel for plaints-appellees BankAmerica Classes Warren R. Ster n Wachtell Lipton Rosen & Katz 51 West 52nd Street New York, NY 10019-6150 Fax : (212) 403-2000 Bank of America Corp., et al. John Michael Clear Bryan Cave, L.L.P. 211 North Broadway, Suite 3600 St. Louis, MO 63102-275 0 Fax: (314) 259-2020 Bank ofamerica Corp., et al. Ronald L. Olson Munger, Tolles & Olson, LLP 355 S. Grand Avenue, 35th Floor Los Angeles, CA 9007 1 Fax: (213) 687-370 2 Coulter, Higgins, and O'Neill Barry A. Short Lewis Rice & Fingersh 500 North Broadway, Suite 2000 St. Louis, MO 63102 Fax: (314) 241-605 6 Coulter, O'Neill, and Higgins SO CERTIFIED : rtz 911"AC P - 3
EXHIBIT "A"
STATE OF TENNESSEE ) LINCOLN COUNTY ) AFFIDAVIT OF CAROL SIR MACKA Y Before me the undersigned, a Notary public, in and for said State and County, personally appeared, Carol Sir Mackay, who being first duly sworn deposes and says as follows : My name is Carol Sir Mackay. I reside at 107 Kensington Lane, Tullahoma, Tennessee 37388. 1 am over the age of 21 and competent to give this declaration. Joseph I. Sir was my father. My father died on March 24, 2002. He owned 2,011.586 shares of NationsBank Corporation "as of the close of business on September 30, 1998." (See Exhibit "B" attached to the Motion to Supplement the Record on Appeal filed February 10, 2003, which said Motion was granted on February 27, 2003). According to the Notice, my father was a class member of the "NationsBank Holder Class" as defined in this litigation. I was appointed Executrix for my father's estate by the Lincoln County Chancery Court. The evidence of my appointment is set forth in the issued certified Letters Testamentary. (See Exhibit "A" attached to the Motion to Supplement the Record on Appeal filed February 10, 2003, which said Motion was granted on February 27, 2003). After my appointment, I found the Notice and letter concerning this settlement among my father's papers. (See Exhibit "C" attached to the Motion to Supplement the Record on Appeal filed February 10, 2003, which said Motion was granted on February 27, 2003). I had my counsel review this matter. Based on their advice, I authorized my counsel to file objections to the Settlement as being unfair and
unreasonable. and correct. The statements contained in this affidavit are of personal knowledge and true It Furthermore, Afflant saith not carol Sir Mackay Sworn to and subsc ribed to before me this 12_ day of 1~/l f C I-1, 2003. o P lic (SEAL)