Judge Kelly Lee Ellerbe, Fulton County Superior Court, Atlanta. (Photo: John Disney/ALM)

Nearly 10 years ago, four grandchildren of the long-deceased co-founder of Rollins Inc.  sued their uncle and father, claiming they improperly seized control and "locked up" the assets of four family trusts containing billions of dollars in assets.

On Monday, a trial deciding the fate of the fortune of the grandfather, O. Wayne Rollins, began in Fulton County Superior Court. It is expected to last three weeks, featuring H. Lamar "Mickey" Mixson, Timothy Rigsbee and Jason Carter of Bondurant, Mixson & Elmore for the plaintiffs and James Lamberth, William Withrow, Keith Barnett and Alan Bakowski of Troutman Sanders for the defendants.

The plaintiffs, Glen, Ruth, Nancy and O.Wayne Rollins II, accuse the trustees, Gary and Randall Rollins, of hatching a "scheme" to hold onto the trusts' assets and failing to pay out millions of dollars in annual distributions required by the terms of the trusts established by their grandfather, whose company acquired and built up the Orkin pest control brand.

According to court filings, the defendants— including Gary and Randall Rollins and a trustee for one of the trusts—have failed to distribute annual income from the trusts or relinquish the assets "free of trust" to the beneficiaries when they turn 45, as required by their terms.

The defendants counter that they've worked to protect the trusts' assets and insure that they remain in family hands, and that they've distributed millions of dollars to the grandchildren, whom they accuse of failing to abide by a "Code of Conduct" to receive the annual payouts. 

Among the plaintiffs' assertions are that the defendants unilaterally amended the trusts' shareholder agreements "so that those assets could not be sold without obtaining Gary and Randall's consent when the plaintiffs received those assets at the age of 45."

The plaintiffs also claim the defendants retaliated against the plaintiffs for filing the lawsuit "by cutting off all income distributions and taking additional steps to ensure that plaintiffs will never have income from, access to, or control of, the assets in their trusts."

"This conduct eliminates any reasonable expectations that plaintiffs will ever be able to access the value of their own trust assets," the plaintiffs charge.

According to a chart included in the 197-page pretrial order, the plaintiffs received widely varying annual payouts from 1999 to 2009, with all but Wayne Rollins receiving distributions ranging from a few hundred thousand dollars to more than $2.5 million. Wayne received a few hundred thousand dollars on four years and otherwise got nothing. 

After 2010, when they filed suit, there were no more payouts listed.

For example, according to the plaintiffs' account, in 2011 Gary and Randall Rollins distributed more than $11 million to "certain partners" from the Rollins Investment Fund.

"None of the distribution was paid to plaintiffs or their S Trusts," it said. 

That same year, Glen Rollins turned 45 and thus was entitled to the "full distribution of his S Trust assets 'free of trust,'" it said.

A few days before Glen's birthday, Gary Rollins sent Glen Rollins a letter saying his assets were worth as much as $160 million.

"But what Glen actually received was $27,000 in cash, plus unmarketable securities and partnership interests that are encumbered by substantial debt, totally controlled by Gary and Randall (and their successors) forever, and which currently pay a minimal distribution to Glen under Gary and Randall's manipulated and bad faith distribution scheme."

The defendants' portion of the pretrial order said amendments to the trusts were "made in good faith and were well within the broad discretion granted" to them as trustees.

In 2000, they "decided to create a new program that would provide opportunity for third generation members of the Rollins family to receive additional distributions called the Rollins Family Entity Distribution Program" to benefit their children, it said.

"Specifically, Gary and Randall wanted to provide an opportunity for their children to receive direct cash distributions … while encouraging them to lead productive lives and remain engaged in the family so they would be prepared to take over the management of the family assets in the future."

As part of that program, they established "eligibility requirements" to receive payouts, including "attending family meetings and being engaged in meaningful pursuits such as full-time employment or raising children."

"The program was voluntary—if a third generation family member did not want to meet the eligibility requirements, he or she did not have to," it said.

The plaintiffs were not "cut off," the defendants argue but "intentionally decided to no longer comply with the eligibility requirements" they had established.

The plaintiffs level claims for breach of fiduciary duty and breach of trust and seek compensatory and punitive damages. 

The trial is being overseen by Superior Court Judge Kelly Lee Ellerbe.