UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 1:20-cv-21784-DPG

AUGUSTINO SANTIAGO, LILLY LEYVA,

GUILLERMO CREAMER, and MARIA

ACEITUNO, individually and as representative

of a class of participants and beneficiaries of

behalf of the University of Miami Retirement

Savings Plan,

 Plaintiffs,

v.

UNIVERSITY OF MIAMI,

 Defendant.

PLAINTIFFS’ UNOPPOSED MOTION FOR FINAL APPROVAL OF THE PARTIES’ 

CLASS ACTION SETTLEMENT

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Plaintiffs Augustina Santiago, Lilly Leyva, Guillermo Creamer, and Maria Aceituno 

(“Plaintiffs”), individually and on behalf of all others similarly situated, file this Unopposed 

Motion, and incorporated Memorandum of Law, seeking final approval of the class action 

settlement between Plaintiffs and the University of Miami (“Defendant” or Miami”).

1

 In further 

support thereof, Plaintiffs respectfully submit the following: 

Brief Summary

On December 9, 2021, this Court issued an Order preliminarily approving the Class Action 

Settlement Agreement (“Settlement” or “Settlement Agreement”) between Plaintiffs, on behalf of 

the Settlement Class, and Defendant. (Doc. 60). Following entry of that Order, the Settlement 

Administrator sent the Court-approved Notice of Settlement to all Settlement Class Members. The 

Court-approved Settlement Notice reached an estimated 99.63% of the 37,000+ class members. 

(See Exhibit B, Sworn Declaration from Keith Salhab, Director of Operations for Settlement 

Administrator, American Legal Claim Services, LLC (“Salhab Decl.”) ¶¶ 5-8). Importantly, the

Settlement Class Members’ reactions to the Settlement were overwhelmingly positive. Not a 

single objection was filed prior to the March 6, 2022 deadline. Nor has there been a late-filed 

objection. The undersigned has personally spoken with approximately 50-100 class members, all 

of whom were supportive of the Settlement. (See Exhibit C, Sworn Declaration from Brandon J. 

Hill (“Hill Decl.”), ¶¶ 27-28). 

Additionally, attached as Exhibit D is a report from Gallagher Fiduciary Advisors, LLC 

(“Gallagher”). Gallagher was appointed to act as an independent fiduciary of the University of 

Miami Retirement Savings Plan, the Defined Contribution Retirement Plan for Faculty of the 

University of Miami, the University of Miami Retirement Savings Plan II, the UHealth Retirement 

 1 All defined terms contained herein shall have the same meaning as set forth in the Class Action Settlement 

and Release (“Settlement Agreement”), filed on November 23, 2021. (See Doc. 58-1).

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Savings Plan III, and the University of Miami Supplemental Retirement Annuity Program 

(collectively, the “Plans”) in connection with the proposed settlement. Gallagher’s specific

responsibilities pursuant to its agreement and the Settlement are to (i) determine whether to 

approve and authorize the settlement of Released Claims on behalf of the Plans and (ii) determine 

whether the Settlement satisfies the requirements of the Prohibited Transaction Class Exemption 

2003-39 (the “Class Exemption”). Ultimately, Gallagher reached the following conclusion: 

After a thorough review of the pleadings and interviews with the parties’ counsel 

and the mediator, Gallagher has concluded that the Settlement was achieved at 

arms’ length and is reasonable given the uncertainties of a larger recovery for the 

Class at trial and the value of claims foregone. The fee request is also reasonable in 

light of the effort expended by Plaintiffs’ counsel in the Litigation.

(Exhibit D, p. 4). 

Thus, not only has this Honorable Court preliminarily approved the settlement agreement, 

so have the Settlement Class Members, and so has the independent fiduciary, Gallagher, charged 

with ensuring that the Settlement comports with the Class Exemption. 

In sum, little has changed since the Court’s Order preliminarily approving the Settlement, 

confirming that the Settlement is fair, reasonable, adequate, and warrants final approval. As a 

result, Plaintiffs request that the Court enter the Final Approval Order attached as Exhibit A, which 

was previously made part of the Settlement Agreement and filed at Doc. 58-1, Ex. 4.. In further 

support of this Motion, Plaintiffs state the following:

I. BACKGROUND.

A. The Complaint and Motion Practice. 

On April 29, 2020, Plaintiffs filed a Complaint in this Court, Case No. 1:20-cv-21784-

DPG. (ECF No. 1.) Plaintiffs brought this action under the Employee Retirement Income Security 

Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”), alleging that Miami breached its fiduciary duties 

relating to the management, operation, and administration of the Plans, and seeking to recover all 

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alleged losses resulting from each breach of duty under 29 U.S.C. § 1109(a), and other equitable 

relief. (See ECF No. 1.)

More specifically, Plaintiffs filed a three-count Complaint alleging that Miami breached 

its fiduciary duties of loyalty and prudence to the Plans and their participants.2

 (ECF No. 1.) In 

Count I, Plaintiffs claimed that Miami permitted the Plans to incur unreasonable and excessive 

administrative fees by allegedly failing to engage in a prudent process to evaluate and monitor 

administrative expenses, including fees paid to Fidelity and TIAA-CREF for recordkeeping 

services those entities provided to the Plans. (Id. at ¶¶ 34-37, 39, 40, 102, 104.) Plaintiffs alleged 

in Count II that Miami failed to prudently select and monitor investment options, including the 

CREF Stock Account and TIAA Real Estate Account, resulting in losses to the Plans. (Id. at ¶¶ 

55, 56, 62, 76-78, 112.) Finally, in Count III, Plaintiffs alleged that Miami breached its duty to 

monitor appointed fiduciaries. (Id. at ¶¶ 41, 57, 118-19.)

On July 8, 2020, Miami moved to dismiss the Complaint for failure to state a claim under 

Rule 12(b)(6) and for lack of standing pursuant Rule 12(b)(1). (ECF No. 16, “Motion to Dismiss”) 

Miami argued, among other things, that the Complaint failed to allege plausibly that Miami 

breached its duty of loyalty, that the Plans paid excessive administrative/recordkeeping fees, or 

that Miami’s process for evaluating investment options was deficient. (Id.) Plaintiffs filed their 

Opposition on August 7, 2020 (ECF No. 23), along with supporting documentation. Miami filed 

a Reply (ECF No. 32) on September 4, 2020. Both sides also filed Notices of Supplemental 

Authority (ECF Nos. 37, 38, 42). On November 17, 2020, Magistrate Judge Lauren Fleischer 

 2 The original complaint focused its allegations on the University’s Retirement Savings Plan. However, as 

a result of further investigation and the settlement reached during the Settling Parties’’ June 22, 2021,

mediation, Plaintiffs filed an Amended Complaint, expanding the asserted claims to include all of the Plans

(as defined in the Settlement Agreement). . See ECF No. 59.

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Louis held a hearing (conducted electronically) on Miami’s Motion to Dismiss, which lasted 

approximately 2 hours and 10 minutes. 

On March 1, 2021, Magistrate Judge Louis issued a Report and Recommendation 

(“R&R”), recommending the Motion to Dismiss be granted as to Counts II and III of the Complaint

and Plaintiffs’ “duty of loyalty” claim in Count I, but that the Motion to Dismiss be denied with 

respect to Plaintiffs’ “duty of prudence” claim in Count I. (ECF No. 43.) This Court affirmed and 

adopted the R&R on March 26, 2021, ordering the case to proceed as to Plaintiffs’ duty-ofprudence claim in Count I. (ECF No. 46.)

On April 5, 2021, Plaintiffs filed their Rule 23 Motion for Class Certification. (ECF No. 

47.) Soon thereafter, on April 23, 2021, Miami filed its Answer and Defenses. (ECF No. 52.) 

Miami raised eighteen (18) separate Defenses.

B. Discovery. 

Plaintiffs initiated discovery while motion practice was ongoing. They served document 

requests and interrogatories on Miami, along with a Fed. R. Civ. P. 30(b)(6) deposition notice. 

Miami produced many documents central to the processes followed by the Plans’ fiduciaries, 

which Class Counsel and their retained industry experts reviewed. Miami also deposed each of 

the four named Plaintiffs. Plaintiffs also obtained relevant documents from third parties, including 

the United States Department of Labor concerning the claims and defenses in this matter. In 

addition, Plaintiffs retained and worked with an expert witness who has substantial experience in 

similar ERISA class actions to develop damages models and to opine on alleged losses sustained 

by the named Plaintiffs and Settlement Class Members. 

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C. Settlement Negotiations. 

In May 2021, after the partial denial of Miami’s Motion to Dismiss, counsel discussed 

whether a pre-trial class-wide resolution might be attainable. Eventually, the parties agreed to 

participate in a private mediation. 

On June 22, 2021, the parties engaged in a full-day mediation with a nationally recognized 

mediator, David Geronemus, Esq., who has extensive experience handling ERISA fiduciarybreach lawsuits like this one. In advance of the mediation, the parties submitted mediation briefs, 

including damage analyses and settlement proposals and held a pre-mediation telephone 

conference with Mr. Geronemus, during which the parties exchanged additional information that 

helped ensure mediation would be productive. The mediation was successful, resulting in the 

parties reaching agreement on the principal terms of the settlement, memorialized in a fully 

executed term sheet, which was finalized during the evening of June 22. (See Id., ¶ 21.) During 

the months that followed, the parties negotiated the detailed terms of the Settlement Agreement 

and exhibits thereto, which are provided to the Court with this Motion. 

D. The Settlement Agreement. 

1. Benefits to Class Members. 

The Settlement provides for a monetary payment of $1,850,000.00 as compensation to the 

Settlement Class. (See Doc. 58-1, Settlement Agreement § 2.21.) This “Gross Settlement Amount” 

will cover the independent fiduciary fees; settlement administration fees and costs; any Plaintiffs’ 

Compensation approved by the Court; and any Class Counsel fees and costs approved by the Court. 

(Id. § 2.21.) The remaining “Net Settlement Amount” will be distributed to Settlement Class 

Members pursuant to the proposed Plan of Allocation. (See id. §§ 6.1-6.12.) 

For those Settlement Class Members with an active account in one or more of the Plans as 

of August 31, 2021, and who are not Zero Account Balance Current Participants at the time 

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settlement payments are made, automatic settlement payments will be made directly to one or more 

of their accounts in the Plans. (id. § 6.4.) For those Settlement Class Members who are a Zero 

Account Balance Current Participants, their settlement payments will be made via check to the 

address of such participants (id. §6.4, 6.5). Settlement Class Members who do not have an active 

account in any of the Plans as of August 31, 2021, will submit—either electronically or by mail—

a simple claim form to become eligible to receive a cash payment via check. (See id. § 6.6; see 

also id. Ex. 1 to Settlement Agreement (Former Participant Claim Form).)

In accordance with the Settlement Agreement, $100,000 of the Settlement Amount was

deposited into the Escrow Account following the Court’s order preliminarily approving the 

Settlement. (Id. § 5.4.) The remaining $1,750,000 will be issued for deposit in the Escrow Account 

within fourteen (14) business days of the Settlement Effective Date. (Id. §§ 2.39, 5.5). The 

Settlement Fund will be administered by the Settlement Administrator, American Legal Claims 

Services, LLC. (Id. § 2.34.) The Net Settlement Amount shall be distributed to Settlement Class 

Members in accordance with the proposed Plan of Allocation (or as modified by the Court and 

agreed by the Settling Parties). (Id. § 6.) No payment less than $10 shall be distributed to any 

Settlement Class Member who is a Former Participant of the Plans. (Id. § 6.3.3.) Any Net 

Settlement Amount remaining after the settlement distributions are made and all Administrative 

Costs or applicable taxes have been paid, if any, shall be returned to the Plans to defray 

administrative fees and expenses of the Plans; there will be no cy pres payment or reversion to 

Miami. (See id. § 6.11-6.12.) 

In addition, Miami has agreed to certain non-monetary terms that will further benefit 

Settlement Class Members and the Plans more generally. Specifically, within three years of the 

Settlement Effective Date, the Plans’ fiduciaries will initiate a request for proposals (“RFP”) for 

recordkeeping and administrative services for the Plans. Additionally, Miami and the Plans’ 

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fiduciaries have agreed that they will not agree to any increase in the current contractual fees paid 

by the Plans to Fidelity and TIAA for recordkeeping services those entities provide to the Plans 

during the three years following the Settlement Effective Date. (Id. §§ 10.1-10.3.) 

2. Retention of an Independent Fiduciary. 

As required by Prohibited Transaction Class Exemption 2003-39, 68 FR 75632 (Dec. 31, 

2003), as amended 75 FR 33830 (June 15, 2010), the Settlement Agreement required the selection 

of an Independent Fiduciary to review the Settlement. (Id. § 3.1.) As discussed above, Gallagher

was appointed for this purpose. Gallagher’s specific responsibilities were to (i) determine whether 

to approve and authorize the settlement of Released Claims on behalf of the Plans and (ii) 

determine whether the Settlement satisfies the requirements of the Prohibited Transaction Class 

Exemption 2003-39. Ultimately, Gallagher reached the following conclusion: 

After a thorough review of the pleadings and interviews with the parties’ counsel 

and the mediator, Gallagher has concluded that the Settlement was achieved at 

arms’ length and is reasonable given the uncertainties of a larger recovery for the 

Class at trial and the value of claims foregone. The fee request is also reasonable in 

light of the effort expended by Plaintiffs’ counsel in the Litigation.

(Exhibit D, p. 4). 

Before reaching this conclusion, Gallagher: (i) reviewed documents filed with the Court, 

including the Complaint and the Amended Complaint, the Motion to Dismiss and the Court’s 

order dismissing portions of the case, the Motion for Preliminary Approval of Class Action 

Settlement, the Settlement Agreement and Notice, the Order granting preliminary approval of the 

Settlement, and the Plaintiffs’ Motion for Attorneys’ Fees; (ii) interviewed Michael McKay of 

McKay Law, LLC, lead counsel for Plaintiffs; (iii) interviewed Christopher Boran, from Morgan 

Lewis & Bockius, LLP, counsel for Defendants; and (iv) interviewed David Geronemus, the 

mediator. (See Exhibit D, p. 1). 

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3. Attorneys’ Fees, Costs and Service Award for Plaintiffs.

Any Class Counsel Fees and Costs and/or Plaintiffs’ Compensation the Court may award 

will be paid from the Gross Settlement Amount. In a separate already-filed Motion (see Doc. 61), 

Class Counsel petitioned the Court for an award of attorneys’ fees not to exceed one-third (33.3%) 

of the Gross Settlement Amount, plus reasonable expenses totaling $18,707.30. (Id. §§ 7.1-7.3.) 

4. Notice and Objections. 

Pursuant to Federal Rule of Civil Procedure 23(e)(1) and (e)(5), the Settlement Agreement 

provided for notice to the Class and an opportunity for Settlement Class Members to object to 

approval of the Settlement. The Court-approved Settlement Notice was timely issued to 

Settlement Class Members. Both the form and method of notice satisfied all due process 

considerations and meet the requirements under Rule 23(e)(1). 

5. The Class Members’ Reactions to the Settlement. 

The Settlement Administrator, American Legal Claims, sent the Court-approved Class 

Notice to the Settlement Class Members beginning January 26 through February 4, 2022. (Exhibit 

B, Salhab Dec., ¶¶ 5-8). 

A total of 37,478 Settlement Notices were either mailed or emailed to members of the 

Settlement Class in accordance with the Court’s Preliminary Approval Order. (Exhibit B, Salhab 

Dec., ¶¶ 5-8). The Settlement Notice informed Settlement Class Members that if they wish to 

object to the Agreement, they were required to provide a written statement to the Court and serve 

it upon Counsel for the parties postmarked by March 6, 2022. (Exhibit B, Salhab Dec., ¶ 13). To 

date, no objections have been made to the Settlement. (Id.). The undersigned also personally 

spoke with approximately 50+ class members (or more) who called with questions, all of whom 

supported the Settlement. (See Exhibit C, Hill Decl., ¶¶ 27-28). Given these facts, the Settlement 

Class Members’ reactions are overwhelmingly positive. 

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II. MEMORANDUM OF LAW.

A. Legal Standard.

It is well established that settlements are “highly favored in the law and will be upheld 

whenever possible because they are means of amicably resolving doubts and preventing lawsuits.” 

Miller v. Rep. Nat'l. Life Ins. Co., 559 F.2d 426, 428 (5th Cir. 1977). A district court, in reviewing 

a proposed settlement of a class action case must find that there has been no fraud or collusion 

between the parties in arriving at the proposed settlement and that the proposed settlement is “fair, 

adequate and reasonable.” See id. at 428; see also Bennett v. Behring Corp., 737 F.2d 982, 986 

(11th Cir. 1984); Rule 23(e)(2). 

The Eleventh Circuit has previously outlined several factors that a court must consider in 

its determination of whether a proposed class-action settlement is fair, adequate, and reasonable: 

(1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below 

the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the 

complexity, expense and duration of the litigation; (5) the substance and amount of opposition to 

the settlement; and (6) the stage of the proceedings at which the settlement was achieved. See 

Bennett, 737 F.2d at 986. In weighing these factors, the Court may “rely upon the judgment of 

experienced counsel for the parties,” and “absent fraud, collusion, or the like,” Courts are often 

“hesitant to substitute its own judgment for that of counsel.” See Canupp v. Liberty Behavioral 

Health Corp., 417 F. App'x 843, 845 (11th Cir. 2011) (citing Cotton v. Hinton, 559 F.2d 1326, 

1330 (5th Cir. 1977)). 

In addition, effective December 1, 2018, Rule 23 was amended to include certain final 

approval criteria for courts to consider, including whether: (A) the class representatives and class 

counsel have adequately represented the class; (B) the proposal was negotiated at arm's length; (C) 

the relief provided for the class is adequate; and, finally, (D) the proposal treats class members 

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equitably relative to each other. See Fed. R. Civ. P. 23(e)(2). For the reasons discussed below, 

the application of the recently amended Rule 23(e) factors, as well as the analogous Bennett 

factors, unquestionably demonstrates that the Settling Parties’ proposed settlement is fair, 

adequate, and reasonable under the circumstances of this case.

B. The Class Has Already Been Certified on a Preliminary Basis. 

Beginning with the issue of class certification, the Court has already determined this action 

was proper for resolution on a class wide basis pursuant to Rule 23(a) and 23(b)(1). Since the 

Court’s Preliminary Approval Order, no objections addressing class certification were received. 

Thus, there is no reason to re-visit the Court’s prior ruling. 

C. All Relevant Bennett Factors Weigh in Favor of the Court Granting Final 

Approval of the Parties’ Class Action Settlement. 

1. Likelihood of Success at Trial and Range of Possible Recovery

(Bennett Factors 1–3). 

The first three Bennett factors—which include (1) the likelihood of success at trial; (2) the 

range of possible recovery; (3) the point on or below the range of possible recovery at which a 

settlement is fair, adequate, and reasonable—are unquestionably satisfied by the Settlement. 

Although “[a] determination of a reasonable settlement is not susceptible to a precise equation 

yielding a particular sum,” In re NetBank, Inc., Sec. Litig., No. 07-2298, 2011 WL 13176646, at 

*4 (N.D. Ga. Nov. 9, 2011), the Settlement represents an outstanding result considering both the 

strength of Plaintiffs’ claims and the strength of Defendant’s defenses. See also Bennett, 737 F.2d 

at 987 (citation omitted) (“[A] just result is often no more than an arbitrary point between 

competing notions of reasonableness.”) In fact, the Settlement requires Miami to pay $1.85 million 

for the benefit of the proposed Settlement Class. It also requires Miami to take steps following the 

Settlement Effective Date to help ensure that the Plans’ fees and service providers are prudently 

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managed for years into the future, while also ensuring the Plans will not see their contractual 

recordkeeping fees increase during at least a three-year period after the Settlement Effective Date. 

Moreover, the $1.85 million recovery falls well within the range of reasonableness in this 

case, as it is a substantial percentage of the estimated recovery Plaintiffs’ counsel estimated could 

be recovered if successful in litigating the case through trial (exclusive of attorneys’ fees and 

costs). See, e.g., Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988) (“A 

settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single

percent of the potential recovery.”). Absent this Settlement, continued litigation would be complex 

and would require the investment of considerable resources by both parties and the Court. Liability 

is heavily contested, and both sides would face considerable risks should the litigation proceed. In 

contrast to the complexity, delay, risk, and expense of continued litigation, the proposed Settlement 

will produce certain, and substantial recovery for Settlement Class Members.

The $1.85 million cash payment represents a substantial recovery, and the result here is 

enhanced by further non-monetary benefits summarized above. These results are particularly

beneficial to the Settlement Class in light of the risks posed by continued litigation, including the 

possibility of the Court finding no liability or the inability to prove damages. While Plaintiffs 

believe that the claims asserted against Miami are meritorious, they recognize that Miami strongly 

disagrees, and that Plaintiffs’ claims present a number of substantial risks to establishing both 

liability and damages. There is no certainty that Plaintiffs would have avoided summary judgment, 

and even if they had, there is no certainty that they would have prevailed at trial. Miami mounted 

a vigorous defense to Plaintiffs’ claims and have set forth multiple defenses—affirmative and 

otherwise—in their pleadings. 

Additionally, with respect to the primary question of liability, Miami claims that it properly 

managed the Plans and had prudent processes in place to evaluate the Plans’ investments and their 

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recordkeeping and administrative fees. Miami claims that its choices were within the range of 

choices made by other similarly situated plan fiduciaries at the time they were made. Miami also 

contends that Plaintiffs overstated the potential damages they could recover at trial, even assuming 

Plaintiffs could establish liability. 

Notably, the only similar university case to be tried resulted in a verdict for defendants on 

all claims. Sacerdote v. New York Univ., 328 F. Supp. 3d 273, 317 (S.D.N.Y. 2018). Following 

appeal, the Second Circuit affirmed the trial judgment in its entirety. Sacerdote v. New York

University, Case No. 18-2707-cv (2nd. Cir. August 16, 2021.) As Sacerdote case clearly 

illustrates, Plaintiffs faced a substantial risk that they could litigate this case for years, at significant 

expense, only to lose at trial and on appeal, recovering nothing for the class. 

In sum, under the Settlement, the Settlement Class Members can quickly realize a portion

of their alleged damages from the Qualified Settlement Fund and will also benefit from Miami’s

commitment to engage in an RFP for recordkeeping services to the Plans during the three years

following the Settlement Effective Date, with a commitment not to agree to any increase in the

contractual fees paid to the Plans’ recordkeepers (Fidelity and TIAA) during that time. Even if 

the amount is less than the minimum that could have been recovered through successful litigation, 

the settlement is fair, reasonable, and adequate. For these reasons, the first three Bennett factors 

thus support final approval by the Court of the Settlement.

2. Complexity, Expense, and Duration of the Litigation (Bennett Factor 

4), and Stage of Proceedings at Which Settlement Was Achieved 

(Bennett Factor 6). 

The fourth Bennett factor, which requires an analysis of the complexity, expense, and 

duration of the litigation, also favors the Court granting final approval of the Settlement. So does 

the sixth factor, the proceeding at which the settlement was achieved. Below the two are analyzed 

together because they are interrelated. 

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“The policy favoring settlement is especially relevant in class actions and other complex 

matters, where the inherent costs, delays, and risks of continued litigation might otherwise 

overwhelm any potential benefit the class could hope to obtain.” Gevaerts v. TD Bank, N.A., No. 

14-20744, 2015 WL 12533121, at *5 (S.D. Fla. Aug. 4, 2015). 

This case did not settle soon after it was filed. Rather, the Settlement was the product of 

hard-fought litigation, which included substantial motion practice, discovery, the retention of 

knowledgeable and qualified experts who performed damage analyses. As set forth supra, 

Plaintiffs initiated discovery while motion practice was ongoing. They served document requests 

and interrogatories on Miami, along with a Fed. R. Civ. P. 30(b)(6) deposition notice. Miami 

deposed each of the four named Plaintiffs. Miami produced many documents central to the 

processes followed by the Plans’ fiduciaries, which Class Counsel and their retained industry 

experts reviewed. Plaintiffs also retained and worked with expert economic witnesses to develop 

damages models and to opine on alleged losses sustained by the named Plaintiffs and Settlement 

Class Members. 

Additionally, all counsel involved in the negotiations are experienced in handling class 

action litigation and complex litigation and are clearly capable of assessing the strengths and 

weaknesses of their respective positions. Where there “is no evidence of any kind that the Settling 

Parties or their counsel have colluded or otherwise acted in bad faith in arriving at the terms of the 

proposed settlement ... counsel’s informed recommendation of the agreement is persuasive that 

approval is appropriate.” Strube v. American Equity Inv. Life Ins. Co., 226 F.R.D. 696, 703 (M.D. 

Fla. 2005). Counsel on both sides are experienced and thoroughly familiar with the factual and 

legal issues presented. It is recognized that the opinion of experienced and informed counsel 

supporting the settlement is entitled to considerable weight. Holmes v. Cont’l Can Co., 706 F.2d 

1144, 1149 (11th Cir. 1983).

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Importantly, the Settlement was the result of a successful mediation before a class-action 

mediator, and several months of further negotiations thereafter. See D’Amato v. Deutsche Bank, 

236 F.3d 78, 85 (2d Cir. 2001) (a “mediator's involvement in ... settlement negotiations helps to 

ensure that the proceedings were free of collusion and undue pressure”). 

In sum, this litigation was highly complex, lengthy, and expensive for the Settling Parties.

That expense was incurred after significant time was spent litigating, conducting discovery, and 

motion practice. The Settlement “offers the [Class Members] a certain and substantial recovery . 

. . in what would otherwise be an uncertain, lengthy, and expensive endeavor.” Columbus Drywall 

& Insulation, Inc. v. Masco Corp., No. 04-3066, 2008 WL 11319971, at *4 (N.D. Ga. Mar. 4, 

2008). Therefore, the fourth and sixth Bennett factors strongly supports approval of the Settlement

3. Substance and Amount of Opposition to Settlement (Bennett Factor 5).

The remaining Bennett factor Courts typically consider is the substance and amount of 

opposition to the settlement—the fifth Bennett factor. Because there is no opposition to the 

Settlement, this element is easily satisfied. 

To be sure, “the reaction of the class is an important factor.” Lipuma v. Am. Express Co., 

406 F. Supp. 2d 1298, 1324 (S.D. Fla. 2005); see also Saccoccio v. JP Morgan Chase Bank, N.A., 

297 F.R.D. 683, 694 (S.D. Fla. 2014). As described above, the Settlement Administrator provided 

notice of the Settlement to 37,478 Class Members. Not a single class member objected. This last 

Bennett factor supports the Court granting final approval of the Settlement. See, e.g., Lipuma., 406 

F. at 1319; see also Burrows v. Purchasing Power, LLC, No. 12-22800, 2013 WL 10167232, at 

*7 (S.D. Fla. Oct. 7, 2013) (granting final approval of class action settlement, nothing that “[n]o 

members of the Settlement Class oppose the settlement, nor have any governmental agencies filed 

opposition.”).

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D. In addition to the Bennett Factors, All Rule 23(e) Factors Weigh in Favor of 

the Court Granting Final Approval of the Parties’ Class Action Settlement.

Next, pursuant to 2018 amendments to Rule 23, when analyzing whether to grant final 

approval of a class action settlement, courts typically look to whether: (1) the class representatives 

and class counsel have adequately represented the class; (2) the proposal was negotiated at arm's 

length; (3) the relief provided for the class is adequate, and (4) the proposal treats class members 

equitably relative to each other. Fed.R.Civ.P. 23(e)(2). This standard is satisfied here, and the 

Court should enter a Final Order approving the Class Action Settlement Agreement. 

1. The Class Representative and Class Counsel Have Adequately 

Represented the Class. 

The central component of representative adequacy is the absence of conflicts of interest 

between the named representative and the class. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 

625–26 (1997).

Here, the four named Plaintiffs, who are the proposed Class Representatives, are 

participants in one or more of the Plans and allegedly suffered a pro rata loss because of Miami’s 

alleged fiduciary breaches with regard to excessive administrative and recordkeeping fees, among 

other alleged problems. Like other Settlement Class Members, the proposed Class Representatives 

seek to maximize the recovery to the Settlement Class through this litigation. None of the Plaintiffs 

has any interest that is antagonistic to the claims of any Settlement Class Member. George v. Kraft 

Foods Global, Inc., 251 F.R.D. 338, 348 (N.D. Ill. 2008). The Plaintiffs’ interests are, thus, fully 

aligned with the interests of Settlement Class Members. 

Furthermore, the Plaintiffs have been and remain willing and able to take the required role 

in the litigation to protect the interests of those they seek to represent. As one district court has 

noted, it is sufficient for an ERISA case if a proposed class representative “understands that she 

had a retirement plan and believes that defendants failed to protect the money in the Plan” and, 

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further, that she “understands her obligation to assist her attorneys and testify.” Rankin v. Rots, 

220 F.R.D. 511, 521 (E.D. Mich. 2004). All four Plaintiffs have the required understanding and 

have demonstrated their commitment to this case by providing materials in discovery, submitting 

themselves to extensive questioning in depositions conducted during discovery, and consulting

about key terms of the Settlement.. 

Finally, as discussed further below, Plaintiffs have retained counsel with significant 

experience in ERISA class actions. When, as here, the Settlement Class is represented by counsel 

who have significant experience in class-action litigation and settlements, and no evidence of 

collusion or bad faith exists, the judgment of the litigants and their counsel concerning the 

adequacy of the settlement is entitled to deference. See, e.g., Hugo on behalf of BankAtlantic 

Bancorp, Inc. v. Levan, No. 08-61018-CIV, 2011 WL 13173025, at *10 (S.D. Fla. July 12, 

2011)(“The view of the attorneys actively conducting the litigation regarding the appropriateness 

of a proposed settlement is “entitled to significant weight”); see also Int'l Union, United Auto., 

Aerospace, & Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 635 (6th Cir. 

2007) (“In deciding whether the settlement is fair, reasonable, and adequate, the Court must look 

to the opinions of class counsel and class representatives.”). Simply put, the proposed Settlement 

satisfies Rule 23(e)(2)’s first component, adequacy. 

2. The Settlement Is the Product of Arm’s-Length Negotiations Between 

Experienced Counsel Before a Neutral Mediator. 

The next Rule 23(e)(2) factor is also satisfied because the proposed Settlement, and the 

record in this case, show that the Settlement Agreement was the product of extensive and detailed 

arm’s-length, and at times contentious, negotiations between the parties and their counsel. 

Not only that, but the parties also used a highly respected mediator in this case, David 

Geronemus, Esq., who has extensive experience handling ERISA fiduciary-breach lawsuits like 

this one. Mr. Geronemus’ involvement as the mediator also supports finding the settlement fair, 

Case 1:20-cv-21784-DPG Document 62 Entered on FLSD Docket 03/22/2022 Page 17 of 21
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reasonable, and adequate. See Fed. R. Civ. P. 23(e)(2)(B), Committee Notes on Rules–2018 

Amendment (“[T]he involvement of a neutral or court- affiliated mediator ... may bear on whether 

[negotiations] were conducted in a manner that would protect and further the class interests”); 

accord Poertner v. Gillette Co., 618 F. App'x 624, 630 (11th Cir. 2015); see also Perez v. Asurion 

Corp., 501 F. Supp. 2d 1360, 1384 (S.D. Fla. 2007) (concluding that class settlement was 

warranted because it was overseen by “an experienced and well-respected mediator”). 

Moreover, as stated above, all counsel involved in the negotiations are experienced in 

handling class action litigation and complex litigation and are clearly capable of assessing the 

strengths and weaknesses of their respective positions. Pierre-Val v. Buccaneers Ltd. P'ship, No. 

8:14-cv-01182-CEH, 2015 WL 3776918, at *2 (M.D. Fla. June 17, 2015) (“courts should give 

weight to the parties’ consensual decision to settle class action cases, because they and their 

counsel are in unique positions to assess the potential risks”). Where there “is no evidence of any 

kind that the parties or their counsel have colluded or otherwise acted in bad faith in arriving at the 

terms of the proposed settlement ... counsel’s informed recommendation of the agreement is 

persuasive that approval is appropriate.” Strube v. American Equity Inv. Life Ins. Co., 226 F.R.D. 

696, 703 (M.D. Fla. 2005). 

3. The Settlement Provides Adequate Relief to the Class 

Members. 

The relief to Settlement Class Members satisfies the third Rule 23(e)(2) factor. The $1.85 

million secured by Plaintiffs for the Settlement Class Members falls well within the range of 

reasonableness in this case. It is also a substantial percentage of the estimated recovery Plaintiffs’ 

counsel estimated could be recovered if successful in litigating the case through trial (exclusive of 

attorneys’ fees and costs). See, e.g., Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. 

Fla. 1988) (“A settlement can be satisfying even if it amounts to a hundredth or even a thousandth 

of a single percent of the potential recovery.”). 

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As set forth above, continuing the litigation would have been complicated, protracted, and 

expensive. The risk of Plaintiffs being unable to establish liability was also present because of the 

numerous defenses asserted by Defendant, including at both summary judgment and trial. Each 

of these remaining phases of the litigation posed serious risks, which the Settlement allows 

Plaintiffs and the Settlement Class Members—and Defendant—to avoid. See, e.g. In re 

Painewebber Ltd. P’ships Litig., 171 F.R.D. 104, 126 (S.D.N.Y. 1997) (“Litigation inherently 

involves risks.”).

In sum, through this Settlement, the parties avoid the cost of protracted litigation. The 

Settlement Class Members can quickly realize a portion of their possible damage claims from the 

Qualified Settlement Fund, even if the amount is less than what could have been recovered through 

successful litigation. The Class Representatives support the Settlement, as do the Settlement Class 

Members—evidenced by the lack of objections. Thus, the third Rule 23(e)(2) factor remains 

satisfied. 

4. The Proposal Treats Class Members Equitably Relative to Each 

Other. 

Finally, the last Rule 23(e)(2) factor is satisfied because the proposed Settlement treats 

Settlement Class Members equitably relative to each other. More specifically, the Settlement Class 

Members who with an active account in one or more Plans as of August 31, 2021, will receive 

automatic settlement payments made directly to one or more of their accounts in the Plans. And 

if any of these Settlement Class Members no longer have an active account at the time of payment, 

then they will receive their settlement payment by check. Meanwhile, Settlement Class Members 

who do not have an active account in the Plans as of August 31, 2021, will simply submit a claim 

form, which will entitle them to receive a settlement payment by check provided their payment 

exceeds a minimum of $10. The detailed “Plan of Allocation” summarized above is set forth in 

Case 1:20-cv-21784-DPG Document 62 Entered on FLSD Docket 03/22/2022 Page 19 of 21
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Section 6 of the Settlement Agreement, which Plaintiffs incorporate by reference here. (See Doc. 

58-1, pp. 17-23, Article VI). Thus, the final Rule 23(e)(2) factor is met. 

III. CONCLUSION.

In sum, final approval of the parties’ class action settlement by the Court is warranted. No 

Class Member has objected to the settlement. Defendant does not object to this Motion. Plaintiffs 

respectfully submit that this Motion should be granted as a result. 

WHEREFORE, Plaintiffs respectfully moves this Court to grant this Motion and enter the 

Proposed Order attached as Exhibit A. 

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Certificate of Compliance with Local Rule 7.1

Pursuant to Local Rule 7.1 of the District Court for the Southern District of Florida, counsel 

for Plaintiffs certified that Miami does not oppose this Motion. 

Dated this 22nd day of March, 2022. 

Respectfully submitted,

/s/ Brandon J. Hill

LUIS A. CABASSA

Florida Bar Number: 053643

BRANDON J. HILL

Florida Bar Number: 0037061

WENZEL FENTON CABASSA, P.A.

1110 N. Florida Avenue, Suite 300

Tampa, Florida 33602

Main Number: 813-224-0431

Facsimile: 813-229-8712

Email: lcabassa@wfclaw.com

Email: bhill@wfclaw.com

Attorneys for Plaintiff and the Class

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of March, 2022, I caused a true and correct copy of 

the foregoing to be filed using the Clerk of Court’s CM/ECF system, which then caused a notice 

of electronic filing on all Counsel of Record. 

/s/ Brandon J. Hill

BRANDO N J. HILL

Case 1:20-cv-21784-DPG Document 62 Entered on FLSD Docket 03/22/2022 Page 21 of 21