UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-21784-GAYLES/LOUIS

AUGUSTINO SANTIAGO, LILLY LEYVA, 

GUILLERMO CREAMER, and MARIA 

ACEITUNO, individually and as representatives 

of a class of participants and beneficiaries on 

behalf of the University of Miami Retirement 

Savings Plan,

Plaintiffs,

v.

UNIVERSITY OF MIAMI,

Defendant.

__________________________________________/

ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR 

PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

THIS CAUSE comes before the Court on Plaintiffs’ Unopposed Motion for Preliminary

Approval of the Parties’ Class Action Settlement (the “Motion”) [ECF No. 58]. The Court has 

reviewed the Motion, the proposed Settlement, and supporting papers, and is otherwise fully 

advised.1 Based thereon, it is

ORDERED AND ADJUDGED that Plaintiffs’ Unopposed Motion for Preliminary 

Approval of the Parties’ Class Action Settlement, [ECF No. 58], is GRANTED as follows:

1. Settlement Class Findings and Certification: Solely for the purposes of the 

Settlement, the Court finds that the requirements of Rule 23(a) and (b)(1) of the Federal Rules of 

1 For purposes of this Order, if not defined herein, capitalized terms have the definitions in the Settlement Agreement, 

which is incorporated herein by reference.

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Civil Procedure have been met as to the Settlement Class, and hereby certifies the Settlement Class, 

which is defined as:

The University of Miami Settlement Class:

All persons who participated in 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 

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

Program at any time from May 1, 2014 through August 31, 2021 (the “Settlement 

Class Period”), including any Beneficiary of a deceased person who participated in 

any of the Plans at any time during the Settlement Class Period, and any Alternate 

Payee of a person subject to a Qualified Domestic Relations Order who participated 

in any of the Plans at any time during the Settlement Class Period. 

Excluded from this Settlement Class are any individuals who were members of the 

Plans’ fiduciary committees during the Settlement Class Period.

A. The Court finds that Rule 23(a)(1) is satisfied because there are over 20,000

potential Settlement Class Members making joinder impracticable.

B. The Court finds that Rule 23(a)(2) is satisfied because there are one or more

questions of fact and/or law common to the Settlement Class that can or would be resolved as to 

the Plans, not only as to individual participants, including: whether the fiduciaries to the Plans 

breached their duties; whether the Plans suffered losses resulting from each breach of duty; and 

what Plan-wide equitable and other relief, if any, the Court should impose in light of Defendant’s 

alleged breach of duty. 

C. The Court finds that Rule 23(a)(3) is satisfied because Plaintiffs’ claims are 

typical of the claims of the Settlement Class because they all arise from conduct allegedly 

adversely affecting all of the Plans.

D. The Court finds that Rule 23(a)(4) is satisfied and hereby appoints Plaintiffs 

to represent the Settlement Class. The Court finds there is no conflict between Plaintiffs’ individual 

interests and the interests of the Settlement Class. Instead, they share the same objectives, share 

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the same factual and legal positions, and share the same interest in establishing Defendant’s 

liability. Additionally, Class Counsel is qualified, reputable, and has substantial experience in 

ERISA class actions. 

E. The Court finds that, as required by Rule 23(b)(1), individual members of 

the Settlement Class pursuing their own claims could result in inconsistent or varying adjudications 

as to individual members of the Settlement Class that would establish incompatible standards of 

conduct for Defendant, and that adjudication as to individual Settlement Class Members would, as 

a practical matter, be dispositive of the interest of other members not parties to the individual 

adjudications, or would substantially impair or impede those persons’ ability to protect their 

interests. 

F. The Court finds that Rule 23(g) is satisfied because the law firms Wenzel 

Fenton Cabassa, P.A., McKay Law, LLC, and Justice For Justice, LLC, are capable of fairly and 

adequately representing the interests of the Settlement Class. These firms are experienced in 

ERISA class actions and are knowledgeable of the applicable law. These firms also have done 

substantial work on this case, including investigation, motion practice, discovery, and other efforts 

to represent the interests of the Settlement Class and Plaintiffs.

2. Appointment of Class Representatives and Class Counsel: The Court appoints 

the named Plaintiffs as Class Representatives to represent the Settlement Class, and the law firms 

Wenzel Fenton Cabassa, P.A., McKay Law, LLC, and Justice For Justice, LLC, as Class Counsel.

3. Preliminary Findings Regarding Proposed Settlement: The Court preliminarily 

finds that:

A. The proposed Settlement resulted from extensive arm’s-length negotiations;

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B. The Settlement Agreement was executed only after the parties engaged in 

substantial settlement negotiations, including discovery concerning the substantive merits and 

defenses to Plaintiffs’ claims, private mediation supervised by a nationally-recognized mediator 

who has extensive experience handling similar types of cases, and months of further negotiations 

thereafter to finalize the terms of the Settlement;

C. Class Counsel has concluded that the Settlement Agreement is fair, 

reasonable, and adequate; 

D. The Settlement Agreement negotiated by Class Counsel further requires 

that a mutually-agreed independent fiduciary will serve as a fiduciary to the Plans for purposes of 

approving and authorizing the Settlement on behalf of the Plans; and 

E. The Settlement is sufficiently fair, reasonable, and adequate to warrant

sending notice of the Settlement to the Settlement Class Members.

4. Final Fairness Hearing: A hearing is scheduled in Court Room 11-1 of the United 

States District Court for the Southern District of Florida, located at 400 North Miami Avenue, 

Miami, Florida 33128, before United District Court Judge Darrin P. Gayles, at 10:00 A.M. on 

April 5, 2022 (the “Final Fairness Hearing”), to determine, among other issues:

A. Whether the Settlement Agreement should be approved as fair, reasonable, 

and adequate;

B. Whether the Settlement Notice and notice methodology were performed as 

directed by this Court; 

C. Whether the motion for attorneys’ fees and costs to be filed by Class 

Counsel should be approved; and

D. Whether an amount of compensation to Plaintiffs should be approved.

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5. Establishment of Qualified Settlement Fund: A common fund is agreed to by the 

Settling Parties in the Settlement Agreement and is hereby established and shall be known as the 

Santiago v. University of Miami ERISA Litigation Settlement Fund (the “Settlement Fund”). The 

Settlement Fund shall be a “qualified settlement fund” within the meaning of Treasury Regulations 

§ 1.468- 1(a) promulgated under § 468B of the Internal Revenue Code. The Settlement Fund shall 

be administered as follows:

A. The Settlement Fund is established exclusively for the purposes of: (i) 

making distributions to Plaintiffs and the Settlement Class Members as specified in the Settlement 

Agreement; (ii) making payments for all settlement administration costs and costs of notice, 

including payments of all Administrative Expenses specified in the Settlement Agreement; (iii) 

making payments of all Attorneys’ Fees and Expenses to Class Counsel and Plaintiffs’ 

Compensation as awarded by the Court; and (iv) paying employment, withholding, income, and 

other applicable taxes and tax expenses, all in accordance with the terms of the Settlement 

Agreement and this Order. Other than the payment of Administrative Expenses or as otherwise 

expressly provided in the Settlement Agreement, no distribution shall be made from the Settlement 

Fund until after the Settlement Effective Date. 

B. Within the time period set forth in the Settlement Agreement, Defendant or 

its insurer(s) shall cause $1,850,000 to be deposited into the Settlement Fund.

C. The Court appoints American Legal Claim Services, LLC, as the Settlement 

Administrator for providing Settlement Notice, implementing the Plan of Allocation, and

otherwise assisting in administration of the Settlement as set forth in the Settlement Agreement.

D. Defendant shall timely furnish a statement to the Settlement Administrator

that complies with Treasury Regulation § 1.468B-3(e)(2), which may be a combined statement

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under Treasury Regulation § 1.468B-3(e)(2)(ii) and shall attach a copy of the statement to their

federal income tax returns filed for the taxable year in which Defendant makes a transfer to the

Settlement Fund.

E. Defendant shall have no withholding, reporting, or tax reporting

responsibilities with regard to the Settlement Fund or its distribution, except as otherwise

specifically identified herein. Moreover, Defendant shall have no liability, obligation, or

responsibility for administration of the Settlement Fund or the disbursement of any monies from

the Settlement Fund except for: (1) its obligation to cause the Gross Settlement Amount to be paid; 

and (2) its agreement to cooperate in providing information that is necessary for settlement 

administration as set forth in the Settlement Agreement. 

F. The oversight of the Settlement Fund is the responsibility of the Settlement

Administrator. The status and powers of the Settlement Administrator are as defined by this Order

and as approved in the Settlement Agreement.

G. The Gross Settlement Amount caused to be paid by Defendant and/or its

insurer(s) into the Settlement Fund in accordance with the Settlement Agreement, and all income

generated by that amount, shall be in custodia legis and immune from attachment, execution, 

assignment, hypothecation, transfer, or similar process by any person. Once the Settlement Fund 

vests, it is irrevocable during its term and Defendant has divested itself of all right, title, or interest,

whether legal or equitable, in the Settlement Fund, if any; provided, however, in the event the 

Settlement Agreement is not approved by the Court or the Settlement set forth in the Settlement 

Agreement is terminated or fails to become effective in accordance with its terms (or, if following 

approval by this Court, such approval is reversed or modified), the parties shall be restored to their

respective positions in this case as of the day prior to the Settlement Agreement Execution Date; 

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the terms and provisions of the Settlement Agreement and this Order shall be void and have no 

force and effect and shall not be used in this case or in any proceeding for any purpose; and the 

Settlement Fund and income earned thereon, less all Administrative Expenses already paid or 

incurred (to be split evenly between Class Counsel and Miami, as provided in the Settlement 

Agreement at Article 11.4), shall immediately be returned to the entity or entities that funded the 

Settlement Fund.

H. The Settlement Administrator may make disbursements out of the 

Settlement Fund only in accordance with this Order or any additional Orders issued by the Court.

I. The Settlement Fund shall expire after the Settlement Administrator 

distributes all of the assets of the Settlement Fund in accordance with the Settlement Agreement, 

provided, however, that the Settlement Fund shall not terminate until its liability for any and all 

government fees, fines, taxes, charges, and excises of any kind, including income taxes, and any 

interest, penalties, or additions to such amounts, are, in the Settlement Administrator’s sole 

discretion, finally determined and all such amounts have been paid by the Settlement Fund. 

J. The Settlement Fund shall be used to make payments to Settlement Class 

Members under the Plan of Allocation set forth in the Settlement Agreement. Individual payments

to Settlement Class Members will be subject to tax withholding as required by law and as described

in the Settlement Notice and its attachments. In addition, all Plaintiffs’ Compensation,

Administrative Expenses, and all Attorneys’ Fees and Expenses of Class Counsel shall be paid

from the Settlement Fund.

K. The Court and the Settlement Administrator recognize that there will be tax

payments, withholding, and reporting requirements in connection with the administration of the

Settlement Fund. The Settlement Administrator shall, in accordance with the Settlement

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Agreement, determine, withhold, and pay over to the appropriate taxing authorities any taxes due

with respect to any distribution from the Settlement Fund, and shall make and file with the

appropriate taxing authorities any reports or returns due with respect to any distributions from the

Settlement Fund. The Settlement Administrator also shall determine and pay any income taxes

owing with respect to the income earned by the Settlement Fund. Additionally, the Settlement

Administrator shall file returns and reports with the appropriate taxing authorities with respect to

the payment and withholding of taxes.

L. The Settlement Administrator, in its discretion, may request expedited

review and decision by the IRS or the applicable state or local taxing authorities, with regard to

the correctness of the returns filed for the Settlement Fund and shall establish reserves to assure

the availability of sufficient funds to meet the obligations of the Settlement Fund itself and the

Settlement Administrator as fiduciaries of the Settlement Fund. Reserves may be established for

taxes on the Settlement Fund income or on distributions.

M. The Settlement Administrator shall have all the necessary powers, and take

all necessary ministerial steps, to effectuate the terms of the Settlement Agreement, including the

payment of all distributions. Such powers include receiving and processing information from

Former Participants pertaining to their claims and investing, allocating and distributing the 

Settlement Fund, and in general supervising the administration of the Settlement Agreement in 

accordance with its terms and this Order.

N. The Settlement Administrator shall keep detailed and accurate accounts of 

all investments, receipts, disbursements, and other transactions of the Settlement Fund. All 

accounts, books, and records relating to the Settlement Fund shall be open for reasonable 

inspection by such persons or entities as the Court orders. Included in the Settlement 

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Administrator’s records shall be complete information regarding actions taken with respect to the 

award of any payments to any person, the nature and status of any payment from the Settlement 

Fund, and other information which the Settlement Administrator considers relevant to showing 

that the Settlement Fund is being administered, and awards are being made, in accordance with 

the purposes of the Settlement Agreement, this Order, and any future orders that the Court may 

find it necessary to issue. 

6. Settlement Notice: The Settling Parties have presented to the Court a proposed 

form of Settlement Notice, which is appended to the Settlement Agreement as Exhibit 3.

A. The Court finds that the proposed notice, and the website referenced in the 

Settlement Notice, fairly and adequately: 

(i) Describe the terms and effect of the Settlement Agreement and of

the Settlement; 

(ii) Notify the Settlement Class concerning the Plan of Allocation; 

(iii) Notify the Settlement Class that Class Counsel will seek

compensation from the Settlement Fund for Plaintiffs Attorneys’ 

Fees and Expenses;

(iv) Notify the Settlement Class that Administrative Expenses related to

the Settlement will be paid from the Settlement Fund;

(v) Give notice to the Settlement Class of the time and place of the Final 

Fairness Hearing; and 

(vi) Describe how the recipients of the Settlement Notice may object to 

any of the relief requested and the rights of the Settling Parties to 

discovery concerning such objections.

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B. The Settling Parties have proposed the following manner of communicating 

the notice to Class Members: the Settlement Administrator shall, by no later than sixty (60) days 

before the Final Fairness Hearing, cause the Settlement Notice (and Former Participant Claim 

Forms, as appropriate), with such non-substantive modifications thereto as may be agreed upon by 

the Settling Parties, to be sent by email to all Settlement Class Members for whom the Settlement 

Administrator is provided a current email address and mailed, by first-class mail, postage prepaid, 

to the last known address of each Settlement Class Member for whom there is no current email 

address that can be identified through commercially reasonable means. The Court finds that such 

proposed manner is the best notice practicable under the circumstances and directs that the 

Settlement Administrator provide notice to the Settlement Class (and Former Participant Claim 

Forms) in the manner described. Defendants shall cooperate with the Settlement Administrator by

providing or facilitating the provision of, in electronic format, the names, addresses, email 

addresses (to the extent available), and social security numbers of the Settlement Class Members. 

The names, addresses, email addresses (the extent available), and social security numbers obtained

pursuant to this Order shall be used solely for the purpose of providing notice of this settlement 

and as required for purposes of tax withholding and reporting, and for no other purpose.

C. For any Settlement Notice returned as undeliverable, the Settlement 

Administrator shall utilize the provided social security number or other unique identifier to attempt 

to determine the current address of the person and shall mail notice to that address.

D. At or before the Final Fairness Hearing, Class Counsel shall file with the 

Court a proof of timely compliance with the foregoing requirements.

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E. The Court directs Class Counsel, no later than sixty (60) days before the 

Final Fairness Hearing, to direct the Settlement Administrator to publish the Settlement Notice 

(and Former Participant Claim Form) on the Settlement Website.

7. Objections to Settlement: Any Settlement Class Member who wishes to object to 

the fairness, reasonableness, or adequacy of the Settlement, to the Plan of Allocation, to any term

of the Settlement Agreement, to the proposed award of attorneys’ fees and costs, or to any request

for Plaintiffs’ Compensation, must file an objection in the manner set out in this Order.

A. A Settlement Class Member wishing to raise an objection to the Plan of 

Allocation, to any term of the Settlement Agreement, to the proposed award of attorneys’ fees and 

costs, or to any request for Plaintiffs’ Compensation must do the following: (i) file with the Court 

a statement of his, her, or its objection(s), specifying the reason(s), if any, for each such objection 

made, including any legal support or evidence that such objector wishes to bring to the Court’s 

attention or introduce in support of such objection; and (ii) serve copies of the objection and all 

supporting authorities or evidence to Class Counsel and Defense Counsel. The addresses for filing 

objections with the Court and for service of such objections on counsel for the parties to this matter

are as follows:

Clerk of the Court

United States District Courthouse, Southern District of Florida 

Wilkie D. Ferguson, Jr. United States Courthouse

400 North Miami Avenue

Miami, Florida 33128

WENZEL FENTON CABASSA, P.A.

Attn: Brandon J. Hill (bhill@wfclaw.com)

1110 N. Florida Ave., Suite 300

Tampa, FL 33602

Attorneys for Plaintiffs

MORGAN, LEWIS, BOCKIUS LLP

Attn: Christopher J. Boran (christopher.boran@morganlewis.com)

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110 N Wacker Drive 

Chicago, IL 60606-1511

Attorneys for Defendant

B. The objector or his, her, or its counsel (if any) must serve copies of the 

objection(s) on the attorneys listed above and file it with the Court by no later than thirty (30) 

calendar days before the date of the Final Fairness Hearing. 

C. If an objector hires an attorney to represent him, her, or it for the purposes 

of making such objection pursuant to this paragraph, the attorney must serve a notice of appearance 

on the attorneys listed above and file it with the Court by no later than thirty (30) calendar days 

before the date of the Final Fairness Hearing.

D. Failure to serve objections(s) on either the Court or counsel for the parties 

shall constitute a waiver of the objection(s). Any Settlement Class Member or other person who 

does not timely file and serve a written objection complying with the terms of this Order shall be 

deemed to have waived, and shall be foreclosed from raising, any objection to the Settlement, and 

any untimely objection shall be barred.

E. Any party wishing to obtain discovery from any objector may, but is not 

required to, serve discovery requests, including requests for documents and notice of deposition 

not to exceed two (2) hours in length, on any objector within ten (10) calendar days of receipt of 

the objection, and any responses to discovery or depositions must be completed within ten (10) 

calendar days of the request being served on the objector.

F. Any party wishing to file a response to an objection must do so, and serve 

the response on all parties, no later than seven (7) calendar days before the Final Fairness Hearing. 

8. Appearance at Final Fairness Hearing: Any objector who files and serves a 

timely, written objection in accordance with the terms of this Order as set out above may also 

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appear at the Final Fairness Hearing either in person or through counsel retained at the objector’s

expense. Objectors or their attorneys intending to speak at the Final Fairness Hearing must serve 

a notice of intention to speak setting forth, among other things, the name, address, and telephone

number of the objector (and, if applicable, the name, address, and telephone number of the

objector’s attorney) on Class Counsel and Defense Counsel (at the addresses set out above) and

file it with the Court by no later than thirty (30) calendar days before the date of the Final Fairness 

Hearing. Any objector (or objector’s attorney) who does not timely file and serve a notice of 

intention to appear in accordance with this paragraph shall not be permitted to speak at the Final 

Fairness Hearing.

9. Claim Form Deadline: All valid Former Participant Claim Forms must be 

received by the Settlement Administrator either electronically, or by mail with a postmark date, no 

later than 10 calendar days before the Final Fairness Hearing.

10. Service of Papers: Defense Counsel and Class Counsel shall promptly furnish each

other with copies of all objections that come into their possession.

11. Termination of Settlement: If the Settlement is terminated in accordance with the 

Settlement Agreement, this Order shall become null and void, and shall be without prejudice to 

the rights of the Settling Parties, all of whom shall be restored to their respective positions existing

the day before the Settlement Agreement Execution Date.

12. Use of Order: This Order shall not be construed or used as an admission, 

concession, or declaration by or against Defendant of any fault, wrongdoing, breach, or liability, 

or a waiver of any claims or defenses, including but not limited to those as to the propriety of any

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amended pleadings or the propriety and scope of class certification. This Order shall not be 

construed or used as an admission, concession, or declaration by or against any Plaintiff or the 

Settlement Class Members that their claims lack merit, or that the relief requested by Plaintiffs is

inappropriate, improper, or unavailable. This Order shall not be construed or used as a waiver by 

any party of any arguments, defenses, or claims he, she, or it may have, including but not limited

to any objections by Defendant to class certification in the event that the Settlement Agreement is

terminated.

13. Parallel Proceedings: Pending final determination of whether the Settlement 

Agreement should be approved, Defendant, Plaintiffs, every Settlement Class Member, and the 

Plan are prohibited and enjoined from directly, through representatives, or in any other capacity, 

commencing any action in any court or tribunal asserting any of Plaintiffs’ Released Claims or 

Defendant’s Released Claims against the Released Defendant’s Parties or Released Plaintiffs’ 

Parties.

14. Class Action Fairness Act Notice: The form of notice under the Class Action

Fairness Act of 2005 (“CAFA”) submitted as Exhibit 5 to the Settlement Agreement complies with

the requirements of CAFA and will, upon mailing, discharge Defendant’s obligations pursuant to

CAFA.

15. Continuance of Final Fairness Hearing: The Court may continue the Final 

Fairness Hearing in its discretion without direct notice to the Settlement Class, other than by notice 

to Class Counsel and Defense Counsel, and any Settlement Class Member wishing to appear 

should check the Court’s docket or call the Clerk’s office three (3) calendar days before the 

scheduled date of the Final Fairness Hearing. 

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16. Final Fairness Hearing May Be Held Via Zoom: Due to the ongoing COVID-19 

pandemic, the Final Fairness Hearing may be held via Zoom without direct notice to class 

members. The Zoom log in information shall be placed on the Court’s calendar three (3) calendar 

days before the scheduled date of the Final Fairness Hearing.

17. Plaintiffs’ Motion for Class Certification, [ECF No. 47], is DENIED as moot.

DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of December, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

cc: All counsel of record

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