UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO: 1:22-cv-22962-AHS

GRACE ANGELO and KERSTIN THOMPSON,

on behalf of the NCLC 401(k) Plan, 

themselves and all others similarly situated, 

Plaintiffs,

v.

NCL CORPORATION LTD, and

NCL (BAHAMAS) LTD., A BERMUDA

COMPANY, 

Defendants.

____________________________________/

PLAINTIFFS’ UNOPPOSED1 MOTION FOR PRELIMINARY APPROVAL 

OF THE PARTIES’ CLASS ACTION SETTLEMENT

Named Plaintiffs, Grace Angelo and Kerstin Thompson (“Plaintiffs”), individually and on 

behalf of all others similarly situated, and the NCLC 401(k) Plan, have entered into a Class Action 

Settlement (the “Settlement”) which, subject to this Court’s approval, would resolve all claims 

asserted in this ERISA lawsuit in exchange for a $615,000.00 cash payment.2

 The proposed 

Settlement is fair, reasonable, adequate, and in the best interests of Settlement Class Members, 

1 Although Named Plaintiff Grace Angelo has already informed the Court that she consents to the Parties’ 

Class Action settlement (see Doc. 42, “Plaintiff Grace Angelo consents to settlement in this matter as 

previously reached between the parties. The parties have exchanged settlement papers and they should be 

signed by parties shortly,”), Ms. Angelo’s independent counsel is currently out of town through Sept. 7 so 

the Parties have not yet obtained Ms. Angelo’s signature on the settlement agreement filed today. 

Additionally, Ms. Angelo’s attorney stated he would like “something I think in this agreement that carves 

out my clients [sic] other settlements from release etc.,” and that “Well I am not agreeing to any Motion, 

given that I don’t agree with the agreement as to my client.”). The Parties will promptly address Ms. 

Angelo’s counsel’s concerns upon the return of her counsel, and hope to have her signature by Sept. 7, 

2023, or soon thereafter. 

2 All capitalized terms used in this Motion that are not otherwise defined shall have the meanings provided 

in the Settlement Agreement. 

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who are current or former participants in the NCLC 401(k) Plan (“the Plan”) during the Settlement 

Class Period (September 16, 2016 through March 31, 2023).. The Settlement Agreement is 

attached as Exhibit A.3

 

The proposed Settlement provides an immediate benefit to the Settlement Class in the form 

of a large cash payment. The Settlement is the product of hard-fought litigation, which included 

substantial motion practice, a robust pre-suit administrative remedies process that involved the 

exchange of nearly 3,800 substantive documents, the retention of knowledgeable and qualified 

experts who performed damage analyses, and arm’s-length negotiations directed by a seasoned 

and respected mediator between experienced ERISA counsel.

Not only that, the benefits of the Settlement must be considered in the context of the risk 

that further protracted litigation might lead to no recovery, or to a smaller recovery for Plaintiffs

and the proposed Settlement Class. The Defendants mounted a vigorous defense at all stages of 

the litigation, and, but for the Settlement, would have continued to do so through all future stages 

of the litigation. 

In evaluating the terms of the Settlement Agreement, Class Counsel have concluded that 

the benefits provided to the Settlement Class make the Settlement in the best interests of Settlement 

Class Members in light of, among other considerations: (1) the substantial monetary relief afforded 

to the Settlement Class; (2) the risks and uncertainties of complex litigation such as this action; (3) 

the expense and length of time necessary to prosecute this action through trial, and appeals; and

3 The remaining exhibits are attached to the Settlement Agreement as follows: Exhibit 1 — Preliminary 

Approval Order; Exhibit 2 — Final Approval Order; Exhibit 3 — Plan of Allocation; Exhibit 4A — Notice 

of Class Action Settlement and Fairness Hearing to Current Participants; Exhibit 4 — Notice of Class 

Action Settlement and Fairness Hearing to Former and Current Participants; Exhibit 5 — CAFA Notice.

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(4) the desirability of consummating the Settlement to provide prompt, effective relief to the 

Settlement Class Members. 

Moreover, the proposed Settlement Agreement requires the parties to retain an independent 

fiduciary, who will act on behalf of the Plans in reviewing the Settlement for purposes of 

determining whether to authorize Plaintiffs’ Released Claims on behalf of the Plans and the 

Settlement Class. (Ex. A, Settlement Agreement § 3.1.) See Prohibited Transaction Exemption 

2003-39, 68 FR 75632 (Dec. 31, 2003). The Plan’s sponsor, NCL (Bahamas) Ltd. (“NCL”), has

selected Gallagher Fiduciary Advisors, LLC, to serve in this capacity, a nationally-respected 

independent fiduciary. This will provide another objective review to ensure the Settlement’s 

fairness to the proposed Settlement Class. 

For these reasons, and as explained further below, Plaintiffs respectfully submit this 

Unopposed Motion seeking entry of an Order that will (1) preliminarily approve the Settlement of 

the claims asserted in this action; (2) certify the proposed Settlement Class; (3) approve the form 

and manner of giving notice of the proposed Settlement and related matters to the Settlement Class; 

(4) appoint Class Counsel; and, (5) set a date for a hearing on final approval of the Settlement, the 

Plan of Allocation, and the motion for Attorneys’ Fees and Costs. The proposed Preliminary 

Approval Order addressing each of these topics is included as Exhibit 2 to the Settlement 

Agreement filed herewith. 

I. LITIGATION AND SETTLEMENT HISTORY. 

A. Pre-Suit Investigation. 

Before filing this case, Class Counsel conducted a significant, in-depth analysis into 

Plaintiffs’ claims and Defendants’ Plan. By way of specific example, on July 19, 2022, Class

Counsel (on behalf of Ms. Angelo) sent a letter addressed to NCL “Plan Administrator” which 

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requested certain Plan documents and submitted an administrative claim pursuant to the Plan’s 

mandatory administrative claims review process. On August 25, 2022, NCL acknowledged receipt 

of the claim notice, notified Class Counsel that the claim notice had been forwarded to the NCL 

Investment Committee (“Committee”) for review, and produced documents in response to 

Plaintiffs’ document requests. On October 14, 2022, the Committee notified Ms. Angelo of its 

decision to deny the administrative claim, and the reasons for its decision. Ms. Angelo submitted 

an appeal on November 7, 2022, and the Committee denied the appeal on December 29, 2022. 

During the course of the administrative process, NCL produced over 3,800 pages of 

documents relevant to Plaintiffs’ claims, including (1) the Plan’s governing documents and trust 

agreements, (2) the Plan’s mandatory fee-related disclosures, (3) a full set of the Committee’s 

minutes dating back to 2016, along with presentations and reports shared with the Committee at 

those meetings, (4) the Plan’s contracts with Prudential, (5) all versions of the Plan’s Investment 

Policy Statement during the putative class period, (6) documents relating to the Plan’s 

recordkeeper requests for proposal in 2018 and 2022, and (7) Ms. Angelo’s quarterly account 

statements. On August 25, 2022, Defendants’ Plan Administrator responded to Class Counsel’s 

29 U.S.C. § 1024(b)(4) request for information by providing approximately 3,800 pages of Planrelated documents. Those documents, in turn, assisted Class Counsel with their analysis of the 

claims in this case, and the ERISA violations that formed the basis of this lawsuit. 

On September 16, 2022, the Original Named Plaintiff, Grace Angelo, filed a Complaint in 

the United States District Court for the Southern District of Florida, Case No. 1:22-cv-22962-AHS. 

(ECF No. 1.) She brought this action under the Employee Retirement Income Security Act of 

1974, 29 U.S.C. § 1001, et seq. (“ERISA”), alleging that Defendants breached their fiduciary 

duties relating to the management, operation, and administration of the Plans, and seeking to 

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

equitable relief. (See ECF No. 1.)

On January 9, 2023, Defendants 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. 9.) Defendants

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

their duty of loyalty, that the Plan paid excessive administrative/recordkeeping fees, or that the 

Defendants’ process for evaluating investment options was deficient. (Id.) Ms. Angelo filed her

Opposition on January 23, 2023 (ECF No. 17), along with supporting documentation. 

Additionally, she filed a Motion to Strike Extrinsic Evidence Attached to Defendants' Motion to 

Dismiss. (ECF No. 18). The Defendants filed a Reply in support of its Motion to Dismiss (ECF 

No. 19) on January 30, 2023. (ECF No. 19). 

Next, on February 7, 2023, the Ms. Angelo and Defendants Filed a Joint Motion to Stay 

All Deadlines and Proceedings Pending Completion of Class-Wide Mediation. (ECF No. 22). 

That Motion was granted by Order dated February 7, 2023. (ECF No. 23). At that point, the case 

was stayed to allow the parties sufficient time to mediate this case on a class basis. 

C. Mediation / Settlement Negotiations. 

On April 3, 2023, Ms. Angelo and Defendants and their respective counsel engaged in a 

full-day videoconference mediation with Robert Meyer, Esq. of JAMS, who has extensive 

experience handling ERISA fiduciary-breach lawsuits similar to this one. After extensive armslength negotiations—which lasted into evening—the they reached an agreement in principle, 

which led to the Settlement Agreement attached hereto for the Court’s review. 

In advance of the mediation, the participants submitted mediation briefs—which included

damage analyses conducted by Plaintiffs’ expert—along with and settlement proposals. The 

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participants also held a pre-mediation telephone conference with Bob Meyer of JAMS, during 

which they exchanged additional information that helped ensure mediation would be productive.

The mediation was successful, resulting in an agreement on the principal terms of the settlement, 

memorialized in a fully-executed term sheet, which was finalized during the evening April 3, 2023. 

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. Ms. Angelo and Ms. Thompson. 

1. Ms. Angelo. 

As stated above, On April 3, 2023, mediation was conducted with the assistance of JAMS 

mediator, Robert A. Meyer (one of the country’s leading class action mediators in ERISA class 

action cases). The mediation lasted approximately twelve hours. It was a long and exhausting 

process. Eventually, the participants reached an agreement, subject to Court approval, to resolve 

this case on a class-wide basis. The mediator requested them to draft and sign a term sheet that 

included certain material components of the parties’ agreement before the conclusion of the 

mediation. The term sheet was drafted, edited, and eventually signed by all participants before the 

conclusion of the mediation. 

The following day, Ms. Angelo and the Defendants jointly filed a mediation report to 

inform the court that the case had “settled in full.” (ECF 24.) Thereafter, the parties’ counsel began 

drafting the appropriate more fulsome settlement documents. Thereafter, Ms. Angelo initially 

expressed some reluctance about continuing with the settlement. So, as a result, Class Counsel 

sought permission to withdraw as counsel for Ms. Angelo in her individual capacity. That Motion 

was granted by the Court on August 8, 2023. (ECF No. 33). Ms. Angelo was given until May 18, 

2023, to find new counsel to represent her individually. (ECF No. 33). On May 21, 2023, attorney 

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Scott M. Beheren filed a notice of appearance to appear on her behalf. (ECF No. 35.) Mr. Beheren 

represents Ms. Angelo in her individual capacity. He does not seek to be included as Class Counsel 

here. 

On August 1, 2023, Ms. Angelo filed a notice of consent with the Court indicating as 

follows: “Plaintiff Grace Angelo consents to settlement in this matter as previously reached

between the parties. The parties have exchanged settlement papers and they should be signed by 

parties shortly.” (Doc. 42). Ms. Angelo has executed the attached Settlement Agreement.

Finally, as to Ms. Angelo, in accordance with Fed.R.Civ.P. 23(e)(3), the Parties want the 

Court to know that Ms. Angelo entered into a separate general release agreement for $12,000, 

which is being paid separately and not from the Settlement Fund.4

 

2. Ms. Thompson. 

Another class member, Kerstin Thompson, retained the undersigned attorneys and agree to 

serve as a second Class Representative. To that end, Class Counsel filed a Motion to Amend adding 

Ms. Thompson as an additional Named Plaintiff. (ECF Nos. 31, 37). Ms. Thompson is now a

Named Plaintiff and is prepared to serve as the second class representative. Defendants have no 

objection to Ms. Thompson serving as the second class representative. The Parties respectfully 

ask that this Honorable Court permit Ms. Thompson to serve as the second class representative to 

4 Payments in settlement of unrelated individual claims are permissible and do not violate the Eleventh 

Circuit’s prohibition against incentive payments, as this Court recently found under similar circumstances 

in Baja v. Costco (S.D. Fla. 0:21-cv-61210-AHS, December 20, 2022)(“....general release payment[]s do[] 

not constitute a prohibited incentive award as described in Johnson v. NPAS Sols., LLC, 975 F.3d 1244 

(11th Cir. 2020). The general release payment was made in consideration for [Angelo’s] release of any and 

all claims [s]he individually could have or did assert in the action, including claims under federal law, state 

or local laws, statutes, regulations, ordinances, or federal or state common law. Thus, the general release 

payment cannot reasonably be characterized as an impermissible ‘salary,’ ‘bounty,’ or payment given to a 

class representative ‘simply by reason of his status.’ See Johnson, 975 F.3d at 1259 n.9 (citations omitted). 

Johnson specifically dealt with an explicit ‘incentive payment’ awarded in ‘acknowledgement of [the class 

representative’s] role in prosecuting the case on behalf of the class members.’ Id. at 1248. That is nothing 

like the case here.”)

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ensure the rights of the class are protected and, additionally, to protect the settlement both sides

worked very hard to reach (at tremendous expense). 

Finally, as to Ms. Thompson, in accordance with Fed.R.Civ.P. 23(e)(3), the Parties want 

the Court to know that Ms. Thompson entered into a separate general release agreement for $1,000, 

which is being paid separately and not from the Settlement Fund.5

 

D. The Settlement Agreement. 

1. Benefits to Class Members. 

The Settlement provides for a monetary payment of $615,000.00 as compensation to the 

Settlement Class. (See Ex. A, Settlement Agreement § 4.2.) This “Gross Settlement Amount” will 

cover the independent fiduciary fees; settlement administration fees and costs; and any Class 

Counsel fees and costs approved by the Court. (Id. § 4.2.) The remaining “Net Settlement Amount” 

will be distributed to Settlement Class Members pursuant to the proposed Plan of Allocation. (See

id. §§ 4.7.1, 4.7.2.) 

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

of March 31, 2023, and who are not Zero Account Balance Current Participants at the time 

settlement payments are made, automatic settlement payments will be made directly to their Plan 

accounts. For those Settlement Class Members who are a Zero Account Balance Current 

Participants, their settlement payments will be made via check to the last known address of such 

participants. Settlement Class Members who do not have an active account in any of the Plans as 

of March 31, 2023, will submit—either electronically or by mail—a simple claim form to become 

eligible to receive a cash payment via check. 

5 See footnote 3 supra. 

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Under the terms of the Settlement Agreement, within thirty (30) days of the entry of the 

Preliminary Approval Order, Defendants shall pay $50,000 into the Qualified Settlement Fund to 

allow for payment of initial Administrative Expenses and Independent Fiduciary Expenses that 

may arise before the Court’s entry of the Final Approval Order and Judgment. (See Ex. A, 

Settlement Agreement § 4.2.) Within thirty (30) calendar days of the Effective Date of the 

Settlement Agreement, Defendants shall pay an additional $565,000 into the Qualified Settlement 

Fund. (See Ex. A, Settlement Agreement § 4.2.) The sum of these two payments, $615,000, shall 

constitute the “Gross Settlement Amount. (See Ex. A, Settlement Agreement § 4.2.) 

The Settlement Fund will be administered by the Settlement Administrator, American 

Legal Claims Services, LLC. (Id. § 2.43.) 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 Parties). 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 Defendants. 

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 provides that NCL

will select an Independent Fiduciary to review the Settlement and provide, if the Independent 

Fiduciary concludes that it is appropriate, the authorization required by that Exemption on behalf 

of the Plans. The Independent Fiduciary must provide a report memorializing its determination 

prior to the final approval hearing set by this Court. Accordingly, in addition to this Court’s review 

and approval, the Settlement will be evaluated by an experienced independent fiduciary whose 

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sole loyalty is to the Plans, and that fiduciary will evaluate the Settlement as to whether it is (1) 

reasonable in the light of the litigation risk and the value of the claims, (2) consistent with an arm’s 

length agreement, and (3) not part of an agreement or arrangement to benefit a party in interest.

3. Attorneys’ Fees and Costs.

Any Attorneys’ Fees and Coststhe Court may award will be paid from the Gross Settlement 

Fund. (See generally Article III of the Stip.) Class Counsel will petition the Court for an award of 

attorneys’ fees not to exceed one-third (33.3%) of the Gross Settlement Amount, plus reasonable 

expenses. (Id.) The Settlement is not contingent on any such fees, costs, or compensation being 

awarded. Thus, if the Court denies the petition for Attorneys’ Fees and Costs, in whole or part, 

such denial will have no impact on the validity or enforceability of the Settlement. (Id. §§ 7.1, 7.2, 

11.3.)

In the interest of full disclosure, both Plaintiffs have also agreed to provide Defendants 

general releases of all possible claims they have, or ever had, against Defendants in exchange for 

a nominal amount. This amount is being paid outside of the Settlement Fund. Notably, Ms. 

Angelo (in her individual capacity) made a demand asserting FMLA and FLSA claims, while Ms. 

Thompson had separately filed an earlier EEOC Charge against Defendants on her own behalf. 

Defendants wanted general releases from Plaintiffs to ensure closure with them. 

4. Release of Claims. 

Under the terms of the Settlement Agreement, Plaintiffs and the Settlement Class 

Members, on their own behalf and on behalf of their current and former beneficiaries, their 

representatives, and their successors-in-interest, and the Plan absolutely and unconditionally 

release and forever discharge Defendants and the other Released Parties from all Released Claims, 

as set forth in more detail in Section 8 of the Settlement Agreement. (Id. §§ 2.41, 2.42.)

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5. Notice and Objections. 

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

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

approval of the Settlement. The proposed form and method of notice of the proposed Settlement 

satisfy all due process considerations and meet the requirements under Rule 23(e)(1). 

The proposed Settlement Notice is attached to the Settlement Agreement as Exhibit 3. The 

Settlement Notice will fully apprise Settlement Class Members of the existence of the lawsuit, the 

Settlement, and information they need to make informed decisions about their rights, including (1) 

the terms of the Settlement; (2) the nature and extent of the Released Claims and Released Parties; 

(3) the maximum attorneys’ fees and expenses Class Counsel will seek; (4) the procedure and 

timing for objecting to the Settlement; (5) the date and place of the final fairness hearing; and (6) 

the website that will contain the settlement documents and other information about the Settlement 

and the litigation. 

The notice plan consists of the following steps: First, the Settlement Notice will be sent 

by electronic means, or by first-class mail, to all Settlement Class Members identified by the 

Settlement Administrator, using the last mailing address known to the Plans’ recordkeepers. 

Second, the Settlement Administrator will provide a dynamic website that will provide the 

Settlement Class Members answers to frequently asked questions, court documents, and the ability 

to email the Settlement Administrator with questions. Third, the Settlement Administrator will 

provide an IVR call center, which Settlement Class members will be able to call toll-free 24 hours 

a day, 7 days a week. Fourth, the Settlement Administrator must take additional action to reach 

those Settlement Class Members whose notice letters are returned as undeliverable. Accordingly, 

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both the form of notice and proposed procedures for notice satisfy the requirements of due process, 

and the Court should approve the notice plan as adequate. 

II. ARGUMENT.

A. The Settlement Class Meets All Requirements of 23(a) and (b)(1). 

As part of the Settlement, Plaintiffs propose, and the Defendants do not object to, for 

settlement purposes only, certification of the Settlement Class defined as follows:

All persons who participated in the NCLC 401(k) Plan at any time from September 

16, 2016, through March 31, 2023_ (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.

Before assessing whether the Settlement is within the range of reasonableness for the 

purposes of preliminary approval, the Court must conduct an independent class certification 

analysis. The Settlement Class meets the requirements for certification under Federal Rule of Civil 

Procedure 23(a) and Rule 23(b)(1).

A class may be certified under Rule 23(a) when (1) the class is so numerous that joinder of 

all members is impracticable; (2) there are questions of law or fact common to the class; (3) the 

claims or defenses of the representative parties are typical of the claims or defenses of the class; 

and (4) the representative parties will fairly and adequately protect the interests of the class. “These 

prerequisites are commonly referred to as the requirements of numerosity, commonality, typicality, 

and adequacy of representation.” Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 683–84 (S.D. 

Fla. 2014). Plaintiffs satisfy each of these four requirements, as discussed below.

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B. Rule 23(a).

1. Numerosity. 

Rule 23(a)(1) requires Plaintiffs to show that the number of persons in the proposed class 

is so numerous that joinder of all class members would be impracticable. Here, there are more than

2,400 Settlement Class Members. Thus, numerosity is satisfied. See Williams v. Wells Fargo 

Bank, N.A., 280 F.R.D. 665, 671-72 (S.D. Fla. 2012) (“a class size of more than forty is adequate”).

2. Commonality. 

Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” Fed. 

R. Civ. P. 23(a)(2). In order to satisfy this requirement, there must be “at least one issue whose 

resolution will affect all or a significant number of the putative class members.” Williams v. 

Mowhawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (internal quotation marks and citation 

omitted). “The commonality element is generally satisfied when a plaintiff alleges that defendants 

have engaged in a standardized course of conduct that affects all class members.” In re Checking 

Account Overdraft Litig., 275 F.R.D. 666, 673 (S.D. Fla. 2011). 

The commonality requirement is easily satisfied here. The legal and factual questions 

linking Settlement Class Members are related to the resolution of the litigation of every Settlement 

Class Member’s claims. Not only that, common questions of law and fact are presented about 

whether Defendants breached their fiduciary duties concerning the Plans’ recordkeeping and 

administrative fees. Indeed, all of the Plans were subject to the same contractual fee arrangement 

with Prudential that Plaintiffs’ claims resulted in both of those entities receiving excessive 

compensation for the recordkeeping services they provided. This claim and others asserted in the 

litigation are subject to common proof, including:

a. Whether Defendants are fiduciaries of the Plans under ERISA;

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b. How Defendants selected, retained and monitored the Plans’ recordkeepers, 

both with respect to their services and fees; 

c. Whether Defendants, in arranging for, selecting, and retaining the Plans’

service providers discharged its alleged fiduciary duties with respect to the 

Plans in a prudent manner ; and 

d. Whether Defendants’ actions proximately caused losses to the Plans and, if 

so, the appropriate relief to which the Plans are entitled.

These are the core issues in this case and the alleged bases for the harms that unify all 

Settlement Class Members. The evidence necessary to resolve these issues is the same. Classes 

consisting of ERISA plan participants are routinely certified in this and other courts. e.g., In re 

Suntrust Banks, Inc. ERISA Litig., No. 1:08-CV-03384-RWS, 2016 WL 4377131, at *6 (N.D. Ga. 

Aug. 17, 2016) (finding breach of fiduciary duty satisfied the commonality requirement); Pantoja 

v. Edward Zengel & Son Exp., Inc., No. 10-20663-CIV, 2011 WL 7657382 (S.D. Fla. Aug. 5, 

2011). Thus, the commonality requirement is satisfied. 

3. Typicality. 

Rule 23(a)(3) requires plaintiffs to show that their claims “are typical of the claims . . . of 

the class.” Fed. R. Civ. P. 23(a)(3). A plaintiff’s claim is typical if there is a “nexus between the 

class representative’s claims or defenses and the common questions of fact or law which unite the 

class.” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984). But a 

plaintiff’s claims . . . need not be identical to the proposed class, and minor variations will not 

render the plaintiff’s claims atypical.” Id. Instead, a plaintiff satisfies the typicality requirement by 

showing that the claims “arise from the same event or pattern or practice and are based on the same 

legal theory.” Id. “[T]here must be enough congruence between the named representative’s claim 

and that of the unnamed members of the class to justify allowing the named party to litigate on 

behalf of the group.” Spano v. Boeing Co., 633 F.3d 574, 586 (7th Cir. 2011).

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In this context, the typicality requirement is satisfied if the class representative is “invested 

in the same funds as the class members” or were participants in the same plans. Id. Such is the 

case here. For the same reasons that Plaintiffs’ claims are common to all Settlement Class 

Members, they are also typical. Plaintiffs, like other Settlement Class Members, (1) seek relief for 

the same losses arising from allegedly excessive administrative fees or imprudent investments, (2) 

caused by the same alleged breaches of fiduciary duties, (3) affecting the same Plans and funds. 

Cf. Spano, 633 F.3d at 586-87, 589-90. “Nothing more is required to satisfy Rule 23.” Kraft, 270 

F.R.D. at 367; see also Gamache v. Hogue, 338 F.R.D. 275, 288 (M.D. Ga. 2021) (“Plaintiffs have 

met their burden as to typicality. The members claims are based on the same events and legal 

theories: breach of fiduciary duties and monitoring the [plan].”) 

4. Adequacy. 

The final requirement of Rule 23(a) is that the Plaintiffs will fairly and adequately protect 

the interests of the Settlement Class. Fed. R. Civ. P. 23(a)(4). This requirement encompasses two 

inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the 

class; and (2) whether the representatives will adequately prosecute the action. Valley Drug Co. 

v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). 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, both proposed Class Representatives. were participants in the Plan and allegedly 

suffered a pro rata loss as a result of the Defendants’ 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. George v. Kraft Foods Global, Inc., 251 F.R.D. 338, 

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348 (N.D. Ill. 2008). Thus, the Class Representatives’ interests are fully aligned with the interests 

of Settlement Class Members. Furthermore, the Class Representatives 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, 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). Both Ms. Angelo 

and Ms. Thompson have that required understanding and have demonstrated a commitment to this 

case by providing support, including as to key terms of the Settlement in the months since the 

agreement was reached. 

Finally, as discussed further below, Class Counsel has significant experience in ERISA 

class actions. In sum, both Ms. Angelo and Ms. Thompson are adequate representatives of the 

proposed Settlement Class.

C. The Settlement Satisfies Rule 23(b)(1).

Fed. R. Civ. P. 23(b)(1)(B) provides that a class may be certified where “prosecuting 

separate actions by . . . individual class members would create a risk of . . . adjudications with 

respect to individual class members that, as a practical matter, would be dispositive of the interests 

of the other members not parties to the individual adjudications or would substantially impair or 

impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). Courts in this Circuit 

and elsewhere have certified classes in ERISA breach of fiduciary duty actions, like this case, 

under Rule 23(b)(1). See, e.g., Agnone v. Camden Cnty., Ga., No. 2:14-cv-00024-LGW-BKE, 

2019 WL 1368634, at *7–8 (S.D. Ga. Mar. 26, 2019); see also Clark v. Duke Univ., No. 1:16-CVCase 1:22-cv-22962-AHS Document 49 Entered on FLSD Docket 09/01/2023 Page 16 of 25
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1044, 2018 WL 1801946, at *9–10 (M.D.N.C. Apr. 13, 2018). Consistent with those decisions, 

the proposed Settlement Class satisfies Rule 23(b)(1). 

Rule 23(b)(1)(B) applies where “the shared character of rights claimed or relief awarded 

entails that any individual adjudication by a class member disposes of, or substantially affects, the 

interests of absent class members.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999). “Classic 

examples” of suits appropriate for class resolution under Rule 23(b)(1)(B) classes include “actions 

charging a breach of trust by a . . . fiduciary similarly affecting the members of a large class of 

beneficiaries, requiring an accounting or similar procedure to restore the subject of the trust.” Id. 

This is the type of case that Rule 23(b)(1) envisioned. Plaintiffs allege that the Defendants breached 

their fiduciary duties to the Plan and that the breach similarly affected all participants and 

beneficiaries of the Plan. Therefore, the proposed class therefore satisfies Rule 23(b)(1)(A). 

D. The Settlement Also Meets the Requirements of Rule 23(e) for Approval. 

After preliminarily certifying this case as a class action for settlement purposes pursuant to

Rule 23(a) and Rule 23(b)(1)(A), the Court should next look to Rule 23(e) to determine whether 

the settlement is fair, reasonable, and adequate. 

Rule 23(e) requires judicial approval of any settlement agreement that will bind absent 

class members. This involves a two-step process. Smith v. Wm. Wrigley Jr. Co., 2010 U.S. Dist. 

LEXIS 67832, at *5 (S.D. Fla. June 15, 2010); Holman v. Student Loan Xpress. Inc., 2009 U.S. 

Dist. LEXIS 113491, at *7 (M.D. Fla. Nov. 19, 2009). “In the first step of the process, a court 

should make a preliminary evaluation of the fairness of the settlement before directing that notice 

be given to the settlement class.” Smith, 2010 U.S. Dist. LEXIS at *5-6. Second, following 

preliminary approval of the settlement, class members are provided notice of a formal fairness 

hearing, at which time arguments and evidence may be presented in support of, or in opposition 

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to, the settlement. Id. The decision whether to approve a proposed class action settlement is 

“committed to the sound discretion of the district court.” In re U.S. Oil & Gas Litig., 967 F.2d 489, 

493 (11th Cir. 1992). In exercising this discretion, courts are mindful of the “strong judicial policy 

favoring settlement,” as well as “the realization that compromise is the essence of settlement.” 

Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). “Settlement agreements are highly 

favored in the law and will be upheld whenever possible because they are a means of amicably 

resolving doubts and uncertainties and preventing lawsuits.” Pierre-Val v. Buccaneers Ltd. Partn., 

2015 U.S. Dist. LEXIS 81518 at *2-3 (M.D. Fla. June 17, 2015) (quoting In re Nissan Motor Corp. 

Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir. 1977)). 

Under the first step of Rule 23(e)(2), Courts look to whether: (1) the class representative 

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. This standard is satisfied here, and the Court should enter an order 

Preliminarily Approving the Class Action Settlement Agreement.

1. The Class Representatives and Class Counsel Have Adequately 

Represented the Class. 

The proposed Class Representatives, Grace Angelo and Kerstin Thompson, along with

their counsel, adequately represented the class. This first Rule 23(e)(2) requirement encompasses 

two separate inquiries: (1) whether any substantial conflicts of interest exist between the 

representatives and the class; and (2) whether the representatives will adequately prosecute the 

action. Battle v. Law Offices of Charles W. McKinnon, P.L., 2013 U.S. Dist. LEXIS 29263, at *10 

(S.D. Fla. Mar. 5, 2013) (citing Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 

2008). 

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Here, the adequacy-of-representation requirement has been met. The proposed Class 

Representatives are adequate given that their interests align fully with those of the Settlement 

Class. They have both actively participated in settlement discussions, and have volunteered to 

assist counsel with whatever is necessary to ensure this settlement is held together. There are no 

obvious conflicts of interest between either Ms. Angelo nor Ms. Thompson and the Settlement 

Class. They, along with Class Counsel, secured a $615,000 settlement from a sophisticated and 

well-represented Defendants for the Settlement Class Members she seeks to represent.

With respect to Class Counsel, the proposed attorneys have decades of and extensive class 

action experience, as detailed in the supporting declarations attached to this Motion by Class 

Counsel, including Michael McKay from McKay Law, LLC, along with Luis A. Cabassa, Brandon 

J. Hill, and Amanda E. Heystek, of Wenzel Fenton Cabassa, P.A. While Mr. Behren is certainly 

an excellent attorney, Plaintiffs do not seek to include him as class counsel. 

For example, just a few months ago, Judge Singhal approved the undersigned, Luis A. 

Cabassa, Brandon J. Hill, and Amanda E. Heystek, of Wenzel Fenton Cabassa, P.A., as class 

counsel in an ERISA case styled Baja v. Costco Wholesale Corporation, Case No.: 0:21-cv-61210-

AHS (S.D. Fla. Dec. 19, 2022)(Doc. 56). Similarly, the proposed Class Counsel was appointed as 

class counsel in a similar 401k case brought against the University of Miami in Santiago et al v. 

University of Miami, 1:20-cv-21784-DPG (appointed as class counsel in ERISA class action 

involving university retirement plan and approximately 20,000 class members). 

When, as here, the Plaintiffs are represented by counsel who have significant experience in 

class-action litigation and a documented history of court-approved class action settlements in 

ERISA cases, 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. Thacker v. 

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Chesapeake Appalachia, L.L.C., 695 F. Supp. 2d 521, 532-33 (E.D. Ky. 2010) aff’d sub nom. 

Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235 (6th Cir. 2011) (“in 

deciding whether a proposed settlement warrants approval, the informed and reasoned judgment 

of plaintiffs’ counsel and their weighing of the relative risks and benefits of protracted litigation 

are entitled to great deference”). In evaluating class action settlements, the “Court is entitled to 

rely upon the judgment of experienced counsel for the parties . . . [and] should be hesitant to 

substitute its own judgment for that of counsel.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 

1977); see also In re Motorsports Merch. Antitrust Litig., 112 F. Supp. 2d 1329, 1333 (N.D. Ga. 

2000) (same). For these reasons, both the Plaintiffs and Class Counsel satisfy Rule 23(e)(2)’s 

adequacy requirement. 

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

Experienced Counsel Before a Neutral Mediator.

The proposed Settlement is the product of arm’s length negotiations and mediation between 

the Parties and their counsel. Thus, the next Rule 23(e)(2) factor is also satisfied. 

The Settlement was achieved only after arm’s-length negotiations between well-informed 

and experienced counsel after hard-fought motion practice and a substantial exchange of 

discovery. To be sure, 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 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 

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

1144, 1149 (11th Cir. 1983).

Besides being highly experienced, the Parties and counsel were well-informed of the 

potential strengths and weaknesses of their positions and conducted good faith negotiations in an 

effort to avoid costly and protracted litigation. Carpenters Health & Welfare Fund v. Coca-Cola 

Co., No. 00-2838, 2008 WL 11336122, at *8 (N.D. Ga. Oct. 20, 2008).

Additionally, the settlement was ultimately 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, the attorneys who conducted the negotiations for the Settlement Class have years 

of experience in conducting complex class action litigation and were thoroughly conversant with

the strengths and weaknesses of the case. Class Counsel’s decision on settlement should be given 

great deference. This also weighs in favor of approval. See Gevaerts v. TD Bank, N.A., No. 11:14-

CV-20744-RLR, 2015 WL 12533121, at *7 (S.D. Fla. Aug. 4, 2015) (“Plaintiffs’ counsel was also 

well-positioned to evaluate the strengths and weaknesses of Plaintiffs’ claims, as well as the 

appropriate basis upon which to settle them, as a result of similar class action cases Plaintiffs’ 

counsel has brought in the past.”).

3. The Settlement Provides Significant Relief to Class Members.

The Settlement will provide substantial relief to Settlement Class Members, satisfying the 

third Rule 23(e)(2) factor. In fact, the Settlement requires the Defendants to create a common fund 

of up to $615,000.00 for the benefit of the proposed Settlement Class. 

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Moreover, the $615,000.00 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 Decl. of Brandon J. Hill, ¶ 26.) 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 $615,000.00 cash payment represents a substantial recovery. These results are 

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

including the possibility of the Court ultimately finding no liability or the inability to prove 

damages. While Plaintiffs believe that the claims asserted against the Defendants are meritorious, 

Plaintiffs recognize that the Defendants strongly disagree and that Plaintiffs’ claims present a 

number of substantial risks to establishing both liability and damages. There is no certainty that 

Plaintiffs would beat Defendants’ motion to dismiss, avoided summary judgment, had a class 

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

Defendants mounted a vigorous defense to Plaintiffs’ claims and have set forth multiple defenses 

in their pleadings. 

Additionally, with respect to the primary question of liability, the Defendants claim that

they properly managed their retirement Plans and had prudent processes in place to evaluate the 

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Plans’ investments and their recordkeeping and administrative fees. The Defendants claim that 

their choices were within the range of choices made by other similarly-situated plan fiduciaries at 

the time they were made. The Defendants also contend that Plaintiffs overstated the potential 

damages they could recover at trial, even assuming Plaintiffs could establish liability. 

Notably, the only similar 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 the case against NYU 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 Settlement Fund. Even if the amount is less than the minimum 

that could have been recovered through successful litigation, the settlement is fair, reasonable, and 

adequate. 

4. The Proposal Treats Class Members Equitably Relative to Each 

Other. 

The last Rule 23(e)(2) factor is satisfied because the Settlement treats class members 

equitably. As discussed, the Settlement Class Members who with an active account in one or more 

Plans as of March 31, 2023, will receive automatic settlement payments made directly to their Plan 

account(s). 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 March 31, 2023, will simply

submit a claim form, which will entitle them to receive a settlement payment by check. A detailed 

“Plan of Allocation” summarized above is set forth in Section 6 of the Settlement Agreement. 

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5. The Settlement Will Avoid a Complex, Expensive, and Prolonged 

Legal Battle Between the Parties. 

Aside from the risks of litigation, continuing the litigation would have resulted in complex, 

costly, and lengthy proceedings before this Court and likely the Eleventh Circuit, which would 

have significantly delayed relief to Settlement Class Members, and might have resulted in no relief 

at all. Moreover, Defendant likely would have appealed any judgment entered against it, resulting 

in further expense and delay. Complex litigation like this “can occupy a court’s docket for years 

on end, depleting the resources of the parties and the taxpayers while rendering meaningful relief 

increasingly elusive.” Wald v. Wolfson (In re U.S. Oil and Gas), 967 F.2d 489, 493 (11th Cir.

1992). By entering into the Settlement now, Plaintiffs saved precious time and money, and avoided 

the risks associated with further litigation, trial, and appeals.

E. The Proposed Notices are Adequate, Appropriate, and Warranted.

Finally, due process and Federal Rule of Civil Procedure 23(e) do not require that each 

Settlement Class Member receive settlement notice, but they do require that settlement notice be 

“reasonably calculated, under the circumstances, to apprise interested parties of the pendency of 

the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover 

Bank and Trust Co., 339 U.S. 306, 314 (1950). “Individual notice must be provided to those class 

members who are identifiable through reasonable effort.” Eisen v. Carlisle and Jacquelin, 417 U.S. 

156, 175 (1974). As discussed above, the proposed form and method of Settlement Notice here 

satisfy all due process considerations and the requirements under Rule 23(e)(1). 

III. CONCLUSION 

The Court should grant Plaintiffs’ Unopposed Motion for Preliminary Approval of the 

Parties’ Class Action Settlement. A Proposed Order is attached as Exhibit 2 to the Settlement 

Agreement. 

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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 certifies that Defendants do not oppose this Motion. 

Dated this 1st day of September, 2023.

Respectfully submitted,

/s/ Brandon J. Hill

BRANDON J. HILL

Florida Bar Number: 37061

LUIS A. CABASSA, P.A.

Florida Bar Number: 0053643

WENZEL FENTON CABASSA, P.A.

1110 N. Florida Ave., Suite 300

Tampa, Florida 33602

Main: 813-224-0431

Facsimile: 813-229-8712

Email: bhill@wfclaw.com

Email: lcabassa@wfclaw.com

MICHAEL C. MCKAY

Pro Hac Vice 

MCKAY LAW, LLC

5635 N. Scottsdale Road, Suite 170

Scottsdale, Arizona 85250

Telephone: (480) 681-7000

Email: mckay@mckay.law

Class Counsel and Counsel for Kerstin Thompson

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of September, 2023, I electronically filed the foregoing 

with the Clerk of the Court through the CM/ECF system, which will send a notice of electronic 

filing to counsel for all parties of record.

/s/ Brandon J. Hill

BRANDON J. HILL

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