UNITED STATES DISTRICT COURT 

SOUTHERN DISTIRCT OF FLORIDA

MIAMI DIVISION

CASE NO.: 

GARY CATENAC and AYANA KNOWLES, 

individually and as representatives of a class of 

participants and beneficiaries on behalf of the 

Lennar Corporation 401(K) Plan,

Plaintiffs,

vs.

LENNAR CORPORATION, 

Defendant.

CLASS ACTION COMPLAINT

Demand for Jury Trial

INTRODUCTION

On behalf of the Lennar Corporation 401(k) Plan (“Plan”), Gary Catenac and

Ayana Knowles (“Plaintiffs”), files this Class Action Complaint against Lennar 

Corporation, (“Lennar” or “Defendant”), for breaching its fiduciary duties of prudence

in violation of the Employee Retirement Income Security Act, 29 U.S.C. §§1001–1461 

(“ERISA”). 

BRIEF OVERVIEW

1. Defined contribution retirement plans, like the Plan, confer tax benefits on 

participating employees to incentivize saving for retirement. According to the 

Investment Company Institute, Americans held $7.9 trillion in employer-based defined 

contribution retirement plans as of March 31, 2020, of which $5.6 trillion was held in 

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401(k) plans. See INVESTMENT COMPANY INSTITUTE, Retirement Assets Total

$28.7 Trillion in First Quarter 2020 (June 17, 2020).

2. In a defined contribution plan, ‘“participants’ retirement benefits are 

limited to the value of their own individual investment accounts, which is determined 

by the market performance account contributions, less expenses.” Tibble v. Edison Int’l, 

575 U.S. 523 (2015). Because all risks related to high fees and poorly performing 

investments are borne by the participants, employers have little incentive to keep costs 

reasonable or to closely monitor plans to ensure every investment offered through a plan 

is prudent.

3. To safeguard plan participants and beneficiaries, ERISA imposes strict 

fiduciary duties of loyalty and prudence upon employers who sponsor retirement plan. 

29 U.S.C. § 1104(a)(1). These twin fiduciary duties are “the highest known to the law.” 

Sweda v. Univ. of Pennsylvania, 923 F.3d 320, 333 (3d Cir. 2019). Fiduciaries must act 

“solely in the interest of the participants and beneficiaries,” 29 U.S.C. § 1104(a)(1)(A), 

with the “care, skill, prudence, and diligence” that would be expected in managing a 

plan of similar scope. 29 U.S.C. § 1104(a)(1)(B).

4. Because retirement savings in defined contribution plans grow and 

compound over the course of employee participants’ careers, poor investment 

performance and excessive fees can and unfortunately often do dramatically reduce the 

amount of benefits available when the participant is ready to retire. Over time, even 

small differences in fees and performance compound and can result in vast differences 

in the amount of savings available at retirement. As the Supreme Court has explained, 

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“[e]xpenses, such as management or administrative fees, can sometimes significantly 

reduce the value of an account in a defined-contribution plan.” Tibble v. Edison Int’l,

135 S. Ct. 1823, 1825 (2015).

5. The U.S. Department of Labor has noted that a 1% higher level of fees

over a 35-year period makes a 28% difference in retirement assets at the end of a 

participant’s career. U.S. Dep’t of Labor, A Look at 401(k) Plan Fees, p. 2 (September, 

2019).

6. Plaintiffs are Plan participants. As of December 31, 2020 (the last year 

Lennar filed statutorily required Form 5500 information about the Plan with the 

Department of Labor), the Plan had $1,224,580,004 in assets (more than $1.2 billion)

and 12,958 participants with account balances. The Plan is one of the largest plans in 

the country. It is considered a jumbo or mega plan. 

7. The Plan has tremendous leverage to secure low fees and excellent 

investment options for Plan participants and beneficiaries. Instead of leveraging the 

Plan’s tremendous bargaining power to benefit participants and beneficiaries, Defendant 

caused the Plan to pay excessive fees and compensation to Prudential Retirement 

Insurance and Annuity company (“Prudential”).1 In short, Defendant violated its 

ERISA’s duty of prudence in three important ways. First, Defendant caused the Plan and 

its participants to pay Prudential excessive and unreasonable fees for administrative

 1 Effective April 1, 2022, Empower, a division of Great-West Life & Annuity Insurance 

Company, acquired the retirement business of Prudential. The Plan, in communications with 

participants uses references to “Prudential” and “Empower” interchangeably. For clarity, in this 

Complaint Plaintiff uses only the term “Prudential” to reference Prudential and/or Empower. 

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services. Defendant caused the Plan and its participants to pay Prudential more than triple 

the market rate for administrative services. This breach caused the plan losses of at least 

$450,000 per year during the relevant time period. Second, Defendant selected and 

retained on the Plan investment menu the Prudential Stable Value Fund. The Prudential 

Stable Value Fund consistently underperformed industry benchmarks; it underperformed

stable value funds offered by other investment companies; and it underperformed

virtually identical stable value funds offered by Prudential to other retirement plans. 

Worse still, Defendant allowed Prudential to steer Plan participants into the imprudent 

Prudential Stable Value Fund by allocating Plan participant money into the Prudential

Stable Value Fund when Plan participants did not direct their money to be invested 

elsewhere. As a result, there is more Plan participant money in the imprudent Prudential 

Stable Value Fund than in any other investment offered by the Plan. As of December 31, 

2020, there was $206,417,339 (over 200 million dollars) invested in the imprudent 

Prudential Stable Value Fund. Most Plan participants invested in the Prudential Stable 

Value Fund lost money relative to inflation. Prudential, on the other hand, was 

compensated by the Plan at least $5,000,000 per year during the relevant time period for 

investment in the Prudential Stable Value Fund. Defendant never undertook any 

reasonable investigation into the performance of the Prudential Stable Value Fund. 

Defendant never took any prudent measures to discover the actual compensation 

Prudential was pocketing from the Plan via the Prudential Stable Value Fund.

Consequently, not only have Plan participants been directly paying excessive fees to 

Prudential for administrative services but Prudential has also been receiving wildly 

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excessive compensation through the massive investment in its stable value fund. This 

breach caused Plan losses of at least $4,000,000 per year during the relevant time period.

Third, whenever a Plan participant deposits or withdraws money from his/her Plan 

account, the money is transferred to a clearing account owned by Prudential. The money 

is in Prudential’s possession, usually for several days while, until eventually the money 

is directed to wherever Plan participants initially requested. Prudential invests and earns 

income on the Plan participant money while it is in its clearing account. Defendant agreed 

that Prudential could keep all of the income and interest earned on Plan participant money 

while it is in Prudential’s account. This income is referred to as “float” income. There is 

nothing per se imprudent about Defendant allowing Prudential to keep the float income. 

Plaintiffs are not making this allegation. Plaintiffs do allege however, Defendant never 

monitored, tracked, negotiated, or factored the amount of float income that Prudential was 

receiving from Plan participants when assessing Prudential’s compensation from the 

Plan. In essence, Defendant allowed Prudential to make money with Plan participant 

money without any corresponding benefit, and Defendant was clueless to the amount of 

money Prudential was taking from Plan participants. This is a class breach of the duty of 

prudence. The breach caused the Plan losses of roughly $200,000 per year during the 

relevant time period. 

8. To the extent Defendant made any attempt to accurately identify the fair 

market value of the Plan’s expenses, to prudently monitor and review the Plan’s 

investment options, or identify the actual compensation received by Prudential from the 

Plan and its participants, Defendant employed flawed and ineffective processes, which 

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failed to ensure that expenses charged to Plan participants were reasonable and failed to 

ensure the compensation received by Prudential from Plan participants was reasonable. 

9. Defendant’s mismanagement of the Plan constitutes a breach of the 

fiduciary duty of prudence in violation of 29 U.S.C. § 1104. Defendant’s actions (and 

omissions) were contrary to actions of a reasonable fiduciary of a billion-dollar 

retirement plan and cost the Plan and its participants millions of dollars.

JURISDICTION AND VENUE

10. This Court has exclusive jurisdiction over the subject matter of this action 

under 29 U.S.C. §1132(e)(1) and 28 U.S.C. §1331 because it is an action under 29 

U.S.C. §1132(a)(2) and (3). 

11. This Judicial District is the proper venue for this action under 29 U.S.C. 

§1132(e)(2) and 28 U.S.C. §1391(b) because Lennar maintains its corporate 

headquarters in this District. 

THE PLAN

12. The Plan is a qualified retirement plan commonly referred to as a 401(k) 

plan. 

13. The Plan is established and maintained under written documents in 

accordance with 29 U.S.C. §1102(a)(1). 

14. More specifically, the Plan is a “defined contribution” or “individual 

account” plan within the meaning of ERISA § 3(34), 29 U.S.C. § 1002(34).

15. Eligible current and former employees of Lennar are eligible to participate 

in the Plan. The Plan provides the primary source of retirement income for many former 

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Lennar employees. The ultimate retirement benefit provided to participants depends on 

the performance of investment options chosen for the Plan by Defendant. 

16. In theory, Defendant determines the appropriateness of the Plan’s 

investment offerings, monitors investment performance, and reviews total plan and fund 

costs each year. Defendant failed to do so.

THE PARTIES

Plaintiffs & Standing 

17. Plaintiffs are participants in the Plan under 29 U.S.C. §1002(7).

18. Gary Catenac is a resident of Florida. He was employed by Defendant 

from 2013 to 2021. He was and is a member of the Plan. Through his individual account 

in the Plan, he invested in the Prudential Stable Value Fund. He also paid Prudential 

excessive administrative fees during the relevant time period. 

19. Ayana Knowles is a resident of Georgia. She has been employed since 

March 1, 2017. She is a member of the Plan. Through her individual account in the 

Plan, she invested in the Prudential Stable Value Fund. She also paid Prudential 

excessive administrative fees during the relevant time period. 

20. In terms of standing, §1132(a)(2) allows recovery for a “plan” and does 

not provide a remedy for individual injuries distinct from plan injuries. Here, the Plan 

suffered millions of dollars in losses caused by Defendant’s fiduciary breaches. 

21. The Plan continues suffering economic losses, and those injuries may be 

redressed by a judgment of this Court in favor of Plaintiffs and the Plan. The Plan is the 

victim of any fiduciary breach and the recipient of any recovery. Indeed, if Defendant 

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acted prudently, it would immediately correct the flaws identified in this Complaint to 

stop losses from continuing to occur to the Plan and its participants. 

22. Section 1132(a)(2) authorizes any Plan participant to sue derivatively as a 

representative of the Plan to seek relief on behalf of the Plan. 29 U.S.C. §1132(a)(2). As 

explained in detail below, the Plan suffered millions of dollars in losses caused by 

Defendant’s fiduciary breaches and the Plan remains exposed to harm and continued 

losses, and those injuries may be redressed by a judgment of this Court in favor of 

Plaintiffs. 

23. To the extent the Plaintiffs must also show individual injuries, even 

though §1132(a)(2) does not provide redress for individual injuries, Plaintiffs have

standing to bring this action on behalf of the Plan because they participated in the Plan, 

were invested in the stable value fund, were denied an opportunity to invest in a prudent 

stable value fund and were injured by Defendant’s unlawful conduct. 

24. To establish constitutional Article III standing, Plaintiffs need only show 

an adequate injury flowing from Defendant’s imprudent decisions or failures. Plaintiffs

have standing because the challenged conduct, including Defendant’s actions resulting 

in Plaintiffs paying excessive administrative fees, and excessive compensation to 

Prudential, which caused Plaintiffs’ financial losses and affected all Plan participants in 

the same way. 

25. For example, Plaintiffs’ individual accounts in the Plan suffered losses 

because each Plaintiffs’ account was assessed an excessive amount for administrative 

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fees, which would not have been incurred had Defendant discharged its fiduciary duties 

to the Plan and reduced those fees to a reasonable level.

26. Not only that, Plaintiffs and all participants in the Plan suffered financial 

harm as a result of Defendant’s inclusion of the imprudent Prudential Stable Value Fund

and deprived Plan participants of the opportunity to invest in a prudent stable value fund 

and to grow their retirement savings by investing in a prudent stable value fund with 

reasonable fees. All participants continue to be harmed by the ongoing inclusion of 

Defendant’s fiduciary breaches. 

27. As a result of Defendant’s imprudence, Plaintiffs and Plan participants are 

entitled to restitution in the amount of the difference between the value of their accounts

currently, or as of the time their accounts were distributed, and what their accounts are 

or would have been worth, but for Defendant’s breaches of fiduciary duty as described 

herein. 

Defendant

28. Lennar is the Plan sponsor and a statutory fiduciary of the Plan within the 

meaning of ERISA Section 3(21)(A), 29 U.S.C. § 1002(21)(A), because: (a) it is a 

named fiduciary under the Plan, (b) it exercised discretionary authority and control over 

Plan management and/or authority or control over management or disposition of Plan 

assets, and (c) represents to Plan participants that it is a fiduciary of the Plan.

29. Lennar sends Plan participants annual notices wherein Lennar 

acknowledges that it is Plan fiduciary and that it is Lennar’s fiduciary responsibility to 

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review compensation paid to third parties (Prudential) and the costs for each investment 

in the Plan.

30. Lennar was established in 1954 by Leonard Miller and Arnold Rosen.

Since its inception, Lennar has maintained its corporate headquarters in Miami, Florida. 

At all relevant times, Lennar has maintained its corporate headquarters at 700 NW 107th 

Avenue, Miami, Florida 33172.

CLASS ACTION ALLEGATIONS

31. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23 

on behalf of themselves and the following proposed class (“Class”):2 All persons, who 

were participants in or beneficiaries of the Plan, at any time between September 30, 

2016, and the present (the “Class Period”).

32. The members of the Class are so numerous that joinder of all members is 

impractical. According to the Plan’s 2020 Form 5500 filed with the U.S. Department 

of Labor, there were 12,958 Plan participants with account balances, as of December 

31, 2020.

33. Plaintiffs’ claims are typical of the claims of Class members. Like other 

Class members, Plaintiffs participated in the Plan and suffered injuries because of 

Defendant’s imprudence. Defendant treated Plaintiffs consistently with other Class 

members and managed the Plan as a single entity. Plaintiffs’ claims and the claims of 

all Class members arise out of the same conduct, policies, and practices of Defendant 

 2 Plaintiffs reserve the right to revise the proposed class definition in his motion for class 

certification or subsequent pleadings in this action.

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as alleged herein, and all members of the Class have been similarly affected by 

Defendant’s wrongful conduct.

34. There are questions of law and fact common to the Class, and these 

questions predominate over questions affecting only individual Class members. 

Common legal and factual questions include, but are not limited to:

A. Whether Defendant is a fiduciary of the Plan;

B. Whether Defendant breached its fiduciary duties of prudence by 

engaging in the conduct described herein;

C. Whether Defendant failed to adequately monitor Prudential’s 

compensation to ensure the Plan was being managed in compliance 

with ERISA;

D. The proper form of equitable and injunctive relief; and

E. The proper measure of all relief.

35. Plaintiffs will fairly and adequately represent the Class and have retained 

counsel experienced and competent in the prosecution of ERISA class action litigation. 

Plaintiffs have no interests antagonistic to those of other members of the Class. 

Plaintiffs are committed to the vigorous prosecution of this action and anticipate no 

difficulty in the management of this litigation as a class action.

36. This action may be properly certified under Fed. R. Civ. P. 23(b)(1). Class 

action status in this action is warranted under Fed. R. Civ. P. 23(b)(1)(A) because 

prosecution of separate actions by the members of the Class would create a risk of 

establishing incompatible standards of conduct for Defendant. Class action status is 

also warranted under Fed. R. Civ. P. 23(b)(1)(B) because prosecution of separate 

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actions by the members of the Class would create a risk of adjudications with respect 

to individual members of the Class that, as a practical matter, would be dispositive of 

the interests of other members not parties to this action, or that would substantially 

impair or impede their ability to protect their interests.

37. In the alternative, certification under Fed. R. Civ. P. 23(b)(2) is warranted 

because the Defendant has acted or refused to act on grounds generally applicable to 

the Class, thereby making appropriate final injunctive, declaratory, or other appropriate 

equitable relief with respect to the Class as a whole.

DEFENDANT’S FIDUCIARY BREACHES

38. ERISA requires every covered retirement plan to provide for one or more 

named fiduciaries who will have “authority to control and manage the operation and 

administration of the plan.” ERISA § 402(a)(1), 29 U.S.C. § 1102(a)(1).

39. ERISA treats as fiduciaries not only persons explicitly named as 

fiduciaries under § 402(a)(1), 29 U.S.C. § 1102(a)(1), but also any other persons who 

in fact perform fiduciary functions. Thus, a person is a fiduciary to the extent: “(i) he 

exercises any discretionary authority or discretionary control respecting management 

of such plan or exercise any authority or control respecting management or disposition 

of its assets, (ii) he renders investment advice for a fee or other compensation, direct or 

indirect, with respect to any moneys or other property of such plan, or has any authority 

or responsibility to do so, or (iii) he has any discretionary authority or discretionary 

responsibility in the administration of such plan.” ERISA § 3(21)(A)(i), 29 U.S.C. § 

1002(21)(A)(i).

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40. As described above, Defendant was (and still is a) fiduciary of the Plan 

because Lennar:

A. is so named; and/or

B. exercised authority or control respecting management or 

disposition of the Plan’s assets; and/or

C. exercised discretionary authority or discretionary control 

respecting management of the Plan’s fess, expenses, and 

compensation paid to Prudential; and/or

D. has discretionary authority or discretionary responsibility in the 

administration of the Plan.

41. As a fiduciary, Defendant was/is required by ERISA § 404(a)(1), 29 

U.S.C. § 1104(a)(1), to manage and administer the Plan’s fees and expenses, and the 

Plan’s investments, solely in the interest of the Plan’s participants and beneficiaries and 

with the care, skill, prudence, and diligence under the circumstances then prevailing 

that a prudent person acting in a like capacity and familiar with such matters would use 

in the conduct of an enterprise of a like character and with like aims. 

42. “In deciding whether and to what extent to invest in a particular 

investment, a fiduciary must ordinarily consider only factors relating to the interests 

of plan participants and beneficiaries in their retirement income. A decision to make 

an investment may not be influenced by non-economic factors unless the investment, 

when judged solely on the basis of its economic value to the plan, would be equal or 

superior to alternative investments available to the plan.” U.S. Dep’t of Labor ERISA 

Adv. Op. 88-16A, 1988 WL 222716, at *3 (Dec. 19, 1988) (emphasis added).

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43. ERISA also “imposes a ‘prudent person’ standard by which to measure 

fiduciaries’ investment decisions and disposition of assets.” Fifth Third Bancorp v. 

Dudenhoeffer, 573 U.S. 409 (2014) (quotation omitted). In addition to a duty to select 

prudent investments, under ERISA a fiduciary “has a continuing duty to monitor [plan] 

investments and remove imprudent ones” that exist in a plan, which is “separate and 

apart from the [fiduciary’s] duty to exercise prudence in selecting investments.” Tibble, 

575 U.S. 523. “[A] fiduciary cannot free himself from his duty to act as a prudent man 

simply by arguing that other funds...could theoretically, in combination, create a prudent 

portfolio.” In re Am. Int'l Grp., Inc. ERISA Litig. II, No. 08 CIV. 5722 LTS KNF, 2011 

WL 1226459, at *4 (S.D.N.Y. Mar. 31, 2011) (quoting DiFelice v. U.S. Airways, Inc., 

497 F.3d 410, 418 n.3, 423–24 (4th Cir. 2007)).

44. In addition, ERISA § 405(a), 29 U.S.C. § 1105(a) (entitled “Liability for 

breach by co-fiduciary”) provides:

[I]n addition to any liability which he may have under any 

other provision of this part, a fiduciary with respect to a plan 

shall be liable for a breach of fiduciary responsibility of 

another fiduciary with respect to the same plan in the 

following circumstances: (A) if he participates knowingly in, 

or knowingly undertakes to conceal, an act or omission of 

such other fiduciary, knowing such an act or omission is a 

breach; (B) if, by his failure to comply with section 404(a)(1), 

29 U.S.C. §1104(a)(1), in the administration of his specific 

responsibilities which give rise to his status as a fiduciary, he 

has enabled such other fiduciary to commit a breach; or (C) 

if he has knowledge of a breach by such other fiduciary, 

unless he makes reasonable efforts under the circumstances 

to remedy the breach.

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45. During the Class Period, Defendant did not act prudently or in the best 

interests of the Plan’s participants. 

46. During the Class Period, Defendant failed to have a proper system in place 

to ensure that participants in the Plan were being charged appropriate and reasonable 

fees for administrative services. Defendant also caused the Plan and its participants to 

pay excessive compensation to Prudential via its stable value fund and receipt of float 

income. Not only did Defendant fail to have a proper system in place, but Defendant 

failed to control fees and compensation as a prudent fiduciary would have done. 

47. As set forth in detail below, Defendant breached fiduciary duties to the 

Plan and its participants and beneficiaries, and is, therefore, liable for their breaches 

under 29 U.S.C. §§ 1104(a)(1) and 1105(a).

SPECIFIC ALLEGATIONS

Improper Management of the Plan Cost the Plan’s Participants Millions in Savings

48. Wasting Plan participant retirement savings is imprudent. “In devising and 

implementing strategies for the investment and management of trust assets, trustees are 

obligated to minimize costs.” Uniform Prudent Investor Act (the “UPIA”) § 7.

49. “The Restatement...instructs that ‘cost-conscious management is 

fundamental to prudence in the investment function,’ and should be applied ‘not only in 

making investments but also in monitoring and reviewing investments.’” Tibble v. 

Edison Int’l, 843 F.3d 1187, 1197–98 (9th Cir. 2016) (quoting Restatement (Third) of 

Trust § 90, cmt. b). See also U.S. Dep’t of Labor, A Look at 401(k) Plan Fees, at 2 (Aug. 

2013) (“You should be aware that your employer also has a specific obligation to 

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consider the fees and expenses paid by your plan ... Employers are held to a high 

standard of care and diligence and must discharge their duties solely in the interest of 

the plan participants and their beneficiaries.”).3

50. Most participants in 401(k) plans expect that their 401(k) accounts will be 

their principal source of income after retirement. “The 401(k) is the major source people 

think they are going to rely on.”4 Although at all times 401(k) accounts are fully funded, 

that does not prevent plan participants from losing money on poor investment choices 

of plan sponsors, whether due to poor performance, high fees, or both.

51. Indeed, the Department of Labor has stated that employers are held to a 

“high standard of care and diligence” and must both “establish a prudent process for 

selecting investment options and service providers” and to “monitor investment options 

and service providers once selected to see that they continue to be appropriate choices,” 

among other duties. See “A Look at 401(k) Plan Fees,” supra.

52. The duty to evaluate and monitor fees and investment costs includes fees 

paid directly by plan participants to investment providers, usually in the form of an 

expense ratio or a percentage of assets under management within a particular 

investment. See Investment Company Institute (“ICI”), The Economics of Providing 

401(k) Plans: Services, Fees, and Expenses, at 4 (July 2016).5 “Any costs not paid by 

 3 Available at: https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resourcecenter/publications/a-look-at-401k-plan-fees.pdf (last visited September 27, 2022). 

4 Brandon, Emily, “10 Essential Sources of Retirement Income,” (May 6, 2011), available at:

https://money.usnews.com/money/retirement/slideshows/10-essential-sources-of-retirementincome (last visited September 27, 2022).

5 Available at: https://www.ici.org/pdf/per22-04.pdf (last visited September 27, 2022).

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the employer, which may include administrative, investment, legal, and compliance 

costs, effectively are paid by plan participants.” Id. at 5.

53. The fiduciary task of evaluating investments and investigating comparable 

alternatives in the marketplace is made much simpler by the advent of independent 

research from services like Morningstar, which categorizes funds to “help investors and 

investment professionals make meaningful comparisons between funds. The categories 

make it easier to build well-diversified portfolios, assess potential risk, and identify topperforming funds. [Morningstar] place funds in a given category based on their portfolio 

statistics and compositions over the past three years.”6

Defendant Failed to Monitor or Control the 

Plan’s Administrative Expenses

54. The term “recordkeeping” is a catchall term for the suite of administrative 

services typically provided to a defined contribution plan by the plan’s “recordkeeper.”

Beyond simple provision of account statements to participants, it is quite common for 

the recordkeeper to provide a broad range of services to a defined contribution plan as 

part of its package of services. These services can include claims processing, trustee 

services, participant education, managed account services, participant loan processing, 

Qualified Domestic Relations Order (“QDRO”) processing, preparation of disclosures, 

self-directed brokerage accounts, investment consulting, and general consulting 

services. 

 6 Available at http://www.morningstar.com/InvGlossary/morningstar_category.aspx (last 

visited September 11, 2022). 

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55. Virtually all recordkeepers in the marketplace offer nearly identical

services.

56. The market for recordkeeping is highly competitive, with many vendors 

equally capable of providing a high-level (i.e., identical) services. As a result of such 

competition, vendors vigorously compete for business by offering the best price when 

prudent fiduciaries request or negotiate the best price. But absent prudent fiduciaries 

requesting or negotiating reasonable prices for recordkeeping services, recordkeepers 

often demand excessive and unreasonable fees for their services – on the theory that if 

imprudent fiduciaries are willing to pay excessive and unreasonable fees for 

recordkeeping, so much the better for the recordkeepers who pocket the fees – and the 

onus is on the fiduciaries to negotiate fair pricing, not on the recordkeepers to do so. 

57. According to a study conducted by Deloitte Consulting LLP for the 

Investment Company Institute, on average, administrative expenses – the largest of which,

by far, is recordkeeping – make up 18% of total plan fees. See Inside the Structure of 

Defined Contribution/401(k) Plan Fees, 2013: A study assessing the mechanics of the 

‘all-in’ fee, at 17 (Aug. 2014) (stating: “recordkeeping, administrative and financial 

advice fees made up 18% of total fees”).7

58. The cost of providing recordkeeping services depends on the number of 

participants in a plan. Plans with large numbers of participants can take advantage of 

economies of scale by negotiating a lower per-participant recordkeeping fee. Because 

 7

Available at https://www2.deloitte.com/content/dam/Deloitte/us/Documents/human-capital/uscons-401k-fee-study-2013-082014.pdf (last visited Oct. 24, 2020). 

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recordkeeping expenses are driven by the number of participants in a plan, most plans 

are charged on a per-participant basis.

59. Recordkeeping expenses can either be paid directly on a per-participant 

basis. Recordkeeping expenses can also be paid indirectly by discretely, in many 

instances almost imperceptibly, taking money from Plan participants’ investment 

balances. This is a practice known as revenue sharing (the name is a misnomer because 

recordkeepers surreptitiously take money from participant investments regardless of 

whether the investments increase in value of decease in value. There is no actual 

“revenue sharing.”) 

60. Utilizing a revenue sharing approach is not per se imprudent. Plaintiffs

are not making a claim against Defendant merely because they used revenue sharing to 

pay Prudential for recordkeeping. If Defendant makes this argument in a motion to 

dismiss – the argument is disingenuous.

61. When revenue sharing is left unchecked, however, it can be devastating

for Plan participants. “At worst, revenue sharing is a way to hide fees participants pay 

to invest in retirement plans. Nobody sees the money change hands, and very few 

understand what the total investment expense pays for – or how much they are actually 

paying for recordkeeping when the direct expenses and the indirect expenses (revenue 

sharing) are totaled. Defendant here does not disclose in any meaningful way to Plan 

participants how much Plan participants pay in revenue sharing. This is likely because

Defendant itself does not even know what Plan participants pay in revenue sharing.

Revenue sharing is a deceptive construct designed to milk large sums of money out of 

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large plans by charging a percentage-based fee that never goes down (when plans are 

ignored or taken advantage of). In some cases, employers and employees believe the 

plan is ‘free’ when it is in fact expensive.” Justin Pritchard, “Revenue Sharing and 

Invisible Fees.”8

 

62. Because revenue sharing payments are asset based, they bear no relation

to a reasonable recordkeeping fee. They can (and frankly are designed) to provide 

excessive compensation to recordkeepers because as Plan assets increase so do the fees.

Again, it is important to emphasize that fees obtained through revenue sharing are 

tethered not to any actual services provided to the Plan; but rather, to a percentage of 

assets in the Plan and/or investments in mutual funds in the Plan. As the assets in the 

Plan increase, so too increases the recordkeeping fees that recordkeepers pocket from 

the Plan and its participants. One commentator likened this fee arrangement to hiring a 

plumber to fix a leaky gasket but paying the plumber not on actual work provided but 

based on the amount of water that flows through the pipe. If asset-based fees are not 

monitored, the fees skyrocket as more money flows into the Plan.

63. It is well-established that plan fiduciaries have an obligation to monitor 

and control recordkeeping fees to ensure that such fees remain reasonable. See, e.g.,

Tussey v. ABB, Inc., 746 F.3d 327, 336 (8th Cir. 2014) (“Tussey II”) (holding that 

fiduciaries of a 401(k) plan “breach[] their fiduciary duties” when they “fail[] to monitor 

and control recordkeeping fees” incurred by the plan). Excessive expenses “decrease [an 

 8 Available at: http://www.cccandc.com/p/revenue-sharing-and-invisible-fees (last visited 

September 27, 2022).

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account’s] immediate value” and “depriv[es] the participant of the prospective value of 

funds that would have continued to grow if not taken out in fees.” Sweda, 923 F.3d at 

328. No matter the method of payment or fee collection, the fiduciary must understand 

the total amount paid the recordkeeper and per-participant fees and determine whether 

pricing is competitive. See Tussey II, 746 F.3d at 336. Thus, defined contribution plan 

fiduciaries have an ongoing duty to ensure that the recordkeeper’s fees are reasonable. 

64. Prudent fiduciaries implement three related processes to prudently 

manage and control a plan’s recordkeeping costs. First, they must closely monitor the 

recordkeeping fees being paid by the plan. A prudent fiduciary tracks the recordkeeper’s 

expenses by demanding documents that summarize and contextualize the 

recordkeeper’s compensation, such as fee transparencies, fee analyses, fee summaries, 

relationship pricing analyses, cost-competitiveness analyses, and multi-practice and 

stand-alone pricing reports.

65. Second, in order to make an informed evaluation as to whether a 

recordkeeper or other service provider is receiving no more than a reasonable fee for the 

services provided to a plan, a prudent fiduciary must identify all fees, including direct 

compensation indirect compensation through revenue sharing being paid to the plan’s 

recordkeeper. To the extent that a plan’s investments pay asset-based revenue sharing 

to the recordkeeper, prudent fiduciaries closely monitor the amount of the payments to 

ensure that the recordkeeper’s total compensation from all sources does not exceed 

reasonable levels and require that any revenue sharing payments that exceed a 

reasonable level be returned to the plan and its participants.

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66. Third, the plan’s fiduciaries must remain informed about overall trends in 

the marketplace regarding the fees being paid by other plans, as well as the 

recordkeeping rates that are available. This will generally include conducting a Request 

for Proposal (“RFP”) process at reasonable intervals, and immediately if the plan’s 

recordkeeping expenses have grown significantly or appear high in relation to the 

general marketplace. More specifically, an RFP should happen at least every three to 

five years as a matter of course, and more frequently if the plans experience an increase 

in recordkeeping costs or fee benchmarking reveals the recordkeeper’s compensation to 

exceed levels found in other, similar plans. George v. Kraft Foods Global, Inc., 641 F.3d 

786, 800 (7th Cir. 2011); Kruger v. Novant Health, Inc., 131 F. Supp. 3d 470, 479 

(M.D.N.C. 2015).

67. Defendant failed to prudently manage and control the Plan’s 

recordkeeping fees by failing to undertake any of the aforementioned steps. 

68. More specifically, Prudential has been the Plan’s recordkeepers during the 

Class Period. 

69. According to Plan documents obtained thus far, including statutorily 

required Form 5500 disclosures made by the Plan to the Department of Labor, 

Defendant has failed to undertake an RFP during the class period. If Defendant had 

undertaken an RFP to compare Prudential’s fees with those of others in the marketplace, 

Defendant would have recognized that Prudential’s direct fees for recordkeeping 

services during the Class Period have been (and remain) unreasonable and excessive. 

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70. From 2017 to 2020 the direct annual recordkeeping per participant 

compensation that Prudential received from Plan participants as disclosed in the Plan’s 

Department of Labor annual 5500 disclosures was as follows:

Year Direct Recordkeeping 

Compensation

2017 $41.10

2018 $48.41

2019 $53.19

2020 $52.86

71. Defendant disclosed to Plan participants in the Plan’s Summary Plan 

Description, dated January 1, 2021, that a “Quarterly Administrative Fee” in the amount 

of $25.00 per quarter, or $100.00 per year may be taken directly from Plan participants 

with account balances in excess of $2,500.00 by Prudential for recordkeeping fees. 

72. These amounts do not include indirect compensation that Prudential

receives from the Plan via revenue sharing, float, spread, etc. By comparison to other 

plans, even Prudential’s direct fees are excessive and unreasonably high. For instance, 

the 401k Averages Book (20th ed. 2020), examined recordkeeping fees for plans with 

less $200 million in assets (i.e., substantially smaller than the Plan) and provides the 

average recordkeeping and administration cost (through direct compensation) is $12 per 

participant. 401k Averages Book at 95. 

73. Just recently, in Moitoso v. FMP LLC, the parties involved in that case 

came to an agreement that if Fidelity Management Trust Company (one of the largest 

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recordkeepers for retirement plans) were a negotiating recordkeeping fees at arm’s 

length for a plan of $1 billion or more, that recordkeeping costs would range from $14 

to $21 per person per year.9

74. The direct compensation Prudential received from the Plan for 

recordkeeping was excessive. Moreover, Prudential did not receive only the direct 

compensation set forth above—it received far more compensation for recordkeeping and 

other administrative services through indirect compensation, including revenue sharing 

payments. 

75. As one industry expert has noted: “If you don’t establish tight control, the 

growth of your plan’s assets over time may lead to higher than reasonable amounts 

getting paid to service providers. This is because most revenue sharing is asset-based. If 

a recordkeeper’s workload is about the same this year as last, why should they get more 

compensation just because the market had a big year and inflated the asset base? In a 

large plan, this phenomenon can lead to six figure comp bloat over time. That’s bad for 

plan participants and bad for fiduciaries.” Jim Phillips, (b)est Practices: What Do You 

Know About Revenue Sharing?, PLANSPONSOR.com (June 6, 2014).

76. According to Plan’s Department of Labor Form 5500’s, Plan participants 

paid to Prudential both disclosed direct payments for recordkeeping services and 

undisclosed payments for recordkeeping services.

 9 Moitoso v. FMR LLC, Civil Action 18-12122-WGY (US Dist. of Mass.) decided Mar 27, 

2020.

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77. Specifically, the Plan paid substantial amounts through revenue sharing 

arrangements with the various fund families through which the Plan offers investment 

options. See Form 5500 for 2020, Schedule C (reporting only that Prudential received 

indirect compensation without disclosing the amounts of such compensation). As 

discussed below, the indirect compensation Prudential received derives not only from 

revenue sharing but also from float and spread compensation. Defendant has breached 

its fiduciary duties of prudence by allowing Prudential to pocket excessive fees from 

throughout the Class Period. 

78. As noted above, Defendant agreed that anytime Plan participants deposit 

or withdraw money from their individual accounts, that the money will first pass through 

a Prudential clearing account. 

79. Defendant agreed Prudential could keep all of the interest and investment 

related revenue earned on Plan participant money while participant money is in

Prudential’s clearing account (often for several days). This is another form of indirect 

compensation that Prudential receives from the Plan. Because there is over $1.2 billion 

in the Plan, the float compensation Prudential receives from the Plan is substantial. The 

Plan’s 2020 5500 provides that there were $25,026,970 in contributions to the Plan in 

2020, and $116,575,779 in expenses, or money paid out of the Plan in 2020. Thus, in 

2020 alone, Prudential earned interest and investment related revenue on more than 

$141,000,000 ($141 million) of Plan participant money while the money was in 

Prudential’s account. But Defendant did not take any measures to understand, account 

for, negotiate, limit, or end altogether this compensation. A prudent fiduciary is required 

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to do so under ERISA. Defendant’s imprudence caused the Plan losses. Had prudential 

earned 1% on the $141,000,000 it would have pocketed $1,410,000 ($1.4 million) in 

2020 alone from float alone. The numbers are staggering. 

80. Defendant breached its fiduciary duties of prudence by allowing 

Prudential to receive float compensation from Plan participants without even knowing 

the amount of such compensation or factoring in the amount of such compensation into 

the total amount of compensation Defendant agreed Lennar could take from Plan 

participant retirement savings. 

81. The total compensation Defendant allowed the Plan to pay Prudential is

far greater than recognized reasonable compensation for a plan with more than $1.2

billion in assets. Given the growth and size of the Plan’s assets during the Class Period, 

in addition to the general trend towards lower plan administrative expenses in the 

marketplace as a whole, the Plan could have obtained administrative services that were 

comparable to or superior to the services provided to the Plan by Prudential but at a 

fraction of the cost to Plan participants. 

82. Prudential performs task for the Plan such as validating payroll data, 

tracking employee eligibility and contributions, verifying participant status, 

recordkeeping, and information management (computing, tabulating, data processing, 

etc.) The services that Prudential provides are nothing out of the ordinary, and a prudent 

fiduciary would have observed the excessive compensation paid to Prudential and taken 

corrective action. 

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83. Looking at administrative costs for other plans of a similar size as of 

2019/2020 shows that the Plan was paying higher fees than its peers too – an indication 

the Plan’s fiduciaries failed to appreciate the prevailing circumstances surrounding 

recordkeeping and administration fees. The chart10 below analyzes a few well managed 

similar plans:

Name of 

Plan

Total 

Number of 

Participants

Dollar Value 

of Plan Assets

Total Reported 

Recordkeeping 

and 

Administrative 

Service Costs

Recordkeeping 

and 

Administrative 

Service Costs 

on a PerParticipant 

Basis11

Sutter Health 

403(b) 

Savings Plan

67,149 $5,565,602,878 $1,719,469 $25

Kaiser 

Permanente 

Supplemental 

Savings and 

Retirement 

Plan

48,263 $4,516,280,538 $1,758,659 $27

The Rite Aid 

401(k) Plan

31,330 $2,668,142,111 $930,019 $30

IQVIA 

401(k) Plan

25,083 $2,456,483,287 $439,126 $17.50

84. Thus, Defendant should have been able to negotiate a total recordkeeping 

cost anywhere from $14 per participant to $30 from the beginning of the Class Period 

 10 Calculations are based on Form 5500 information filed by the respective plans for fiscal 

2019/202, which are the most recent years for which many plans’ Form 5500s are currently 

available

11 R&A costs in the chart are derived from Schedule C of the Form 5500s and reflect fees paid 

to service providers with a service code of “15” and/or “64,” which signifies recordkeeping fees. 

See Instructions for Form 5500 (2019) at pg. 27 (defining each service code), available at 

https://www .dol.gov/sites/dolgov/files/EBSA/employers-and-advisers/plan-administrationand-compliance/ reporting-and-filing/form-5500/2019-instructions.pdf.

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to the present. Plan participants are paying Prudential in excess of $250 via direct and 

indirect forms of compensation. 

85. In sum, given the size of the Plan’s assets during the Class Period and total 

number of participants, in addition to the general trend towards lower administrative

expenses in the marketplace as a whole, Defendant could have obtained for the Plan 

administrative services that were comparable to or superior to the typical services 

provided by Prudential at a lower cost. Defendant failed to do so and, as a result, 

violated its fiduciary duties under ERISA.

Prudential Stable Value Fund

86. Stable value funds are a staple of defined contribution plans. They provide 

liquidity, principal protection, and consistent returns over time. 

87. Stable value funds are intended to provide the liquidity and principal 

protection of a money market fund, but with higher returns that are closer to shortintermediate bond funds.

88. Stable value funds are able to generate these higher returns because 401(k) 

participant behavior provides a stable amount of money to be invested in the account 

over time. This enables funds providers to offer better crediting rates (the rate of return) 

and to guarantee participants will not lose money by guaranteeing the funds transacts at 

face value. Stable value funds also “stabilize” the returns through the use of an imbedded 

Case 1:22-cv-23232-KMW Document 1 Entered on FLSD Docket 10/05/2022 Page 28 of 38
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formula which is part of the contract with the plan that smooths out the volatility of the 

fund resulting from fluctuations in interest rates associated with bond funds.12

89. In most cases, stable value products use a guaranteed investment contracts

also known as “GICS” or “wraps” that have specialized risk and return characteristics.13

In the vast majority of cases, stable value funds are not mutual funds and are typically 

structured as: (1) an insurance company general account; (ii) an insurance company 

separate account; or (iii) a synthetic account. 

90. Large plans often offer synthetic accounts, which are the least risky 

because principal is guaranteed by multiple “wrap providers” and the fund owns the 

assets of the underlying funds.14

91. Separate account products, where the assets of the underlying funds are 

held in the separate account of an insurance carrier, are riskier because there is only one 

“wrap” provider. As a result, they offer higher crediting rates. Separate account 

products, such as the Prudential PPSA, where the funds are held unrestricted in the 

general account of the insurance carrier, are the riskiest type of stable value funds and 

consequently must offer the highest rates.

 12 See Stable Value Fund v. Money Market Fund, Financial Web describing difference between 

stable value funds and money market funds, available at http://www.finweb.com/investing 

/stable-value-fund-vs-moeny-market-fund.html#axzz44-EaLfQnQ. 

13 See https://stablevalue.org/knowledge/faqs/question/what-are-gics-and-wraps.

14 Stable value funds invest in fixed-income securities and wrap contracts offered by banks and 

insurance companies. Wrap contracts guarantee a certain return even if the underlying 

investments decline in value. To support that guarantee, a wrap contract relied on both the value 

of the associated assets and the financial backing of the wrap provider. 

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92. Following the high-profile failure or near failure of a number of stable 

value providers during the credit crisis of 2008-09, the trend among fiduciaries is to 

avoid general account stable value funds because of credit risk concerns.

93. During the Class Period, the Plan offered one stable value product, the 

Prudential Stable Value Fund. 

94. The Prudential Stable Value Fund is a general account product established 

pursuant to a contract between Lennar and Prudential. The invested funds are deposited 

by Prudential into its general account. 

95. Thus, the Prudential Stable Value Fund is subject to a single entity credit 

risk, of Prudential, the issuer of the contract. 

96. The crediting rate – set in advance by Prudential at its sole discretion – is 

not tied to the performance of the assets deposited into the Principal Stable Value Fund. 

97. Because the crediting rate is set in advance, Defendant has both the 

opportunity and the duty to evaluate the investment in advance. 

98. The fact that the funds are deposited into Prudential’s general account 

enables Prudential to earn a “spread” equal to the difference between the crediting rate 

and the returns earned by Prudential from the general account funds.

99. Prudential earns a “spread” equal to the difference between the 0.00-

2.34%. 2.08%. The average return for Plan participants invested in the Prudential Stable 

Value Fund is 1.57% over the past one year, and 2.08% over the past 3 years. The 

average return over the past month is .11%. 

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100. Defendant does not require Prudential to provide information regarding 

the performance of the general account into which the Plan participants’ funds were 

invested. 

101. In addition, Defendant does not require Prudential to disclose the “spread” 

to either the Plan or to the participants. 

102. Thus, neither Defendant nor the Plan participants know the “spread” on 

Plan participant money being collected by Prudential. 

103. Upon information and belief, the spread was consistently 400 basis points 

or more. 

104. That is, Prudential is collecting, and participants are paying, a 4% fee to 

obtain a return of .11%-2.08% on their investments. 

105. Defendant’s 403(b) Disclosure fails to provide benchmark information for 

the Prudential Stable Value Fund too. As a result, participants cannot evaluate the 

performance of the Prudential Stable Value Fund relative to other stable value funds that 

are available in the marketplace. 

106. The Prudential Stable Value Fund contractually allows Prudential to pay 

Plan participants invested in the fund no return. It is a “heads I win, tails you lose” 

investment vehicle for Prudential. 

107. Lennar did not have a viable methodology for monitoring the cost or 

performance of the Prudential stable Value Fund. Not only were comparable products 

available from other providers (New York Life, Vanguard, TIAA, Putnam, etc.) with 

higher crediting rates, but virtually identical products were available from Prudential 

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itself with higher crediting rates and lower spread fees. In fact, the Prudential Stable 

Value Fund consistently returned 200 basis points less than the very same type of fund 

offered by Prudential to other similarly situated retirement plans. By way of one 

example, attached hereto as Exhibit A is Fact Sheet for the “Lennar” Prudential Stable 

Value Fund. The Fact Sheet shows the fund has a current crediting rate of 1.28%. 

Attached hereto as Exhibit B, is a Fact Sheet for a Prudential stable value fund generally 

available to the public. Exhibit B shows essentially the same fund is being offered with 

a crediting rate of 2.43% -- or nearly double the crediting rate of what is in the Plan. 

108. Lennar did not have to scour the marketplace to find a better performing 

fund, it simply had to make an effort, which it failed to make, to determine whether the 

same fund was available at a lower cost. Fact sheets showing the available crediting 

rates of market rate Prudential stable value funds (Exhibit A) and similar products from 

other providers were readily available had Lennar exercised even a minimal amount of

due diligence.

109. There is more than $200,000,000 ($200 million) of Plan participant money 

invested in the Prudential Stable Value Fund. There is more Plan participant money in 

the Prudential Stable Value Fund than any other investment on the Plan’s investment 

menu. 

110. The amount of money in the Prudential Stable Value Fund is a direct result 

of Defendant’s use of a Prudential asset allocation service called “GoalMaker.” 

111. GoalMaker was represented by Defendant to participants as a service that 

would guide and assist participants to a model portfolio of investments available in the 

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Plan and then rebalance accounts quarterly to ensure participants investment portfolios 

stay on target.

112. But, in reality, GoalMaker is used to funnel money into Prudential 

proprietary investment products. Hence, the reason why there is more than $200 million

of Plan participant money invested in the Prudential Stable Value Fund. Indeed, in some 

instances, GoalMaker allocates 44% of all contributions in Plan participants’ accounts 

into the Prudential Stable Value Fund. 

113. To make matters worse, Defendant selected GoalMaker to be the 

Qualified Default Investment Alternative (“QDIA”) for the Plan. That means whenever 

a Plan participant does not affirmatively elect how to invest new contributions to his/her 

account, GoalMaker will allocate the funds to investments selected by GoalMaker, 

primarily, Prudential proprietary funds like the Prudential Stable Value Fund. 

114. There is a crucial distinction in evaluating a stable value product’s returns 

against investment returns available elsewhere. Because the product’s performance over 

a given period is declared six months in advance, the plan fiduciary knows six months 

in advance what the returns will be.

115. The plan fiduciary also knows that, because of the manner in which 

crediting rates are calculated, the product is less sensitive to interest rates than bond 

funds. Consequently, a stable value product that performs well generally continues to 

perform well, in a stable manner. A stable value product that performs poorly, such as 

the Prudential Stable Value Fund, generally continues to perform poorly in a stable 

manner.

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116. A prudent fiduciary – that is, a fiduciary that monitors the investment, 

understands the pricing mechanism, and informs itself of the crediting rates and spread 

fees available in the market – would have known that Prudential’s stable value product 

would underperform and that being a stable value product it would continue to 

underperform in a stable manner.

117. A prudent fiduciary would have monitored the investment, understood the 

pricing mechanism, and informed itself regarding reasonable market rate crediting rates and 

spread fees. 

118. A prudent fiduciary would have learned that the Prudential Stable Value Fund 

was under-performing and divested the Plan of the Prudential Stable Value Fund.

119. The consequence of failing to monitor the stable value product was particularly 

significant here. Prudential, the stable value provider, was also the investment platform provider 

and the supplier of GoalMaker, which Prudential applied in a self-dealing manner to steer Plan 

participants to proprietary Prudential products and products paying kickbacks to Prudential. 

General account stable value funds can be tremendously profitable for the issuing insurance 

company because of the spread. The excessive spread in this case resulted in a windfall to 

Prudential, whose compensation Lennar had a legal duty to monitor, but which duty Lennar 

failed to discharge in spectacular fashion. 

120. On the basis of the excessive spread fees alone, the Prudential Stable Value Fund 

was an imprudent investment which should have been removed from the Plan.

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CLAIM FOR RELIEF

Breach of ERISA’s Fiduciary Duty of Prudence

121. Plaintiffsre-allege and incorporate herein by reference all prior allegations 

in this Complaint as if fully set forth herein.

122. The scope of the fiduciary duties and responsibilities of Lennar includes 

managing the assets of the Plan for the sole and exclusive benefit of Plan participants 

and beneficiaries, defraying reasonable excess expenses of administering the Plan, and 

acting with the care, skill, diligence, and prudence required by ERISA. Lennar is directly 

responsible for ensuring that the Plan’s fees are reasonable, evaluating and monitoring 

the Plan’s investments on an ongoing basis and eliminating imprudent ones, and taking 

all necessary steps to ensure that the Plan’s assets are invested prudently. In order to do 

so, Lennar had to have a viable, documented process and methodology for monitoring 

the Plan’s investment and expenses.

123. As the Supreme Court recently confirmed, ERISA’s “duty of prudence 

involves a continuing duty to monitor investments and remove imprudent ones[.]” 

Tibble, 135 S. Ct. at 1829. 

124. Thus, to state a claim upon which relief can be granted, “A plaintiff may 

allege that a fiduciary breached the duty of prudence by failing to properly monitor 

investments and remove imprudent ones.” Id.

125. Lennar failed to implement a prudent process of the selection, monitoring, 

and retention or, as the case may be, removal of the Prudential Stable Value Fund.

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126. Lennar also failed to prudently monitor and control the total compensation 

Plan participants paid Prudential for administrative services. 

127. Lennar failed to discharge its duties with respect to the Plan with the care, 

skill, prudence, and diligence under the circumstances then prevailing that a prudent 

man acting in a like capacity and familiar with such matters would use in the conduct of 

an enterprise of a like character and with like aims. 

128. Lennar breached its fiduciary duty of prudence under 29 U.S.C. § 

1104(a)(1)(B). Lennar is liable under 29 U.S.C. § 1109(a) to make good to the Plan any 

losses to the Plan resulting from the breaches of fiduciary duty of prudence and is subject 

to other equitable or remedial relief as appropriate. 

129. Total Plan losses will be determined at trial after complete discovery in 

this case and are illustrated herein based upon the limited information that has been 

made available to Plan participants to date.

PRAYER FOR RELIEF

For these reasons, Plaintiffs, on behalf of the Plan and all similarly situated Plan 

participants and beneficiaries, respectfully request that the Court: 

1. Find and declare that the Defendant has breached its fiduciary duties as 

described above; 

2. Find and adjudge that Defendant is personally liable to make good to the 

Plan all losses to the Plan resulting from each breach of fiduciary duties, and to otherwise 

restore the Plan to the position it would have occupied but for the breaches of fiduciary 

duty; 

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3. Determine the method by which Plan losses under 29 U.S.C. §1109(a) 

should be calculated; 

4. Order Defendant to provide all accountings necessary to determine the 

amounts Defendant must make good to the Plan under §1109(a); 

5. Remove the fiduciaries who have breached their fiduciary duties and 

enjoin them from future ERISA violations; 

6. Surcharge against Defendant and in favor of the Plan all amounts involved 

in any transactions which such accounting reveals were improper, excessive and/or in 

violation of ERISA; 

7. Reform the Plan to include only prudent investments; 

8. Reform the Plan to obtain bids for recordkeeping and to pay only 

reasonable recordkeeping expenses; 

9. Certify the Class, appoint the Plaintiffs as class representatives, and 

appoint their counsel as Class Counsel; 

10. Award to the Plaintiffs and the Class their attorney’s fees and costs under 

29 U.S.C. §1132(g)(1) and the common fund doctrine; 

11. Order the payment of interest to the extent it is allowed by law; and 

12. Grant other equitable or remedial relief as the Court deems appropriate. 

Case 1:22-cv-23232-KMW Document 1 Entered on FLSD Docket 10/05/2022 Page 37 of 38
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Dated this 5th day of October, 2022. 

Respectfully submitted,

/s/ Brandon J. Hill

BRANDON J. HILL

Florida Bar Number: 0037061

Direct Dial: 813-337-7992

LUIS A. CABASSA

Florida Bar Number: 053643

Direct No.: 813-379-2565

AMANDA E. HEYSTEK

Florida Bar Number: 0285020

Direct Dial: 813-379-2560

WENZEL FENTON CABASSA, P.A.

1110 N. Florida Avenue, Suite 300

Tampa, Florida 33602

Main Number: 813-224-0431

Facsimile: 813-229-8712

Email: bhill@wfclaw.com

Email: lcabassa@wfclaw.com

Email: aheystek@wfclaw.com

Email: gnichols@wfclaw.com

and

MARC R. EDELMAN

Florida Bar No. 0096342

MORGAN & MORGAN, P.A.

201 N. Franklin Street, Suite 700

Tampa, FL 33602

Telephone: 813-223-5505

Facsimile: 813-257-0572

Email: medelman@forthepeople.com

Attorneys for Plaintiffs and the Proposed 

Class

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