UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

 Case No. 1:17-cv-1153-MHW-KAJ

MEMORANDUM OF LAW IN 

SUPPORT OF PLAINTIFFS’ 

MOTION FOR PRELIMINARY 

APPROVAL OF CLASS 

ACTION SETTLEMENT

Julie Karpik, Michelle Lewis, Deborah Mondell, 

Robert Owen, Linda Humenik, Diane George, and 

Theodore George, individually and as representatives

of a class of similarly situated persons, and on behalf 

of the Huntington Investment and Tax Savings Plan,

Plaintiffs,

v.

Huntington Bancshares Incorporated, Huntington 

Bancshares Incorporated Board of Directors, and 

Huntington Bancshares Incorporated Investment and 

Administrative Committee, 

Defendants.

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INTRODUCTION

Plaintiffs Julie Karpik, Michelle Lewis, Deborah Mondell, Robert Owen, Linda Humenik, 

Diane George, and Ted George (“Plaintiffs”) submit this Memorandum in support of their Motion 

for Preliminary Approval of Class Action Settlement. A copy of the Class Action Settlement 

Agreement (“Settlement” or “Settlement Agreement”) is attached as Exhibit 1 to the 

accompanying Declaration of Kai Richter (“Richter Decl.”).1 This Settlement resolves Plaintiffs’ 

class action claims against Defendants Huntington Bancshares Incorporated (“Huntington”), the 

Huntington Board of Directors (“Board”), and the Huntington Investment and Administrative 

Committee (“Committee”) concerning Defendants’ administration and management of the 

Huntington 401(k) Plan, formerly known as the Huntington Investment and Tax Savings Plan 

(“Plan”).

Under the terms of the proposed Settlement, Huntington will pay a gross settlement amount 

of $10,500,000 into a common fund for the benefit of Settlement Class. This is a significant

recovery for the Class that falls well within the range of court-approved settlements in similar 

ERISA cases. As discussed below, the current Settlement is fair, reasonable, and adequate, and 

merits preliminary approval so that the proposed Notices can be sent to the Settlement Class. 

Among other things supporting preliminary approval:

• The Settlement was negotiated at arm’s length by experienced and capable counsel, after 

the Court’s ruling on a motion to dismiss and extensive discovery;

• The proposed Settlement Class is consistent with classes approved in other comparable 

ERISA cases;

• The Settlement Class has been vigorously represented by the Class Representatives and 

Class Counsel throughout the litigation;

1 Capitalized terms have the meaning assigned to them in Article 1 of the Settlement Agreement, 

unless otherwise specified herein.

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• The Settlement provides for significant monetary relief that will be distributed fairly and 

equitably to Class Members pursuant to a common Plan of Allocation;

• The Settlement provides for automatic distribution of the settlement funds to Current 

Participants and Former Participants in the Plan; 

• The Released Claims are tailored to the claims that were asserted in the action or could 

have been asserted based on the same factual predicate;

• The proposed Notice provides easy-to-understand information to Class Members about the 

Settlement, and will be distributed via first-class mail; and

• The Settlement Agreement provides Class Members the opportunity to raise any objections 

they may have to the Settlement and appear at a final Fairness Hearing.

Accordingly, Plaintiffs respectfully request that the Court enter an order: (1) preliminarily

approving the Settlement; (2) approving and authorizing distribution of the proposed Notice; (3) 

certifying the proposed Settlement Class for purposes of settlement; (4) scheduling a final Fairness

Hearing; and (5) granting such other relief as set forth in the proposed Preliminary Approval Order 

submitted herewith. This motion is not opposed by Defendants as parties to the Settlement.

BACKGROUND

I. PROCEDURAL HISTORY

A. Pleadings and Court Proceedings

Plaintiffs Julie Karpik, Michelle Lewis, Deborah Mondell, and Robert Owen filed this 

action on December 29, 2017, alleging that Huntington and related entities breached their fiduciary 

duties of prudence and loyalty under ERISA by selecting and retaining Huntington-managed 

investments for the Plan that were costlier and performed worse than non-proprietary alternatives, 

and engaged in transactions prohibited by ERISA. See ECF No. 1. Plaintiffslater filed an Amended 

Complaint that included three additional plaintiffs, Linda Humenik, Theodore George and Diane 

George. ECF No. 21. Defendants moved to dismiss, ECF No. 24, and on September 29, 2019, the 

Court granted in part and denied in part Defendants’ motion. ECF No. 53. The Court dismissed 

the prohibited transaction claims but allowed the breach of fiduciary duty claim to proceed. Id.

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B. Discovery, Mediation, and Settlement

Thereafter, the Parties engaged in extensive discovery. Defendants produced more than 

20,000 pages of documents, and the Class Representatives produced more than 9,000 pages.

Richter Decl. ¶ 11. Plaintiffs also subpoenaed five third parties and received over 1,100 documents 

as a result of the subpoenas. Id. ¶ 12. In addition, Class Counsel took the depositions of two fact 

witnesses, and Defendants took depositions of all seven Plaintiffs. Id. ¶ 13. 

On June 18, 2020, after this discovery was completed, the Parties participated in a 

mediation with Hunter Hughes III, a nationally respected mediator who has mediated numerous 

ERISA class actions. Id. ¶ 14. The parties submitted extensive mediation briefs in advance of the 

mediation. Id. ¶ 15. While they did not reach a settlement during the mediation session, the parties 

eventually agreed to a settlement amount recommended by the mediator. Id. ¶ 15. The terms of 

that agreement are memorialized in the Settlement Agreement that is the subject of this motion.

II. OVERVIEW OF SETTLEMENT TERMS

A. The Settlement Class

The Settlement Agreement applies to the following Settlement Class:

[A]ll participants and beneficiaries of the Huntington 401(k) Plan, formerly known 

as the Huntington Investment and Tax Savings Plan, from December 29, 2011

through the date of preliminary approval, excluding the Defendants or any Plan 

participant who is or was a fiduciary to the Plan during the Class Period.

See Settlement Agreement ¶ 1.38.

2 Based on information provided by the Plan’s recordkeeper, 

there are approximately 38,851 class members. Richter Decl. ¶ 3.

B. Monetary Relief

Under the Settlement, Huntington will contribute a Settlement Amount of $10.5 million to 

a common settlement fund (the “Settlement Fund”). Settlement Agreement ¶¶ 1.37, 3.1(a). After 

2 This Settlement Class is consistent with the class that Plaintiffs sought to certify for litigation 

purposes, see Am. Compl. ¶ 103 and now includes an end date for the Class Period.

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deducting any Attorneys’ Fees and Costs, Administrative Expenses, and Class Representative 

service awards approved by the Court, the remainder (known as the Distributable Settlement 

Amount) will be distributed to Class Members according to the Plan of Allocation in the 

Settlement. Id. ¶¶ 1.14,1.31, 3.2 & Ex. C.

Under the Plan of Allocation, 95% of the Distributable Settlement Amount will be 

allocated to the Investment Claim (the “Investment Pool”) and 5% will be allocated to the 

Recordkeeping Fee Claim (the “Recordkeeping Pool”). Id. Ex. C. This roughly approximates the 

relative proportion of damages that Plaintiffs claimed in connection with each type of claim. 

Richter Decl. ¶¶ 4, 7. Consistent with the claims that were asserted, the Investment Pool will be 

allocated among Class Members pro rata based on their quarterly balances invested in Huntington 

Funds during the Class Period. Settlement Agreement, Ex. C. The Recordkeeping Pool will be 

allocated among Class Members pro rata based on the number of quarters during the Class Period 

they had an account balance in the Plan, with quarters through the third quarter of 2016 weighted 

four times more heavily than subsequent quarters. Id. This weighting is also consistent with the 

claims that were asserted, as Plaintiffs alleged that the Plan’s recordkeeping expenses were higher 

prior to the third quarter of 2016 when The Huntington National Bank was the Plan’s recordkeeper, 

and later declined after Fidelity took over the recordkeeping function. Richter Decl. ¶ 4.

Current Participants’ accounts in the Plan will be automatically credited with their share of 

the Settlement Fund. Settlement Agreement ¶ 2.8. Former Participants, who do not have an account 

in the Plan, will also receive automatic distributions by check, and will have the opportunity to 

submit a Rollover Form allowing them to have their distribution rolled over into an individual 

retirement account or other eligible employer plan. Id. ¶ 2.7, 3.2 & Ex. C. Former Participants who 

do not timely submit a Rollover Form will be sent a check directly. Id. Ex. C.

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To minimize Administrative Costs, disbursements to Former Participants will be subject 

to a $15 de minimus threshold. Id. ¶ 3.2(d) & Ex. C. However, any individual allocations that do 

not meet the de minimus threshold will be reallocated among eligible Class Members prior to the 

distribution of funds. Id. Ex. C. Any checks that remain uncashed after the distribution of funds 

will revert to the Qualified Settlement Fund and will be paid to the Plan for the purpose of 

defraying administrative expenses. Id. ¶ 3.4.

C. Release of Claims

In exchange for this relief, the Settlement Class will release Defendants and affiliated 

persons and entities (the “Released Parties” as defined in the Settlement) from all claims that “have 

been asserted in this litigation or which could have been asserted based on the same factual 

predicate as those Claims.” Id. ¶ 1.33. This includes those that in any way arise out of, relate to, 

are based on, or have any connection with the Plan’s management and administration, including, 

but not limited to any fees, expenses, investment option performance, monitoring of investment 

options, revenue sharing, recordkeeping fees, administrative fees, total plan costs, the use of 

money market funds as investment options, share class of the investment options, or any other 

aspect of Plan administration or management, or would have been barred by res judicata had the 

Action been fully litigated to a final judgment. Id. 

E. Class Notice and Settlement Administration

Class Members will be sent a notice of the settlement (“Notice”) via U.S. Mail. Id. ¶¶ 2.7 

& Ex. B. The Notice sent to Former Participants will also include a Former Participant Rollover

Form enabling them to make the election described above. Id. ¶ 2.7 & Ex. E. These Notices provide 

information to the Settlement Class regarding, among other things: (1) the nature of the claims; (2) 

the scope of the Settlement Class; (3) the terms of the settlement; (4) the option for Former 

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Participants to submit Rollover Forms; (5) Settlement Class Members’ right to object to the 

Settlement and the deadline for doing so; (6) the class release; (7) the identity of Class Counsel 

and the amount of Attorneys’ Fees they will seek in connection with the Settlement; (8) the amount 

of any requested Class Representatives’ compensation; (9) the date, time, and location of the final 

approval hearing; and (10) Settlement Class Members’ right to appear at the final approval hearing. 

Id. Ex. B.

To the extent that Class Members would like more information about the Settlement, the 

Settlement Administrator will establish a Settlement Website on which it will post the Settlement 

Agreement, Notice, Former Participant Rollover Form, Amended Complaint, and other relevant 

case documents. Id. ¶ 2.10. In addition, the Settlement Administrator will establish a toll-free 

telephone line that will provide callers the option of speaking with a live operator if they have 

questions. Id. ¶ 2.11.

F. Attorneys’ Fees and Administrative Expenses

Under the Settlement, attorneys’ fees are subject to Court approval and will not exceed 

one-third of the Settlement Amount. Id. ¶ 7.2. In addition, the Settlement Agreement provides for 

recovery of litigation Costs and Administrative Expenses, id., and service awards of up to $7,500

per Class Representative. Id. ¶ 7.1. Any such awards shall be determined by the Court in its 

discretion and “shall be considered by the Court separately from its consideration of the fairness, 

reasonableness, and adequacy of the Settlement.” Id. ¶ 7.2(c).

G. Independent Fiduciary Review

Finally, as required under DOL regulations, the Settlement will be subject to review by an 

Independent Fiduciary acting on behalf of the Plan as well as the Court. Id. ¶ 2.6(b); see also 

Prohibited Transaction Exemption 2003-39, 68 Fed. Reg. 75632, as amended, 75 Fed. Reg. 33830 

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(“PTE 2003-39”). The Independent Fiduciary will issue its report at least 30 days before the final 

Fairness Hearing so that the Court may consider it. Id.

ARGUMENT

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 23(e) requires judicial approval of any settlement 

agreement that will bind absent class members. Approval is to be given if a settlement is untainted 

by collusion and is “’fair, reasonable, and adequate.’” Wright v. Premier Courier, Inc., 2018 WL

3966253, at * 3 (S.D. Ohio Aug. 17, 2018) (Watson, J.). The Sixth Circuit has recognized a “strong 

‘federal policy favoring settlement of class actions’” such as this. Stanley v. Turner Oil & Gas

Properties, Inc., 2018 WL 2268138, at *1 (S.D. Ohio Mar. 6, 2018) (quoting Sims v. Pfizer, Inc., 

2015 WL 12748836, at *1 (E.D. Mich. Nov. 13, 2015); Int’l Union, United Auto., Aerospace, & 

Agric. Implement Workers of Am. V. Gen. Motors Corp., 497 F.3d 16, 632 (6th Cir. 2007).

Settlement approval involves three stages: (1) preliminary approval; (2) notice to the Class; 

and (3) a fairness hearing and final approval. In Re Polyurethane Foam Antitrust Litig., 2012 WL 

12868246, at *4 (N.D. Ohio Jan 23, 2012) (citing Tenn. Assoc. of Health Maintenance Orgs., Inc. 

v. Grier, 262 F.3d 559, 565-66 (6th Cir. 2001)). At the preliminary approval stage, courts examine 

the proposed settlement for “obvious deficiencies” before determining whether it is in the “range 

of possible approval.” Garner Properties & Mgmt., LLC v. City of Inkster, 333 F.R.D. 614, 621 

(E.D. Mich. 2020) (citation omitted). The preliminary-approval inquiry the Court performs at this 

stage “is not an onerous one and can often ‘be made on the basis of information already known, 

supplemented as necessary by briefs, motions, or informal presentations by parties.’” Stanley, 

2018 WL 2268138, at *1 (citing Sims, 2015 WL 12748836, at *1 (E.D. Mich. Sept. 13, 2015)

(quoting Manual for Complex Litigation § 21.632 (4th ed. 2004)). The ultimate fairness 

determination is left for final approval, after class members receive notice of the settlement and 

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have an opportunity to be heard. 

In 2018, Rule 23(e) was amended to specify uniform standards for settlement approval. See 

Fed. R. Civ. P. 23(e) advisory committee note (2018). The amended rule states that, at the 

preliminary approval stage, the court must determine whether it “will likely be able to: (i) approve 

the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the 

proposal.” Fed. R. Civ. P. 23(e)(1)(B). Rule 23(e)(2), in turn, specifies the following factors the 

court must ultimately consider at the final approval stage in determining whether a settlement is 

“fair, reasonable, and adequate”: 

(A) the class representatives and class counsel have adequately represented the class;

(B) the proposal was negotiated at arm's length;

(C) the relief provided for the class is adequate, taking into account:

(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to the 

class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorney’s fees, including timing of 

payment; and

(iv) any agreement required to be identified under Rule 23(e)(3); and

(D) the proposal treats class members equitably relative to each other.

Fed. R. Civ. P. 23(e)(2). 

Courts within the Sixth Circuit have generally continued to apply the same “within the 

range of possible approval” standard to preliminary approval after the 2018 amendments. See 

Wallburn v. Lend-A-Hand Servs., LLC, 2019 2020 WL 2744101, at *7 (S.D. Ohio May 26, 2020); 

Garner, 333 F.R.D. at 626. “The goal of this amendment is not to displace any [existing] factor, 

but rather to focus the court ... on the core concerns of procedure and substance that should guide 

the decision whether to approve the proposal.” Fed. R. Civ. P. 23(e) advisory cmte note (2018). 

II. THE SETTLEMENT SATISFIES THE STANDARD FOR PRELIMINARY APPROVAL

As discussed below: (1) the settlement was negotiated at arm’s length by experienced 

counsel after extensive litigation with the help of a nationally respected mediator; (2) the Class 

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was adequately represented by the Class Representatives and Class Counsel; and (3) the relief 

provided is adequate and equitable to all Class Members. Accordingly, this Court should grant 

preliminary approval of the Settlement and authorize notice to the Class.

A. The Settlement Is the Product of Arm’s-Length Negotiations Facilitated by a 

Neutral Mediator After Extensive Litigation 

Courts consistently approve class action settlements reached through arms-length 

negotiations after meaningful discovery. See Koenig v. USA Hockey, 2012 WL 12926023, at *4 

(S.D. Ohio Jan. 10, 2012) (Watson, J) (“Based on the pleadings filed, as well as the discovery and 

mediation efforts, the Parties have a clear view of the strengths and weaknesses of their cases.”)

(citation omitted); Garner, 333 F.R.D. at 627; In re Polyurethane, 2012 WL 12868646, at *4. That 

is precisely the situation presented here. At all times, the parties negotiated at arm’s length. See 

Richter Decl., ¶ 14-15. Moreover, the parties engaged in extensive formal discovery, including 

both written discovery and deposition discovery, before engaging in mediation, and were further 

informed by the Court’s ruling on the motion to dismiss. This gave the parties a clear view of the 

facts and law, and the strengths and weaknesses of their case. 

Courts in this district have approved settlements where the proceedings were much less 

advanced. See In re Nationwide Fin. Servs. Litig., 2009 WL 8747486, at *4 (S.D. Ohio Aug. 19, 

2009) (approving settlement before the motion to dismiss stage); Barnes v. Winking Lizard, Inc., 

2019 WL 1614822, at *3 (N.D. Ohio Mar. 26, 2019) (approving settlement before any motion 

practice where parties had conducted only informal discovery to inform their views of the case); 

Moore v. Aerotek, Inc., 2017 WL 2838148, at *4 (S.D. Ohio June 30, 2017), report and 

recommendation adopted, 2017 WL 3142403 (S.D. Ohio July 25, 2017 (approving settlement 

where parties did not complete any formal discovery); Levell v. Monsanto Research Corp., 191 

F.R.D. 543, 557 (S.D. Ohio 2000) (same); see also Mees v. Skreened, Ltd., 2016 WL 67521, at *3 

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(S.D. Ohio Jan 26., 2016) (finding discovery adequately informed counsel where parties 

exchanged “thousands of pages” of documents but had yet to depose any witnesses). Based on the 

extensive record that was developed and the stage of the proceedings, there is no question that the 

parties had sufficient information to evaluate settlement. Further, the adversarial nature of the 

litigation and the involvement of a third-party mediator underscore that the parties dealt with each 

other at arm’s length. 

B. The Settlement Class Was Adequately Represented by the Class 

Representatives and Class Counsel, Who Support the Settlement

“The Sixth Circuit has held that, in the context of approving class action settlements, the

Court ‘should defer to the judgment of experienced counsel who has competently evaluated the

strength of his proofs.’” Smith v. Ajax Magnethermic Corp., 2007 WL 3355080, at *5 (N.D. Ohio 

Nov. 7, 2007) (quoting Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir.1983)); Wright, 2018 

WL 3966253, at *5. Once again, that is the situation presented here. 

“Plaintiffs’ counsel are experienced litigators who serve as class counsel in ERISA actions 

involving defined-contribution plans[.]” Moreno v. Deutsche Bank Americas Holding Corp., 2017 

WL 3868803, at *11 (S.D.N.Y. Sept. 5, 2017). As detailed in the accompanying attorney 

declaration, Nichols Kaster has (1) won favorable rulings on dispositive motions and/or class 

certification in over a dozen ERISA cases; (2) recently tried two ERISA class actions; (3) 

successfully litigated an appeal before the First Circuit in Brotherston v. Putnam Invs., LLC, 907 

F.3d 17 (1st Cir. 2018) (“Brotherston II”); and (4) negotiated numerous ERISA class action 

settlements in addition to the present Settlement. Richter Decl., ¶ 19. Accordingly, Class Counsel 

are clearly adequate to represent the class, and were well-equipped to negotiate the Settlement that 

was reached in this case. See Sims v. BB&T Corp., 2017 WL 3730552, at *5 (M.D.N.C. Aug. 28, 

2017) (“[T]he Court finds that the plaintiffs’ interests would be “fairly and adequately” represented 

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by appointment of... Nichols Kaster as class counsel.”). Based on their experience handling similar 

ERISA cases, and the record that was developed, Class Counsel have concluded that the relief 

provided by the Settlement is fair and reasonable. Richter Decl.. ¶ 15.

The Settlement Class Members also have been adequately represented by the Class 

Representatives in this case. The Class Representatives have fulfilled their duties to the class by 

(among other things) reviewing the complaints, producing documents, reviewing and signing 

written discovery responses, communicating regularly with Class Counsel, testifying at their 

depositions, and reviewing the proposed Settlement. See T. George Decl. ¶ 3; D. George Decl. ¶ 

3; Karpik Decl. ¶ 3; Lewis Decl. ¶ 3; Mondell Decl. ¶ 3; Owen Decl. ¶ 3; Humenik Decl. ¶ 3.

These are the type of actions that constitute adequate representation. See Willis v. Big Lots, Inc., 

242 F. Supp. 3d 634, 649–50 (S.D. Ohio 2017) (Watson, J) (finding class representatives 

adequately represented class by reviewing pleadings, assisting counsel in responding to requests 

for production and interrogatories, and being available for depositions). Each of the Class 

Representatives also have submitted declarations expressing their support for the Settlement. See 

T. George Decl. ¶ 6; D. George Decl. ¶ 6; Karpik Decl. ¶ 6; Lewis Decl. ¶ 6; Mondell Decl. ¶ 6;

Owen Decl. ¶ 6; Humenik Decl. ¶ 6.

C. The Settlement Provides Significant Relief to Class Members through an 

Effective Distribution Method and Treats Class Members Equitably

Both the Class Representatives and Class Counsel support the settlement because it 

represents a favorable outcome for the Settlement Class. The $10,500,000 settlement amount

speaks for itself. Indeed, this eight-figure recovery is substantial not only in the aggregate, but also 

as a percentage of Plan assets (approximately 1%). Richter Decl. ¶ 6. This compares favorably 

with other ERISA 401(k) settlements with banks that have received court approval, such as M&T 

Bank (0.88%), Deutsche Bank (0.65%), and BB&T (0.52%). Id.

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Moreover, the settlement also represents a significant portion of the damages that Plaintiffs 

calculated were caused by Defendants’ alleged fiduciary breaches. Richter Decl. ¶ 7. Plaintiffs’ 

calculated the following losses in preparation for their mediation:

• Investment Claim Losses : $33.7 million 

• Recordkeeping Claim Losses: $1.25 million

Id. The $10.5 million recovery represents approximately 30% of the total damages that Plaintiffs 

claimed were associated with Defendants’ alleged fiduciary breaches. Id. This also compares

favorably to other class action settlements. See, e.g., Sims v. BB&T Corp., 2019 WL 1995314, at 

*5 (M.D.N.C. May 6, 2019) (approving $24 million ERISA 401(k) settlement that represented 

19% of estimated damages, including damages due to excessive recordkeeping expenses);

Urakhchin v. Allianz Asset Mgmt. of Am., L.P., No. 8:15-cv-01614, ECF No. 185 (C.D. Cal. July 

30, 2018) (approving $12 million ERISA 401(k) settlement that represented approximately onequarter of estimated total plan-wide losses of $47 million). Johnson v. Fujitsu Tech. & Business of 

America, Inc., 2018 WL 2183253, at *6-7 (N.D. Cal. May 11, 2018) (approving $14 million 

ERISA 401(k) settlement that represented “just under 10% of the Plaintiffs’ most aggressive ‘all 

in’ measure of damages”); In re Polyurethane Foam Antitrust Litigation, 2015 WL 1639269, at *5 

(N.D. Ohio Feb. 26, 2015) (“A settlement figure that equates to roughly 18 percent of the bestcase-scenario classwide [damages] is an impressive result in view of these possible trial 

outcomes.”); Barnes, 2019 WL 1614822, at *5 (citing Dillworth v. Case Farms Processing, Inc.,

2010 WL 776933, at *8 (N.D. Ohio Mar. 8, 2010) (finding a recovery of around 1/3 of damages 

before deducting fees and costs was “well above” average)); see also In re Rite Aid Corp. Sec. 

Litig., 146 F. Supp. 2d 706, 715 (E.D. Pa. 2001) (noting that since 1995, class action settlements 

have typically “recovered between 5.5% and 6.2% of the class members’ estimated losses”).

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Finally, the recovery will be distributed equitably to class members pursuant to a Plan of 

Allocation based on the claims that were asserted in the action. See Settlement, Ex. C. This is also 

consistent with settlements approved in other cases.3

D. Plaintiffs Would Have Faced Potential Litigation Risks and Substantial Delay 

in the Absence of the Settlement

In the absence of a Settlement, Plaintiffs would have faced significant litigation risk. See 

In re Nationwide, 2009 WL 8747486, at *4 (noting that the risk of continued litigation includes 

the risk that there could be no recovery at all); Shanechian v. Macy’s, 2013 WL 12178108, at *4 

(S.D. Ohio June 25, 2013) (noting difficulty of proving both liability and damages at trial even 

where Plaintiffs prevailed on previous motion to dismiss and class certification rulings). These 

risks are illustrated by two recent trial judgments in favor of the defendants in ERISA breach of 

fiduciary duty cases involving defined contribution plans. See Wildman v. Am. Century Servs., 

LLC, 362 F. Supp. 3d 685 (W.D. Mo. 2019); Sacerdote v. New York Univ., 2018 WL 3629598, at 

(S.D.N.Y. July 31, 2018). Moreover, even if Plaintiffs established a fiduciary breach, it is 

“difficult” to measure damages in cases alleging imprudent or otherwise improper investments.

See Restatement (Third) of Trusts § 100 cmt. b(1). Thus, significant issues would have remained 

regarding proof of loss. See Sacerdote, 328 F. Supp. 3d at 280 (finding that “while there were 

deficiencies in the Committee’s [fiduciary] processes—including that several members displayed 

a concerning lack of knowledge relevant to the Committee’s mandate—plaintiffs have not proven 

that ... the Plans suffered losses as a result.”).4

3 See, e.g., Velazquez v. Mass. Fin. Servs., No. 1:17-cv-11249, ECF No. 91-1, ¶ 6.4.3 (June 14, 

2019); Sims v. BB&T, No. 1:15-cv-00732, ECF No. 436-2, ¶ 6.4.2 (Nov. 30, 2018); Urakhchin v. 

Allianz Asset Mgmt. of Am., L.P., No. 8:15-cv-01614, ECF No. 174-3, ¶ 6.4.3 (Dec. 26, 2017).

4 As a case in point, Class Counsel recently suffered an adverse judgment regarding a loss issue 

midtrial in an ERISA case against Putnam, later appealed to the First Circuit and prevailed on the 

same issue, and then settled the case before the trial was completed (following over four years of 

litigation). See Brotherston v. Putnam Invs., LLC, 907 F.3d 17 (1st Cir. 2018) (partly vacating

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While the outcome of the litigation was uncertain, there is little doubt that continued 

proceedings would have been complex, costly, and lengthy. As other courts have recognized, 

“ERISA is a complex field that involves difficult and novel legal theories and often leads to lengthy 

litigation.” Krueger v. Ameriprise, 2015 WL 4246879, at *1 (D. Minn. July 13, 2015); see also In 

re Marsh ERISA Litig., 265 F.R.D. 128, 138 (S.D.N.Y. 2010) (“Many courts have recognized the 

complexity of ERISA breach of fiduciary duty actions.”). Indeed, it is not unusual for these cases 

to extend for a decade or longer before final resolution. See Shanechian, 2013 WL 12178108, at 

*5 (finding ERISA case that had already lasted for six years could last for six more years absent a 

settlement); Tussey v. ABB Inc., 2017 WL 6343803, at *3 (W.D. Mo. Dec. 12, 2017) (requesting 

proposed findings more than ten years after suit was filed on December 29, 2006); Tibble v. Edison 

Int'l, 2017 WL 3523737, at *15 (C.D. Cal. Aug. 16, 2017) (outlining remaining issues ten years 

after suit was filed on August 16, 2007); Abbott v. Lockheed Martin Corp., 2015 WL 4398475, at 

*4 (S.D. Ill. July 17, 2015) (noting that the case had originally been filed on September 11, 2006).

Given the risks, cost, and delay of further litigation, it was reasonable and appropriate for 

Plaintiffs to reach a settlement on the terms that were negotiated. See Kruger v. Novant Health, 

Inc., 2016 WL 6769066, at *5 (M.D.N.C. Sept. 29, 2016) (stating that settlement of a 401(k) class 

action “benefits the employees and retirees in multiple ways”). One of the chief advantages of the 

Settlement in this case is that it provides immediate and guaranteed relief to the Class. 

III. THE CLASS NOTICE PLAN IS REASONABLE AND SHOULD BE APPROVED

In addition to reviewing the substance of the Settlement Agreement, the Court must ensure 

that notice is sent in a reasonable manner to all class members who would be bound by the 

judgment against Plaintiffs); Putnam Invs., LLC v. Brotherston, 140 S. Ct. 911, 205 L. Ed. 2d 455 

(2020) (denying defendants’ petition for certiorari); No. 15-13825, ECF No. 220 (D. Mass. Apr. 

29, 2020) (approving plaintiffs’ motion for preliminary approval).

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settlement. Fed. R. Civ. P. 23(e)(1). The “best notice” practicable under the circumstances includes 

individual notice to all class members who can be identified through reasonable effort. Fed. R. 

Civ. P. 23(c)(2)(B). That is precisely the type of notice proposed here. 

The Settlement Administrator will provide notice to the Settlement Class via U.S. Mail. 

Settlement Agreement ¶ 2.7. This type of notice is presumptively reasonable. See Phillips 

Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Moreover, the Notice will be supplemented 

through the Settlement Website and telephone support line. See supra at 6. This is more than 

sufficient to meet the standard under Rule 23, and is consistent with other ERISA settlements that 

have been approved.5 

The content of the Notice is also reasonable. The Notice includes, among other things: (1) 

a summary of the lawsuit; (2) a clear definition of the Settlement Class; (3) a description of the 

material terms of the Settlement; (4) a description of the claims being released; (5) instructions for 

submitting a Former Participant Rollover Form (if applicable); (6) instructions as to how to object 

to the Settlement and a date by which Settlement Class Members must object; (7) the date, time, 

and location of the final approval hearing; (8) contact information for the Settlement 

Administrator; (9) information regarding Class Counsel and the amount that Class Counsel will

seek in Attorneys’ Fees; and (10) the proposed service awards be paid from the Settlement 

Amount. Settlement Agreement Ex. B. This Notice is clearly reasonable as it “’fairly apprise[s] the 

prospective members of the class of the terms of the proposed settlement’ so that class members 

may come to their own conclusions about whether the settlement serves their interests.” Graybill 

5 See, e.g., Brotherston v. Putnam Invs., LLC, No. 1:15-cv-13825-WGY, ECF No. 220 (D. Mass. 

April 29, 2020) (approving substantially similar notice plan); Sims v. BB&T Corp., Nos. 1:15–cv–

732, 1:15–cv–841, ECF No. 439 (M.D.N.C. Dec. 13, 2018) (same); Moreno v. Deutsche Bank, 

No. 1:15 cv-09936-LGS, ECF No. 335 (S.D.N.Y. Oct. 9, 2018) (same); Urakhchin II, 2018 WL 

3000490, at *6-7 (same)

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v. Petta Enterprises, LLC, 2018 WL 4573289, at *3 (S.D. Ohio Sept. 25, 2018) (quoting Int’l 

Union, 497 F.3d at 630 (citation omitted)). 

IV. THE PROPOSED CLASS SHOULD BE CERTIFIED FOR SETTLEMENT PURPOSES

Finally, the Court should certify the Settlement Class for settlement purposes.

6 The 

proposed class is consistent with certified classes in several similar ERISA suits, as it includes all 

participants in the Plan except those with fiduciary responsibilities relating to the Plan.7 This class 

easily satisfies the requirements of Rules 23(a) and 23(b)(1).

A. The Requirements of Rule 23(a) are Satisfied

Rule 23(a) sets forth four requirements applicable to class actions: (1) numerosity; (2) 

commonality; (3) typicality; and (4) adequacy of representation. Amchem, 117 S. Ct. at 2245. 

Each of these requirements is met here.

1. Numerosity

Numerosity requires that the number of persons in the proposed class is so numerous that 

joinder of all class members would be impracticable. Fed. R. Civ. P. 23(a)(1). This standard is 

clearly met for the Settlement Class, as it includes approximately 38,851 persons. See Amos v. 

PPG Indus., Inc., 2018 WL 5259579, at *5 (S.D. Ohio Jan. 5. 2017) (citing Taylor v. CSX Transp., 

6

In the context of a settlement, class certification is more easily attained because the court need 

not inquire whether a trial of the action would be manageable on a class-wide basis. See Amchem 

Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for settlement-only 

class certification, a district court need not inquire whether the case, if tried, would present 

intractable management problems ... for the proposal is that there be no trial.”).

7 See, e.g., Wildman v. American Century Servs. LLC, No. 4:16-737, ECF 153 (W.D. Mo. Dec. 6, 

2017) (certifying class of all plan participants and beneficiaries excluding Defendants, members 

of the board, and “employees with responsibility for the Plan’s investment or administrative 

functions”); Moreno v. Deutsche Bank Americas Holding Corp., 2017 WL 3868803, at 11 

(S.D.N.Y Sept. 5, 2017) (“Moreno II”) (same); Urakhchin v. Allianz Asset Mgmt. of America, L.P., 

2017 WL 2655678, at *9 (C.D. Cal. June 15, 2017) (same); see also Moreno v. Deutsche Bank 

Americas Holding Corp., No. 1:15-cv-09936, ECF No. 347 at ¶ 3 (S.D.N.Y. Mar. 1, 2019) 

(certifying similar class for settlement purposes); Urakhchin v. Allianz Asset Mgmt. of America, 

L.P., No. 8:15-cv-1614, ECF No. 176 at 5-6 (C.D. Cal. June 15, 2017) (same).

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Inc., 264 F.R.D. 281, 288 (N.D. Ohio 2007) (finding numerosity satisfied at forty proposed class 

members); Kelly v. Montgomery Lynch & Assocs., Inc., 2007 WL 4562913, at *3 (N.D. Ohio Dec. 

19, 2007) (fifty); see also Bittinger v. Tecumseh Products Co., 123 F.3d 877, 884 at n.1 (6th Cir. 

1997) (Objection to numerosity of 1,100 was “frivolous”).

2. Commonality

Commonality requires the existence of “questions of law or fact common to the class.”

Fed. R. Civ. P. 23(a)(1). “[T]he commonality requirement is typically easily satisfied in ERISA 

cases.” Shanechian v. Macy’s, 2011 WL 883659, at *3 (S.D. Ohio March 10, 2011). Here, the 

lawsuit raised numerous common questions, including whether “Defendants’ process for 

assembling and monitoring the Plans’ menu of investment options . . . was tainted by a conflict of 

interest or imprudence and whether Defendants acted imprudently by failing to control 

recordkeeping expenses.” See Moreno, 2017 WL 3868803, at *15. Accordingly, the commonality 

requirement is satisfied. See, Shirk v. Fifth Third Bancorp, 2008 WL 4425535, at *2 (S.D. Ohio 

Sept. 30, 2008) (ERISA case finding commonality as to “whether the Defendants breached their 

fiduciary duties to the Plan and members of the class, [and] whether the Defendants failed to act 

prudently and solely in the interest of the Plan and the Plan's participants and beneficiaries”).

3. Typicality

The typicality requirement “tend[s] to merge” with the commonality requirement. Gen. 

Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 157 n.13 (1982). A class representative’s claim is 

typical if “it arises from the same event or practice or course of conduct that gives rise to the claims 

of other class members, and if his or her claims are based on the same legal theory.” Beattie v. 

CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (quotation omitted). This requirement is 

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satisfied in a breach of fiduciary duty case such as this, which is brought on behalf of the Plan.8

See Shirk, 2008 WL 4425535, at *3 (citations omitted) (“Generally, there is little doubt that a class

representative's breach of fiduciary duty claim is in every respect typical of those of his fellow 

class members. Typicality is further supported by the fact that ERISA contains unique standing

and remedial provisions that allow a participant who sues for a breach of fiduciary duty to obtain 

plan-wide relief.”); In Re Nortel Networks Corp. ERISA Litig., 2009 WL 3294827, at * 8 (M.D. 

Tenn. Sept. 2, 2009) (the fact that Plaintiffs bring the claims on behalf of the Plan “weigh[s] heavily 

in a Rule 23(a)(3) analysis of the parties' claims and defenses.”).

4. Adequacy

The fourth requirement under Rule 23(a) is that the Class Representatives and counsel 

“fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(a)(4). For the reasons 

discussed above, this requirement is satisfied. See supra at 10-11.

B. The Requirements of Rule 23(b)(1) Are Satisfied

The proposed class also satisfies Rule 23(b)(1). Under Rule 23(b)(1), a class may be 

certified if prosecution of separate actions by individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members 

that would establish incompatible standards of conduct for the party opposing 

the class; or 

(B) 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[.] 

8 Plaintiffs bring this action pursuant to 29 U.S.C. § 1132(a)(2) and (3), which provide that participants 

in an employee retirement plan may pursue a civil action on behalf of the plan to remedy breaches of 

fiduciary duties and other prohibited conduct, and to obtain monetary and appropriate equitable relief 

as set forth in 29 U.S.C. § 1109. Am. Compl. ¶ 9.

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Fed. R. Civ. P. 23(b)(1). Cases such as this, which involve allegations of fiduciary breaches to a 

trust or plan, are precisely the type of cases that are encompassed by the rule. See Ortiz v. 

Fibreboard Corp., 527 U.S. 815, 834 (1999) (noting that a breach of trust action is a “classic 

example” of a Rule 23(b)(1) class); Dudenhoeffer v. Fifth Third Bancorp, 2016 WL 9343955, at 

*2 (S.D. Ohio July 11, 2016) (finding ERISA 401(k) case a “paradigmatic example” of a 23(b)(1) 

class); In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 604 (3d Cir. 2009) (“In light of 

the derivative nature of ERISA § 502(a)(2) claims, breach of fiduciary duty claims brought under 

§ 502(a)(2) are paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) 

class, as numerous courts have held.”) (citing cases).

1. Rule 23(b)(1)(A)

Certification of the class under Rule 23(b)(1)(A) is proper because prosecution of 

individual actions would create incompatible standards of conduct for Defendants. The fiduciary 

duties imposed by ERISA are “duties with respect to a plan” that are intended to protect the 

“interest of the participants and beneficiaries” collectively. See 29 U.S.C. § 1104(a). Accordingly, 

“separate lawsuits by various individual Plan participants to vindicate the rights of the Plan could 

establish incompatible standards to govern Defendants’ conduct, such as ... determinations of 

differing ‘prudent alternatives’ against which to measure the proprietary investments, or an order 

that Defendants be removed as fiduciaries.” Ameriprise I, 304 F.R.D. at 577; see also Shanehchian 

v. Macy’s, Inc., 2011 WL 883659, *9 (S.D. Ohio Mar. 10, 2011) (“If liability is found in one court 

but not in another, Defendants would be left in limbo, having been vindicated with respect to their 

duties to the Plans in one court but subject to judgment that would vitiate that vindication in 

another, thus making compliance impossible.”); Harris v. Koenig, 271 F.R.D. 383, 394 (D.D.C. 

2010); Kanawi v. Bechtel Corp., 254 F.R.D. 102, 111 (N.D. Cal. 2008).

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2. Rule 23(b)(1)(B)

Likewise, because an adjudication on behalf of one participant of the Plan would 

effectively be dispositive of the claims of the other class members, class certification is also 

appropriate under Rule 23(b)(l)(B). See Moreno, 2017 WL 3868803, at *8. The Advisory 

Committee Notes to Rule 23 expressly recognize that class certification is appropriate under Rule 

23(b)(1)(B) in “an action which charges a breach of trust by an indenture trustee or other fiduciary 

similarly affecting the members of a large class of security holders or other beneficiaries, and 

which requires an accounting or like measures to restore the subject of the trust.” Fed. R. Civ. P. 

23, Advisory Committee Note (1966). “[T]his case falls squarely within the meaning articulated 

by the Advisory Committee as Plaintiff allege[s] breaches of fiduciary duties affecting the Plans

and the thousands of participants in the Plans.” Shanehchian, 2011 WL 883659, at *10. Numerous 

courts have granted certification under Rule 23(b)(1)(B) in similar cases.9

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court (1) preliminarily 

approve the Settlement; (2) approve the proposed Notice and authorize distribution of the Notice; 

(3) certify the Settlement Class; (4) schedule a final approval hearing; and (5) enter the 

accompanying Preliminary Approval Order.

9 See, e.g., Karg v. Transamerica Corp., 2020 WL 3400199 (N.D. Iowa March 25, 2020); Vellali 

v. Yale Univ., 2019 WL 5204456 (D. Conn. Sept. 24, 2019); Beach v. JPMorgan Chase Bank, 

Nat'l Ass'n, 2019 WL 2428631 (S.D.N.Y. June 11, 2019); Cassell v. Vanderbilt Univ., 2018 WL 

5264640 (M.D. Tenn. Oct. 23, 2018); Tracey v. MIT, 2018 WL 5114167 (D. Mass. Oct. 19, 2018); 

Henderson v. Emory Univ., 2018 WL 6332343 (N.D. Ga. Sept. 13, 2018); Short v. Brown Univ., 

320 F. Supp. 3d 363 (D.R.I. 2018); Clark v. Duke Univ., 2018 WL 1801946 (M.D.N.C. Apr. 13, 

2018); Sacerdote v. New York Univ., 2018 WL 840364 (S.D.N.Y. Feb. 13, 2018); Daugherty v. 

Univ. of Chicago, 2018 WL 1805646 (N.D. Ill. Jan. 10, 2018); Wildman v. Am. Century Servs., 

LLC, 2017 WL 6045487 (W.D. Mo. Dec. 6, 2017); Moreno I, 2017 WL 3868803, at *8; Urakhchin 

I, 2017 WL 2655678, at *8 (C.D. Cal. June 15, 2017); Ameriprise, 304 F.R.D. at 577; Shanehchian, 

2011 WL 883659, at *10.

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Dated: August 7, 2020 Respectfully Submitted,

NICHOLS KASTER, PLLP

By: /s/Kai Richter

Kai H. Richter, MN Bar No. 0296545*

Paul J. Lukas, MN Bar No. 22084X*

Brock J. Specht, MN Bar No. 0388343*

Brandon McDonough, MN Bar No. 0393259*

Ben Bauer, MN Bar No. 0398853*

* admitted pro hac vice

4600 IDS Center

80 S 8th Street

Minneapolis, MN 55402

Telephone: 612-256-3200

Facsimile: 612-338-4878

krichter@nka.com

lukas@nka.com

bspecht@nka.com

bmcdonough@nka.com

bbauer@nka.com

BARKAN MEIZLISH DEROSE WENTZ 

MCINERNEY PEIFFER, LLP

Robert E. DeRose (OH #0055214)

250 E. Broad Street, 10 Floor

Columbus, OH 43215

Telephone: (614) 221-4221

Facsimile: (614) 744-2300

bderose@barkanmeizlish.com

ATTORNEYS FOR PLAINTIFFS

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