UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

 Case No. 2:17-cv-1153-MHW-KAJ

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on February 9, 2021 at 10:00 a.m., before the Honorable 

Michael H. Watson, United States District Judge, Joseph P. Kinneary United States Courthouse, 

85 Marconi Boulevard, Columbus, Ohio 43215, Plaintiffs Julie Karpik, Michelle Lewis, Deborah 

Mondell, Robert Owen, Linda Humenik, Diane George, and Theodore George (“Plaintiffs”) will 

and hereby do move this Court for an Order approving the following distributions from the 

Settlement Fund: (1) attorneys’ fees to Class Counsel in the amount of $3,500,000 (one-third of 

the Settlement Fund); (2) $61,512.35 in litigation expenses that Class Counsel incurred in 

connection with this action; (3) $107,214 in Administrative Costs associated with the Settlement; 

and (4) class representative service awards in the amount of $7,500 to each of the named Plaintiffs 

($52,500 total).

PLAINTIFFS’ MOTION FOR 

ATTORNEYS’ FEES AND 

EXPENSES, 

ADMINISTRATIVE COSTS, 

AND CLASS 

REPRESENTATIVE SERVICE 

AWARDS

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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This motion is made pursuant to Federal Rule of Civil Procedure 23(h) and Article 7 of the 

Parties’ Class Action Settlement Agreement (ECF No. 67-03), and is based on the accompanying 

Memorandum of Law and authorities cited therein, the Declaration of Kai Richter and exhibits 

attached thereto, the Declaration of Robert DeRose, the previously filed declarations of the Class 

Representatives (ECF Nos. 67-07, 67-08, 67-09, 67-10, 67-11, 67-12, 67-13), the Settlement 

Agreement, and all files, records, and proceedings in this matter. 

Counsel for Plaintiffs have conferred with counsel for Defendants regarding this motion 

and have been advised that Defendants take no position on the motion.

Dated: January 5, 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*

Ben Bauer, MN Bar No. 0398853*

* admitted pro hac vice

4700 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

bbauer@nka.com

BARKAN MEIZLISH DEROSE WENTZ 

MCINERNEY PEIFFER, LLP

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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 

AND THE SETTLEMENT CLASS

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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR 

ATTORNEYS’ FEES AND EXPENSES, ADMINISTRATIVE COSTS, AND CLASS 

REPRESENTATIVE SERVICE AWARDS

INTRODUCTION

In light of the Settlement that they have achieved for the participants and beneficiaries of 

the Huntington 401(k) (“Plan”),1 Plaintiffs and their counsel, Nichols Kaster PLLP and Barkan 

Meizlish DeRose Wentz McInerny Peifer LLP (“Class Counsel”), respectfully petition the Court

to approve the following distributions from the Settlement Fund: (1) attorneys’ fees in the amount 

of $3,500,000 (one-third of the Settlement Fund); (2) $61,512.35 in litigation expenses; (3)

$107,214 in Administrative Costs; and (4) service awards of $7,500 to each of the named Plaintiffs. 

As discussed below, Class Counsel successfully pursued this complicated ERISA class 

action involving one of the country’s largest 401(k) plans, and invested significant time and 

financial resources on behalf of the Settlement Class. Because of their efforts, Class Counsel have 

achieved a Settlement that provides $10.5 million in relief to the Class. To date, Class Counsel 

have received no payment for any of their efforts in this litigation, nor have they received 

reimbursement for any of the out-of-pocket expenses that they have advanced. All compensation 

to Class Counsel is contingent upon the Court’s approval of fees and expenses as provided in the 

Settlement. Likewise, the named Plaintiffs have not received any compensation for the time they 

have invested in the litigation, the benefits they have provided the Settlement Class, or the risks 

they undertook in bringing this action. 

In similar cases, “courts have found that ‘[a] one-third fee is consistent with the market 

rate’ in a complex ERISA 401(k) fee case such as this[.]” Kruger v. Novant Health, Inc., 2016 WL 

1 The Plan was formerly known as the Huntington Investment and Tax Savings Plan.

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6769066, at *2 (M.D.N.C. Sept. 29, 2016);

2

see also, e.g., Dudenheoffer v. Fifth Third Bancorp, 

2016 WL 8135394, at *1 (S.D. Ohio July 11, 2016) (approving one-third fee in ERISA class case); 

Stevens v. SEI Invs. Co., 2020 WL 996418, at *14 (E.D. Pa. Feb. 28, 2020) (approving one-third 

fee to Nichols Kaster, PLLP in ERISA class action); Sims v. BB&T Corp., 2019 WL 1993519, at 

*2 (M.D.N.C. May 6, 2019) (same); In re M&T Bank Corp. ERISA Litig., No. 1:16-cv-375, ECF 

No. 190 at ¶ 1 (W.D.N.Y. Sept. 3, 2020) (same); Clark v. Oasis Outsourcing Holdings Inc., No. 

18-81101, ECF No. 23 ¶ 1 (S.D. Fla. Dec. 20, 2018) (same); Andrus v. New York Life Ins. Co., No. 

16-05698, ECF No. 83 at ¶ 1 (S.D.N.Y. June 15, 2017) (same); Larson v. Allina Health System, 

No. 0:17-cv-03835, ECF No. 132 at ¶¶ 4-5 (D. Minn. May 22, 2020) (same). Likewise, the 

proposed $7,500 service awards are reasonable compared to those approved in other cases. See 

e.g., Clark, No. 18-81101, ECF No. 23 ¶ 3 (S.D. Fla. Dec. 20, 2018) (approving $7,500 service 

award to named plaintiffs in ERISA action); Stevens, 2020 WL 996418, at *14 (approving $10,000 

service award to named plaintiff in ERISA action); In re M&T Bank Corp. ERISA Litig., No. 1:16-

cv-00375, ECF No. 190 at ¶ 4 (same); Andrus, No. 16-05698, ECF No. 83 at ¶ 4 (same); see also 

Sims, 2019 WL 1993519, at *4 (approving $20,000 service award to each named plaintiff); Tussey, 

2019 WL 3859763, at *6 (approving $25,000 service award to each named plaintiff); Kruger, 2016 

WL 6769066, at *6 (same); Ameriprise, 2015 WL 4246879, at *3 (same). Finally, the requested

expenses are reasonable and typical for a case such as this. Accordingly, Plaintiffs and Class 

Counsel respectfully request that the Court approve the requested distributions.

2

See also Krueger v. Ameriprise Fin., Inc., 2015 WL 4246879, at *2 (D. Minn. July 13, 2015) (“In 

such cases, courts have consistently awarded one-third contingent fees.”); Tussey v. ABB, Inc., 

2019 WL 3859763, at *4 (W.D. Mo. Aug. 16, 2019) (“Class Counsel’s requested one-third fee is 

common in these cases.”).

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BACKGROUND

I. PROCEDURAL HISTORY

A. Pleadings and Motion Practice

Plaintiffs filed their Class Action Complaint on December 29, 2017, alleging that 

Huntington and related entities breached their fiduciary duties of prudence and loyalty under 

ERISA by using Huntington-affiliated investments and recordkeeping services for the Plan, and 

also engaged in transactions prohibited by ERISA. See ECF No. 1. Plaintiffs later filed an 

Amended Complaint that added two additional plaintiffs. ECF No. 21. Defendants moved to 

dismiss, ECF No. 24, and the Court issued an order on the motion on September 29, 2019. ECF 

No. 53. In its Order, the Court dismissed the prohibited transaction claims but allowed the breach 

of fiduciary duty claim to proceed. Id.

B. Discovery, Mediation, and Settlement

During the course of the litigation, the parties engaged in extensive discovery. Defendants 

produced more than 20,000 pages of documents, and Plaintiffs produced more than 9,000 pages.

Declaration of Kai Richter in Support of Motion for Attorneys’ Fees and Expenses, Administrative 

Costs, and Class Representative Service Awards (“Second Richter Decl.”) ¶ 18. Plaintiffs also 

subpoenaed five third parties (Mercer Investment Consulting Inc., Towers Watson Delaware, Inc., 

Federated Investors Inc., Porter, Wright, Morris & Arthur LLP, and Catalyst Capital, LLC) and 

received over 1,100 pages of documents as a result of the subpoenas. Id. In addition, Class Counsel 

took the depositions of two fact witnesses, and defended the depositions of all seven Plaintiffs. Id. 

After this discovery was completed, the Parties participated in a mediation with Hunter 

Hughes III, a nationally respected mediator of ERISA cases and other class actions. Declaration

of Kai Richter in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement 

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(“First Richter Decl.”) ¶¶ 14-15.

3 While they did not reach a settlement during the mediation, the 

parties eventually agreed to a settlement amount recommended by Mr. Hughes. Id. After reaching

agreement on monetary relief, the parties jointly prepared the comprehensive Settlement 

Agreement that has been preliminarily approved by the Court. See ECF Nos. 67-03, 71.

II. SETTLEMENT TERMS AND PRELIMINARY APPROVAL

Under the Settlement, Huntington or its insurers will contribute a gross Settlement Amount 

of $10.5 million to a common fund (the “Settlement Fund”) for the benefit of the Settlement Class.

Settlement Agreement (ECF No. 67-03) ¶ 3.1.4 After accounting for any attorneys’ fees and

expenses, Administrative Costs, and class representative service awards approved by the Court, 

the Distributable Settlement Amount will be allocated to Class Members based on the Plan of 

Allocation set forth in the Settlement. Id. at ¶ 3.2(b) & Ex. C.5 Current Participants’ accounts in 

the Plan will be automatically credited with their share of the Settlement Fund. Id. ¶ 2.8. Former

Participants, who do not have an account in the Plan, will receive their payments by check, unless 

they submit a Rollover Form calling for their payment to be rolled over to an individual retirement 

3 Mr. Hughes’ biography was previously submitted with Plaintiffs’ Motion for Preliminary 

Approval of the Settlement. See ECF No. 67-04. 

4 The Settlement Class is defined as follows:

[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 October 

14, 2020, excluding the Defendants or any Plan participant who is or was a fiduciary to the 

Plan during the Class Period.

ECF No. 71 ¶ 5.

5 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. The Investment Pool will be allocated among Class 

Members pro rata based on their quarterly balances invested in Huntington Funds during the Class 

Period. Id. 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 Plan of Allocation is consistent with the claims that were asserted in the action. Richter Decl. 

¶¶ 4, 7.

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account or other eligible employer plan. Id. ¶ 2.7, 3.2 & Ex. C.

6

Plaintiffs filed a motion seeking preliminary approval of the Settlement on August 7, 2020. 

ECF No. 67. The Court granted that motion on October 14, 2020. ECF No. 71. Plaintiffs are filing 

the present motion 14 days in advance of the deadline for objections, pursuant to the Court’s 

Preliminary Approval Order. ECF No. 71 at ¶ 22. To date, no objections to the Settlement have 

been received. Second Richter Decl., ¶ 36.

III. WORK OF CLASS COUNSEL

Class Counsel have expended significant time and effort prosecuting this action and 

achieving the Settlement on behalf of the Settlement Class. To date, the total amount of time 

invested by Class Counsel is over 1,997 hours, and additional work will be required going forward 

to implement the Settlement. Second Richter Decl. ¶¶ 24, 29. This work is detailed in the 

accompanying declaration from lead Class Counsel, and is briefly summarized below.

A. Work Conducted to Date

Prior to filing this action, Class Counsel conducted a thorough investigation of the claims 

that were asserted and the factual basis for those claims. Second Richter Decl. ¶ 18. Thereafter, 

Class Counsel vigorously prosecuted the action on behalf of the Class. Among other things, Class 

Counsel (1) drafted a detailed Complaint (ECF No. 1) and Amended Complaint (ECF No. 21); (2) 

responded to Defendants’ motion to dismiss; (3) drafted a comprehensive set of discovery requests; 

(4) repeatedly met and conferred with Defendants during the course of discovery; (5) reviewed 

over 20,000 pages of documents produced by Defendants; (6) reviewed over 1,100 pages of 

documents produced as a result of subpoenas to five third parties (Mercer Investment Consulting 

6 To minimize Administrative Costs, disbursements to Former Participants will be subject to a $15 

de minimus threshold. Id. ¶ 3.2(d) & Ex. C. 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.

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Inc., Towers Watson Delaware, Inc., Federated Investors Inc., Porter, Wright, Morris & Arthur 

LLP, and Catalyst Capital, LLC); (7) produced over 9,000 pages of documents; (8) responded to 

interrogatories; (9) deposed two fact witnesses; (10) defended the depositions of all seven named 

Plaintiffs; (11) drafted a memorandum of law in support of class certification;7and (12) 

participated in a mediation with a well-respected mediator. Second Richter Decl. ¶ 18.

In addition, Class Counsel have undertaken considerable work in connection with the

Settlement. This has included (1) assisting in drafting the Settlement Agreement and exhibits 

thereto (including the Notice of Settlement, Rollover Form, and the proposed preliminary and final 

approval orders); (2) preparing Plaintiffs’ Preliminary Approval Motion papers; (3) evaluating the

bid from the Settlement Administrator; (4) reviewing the final draft of the Notice of Settlement 

from the Settlement Administrator (Analytics Consulting LLC), and ensuring that it was timely 

mailed; (5) working with Analytics to create a settlement website and telephone support line; (6) 

communicating with Class Members; (7) consulting with the Independent Fiduciary regarding its 

required review of the Settlement;8and (8) preparing the present motion. Id.

B. Remaining Work to Be Performed

Class Counsel’s work on this matter remains ongoing. Prior to the Fairness Hearing, Class 

Counsel will draft Plaintiffs’ motion for final approval of the Settlement and respond to any 

objections. Id. ¶ 24. Class Counsel will then attend the Fairness Hearing, and if final approval is 

granted, supervise the distribution of payments to eligible Class Members. Id. In addition, Class 

Counsel will continue to respond to Class Members’ questions and take other actions necessary to 

support the Settlement until the end of the Settlement Period. Id.

7 This motion was not filed with the Court, as the parties reached a settlement before Plaintiffs’ 

deadline to file their motion for class certification. 

8 A release on behalf of a plan is subject to independent fiduciary review under Prohibited 

Transaction Class Exemption 2003-39, 68 Fed. Reg. 75,632, as amended (Dec. 31, 2003), and

Paragraph 2.6 of the Settlement Agreement.

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IV. WORK OF CLASS REPRESENTATIVES

The class representatives also have worked to advance the interests of the Class Members. 

Specifically, the class representatives (1) reviewed the operative complaints bearing their names; 

(2) produced documents and information to Class Counsel prior to suit and during discovery; (3) 

reviewed and signed answers to interrogatories; (4) appeared for their depositions and prepared 

for their depositions in advance; (5) made themselves available by phone for the mediation; (6) 

communicated with Class Counsel during the course of the action; and (7) discussed the Settlement 

with Class Counsel and reviewed the Settlement Agreement. Second Richter Decl., ¶ 34; see also 

ECF Nos. 67-07 to 67-13.

V. WORK OF THE ADMINISTRATOR, ESCROW AGENT, AND INDEPENDENT FIDUCIARY

In order to be administered and effectuated, the Settlement also requires time, resources, 

and expertise from several non-parties. See Settlement Agreement ¶¶ 1.17, 1.24, 1.36.

Analytics, as the approved Settlement Administrator, disseminated the Settlement Notices 

to Class Members and established the settlement website and telephone support line. Id. ¶¶ 2.7, 

2.10, 2.11; Second Richter Decl. ¶ 30. Analytics also will review the Rollover Forms submitted 

by Former Participants, and coordinate distribution of payments to Class Members in the event 

that the Settlement receives final approval. Settlement Agreement ¶ 3.2 & Ex. C.

The Escrow Agent (Alerus) will hold the monies in the Qualified Settlement Fund while 

approval of the Settlement and distributions to Class Members are pending. Id. ¶ 3.1 Upon final 

approval of the Settlement, Alerus will release these funds and execute the investment and tax 

qualification mandates in the Settlement Agreement. Id.

Finally, the Independent Fiduciary will review the Settlement, and independently 

determine whether it is in the best interest of the Plan to release its claims against Defendants in 

exchange for the relief provided. Id. ¶ 2.6. As noted above, this independent fiduciary review is 

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required by DOL regulations and Paragraph 2.6 of the Settlement Agreement. See supra at n.8.

VI. ATTORNEYS’ FEES, EXPENSES, AND SERVICE AWARDS SOUGHT

In consideration of the work summarized above and associated expenses, Article 7 of the 

Settlement Agreement provides that Plaintiffs may seek (1) attorneys’ fees equal to one-third of 

the Settlement Fund; (2) reimbursement of reasonable litigation expenses and Administrative 

Costs; and (3) a $7,500 service award for each Class Representative. Id. ¶¶ 7.1-7.2. Consistent 

with the above, Plaintiffs seek the following amounts in connection with this motion: 

• Attorneys’ fees: $3,500,000 (one-third of the Gross Settlement Amount)

• Litigation Expenses: $61,512.35

• Administrative Costs: $107,214 (itemized below)

o Settlement Administrator: $89,714

o Escrow Agent: $2,500

o Independent Fiduciary: $15,000

• Class Representative Service Awards: $7,500 each ($52,500 total)

ARGUMENT

I. STANDARD OF REVIEW

When counsel obtain a settlement for a class, courts “may award reasonable attorney’s fees 

and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 

23(h). Here, the requested distributions are authorized by applicable law as well as the parties’ 

Settlement Agreement (see Background at § VI above).

The Supreme Court “has recognized consistently that a litigant or a lawyer who recovers a 

common fund for the benefit of persons other than himself or his client is entitled to a reasonable 

attorney’s fee from the fund as a whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). 

Likewise, “reasonable expenses of litigation” may be recovered from a common fund, see Mills v. 

Elec. Auto-Lite Co., 396 U.S. 375, 391-92 (1970), as well as administrative expenses of settlement, 

see Hainey v. Parrott, 2007 WL 3308027, at *5 n.1 (S.D. Ohio Nov. 6, 2007) (ordering settlement 

administration expenses to be paid “from the common fund”).

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Finally, class representative service awards are “efficacious ways of encouraging members

of a class to become class representatives and rewarding individual efforts taken on behalf of the

class.” Barnes v. Winking Lizard, Inc., 2019 WL 1614822, at *6 (N.D. Ohio Mar. 27, 2019) 

(awarding $7,500 to named plaintiff) (quoting Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 

2003)); see also supra at 2. In summary, the requested distributions are customary in a class action 

such as this, and should be approved for the reasons set forth below.

II. THE COURT SHOULD GRANT CLASS COUNSEL’S REQUEST FOR ATTORNEYS’ FEES

Courts may use either the “percentage of the fund” method or the “lodestar” method to 

determine attorneys’ fees. Wright v. Premier Courier, Inc., 2018 WL 3966253, at *6 (S.D. Ohio 

Aug. 17, 2018) (Watson, J.). When attorneys secure a common fund on behalf of a class, the 

percentage of fund method is preferred. Koenig v. USA Hockey, Inc., 2012 WL 12926023, at *10 

(S.D. Ohio Jan. 10, 2012) (Watson, J.) (“[I]n the Southern District of Ohio, the preferred method

is to award a reasonable percentage of the fund, with reference to the lodestar and the resulting 

multiplier.”).

For purposes of evaluating the reasonableness of attorneys’ fees, courts in the Sixth Circuit 

consider the following factors: (1) the value of the benefits rendered to the class; (2) society’s stake 

in rewarding attorneys who produce such benefits in order to maintain an incentive to others; (3) 

whether the services were undertaken on a contingent fee basis; (4) the value of the services on an 

hourly basis; (5) the complexity of the litigation; and (6) the professional skill and standing of 

counsel on both sides. Barnes, 2019 WL 1614822, at *5 (citing Ramey v. Cincinnati Enquirer, 

Inc., 508 F.2d 1188, 1196 (6th Cir. 1974)). Of these, “[g]enerally, the factor given the greatest 

emphasis is the size of the fund created[.]’” Manual for Complex Litigation (Fourth), § 14.121 

(2004) (quoting 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, § 14:6, at 547, 

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550 (4th ed. 2002)); see also Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (the “critical factor 

is the degree of success obtained”).

A. The Settlement Provides Significant Value to the Class

“To determine the value rendered to the settlement class, the Court should analyze the 

merits of the case and the risks associated with continued litigation.” Moore v. Aerotek, Inc., 2017 

WL 2838148, at *6 (S.D. Ohio June 30, 3017) (citation omitted). Here, this factor weights strongly 

in favor of approval of the requested fee. The recovery compares favorably to settlements in other 

ERISA cases involving similar claims, and represents a favorable outcome in light of the risks 

associated with such cases.

The $10.5 million settlement amount represents approximately 0.81% of currently reported 

Plan assets, and 1.07% of assets reported at the time of Settlement.

9 This is in line 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%). See First Richter Decl. ¶ 6. Additionally, 

the settlement represents approximately 30% of the total damages that Plaintiffs claimed were 

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

other class action settlements. See, e.g., Sims, 2019 WL 1995314, at *5 (approving $24 million 

ERISA 401(k) settlement that represented 19% of estimated damages in connection with similar 

claims involving proprietary funds and allegedly excessive recordkeeping expenses); 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 best-case-scenario classwide [damages] 

is an impressive result in view of these possible trial outcomes.”); Mees v. Skreened, Ltd., 2016 

9 At the time of Plaintiffs’ motion for preliminary approval, the Plan reported approximately $983 

million in assets in its most recent form 5500 filing with the Department of Labor (“DOL”). First

Richter Decl. ¶ 6. An updated 5500 filing submitted by the Plan on September 18, 2020 (after 

Plaintiffs submitted their motion) reported $1,297,000 in assets.

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WL 67521, at *5 (S.D. Ohio Jan. 6, 2016), report and recommendation adopted, 2016 WL 305166 

(S.D. Ohio Jan. 26, 2016) (approving settlement where counsel recovered 25% of alleged 

damages); 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”).

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

In re Nationwide Fin. Servs. Litig., 2009 WL 8747486, at *4 (S.D. Ohio Aug. 19, 2009) (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 in ERISA breach of fiduciary duty suit). 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 prevailed on liability, 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.”).10 These risks further underscore the value provided by the Settlement.

10 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

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

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B. Rewarding Counsel for their Efforts Promotes Social Goals

“Society has a stake in rewarding attorneys who achieve a result that the individual class 

members probably could not obtain on their own.” Kritzer v. Safelite Solutions, LLC, 2012 WL 

1945144 (S.D. Ohio May 30, 2012). Here, many Class Members would be unable to bring 

individual claims due to the complexity and expense of ERISA actions such as this. See infra at 

15-16. This further weighs in favor of the requested fee. See Moore, 2017 WL 2838148, at *8; 

Wright, 2018 WL 3966253, at *7; Barnes, 2019 WL 1614822, at *5.

Aside from the benefit to the class itself, actions such as this “promote private enforcement 

of and compliance with important areas of federal law[.]” Moore, 2017 WL 2838148, at *8

(quoting Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 310 (1985)).

11

“[T]he 

protection of retirement funds is a great public interest” and “private attorneys general have a major 

role to play in ERISA litigation.” Fastener Dimensions, Inc. v. Mass. Mut. Life Ins. Co., 2014 WL 

5455473, at *9 (S.D.N.Y. Oct. 28, 2014); see also Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 

597 n.8 (8th Cir. 2009) (noting that Secretary of Labor “depends in part on private litigation to 

ensure compliance with the statute”). Indeed, suits like this are one of the reasons why fees in 

401(k) plans have dropped in recent years. See 401(k) Fees Continue To Drop, FORBES (Aug. 

20, 2015) (noting that fees have fallen “[i]n part in response to 401(k) fee litigation[.]”).

12 These 

benefits also support the reasonableness of the requested fee. See Rankin v. Rots, 2006 WL 

1791377, at *2 (E.D. Mich. June 27, 2006) (“[T]here is a public interest in ensuring that attorneys

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

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

11 See also Wright, 2018 WL 3966253, at *7 (noting that actions such as this “have a value to

society more broadly...as private law enforcement regimes that free public sector resources”)

(quoting Gascho v. Global Health Fitness Holdings, LLC, 822 F.3d 269, 287 (6th Cir. 2016)).

12 Available at https://www.forbes.com/sites/ashleaebeling/2015/08/20/401k-fees-continue-todrop/#6b8caf21164f (last visited December 16, 2020).

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willing to represent employees in ERISA litigation are adequately paid so that they and others like

them will continue to take on such cases.”).

C. The Requested Fee Is a Typical Contingency Fee in ERISA Class Actions

In evaluating the requested fee, it is also important to note that Class Counsel undertook 

the representation on a contingent fee basis. See Second Richter Decl. ¶ 22. Where counsel “invest

time, effort, and money over a period of years with no guarantee of recovery” this “weighs in favor 

of approving the requested fee award.” Wright, 2018 WL 3966253, at *7 (citing In re Sulzer Hip

Prosthesis and Knee Prosthesis Liability Litig., 268 F.Supp.2d 907, 936 (N.D. Ohio 2003)).

The requested one-third fee in this case is consistent with contingent fee awards in similar 

ERISA class actions. As the court stated in Ameriprise: 

[I]n comparing the requested fee with fee awards in similar cases, the relevant 

comparators are ERISA class actions asserting breaches of fiduciary duties in the 

selection and retention of plan investment options and the reasonableness of defined 

contribution plan fees. In such cases, courts have consistently awarded one-third 

contingent fees.

2015 WL 4246879, at *2 (emphasis added); see also Kruger, 2016 WL 6769066, at *2 (“[C]ourts

have found that ‘[a] one-third fee is consistent with the market rate’ in a complex ERISA 401(k) 

fee case such as this matter.”) (citing cases); Dudenheoffer, 2016 WL 8135394, at *1. Consistent 

with this established benchmark, Nichols Kaster has received one-third fee awards in several other 

ERISA class cases. See Stevens, 2020 WL 996418, at *14; Sims, 2019 WL 1993519, at *2; In re 

M&T Bank Corp. ERISA Litig., No. 1:16-cv-375, ECF No. 190 at ¶ 1; Clark, No. 18-81101, ECF 

No. 23 ¶ 1; Larson, No. 0:17-cv-03835, ECF No. 132 at ¶¶ 4-5. The Court should follow this 

established precedent here.13

13 A one-third fee is also consistent with the amount that Class Counsel and the Named Plaintiffs

agreed upon at the outset of the representation. See Second Richter Decl. ¶ 33 n.3. This further 

supports approval of the fee request. See Schumacher v. AK Steel Corp. Ret. Acc. Pension Plan, 

995 F.Supp.2d 835, 852 (S.D. Ohio 2014) (Attorneys' fees “may be awarded by the court if they 

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D. The Requested Fee is Reasonable Based on the Time and Labor Expended

The requested fee is also reasonable considering the efforts expended by counsel. As noted 

above, this case was not resolved until the parties had litigated a motion to dismiss and engaged in 

extensive discovery. As of the date of this motion, Class Counsel’s lodestar is already 

$1,059,927.11 and additional work remains to be done. See Second Richter Decl. ¶¶ 22, 24.

14

While the requested fee exceeds the lodestar, Class Counsel are entitled to a reasonable 

multiplier to account for the risks that they assumed in handling the action on a contingent fee 

basis. See City of Detroit v. Grinnell, 495 F.2d 448, 470 (2d Cir. 1974) (“No one expects a lawyer 

whose compensation is contingent upon his success to charge, when successful, as little as he 

would charge a client who in advance had agreed to pay for his services, regardless of success.”).

Courts in this district award multipliers of “between approximately 2.0 and 5.0” to compensate for 

this risk. See Koenig, 2012 WL 1290623, at *10 (citing In re Broadwing, Inc. ERISA Litig, 252 

F.R.D. 369, 381 (S.D. Ohio 2006)). The requested fee in this case represents a multiplier of 

approximately 3.30 and falls well within the reasonable range. See Dillow v. Home Care Network,

are ‘authorized by law or by the parties' agreement.’”) (quoting Krause v. Rhodes, 640 F.2d 214, 

218 (6th Cir. 1981)); Devlin v. Ferrandino & Son, Inc., 2016 WL 7178338, at *9 (E.D. Pa. Dec. 

9, 2016) (“Class Counsel ... seeks approval of the contingent fee agreed to when this matter was 

initiated. This factor supports approval.”); accord Stevens, 2020 WL 996418, at *12 (“Were this 

case brought on behalf of an individual, the customary contingency fee would likely range between 

thirty and forty percent of the recovery. . . . Here, Class Counsel’s requested percentage is 

commensurate with customary percentages in private contingency fee agreements.”).

14 The hourly rates used to calculate Class Counsel’s lodestar are “reasonable and are comparable 

to fees that have been recently approved in [other] ERISA class action[s]”. Sims, 2019 WL 

1993519, at *3 (addressing and approving Nichols Kaster’s billing rates). Nichols Kaster’s billing 

rates for ERISA actions range from $625 to $875 per hour for attorneys with more than 10 years 

of experience, $425 to $575 per hour for attorneys with 10 years or less experience, and $250 per 

hour for paralegals and clerks. Second Richter Decl. ¶ 21. These rates are consistent with (and 

slightly less than) the rates approved for other experienced ERISA litigators. See, e.g., Kruger, 

2016 WL 6769066, at *4 (adopting rates of $460 to $998 per hour based on years of experience); 

Spano v. Boeing Co., 2016 WL 3791123, at *3 (S.D. Ill. Mar. 31, 2016) (same); Abbott v. Lockheed 

Martin Corp., 2015 WL 4398475, at *3 (S.D. Ill. July 17, 2015) (adopting rates of $447 to $974 

per hour based on years of experience). Moreover, these rates fall within the range of reported 

rates for ERISA practitioners in a respected industry survey. See Second Richter Decl. Ex. 3.

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Inc., 2018 WL 4776977, at *7 (S.D. Ohio Oct. 3, 2018) (citing Lowther v. AK Steel Corp., 2012 

WL 6676131, at *5 (S.D. Ohio Dec. 21, 2012) (approving 3.06 multiplier and citing cases 

with multipliers ranging from 4.3 to 8.5)); In re Cardinal Health Inc. Sec. Litig., 528 F.Supp.2d 

752, 767 (S.D. Ohio 2007) (approving multiplier of 5.9); Stevens, 2020 WL 996418, at *13 

(approving one-third fee with multiplier of 6.16); Andrus, No. 16-05698, ECF No. 74, at p.12 

(approving one-third fee with multiplier of 5).

E. The Complexity of the Action and Experience of Counsel Further Support the 

Requested Fee

Finally, the complexity of this action and the specialized experience of Class Counsel 

further support the requested fee. It is well-known that “ERISA is a complex field that involves 

difficult and novel legal theories and often leads to lengthy litigation.” Ameriprise, 2015 WL 

4246879, at *1; 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” cases); Abbott, 2015 

WL 4398475, at *2 (noting that ERSIA 401(k) cases are “particularly complex”). Handling a 

complex case such as this requires counsel with specialized skills. See Savani v. URS Prof. 

Solutions LLC, 121 F. Supp. 3d 564, 573 (D.S.C. 2015) (“Very few plaintiffs’ firms possess the 

skill set or requisite knowledge base to litigate ... class-wide, statutorily-based claims for pension 

benefits”). In addition to legal expertise, counsel must possess “expertise regarding industry 

practices.” Kruger, 2016 WL 6769066, at *3. 

Nichols Kaster is one of the relatively few firms in the country that has the experience and 

skills necessary to successfully litigate a complex ERISA action such as this. See Moreno v. 

Deutsche Bank Americas Holding Corp., 2017 WL 3868803, at *11 (S.D.N.Y. Sept. 5, 2017)

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

involving defined-contribution plans”); Sims, 2019 WL 1993519, at *2 (noting Nichols Kaster’s 

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strong work on behalf of retirement beneficiaries and skillful litigation). As described in the 

accompanying declaration of counsel, Nichols Kaster has won favorable pretrial rulings on 

dispositive motions and/or class certification in over a dozen ERISA cases, recently tried two 

ERISA class actions, successfully litigated an appeal before the First Circuit, and has negotiated

numerous ERISA class action settlements in addition to the present settlement. Id. ¶¶ 7-8. Based 

on their experience, the firm’s attorneys have been interviewed by several media outlets in 

connection with their ERISA work, and Nichols Kaster’s undersigned counsel has spoken at 

multiple national forums on ERISA litigation. Id. ¶ 9. Moreover, Nichols Kaster teamed up with 

another experienced class action firm (Barkan Meizlish DeRose Wentz McInerny Peifer LLP) as 

local counsel. See DeRose Decl. ¶¶ 2-3. The experience of Class Counsel was crucial to the 

outcome that was obtained, and further supports the requested fee in this case. See Barnes, 2019 

WL 1614822, at *6 (counsel’s experience in similar class actions weighs in favor of fee award).15

III. THE COURT SHOULD APPROVE THE REQUESTED EXPENSES

In addition to the requested fees, the Court also should approve the requested litigation 

expenses and Administrative Costs.

A. Litigation Expenses

“Under the common fund doctrine, class counsel are entitled to reimbursement of all 

reasonable out-of-pocket litigation expenses and costs in the prosecution of claims and in obtaining 

settlement[.]” In re Nat. Century Fin. Enterprises Inc. Inv. Litig., 2009 WL 1473975, at *4 (S.D. 

Ohio May 27, 2009). Thus, courts generally grant requests for expenses that are “normally charged 

to a fee-paying client, in the course of providing legal services[.]” Kis v. Covelli Enterprises, Inc.,

2020 WL 2812405, at *8 (N.D. Ohio May 29, 2020) (quoting Waldo v. Consumers Energy Co., 

15 This is particularly so, given that Defendants were represented by two large and wellcredentialed law firms (Sidley Austin LLP and Porter, Wright, Morris & Arthur).

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726 F.3d 802, 827 (6th Cir. 2013) (citation omitted)). 

The expenses that may be reimbursed from the common fund encompass all “reasonable 

expenses necessary to litigate and settle the case.” Wright, 2018 WL 3966253, at *7. Here, the 

requested litigation expenses are of a type normally incurred in complex class actions such as this. 

See, e.g., Kis, 2020 WL 2812405, at *8 (approving expenses for photocopying, paralegal 

expenses, and travel costs); Wright, 2018 WL 3966253, at *7 (approving expenses for travel, 

witness fees, depositions, and transcripts); Sims, 2019 WL 1993519, at *4 (approving expenses 

that “included the costs of hiring experts and consultants, taking depositions, travel, lodging, and 

parking, copies and communication costs, and mediation and settlement costs, and professional 

fees, among others”). Moreover, the requested expense amount of $61,512.35 is reasonable in 

comparison to the amounts awarded in similar cases. See, e.g., Shanechian, 2013 WL 12178108, 

at *5 (approving $435,916 in litigation expenses in ERISA class action); Sims, 2019 WL 1993519, 

at *4 (approving $737,377.68 in expenses); Ameriprise, 2015 WL 4246879, at *3 (approving 

$782,000 in expenses).16

B. Administrative Costs

The requested Administrative Costs are also reasonable. The Settlement Notice, claims 

review, and payment distribution services provided by Analytics are essential to carry out the 

Settlement. The cost of providing those services ($89,714) is reasonable in relation to the size of 

the class, and comes to only $2.31 per class member. See Second Richter Decl., ¶ 30. The Escrow 

Agent expense of $2,500 is also reasonable in light of the responsibility of handling a $10.5 million 

fund. Finally, review of the Settlement by the Independent Fiduciary is called for by DOL 

16 See also Tussey, 2019 WL 3859763, at *6 (approving $2,256,805 in litigation expenses in 

ERISA class action); Spano, 2016 WL 3791123, at *4 (approving $1,813,198.85 in litigation 

expenses); Beesley v. Int’l Paper Co., 2014 WL 375432, at *4 (S.D. Ill. Jan. 31, 2014) (approving 

$1,563,046.39 in litigation expenses).

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regulations, and is deemed to be a “critically important” benefit to plan participants. See In re 

Marsh ERISA Litig., 265 F.R.D. at 139. Accordingly, the requested settlement administration 

expenses in the amount of $107,214 should be approved. Both the total amount of these expenses 

and the underlying components are reasonable and customary in ERISA cases such as this. See, 

e.g., In re M&T Bank Corp. ERISA Litig., No. 1:16-cv-375, ECF No. 190 at ¶ 3 (approving $91,322 

in settlement administration expenses, “including $73,822 to the Settlement Administrator, $2,500 

to the Escrow Agent, and $15,000 to the Independent Fiduciary”); Clark, No. 18-81101, ECF No. 

23 ¶ 2 (approving $157,050 in similar administrative expenses); Stevens, 2020 WL 996418, at *14 

(approving expenses for settlement administrator, escrow agent, and independent fiduciary).

17

IV. THE COURT SHOULD GRANT THE REQUESTED SERVICE AWARDS

This Court also should approve the requested service awards of $7,500 per class 

representative. “Numerous courts have authorized incentive awards [as] efficacious ways of

encouraging members of a class to become class representatives and rewarding individual efforts

taken on behalf of the class.” Barnes, 2019 WL 1614822, at *6 (quoting Hadix, 322 F.3d at 897.

Indeed, “courts routinely approve incentive awards to compensate named plaintiffs for the services 

they provided and the risks they incurred during the course of the class action 

litigation.” Dillworth, 2010 WL 776933, at *7 (internal citations omitted).

The requested awards in this case are fully consistent with these recognized rationales. The 

class representatives invested significant time reviewing case materials (pleadings, interrogatory 

responses, settlement agreement, etc.), producing documents, appearing for their depositions, and 

communicating with Class Counsel. See Second Richter Decl. ¶ 34; ECF Nos. 67-07 to 67-13

17 The expenses that were approved in Stevens for the Escrow Agent ($2,500) and Independent 

Fiduciary ($15,000) are identical to the amounts sought here. Id. Although the expenses of the 

settlement administrator were lower ($24,936), id., that is because there were only 5,734 class 

members in that case. Id. at *2. Here, there are 38,851 Class Members. First Richter Decl. ¶ 3.

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(Plaintiffs’ declarations). Further, the class representatives assumed both financial risks, see 29 

U.S.C. § 1132(g) (providing that “the court may allow a reasonable attorney’s fee and costs of 

action to either party”), and reputational risks by suing their current or former employer.

18

The amount of the requested service awards is also reasonable. See, e.g. Rotondo v.

JPMorgan Chase Bank, N.A., 2019 WL 6167086, at *8–9 (S.D. Ohio Nov. 20, 2019), report and

recommendation adopted, 2019 WL 6496806 (S.D. Ohio Dec. 2, 2019) (approving $20,000 

service awards); Owner-Operator Indep. Drivers Ass'n, Inc. v. Arctic Express, Inc., 2016 WL 

5122565, at *7 (S.D. Ohio Sept. 21, 2016) ($25,000); Enter. Energy Corp. v. Columbia Gas

Transmission Corp., 137 F.R.D. 240, 251 (S.D. Ohio 1991) ($50,000); Dillow, 2018 WL 4776977, 

at *8 (approving $8,500 service award from $113,224 settlement). Indeed, higher amounts are 

routinely approved other ERISA class action cases. See supra at 2 (citing cases approving awards 

between $7,500 and $25,000).

V. THERE HAVE BEEN NO OBJECTIONS TO THE PROPOSED SETTLEMENT

Finally, it is worth noting that there have been no objections to the distributions allowed 

under the Settlement as of the date of this motion. The Notice of Settlement that the Court approved 

explicitly disclosed that Class Counsel and the class representative would seek these distributions. 

See ECF No. 67-03 at Ex. B. In response, no class member out of more than 38,000 has lodged an 

objection. This further supports the fairness of the Settlement and the reasonableness of the 

requested distributions. See In re Nationwide, 2009 WL 8747486, at *7 (citing Brotherton v.

Cleveland, 141 F. Supp. 894, 906 (S.D. Ohio 2001) (“[A] relatively small number of class

members who object is an indication of a settlement's fairness.”) (citation removed); In re Art

18 Bringing a lawsuit against an employer relating to management of a 401(k) plan entails risk that 

the plaintiff will be viewed unfavorably by the employer or future employers. See Abbott, 2015 

WL 4398475, at *4.

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Materials Antitrust Litig., 100 F.R.D. 367, 382 (N.D. Ohio 1983) (strong approval of class 

members is “nearly dispositive”)); Tussey, 2019 WL 3859763, at *5 (approving one-third fee, 

noting that “no class member filed an objection to any portion of the Settlement or Class Counsel’s 

request for attorneys’ fees, the reimbursement of expenses, and compensation awards to the Class 

Representatives.).

CONCLUSION

For the above reasons, Plaintiffs respectfully request that the Court approve the requested 

distributions.

Dated: January 5, 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*

Ben Bauer, MN Bar No. 0398853*

* admitted pro hac vice

4700 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

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

AND THE SETTLEMENT CLASS

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CERTIFICATE OF SERVICE

The undersigned hereby certifies on this 5th day of January, 2021, that the undersigned 

electronically filed and served the foregoing document through this Court’s ECF system. 

/s/ Kai Richter 

Kai Richter

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