21

- 805

- cv Haley v. TIAA


## In the 

# United States Court of Appeals **For the Second Circuit**

________

A UGUST T ERM 202 1

A RGUED : M AY 10 , 2022 D ECIDED : D ECEMBER 1 , 20 2 2

No. 21

- 805

- cv

M ELISSA H ALEY , individually and on behalf of herself and all others similarly situated
, Plaintiff

- Appellee
,

v.

T EACHERS I NSURANCE AND A NNUITY A SSOCIATION OF A MERICA , Defendant

- Appellant

. ∗

________ Appeal from the United States District Court for the Southern District of New York

.

________

Before: N EWMAN , W ALKER , and S ULLIVAN , Circuit Judges

.

________ Melissa Haley alleges that a participant loan program that Teachers Insurance and Annuity Association of America (TIAA)

∗ The Clerk of Court is directed to amend the caption as set forth above.2 No

. 21

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offered to her retirement plan is a prohibited transaction under the Employ ee Retirement Income S ecurity Act of 1974 (ERISA). After ruling that Haley’s suit could proceed against TIAA as a non

fiduciary under ERISA , the district court certified a class of employee benefit plans whose fiduciaries contracted with TIAA to offer loans that were secured by a participant’s retirement savings. In this interlocutory appeal challenging the certification decision , TIAA argues that the district court erred when it found that common issues predominated over individual ones without addressing the effect of ERISA’s statutory exemptions on liability classwide and without making any factual findings as to the similarities of the loans. We
agree. Because the predominanc e inquiry of Federal Rule of Civil Procedure 23(b)(3) requires that a district court analyze defenses, and
the court did not do so here
, we VACATE the district court’s decision
and REMAND for proceedings consistent with this opinion.

________
T ODD S. C OLL INS ( Ellen T. Noteware, on the brief )
, Berger Montague PC
, Philadelphia, PA ; J ohn J. Nestico, Todd M. Schneider, on the brief
, Schneider Wallace Cottrell Konecky LLP, Charlotte, NC and Emeryville, CA
, for Plaintiff

- Appellee

. J AIME A. S ANTOS ( James O. Fleckner, Michael K. Isenman, Kelsey Pelagalli, on the brief )
, Goodwin
Proct e r LLP , Washington, DC and Boston, MA
, for Defendant

- Appellant

. Leah M. Nicholls
, on the brief
, Public Justice, P.C.
, Washington, DC
, for amicus curiae Public Justice

.3 No

. 21

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Dara S. Smith, William Alvarado Rivera
, on the brief
, AARP Foundation, Washington, DC, for amici curiae AARP and AARP Foundation

. Meaghan VerGow
, on the brief
, O’Melveny & Myers LLP, Washington, DC, for amici curiae The Securities Industry and Financial Markets Association, American Benefits Council, Society of Professional Asset Managers and Recordkeepers, American Council of Life Insurers, and Chamber of Commerce of the United States of America

.

________ J OHN M. W ALKER , J R ., Circ uit Judge :
Melissa Haley alleges that a participant loan program that Teachers Insurance and Annuity Association of America (TIAA) offered to her retirement plan is a prohibited transaction under the Employ ee Retirement Income S ecurity Act of 1974 (ERISA). After ruling that Haley’s suit could proceed against TIAA as a non

fiduciary under ERISA , the district court (Oetken, J. ) certified a class
of employee benefit plans whose fiduciaries contracted with TIAA to offer loans that were secured by a participant’s retirement savings. In this interlocutory appeal challenging the certification decision
, TIAA argues that the district court erred when it found that common issues predominated over individual ones without addressing the effect of
ERISA’s st atutory exemptions on liability classwide and without making any factual findings as to the similarities of the loans. We
agree. Because the predominance inquiry of Federal Rule of Civil Procedure 23(b)(3) requires that a district court analyze defenses, and4 No

. 21

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the court did not do so here , we VACATE the district court’s decision
and REMAND for proceedings consistent with this opinion.

B ACKGROUND
Haley participates in a retirement plan offered by Washington University in St. Louis (WashU)

. The WashU plan is a defined contribution savings plan that is tax

- deferred under 2 6 U.S.C. § 403(b) and governed by ERISA

. 1 WashU chose to offer certain services to its participants, including the ability to borrow against retirement savings without inc urring a taxable event. During the relevant period, WashU plan participants were permitted to take out either

non

- collateralized or collateralized loans. To facilitate these loans
, WashU engaged with outside vendors known as “ service providers
, ” including TIAA and Vanguard

.

N on

- collateralized loans enable participants to borrow directly from their retirement accounts without pledging any assets as collateral. Vanguard serviced the non

- collateralized loans for WashU plan participants and charged participants a fixed origination fee and annual maintenance fees. Non

- collateralized loans are not at issue in this case

.

This suit instead challenges the collateraliz ed loan products that TIAA offered

. F iduciaries responsible for some eight thousand plan s , such as WashU, retained TIAA to service collateralized loans for their respective plan s

. The collateralized loans shared the

1 2 9 U.S.C. § 1002(34). Defined contribution plans are retirement savings vehicles that allow participants to contribute a portion of their salary to the plan. Section 403(b) plans are available t o employees of public schools and certain non

- profits.5 No

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following attributes

. TIAA required participants to borrow the desired loan amount from TIAA’s “General Account” rather than directly from their own retirement accounts. 2 TIAA charge d interest on the loan, which participant s paid (along with the principal) to the General Account. The interest rates that participants paid , however, depend ed on several variables, including the type of loan contract between TIAA and the plan and the relevant state’s insurance laws.

TIAA secure d the loans with collateral equal to the loan amount plus 10%. TIAA invested t hat sum in the participant’s

account in a TIAA Traditional Annuity, a n interest

- bearing fixed annuity that paid a guaranteed minimum rate of return , plus additional amounts of interest declared at TIAA’s discretion

. The plan participant kept the return earned on the collateral

. Returns varied based on the type of the annuity contract that TIAA offered to the plan
, and when and where the loan was obtained

. The underlying annuity contract also affected whether a borrowing participant could designate funds already invested in a TIAA T raditional Annuity as collateral or whether the participant had to transfer funds from existing investments into a TI AA Traditional Annuity

.

While it did not charge origination or maintenance fees
, TIAA

was compensated for servicing the loans

. TIAA states that its compensation was the difference, or “spread
, ” between the interest

2 An insurance company’s “ g eneral a ccount” refers to the assets that guarantee the insurer’s obligations under its insurance contracts and provide liquidity

. Participants do not invest directly in th e General Account, which TIAA represents is a broadly diversified portfolio of mostly fixed income assets.6 No

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that participants paid TIAA on the loan and the amount TIAA credit ed to participants on their collateral as investment income

. 3
Haley to o k out four collateralized loans from her WashU plan between 2011 and 2015 , and a fifth in 2019 while this lawsuit was pending . In 2017, she brought the instant a ction seeking to hold TIAA directly liable on the grounds that the collateralized loan s violated ERISA’s so

- called “ prohibited transactions ” rules

. In the alternative, Haley sought to hold TIAA liable as a non

- fiduciary for its knowing participation in the alleged violations by her plan fiduciary , WashU

. Haley , however, did not name WashU as a defendant.

The district court held that TIAA was not an ERISA fiduciary with respect to the challenged loans but permitted Haley’s claims to proceed against TIAA as a non

- fiduciary. Haley then moved to certify a nationwide class of similarly situated ERISA

- governed plan s

. TIAA opposed , asserting that the challenged loans we re too disparate to warrant class treatment. TIAA further objected to certification on the grounds that ERISA recognizes exemptions to prohibited transaction s and that the factors relevant to whether a collateralized loan is exempt are not subject to common proof

. The district court certified a class under Rule 23(b)(3) as to each of Haley’s non

- fiduciary claims

. But the court did not make any findings about the purported variation s among the loans i n the putative class and did not address how the exemptions to the statutory prohibitions weighed in the certification analysis

. TIAA timely filed an interlocutory appeal under Rule 23(f)

.

3 Haley alleged that the spread is even greater because it includes the difference between the returns earned on the investments in TIAA’s G eneral A ccount and the interest rate that TIAA credits the participants on their collateral

. Regardless, this difference is not material to this appeal.7 No

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D ISCUSSIO N
Haley is not the first WashU plan participant to allege that the
collateralized loans serviced by TIAA are prohibited transaction s under ERISA

. 4 But her suit is unique because she is seeking to hold
TIAA liable on behalf of a nationwide class of ERISA

- governed plan s whose members received loans under terms approved by plan
administrators , without naming those administrator fiduciaries as
defendants

. TIAA argues that the district court improperly certified
the multi

- plan class. 5

4 See Davis v. Wash. Univ. in St. Louis , No. 4:17

- CV

- 1641 RLW, 2018 WL 4684244, at *5 (E.D. Mo. Sept. 28, 2018) (dismissing the ERISA § 406(a)(1)(B) claim against WashU)
, aff'd in part, rev'd in part and remanded
, 960 F.3d 478 (8th Cir. 2020). The Davis plaintiffs did not appeal the dismissal of the ir prohibited transaction claims

. 5 The class certified by the district court includes: “All individual account retirement plans governed by ERISA (the ‘ Plans ‘ ) for which, at any time from February 5, 2011 through the date of judgment: (a) Teachers Insurance and Annuity Association [of America] ( ‘ TIAA ’ ) provided services that included collateralized loans (the ‘ Loans ’ ) for Plan participants (the ‘ Borrowing Partici pants ’ ); (b) TIAA required the Borrowing Participants to provide collateral in the amount of 110% of the principal balance of the Loans, which collateral TIAA invested in its general account; and (c) (i) TIAA charged Loan interest at a rate in excess of th e interest rate credited to Borrowing Participants on the invested collateral; (ii) TIAA kept for or paid to itself amounts earned on the amount of the invested collateral, equal to the principal amount of the outstanding Loans, that were in excess of the amounts credited to Borrowing Participants; (iii) the amounts that TIAA credited to Borrowing Participants on the invested collateral in excess of the principal amount of the Loan were less than Borrowing Participants would have received had the collateral remained in the Borrowing Participants’ designated investment options; and/or (iv) TIAA caused loss to the Participant Borrowers and the Plans. ” Special App’x 5.8 No

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I. ERISA’s Prohibited Transactions, Briefly Explained

ERISA is a comprehensive federal statute that regulates retirement and employee benefit plans, as well as the conduct of fiduciaries who act on behalf of plan participants and other beneficiaries. 6 Sect ion 404 of ERISA sets out general duties for plan fiduciaries, sponsors, and others. Section 406 further protects participants and beneficiaries by prohibiting certain transactions involving plan assets that are “believed to pose a high risk of fiduciary self

- dealing.” 7 Subsection 406(a) regulates transactions between a plan and “parties in interest” with respect to the plan. A “party in interest” includes, among others, persons providing services to the plan. 8 Haley alleges that the collateralized loans violate two provisions of § 406(a):

E xcept as provided in section [ 408 ] of this title .

. . [a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know tha t such transaction constitutes a direct or indirect

—

. . . (B) lending of money or other extension of credit between the plan and party in interest; [or]

6 See Harris Tr. & Sav. Bank v. John Hancock Mut. Life Ins. Co. , 302 F.3d 18, 26 (2d Cir. 20 02) (quoting H.R. Rep. No. 533, 93d Cong., 2nd Sess. 1, reprinted in 1974 U.S.C.C.A.N. 4639, 4639).

7 Henry v. Champlain Enters., Inc. , 445 F.3d 610, 618 (2d Cir. 2006).

8 29 U.S.C. § 1002(14)(B). At a general level, a “party in interest” is any entity “ that a fiduciary might be inclined to favor at the expense of the plan’s beneficiaries.” Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc.
, 530 U.S. 238, 242 (2000).9 No

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(D) transfer to, or use by or for the benefit of a party in interest, of any assets of the plan[.] 9

S ection 406(a)’s broad language would ban most transactions involving service providers, like TIAA

. But § 406(a) is expressly limited by § 408, which authorizes the Secretary of Labor to exempt certain transactions so long as they are in the “interests of the plan’s participants and beneficiaries.” 10 TIAA asserts that two exemptions are potential ly applicable here

. 11 First, § 408(b)(1 ) exempts loans to participants provided that, among other things, they are made in accordance with specific provisions of the plan document, “bear a
reasonable rate of interest
, ” and are “adequately secured.” 12 Second, § 408(b)(17 ) permits transactions prohibited by § 406(a)(1 ) (B) and (D) as long as the plan pays no more and receives no less than “adequate
consideration.” 13

9 29 U.S.C. §§ 1106(a)(1)(B), (D). Haley initially also alleged that TIAA charged exc essive and unreasonable compensation, in violation of § 406(a)(1)(C). Haley does not oppose TIAA’s request to modify the certification order as to this claim.

10 Boggs v. Boggs , 520 U.S. 833, 846 (1997) (citing 29 U.S.C. § 1108(a)(2)) (internal quotati on marks omitted).

11 Because Haley has conceded that her § 406(a)(1)(C) claim should
not be resolved classwide, we need not consider TIAA’s arguments that the exemption to excessive compensation claims as set forth in § 408(b)(2) applies.

12 29 U.S.C. § 1108(b)(1). The Department of Labor ’s definition of “participant loans” presupposes that the loan is exempt under § 408(b)(1) and thus not a prohibited t ransaction. See 29 C.F.R. § 2550.408b

- 1( a )(3)(i). For our purposes, although we may use the term participant loan as shorthand, we express no opinion as to whether the challenged loans in fact meet the statutory definition.

13 29 U.S.C. § 1108(b)(17)(A).10 No

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II. Standard of Review

We review class certification decisions , including a district court’s rulings that each of the Rule 23 requirements are satisfied, for
abuse of discretion. 14 We give greater deference to decisions granting
class certification than to those declining to certify. 15 But “[t]o be
afforded this deference

. . . the certification must be sufficiently supported and explained.” 16

Rule 23 (a) requires that a proposed class be sufficiently

numerous, have questions of law or fact common to the class, and involve representative plaintiffs whose claims or defenses are typical
of the class and who can fairly and adequately protect the class’s
interests. 17 The district court certified the class under Rule 23(b)(3), pursuant to which a plaintiff must also establish that questions of law
or fact common to the putative class “predominate” over questions affecting only individual members and that the class acti on vehicle is the superior method of adjudication

. 18

III. TIAA’s Challenges to Certification

TIAA disputes Haley’s ability to show both that there are questions common to the class and that such issues predominate.

14 In re Initial Pub. Offerings Sec. Litig

. , 471 F.3d 24, 31 (2d Cir. 2006), decision clarified on denial of reh'g sub nom. In re Initial Pub. Offering Sec. Litig. , 483 F.3d 70 (2d Cir. 2007); Johnson v. Nextel Commc’ns. Inc. , 780 F.3d 128, 137 (2d Cir. 2015).

15 See Johnson , 780 F.3d at 137.

16 Langan v. Johnson & Johnson Consumer Cos., Inc. , 897 F.3d 88, 97 (2d Cir. 2018)

. 17 Fed. R. Civ. P. 23(a).

18 Johnson , 780 F.3d at 137 ; Fed. R. Civ. P. 23(b)(3).11 No

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Because the district court determined that predominance was satisfied without analyz ing the § 408 exemptions or TIAA’s claimed variations among the loans, we vacate and remand for it to undertake that inquiry in the first instance.

A. Commonality

“ W here the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there is a common question.” 19 Commonality is usually easier to show than predominance 20 and the district court did not abuse its discretion in finding that former requirement satisfied. As an example, whether
the uniform requirement that collateral be held in a TIAA annuity product rendered TIAA a p arty in interest “ us [ ing ]

. . . [ plan ] assets ” in violation of § 406(a)(1)(D) is a common issue bearing on the
defendant’s liability to the putative class. 21 TIAA recycles many of its arguments relating to commonality in its challenge to Haley’s ability to satisfy predominance. Because those arguments are “more

19 Johnson , 780 F.3d at 137 (internal citation and quotation marks omitted).

20 Comcast Corp. v. Behrend , 569 U.S. 27, 34 (2013).

21 29 U.S.C. § 1106(a)(1)(D). TIAA does not dispute that this attribute

was a common feature of the collateralized loans it serviced

.12 No

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efficiently addressed in light of the predominance .

. . requirement[] , ”

we will consider them in that context

. 22

B. Predominance

TIAA’s principal argument is that the district court erred by failing to include ERISA’s statutory exemptions as part of its predominance inquiry

. We agree.

P redominance is not simply an exercise in tallying up issues; it
is a qualitative inquiry that entails “careful scrutiny” of the nature and significance of a case’s common and individual issues. 23 To that end,

a complete assessment of predominance demands that a district court
“consider all factu al or legal issues” and classify them as subject either

to common or individual proof. 24 It is well settled that this exercise includes any affirmative defenses, 25 such as the § 408 exemptions

. 26
A ffirmative defenses do not carry “less weight ” on the class
certification issue simply because the defendant will bear the burden

22 Johnson , 780 F.3d at 140.

23 See In re Petrobras Sec. , 862 F.3d 250, 27 1 (2d Cir. 2017) ( internal quotation marks and emphasis omitted) ; 1 McLaughlin on Class Actions § 5:23 (18th ed.).

24 Myers v. Hertz Corp. , 624 F.3d 537, 55 0 (2d Cir. 2010) (internal citation and quotation marks omitted).

25 Id. (collecting cases); Johnson , 780 F.3d at 138 (noting that as part of both the commonality and predominance analysis, the court “must assess

. . . the elements of the claim s and defenses to be litigated” (internal quotation marks omitted) ).

26 Henry , 445 F.3d at 619; Lowen v. Tower A sset Mgmt., Inc. , 829 F.2d 1209, 1215 (2d Cir. 1987).13 No

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of proof at the merits stage. 27 Here, as explained below, t he district

court ’s treatment of the exemptions was simply to exclude them from the predomin ance analysis because, as affirmative defenses, the burden of proving them rests with TIAA. Rule 23(b)(3) demands

more

.

We start with § 408(b)(17), which exempts transactions that otherwise violate § 406(a)(1)(B) and (D) as long as the “plan receives

no less, n or pays no more, than adequate consideration .” 28 There is

no rule that clearly defines what consideration is “adequate” ; it is
instead a standard that takes into account whether the fiduciary
exercised “good f aith ” in approving the amount the plan pays or
receives. 29 So, o ur “focus[] [is] on the conduct of the fiduciaries in determining the price, not the price itself.” 30 Haley asserts that the “adequacy” determination can be made classwide because good faith
is evaluated against what is obje ctively reasonable. TIAA argues that individualized proof must be marshalled from non

- party plan fiduciaries showing how each plan fiduciary valued the assets and whether, given other options available to the plan, the fiduciary exercised good faith in selecting the terms offered by TIAA. So, even if good faith is measured against an objective metric, the application

27 Myers , 624 F.3d at 551. TIAA does not dispute that, as a non

fiduciary, it also bears the burden of showing that an exemption applies.

28 29 U.S.C. § 1108(b)(17)(A).

29 29 U.S.C. § 1108(b)(17)(B)(ii).

30 Henry , 445 F.3d at 619

– 20 (emphasis added) (interpreting the Department of Labor’s Proposed Regulation Relating to the Definition of Adequate Consideration, 53 Fed. Reg. 17,632, 17,634) (May 17, 1988) and noting that, a lthough the proposed regulation had no legal effect, “numerous c ircuit c ourts have adopted the DOL’s proposed definition”).14 No

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of facts pertaining to each non

- party fiduciary may be individ ualized. Notwithstanding this dispute, t he district court limited its analysis to suggesting only that determining whether the plans received adequate compensation “is not quite as easy” to resolve with common proof

. 31

As for the other exemption that TI AA asserts may apply , the
district court’s decision gives us no indication that the court factored it into its predominance analysis at all

. Section 408(b)(1) exempts loans “made by the plan to parties in interest who are participants or
beneficiaries of the plan” so long as, inter alia
, the loans are “made in accordance with specific provisions regarding such loans set forth in the plan,” “bear a reasonable rate of interest,” and “are adequately
secured.” 32 The parties’ briefs dispute whether the loans are eligible for a § 408(b)(1) exemption and whether such a determination could be made with classwide proof. TIAA emphasizes the individualized nature of reviewing each loan against the specific plan’s govern ing documents to ensure compliance

. 33 I t adds that by submitting only
her loan contract, Haley failed to supply the district court with necessary proof that the various plans in the purported class were sufficiently similar . TIAA also relies on regulatio ns that define
“reasonableness” in light of rates that would be offered by “local banks” and financial institutions in the community, as well as current economic conditions, to argue that reasonableness is necessarily a
fact

- and plan

- specific inquiry

. 34 Haley counters t hat the same

31 Special App’x 22.

32 29 U.S.C. § 1108(b)(1).

33 See 29 C.F.R. § 2550.408b

- 1(d).

34 29 C.F.R. § 2550.408b

- 1(e).15 No

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regulations provide that a “loan program containing a precondition designed to benefit a party in interest (other than the participant) is not afforded relief by section 408(b)(1).” 35 According to Haley, e ven

assum ing the interest rate charged on each loan in the class is reasonable, requiring borrowers to invest their collateral in a TIAA
T raditional Annuity is a disqualifying “precondition. ”

That certain of the exemption

- related issues may overlap with
the merits of this case does not absolve a district court from addressing them at the certification stage when such determination s bea r on assessing a R ule 23 requirement

. 36 The court must still find
that each of the requirements is satisfied in order to certify a class. We recognize, however, that t he “determination as to a Rule 23 requirement is not binding on the trier of fact in its determination of
the merits.” 37

Becau se the district court did not analyze the exemptions, it also did not engage with the evidence that TIAA submitted to
substantiate the purported variations among the plans. A district court cannot simply “take the plaintiff’s word that no material
differe nces exist.” 38 While it may be true, as the district court
surmised , that the loans had the “same basic central .

. . structure,” it made no findings about the interest rate s that TIAA credited on the collateral, the interest rates that participants paid, and whether those rates varied across loans to support its conclusion that the class

35 29 C.F.R. § 2550.408b

- 1(a)(3)(i).

36 Wal

- Mart Corp. v. Dukes , 564 U.S. 338, 351

– 52 & n.6 (2011) ; In re I.P.O. Sec. Litig. , 471 F.3d at 41.

37 Johnson , 780 F.3d at 138

. 38 Langan , 897 F.3d at 97.16 No

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members were adversely affected in the same way. 39 We have
instructed that a district court must “assess all of the relevant

ev idence admitted at the class certification stage.” 40 The district court did not do that here and, in the process, impaired our appellate
review.

On this basis, w e cannot say the district court took the requisite
“close look at whether the common legal qu estions predominate over
individual ones.” 41 W e are thus constrained to find that the district
court’s determination on predominance was not “within the range of permissible decisions
, ” 42 and therefore remand is required. 43

39 Special App’x 9

– 10

. 40 In re I.P.O. Sec. Litig. , 471 F.3d at 42.

41 Langan , 897 F.3d at 97 (internal citation and quotation marks omitted).

42 Myers , 624 F.3d at 5 48

. 43 We are mindful that d istrict courts have various “management tools” at their disposal, including bifurcating classwide issues from individual issues, and identifying subclasses of “more homogenous groups defined by common legal or factual questions.” In re Petrobras Sec. , 862 F.3d
at 274; see Fed. R. Civ. P. 23(c)(4), (5). We reiterate in the interest of thoroughness that, if the district court were to rely on subclasses on remand, then it would need to (as any district court must) not only identify those subclasses but also explain their nece ssity and show that proceeding in that manner comports with Rule 23(b)(3)’s requirements. See Langan , 897 F.3d at 98. We express no opinion as to whether any of the tools we have identified here may be appropriate to this case and leave that determinatio n to the district court in the first instance.17 No

. 21

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C ONCLUSION

In sum
, we VACATE the district court’s decision and REMAND for further proceedings consistent with this opinion.