IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

 Case No. 20-cv-50286

PLAINTIFFS’

MEMORANDUM OF LAW IN 

SUPPORT OF MOTION FOR 

FINAL APPROVAL OF CLASS 

ACTION SETTLEMENT

Jamie Hill, Kathryn Neild, and Tricia Marvin, as 

representatives of a class of similarly situated 

persons, and on behalf of the Mercy Health 

Corporation Employees’ Retirement Plan, the 

Rockford Health System Retirement Plan, and the 

Rockford Health Physicians Retirement Plan,

Plaintiffs,

v.

Mercy Health Corporation, Mercy Health System 

Corporation, and Does 1-20,

Defendants.

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................2

I. PROCEDURAL HISTORY...................................................................................................2

A. The Pleadings and Motion to Dismiss.....................................................................2

B. Early Discovery, Mediation, and Settlement ...........................................................2

C. Preliminary Approval of the Settlement ..................................................................3

II. OVERVIEW OF SETTLEMENT TERMS................................................................................3

A. The Settlement Class................................................................................................3

B. Monetary Relief .......................................................................................................4

C. Prospective Relief....................................................................................................5

D. Release of Claims ....................................................................................................5

III. CLASS NOTICE AND REACTION TO THE SETTLEMENT .....................................................5

IV. REVIEW AND APPROVAL BY INDEPENDENT FIDUCIARY ..................................................6

ARGUMENT...................................................................................................................................7

I. LEGAL STANDARD ..........................................................................................................7

II. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE .............................................8

A. The Class Representatives and Class Counsel Have Adequately Represented the 

Class.........................................................................................................................8

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

Experienced, Capable Class Counsel After Meaningful Discovery ........................9

C. The Settlement Provides Substantial Monetary and Non-Monetary Relief to the 

Class.......................................................................................................................10

D. The Settlement Proceeds Will Be Distributed Equitably and Efficiently..............13

E. The Class, Independent Fiduciary, and Counsel Support the Settlement..............13

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III. THE CLASS NOTICE PLAN WAS REASONABLE AND EFFECTIVE .....................................14

IV. THE COURT SHOULD REAFFIRM ITS CERTIFICATION OF THE SETTLEMENT CLASS........15

CONCLUSION..............................................................................................................................15

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TABLE OF AUTHORITIES

Cases

Abbott v. Lockheed Martin Corp., 

No. 3:06-cv-00701, Dkt. 526 (S.D. Ill. July 20, 2015)......................................................12

Allegretti v. Walgreen Co., 

No. 1:19-cv-05392, Dkt. 116 (N.D. Ill. Feb. 16, 2022).........................................13, 14, 15

Am. Int’l Group, Inc. v. ACE INA Holdings, Inc., 

2012 WL 651727 (N.D. Ill. Feb. 28, 2012) .........................................................................9

Beach v. JPMorgan Chase Bank, Nat’l Ass’n,

No. 17-cv-00563, Dkt. 211 (S.D.N.Y. May 20, 2020) ......................................................11

Beach v. JPMorgan Chase Bank, Nat’l Ass’n,

220 WL 6114545 (S.D.N.Y. Oct. 7, 2020) .......................................................................11

Bhattacharya v. Capgemini N. Am., Inc., 

No. 1:16-cv-07950, Dkt. 114 (N.D. Ill. Nov. 13, 2018) ................................................2, 13

Dolins v. Cont’l Cas. Co., 

No. 1:16-cv-08898, Dkt. 133 (N.D. Ill. Sept. 20, 2018)....................................................10

Eubank v. Pella Corp., 

2019 WL 1227832 (N.D. Ill. Mar. 15, 2019).......................................................................7

Hale v. State Farm Mut. Auto. Ins. Co., 

2018 WL 6606079 (S.D. Ill. Dec. 16, 2018)......................................................................12

In re Household Int’l, Inc. ERISA Litig., 

2004 WL 7329911 (N.D. Ill. Nov. 22, 2004) ....................................................................11

In re Rite Aid Corp. Sec. Litig., 

146 F. Supp. 2d 706 (E.D. Pa. 2001).................................................................................11

Isby v. Bayh, 

75 F.3d 1191 (7th Cir. 1996) ...............................................................................8, 9, 10, 14

Johnson v. Fujitsu Tech. & Bus. of Am., Inc., 

2018 WL 2183253 (N.D. Cal. May 11, 2018)...................................................................11

Lively v. Dynegy, Inc., 

2008 WL 4657792 (S.D. Ill. Sept. 30, 2008).....................................................................13

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Loomis v. Exelon Corp., 

658 F.3d 667 (7th Cir. 2011) .............................................................................................12

Nolte v. Cigna Corp., 

No. 2:07-cv-02046, Dkt. 412 (C.D. Ill. Oct. 15, 2013)......................................................14

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985)...........................................................................................................14

Price v. Eaton Vance Corp., 

No. 18-12098, Dkt. 32 (D. Mass. May 6, 2019)................................................................11

Price v. Eaton Vance Corp., 

No. 18-12098, Dkt. 57 (D. Mass. Sept. 24, 2019) .............................................................11

Ramos v. Banner Health, 

461 F. Supp. 3d 1067 (D. Colo. 2020)...............................................................................12

Ramos v. Banner Health, 

1 F.4th 769 (10th Cir. 2021) ..............................................................................................12

Redman v. RadioShack Corp., 

768 F.3d 622 (7th Cir. 2014) ...............................................................................................7

Schulte v. Fifth Third Bank, 

805 F. Supp. 2d 560 (N.D. Ill. 2011).................................................................9, 10, 11, 12

Seiden v. Nicholson, 

72 F.R.D. 201 (N.D. Ill. 1976)...........................................................................................12

Sims v. BB&T Corp., 

2019 WL 1995314 (M.D.N.C. May 6, 2019) ....................................................................11

Snyder v. Ocwen Loan Servicing, LLC, 

2019 WL 2103379 (N.D. Ill. May 14, 2019).......................................................................8

Spano v. Boeing Co., 

No. 3:06-cv-00743, Dkt. 588 (N.D. Ill. Mar. 31, 2016) ..............................................12, 14

T.K. Through Leshore v. Bytedance Tech. Co., 

2022 WL 888943 (N.D. Ill. Mar. 25, 2022).......................................................................14

Toomey v. Demoulas Super Mkts., Inc., 

No. 1:19-cv-11633, Dkt. 95 (D. Mass. March 24, 2021)...................................................11

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Toomey v. Demoulas Super Mkts., Inc., 

No. 1:19-cv-11633, Dkt. 100 (D. Mass. Apr. 7, 2021)......................................................11

Urakhchin v. Allianz Asset Mgmt. of Am., L.P., 

2018 WL 8334858 (C.D. Cal. July 30, 2018)....................................................................11

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 

396 F.3d 96 (2d Cir. 2005)...................................................................................................9

Williams v. Rohm & Haas Pension Plan, 

2010 WL 1490350 (S.D. Ind. Apr. 12, 2010)....................................................................13

Williams v. Rohm & Haas Pension Plan, 

658 F.3d 629 (7th Cir. 2011) .............................................................................................13

Wong v. Accretive Health, Inc., 

773 F.3d 859 (7th Cir. 2014) ...............................................................................................9

Rules, Statutes, Regulations

Fed. R. Civ. P. 23.............................................................................................................................8

Fed. R. Civ. P. 23(b)(1)(A)............................................................................................................15

Fed. R. Civ. P. 23(b)(1)(B) ............................................................................................................15

Fed. R. Civ. P. 23(c)(2)(B) ............................................................................................................14

Fed. R. Civ. P. 23(e) ........................................................................................................................7

Fed. R. Civ. P. 23(e)(2)....................................................................................................................8

Fed. R. Civ. P. 23(e)(2)(A) ..............................................................................................................8

Fed. R. Civ. P. 23(e)(2)(B) ..............................................................................................................9

Fed. R. Civ. P. 23(e)(2)(C) ............................................................................................................10

Fed. R. Civ. P. 23(e)(2)(C)(ii)........................................................................................................13

Fed. R. Civ. P. 23(e)(2)(D) ............................................................................................................13

28 U.S.C. § 1715..............................................................................................................................6

68 Fed. Reg. 75632 ......................................................................................................................6, 7

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75 Fed. Reg. 33830 ..........................................................................................................................6

Other Authorities

Restatement (Third) of Trusts, § 100 cmt. b(1) .............................................................................12

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INTRODUCTION

On December 10, 2021, this Court preliminarily approved the Parties’ Class Action 

Settlement Agreement, which resolves Plaintiffs’ class action claims against Defendants Mercy 

Health Corporation and Mercy Health System Corporation (“Defendants”) under the Employee 

Retirement Income Security Act of 1974, as amended (“ERISA”), relating to the management of 

three Mercy-affiliated defined contribution plans.1 See Dkt. 72. The Court found that the terms of 

the Settlement were “sufficiently fair, reasonable, and adequate to warrant sending notice of the 

Settlement to the Settlement Class” and approved the distribution of the Notices of Settlement as 

specified in the Settlement Agreement. See id. at 2. The events following this order confirm that 

the Settlement is fair and reasonable and warrants final approval.

First, an Independent Fiduciary reviewed the Settlement pursuant to Department of Labor 

(“DOL”) regulations and independently determined that the Settlement terms are reasonable. See 

Declaration of Brock J. Specht in Support of Plaintiffs’ Motion for Final Approval of Class Action 

Settlement (“Second Specht Decl.”) Ex. 1 (Report of the Independent Fiduciary). Among other 

things, the Independent Fiduciary found that “the Settlement was achieved at arms’ length and is 

reasonable given the uncertainties of a larger recovery for the Class at trial and the value of claims 

foregone.” Id. at *4.

Second, notice of the Settlement was provided to 16,268 class members, and in response 

no objections were received. See Second Specht Decl. ¶ 4; Declaration of Jeffrey Mitchell in 

Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement (“Mitchell Decl.”) 

¶¶ 9, 16. The fact that the class members voiced no concerns about the Settlement further 

1 The plans at issue in this case are the Mercy Health Corporation Employees’ Retirement Plan (“Mercy 

Plan”), Rockford Health System Retirement Plan (“RHS Plan”), and Rockford Health Physicians 

Retirement Plan (“RHP Plan”) (collectively, the “Plans”).

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demonstrates that the Settlement is fair and reasonable. See Bhattacharya v. Capgemini N. Am., 

Inc., No. 1:16-cv-07950, Dkt. 114, at *4 (N.D. Ill. Nov. 13, 2018).

Accordingly, Plaintiffs respectfully request that the Court grant final approval of the 

Settlement. This motion is unopposed by the Defendants.

BACKGROUND

I. PROCEDURAL HISTORY2

A. The Pleadings and Motion to Dismiss

Plaintiffs Jamie Hill and Kathryn Neild filed this action on August 4, 2020. Dkt. 2. The 

Complaint was later amended on November 20, 2020 to add Plaintiff Tricia Marvin. Dkt. 40.

In their Amended Complaint, Plaintiffs allege that Defendants failed to prudently monitor and

control the Plans’ brokerage expenses and failed to prudently monitor certain Plan investments. 

Id. On December 23, 2020, Defendants filed a motion to dismiss. Dkt. 48. Plaintiffs filed a 

memorandum in opposition to Defendants’ motion on January 13, 2021 (Dkt. 49), to which 

Defendants replied on January 27, 2021 (Dkt. 52). At the Parties’ request, the Court then stayed 

the litigation pending mediation and the negotiation of the present Settlement. See Dkts. 59–62.

B. Early Discovery, Mediation, and Settlement

While Defendants’ motion to dismiss was pending, the Settling Parties agreed to engage in 

early discovery to facilitate settlement discussions, which included the production of over 6,800 

pages of documents and by Defendants. See Dkts. 38, 38-1; Declaration of Kai Richter in Support 

of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement (“Richter Decl.”) ¶ 12. 

2 The procedural history of this case was previously discussed in connection with Plaintiffs’ motion for 

preliminary approval (Dkt. 66 at 2–3) and motion for attorneys’ fees and costs, administrative expenses, 

and class representative service awards (Dkt. 73-1 at 1–3). For ease of reference, Plaintiffs have recounted 

that history here.

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Following production and review of these materials, the Parties engaged in a full-day mediation 

with a neutral mediator, David Geronemus, on August 31, 2021.3 Richter Decl. ¶ 13. After 

extensive arm’s length negotiations, the Parties reached a settlement in principle, and then prepared 

the comprehensive Settlement Agreement. Id. ¶ 14; Dkts. 61–64.

C. Preliminary Approval of the Settlement

On December 10, 2021, the Court issued an Order granting preliminarily approval of the 

Settlement. Dkt. 72.

4 In its Order, the Court preliminarily certified the Settlement Class for 

Settlement purposes, see infra at 3–4, found the terms of the Settlement to be “sufficiently fair, 

reasonable, and adequate” and in accordance with all applicable requirements of law, and approved 

the distribution of the Settlement Notices as specified in the Settlement Agreement. See Dkt. 72 at 

1–2. In addition, the Court appointed Analytics Consulting, LLC (“Analytics”) to serve as the 

Settlement Administrator, distribute the Notices, and carry out the other duties specified in the 

Settlement Agreement. Id. at 2.

II. OVERVIEW OF SETTLEMENT TERMS

A. The Settlement Class

In granting preliminary approval of the Settlement, the Court preliminarily certified the 

following Settlement Class:

All participants and beneficiaries of the Mercy Health Corporation Employees’ 

Retirement Plan at any time from August 3, 2014 through December 10, 2021, and 

all participants and beneficiaries of the Rockford Health System Retirement Plan 

and Rockford Health Physicians Retirement Plan at any time from January 1, 2017 

through December 10, 2021, excluding members of the Mercy Health Corporation 

3 Mr. Geronemus is an experienced mediator who has successfully facilitated the resolution of numerous 

complex class actions, including ERISA class actions. Richter Decl. ¶ 13 & Ex. B.

4 Prior to the Court’s Preliminary Approval Order, the parties submitted an updated version of the 

Settlement Agreement on December 8, 2021 (Dkt. 70-1), which resolved issues identified by the Court in 

its November 24, 2021 Order (Dkt. 69). All references to the Settlement Agreement herein are to this 

updated version, which supersedes the prior version submitted on November 5, 2021 (Dkt. 66-2).

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ERISA Benefit Plans Advisory Committee for the Plans at any time during the 

Class Period.

Id. at 3. There are 16,268 Settlement Class Members. Mitchell Decl. ¶ 8.

5

B. Monetary Relief

Under the Settlement, Mercy Health Corporation will contribute $3.9 million to a common 

settlement fund. Settlement Agreement ¶¶ 2.29, 5.4–5.5. After accounting for any attorneys’ fees 

and costs, administrative expenses, and service awards approved by the Court, the Net Settlement 

Amount will be distributed according to the Settlement’s Plan of Allocation. Id. ¶¶ 2.33, 5.9, 6.1.

Under the Plan of Allocation, a Settlement Allocation Score will be calculated for each 

Class Member based on their quarterly account balances in the Plans, with each dollar invested in 

the Plans credited one (1) point, and then each dollar invested in the allegedly underperforming 

Voya Funds credited an additional one-half (0.5) point.6 Settlement Agreement ¶ 6.4.1–6.4.2. Each 

Class Member will then receive a pro rata share of the Net Settlement Amount based on their 

Settlement Allocation Score in relation to other Class Members. Id. ¶ 6.4.2. Current Participants 

will have their Plan accounts automatically credited with their share of the Settlement, and Former 

Participants may elect to receive either a check or a rollover to an IRA or other tax-qualified plan.

Id. ¶¶ 6.5–6.6. Former Participants who do not timely submit a Rollover Form will be sent a check. 

See id. ¶¶ 6.6.3, 6.6. Any uncashed checks will be paid into the Plans for the purpose of defraying 

administrative fees and expenses of the Plans. Id. ¶¶ 6.11–6.12.

5 Based on information provided by the Plans’ recordkeeper, the Parties previously estimated that there 

were over 20,000 Class Members. Richter Decl. ¶ 3. After identifying participants with accounts in more 

than one of the Plans, approximately 4,300 records were consolidated as duplicative. Mitchell Decl. ¶ 8. 6 The additional half point allocation for monies invested in the Voya Funds is intended to address the 

alleged losses associated with those funds. See Richter Decl. ¶ 6.

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C. Prospective Relief

The Settlement also provides that Defendants shall retain one or more independent 

consultants pursuant to ERISA § 3(21) for at least three years from the Settlement Effective Date.

Such service provider(s) will provide new perspective (i.e., the person(s) may not be an existing

service provider or otherwise affiliated with the Plans) in reviewing the investment options in the 

Plans, the fees for those options, and any brokerage fees incurred by the Plans. Id. ¶ 7.1.

D. Release of Claims

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

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

(1) that were asserted in the Action or could have been asserted in the Action based 

on any of the allegations, acts, omissions, purported conflicts, representations, 

misrepresentations, facts, events, matters, transactions or occurrences that are were 

alleged or asserted in the Action or could have been alleged or asserted based on 

the same factual predicate, whether or not pleaded in the Complaint ... ; (2) that 

would be barred by res judicata based on the Court’s entry of the Final Approval 

Order; (3) that relate to the direction to calculate, the calculation of, and/or the 

method or manner of allocation of the Qualified Settlement Fund pursuant to the 

Plan of Allocation or to any action taken or not taken by the Settlement 

Administrator in the course of administering the Settlement; or (4) that relate to the 

approval by the Independent Fiduciary of the Settlement Agreement, unless 

brought against the Independent Fiduciary alone.

Id. ¶ 2.39. The Released Claims do not include claims to enforce the Settlement. Id. ¶ 9.2.

III. CLASS NOTICE AND REACTION TO THE SETTLEMENT

Pursuant to the Court’s Order preliminarily approving the Settlement, Analytics mailed 

Notices of Settlement to each of the 16,268 Settlement Class members identified by the Plans’ 

recordkeeper. See Mitchell Decl. ¶ 9.

Prior to sending these Notices, Analytics cross-referenced the addresses on the class list 

with the United States Postal Service National Change of Address Database. Id. ¶ 8. In the event 

that any Notices were returned, Analytics re-mailed the Notice to any forwarding address that was 

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provided, and performed a skip trace in an attempt to ascertain a valid address for the Class 

Member in the absence of a forwarding address. Id. ¶¶ 11–12. As a result, the notice program was 

very effective. Out of 16,268 Notices that were mailed, only 217 (1.33%) were ultimately 

undeliverable despite these efforts. Id. ¶ 13.

If any Class Members desired further information, Analytics established a Settlement 

Website at www.mercyhealtherisa.com. Id. ¶ 14.

7 Analytics also created and maintained a tollfree telephone support line (1-844-575-1894) as a resource for Class Members seeking additional 

information. Id. ¶ 15. This telephone number was referenced in the Notices, and also appears on 

the Settlement Website. Id.

The deadline to submit objections to the Settlement was April 4, 2022. See Dkt. 72 at 5. 

No objections were received. See Second Specht Decl. ¶ 4; Mitchell Decl. ¶ 16.

On November 15, 2021, Analytics also sent the notices required by the Class Action 

Fairness Act, 28 U.S.C. § 1715, to the appropriate federal and state officials. Mitchell Decl. ¶ 6. 

No objections were received in response to the CAFA notices, either. Id. ¶ 16.

IV. REVIEW AND APPROVAL BY INDEPENDENT FIDUCIARY

Pursuant to Paragraph 3.1 of the Settlement Agreement and applicable ERISA regulations,8

the Settlement was submitted to an Independent Fiduciary (Gallagher Fiduciary Advisors, LLC) 

for review following the Court’s Preliminary Approval Order. See Second Specht Decl. Ex. 1.

7 Among other things, the Settlement Website includes: (1) a “Frequently Asked Questions” page 

containing a clear summary of essential case information; (2) a “Home” page and “Important Dates” page, 

each containing clear notice of applicable deadlines; (3) case and settlement documents for download 

(including, among other things, the Settlement Agreement, Settlement Notices, Former Participant Rollover 

Form, Amended Complaint, the Court’s Preliminary Approval Order, and Plaintiffs’ Motion for Approval 

of Attorneys’ Fees and Costs, Administrative Expenses, and Class Representative Service Awards and 

related documents); (4) contact information for Class Counsel and the Defendants’ Counsel; and (5) email, 

phone, and U.S. mail contact information for Analytics. Mitchell Decl. ¶ 14. 8 See Prohibited Transaction Exemption 2003-39, 68 Fed. Reg. 75632, as amended, 75 Fed. Reg. 33830.

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After reviewing the Settlement and numerous case documents, and interviewing counsel for each 

of the Parties and the neutral mediator, the Independent Fiduciary affirmed, among other things, 

that: (1) “[t]he settlement terms, including the scope of the release of claims; the amount of cash 

received by the plan; the proposed attorney’s fee award of one third of the settlement; and any 

other sums to be paid from the recoveries, are reasonable in light of the plan’s likelihood of full 

recovery, the value of claims foregone and the risks and costs of litigation,” id. at *3; (2) “the 

Settlement was achieved at arms’ length and is reasonable given the uncertainties of a larger 

recovery for the Class at trial and the value of claims foregone,” id. at *4; and (3) “[a]lthough the 

transaction will have the incidental effect of releasing the fiduciaries, the Settlement is not 

designed to benefit those fiduciaries but rather to resolve claims that have not been fully 

adjudicated and to enable the Plans to recover a portion of their losses,” id. at *5. Accordingly, the 

Independent Fiduciary confirmed that “on behalf of the Plans . . . it approves and authorizes the 

settlement of Released Claims, as defined in the Settlement Agreement” and determined that “the 

Settlement Agreement meets the requirements of ERISA Prohibited Transaction Class Exemption 

2003-39, as amended.” See id. at *1.

ARGUMENT

I. LEGAL STANDARD

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

settlement agreement that will bind absent class members. “[T]he law quite rightly requires more 

than a judicial rubber stamp when the lawsuit that the parties have agreed to settle is a class action.” 

Redman v. RadioShack Corp., 768 F.3d 622, 629 (7th Cir. 2014). A court may approve a settlement 

only if it determines after a hearing that the proposed settlement is fair, reasonable, and adequate.

Eubank v. Pella Corp., 2019 WL 1227832, at *2 (N.D. Ill. Mar. 15, 2019).

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Federal Rule of Civil Procedure 23, as amended (effective December 2018), identifies four 

factors considered in making such determination: (1) adequacy of representation, (2) existence of 

arm’s-length negotiations, (3) adequacy of relief, and (4) equitableness of treatment of class 

members. Fed. R. Civ. P. 23(e)(2). These factors overlap significantly with the more detailed list 

of factors that courts in this Circuit have typically used for purposes of reviewing a proposed class 

action settlement (the “Isby factors”): “the strength of plaintiffs’ case compared to the amount of 

defendants’ settlement offer, an assessment of the likely complexity, length and expense of the 

litigation, an evaluation of the amount of opposition to settlement among affected parties, the 

opinion of competent counsel, and the stage of the proceedings and the amount of discovery 

completed at the time of settlement.” Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir. 1996). Because 

these principles “subsume most of the factors listed in Rule 23(e)(2),” Snyder v. Ocwen Loan 

Servicing, LLC, 2019 WL 2103379, at *5 (N.D. Ill. May 14, 2019), they are considered together.

As discussed below, both the factors in Rule 23(e)(2) and the Isby factors overwhelmingly favor 

approval of the Settlement.

II. THE SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE

A. The Class Representatives and Class Counsel Have Adequately Represented 

the Class

First, the Class Representatives and Class Counsel have adequately represented the 

interests of the Class. See Fed. R. Civ. P. 23(e)(2)(A). Each of the named Plaintiffs agreed to 

perform their duties as class representatives, and each has fulfilled those duties throughout the 

course of the litigation. See Dkts. 67-07, 67-09, 67-11. Class Counsel are also adequate, with 

extensive experience in ERISA litigation, see Richter Decl. ¶¶ 19–20, and have skillfully 

represented the Class by obtaining substantial relief in the incipiency of litigation. This factor 

supports final approval.

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

Experienced, Capable Counsel after Meaningful Discovery

Next, courts consider whether the proposal was negotiated at arm’s length and review the 

circumstances surrounding the negotiations, including the stage of the proceedings and the amount 

of discovery completed at the time of settlement. See Fed. R. Civ. P. 23(e)(2)(B); Isby, 75 F.3d 

at 1199. “A ‘presumption of fairness, adequacy, and reasonableness may attach to a class 

settlement reached in arm’s-length negotiations between experienced, capable counsel after 

meaningful discovery.’” Am. Int’l Group, Inc. v. ACE INA Holdings, Inc., 2012 WL 651727, at *10 

(N.D. Ill. Feb. 28, 2012) (quoting Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 

(2d Cir. 2005)). That is exactly the situation presented here. 

Although the case settled in its incipiency, the record reflects that “enough discovery has 

taken place to ensure ‘effective representation’ of the settlement class.” See id., 2012 WL 651727, 

at *9 (quoting Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560, 587 (N.D. Ill. 2011)). Relevant 

here: (1) Class Counsel undertook an extensive investigation of the factual and legal bases for 

Plaintiffs’ claims prior to commencing the action; (2) the parties’ legal positions were staked out 

in connection with the motion to dismiss; (3) Defendants produced over 6,800 pages of documents

prior to mediation; and (4) Class Counsel had the necessary experience and qualifications to 

evaluate the Parties’ legal positions and the early discovery that was produced. Richter Decl. 

¶¶ 10–12, 19–21. This gave the parties a clear view of the facts and law, and the strengths and 

weaknesses of their case. Under these circumstances, it was appropriate for the parties to explore 

an early settlement.9

9 Courts within this Circuit have approved settlements at similar stages of proceedings. See, e.g., Wong v. 

Accretive Health, Inc., 773 F.3d 859, 864 (7th Cir. 2014) (noting that, “although formal discovery had not 

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Moreover, Class Counsel and Defendants’ counsel (Morgan Lewis & Bockius, LLP) are 

knowledgeable and experienced in complex class actions such as this, and were assisted in their 

negotiations by Mr. Geronemus, an experienced, independent mediator.

10 After separately 

interviewing Class Counsel, Defendants’ counsel, and Mr. Geronemus, the Independent Fiduciary 

concluded, “the Settlement was achieved at arms’ length and . . . is at least as favorable as an armslength transaction agreed to by unrelated parties would likely have been.” Second Specht Decl. 

Ex. 1 at *4. These factors also support final approval.

C. The Settlement Provides Substantial Monetary and Non-Monetary Relief to 

the Class

The third Rule 23 factor considers whether “the relief provided to the class is adequate” in 

light of “the costs, risks, and delay” of further litigation. See Fed. R. Civ. P. 23(e)(2)(C);

11 see also 

Isby, 75 F.3d at 1199 (evaluating the strength of plaintiffs’ case compared to the amount of 

defendants’ settlement offer, and the likely complexity, length, and expense of the litigation). 

For the reasons that follow, these factors favor final approval.

First, the $3.9 million Gross Settlement Amount represents a significant portion of the 

alleged damages. Specifically, the $3.9 million recovery represents over half of the allegedly 

commenced, [plaintiffs] had access to extensive public documents,” and settlement was reached “after an 

arm’s-length negotiation where the parties’ positions on liability and damages were extensively briefed and 

debated” before an experienced mediator); Dolins v. Cont’l Cas. Co., No. 1:16-cv-08898, Dkt. 133, at *5 

(N.D. Ill. Sept. 20, 2018) (“The negotiations were supported by a robust investigation before 

commencement of the Lawsuit; the production and review of confidential documents ... and extensive legal 

and factual research on the issues in the case.”); Schulte, 805 F. Supp. 2d at 587.

10 See Richter Decl. ¶¶ 18–21; First Specht Decl. at ¶¶ 3–10; see also Richter Decl. ¶ 13.

11 Other relevant considerations include: (1) the terms of any award of attorneys’ fees, (2) any related 

agreement, and (3) the effectiveness of any proposed distribution method. Fed. R. Civ. P. 23(e)(2)(C). The 

first of these considerations has been addressed in connection with Plaintiffs’ motion for approval of 

attorneys’ fees and costs. See Dkt. 73-1 at 6–13; see also Second Specht Decl. Ex. 1 at *4 (“The fee request 

is also reasonable in light of the effort expended by Plaintiffs’ counsel in the Litigation.”). Second, there 

are no other agreements relating to the Settlement. See Settlement Agreement ¶ 13.13; Second Specht Decl. 

Ex. 1 at *5. The third consideration is discussed below. See infra at 13.

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inflated broker fees and nearly a quarter of the total estimated losses.12 This is on par with 

numerous other ERISA class action settlements that have been approved across the country.13 See 

In re Household Int’l, Inc. ERISA Litig., 2004 WL 7329911, at *4 (N.D. Ill. Nov. 22, 2004) (finding 

the monetary relief was “fair, reasonable, and adequate” where “[t]he Settlement amount is within 

the range of settlement values obtained in similar cases and is within the range of reasonable 

settlements that would have been appropriate in this case”); Schulte, 805 F. Supp. 2d at 583–84

(approving 10% recovery and collecting cases approving between 5.35% and 25.5% of a class’s 

maximum potential recovery).

Second, the Settlement also provides for meaningful prospective relief. As noted above, 

Defendants have agreed to retain a third-party investment consultant to monitor and review of the 

Plans’ investment lineup, related fees, and brokerage expenses for at least three years. Settlement

Agreement ¶ 7.1. These safeguards directly address the issues that Plaintiffs raised in the lawsuit, 

and supports approval of the Settlement. See Schulte, 805 F. Supp. 2d at 583 (noting that 

prospective relief provided an “important and valuable benefit” to the class that further supported

final settlement approval).

12 For purposes of mediation, Plaintiffs estimated that the total broker fees exceeded a reasonable amount 

by $7.1 million, and the total investment losses were approximately $8.9 million, for a total alleged loss of 

$16 million. Richter Decl. ¶ 4 & n.1. At present value, the alleged losses were $19.3 million. See id.

13 See, e.g., Toomey v. Demoulas Super Mkts., Inc., No. 1:19-cv-11633, Dkt. 95 at 10 (Mar. 24, 2021), 

approved Dkt. 100 (D. Mass. Apr. 7, 2021) (approving settlement that represented approximately 15–20% 

of alleged losses); Beach v. JPMorgan Chase Bank, Nat’l Ass’n, No. 17-cv-00563, Dkt. 211 (May 20, 

2020), approved, 2020 WL 6114545, at *1 (S.D.N.Y. Oct. 7, 2020) (16% of alleged losses); Price v. Eaton 

Vance Corp., No. 18-12098, Dkt. 32 at 12 (May 6, 2019), approved, Dkt. 57 (D. Mass. Sept. 24, 2019) 

(23% alleged losses); Sims v. BB&T Corp., 2019 WL 1995314, at *5 (M.D.N.C. May 6, 2019) (19% of 

estimated losses); Urakhchin v. Allianz Asset Mgmt. of Am., L.P., 2018 WL 8334858 (C.D. Cal. July 30, 

2018) (25% of estimated losses); Johnson v. Fujitsu Tech. & Bus. of Am., Inc., 2018 WL 2183253, at *6–7 

(N.D. Cal. May 11, 2018) (approximately 10% of losses under Plaintiffs’ highest model); see also In re 

Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706, 715 (E.D. Pa. 2001) (since 1995, class action settlements 

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

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Third, in the absence of a settlement, Plaintiffs would have faced significant litigation risks. 

At the time the parties reached a settlement, Defendants’ Motion to Dismiss was pending. In the 

event the motion was denied, there was a risk that the Court might have dismissed the claims on 

summary judgment. Assuming the case proceeded to trial, the Defendants still might have 

prevailed.14 Finally, even if Plaintiffs prevailed at trial on liability, issues would have remained 

regarding proof of loss and calculation of damages.15

There is little doubt that continuing the litigation would have resulted in complex and costly 

proceedings, which would have significantly delayed relief to Class, and might have resulted in no 

relief at all.16 ERISA cases such as this can extend up to a decade before final resolution, 

sometimes going through multiple appeals.17 The duration of these cases is, in part, a function of 

their complexity, which further weighs in favor of the Settlement. See, e.g., Schulte, 805 F. 

Supp. 2d at 586. Accordingly, it is no surprise that the Independent Fiduciary concluded, “[the 

Settlement] is reasonable given the uncertainties of a larger recovery for the Class at trial and the 

value of claims foregone.” Second Specht Decl. Ex. 1 at *4.

D. The Settlement Proceeds Will Be Distributed Equitably and Efficiently 

The Settlement also outlines an equitable and effective method of distribution. See Fed. R. 

Civ. P. 23(e)(2)(C)(ii), (D). As noted above, the Settlement proceeds will be distributed to Class 

14 See, e.g., Loomis v. Exelon Corp., 658 F.3d 667 (7th Cir. 2011). 15 See Restatement (Third) of Trusts, § 100 cmt. b(1) (determination of investment losses in breach of 

fiduciary duty cases is “difficult”); see, e.g., Ramos v. Banner Health, 461 F. Supp. 3d 1067, 1134–35 

(D. Colo. 2020), aff’d, 1 F.4th 769 (10th Cir. 2021) (rejecting the plaintiffs’ proffered damages calculation).

16 See Schulte, 805 F. Supp. 2d at 582–83; Seiden v. Nicholson, 72 F.R.D. 201, 208 (N.D. Ill. 1976) (“If this 

case had been litigated to conclusion, all that is certain is that plaintiffs would have spent a large amount of 

money, time, and effort.”); Hale v. State Farm Mut. Auto. Ins. Co., 2018 WL 6606079, at *4 (S.D. Ill. Dec. 

16, 2018) (“[A]bsent this proposed resolution, and considering the strong likelihood of post-trial motions 

and appeals, the parties were unlikely to achieve a final disposition any time soon.”).

17 See, e.g., Spano v. Boeing Co., 3:06-cv-00743, Dkt. 588 (N.D. Ill. Mar. 31, 2016) (9 years after filing); 

Abbott v. Lockheed Martin Corp., 3:06-cv-00701, Dkt. 526 (S.D. Ill. July 20, 2015) (8.5 years after filing).

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Members on a pro rata basis based on a common allocation formula. See supra at 4; Settlement

Agreement ¶¶ 6.4.1–6.4.2. This allocation formula is carefully designed to account for each 

category of losses alleged in this case. See Richter Decl. ¶ 6. Current Participants will have their 

Plan accounts automatically credited with their share of the Settlement, and Former Participants 

may elect to receive either a check or a rollover to an IRA or other tax-qualified plan. See supra at 

4. This method of distribution is both effective and efficient, avoids negative tax consequences for 

Class Members, and is consistent with numerous other ERISA class action settlements that have 

received court approval.18

E. The Class, Independent Fiduciary, and Counsel Support the Settlement

In light of the aforementioned factors, it is not surprising that there have been no objections 

to either the Settlement terms or the requested attorneys’ fees, expenses, or service awards from 

any of the 16,268 Class Members who were sent a Settlement Notice. See supra at 8–13. The 

absence of any objections to the Settlement by Class Members supports the conclusion that the 

proposed settlement is fair, reasonable, and adequate. See Bhattacharya, No. 1:16-cv-07950, 

Dkt. 114, at *4; Lively v. Dynegy, Inc., 2008 WL 4657792, at *2 (S.D. Ill. Sept. 30, 2008); see also 

Williams v. Rohm & Haas Pension Plan, 2010 WL 1490350, at *3 (S.D. Ind. Apr. 12, 2010), aff’d, 

658 F.3d 629 (7th Cir. 2011).

Independent Fiduciary’s approval and authorization of the settlement of Released Claims 

on behalf of the Plans further supports the Settlement. Second Specht Decl. Ex. 1 at *1. In 

authorizing the Settlement, the Independent Fiduciary affirmed that “[t]he settlement terms,

18 See, e.g., Allegretti v. Walgreen Co., 1:19-cv-05392, Dkt. 116 at *5 (N.D. Ill. Feb. 16, 2022) (holding, in 

relevant part, that “the Settlement Agreement provides fair, reasonable and adequate relief to the class 

given . . . the effectiveness of the proposed method for distributing relief, which ensures that qualified Class 

Members with greater than de minimis damages receive a portion of the settlement, in rough proportion to 

their alleged losses, without having to file a claim”).

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including the scope of the release of claims; the amount of cash received by the [Plans]; the 

proposed attorney’s fee award of one third of the settlement; and any other sums to be paid from 

the recoveries, are reasonable in light of the plan’s likelihood of full recovery, the value of claims 

foregone and the risks and costs of litigation.” Id. at *3.

Finally, it is Class Counsel’s opinion that the proposed Settlement is fair and reasonable. 

Richter Decl. at ¶ 9. This Isby factor supports final approval of the Settlement. 75 F.3d at 1199.

III. THE CLASS NOTICE PLAN WAS REASONABLE AND EFFECTIVE

The class notice program also was reasonable and satisfied the requirements of Rule 23 

and due process. 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 that was provided here. See Allegretti, 1:19-cv05392, Dkt. 116 at *3–4 (approving a similar notice program); Spano, No. 3:06-cv-00743, 

Dkt. 588 at *3 (same); Nolte v. Cigna Corp., No. 2:07-cv-02046, Dkt. 412 at *3 (C.D. Ill. Oct. 15, 

2013) (same).

As noted above, the Settlement Administrator sent the Court-approved Settlement Notices 

to Class Members via first-class U.S. Mail. See supra at 5–6. This type of notice is presumptively 

reasonable. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Further, the record 

reflects that approximately 98.67% of Notices of Settlement were successfully delivered. 

See Mitchell Decl. ¶ 13. This confirms the effectiveness of the notice program in this case. See

T.K. Through Leshore v. Bytedance Tech. Co., 2022 WL 888943, at *7 (N.D. Ill. Mar. 25, 2022). 

In addition, the Notices were accessible to all class members online via the Settlement Website.

Finally, the content of the Notices also was reasonable. These Notices were previously 

approved by the Court, see Dkt. 72 at 4, and are more than sufficient to meet the Rule 23 standard. 

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See, e.g., Allegretti, 1:19-cv-05392, Dkt. 116 at *4. No Class Member has claimed that the Notices 

were deficient, and to the extent they had any questions, they could review the Settlement Website, 

call the toll-free telephone line, or contact the Settlement Administrator or Class Counsel.

IV. THE COURT SHOULD REAFFIRM ITS CERTIFICATION OF THE SETTLEMENT CLASS

In its Preliminary Approval Order, the Court preliminarily certified the Settlement Class. 

Dkt. 72 at 3; see supra at 3–4. In support of preliminary approval, Plaintiffs previously established 

that: (1) the class is numerous; (2) common issues pertain to all class members; (3) Plaintiffs’ 

claims are typical of other class members’ claims; (4) Plaintiffs are adequate class representatives; 

(5) Class Counsel are experienced and competent; (6) class certification is appropriate under 

Rule 23(b)(1)(A) due to the risk of inconsistent adjudications; and (7) class certification is also 

appropriate under Rule 23(b)(1)(B) because any individual adjudication would be dispositive of 

other class members’ interests. Dkt. 66 at 12–15. Nothing has changed since the Court 

preliminarily certified the Settlement Class. Accordingly, the Courtshould reaffirm its certification 

of the Class.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court grant final approval 

of the settlement and enter the accompanying proposed Final Approval Order.

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Dated: April 18, 2022 NICHOLS KASTER, PLLP

s/Brock J. Specht

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

* admitted in N.D. Ill.

Brock J. Specht, MN Bar No. 0388343**

Patricia C. Dana, MN Bar No. 0400803**

** admitted pro hac vice

4700 IDS Center

80 S 8th Street

Minneapolis, MN 55402

Telephone: (612) 256-3200

Facsimile: (612) 338-4878

lukas@nka.com

bspecht@nka.com

pdana@nka.com

THE PRINZ LAW FIRM, P.C.

Kristen Prinz, IL Bar No. 6291900

1 East Upper Wacker Drive

Suite 2500

Chicago, IL 60601

Telephone: (312) 212-4450

Facsimile: (312) 284-4822

kprinz@prinz-lawfirm.com

WALCHESKE & LUZI, LLC

James A. Walcheske, WI Bar No. 1065635*

* admitted in N.D. Ill.

Paul M. Secunda, WI Bar No. 1074127**

** admitted pro hac vice

15850 W. Bluemound Rd., Suite 304

Brookfield, WI 53005

Telephone: (262) 780-1953

Facsimile: (262) 565-6469

jwalcheske@walcheskeluzi.com

psecunda@walcheskeluzi.com

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I hereby certify that on April 18, 2022, I caused a copy of the foregoing to be electronically 

filed with the Clerk of the Court by using the CM/ECF system, which will send a notice of 

electronic filing to all counsel of record. 

Dated: April 18, 2022 s/Brock J. Specht

Brock J. Specht

Case: 3:20-cv-50286 Document #: 78-1 Filed: 04/18/22 Page 24 of 24 PageID #:1250