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finding typicality requirement met despite differing investment choices because the nature of plaintiffs' claims "allege an overall failed process in selecting, reviewing, and monitoring investments, rather than fiduciary failures particular to any individual fund or funds"
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Aaron Elliott Schwartz, Heather Lea, James Redd, Kurt Charles Struckhoff, Michael Armin Wolff, Troy Andrew Doles, Jerome Joseph Schlichter, Schlichter Bogard and Denton, LLP, St. Louis, MO, for Plaintiffs.
Richard Jason Pearl, Theodore M. Becker, Drinker, Biddle & Reath, LLP, Christopher Joseph Boran, Emily Taylor Jastromb, Hillary E. August, James P. Looby, Sari M. Alamuddin, Morgan Lewis & Bockius, LLP, Chicago, IL, Jeremy P. Blumenfeld, Morgan Lewis & Bockius, LLP, Philadelphia, PA, for Defendants.
ORDER GRANTING IN PART MOTION FOR CLASS CERTIFICATION
William J. Martnez, United States District Judge
In this action Plaintiffs Lorraine M. Ramos and others bring a putative class action under Section 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132, against Defendants, including Banner Health, several of its officers (collectively, "Banner"), and Jeffrey Slocum & Associates, Inc. ("Slocum"). Now before the Court is Plaintiff’s Amended and Supplemental Memorandum in Support of Motion for Class Certification (ECF No. 221 (Plaintiff’s "Motion") ), which the Court has previously designated as Plaintiff’s pending and operative motion seeking class certification (see ECF No. 235). Defendants have responded (see ECF Nos. 245, 247), and the Court has received supplemental briefing at its direction regarding adequacy, discussed below (ECF Nos. 290, 291). For the reasons explained below, Plaintiffs’ Motion is granted in part.
I. BACKGROUND
The following facts are drawn primarily from Plaintiffs’ Complaint, and from other docketed materials as cited.
The seven named Plaintiffs are all participants in Banner’s 401(k) employee retirement plan (the "Plan"). (See ECF No. 118 ¶¶ 20-26.) The Plan is a defined-contribution plan (id. ¶¶ 9, 49), meaning that "the employee receives whatever level of benefits the amount contributed on his behalf will provide." However, for ERISA purposes, all Plan assets are held in trust. The trustee is appointed by the Banner Defendants, and Banner Health is the named fiduciary of the Plan and the Plan administrator within the meaning of ERISA, 29 U.S.C. § § 1002(16)(A) & 1102(a). (See ECF No. 118 ¶¶ 11-12, 14, 29.)
The Supreme Court has explained:
Banner selected Fidelity Management Trust Company ("Fidelity") to provide recordkeeping and administrative services to the Plan, and Fidelity— or one of its corporate affiliates— has been the Plan’s recordkeeper during all times relevant here. (Id. ¶¶ 12-13.) Defendant Slocum was a third-party investment consultant hired by Banner to act as a fiduciary for the investment and administration of Plan assets and was responsible for ongoing review of the investment options in the Plan. (Id. ¶ 37.)
In this action, Plaintiffs bring several claims pled under ERISA § 502. "Under ERISA, [plan] trustees have a fiduciary duty to act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries." Holdeman v. Devine, 572 F.3d 1190, 1193 (10th Cir. 2009) (internal quotation marks omitted). "A trustee must discharge his fiduciary duties prudently and solely in the interests of the participants and beneficiaries of the plan." Id. (internal quotation marks omitted; alterations incorporated).
Section 502(a)(2) (codified at 29 U.S.C. § 1132(a)(2) ) "authorizes ... plan participants, beneficiaries, and fiduciaries, to bring actions on behalf of a plan to recover for violations of the obligations defined in § 409(a). The principal statutory duties imposed on fiduciaries by that section [§ 409, codified at 29 U.S.C. § 1109] ‘relate to the proper management, administration, and investment of fund assets,’ with an eye toward ensuring that ‘the benefits authorized by the plan’ are ultimately paid to participants and beneficiaries.’ " LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 253, 128 S.Ct. 1020, 169 L.Ed.2d 847 (2008) (quoting Mass. Mut. Life Ins. v. Russell, 473 U.S. 134, 142, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) ).
"For defined contribution plans," alleged fiduciary misconduct "need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants and beneficiaries, or only to persons tied to particular individual accounts, it creates the kind of harms that concerned the draftsmen of § 409." LaRue, 552 U.S. at 255-56, 128 S.Ct. 1020.
Here, Plaintiffs bring a total of five claims. First, Plaintiffs allege Defendants breached their fiduciary duties of loyalty and prudence by, among other things, choosing and retaining Fidelity as the recordkeeper and administrator without opening the position to competitive bidding, and by allowing Fidelity to collect excessive recordkeeping and administrative fees from the Plan. (See ECF No. 118 ¶¶ 62-80, 120-30.) Plaintiffs specifically allege that Defendants "allowed Fidelity to receive uncapped, asset-based revenue sharing," such that "[a]s the assets in the Plan grew, the revenue sharing payments to Fidelity grew by a similar percentage, even though the services provided by Fidelity remained the same" (id. ¶¶ 123-24), and that Defendants breached their fiduciary duties to Plaintiffs by allowing this arrangement and by failing to monitor the amount of revenue-sharing that Fidelity received (id. ¶¶ 70, 79).
Second, Plaintiffs allege the Defendants breached their fiduciary duties and acted in violation of controlling Plan documents by providing imprudent investment options to Plan participants. Plaintiffs allege a number of specific factual theories in support of this claim, including that Defendants included among the Plan’s investment options "mutual funds with excessively high expenses and poor historical performance" (id. ¶ 132), and also failed to monitor or review the performance of mutual fund investment options made available within the Plan (id. ¶¶ 83b., 100, 136). Plaintiffs also allege that Defendants "elected to provide and maintain over 400 investment options in the Plan until late 2014," that "[m]any in this list ... were imprudent for ... retirement savings," "underperformed ... benchmarks ... [and] other funds of the same investment style, charged excessive fees, and paid revenue sharing to Fidelity far beyond a reasonable rate." (Id. ¶ 51.) Providing this "massive number of investment options," Plaintiffs allege, was in contrast to the fact that "defined contribution plans usually provide only 14 investment options, excluding target date funds." (Id. ¶ 53.) According to Plaintiffs, this allegedly excessive number of options confused Plan participants, "who in turn make more conservative, less informed [investment] choices." (Id. ¶ 52.)
Third, Plaintiffs allege that certain of the Banner Defendants "had a fiduciary responsibility to monitor the performance of the other fiduciaries," and breached this duty as "monitoring fiduciaries" by, "failing to monitor their appointees," evaluate their performance, ensure that a prudent process was in place to evaluate the Plan’s administrative fees, and ensure appropriate investment options were provided. (Id. ¶¶ 141-46.)
Fourth, Plaintiffs allege the Banner Defendants caused the Plan to engage in prohibited transactions with a party in interest, in violation of 29 U.S.C. § 1106(a), particularly by "causing the Plan to engage Fidelity ... for unreasonable compensation, which was derived in part through the selection and retention of Fidelity’s imprudent and unreasonably expensive mutual funds and investments." (Id. ¶ 150.)
Fifth, Plaintiffs allege the Banner Defendants caused the Plan to engage in a prohibited transaction with a fiduciary, in violation of 29 U.S.C. § 1106(b), by causing Banner itself to provide services to the Plan and receive payments from it. (Id. ¶¶ 155-57.)
II. LEGAL STANDARD
As the party seeking class certification, Plaintiff must first demonstrate that all four prerequisites of Federal Rule of Civil Procedure 23(a) are clearly met. Shook v. El Paso Cnty., 386 F.3d 963, 971 (10th Cir. 2004); see also Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013). These threshold elements are: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative party are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).
If a plaintiff proves he has met these threshold requirements, he must then demonstrate that the action falls within one of the three categories set forth in Rule 23(b). Shook, 386 F.3d at 971. Here, Plaintiff seeks certification pursuant to Rules 23(b)(1) and (3).
The party seeking to certify a class bears the strict burden of proving the requirements of Rule 23. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). In determining the propriety of a class action, the question is not whether a plaintiff has stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). When deciding whether the proposed class meets the requirements of Rule 23, the Court accepts the plaintiff’s substantive allegations as true, though it need not blindly rely on conclusory allegations and may consider the legal and factual issues which the complaint presents. Shook, 386 F.3d at 968; see also Vallario v. Vandehey, 554 F.3d 1259, 1265 (10th Cir. 2009). The Court should not pass judgment on the merits of the case, but must conduct a "rigorous analysis" to ensure that the requirements of Rule 23 are met. D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010).
The decision whether to grant or deny class certification "involves intensely practical considerations and therefore belongs within the discretion of the trial court." Tabor, 703 F.3d at 1227.
III. ANALYSIS
A. Proposed Class
Plaintiffs seek to certify and represent a class defined as:
All participants and beneficiaries of the Banner Health Employees 401(k) Plan from January 1, 2009 through the date of judgment, excluding the Defendants.
(ECF No. 221 at 6; ECF No. 118 ¶ 115.) The Court further addresses the class definition after addressing the prerequisites of Rule 23(a) & (b).
B. Rule 23(a)
The first task is to ensure that the Federal Rule of Civil Procedure 23(a) requirements are satisfied as to the proposed Class: (1) the class is so numerous that joinder of all members is impracticable ("numerosity"); (2) there are questions of law or fact common to the class ("commonality"); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ("typicality"); and (4) the representative parties will fairly and adequately protect the interests of the class ("adequacy").
Defendants argue Plaintiffs have not met their burden on commonality, typicality, or adequacy. (See ECF No. 245 at 8.) The Supreme Court has noted that "commonality and typicality... tend to merge," and "also tend to merge with the adequacy-of-representation requirement." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). The Court addresses each in turn, however, recognizing that the specific issues raised by Defendants in some cases affect more than one of the Rule 23(a) considerations.
1. Numerosity
Plaintiffs allege the proposed class "has over 33,000 members." (ECF No. 221 at 7.) This claim is supported by Banner’s reporting to the Internal Revenue Service, and Defendants do not contest numerosity. (See ECF No. 97-8 at 12; ECF No. 139 ¶ 10.) Since this approximate number of class members is not disputed and would make joinder impracticable, Plaintiffs have established numerosity.
2. Commonality
"To satisfy the commonality requirement, a party seeking class certification must demonstrate ‘there are questions of law or fact common to the class.’ " Menocal v. GEO Grp., Inc., 882 F.3d 905, 914 (10th Cir. 2018) (quoting Fed.R.Civ.P. 23(a)(2). "In other words, the class members’ claims must ‘depend upon a common contention ... of such a nature that it is capable of classwide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. (quoting Wal-Mart, 564 U.S. at 350, 131 S.Ct. 2541).
"[T]he Supreme Court has instructed that a question is common if there is "some glue holding the class members’ allegations together." Menocal, 882 F.3d at 914 (quoting Wal-Mart, 564 U.S. at 352, 131 S.Ct. 2541). "A finding of commonality requires only a single question of law or fact common to the entire class." Menocal, 882 F.3d at 914.
Plaintiffs argue there are common questions of law or fact, "including: whether each defendant is a fiduciary; whether each defendant breached his or her fiduciary duty or engaged in a prohibited transaction in each respect alleged by Plaintiffs; whether the Plan suffered losses from these breaches; how to calculate the Plan’s losses; and what equitable relief should be imposed to remedy such breaches and prevent future breaches," and also that "all of the questions of law and fact ... are common to each class member." (ECF No. 221 at 8.)
Defendants’ attack commonality on the grounds that named Plaintiffs Karen McLeod and Robert Moffit have claims which Defendants contend are "antagonistic to the class." (See ECF No. 245 at 10, 11, 12.) As to Ms. McLeod, Defendants argue that "contrary to the Amended Complaint’s allegations, she wanted more investment options in the Plan." (ECF No. 245 at 10 (emphasis added) ) This argument mischaracterizes her deposition testimony, which reflects that she remembered "a lot of choices ... within the program," but that after she had researched funds she liked, the options changed to "a small[er] amount of choices," and that she was "very uncomfortable with the shifting" of available options. (See ECF No. 246-10.) While Ms. McLeod did "[n]ot necessarily" prefer a larger number of options, she was "bothered" that the Plan "seemed to eliminate ... choices of funds that I liked." (ECF No. 252-6 at 2.) The Court sees little conflict between this general testimony and the Complaint’s overarching allegation that Defendants provided imprudent investment options, and that among the ways they did so was by failing to "monitor the Plan’s investment options," failing "to engage in a prudent process for the selection and retention of Plan investment options," selecting and retaining options "for reasons other than the best interest of the Plan," and "[p]roviding such a massive number of investment options" that they were confusing to Plan participants. (See ECF No. 118 ¶¶ 52, 132.)
Some of the supporting materials in the parties’ briefing have been filed under Restriction. See D.C.COLO.LCivR. 7.2. To the extent the Court quotes or summarizes such materials here it has determined that those statements do not warrant restriction under Local Rule 7.2.
As to Mr. Moffitt, Defendants cite deposition testimony that he thought Defendants "had a fiduciary duty to provide funds in the core that were the most appropriate for [a] 401(k) plan," and that the core Plan options "weren’t that diversified." The Court agrees with Plaintiffs that Mr. Moffitt’s testimony, read as a whole, is "entirely consistent with the allegation" that— especially in "core" offerings (as distinguishable from the hundreds of options offered through the "mutual fund window" or similar expansive brokerage services— "[w]ithin each asset class and investment style deemed appropriate ... prudent fiduciaries must ... select a prudent investment option." (ECF No. 118 ¶ 58; see ECF No. 252 at 6; ECF No. 245-5 at 10-11.)
In sum, any tension or inconsistency between the testimony of these two named Plaintiffs and the Plaintiffs’ pled claims is, at most, debatable. Defendants may be able to raise this purported record conflict to argue against the merits of Plaintiffs’ claims, but it does not defeat class certification.
3. Typicality
Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." However, "[d]iffering fact situations of class members do not defeat typicality so long as the claims of the class representative and class members are based on the same legal or remedial theory." Menocal, 882 F.3d at 914 (internal quotation marks omitted). "The positions of the class representatives need not be identical to those of the other class members, so long as there is a sufficient nexus between the claims of the class representatives and the common questions of law or fact which unite the class." Decoteau v. Raemisch, 304 F.R.D. 683, 689 (D. Colo. 2014). The relevant inquiry is "whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (as to both commonality and typicality).
a. Statute of Limitations as to Plaintiff Moffitt
Defendants argue that Plaintiff Moffitt is not a typical class representative because his claims are time-barred. "The basic ERISA limitation period of six years begins on the date of the breach or violation. However, a plaintiff with actual knowledge of a non-fraudulent breach of ERISA fiduciary duties must file suit within three years." Wright v. Heyne, 349 F.3d 321, 327 (6th Cir. 2003). Defendants argue the three-year limitation bars Plaintiff Moffitt’s claims, citing deposition testimony reflecting that by 2009 he thought, "in a general way," that the Plan fiduciaries weren’t meeting their responsibilities, specifically because of excessive fees and insufficient diversity in the core funds. (ECF No. 245-5 at 9; see also ECF No. 245 at 11-12.)
The relevant statute of limitations question is whether or when Plaintiff Moffitt "had actual knowledge of the breach or violation." 29 U.S.C. § 1113(2). "The issue of defining ‘actual knowledge’ has vexed the circuits." Edes v. Verizon Commc’ns, Inc., 417 F.3d 133, 141 (1st Cir. 2005). Neither party has cited— and the Court has not located— any controlling Tenth Circuit case interpreting or applying the "actual knowledge" standard. See Mid-S. Iron Workers Welfare Plan v. Harmon, 645 Fed.Appx. 661, 665 (10th Cir. 2016) ("We have yet to define the phrase ‘actual knowledge,’ but our sister circuits have, falling for the most part into two schools of thought: those that require some understanding that the conduct is unlawful under ERISA and those that merely require knowledge of the conduct itself." (finding it unnecessary to resolve the question on the facts raised) ); Schapker v. Waddell & Reed Fin., Inc., 2018 WL 1033277, at *4 (D. Kan. Feb. 22, 2018) ("The Tenth Circuit has not yet defined the phrase ‘actual knowledge’ for purposes of ... § 1113(2)." (quoting Harmon ) ).
Moreover, in the context of claims somewhat similar to those asserted here, another district court in this circuit has recently observed that
Several courts have held that when a plaintiff pleads a fiduciary breach claim premised on a flawed process in selecting investment options— as opposed to a claim of excessive fees or underperformance of a specific investment product— the plaintiff "must have been aware of the process utilized by [the fiduciary] in order to have had actual knowledge of the resulting breach of fiduciary duty." This approach has been used even under the ... more liberal definition of "actual knowledge."
Schapker, 2018 WL 1033277, at *4 & nn. 22-24 (quoting Fish v. GreatBanc Trust Co., 749 F.3d 671, 681 (7th Cir. 2014) and gathering other cases; finding plaintiff had pled "a plausible process-based fiduciary breach claim" which was not time-barred under § 1113(2) ).
The Court finds it need not conclusively resolve the question of the correct application of the "actual knowledge" standard for present purposes. Certainly, courts have held that "a class representative whose claim is time-barred cannot assert the claim on behalf of the class," Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1347 (11th Cir. 2001), but between the weakness of Defendants’ factual record as to specifically what Plaintiff Moffitt knew, and when, and the uncertainty of the legal standard, Defendants have at most shown there is a remaining dispute over this defense, for this Plaintiff. Even under authority cited by Defendants, a plaintiff is not "disqualified as class representative if he may fail to prove his case or if the defendant may have good defenses; " rather, only if an individuals claim "is a clear loser at the time he asks to be made class representative" should the request be rejected on this basis." Robinson v. Sheriff of Cook Cnty., 167 F.3d 1155, 1158 (7th Cir. 1999) (emphasis in original). The potential time-bar issue raised by Defendants is not enough to defeat class certification, even as to Plaintiff Moffitt individually, much less to defeat certification overall.
b. Plaintiff Goodale’s Release
Defendants also argue that named Plaintiff Cherlene Goodale cannot be a class representative because, in the context of a 2014 "reduction in force" and a separation agreement she entered with Banner at that time, she executed a release which, Defendants argue, "could be broad enough to release ERISA § 502(a)(2) claims." (ECF No. 245 at 10.)
Plaintiffs respond that "[t]he vast majority of courts have concluded that an individual release has no effect on an individual’s ability to bring a claim ... under § 502(a)(2)," because such claims "are brought on behalf of the Plan, and a participant cannot release the Plan’s claims, as a matter of law." (ECF No. 252 at 6-7 (quoting In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 594 (3d Cir. 2009) and In re Williams Cos. ERISA Litig., 231 F.R.D. 416, 423 (N.D. Okla. 2005) ). Moreover, Plaintiffs point out that the release’s explicit terms exclude "any claims which may arise ... after the date" when it was signed by Ms. Goodale. (ECF No. 246-9 at 5; see also ECF No. 252 at 7.)
Like Defendants’ statute of limitations argument as to Plaintiff Moffitt, the Court finds that Plaintiff Goodale’s release at most presents a disputed defense as to claims she had before signing the release on August 11, 2014, but appears to have no effect on any claims arising after that date, nor on any named Plaintiffs other than Ms. Goodale. This does not make Plaintiff Goodale’s claims a "clear loser," and does not defeat class certification. See Robinson, 167 F.3d at 1158; see also Moore v. Comcast Corp., 268 F.R.D. 530, 537-38 (E.D. Pa. 2010) ("While [plaintiff’s] specific claim may occur over a shorter or different time period than other class members’ claims, there is a ‘strong similarity of legal theories’ based on a single ‘course of conduct’ by defendants. * * * In claims for breach of fiduciary duty under ERISA, all class members have a shared interest in establishing defendants’ liability that vastly outweighs any divergence of interests that arise from differing dates of [claimed injuries].")
c. Investments Owned by Named Plaintiffs
Defendants also argue that the named Plaintiffs cannot be representatives for the proposed class of all Plan participants, because many of them made different investment choices within the Plan than did the named Plaintiffs.
Defendants primarily rely on Spano v. The Boeing Company, 633 F.3d 574 (7th Cir. 2011), in which the named plaintiffs brought ERISA § 502(a)(2) breach of fiduciary duty claims similar to some of Plaintiffs’ allegations here, alleging that in a defined-contribution employee investment plan, Boeing caused the plan to pay excessive fees, offered imprudent investments, and concealed information regarding fees and expenses.
Spano addressed consolidated appeals of one set of plaintiffs against Boeing, and of a separate set of plaintiffs against the International Paper Company, raising fundamentally similar claims, and where the district court "certified an identical class" in both cases. See 633 F.3d at 576-77. The relevant discussion and analysis here focus on the Boeing plaintiffs and facts.
Reviewing the evolution of ERISA case law from defined-benefit plans to defined-contribution plans, Spano, suggested that "the theory that the plaintiffs are advancing ... [is] sound," but reasoned that "[t]o determine whether class treatment is appropriate [for a § 502(a)(2) claim], we must distinguish between an injury to one person’s retirement account that affects only that person, and an injury to one account that qualifies as a plan injury, and that only "[t]he latter kind of injury potentially would be appropriate for class treatment." Id. at 581.
Noting that "whether to certify a class asserting section 502(a)(2) claims is ... a complex [question]" which "turn[s] on the circumstances of each case," Spano concluded, as to commonality, that "[t]he assertion that Boeing imposes excessive fees on all participants," and "failed to satisfy its fiduciary duties in its selection of investment options, both describe problems that would operate across the plan rather than at the individual level." Id. at 582. However, as to typicality and adequacy, the court found the class problematic, finding it impossible to determine whether there was "congruence between the named representative’s claim and that of the unnamed members of the class," given an overbroad class definition that included "[a]nyone ... who was ever a participant in the Boeing Plan, or who in the future may become a participant ... if he or she ‘may have been affected by the conduct set forth in [the] Complaint.’ " The court noted that "many participants in the past ... never held a single share in either or both of" two specific funds to which plaintiffs objected. The court stated
it seems that a class representative in a defined-contribution case would at a minimum need to have invested in the same funds as the class members. It is entirely possible, after all, that out of the 11 options a particular plan might offer, 10 were sound and one was ill-advised and should never have been offered.... there must be a congruence between the investments held by the named plaintiff and those held by members of the class he or she wishes to represent.
Id. at 586.
Given the result in Spano, Defendants argue here that because Plaintiff did not invest in all of the roughly 400 different investment options offered in the Plan, they are not typical or adequate representatives for a class of all Plan participants, including participants who invested only in funds or options different from the ones the named Plaintiffs selected.
Spano is easily distinguishable and not controlling on the facts here. While Plaintiffs do claim that the Plan included imprudent options, the alleged breach of fiduciary duty, as pled in Plaintiffs’ second claim, broadly arises from the allegation that Defendants "had no prudent or loyal process for selecting and retaining Plan investment options." (ECF No. 118 at 23; id. at 24, ¶ 51.) Where the Spano plaintiffs alleged that particular funds were chosen in violation of the defendants’ fiduciary duties, here the Plaintiffs allege that Defendants applied no meaningful selection criteria whatsoever to fund selection in general. In this regard, the claims here allege a "flawed process in selecting investment options— as opposed to a claim of excessive fees or underperformance of a specific investment product." Cf. Schapker, 2018 WL 1033277, at *4 (emphasis added).
Moreover, since Spano, other courts, including the Seventh Circuit itself, have made clear that Spano does not foreclose class certification on distinguishable facts and claims. See Abbott v. Lockheed Martin Corp., 725 F.3d 803, 805 (7th Cir. 2013) ("In Spano ... we confronted ... whether an action for breach of fiduciary duty under Section 502(a)(2) ... may be maintained as a class action when a defined-contribution retirement savings plan is at issue. We concluded in Spano that the answer was ‘maybe.’ ").
In Abbott, the Seventh Circuit revisited Spano, emphasizing that the problems there had arisen from a particular "combination of exceedingly broad class definitions and murky claims," and that Spano resolved "only the cases before [the court]." Id. at 806. In reversing a district court that had read too much into Spano , Abbott emphasized that the teaching of Spano is not a narrow or strict rule that class definitions must have a one-to-one correlation to investments owned by the representatives. Rather, as revisited in Abbott , Spano reflects only that district courts should "avoid certifying classes in which a significant portion of the class may have interests adverse to that of the class representative." Abbott, 725 F.3d at 813. However, "Spano did not imply, that the mere possibility that a trivial level of intra-class conflict may materialize as the litigation progresses forecloses class certification." Id. at 813. Where the "specifics of the ... claim make it unlikely that the sorts of conflicts ... [presented] in Spano will arise," id. at 814, then class certification is not foreclosed and, where the substance of the named plaintiffs’ claims relates primarily to alleged common practices, Spano, even were it controlling on this Court, does not require that the class definition be limited only to those specific funds owned by the class representatives.
Other courts, before and after Spano, have likewise declined the invitation— advanced by Defendants here— to require a strict one-to-one correspondence between the class representatives’ investments and those of the defined class, rather than calling for the more nuanced and case-specific analysis which is always required under Rule 23. See e.g., Krueger v. Ameriprise Financial, Inc., 304 F.R.D. 559, 573 (D. Minn. 2014) ("[T]he Eighth Circuit in Alpern [v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996) ] signaled that the fact that Plaintiffs have not invested in all of the challenged investment options is not a bar to class certification. Nor is the fact that the putative class members invested in different options at different times."); Troudt v. Oracle Corporation, 325 F.R.D. 373, 375-76, 2018 WL 637462, at *2 (D. Colo. Jan. 30, 2018) (concluding Spano required more precise definitions of sub-classes for claims targeting specific investment funds, but did not preclude class certification overall).
Given this review, the Court is unpersuaded that either Spano or any subsequent case applying it calls for rejecting Plaintiffs’ request for class certification as a whole, given the nature of their claims, which allege an overall failed process in selecting, reviewing and monitoring investments, rather than fiduciary failures particular to any individual fund or funds.
4. Adequacy
The adequacy inquiry asks whether the named class representatives "will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). "Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002) (internal quotation marks omitted).
To the extent the arguments regarding typicality and/or commonality addressed above also bear on adequacy, the Court’s preceding analysis also applies here. Beyond that, Defendants challenge the named Plaintiffs (at least six of the seven) as knowing too little about their claims to be adequate class representatives, and as having improperly lent their names to litigation in which class counsel are fully in control, to the exclusion of the named Plaintiffs. Furthermore, the Court ordered supplemental briefing as to whether, "all of the named Plaintiffs are pursuing claims against Defendants only in response to, and as a result of, counsel’s solicitation," and if so, what bearing that fact would have on adequacy. (See ECF No. 276.)
The parties’ supplemental briefing confirms that all of the named Plaintiffs contacted counsel after viewing an advertisement placed by counsel. (ECF No. 292 at 1.) Specifically, counsel placed an advertisement in one or more print publications, including the Greeley Tribune, reading:
ATTENTION Banner Health Employees and Retirees If you currently participate in the Banner Health Employees 401(k) Plan, we would like to speak with you about our investigation of the fees and investment options in your 401(k) plan. * * *
(ECF No. 245-1 (boldface in original; typeface otherwise normalized.)
Named Plaintiff Delri Hanson testified that she met counsel after responding to an advertisement or "listing" on Facebook, by calling an "800 number." (ECF No. 290-1 at 3.)
Defendants argue that in addition to having contacted counsel only in response to this advertisement, the named Plaintiffs "did not respond to the solicitation because they thought they had been harmed," and that many of them had no identified concerns with the Plan or its management before speaking with Plaintiffs’ counsel. (See ECF No. 290 at 1.) If the "adequacy requirement is to have any meaning whatsoever," Defendants argue, then these Plaintiffs have failed to carry their burden." (ECF No. 290 at 290.)
In response to the Court’s Order directing further briefing on adequacy, Plaintiffs leading argument is that "[t]he cases cited by the Court were securities fraud class actions governed by the Private Securities Litigation Reform Act (PSLRA), which imposes a heightened adequacy standard on lead plaintiffs." (ECF No. 292 at 1.) This argument is, at best, a red herring. True, the PSLRA establishes standards and procedures for the appointment of lead plaintiffs in certain securities class actions, and true, those provisions do not apply here. See generally 15 U.S.C. § 78u-4. But the cases cited by the Court’s Order, although raising securities-related claims, were not applying PSLRA standards. Indeed two of the three cited cases pre-dated the PSLRA by many years, while the third cited to and relied upon the earlier two, while engaging in a Rule 23(a)(4) analysis, not a PSLRA lead plaintiff analysis. In short, Plaintiffs’ statement that these "were ... governed by the ... PSLRA" is simply wrong, and their efforts to obscure the issue and/or mislead the Court are not well taken. (See ECF No. 292 at 1, 2-3.)
See ECF No. 276 at 1 (citing Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987) ("courts have properly denied class certification where the class representatives had so little knowledge of an involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys ... the ‘inquiry into the knowledge of the representative is to ensure that the party is not simply lending his name to a suit controlled entirely by the class attorney’ " (quoting 7A Charles A. Wright et al., Federal Practice & Procedure § 1766) ), Kelley v. Mid-Am. Racing Stables, Inc., 139 F.R.D. 405, 409 (W.D. Okla. 1990) (finding named plaintiffs inadequate under Rule 23(a) given their lack of personal knowledge or understanding of their claims), and Griffin v. GK Intelligent Sys., Inc., 196 F.R.D. 298, 302 (S.D. Tex. 2000) ).
Nevertheless, while Defendants’ supplemental briefing expands their argument that the named Plaintiffs are insufficiently familiar with their claims, Defendants have not identified authority demonstrating either that Plaintiffs’ response to counsel’s advertisement, or more generally their level of detailed knowledge of their ERISA claims, defeats class certification.
While viewing the adequacy analysis on the facts presented as something of a close call, the Court is persuaded that the correct analysis is not "[w]hether ... the class representative is familiar with the specifics of the complaint," but is instead directed at "the more critical question of whether that individual will adequately represent the claims of the class by devoting time and effort to the lawsuit." See City P’ship Co. v. Jones Intercable, Inc., 213 F.R.D. 576, 584 (D. Colo. 2002) ("Jones ") (quoting In re S.E. Hotel Props. Ltd. P’ship Inv. Litig., 151 F.R.D. 597, 607 (W.D.N.C. 1993) ). Furthermore, there is authority suggesting that "[t]he Supreme Court in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 370-74, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966) expressly disapproved of attacks on the adequacy of a class representative based on the representative’s ignorance," and that an overly "harsh application of the rules" here is not warranted. Baffa v. Donaldson, Lufkin & Jenrette § Corp., 222 F.3d 52, 61 (2d Cir. 2000).
a. Adequacy as to Banner
Although Plaintiffs initially responded to an advertisement, that is, by itself, neither unusual nor dispositive. What is more important is that since contacting counsel each of the named Plaintiffs has invested time and effort in this litigation, including by meeting with counsel, reviewing the complaint before it was filed, preparing and sitting for depositions, and maintaining contact with counsel. (See ECF No. 292-2 ¶ 5.) Each of the named Plaintiffs has indicated that they understand their role is to represent the class, not merely their own interests. (See ECF No. 252 at 4 n.5 (gathering record citations).) The Court is also satisfied that the named Plaintiffs have a sufficient understanding of their claims against the Banner Defendants. Further, given the low response rate that the Court would expect for mass media advertisements like the one here, the fact that the named Plaintiffs responded at all reflects at least some independent initiative and concern with the management of the Plan on the part of the Plaintiffs, particularly since the advertisement itself neither alleged any wrongdoing nor promised that Plaintiffs stood to gain financially from responding.
See generally, e.g., 6 William B. Rubinstein, Newberg on Class Actions § 19:3 (5th ed.) ("any attorney seeking to file a class action must have a client who is a member of the class and willing to serve as a class representative * * * it is rare that such a client shows up at the lawyer’s office proposing the case. While that happens, as often it is the lawyers who are aware of a potential case and must find class representatives to enable them to pursue the case"). See also generally, In re Vitamin C. Antitrust Litig., 279 F.R.D. 90, 108 (E.D.N.Y. 2012) (concluding, based on authorities cited, that "[i]n the past, the fact that class counsel had solicited a representative party to bring a class action was taken into consideration by courts making class certification determinations. However, this concern has wanted in recent years, and courts are now reluctant to give much weight to this factor in a class certification analysis.")
Plaintiff Ramos explained her understanding of the claims as follows:
Plaintiffs’ understanding of their claims is, in any event, greater than that reflected in those few cases identified by Defendants wherein ignorance of the claims defeated class certification. See e.g, Kelley, 139 F.R.D. at 410 (reflecting an "almost total lack of personal knowledge of their claims"). Here, as in Jones, "[t]he plaintiffs are familiar in general terms with the facts underlying their claims, are familiar with the basic elements of their claims, and cannot be characterized as ‘alarmingly unfamiliar’ with the suit." 213 F.R.D. at 585; accord In re First Am. Corp. ERISA Litig., 263 F.R.D. 549, 558 & n. 6 (C.D. Cal. 2009) (adequacy demonstrated where "there [was] at least some evidence that the Plan Participants are knowledgeable about and prepared to prosecute this action," and "any unfamiliarity with the case does not rise to the level of abdication to counsel"; comparing facts to other cases).
In addition, as this Court has stated previously, the adequacy analysis "cannot be divorced from the type of claims at issue." Teets v. Great-West Life & Annuity Ins. Co., 315 F.R.D. 362, 370 (D. Colo. 2016). This is particularly the case with respect to claims asserted under a remedial statute such as ERISA. "ERISA is an enormously complex and detailed statute," id., and, the legal and factual complexity of Plaintiffs’ claims makes it highly unlikely they could be discovered without the investigation of experienced counsel. Accord Kanawi v. Bechtel Corp., 254 F.R.D. 102, 111 (N.D. Cal. 2008) ("[E]ven if Plaintiffs did not have reason to suspect that there were problems with the Plan before contacting counsel, that is simply the nature of a claim of this type. The average person would have no reason to believe that the administrator of his 401(k) plan was acting imprudently, particularly when a substantial part of the allegations involve the concealment of material information."). Furthermore, the Court cannot lose sight of the fact that "[t]he Secretary of Labor, who is charged with enforcing ERISA ... depends in part on private litigation to ensure compliance with the statute," Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009). W hen considering the competing arguments of the parties with regard to Rule 23 class certification on the facts presented here, the Court must remain mindful of the critical role played by this "private attorney general" method of enforcing the remedial statutory goals and purposes of ERISA.
These considerations further persuade the Court that under the correct adequacy analysis for these claims, the named Plaintiffs are adequate class representatives inasmuch as they have demonstrated a commitment to understand and advance the claims and have no problematic conflicts with other class members. To the extent they lacked specific grievances prior to speaking with counsel, or lack a detailed command of their highly complex factual and legal claims, neither concern makes them inadequate representatives or precludes class certification.
For all of these reasons, and while recognizing the matter is considerably closer than Plaintiffs acknowledge, the Court is satisfied that Plaintiffs can adequately represent the class claims against the Banner Defendants
b. Adequacy as to Slocum
The Court reaches the opposite conclusion as to Defendant Slocum, however. Even given the considerations described above, the deposition testimony from the would-be class representatives reflects that even after Plaintiffs claims against Slocum had been filed, and even after lengthy discovery and multiple opportunities to review pleadings and meet with counsel, the named representatives had essentially no knowledge of Slocum’s alleged role or breaches of duty. The would-be representatives have not even convincingly paraphrased the claims against Slocum as articulated and pled by their counsel (see ECF No. 290-1 at 12), can offer no description of what services Slocum provided to Banner, or what conduct Slocum allegedly engaged in (see ECF No. 290-3 at 8), and can provide no answer to questions regarding what they believed Slocum did with regard to allegedly excessive fees, although that is one of Plaintiffs’ core factual claims (see ECF No. 290-4 at 16). In short, in contrast to a reasonable and sufficient articulation of their claims against Banner as a whole, see supra note 8, even years into this litigation, the named Plaintiffs profess no meaningful knowledge of Slocum’s conduct or alleged ERISA violations, nor even any working knowledge of the relationship between Slocum and Banner.
Accordingly, the Court cannot find as to Slocum that the putative class representatives are acting in any meaningful way as parties. The Court is unpersuaded that the Plaintiffs are in a position to take any form of "supervisory role over lead counsel," Griffin, 196 F.R.D. at 302, including as to decisions regarding settlement. Rather, as to Slocum, the Court finds Plaintiffs have done no more than "simply lend their names to a suit controlled entirely by the class attorney[s]." Cf. Kirkpatrick, 827 F.2d at 727 (alterations incorporated). Moreover, this remains true even after they have had ample opportunity to digest the claims which have already been asserted against Slocum. Therefore, as to Slocum, the Court agrees with Defendants that if the adequacy analysis on which Plaintiffs bear the burden is to retain any meaning, it prevents the named Plaintiffs from advancing class claims against Slocum.
C. Rule 23(b)
Plaintiffs argue for certification under either Rule 23(b)(1)(A) or (B). (See ECF No. 221 at 12.) Defendants advance no particular argument against certification under Rule 23(b). (See ECF No. 245.)
The Court finds Plaintiffs’ arguments for certification under Rules 23(b)(1)(A) & (B) to be particularly persuasive, given the recognition of many other courts that "ERISA fiduciary litigation presents a paradigmatic example of a Rule 23(b)(1) class." See, e.g., Troudt, 325 F.R.D. at 376, 2018 WL 637462, at *2 (quoting In re Global Crossing Securities & ERISA Litig., 225 F.R.D. 436, 453 (S.D.N.Y. 2004) ); see also Schering Plough, 589 F.3d at 604 (also describing ERISA § 502(a)(2) claims as "paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) class" (citing additional cases) ); Kreuger, 304 F.R.D. at 575-78 (finding class certification "appropriate under Rule 23(b)(1)(B) ). Particularly given the lack of opposition from Defendants, the Court agrees with and follows this mostly uniform authority without reiterating the broadly persuasive and consistent analysis.
D. Scope of Class Definition
While Defendants primarily argue against certification of any class, they also argue, in the alternative, that Plaintiffs’ proposed class definition is "unworkably overbroad" and should be more narrowly defined in two respects.
1. Statute of Repose
Defendants argue that any class definition must be limited by the applicable statute of repose, which provides:
No action may be commenced under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of—
(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation;
except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation.
Because Plaintiff’s Complaint was not filed until November 20, 2015, Defendants argue that "any class cannot begin prior to November 20, 2009." (ECF No. 245 at 14.) Plaintiffs acknowledge the six-year statute of repose, but argue that because they have pled the " ‘fraud or concealment’ exception," the Court should certify the broader class now, subject to later modification. (See ECF No. 252 at 10.)
The Court declines Plaintiffs’ request to certify a class that is not supported by the present record. Although Plaintiffs claim "[d]iscovery is ongoing" and they "continue to gather evidence," this case has been pending for over two years, and Plaintiffs have put forward no meaningful evidence to support their request for a more expansive class definition, relying only on broadly-framed pleading allegations. (See ECF No. 252 at 9-10.)
To be specific, beginning in January 2016, Plaintiffs were authorized to propound up to 50 interrogatories, 40 requests for production, and 25 requests for admission, and to notice up to 40 fact witness depositions (see ECF No. 25), yet as September 2017, when Plaintiffs renewed their motion for class certification, the closest they could come to substantiating "fraud or concealment," is a citation to a single named Plaintiff’s testimony that she had questions regarding the fees and expenses charged by Fidelity, tried to answer those questions by reviewing documents, "did not see what [she] was looking for," and that follow-up telephone and e-mail inquiries to Fidelity did not give her a "definitive answer." (See ECF No. 252 at 10 & n.7; ECF No. 252-6 at 3-10, 13.) T his at most seems to reflect one instance in which Fidelity’s communications with a single investor were unsatisfying, but is hardly sufficient to show "fraud or concealment" by Banner, to escape the usual statute of repose, or to carry Plaintiffs’ burden in showing the appropriateness of their proposed class definition.
See generally Fulghum v. Embarq Corp., 785 F.3d 395, 415 (10th Cir. 2015) ("the exception to the general six-year statute applies when the alleged breach of fiduciary duty involves a claim the defendant made ‘a false representation of a matter of fact, whether by words or conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury’ or when the defendant conceals the alleged breach of fiduciary duty" (emphasis added) ); see also Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir. 2006) ("The issue raised by this provision is not simply whether the alleged breach involved some kind of fraud but rather whether the fiduciary took steps to hide its breach.").
Plaintiffs are correct that the Court may later modify a class definition, see Fed.R.Civ.P. 23(c)(1)(C). Nevertheless the Court finds the sensible course here, and one which results in an outcome more consistent with the burden under Rule 23 and the usual limitations period imposed by § 1113 (rather than its exception), is to certify the class which the present record supports, leaving the onus on Plaintiffs (rather than on Banner) to seek modification in the future, if Plaintiffs have evidence to support their allegations of fraud and concealment. See Fulghum, 785 F.3d at 416 ("The exception ... is defined and limited."). Accordingly, and pursuant to 29 U.S.C. § 1113, the Court will restrict the class definition to the period beginning November 20, 2009.
The Court recognizes that other courts have taken the opposite course, including the recent decision by Senior U.S. District Judge Robert E. Blackburn of this District Court in Troudt, 325 F.R.D. at 375-77, 2018 WL 637462, at *2-3 (certifying a class "defined by the time frame suggested by plaintiffs, subject to later modification if discovery fails to bear out the truth of plaintiffs’ allegations of concealment."). Here, however, given how long this case has already been pending, and how considerable has been the opportunity for discovery the Plaintiffs have already been afforded, the Court is persuaded that the more sound approach is to define the class based on the factual support available now.
2. Limitation to Investments Owned by Class Representatives
Defendants also argue, relying on Spano, supra, that the named class representative "may only represent individuals who invested in the same investment options that they selected," thereby restricting the class from all Plan participants to only those participants who invested in the same funds or other investment options chosen by the named Plaintiffs. (ECF No. 245 at 14.) Consistent with the Court’s analysis and distinguishing of Spano above, and given the nature of Plaintiffs’ claims alleging a failure of the process for selecting, reviewing, and monitoring the Plan’s investment options, the Court is unpersuaded that the class should be so limited.
The Court views this result as consistent not only with Spano, but also with Judge Blackburn’s recent analysis and application of Spano in the Troudt case pending in this district. In both of those cases, the claims were directed at a finite number of funds, alleging breaches of fiduciary duty specific to those investments. Thus in Spano, lack of investment in those funds created an adequacy problem, and in Troudt, it made sense to certify sub-classes as to each viably challenged fund or investment. As detailed above, the nature of the claims here both distinguishes this case and would make certification of subclasses (of potentially 400-plus distinct investments) impracticable and completely unworkable.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. Plaintiffs Amended and Supplemental Memorandum in Support of Motion for Class Certification (ECF No. 221), previously construed as Plaintiffs’ operative Motion seeking class certification, is GRANTED IN PART AND DENIED IN PART as follows:
a. As to Plaintiffs’ claims against the Banner Defendants, the Court CERTIFIES the following class: "All participants and beneficiaries of the Banner Health Employees 401(k) Plan from November 20, 2009 through the date of judgment, excluding the Defendants";
b. As to Plaintiffs’ claims against Slocum, the Court DENIES Plaintiffs’ request for class certification;
2. Pursuant to Federal Rule of Civil Procedure 23(g), the law firm of Schlichter, Bogard & Denton, LLP is appointed as class counsel.
A defined contribution plan is one where employees and employers may contribute to the plan, and the employer’s contribution is fixed and the employee receives whatever level of benefits the amount contributed on his behalf will provide. A defined contribution plan "provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant’s account." ERISA § 3(34); 29 U.S.C. § 1002(34). * * * A defined benefit plan, on the other hand, consists of a general pool of assets rather than individual dedicated accounts. Such a plan, as its name implies, is one where the employee, upon retirement, is entitled to a fixed periodic payment.
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (most internal citations and quotation marks omitted).
Plaintiffs’ supplemental briefing also argues that their advertisement did not constitute an improper or unethical "solicitation," and that a prohibition against similar advertisement would undermine ERISA’s purposes. (See ECF No. 292 at 5-8.) These arguments have little bearing on the present Rule 23 analysis, and the Court takes no view of whether there was anything improper about counsel’s advertisement.
Q. Could you please explain to me what your claims are in this case?
A. Excessive fees were charged or paid by the administration. And then the stock— I shouldn’t say ‘stock,’ I guess, because there’s more than one. But the options that were provided to us where not always in the best interest of the participants.
Q. Okay. Anything else?
A. I’m trying to see how they’re worded. There was, like, a failure to monitor or have oversight of the responsibilities to us, the fiduciary responsibilities.
* * *
Q. Okay. Excessive fees charged or paid by the administration. What do you mean by that?
A. That there were— that the fees that they paid were excessive and that there [sic ] could have been lower.
Q. Fees paid to whom?
A. Fidelity was the ones that they paid. They’re the ones who, my understanding was— was Fidelity.
(ECF No. 252-1 at 2-3.) The Court finds this articulation of the claims sufficient for a layperson and represents Ms. Ramos’s commitment to representing the interests of the class in this lawsuit.
The other named plaintiffs gave similar descriptions, which the Court finds, on the whole, reflect an adequate lay understanding of the asserted claims and are sufficient for Rule 23(a)(4) purposes. See, e.g., ECF No. 252-2 at 2-5 (Plaintiff Moffitt describing "We, as a class, don’t believe ... that the 401(k) plan has not been run with our best interests in mind. * * * There were numerous mutual funds ... maybe 200 different mutual funds— and the fee base ... were almost, 100 percent of the time, higher fees than other ones that would have been comparable * * * they gave fees that could have been less because they ... used a mutual fund class that had lower fees, but they chose the one with higher fees, where they, no doubt, were qualified to use one for lower fees. They picked mutual funds, when there was at least two other classes of investment vehicles that they could have used that would have had lower fee structures. They— one of the things that Fidelity did was based the fees ... that were asset-based; and as the fund grew, their fees kept increasing, but the work that they needed— that they did for each plan member didn’t change any); ECF No. 252-3 at (Plaintiff Williamson describing her claims as "I, and six other plaintiffs, are representing ourselves, as well as the other 30-some-thousand plan participants ... in regards to maybe the best options hadn’t been made for the plan participants and that the fees were too high."); ECF No. 252-4 at 3 (Plaintiff Heyrman: "the fees charged on our 401(k) was too high, and ... the stock options were not in my best interest or those of Banner employees"); ECF No. 252-5 at 2, 3 (Plaintiff Goodale: "My claims are regarding the fees charged to me by Fidelity; the investment opportunities provided to me by Fidelity"; "There were over 400 options to invest ... there were too many to choose from and hard to decide which ones to pick and invest the money in ...").