Adams et al v. Dartmouth-Hitchcock Clinic et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Debra M. Adams, et al.
v. Civil No. 22-cv-099-LM
Opinion No. 2026 DNH 110 P
Dartmouth-Hitchcock Clinic, et al.
O R D E R
Plaintiffs Debra Adams, Danillie Mars, and Michelle Miller (collectively,
“Plaintiffs”) filed this putative class action against Dartmouth-Hitchcock Clinic, its
Board of Trustees, the Administrative Investment Oversight Committee of
Dartmouth-Hitchcock Clinic, and “John Does 1-30” (collectively, “Defendants”)
asserting injuries arising from Defendants’ alleged breach of their fiduciary duties
to effectively manage and monitor Plaintiffs’ retirement plans under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
Presently before the court is Plaintiffs’ assented-to motion for final approval of class
action settlement (doc. no. 72) and Plaintiffs’ motion for attorney fees,
reimbursement of expenses, and case contribution awards (doc. no. 74). For the
following reasons, the court grants Plaintiffs’ motion for final approval, and grants
in part and denies in part Plaintiffs’ motion for attorney fees, costs, and awards.
I. Motion for Final Approval
On or around October 31, 2024, following non-collusive, arm’s-length
negotiations and substantial exchange of information, the parties reached an
agreement to settle their dispute, subject to the court’s approval.
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On June 5, 2025, Plaintiffs filed a Motion for Preliminary Approval of Class
Action Settlement under the terms of a settlement agreement executed on June 17,
2025 (doc. no. 65-2) and as amended by the Settling Parties with the Amendment to
the Settlement Agreement on July 29, 2026 (together, the “Settlement
Agreement”).1
On March 25, 2026, the court issued an order (the “Preliminary Approval
Order”) granting the Motion for Preliminary Approval of Class Action Settlement.
In that order, doc. no. 66, the court conducted an analysis of whether it would likely
be able to certify the class for the purposes of settlement and find that the proposed
settlement is fair, reasonable, and adequate. The court preliminarily certified the
proposed class for settlement purposes, provisionally appointed Plaintiffs as the
Class Representatives and their counsel of record, Capozzi Adler, P.C., as Class
Counsel, and preliminarily approved the proposed settlement.
On May 12, 2026, the Settlement Administrator sent the Notice of Proposed
Settlement of Class Action (the “Notice”) to the settlement Class Members as
ordered. On August 13, 2026, the court held a fairness hearing regarding the
parties’ proposed class action settlement.
The court now finds and rules as follows:
1. The Court has jurisdiction over the subject matter of the Action and over all
Settling Parties, including all members of the Settlement Class.
1 Capitalized terms used in this Final Approval Order and Judgment shall
have the same meanings ascribed to them in the Settlement Agreement.
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2. For purposes of Settlement, and pursuant to Rules 23(a) and (b)(1) of the
Federal Rules of Civil Procedure, the Court certifies the following Settlement
Class:
All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plans, and any Alternate Payee of a Person subject to a
Qualified Domestic Relations Order (“QDRO”) who
participated in the Plans, at any time between March 18,
2016 through March 25, 2026.
3. The Court maintains the appointment of Plaintiffs Debra M. Adams, Danillie
L. Mars, and Michelle L. Miller as Class Representatives for the Settlement
Class, and Capozzi Adler, P.C., as Class Counsel for the Settlement Class.
4. The Settlement Class has received proper and adequate notice of the
Settlement, the Final Approval Hearing, Class Counsel’s application for
attorney fees and reimbursement of litigation costs and for Case Contribution
Awards to the Class Representatives, and the Plan of Allocation. Notice was
given in accordance with the Preliminary Approval Order (Doc. nos. 66, 69 &
71). Notice included individual notice to all members of the Settlement Class
who could be identified through reasonable efforts, as well as notice through
a dedicated website, and provided due notice of the matters set forth in this
Final Approval Order and Judgment, and included sufficient information
about the procedure for making objections. That notice constitutes the best
notice practicable under the circumstances and fully satisfies the
requirements of Fed. R. Civ. P. 23 and due process.
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5. The Court approves the Settlement and orders that the Settlement shall be
consummated and implemented.
6. At the fairness hearing, the court expressed some concern regarding the
sufficiency of the settlement amount ($850,000), particularly in light of Class
Counsel’s initial estimate that the class’s damages were around $10 million.
The court noted that, under the present settlement, each Class Member
would receive (on average) little more than ten dollars. Class Counsel
explained that the initial damages estimate, which relied on theories of both
imprudent investing and excessive recordkeeping fees, was greatly
overestimated because discovery revealed that Defendants had a “colorable
argument” that they had a process in place for reviewing the plans’
investments. This fact led Class Counsel to determine that the chances of
success on the class’s investment-based claim were very low, and to instead
focus on the record-keeping fee claim. Moreover, Class Counsel’s retained
expert estimated damages from the alleged excessive recordkeeping fees to be
around $4.2 million, so, given the size of the class (over 37,000), each Class
Member’s individual best-case recovery would have been relatively low.
Weighing this against what Class Counsel determined to be a greater-than-
fifty-percent-chance of losing (i.e. recovering nothing) on that claim at trial,
Class Counsel determined that the present settlement was fair and
reasonable. In light of Class Counsel’s careful assessment of the possible
risks and benefits of continued litigation and considering all the evidence
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before the court, pursuant to Fed. R. Civ. P. 23(e), the court finds that the
Settlement embodied in the Settlement Agreement is fair, reasonable, and
adequate to the Plans and the Settlement Class, and more particularly finds
that:
a. The Settlement was negotiated vigorously and at arm’s length
by Defense Counsel, on the one hand, and Plaintiffs and Class
Counsel on behalf of the Settlement Class, on the other hand;
b. Plaintiffs and Defendants had sufficient information to evaluate
the settlement value of the Action;
c. If the Settlement had not been achieved, Plaintiffs and the
Settlement Class faced the expense, risk, and uncertainty of
extended litigation;
d. The amount of the Settlement ($850,000) is fair, reasonable, and
adequate, taking into account the costs, risks, and delay of
litigation, trial, and appeal. The method of distributing the
Class Settlement Amount is efficient and requires no filing of
claims. The Settlement terms related to attorney fees do not
raise any questions concerning fairness of the Settlement;
however, as explained below, the court finds that a slightly
lower fee award is appropriate under the circumstances of this
case. There are no agreements, apart from the Settlement,
required to be considered under Fed. R. Civ. P. 23(e)(2)(C)(iv).
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The Class Settlement Amount is within the range of settlement
values obtained in similar cases;
e. At all times, Plaintiffs and Class Counsel have acted
independently of Defendants and in the interest of the
Settlement Class; and
f. The Court received no objections.
7. The Plan of Allocation is finally approved as fair, reasonable, and adequate.
The Settlement Administrator shall distribute the Net Settlement Amount in
accordance with the Plan of Allocation and the Settlement Agreement. The
Settlement Administrator shall have final authority to determine the share of
the Net Settlement Amount to be allocated to each Class Member in
accordance with the Plan of Allocation approved by the Court.
8. All requirements of the Class Action Fairness Act, 28 U.S.C. § 1711, et seq.,
have been met.
9. The releases and covenants not to sue set forth in the Settlement Agreement,
including Article 8 of the Settlement Agreement, together with the definitions
in the Settlement Agreement relating to those releases and covenants, are
expressly incorporated into this order and judgment. The releases are
effective as of the Effective Date. As of the Effective Date, the Plans and each
of the Class Members (and their respective heirs, beneficiaries, executors,
administrators, estates, past and present partners, officers, directors, agents,
attorneys, predecessors, successors, and assigns) fully, finally, and forever
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settle, release, relinquish, waive, and discharge all Released Parties
(including Defendants) from all Released Claims, even if the Class Member
discovers facts in addition to or different from those which the Class Member
or Class Counsel now knows or believes to be true with respect to the Action
and the Released Claims, and regardless of whether each Class Member
receives a monetary benefit from the Settlement, whether each Class
Member actually received the Settlement Notice, and whether Class
Members objected to the Settlement or to any application by Class Counsel
for an award of Attorneys’ Fees and Costs.
10. The Class Representatives, Class Members, and the Plans settle, release,
relinquish, waive, and discharge any and all rights or benefits they may now
have, or in the future may have, under any law relating to the releases of
unknown claims, including Section 1542 of the California Civil Code, which
provides: “A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.”
The Class Representatives, Class Members, and the Plans with respect to the
Released Claims also waive any and all provisions, rights, and benefits
conferred by any law or of any State or territory within the United States or
any foreign country, or any principle of common law, which is similar,
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comparable, or equivalent in substance to Section 1542 of the California Civil
Code.
11. The Class Representatives, the Class Members, and the Plans, acting
individually or together, or in combination with others, are permanently
enjoined from suing or seeking to institute, maintain, prosecute, argue, or
assert in any action or proceeding (including but not limited to an Internal
Revenue Service determination letter proceeding, a Department of Labor
proceeding, an arbitration, or a proceeding before any state insurance or
other department or commission), any cause of action, demand, or claim on
the basis of, connected with, or arising out of any of the Released Claims.
Nothing herein shall preclude any action to enforce the terms of the
Settlement Agreement in accordance with the procedures set forth in the
Settlement Agreement.
12. Every Class Member releases the Released Parties, Defense Counsel, and
Class Counsel for any claims, liabilities, and attorneys’ fees and expenses
arising from the allocation of the Gross Settlement Amount or Net
Settlement Amount and for all tax liability and associated penalties and
interest as well as related attorney fees and expenses.
13. The operative complaint and all claims asserted in the Action are dismissed
with prejudice and without costs to any of the Settling Parties and Released
Parties other than as provided for in the Settlement Agreement.
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14. The court shall retain exclusive jurisdiction to resolve any disputes or
challenges that arise as to performance under the Settlement Agreement or
any challenges to the performance, validity, interpretation, administration,
enforcement, or enforceability of the Settlement Notice, Plan of Allocation,
this Final Approval Order and Judgment, or the Settlement Agreement. The
Court shall also retain exclusive jurisdiction with respect to applications for
awards of attorney fees and Case Contribution Awards to the Class
Representatives, and reimbursement of litigation costs.
15. Any motion to enforce this Final Approval Order and Judgment or the
Settlement Agreement, including by way of injunction, may be filed in this
Court, and the provisions of the Settlement Agreement and/or this Final
Approval Order and Judgment may also be asserted by way of an affirmative
defense or counterclaim in response to any action involving alleged violation
of the Settlement Agreement or the assertion of any Released Claim.
16. If the Settlement Agreement is terminated, this Final Approval Order and
Judgment shall be rendered null and void and shall be vacated, and this
Action shall for all purposes with respect to the Settling Parties revert to its
status as of the day immediately before the day the Settlement was reached.
The Parties shall be afforded a reasonable opportunity to negotiate a new
case management schedule.
17. With respect to distributions to Class Members who have an Active Account
(after allocation decisions have been made by the Settlement Administrator
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in its sole discretion), all questions not resolved by the Settlement Agreement
shall be resolved by the Plan administrator or other fiduciaries of the Plans,
in accordance with applicable law and the governing terms of the Plans.
18. Within three days following the distribution of all settlement payments to
Class Members as provided by the Plan of Allocation approved by the Court,
the Settlement Administrator shall provide to Class Counsel and Defense
Counsel a list of each person who received a settlement payment or
contribution from the Qualified Settlement Fund and the amount of the
payment or contribution.
19. Upon entry of this Order, all Settling Parties, the Settlement Class, and the
Plans shall be bound by the Settlement Agreement and this Final Approval
Order and Judgment.
In sum, Plaintiffs’ motion for final approval is granted insofar as it does not impact
attorney fees.
II. Plaintiffs’ Motion for Attorney Fees, Reimbursement of Expenses, and Case
Contribution Awards
The court next turns to Plaintiffs’ motion for attorney fees, expenses, and case
contribution awards (doc. no. 74). Plaintiffs seek $283,333.33 in attorney fees for
Class Counsel (an amount equal to 33% of the Settlement Fund of $850,000.00),
$85,840.36 for litigation expenses;2 and $10,000.00 case contribution awards for
2 Plaintiffs’ motion contained an error purporting to seek $150,000 in litigation
expenses. Class Counsel confirmed at the fairness hearing and in a subsequent filing
(doc. no. 77 at 2) that Plaintiffs request only $85,840.36.
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each of the three Class Representatives ($30,000.00 in total). The court grants
Plaintiff’s request for litigation expenses and case contribution awards is approved
in full for the reasons stated in Plaintiffs’ motion (doc. no. 74). However, as
explained below, the court finds that a reduced award of attorney fees is appropriate
under the circumstances of this case.
“Counsel who recovers common funds for a class is entitled to reasonable
attorneys’ fees and reimbursement of expenses prior to the distribution of the
balance to the class.” In re Ranbaxy Generic Drug Application Antitrust Litig., 630
F. Supp. 3d 241, 245 (D. Mass. 2022). “In addition to ensuring that class counsel is
fairly compensated, the district court is obliged to function as ‘a quasi-fiduciary to
safeguard the corpus of the fund for the benefit of the plaintiff class.’” Id. (quoting In
re Fidelity/Micron Sec. Litig., 167 F.3d 735, 736 (1st Cir. 1999)).
Calculating attorney fees using the percentage of fund [POF] method “‘in
common fund cases is the prevailing praxis’ in the First Circuit due to its relative
efficiency.”3 Wright v. S. New Hampshire Univ., 561 F. Supp. 3d 211, 214 (D.N.H.
2021) (quoting In re Thirteen Appeals Arising out of the San Juan Dupont Plaza
Hotel Fire Litig., 56 F.3d 295, 307 (1st Cir. 1995)). “This method functions exactly
as the name implies: the court shapes the counsel fee based on what it determines is
a reasonable percentage of the fund recovered for those benefitted by the litigation.
Thus, the court enjoys an ‘extremely broad’ latitude to determine an appropriate fee
3 Class Counsel agrees that the court should employ the POF method.
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award in a common fund case under the POF approach.” Walsh v. Popular, Inc., 839
F. Supp. 2d 476, 483 (D.P.R. 2012) (quoting In re Thirteen Appeals, 56 F.3d at 309)).
District courts in the First Circuit have looked to the following seven factors
to determine the reasonableness of a fee award in a common fund case:
1) the size of the fund created and the number of persons
benefitted; (2) the presence or absence of substantial
objections relative to the size of the settlement class; (3) the
skill and efficiency of Class Counsel; (4) the complexity and
duration of the litigation; (5) the financial risks of
nonpayment taken on by Class Counsel; (6) the amount of
time devoted to the case by Class Counsel; and (7) the
awards in similar cases.
Ford v. Takeda Pharms. U.S.A., Inc., Civ. No. 1:21-cv-10090-WGY, 2023 WL
3679031, at *1 (D. Mass. Mar. 31, 2023); accord Walsh, 839 F. Supp. 2d at 483.
Applying these factors, the court finds that attorney fees totaling 25% of the
gross settlement amount are appropriate, rather than the 33% ($283,333) requested
by Class Counsel. While the settlement amount will benefit over 37,000 Class
Members, as noted above, if the court were to accept Class Counsel’s requested fee,
the average payout of approximately $12.18 per Class Member is relatively modest.4
There were no objections and the court has no reason to doubt Class Counsel’s skill
in this complex area of law; however, the court notes that settlement was reached
4 Assuming the court grants all that Class Counsel requests ($283,333.33
in attorney fees, $85,840.36 in costs, and $10,000 for each of the three class
representatives), the net settlement amount available to Class Members will
equal $450,826.31, a figure that will shrink even smaller once the costs of
administering the settlement are deducted. Given that there are
approximately 37,000 Class Members, this will amount to an average payout
of less than $12.18 per Class Member.
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before full discovery was completed.5 See Walsh, 839 F. Supp. 2d at 484 (“lack of full
discovery ‘diminishes the complexity and duration of the litigation’ for purposes of
assessing fees under the POF approach” (citing In re Puerto Rican Cabotage
Antitrust Litig., 815 F. Supp. 2d 448, 459 (D.P.R. 2011))). While this case has been
pending for some time (since March 2022), the docket reveals that little in the way
of adversarial litigation has occurred: this case settled after the court denied
Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
and before summary judgment.
Turning to the risks of the litigation, the court acknowledges that in taking
this case on a contingent fee basis, Class Counsel faced a significant risk of
nonpayment: as explained above, after discovery, Class Counsel estimated their
chances of success at trial to be relatively low. Moreover, Class Counsel asserts that
they spent 1,906.30 hours litigating this case, resulting in a total lodestar of
$1,215,373.75.6 Comparing this figure to $283,333.33 (the 33% requested), Class
5 The court does not mean to suggest that insufficient discovery was conducted
to allow the parties to reach an informed and reasonable settlement.
6 “The First Circuit does not require a court to engage in calculating the
lodestar method when awarding fees based upon the percentage of the fund method.”
In re Puerto Rican Cabotage, 815 F. Supp. 2d at 464. However, many courts use a
“lodestar cross-check” to ensure that fees awarded under the POF method are
reasonable “in light of the amount of work counsel actually performed.” Id. “The
lodestar cross-check is performed by multiplying the hours reasonably expended on
the matter by the reasonable hourly billing rate which then provides the court with
the ‘lodestar calculation.’” Id. (quotation omitted). “The proposed fee award is then
divided by the lodestar calculation, resulting in a lodestar multiplier. The lodestar
multiplier is compared to other multipliers employed in similar cases.” Id.
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Counsel contends that they will receive a fractional 0.23 multiplier: in other words,
they will only receive 23% of what they would have billed on an hourly basis. The
court acknowledges that this is a low multiplier. See 5 Newberg and Rubenstein on
Class Actions § 15:89 (6th ed.) (explaining that for common funds of comparable
size, the mean multiplier between 2009 and 2013 was 1.49 (citing Theodore
Eisenberg, Geoffrey Miller & Roy Germano, Attorneys' Fees in Class Actions: 2009–
2013, 92 N.Y.U. L. Rev. 937, 967 (2017)) [hereinafter Attorneys' Fees in Class
Actions]. A lower multiplier is fair in a case like this where the class members are
receiving such a small award. A greater POF is not warranted under the
circumstances here. See In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 37
(D.N.H. 2006) (explaining the POF method is designed to reduce the potential for
manipulation, rewarding wasteful and excessive attorney effort, and “allows courts
to award fees from the fund ‘in a manner that rewards counsel for success and
penalizes it for failure.’” (quoting In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 300
(3d Cir. 2005))); In re Rite Aid Corp, 396 F.3d at 306 (“the lodestar cross-check
serves the purpose of alerting the trial judge that when the multiplier is too great,
the court should reconsider its calculation under the percentage-of-recovery method,
with an eye toward reducing the award”).
Finally, a comparison of Class Counsel’s 33% request to awards in similar
cases also suggests that Class Counsel’s requested fee is high. See In re Ranbaxy,
630 F. Supp. 3d at 245 (noting that “[a]s a percentage of the relevant common fund,
standard awards in the First Circuit range from 20% at the low end to 33% at the
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high end”). While Class Counsel have cited a number of cases in which other district
courts have awarded 33%, many of these cases come from outside of this circuit or
provide little analysis.7 By contrast, the court has identified many cases within this
circuit with considerably lower awards.8 See, e.g., id. (20%); Bettencourt v. Jeanne
D'Arc Credit Union, No. 17-CV-12548-NMG, 2020 WL 3316223, at *3 (D. Mass.
June 17, 2020) (27%); Walsh, 839 F. Supp. 2d at 483 (23%); In re Puerto Rican
Cabotage, 815 F.Supp.2d at 463-65 (23%); Latorraca v. Centennial Techs. Inc., 834
F. Supp. 2d 25, 28 (D. Mass. 2011) (25%); In re Am. Dental Partners, Inc. Sec. Litig.,
No. 08-CV-10119-RGS, 2010 WL 1427404, at *1 (D. Mass. Apr. 9, 2010) (22.5%);
New Eng. Carpenters Health Benefits Fund v. 1st Databank, Inc., No. 05-CV-
11148-PBS, 2009 WL 2408560, at *1-2 (D. Mass. Aug. 3, 2009) (20%); see also
Attorneys' Fees in Class Actions at 951 (between 2009 and 2013 the median
attorney fees awarded in the First Circuit was 23% and the mean 26%).
In sum, while the court appreciates Class Counsel’s work on this matter and
the results they were able to achieve for the Class Members, the court is not
convinced that the circumstances warrant the 33% award sought. Weighing all the
above factors and taking seriously the court’s duty to act as “a quasi-fiduciary to
7 Several of these cases are pre-written proposed orders that judges have
simply endorsed with a signature.
8 The court does not suggest that a 33% fee is never appropriate. See, e.g.,
Ford, 2023 WL 3679031, at *3 (awarding 33% in ERISA case).
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safeguard the corpus of the fund,” the court finds that fee award of 25%
($212,500.00) is appropriate. In re Ranbaxy, 630 F. Supp. 3d at 245.
CONCLUSION
Plaintiffs’ assented-to motion for final approval of class action settlement
(doc. no. 72) is granted. Plaintiffs’ motion for attorney fees, reimbursement of
expenses, and case contribution awards (doc. no. 74) is granted in part and denied
in part. The court awards Class Counsel attorney fees of 212,500.00 and reimburses
Class Counsel in the amount of $85,840.36 in expenses advanced in litigating this
matter, to be paid from the settlement fund. The Court awards case contribution
awards of $10,000 each for Class Representatives Debra Adams, Danillie Mars, and
Michelle Miller, to be paid from the settlement fund. The clerk’s office is
respectfully requested to enter judgment and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
August 24, 2026
cc: Counsel of Record
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