Wagner v. Hess Corporation et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION
JOSHUA WAGNER, individually and
on behalf of the Hess Corporation
Employees’ Savings Plan, and all
others similarly situated,
Plaintiff,
v. 	No. 6:24-CV-004-H
HESS CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Joshua Wagner’s unopposed motion to preliminarily approve the
class settlement, conditionally certify the class, appoint class counsel, approve class notice,
and schedule a fairness hearing, as well as his brief in support. Dkt. Nos. 113; 114. Wagner
and the defendants, Hess Corporation and the Hess Corporation Investment Committee,
have entered into a Settlement Agreement and seek Court approval. Dkt. Nos. 106; 114.
Collectively, the motions request that the Court (1) preliminary approve the settlement; (2)
provisionally certify the class; (3) approve the notice program set forth in the settlement
agreement; (4) appoint Wagner as the class representative; (5) appoint Foulston Siefkin LLP
and Figari + Davenport LLP as Class Counsel; (5) approve Analytics Consulting, LLC as
the settlement administrator; (6) approve the procedures for members to opt out or object to
the settlement; (7) approve the claim form; and (8) schedule a final approval hearing.
Having considered the record, the Court grants the motion and approves the Notice
of Pendency of Class Action and Proposed Settlement. Dkt. No. 114-1 at 33–40. The Court
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 1 of 19 PageID <pageID>

– 2 –
further enters an Order Certifying Class for Settlement Purposes in substantially the form
attached to Wagner’s unopposed motion. See id. at 52–62.
1. 	Factual and Procedural Background
The Court previously discussed the factual allegations underlying Wagner’s third
amended complaint in its order granting in part the defendants’ motion to dismiss. Dkt.
No. 58. In short, Wagner is a former employee of Hess Corporation and was a participant
in the Hess Corporation Employees’ Savings Plan, a 401(k) retirement plan. See Dkt. No.
39 at 62, 66–67. Hess delegated to the Hess Corporation Investment Committee the
responsibility of selecting and monitoring the Plan’s investments. Id. at 67. The Investment
Committee was thus subject to fiduciary duties under ERISA. Id. at 69.
Wagner alleges that the defendants breached their fiduciary duty of prudence by
failing to replace certain investments selected for the Plan with indistinguishable or similar
investments that had lower expense ratios. Id. at 76, 78. Because of those breaches,
excessive fees caused millions of dollars in losses to the Plan’s participants. Id. at 78–79.
Wagner sued in this Court in February 2024. Dkt. No. 1. In March 2025, the Court
dismissed one of Wagner’s claims and permitted him to file a third amended complaint.
Dkt. No. 59. In the months that followed, Wagner challenged the dismissal (Dkt. No. 60)
and moved to certify a class and appoint class counsel (Dkt. No. 62). The defendants
moved for summary judgment. Dkt. No. 88. Trial was set for November 2025. Dkt. No.
27 at 1.
While these motions were pending and one month before trial, the parties notified
the Court of their intention to settle their claims on a class-wide basis. Dkt. No. 106. The
Court vacated the trial date and future deadlines and ordered the parties to submit a motion
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 2 of 19 PageID <pageID>

– 3 –
for preliminary approval of the settlement. Dkt. No. 107. Wagner filed an unopposed
motion in November 2025. Dkt. No. 108. Due to concerns that the settlement would
provide relief to Plan beneficiaries who were not actually injured by the defendants’ alleged
misconduct, the Court denied the motion without prejudice. Dkt. No. 112. The parties
have since agreed to a new class-wide settlement that addresses the Court’s concerns. Dkt.
No. 114-1 at 2–31. Before the Court is Wagner’s second motion for preliminary approval
(Dkt. No. 113), which is unopposed.
2. 	Legal Standards
Pursuant to Federal Rule of Civil Procedure 23, “[t]he claims, issues, or defenses of a
certified class—or a class proposed to be certified for purposes of settlement—may be
settled, voluntarily dismissed, or compromised only with the court’s approval. Fed. R. Civ.
P. 23(e). When faced with a class proposed to be certified only for settlement, the Court
must first ensure that certification would be proper under Rule 23(a) and (b) and then
determine whether Rule 23(e)’s settlement requirements are satisfied. See Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 620–22 (1997); Kostka v. Dickey’s Barbecue Rest., Inc.,
No. 3:20-CV-3424, 2022 WL 16821685, at *2 (N.D. Tex. Oct. 14, 2022), R. & R. adopted,
2022 WL 16821665 (Nov. 8, 2022). At the preliminary approval stage, the parties must
show that the Court will be likely to find that the settlement is fair, reasonable, and
adequate, and to certify the class for judgment on the proposal. Fed. R. Civ. P. 23(e)(2).
A. 	Class Certification
Class certification involves two components. First, Rule 23(a)’s prerequisite
requirements—numerosity, commonality, typicality, and adequacy of representation—must
be satisfied. Fed. R. Civ. P. 23(a); Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016).
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 3 of 19 PageID <pageID>

– 4 –
Numerosity is satisfied where “joinder of all members is impracticable,” looking to the
number of members, their geographic dispersion, their ease of identification, the nature of
the action, and the size of their claims. Fed. R. Civ. P. 23(a)(1); Ibe, 836 F.3d at 528
(quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981)).
Commonality requires at least “a single common question of law or fact” to the class whose
resolution “will resolve an issue that is central to the validity of each one of the [class
member’s] claims in one stroke.” Ibe, 836 F.3d at 528 (alteration in original) (quoting Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). A class representative demonstrates
typicality when the legal and remedial theories behind his claim are similar with those of the
class. Id. at 528–29. And adequacy of representation “requires the class representative[] to
possess a sufficient level of knowledge and understanding to be capable of ‘controlling’ or
‘prosecuting’ the litigation.” Id. at 529 (quoting Berger v. Compaq Comput. Corp., 257 F.3d
475, 482–83 (5th Cir. 2001)). In addition, Rule 23 contains “an implied prerequisite” that
the class must be ascertainable, meaning that the class must be defined in a manner such
that the Court can determine who is a member. John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d
443, 445 & n.3 (5th Cir. 2007).
If the prerequisites are satisfied, a court must determine whether the class action
satisfies one of the types of class actions set forth in Rule 23(b). Fed. R. Civ. P. 23(b). Here,
Wagner seeks certification of a Rule 23(b)(1) class, which requires the Court to find that
“prosecuting separate actions by or against individual class members would create a risk” of
two scenarios. Fed. R. Civ. P. 23(b)(1). First, the separate actions would create a risk of
“inconsistent or varying adjudications with respect to individual class members that would
establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 4 of 19 PageID <pageID>

– 5 –
P. 23(b)(1)(A). Second, and in the alternative, there would be a risk of “adjudications with
respect to individual class members that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual actions or would substantially
impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1)(B). “Rule
23(b)(1)(A) takes in cases where the party is obliged by law” or by “practical necessity” “to
treat the members of the class alike,” such as in utility and riparian-rights cases. Amchem
Prods., Inc., 521 U.S. at 614 (internal quotation marks omitted). Rule 23(b)(1)(B),
meanwhile, typically includes “‘limited fund’ cases, instances in which numerous persons
make claims against a fund insufficient to satisfy all claims.” Id.
B. 	Settlement Requirements
If preliminary certification is proper, the Court must next determine whether the
settlement should be preliminarily approved under Rule 23(e). For this inquiry, the Court
first evaluates the fairness of the proposed terms of the settlement. McNamara v. Bre-X Mins.
Ltd., 214 F.R.D. 424, 426 (E.D. Tex. 2002). If “the settlement is fair, the Court directs that
notice pursuant to Rule 23(e) be given to the class members of a formal fairness hearing, at
which arguments and evidence may be presented in support of and in opposition to the
settlement.” Id.
In the Fifth Circuit, courts traditionally apply a six-fact test, known as the Reed test,
to determine whether a settlement is fair:
(1) the existence of fraud or collusion behind the settlement; (2) the complexity,
expense, and likely duration of the litigation; (3) the stage of the proceedings
and the amount of discovery completed; (4) the probability of plaintiffs' success
on the merits; (5) the range of possible recovery; and (6) the opinions of the
class counsel, class representatives, and absent class members.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 5 of 19 PageID <pageID>

– 6 –
Jones v. Singing River Health Servs. Found., 865 F.3d 285, 293 (5th Cir. 2017) (quoting Reed v.
Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983)). Further, Rule 23(e)(2) provides
specific factors, which largely overlap with the Reed test, to determine whether a settlement
should be approved.1 See Fed. R. Civ. P. 23(e)(2).
3. 	Analysis2
The Court grants the motion for preliminary approval of the settlement. The Court
finds that the settlement class satisfies the certification requirements and that the settlement
satisfies Rule 23(e) and is likely to be found fair at the final approval stage. The Court also
determines that Wagner should be designated as the class representative; that the law firms
of Siefkin LLP and Figari + Davenport LLP should be appointed as class and local counsel,
respectively; that Analytics Consulting, LLC should be appointed as the settlement
administrator; that the procedures for members to opt out or to object to the settlement are
proper; that the claim form should be approved; and that a final approval hearing shall be
scheduled.
A. 	The settlement class meets the requirements of Rule 23(a) and (b) for
certification.
The parties’ Settlement Agreement defines the relevant Settlement Class as:
all persons who participated in the [Hess Employees’ Savings] Plan and
invested in any of the Challenged Funds at any time during the Class Period,
including any Beneficiary of a deceased Person who participated in the Plan
and invested in any of the Challenged Funds at any time during the Class
Period, and any Alternate Payee of a Person subject to a QDRO3 who
1 These factors were added to Rule 23 in the 2018 amendments but do not “displace any factor”
from the Fifth Circuit’s test. Fed. R. Civ. P. 23(e)(2) advisory committee’s note to the 2018
amendment.
2 For purposes of this Order, various capitalized terms have the definitions set forth in the proposed
Settlement Agreement (Dkt. No. 114-1).
3 QDRO means “a Qualified Domestic Relations Order within the meaning of 26 U.S.C. § 414(p).”
Dkt. No. 114-1 at 7.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 6 of 19 PageID <pageID>

– 7 –
participated in the Plan and invested in any of the Challenged Funds at any
time during the Class Period.
Dkt. No. 114-1 at 9. The Class Period “means the period from February 12, 2018, through
the date the Preliminary Approval Order is entered by the Court.” Id. at 5. The term
“Challenged Funds” means a certain set of investment funds that lost value during the Class
Period and is defined to address the Court’s concern that members of investment funds
which were either unharmed or gained value would receive relief. Id. at 4–5; see Dkt. No.
110 at 5–6 (expressing concern over a class including all Plan beneficiaries).4 The class
excludes “[the] Defendants, including the individual members of the Board of Directors of
Hess Corporation and the Committee5 during the Class Period, and their Beneficiaries.” Id.
at 8–9.
The Court, preliminarily and for purposes of settlement only, finds that the
Settlement Class satisfies Rule 23(a) and (b)(1)(B). First, the definition provided by the
parties is sufficiently definite to satisfy ascertainability. The Court can determine whether
someone belongs in the class based on whether he is a person or the Beneficiary of a person
who participated in the Plan between February 12, 2018 and the date of this Order. The
Notice will be sent to those who are identified by the Plan’s Recordkeeper. Id. at 11. This
definition is “administratively feasible for the [C]ourt” to apply and therefore meets “the
4 According to the parties, five T. Rowe Price funds either benefited or were unharmed from the
defendants’ alleged misconduct. These are the Balanced, 2005, 2010, 2015, and 2020 funds. Dkt.
No. 111 at 3; see also Dkt. No. 100 at 17–18. These are not included in the definition of Challenged
Funds. Dkt. No. 114-1 at 4–5. But the definition also includes eight Single Asset Funds that
Wagner asserts harmed Plan participants. Id.; Dkt. No. 111 at 3.
5 The Committee means “Hess Corporation’s Pension Plan Investment Committee, the Employee
Benefit Plans Committee, and their predecessors and successors, including the Qualified Plan
Investment Committee.” Dkt. No. 109-1 at 5.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 7 of 19 PageID <pageID>

– 8 –
touchstone of ascertainability.” Kostka, 2022 WL 16821685, at *8 (quoting Brecher v.
Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)).
Numerosity is also satisfied here. A class of “100 to 150 members . . . is within the
range that generally satisfies the numerosity requirement.” Mullen v. Treasure Chest Casino,
LLC, 186 F.3d 620, 624 (5th Cir. 1999). Wagner indicates that this class “includes more
than 6,000 members.” Dkt. No. 114 at 13. Joinder of over 6,000 individuals in this action
is clearly impracticable, is about the typical satisfactory “range,” and thus satisfies
numerosity. Mullen, 186 F.3d at 624.
Next, the class shares common questions of law or fact appropriate for class-wide
resolution. The core of Wagner’s contentions is that the defendants “breached their
fiduciary duty of prudence in retaining various investments in the Plan” instead of switching
to other investments that were “substantially the same but less[] expensive.” Dkt. No. 114
at 7. These claims focus narrowly on the conduct of the defendants with respect to the Plan
as a whole. Wagner “must prove a breach of fiduciary duty and a prima facie case of loss to
the plan.” McDonald v. Provident Indemn. Life Ins. Co., 60 F.3d 234, 237 (5th Cir. 1995). If he
were to prove a breach, the defendants would have to show by a “burden of persuasion”
that the class members’ losses were “not caused by . . . the breach of duty.” Id. (quoting
Roth v. Sawyer-Cleator Lumber Co., 16 F.3d 915, 917 (8th Cir. 1994)); LeBoeuf, 2025 WL
1262414, at *5 (same). 	The Investment Committee’s duty, if established, is one that would
“be common to every individual class member’s claim.” Kostka, 2022 WL 16821685, at *7.
Each question will result in a common answer that will “drive the resolution” of the ERISA
claim. 	See Flecha v. Medicredit, Inc., 946 F.3d 762, 767 (5th Cir. 2020) (quoting Dukes, 564
U.S. at 767). Furthermore, ERISA claims, while they do not “automatic[ally]” qualify for
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 8 of 19 PageID <pageID>

– 9 –
Rule 23(a)’s commonality requirement, are “quite likely” to do so in the typical case. In re
Schering Plough Corp. ERISA Litig., 589 F.3d 585, 599 n.11 (3d Cir. 2009); McWhorter v. Serv.
Corp. Int’l, 748 F. Supp. 3d 459, 473 (S.D. Tex. 2024) (Eskridge, J.). That is the case here.
Wagner’s claims are also typical of the Settlement Class. Wagner and his fellow
class members were impacted by the same alleged breach of fiduciary duty, which forms the
factual basis for all their claims. See Dkt. Nos. 62-2 at 2 (noting Wagner was enrolled in the
Plan); 84 ¶ 20 (noting Wagner participated in the Plan during the Class Period). His claims
are identical to those of the other class members. Thus, Wagner’s claims turn on the same
legal theories and facts as the class, and he therefore satisfies typicality. See Ibe, 836 F.3d at
528–29.
In addition, Wagner and the proposed class counsel adequately represent the class.
Adequacy looks to “whether the putative class representatives are willing and able to take
an active role in and control the litigation and to protect the interests of the absentees.”
Berger, 257 F.3d at 479 (internal quotation marks omitted). Courts must consider whether
there are conflicts of interest between the representatives and the class. Id. at 480.
Here, Wagner and the proposed class counsel have taken an active role in the
litigation as demonstrated by their advocacy over the past two-and-a-half years, including
repeated amendments to the complaint, challenging the Court’s prior dismissal in part,
defending against the motion for summary judgment, and working actively to obtain the
proposed Settlement Agreement. See Dkt. No. 114 at 7–9. There is no evidence of any
conflicts between them and the class. Wagner and counsel did not negotiate any side
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 9 of 19 PageID <pageID>

– 10 –
agreement with the defendants,6 and the Settlement Agreement is final even if the Court
elects to deny counsel’s request for attorneys’ fees and costs in toto. Dkt. No. 114-1 at 22–
23; see In re Wawa Data Sec. Litig., 85 F.4th 712, 725–27 (3d Cir. 2023) (noting the potential
conflicts posed by clear-sailing and reverter provisions). The Settlement Agreement only
entitles Wagner to the benefits of the class. And while his requested service award of
$15,000 will be disbursed from the total $850,000 Gross Settlement Amount, the Court has
discretion to reduce that amount if an objection is raised as to its propriety. Dkt. No. 109-1
at 4, 16–17.7
The proposed counsel is also experienced. Counsel in this case from Foulston
Siefkin are partners at their firm. Dkt. No. 109-2 at 3. In particular, counsel Boyd A. Byers
is the chair of that firm’s Employment and Labor Law Practice Group and specializes in
ERISA claims. Id. The other proposed class counsel, Figari + Davenport, is contributing
local counsel and as a firm specializes in complex litigation and class actions, including the
legal issues pertinent to this case. Id. at 4–5.
Finally, the class satisfies Rule 23(b)(1)(B)’s requirement that “prosecuting separate
actions by or against individual class members would create a risk of . . . adjudications with
respect to individual class members that, as a practical matter, would be dispositive of the
interests of the other members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their interests.” Wagner’s claim is a
6 Wagner indicates that Foulston Siefkin has negotiated a fee-distribution agreement with Stockton
& Kandt, LLC, a small Kansas-based firm whose attorneys have not entered an appearance in this
case. Dkt. No. 114 at 7 n.2
7 The Court must consider several factors in relation to a class-representative service award,
including the risk to the class representative, time and effort contributed, and any personal benefit
conferred as a result of the litigation. See, e.g., Jenkins v. Trustmark Nat’l Bank, 300 F.R.D. 291, 306
(S.D. Miss. 2014).
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 10 of 19 PageID <pageID>

– 11 –
“paradigmatic example” of a Rule 23(b)(1)(B) claim. 2 Newberg and Rubenstein on Class
Actions § 4:21 (6th ed.) (quoting In re Schering, 589 F.3d at 604). That is because “any
recovery ‘inures to the benefit of the plan as a whole’ and not directly to the aggrieved
beneficiary.” Id. (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140 (1985)). Thus,
certification is appropriate.
In sum, the Court, preliminarily, and for purposes of settlement only, concludes that
the Settlement Class satisfies the requirements of Rule 23(a) and (b)(1)(B).8
B. 	The proposed Settlement Agreement satisfies Rule 23(e) and will likely be
found fair at the final approval stage.
The Court also concludes that the Settlement Agreement should be preliminarily
approved because it satisfies Rule 23(e) and the Reed factors and will likely be found fair at
the final approval stage. Pursuant to Rule 23(e)(2), the Court must consider whether
(1) “the class representative[] and class counsel have adequately represented the class”;
(2) “the proposal was negotiated at arm’s length”; (3) “the relief provided for the class is
adequate”; and (4) “the proposal treats class members equitably relative to each other.”
Fed. R. Civ. P. 23(e)(2). All of these factors support preliminary approval here.
i. 	Wagner and class counsel have adequately represented the class.
First, as previously discussed in the Rule 23(a) analysis, Wagner and his counsel
adequately represented the class. Counsel is highly experienced in handling class actions
and reached this settlement following their review of discovery materials, after actively
litigating a motion to dismiss (Dkt. No. 28), motion to amend (Dkt. No. 60), and motion for
8 In the alternative, Wagner seeks certification under Rule 23(b)(1)(A). Dkt. No. 114 at 17. Because
the Court finds that certification is already appropriate under (b)(1)(B), it does not consider whether
certification is appropriate under any other provision of Rule 23.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 11 of 19 PageID <pageID>

– 12 –
summary judgment (Dkt. No. 88). Counsel also acted promptly in response to the Court’s
order questioning the scope of the original proposed Settlement Agreement (Dkt. No. 110)
and secured a modified agreement days later. Dkt. No. 111. Wagner’s interests are aligned
with those of the proposed class as he will largely receive the same benefits from the
settlement as them, see Dkt. No. 114-1 at 5 (defining Wagner as a Class Member), minus a
Class Representative Case Contribution Award not to exceed $15,000 and subject to Court
approval. Id. at 17–18.9 And both counsel and Wagner have demonstrated their
commitment to this case through their negotiations of the settlement.
ii. 	The Settlement Agreement was negotiated at arm’s length.
Second, the Settlement Agreement was negotiated at arm’s length. The Court “may
presume that a proposed settlement is fair and reasonable, and lacking fraud or collusion,
when it is the result of arm’s-length negotiations.” Welsh v. Navy Fed. Credit Union, No. 5:16-
CV-1062-DAE, 2018 WL 7283639, at *12 (W.D. Tex. Aug. 20, 2018) (citing DeHoyos v.
Allstate Corp., 240 F.R.D. 269, 287 (W.D. Tex. 2007)). Moreover, unless there is evidence to
the contrary, the Court presumes that “no fraud or collusion occurred.” Klein v. O’Neal, Inc.,
705 F. Supp. 2d 632, 651 (N.D. Tex. 2010). Again, the parties in this case actively litigated
their claims for over two years and up to the eve of trial. The parties aver that they reached
this agreement through arm’s-length negotiations, and the Court has no evidence to suggest
otherwise. Dkt. No. 114-1 at 21
9 “It is not unusual for a court to make an incentive award to named plaintiffs because of their
sacrifices in pursuit of litigation on behalf of the class.” Jenkins v. Trustmark Nat’l Bank, 300 F.R.D.
291 (S.D. Miss. 2014) (internal quotation marks omitted).
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 12 of 19 PageID <pageID>

– 13 –
iii. 	The Settlement Agreement’s proposed relief is adequate.
Third, the proposed relief for the class is adequate. In considering the adequacy of
the relief, courts look to (1) the risks and costs of trial and appeal; (2) the effectiveness of the
proposed method to process class-member claims and distribute relief; (3) the terms of
attorney’s fees; and (4) any agreement made in connection with the proposal. Fed. R. Civ.
P. 23(e)(2)(C), (3). The risks and costs of trial and appeal include “the complexity, expense,
and likely duration of the litigation; the stage of the proceeding and the amount of discovery
completed; the probability of plaintiff’s success on the merits; and the range of possible
recovery.” Singing River, 865 F.3d at 293 (cleaned up) (quoting Reed, 703 F.2d at 172);
Kostka, 2022 WL 16821685, at *11.
This litigation presented significant risk to the class members. “ERISA litigation is
notoriously complex.” Blackmon v. Zachary Holdings, Inc., No. SA-20-CV-988, 2022 WL
3142362, at *5 (W.D. Tex. Aug. 5, 2022). At length, the parties in this case disputed
whether summary judgment was warranted on Wagner’s two theories of recovery. The first
theory was that the defendants ought to have mixed and matched individual funds to
maximize benefit to the beneficiaries. See Dkt. No. 100 at 22. The defendants urged that
this was a “novel” way of managing funds and would not suffice to allege a breach of
fiduciary duty. Dkt. No. 89 at 40. The second theory asserted that the defendants ought to
have replaced their mutual funds wholesale, which would have benefited the vast majority
of beneficiaries, but would have harmed 10%. See Dkt. No. 102 at 7–8. The defendants
urged that the wholesale theory had been improperly raised at a late stage of litigation and,
regardless, would fail on the merits. See Dkt. No. 102 at 8–9 (citing Johnson v. Thibodaux
City, 887 F.3d 726, 736 (5th Cir. 2018)).
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 13 of 19 PageID <pageID>

– 14 –
Because the motion for summary judgment (Dkt. No. 88) was ripe for review and
trial was weeks away, two points are relevant. One, the parties had completed discovery,
and thus “the parties [had] a good understanding of the likely outcomes and their expected
value.” Singing River, 865 F.3d at 300. Two, the parties undoubtedly recognized that the
Court planned to resolve the motion imminently. Had the Court granted preliminary class
certification and granted summary judgment, it would have precluded class members from
recovery across the board. If the case survived summary judgment and proceeded to bench
trial seeking class-wide recovery as intended (see Dkt. No. 27), that would still leave open
the possibility of a finding by this Court that the defendants had complied with their
fiduciary duties. And even if the Court had granted summary judgment without certifying
the class, a judgment in favor of the defendants would have presented unfavorable authority
for other individual plaintiffs or putative class actions going forward. Said differently, the
summary-judgment and trial stages of an ERISA suit present “significant risks and
expenses” with “uncertain outcomes and the possibility of lesser recovery to Plan
participants.” Blackmon, 2022 WL 3142362, at *4.
As for the range of possible recovery, while it is not fully evident what the class
members would obtain if they succeeded at trial, Wagner estimates that “the Settlement
Amount represents nearly 70% of the total damages that [he] could currently obtain at trial”
on behalf of the class. Dkt. No. 114 at 22. As Wagner notes, and as Blackmon explains, “a
recovery between 14[%] and 24% of [the class’s] total estimated losses ‘exceeds many
recoveries received in other class action cases relative to estimates of recovery.’” Id.
at 22–23 (quoting Blackmon, 2022 WL 3142362, at *4 (collecting cases)). Given that the
settlement agreement also includes funds subject to a claim previously dismissed by the
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 14 of 19 PageID <pageID>

– 15 –
Court,10 seventy percent is highly beneficial. This, too, points to the fairness and adequacy
of the Settlement Agreement.
As for the effectiveness of the method of processing claims and distributing relief, this
also supports approval. “Current Participants will have their Plan accounts automatically
credited,” and the remaining class members only need to fill out a claim form and provide
documentation as necessary. Dkt. No. 114 at 10; see Dkt. No. 114-1 at 42–44, 48–50. This
process—submitting a claim form to be considered by an experienced claims
administrator—favors approval. Kostka, 2022 WL 16821685, at *12.
The attorneys’ fees provision also favors approval. It provides that Class Counsel
“intends to seek an award of attorneys’ fees in an amount not to exceed one-third (33 1/3%)
of the Gross Settlement Amount, plus all reasonable litigation costs and expenses advanced
and carried out by Class Counsel in connection with their prosecution of this Class Action,”
also to be recovered from the Gross Settlement Amount. Dkt. No. 144-1 at 18–19.
However, “[t]he Settlement Agreement is not contingent on Court approval of any fees,
costs and expenses, or class-representative service awards that may be requested.” Dkt. No.
144 at 12. Thus, as noted above, the class will still receive an award even if the Court elects
to deny fees to Class Counsel and Wagner in toto. And there are no reverter or clear-sailing
provisions, either. See Wawa, 85 F.4th at 725–27. This factor also supports finding that the
Settlement Agreement is fair, reasonable, and adequate. Spegele v. USAA Life Ins. Co., No.
5:17-cv-967-OLG, 2021 WL 4935978, at *6 (W.D. Tex. Aug. 26, 2021).
10 In March 2025, the Court dismissed certain claims relating to Single Asset Funds with prejudice.
Dkt. No. 58. Wagner soon filed a Motion to Revise, Dkt. No. 60, which was pending at the time of
the parties’ settlement.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 15 of 19 PageID <pageID>

– 16 –
The final consideration regarding the adequacy of the settlement is any agreement
covered by Rule 23(e)(3). The parties have not identified any such agreements, minus a
“pre-existing agreement between Class Counsel” and a Kansas firm that “does not impact
the amount of the Net Settlement Amount.” Dkt. No. 114 at 12 n.2; supra, n.6. So, this
factor does not weigh against approval.
Accordingly, these various considerations demonstrate that the Settlement
Agreement provides adequate relief to the class members and therefore favor approval.
iv. 	The Settlement Agreement treats class members equitably.
The final consideration stated in Rule 23(e) regarding a settlement’s fairness,
reasonableness, and adequacy is whether it “treats class members equitably relative to each
other.” Fed. R. Civ. P. 23(e)(2)(D). This factor also supports preliminary approval.
Equitable treatment does not require equal treatment of class members. Kostka, 2022 WL
16821685, at *13. Instead, it is proper for a class member’s recovery to depend on the
strength of his claim. Id. Under the Settlement Agreement, each member will receive “his
or her Challenged Funds aggregate balance” divided by the aggregate balance for all payees
and multiplied by the Net Settlement Amount. Dkt. No. 144-1 at 47. In other words, each
class member will receive an amount representative of their losses and reduced to ensure
that every member receives some benefit out of the Net Settlement Amount. Id. While the
amount of recovery by each class member will differ based on those expenses, these
distinctions based on documented losses properly account for the strength of their claims
and show equitable treatment of the members. Kostka, 2022 WL 16821685, at *13.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 16 of 19 PageID <pageID>

– 17 –
In sum, applying the required factors, the Court determines that they all weigh in
favor of preliminarily approving the Settlement Agreement and that the settlement will
likely be found fair at the final approval stage.
C. 	Wagner’s remaining requests are proper.
Finally, the Court turns to Wagner’s remaining requests: to (1) approve the notice
program set forth in the settlement agreement; (2) appoint Wagner as the class
representative; (3) appoint Foulston Siefkin LLP and Figari + Davenport LLP as Class
Counsel; (4) approve Analytics Consulting, LLC as the settlement administrator; (5)
approve the procedures for members to opt out or object to the settlement; (6) approve the
claim form; and (7) schedule a final approval hearing. The Court finds that these requests
are proper and grants them.
As previously discussed, Wagner and his attorney adequately represent the class and
have demonstrated their commitment to this case. Accordingly, Wagner is appointed as
Class Representative for the Settlement Class and Foulston Siefkin LLP and Figari +
Davenport LLP are appointed as Class Counsel.
The proposed settlement administrator, Analytics Consulting, LLC, is also
approved. While the motion fails to discuss Analytics Consulting’s experience in
administering settlements, the Court observes that Analytics Consulting has served as
settlement administrator on several cases before other Judges of the Northern District of
Texas. See, e.g., Seidner v. Kimberly-Clark Corp., No. 3:21-CV-867, Dkt. No. 117 (N.D. Tex.
Mar. 10, 2025) (Lindsay, J.). Analytics Consulting also served as administrator in a large
401(k) class action involving Walgreens. Carol E. Potaczek, Judge OKs Walgreens’ $14
Million Settlement Offer in 401(k) Litigation, 36 Westlaw J. Emp’t No. 9 (Nov. 16, 2021)
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 17 of 19 PageID <pageID>

– 18 –
(discussing Allegretti v. Walgreen Co., No. 19-CV-5392, 2021 WL 5119759 (N.D. Ill. Nov. 1,
2021)).
The Court also approves the notice plan. Under Rule 23(c)(2)(A), “the [C]ourt may
direct appropriate notice to the class.” Fed. R. Civ. P. 23(c)(2)(A). But “Rule 23 . . . does
not specify any notice requirement for 23(b)(1)(B) actions beyond that required by
subdivision (e) for settlement purposes.” In re Katrina Canal Breaches Litig., 628 F.3d 185,
197 n.5 (5th Cir. 2010). To that end, the Court must only “direct notice in a reasonable
manner to all class members who would be bound by the proposal.” Fed. R. Civ. P.
23(e)(1)(B).
The Court finds that the notice plan satisfies Rules 23(c)(2)(A) and (e). The
proposed notice provides details about the lawsuit, informs prospective Class Members
about why they may qualify as Class Members, indicates where to access the terms of the
settlement, summarizes the prospective Class Members’ options (including their ability to
object and their non-excludability), and outlines procedural steps regarding how to object or
submit a claim for a settlement payment. See Dkt. No. 114-1 at 33–40. It thus “‘fairly
apprise[s] the prospective members of the class of the terms of the settlement and the options
that are open to them,’ and provide[s] them with ‘sufficient information for them to make a
rational decision whether they should intervene in the settlement approval procedure.’” Stott
v. Cap. Fin. Servs., Inc., 277 F.R.D. 316, 342 (N.D. Tex. 2011) (citation modified) (quoting
Maher v. Zapata Corp., 714 F.2d 436, 451 (5th Cir. 1983)).
Likewise, the Court approves the parties’ claim form. The form clearly states the
information that a Former Participant must provide in order to obtain relief under the
Settlement Agreement and is written in a manner that is easily understandable. Dkt. No.
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 18 of 19 PageID <pageID>

– 19 –
114-1 at 42–44. Further, many portions of the form are simple for members to fill out
because it includes check-box-style responses. See id.
The Court approves the objection process, which provides sufficient time for Class
Members to object if they so choose. See, e.g., Schwartz v. TXU Corp., No. 3:02-CV-2243
(lead case), 2005 WL 3148350, at *11 (N.D. Tex. Nov. 8, 2005) (finding 62 days between
mailing of notices and scheduled fairness hearing sufficient); Miller v. Republic Nat’l Life Ins.
Co., 559 F.2d 426, 429–30 (5th Cir. 1977) (four weeks).
The Court also approves the request for a stay of litigation. A stay is appropriate in
the context of a limited-fund action as class members cannot opt out and courts regularly
“enjoin[] other legal proceedings to preserve the limited assets that would be available to all
class members.” Stott, 277 F.R.D. at 336–38.
Finally, the Court sets the fairness and final approval hearing for Wednesday,
February 17, 2027, at 9:00 a.m. in the United States District Court, Courtroom 216, 33 East
Twohig Avenue, San Angelo, Texas.
4. 	Conclusion
In light of the foregoing, the Court grants Wagner’s class-certification and
preliminary-approval motion. Dkt. No. 113. An order setting forth the relief requested (see
Dkt. No. 114-1 at 52–62) shall issue separately.
So ordered on October 9, 2026.
JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE
Case 6:24-cv-00004-H Document 115 Filed 10/09/26 Page 19 of 19 PageID <pageID>