Gonzalez v. Northwell Health, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KAILA GONZALEZ, individually and as
a representative of a class of similarly
situated persons, on behalf of the
NORTHWELL HEALTH 403(B) PLAN,
REPORT AND
RECOMMENDATION
20-CV-3256 (RPK) (TAM)
Plaintiff,
-against-
NORTHWELL HEALTH, INC.,
Defendant.
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TARYN A. MERKL, United States Magistrate Judge:
This is a putative class action originally brought against Defendants Northwell
Health, Inc. (“Northwell”), the Northwell Health 403(b) Plan Committee, and Does
No. 1–10 (collectively, “Defendants”).1 (Compl., ECF No. 1; see also Second Am. Compl.,
ECF No. 72.) Plaintiff Kaila Gonzalez initiated this action in her capacity as a participant
of the Northwell Health 403(b) Plan (the “Plan”) under 29 U.S.C. § 1132 for breaches of
Defendants’ fiduciary duties under the Employment Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001, et seq. (Compl., ECF No. 1, ¶ 1.)
Currently pending before the Court is Plaintiff’s unopposed motion for
preliminary settlement approval, which the Honorable Rachel P. Kovner referred to the
undersigned Magistrate Judge for a report and recommendation. The Court respectfully
recommends granting Plaintiff’s motion.
1 As reflected in the case caption and discussed in Section II, Procedural History, infra,
Defendant Northwell is the only remaining defendant in the action.
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. 	Factual Background2
The Plan is a single-employer 403(b) defined contribution retirement savings
plan utilized by employees and former employees of Northwell. (See Second Am.
Compl., ECF No. 72, ¶¶ 2, 17.) As of December 31, 2018, the Plan had 56,289
participants with account balances and assets totaling over $5.6 billion.3 (Id. ¶ 4.) Under
the Plan, “[t]he available investment options for participants of the Plan include various
mutual funds and a fixed interest separate account.” (Id. ¶ 17.) Additionally,
“substantially all administrative expenses [related to the Plan] are paid by participants
as a reduction of investment income.” (Id.) Defendants “maintain the Plan, and are
responsible for selecting, monitoring, and retaining the service provider(s) that provide
investment, recordkeeping, and other services“ for the Plan. (Id. ¶ 5.)
Plaintiff is a former employee of Northwell and a participant in the Plan. (Id. ¶ 9.)
Plaintiff alleges that beginning six years before the date the initial complaint was filed
and continuing until the date of judgment (the “Class Period”), Defendants have
breached their fiduciary duties to the Plan by (1) “allow[ing] unreasonable
recordkeeping and administrative expenses to be charged to the Plan,” and (2) selecting,
retaining, and ratifying “unsuitable,” imprudent investments, rather than “offering
readily available alternative investments.” (Id. ¶¶ 1, 6.) More specifically, as to the first
2 The Court recites the facts as alleged in the second amended class action complaint. See,
e.g., Mikhlin v. Oasmia Pharm. AB, No. 19-CV-4349 (NGG) (RER), 2021 WL 1259559, at *1
(E.D.N.Y. Jan. 6, 2021). Remaining Defendant, Northwell Health, Inc., denies these allegations
and disputes liability. (See Settlement Agreement, ECF No. 88-1, at ECF pp. 21–22.)
3 More recently, as of January 1, 2023, there were over 65,374 participants in the Plan.
(Berin Decl., ECF No. 88, ¶ 4.)
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claimed breach of Defendants’ fiduciary duties, the complaint asserts that during the
Class Period, the Plan’s recordkeeping and administrative fees “far exceeded the
reasonable market rate,” ranging from $37 to $60 per participant. (Id. ¶¶ 45, 61.) In
Plaintiff’s view, failure to take action in regard to these fees constituted a breach of
fiduciary duty. (Id.) As to the second asserted breach, based on a claim of imprudent
retention, Plaintiff alleges that because Defendants had discretion to select the
investments made available to the Plan participants and Defendants failed to act in the
face of persistent underperformance of one of the funds, Defendants’ breaches are the
direct cause of losses suffered by the Plan and its participants. (Id. ¶¶ 6, 72.) More
specifically, Plaintiff contends that the Lazard Emerging Markets Fund Institutional
Class (the “Lazard Fund”), one of the funds available under the Plan, “has substantially
and repeatedly underperformed” and should have been replaced by Defendants with a
better performing alternative. (Id. ¶¶ 69, 72.) Plaintiff asserts that Defendants’ failure to
act was a breach of fiduciary duty. (Id.) During the Class Period, Plaintiff has
“maintained an investment through the Plan in the Lazard Emerging Markets Fund and
was subject to the excessive recordkeeping and administrative costs alleged.” (Id. ¶ 9.)
The proposed settlement agreement currently pending before this Court seeks to
fully resolve these claims for $2,750,000 in monetary relief. (Mem., ECF No. 87, at 1.)
This sum will be paid “into a Qualified Settlement Fund to be allocated to Current
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Participants, Former Participants, Beneficiaries, and Alternate Payees of the Plan
through a Plan of Allocation.”4 (Id. at 3–4.)
II. Procedural History
Plaintiff initiated this putative class action on July 21, 2020. (Compl., ECF No. 1.)
Defendants first moved to dismiss on December 18, 2020; Plaintiff filed an opposition to
the motion to dismiss, and then filed an amended complaint on August 16, 2021, before
a ruling on the motion. (Mot. to Dismiss, ECF No. 18; Mem. in Opp’n, ECF No. 20; Am.
Compl., ECF No. 30.) On December 1, 2021, the parties filed briefing on Defendants’
renewed motion to dismiss the amended complaint. (Mot. to Dismiss, ECF No. 35;
Mem. in Opp’n, ECF No. 39; Reply, ECF No. 40.) Judge Kovner granted Defendants’
motion to dismiss on September 30, 2022, and directed Plaintiff that any motion seeking
leave to file a second amended complaint must be filed by October 31, 2022. (Mem. &
Order, ECF No. 51; Sept. 30, 2022 ECF Order.)
Plaintiff filed her motion seeking leave to amend by the October 31, 2022
deadline. (Mot. for Leave to File, ECF No. 52.) Defendants filed their opposition on
November 22, 2022, and Plaintiff filed her reply on December 9, 2022. (Mem. in Opp’n,
4 The proposed “Settlement Class” is defined as follows:
All persons who participated in the Plan at any time during the Class Period
(July 21, 2014, through the date the Preliminary Approval Order is entered by the
Court), including any Beneficiary of a deceased person who participated in the
Plan at any time during the Class Period, and any Alternate Payee of a person
subject to a Qualified Domestic Relations Order who participated in the Plan at
any time during the Class Period. Excluded from the Settlement Class are
Defendant [Northwell Health, Inc.], the Retirement Committees (as defined in
the Settlement Agreement), the Board of Trustees of Northwell Health (including
its individual members), and their Beneficiaries [(the “Settlement Class” or
“Class Members”)].
(Proposed Order, Ex. C to Settlement Agreement, ECF No. 88-1, at ECF p. 49.)
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ECF No. 54; Reply, ECF No. 56.) On March 26, 2024, Judge Kovner granted in part and
denied in part Plaintiff’s motion. (Mem. & Order, ECF No. 71.) More specifically, Judge
Kovner denied leave to amend Plaintiff’s imprudent-retention claims regarding two of
the Plan’s investment options, the Large Value Option and Causeway/BNY Mellon
Option, but granted leave to amend Plaintiff’s imprudent-retention claim concerning
the Lazard Emerging Markets Fund, recordkeeping-fees claim, and failure-to-monitor,
co-fiduciary-breach, and knowing-participation claims. (See id. at 1.)
On April 9, 2024, Plaintiff filed her second amended complaint. (Second Am.
Compl., ECF No. 72.) Defendants filed an answer on May 23, 2024. (Answer, ECF No.
74.) The parties subsequently proceeded to discovery. (See July 22, 2024 ECF Min. Entry
& Order (setting discovery schedule).) On October 16, 2024, the parties filed a
stipulation agreeing to dismiss Defendant Northwell Health 403(b) Plan Committee and
the individual members of the Committee (referred to as Does No. 1–10 in the
pleadings), which was so-ordered on October 21, 2024. (Stipulation, ECF No. 81; Oct. 21,
2024 ECF Order Dismissing Parties.) Following the dismissal of these parties, the only
defendant remaining is Defendant Northwell Health, Inc. (“Defendant”).
On January 6, 2025, the remaining parties moved to stay case deadlines while the
parties attended mediation. (Mot. to Stay, ECF No. 82.) The Court granted the motion
and directed the parties to file a joint status letter by May 21, 2025. (Jan. 7, 2025 ECF
Order.) On May 21, 2025, the parties filed a letter representing that they had attended a
private mediation session and, as a result of the mediation, the parties had reached a
settlement in principle. (Letter, ECF No. 83.) The Court directed the parties to file their
motion for preliminary settlement approval. (May 22, 2025 ECF Order.)
Following several extension requests, the parties filed their unopposed motion
for preliminary settlement approval on August 19, 2025. (Mot. for Settlement (“Mot.”),
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ECF No. 86.) The motion was referred to the undersigned Magistrate Judge for a report
and recommendation; following referral, the Court scheduled a fairness hearing to take
place on November 4, 2025. (Aug. 20, 2025 ECF Order Referring Mot.; Oct. 15, 2025 ECF
Scheduling Order.)
The Court held a fairness hearing on November 4, 2025. (See Nov. 4, 2025 ECF
Min. Entry & Order; Tr. of Nov. 4, 2025 Preliminary Fairness Hearing (“Fairness
Hearing”), ECF No. 91.) The Court heard argument regarding Plaintiff’s unopposed
pending motion, including the likelihood of final settlement approval and class
certification, as well as the parties’ proposed notice procedures. (See generally Fairness
Hearing, ECF No. 91.) The Court directed the parties to make specific corrections to the
proposed notice to be provided to the putative Class Members (“Notice”) and further
requested that the parties provide in the Notice an estimate for the administrative costs
to be charged by the settlement administrator. (See id., at 23:9–29:5.) Moreover, the
Court inquired about the proposed Class Action Fairness Act Notice’s (the “CAFA
Notice”) compliance with 28 U.S.C. § 1715(b)(7) because the proposed CAFA Notice did
not include an estimated proportionate share of the claims for each state. (See id. at 43:5–
47:21.) Accordingly, the Court directed the parties to submit a revised Notice and
propose timing for the submission of a supplemental CAFA Notice. (See Nov. 4, 2025
ECF Min. Entry & Order.) The Court took the pending motion under advisement. (Id.)
On November 18, 2025, Plaintiff filed a supplemental letter that included
proposed timing for the submission of a supplemental CAFA Notice, which would
include the estimated proportionate share of the claims for each state. (See Pl.’s Letter,
ECF No. 92, at 1.) Along with this letter, Plaintiff also filed a revised Notice. (Revised
Notice, ECF No. 92-1.)
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DISCUSSION
Plaintiff requests that the Court (1) preliminarily approve the settlement
agreement; (2) preliminarily certify the Settlement Class; (3) approve the proposed
notice plan (“Notice Plan”); and (4) schedule a fairness hearing to consider final
approval of the settlement. (Mot., ECF No. 86, at 1.) Plaintiff also requests to have Miller
Shah appointed as class counsel. (Mem., ECF No. 87, at 14–15.)
Under Federal Rule of Civil Procedure 23(e), “[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). “At the preliminary approval stage, a court makes an initial evaluation
of fairness prior to notifying the class . . . .” Rosenfeld v. Lenich, No. 18-CV-6720 (NGG)
(PK), 2021 WL 508339, at *3 (E.D.N.Y. Feb. 11, 2021).
Preliminary approval is guided by a “likelihood standard,” i.e., “whether the
parties have shown that the court will likely be able to grant final approval and certify
the class.” In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., 330
F.R.D. 11, 28 n.21 (E.D.N.Y. 2019) (hereinafter “Payment Card”); see also Fed. R. Civ. P.
23(e)(1)(B)(i)–(ii). “If the court determines that notice to class members is ‘justified by
the parties’ showing’” as to the likelihood of final approval and class certification, “it
‘must direct notice in a reasonable manner to all class members who [would] be bound
by the proposal.’” Rosenfeld, 2021 WL 508339, at *4 (quoting Fed. R. Civ. P. 23(e)(1)(B)).
The court must also appoint class counsel for purposes of settlement. Payment Card, 330
F.R.D. at 58.
The Court begins with an analysis of the likelihood of final settlement approval
and class certification, then assesses the proposed form and manner of notice, and
concludes with appointment of class counsel.
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I. 	Likelihood of Final Settlement Approval
A. Legal Standards
In assessing the likelihood of final approval, courts “look[] to the factors
contained in the text of Rule 23(e)(2).” Payment Card, 330 F.R.D. at 28. Under Rule
23(e)(2), courts must consider whether:
(A) the class representatives and class counsel have adequately
represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to
the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney’s fees, including
timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2). “[P]aragraphs (A) and (B) are ‘procedural’ factors that address
‘the conduct of the litigation and of the negotiations leading up to the proposed
settlement,’ whereas . . . paragraphs (C) and (D) are ‘substantive’ factors that address
the ‘relief that the settlement is expected to provide to class members.’” Rosenfeld, 2021
WL 508339, at *3 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018
amendment).
The substantive factors are supplemented by the nine Grinnell factors, which
“courts in this Circuit have traditionally considered” when “evaluating the fairness,
reasonableness, and adequacy of the proposed settlement.” Id. (citing City of Detroit v.
Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v.
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Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000)); Payment Card, 330 F.R.D. at 29 (noting the
“significant overlap” between the Grinnell and substantive factors). The Grinnell factors
include:
(1) the expense, complexity, and likely duration of the litigation; (2) the
class’s reaction to the settlement; (3) the stage of the proceedings and
amount of discovery completed; (4) the risks of establishing damages;
(5) the risks of establishing liability; (6) the risks of maintaining the class
throughout the litigation; (7) defendants’ ability to withstand greater
judgment; (8) the range of reasonableness of the settlement amount
considering the best possible recovery; and (9) the range of reasonableness
of the settlement amount given the risks of litigation.
Rosenfeld, 2021 WL 508339, at *3 (citing Grinnell, 495 F.2d at 463).
B. Analysis
1. 	Procedural Factors
a. 	Adequate Representation
“In determining the adequacy of class representatives and counsel, courts
consider ‘whether (1) plaintiff[s’] interests are antagonistic to the interests of other
members of the class and (2) plaintiff[s’] attorneys are qualified, experienced[,] and able
to conduct the litigation.’” Rosenfeld, 2021 WL 508339, at *4 (quoting Cordes & Co. Fin.
Servs. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007)); see Payment Card, 330
F.R.D. at 30 n.25 (explaining that “Rule 23(a)(4) case law . . . guide[s]” the Rule
23(e)(2)(A) analysis). Class representatives “‘must be part of the class and possess the
same interest and suffer the same injury as the [other] class members.’” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 348–49 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v.
Rodriguez, 431 U.S. 395, 403 (1977) (internal quotation marks omitted)); see also Payment
Card, 330 F.R.D. at 31 (explaining that the Due Process Clause requires adequate
representation). As for class counsel, “[a] court reviewing a proposed settlement must
pay close attention to the negotiating process, to ensure that . . . counsel have possessed
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the experience and ability, and have engaged in the discovery[] necessary to effective
representation of the class’s interests.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.
2001) (quotation marks omitted); see also Fed. R. Civ. P. 23 advisory committee’s note to
2018 amendment (“For example, the nature and amount of discovery in this or other
cases . . . may indicate whether counsel negotiating on behalf of the class had an
adequate information base.”).
Here, the record illustrates that Plaintiff’s interests are aligned with those of the
proposed Settlement Class. Plaintiff seeks to recover damages and equitable relief on
behalf of Class Members after Defendant allegedly breached fiduciary duties owed to
the Plan participants, beneficiaries, and alternate payees; therefore, “[a]ll participants
seek the same make-whole relief claimed by the named plaintiff[] for . . . breach of
fiduciary duties.” Becher v. Long Island Lighting Co., 164 F.R.D. 144, 152 (E.D.N.Y. 1996)
(quotation marks omitted), amended, 172 F.R.D. 28 (E.D.N.Y. 1997). Additionally,
counsel has represented that Plaintiff “has been actively involved in every stage of the
litigation.” (Mem., ECF No. 87, at 10, 17.) At the Fairness Hearing, counsel noted that
Plaintiff “was really instrumental to us in building out the initial pleadings in this
action, in providing documents and responding to discovery requests, in
communicating with us about what her experience as a plan participant was . . . [, and]
took seriously her responsibility to represent the other members of the plan and act on
their behalf.” (Fairness Hearing, ECF No. 91, at 32:11–22.) Plaintiff is also not aware of
any conflicts between herself and any other Class Members. (Mem., ECF No. 87, at 17;
see Fairness Hearing, ECF No. 91, at 36:18–37:19 (counsel for Plaintiff and Defendant
confirming that they have no concern about Plaintiff’s ability to represent all Class
Members).) Absent any indication that Plaintiff’s interests in this action “are
antagonistic to the interest[s] of other members of the class,” the record demonstrates
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that Plaintiff is well positioned to represent the proposed Settlement Class. Cordes, 502
F.3d at 99.
The Court similarly finds that Plaintiff is adequately represented by her
attorneys (herein referred to as “Lead Counsel”). The Court observes that Lead Counsel
have substantial experience litigating and overseeing the administration of settlements
in ERISA fiduciary breach cases, and have served as lead counsel in numerous
significant ERISA cases prosecuted on behalf of retirement plan participants. (Berin
Decl., ECF No. 88, ¶ 5; Mem., ECF No. 87, at 14–15.) Both the pleadings and motion
papers demonstrate a thorough investigation by Lead Counsel into the underlying facts
and applicable law. (See generally Pl.’s Mem. in Opp’n to Mot. to Dismiss., ECF No. 39;
Mot. for Leave to Amend, ECF No. 52; Second Am. Compl., ECF No. 72.) Plaintiff also
represents that, in addition to the “filing of multiple detailed and comprehensive
pleadings, briefing and litigating of” motions, Lead Counsel has pursued “substantial
discovery efforts” and undertook mediation and the negotiation of this settlement, all of
which supports the conclusion that Lead Counsel has adequately represented the
interests of the proposed class. (Mem., ECF No. 87, at 11, 14; see Fairness Hearing, ECF
No. 91, at 6:5–7:10; see also Mediation Status Letter, ECF No. 83.) In light of Lead
Counsel’s experience and efforts in this case to investigate and substantiate the alleged
violations, the Court finds that Plaintiff is being represented by “qualified, experienced”
legal counsel. Cordes, 502 F.3d at 99.
b. 	Arm’s Length Negotiation
“A class settlement reached through arm’s-length negotiations between
experienced, capable counsel knowledgeable in complex class litigation is entitled to a
presumption of fairness.” Rosenfeld, 2021 WL 508339, at *5 (quotation marks omitted).
Likewise, a mediator’s involvement “in pre-certification settlement negotiations helps
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to ensure that the proceedings were free of collusion and undue pressure.” D’Amato,
236 F.3d at 85.
Here, the Court notes that the parties settled through private mediation after
significant discovery. (Mem., ECF No. 87, at 17.) Plaintiff posits that the mediator,
Robert A. Meyer, Esq. of JAMS,5 is “one of the most highly respected, sought after, and
experienced mediators in the country in complex financial disputes and has significant
experience mediating ERISA actions.” (Berin Decl., ECF No. 88, ¶ 7; see also Fairness
Hearing, ECF No. 91, at 6:25–7:10, 11:18–12:10.) In fact, several courts in this Circuit
have held that Mr. Meyer’s involvement has supported a finding that settlement
negotiations were at arm’s length. See, e.g., In re N. Dynasty Mins. Ltd. Sec. Litig., No. 20-
CV-5917 (TAM), 2023 WL 5511513, at *3 n.5 (E.D.N.Y. Aug. 24, 2023) (collecting cases);
Snitzer v. Bd. of Trs. of Am. Fed'n of Musicians & Employers' Pension Fund, No. 17-CV-5361
(VEC), 2020 WL 2508849, at *3 (S.D.N.Y. May 14, 2020). Based on the record in this case,
as well as the parties’ representations during the Fairness Hearing, there is no
“‘evidence or indicia suggesting that the negotiations were collusive.’” Gordon v. Vanda
Pharm. Inc., No. 19-CV-1108 (FB) (LB), 2022 WL 4296092, at *4 (E.D.N.Y. Sept. 15, 2022)
(quoting Simerlein v. Toyota Motor Corp., No. 17-CV-1091 (VAB), 2019 WL 1435055, at *13
5 JAMS, previously known as Judicial Arbitration and Mediation Services, Inc.,
represents itself to be “the premier provider of alternative dispute resolution (ADR) services” in
the world. About Us, JAMS, https://www.jamsadr.com/about/ (last visited Dec. 20, 2025). It is
further represented that Mr. Meyer has been a mediator for more than 12 years, with experience
in “cases arising under ERISA.” Robert A. Meyer, Esq., JAMS,
https://www.jamsadr.com/meyer/ (last visited Dec. 20, 2025). Courts in this circuit have
observed Mr. Meyer to be “an experienced professional mediator.” Snitzer v. Bd. of Trs. of Am.
Fed'n of Musicians & Employers' Pension Fund, No. 17-CV-5361 (VEC), 2020 WL 2508849, at *3
(S.D.N.Y. May 14, 2020); see also In re N. Dynasty Mins. Ltd. Sec. Litig., No. 20-CV-5917 (TAM),
2023 WL 5511513, at *3 n.5 (E.D.N.Y. Aug. 24, 2023) (collecting cases).
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(D. Conn. Jan. 14, 2019)). The Court therefore finds that the parties’ proposed settlement
was the result of arm’s length negotiations.
2. 	Substantive Factors
a. 	Adequate Relief
i. 	Costs, Risks, and Delay of Trial and Appeal
The first factor in assessing whether the proposed settlement provides adequate
relief for the putative class is an evaluation of the “costs, risks, and delay of trial and
appeal.” Fed. R. Civ. P. 23(e)(2)(C)(i). This factor “‘subsumes several Grinnell factors,’
including the complexity, expense and likely duration of litigation, the risks of
establishing liability, the risks of establishing damages, and the risks of maintaining the
class through trial” (factors 1, 4, 5, and 6). Rosenfeld, 2021 WL 508339, at *5 (quoting
Payment Card, 330 F.R.D. at 36). Put simply, courts must assess whether the proposed
settlement “‘results in substantial and tangible present recovery, without the attendant
risk and delay of trial.’” Id. (quoting Payment Card, 330 F.R.D. at 36).
The parties have submitted their proposed settlement agreement, which
indicates that the settlement amount is $2,750,000. (See Settlement Agreement, ECF No.
88-1, ¶ 1.28.) Plaintiff represents that without approval of the settlement agreement,
“vigorous litigation” would resume, including possible dispositive and trial motions.
(Mem., ECF No. 87, at 19.) The parties agree that litigation would be extremely costly
and time-intensive. (See Fairness Hearing, ECF No. 91, at 8:17–21, 19:6–20:12.) As to the
“substantial risk” of continued litigation, Plaintiff contends that ERISA breach of
fiduciary duty actions are difficult to prosecute as they “‘involve a complex and rapidly
evolving area of law,’” in which “[n]ew case theories are frequently filed and evolving
precedents are frequently issued.” (Mem., ECF No. 87, at 19 (quoting In re Schering-
Plough Corp. Enhance ERISA Litig., No. 08–1432 (DMC) (JAD), 2012 WL 1964451, at *5
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(D.N.J. May 31, 2012)). In addition, at the Fairness Hearing, Plaintiff represented that
“the damages that we think would have been reasonably the best possible outcome [at
trial, assuming success on the investment claim only,] would have been somewhere
between [$]3.9 and 5.6 million.” (Fairness Hearing, ECF No. 91, at 15:14–16.)6
Accordingly, the proposed settlement of $2,750,000 represents 49 to 70% of Plaintiff’s
estimated maximum recovery after trial. The difficulty of prosecuting this action and
the concomitant litigation risks further support settlement, when weighed against the
substantial recovery offered by the settlement.
The Court concludes that the costs, risks, and likely duration of continuing to
litigate this matter are significant and that the proposed settlement would result in a
significant, tangible present recovery. This factor therefore weighs strongly in favor of
preliminary approval of the parties’ proposed settlement.
ii. 	Effectiveness of Proposed Method of Distributing Relief
The Court next evaluates the parties’ “proposed method of distributing relief to
the class, including the method of processing class-member claims.” Fed. R. Civ. P.
23(e)(2)(C)(ii). “An allocation formula need only have a reasonable, rational basis” and
“need not be perfect.” Payment Card, 330 F.R.D. at 40 (quotation marks omitted). As to
claims processing, the proposed method should “‘deter or defeat unjustified claims’
6 At the Fairness Hearing, Plaintiff indicated that “the best possible recovery would have
been somewhere between [$]10 and []13 million,” with “the recordkeeping portion of that itself
amount[ing] to about [$]6.5 million.” (Fairness Hearing, ECF No. 91, at 15:9–12.) However,
Plaintiff went on to acknowledge that the recordkeeping claim “was the claim that we felt we
would have a more difficult time proving at trial.” (Id. at 15:12–13.) Therefore, Plaintiff
ultimately represented that “reasonably,” “the best possible outcome would have been
somewhere between [$]3.9 and 5.6 million.” (Id. at 15:15–16.)
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without imposing an undue demand on class members.” Rosenfeld, 2021 WL 508339, at
*6 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendment).
The Settlement Agreement contains a Plan of Allocation, which outlines the
notice and claims process of distributing relief to members of the Settlement Class. (Plan
of Allocation, Ex. B to Settlement Agreement, ECF No. 88-1, at ECF pp. 40–46.) As
discussed above, members of the class must be “a Current Participant, Former
Participant, Beneficiary, or Alternate Payee.” (Id. at ECF p. 41.) The net settlement
amount “will be divided 50/50 between the investment claims and the recordkeeping
claims.” (Fairness Hearing, ECF No. 91, at 21:3–5.) Pro rata payments shall be calculated
by determining an “Investments Score” and a “Recordkeeping Score” for each member.
(Id. at ECF pp. 41–42.) This way, the Plan of Allocation “would provide pro rata recovery
relative to the average size and strength of the categories of claims.” (Mem., ECF No. 87,
at 20; see Fairness Hearing, ECF No. 91, at 21:5–23 (explaining how distributions will be
calculated for the Settlement Class).) In short, for the investment claim, the pro rata
share will be calculated by looking at what the participant’s “year-end balance in the
Lazard [F]und was,” which will then be divided by “what the [P]lan’s total year-end
balance in that fund was” such that the Class Member will “get their proportional share
of their investment in that fund for each year in the [C]lass [P]eriod that they were
invested in that fund.” (Fairness Hearing, ECF No. 91, at 21:10–15.) Likewise, for the
recordkeeping claim, “the settlement administrator will look to see who paid a
recordkeeping fee in each year of the [C]lass [P]eriod”; those individuals will then “get
their pro rata share of whatever the net settlement amount is based on how many people
paid the recordkeeping fee that year.” (Id. at 21:16–23.) Plaintiff also notes that, because
the proposed Settlement Class is comprised of participants, former participants,
beneficiaries, and alternate payees of the Plan, the data needed to administer the
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settlement is already largely in the possession of the Plan’s recordkeepers. (Mem., ECF
No. 87, at 19.)
“This allocation plan appears to be rational and fair, as it treats class members
equitably while taking into account variations in the magnitude of their injuries.”
Rosenfeld, 2021 WL 508339, at *6. Likewise, it appears that the claims processing method
imposes a minimal burden on claimants. The Court therefore finds that the proposed
methods of processing claims and distributing relief are rational and fair.
iii. 	Proposed Award of Attorneys’ Fees
The third factor in the evaluation of whether the settlement provides adequate
relief is an assessment of “the terms of any proposed award of attorneys’ fees, including
timing of payment.” Fed. R. Civ. P. 23(e)(2)(C)(iii). “Courts may award attorneys’ fees in
common fund cases under either the ‘lodestar’ method or the ‘percentage of the fund’
method.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005),
(hereinafter “Visa U.S.A.”) (quoting Goldberger, 209 F.3d at 50).
Here, Lead Counsel anticipates requesting feed and costs “in an amount not to
exceed one-third of the Gross Settlement Amount (i.e., $916,666.67).” (Mem., ECF No.
87, at 20.) Counsel notes that the settlement is not conditioned upon the award of any
such fees. (Id.)
“Courts in this Circuit routinely find that requests for attorney’s fees totaling
one-third of the settlement fund are well within the range of reasonableness,”
particularly “in cases with funds of less than $10 million.” Rosenfeld, 2021 WL 508339, at
*6 (quotation marks omitted). Assuming that Lead Counsel’s request for litigation fees
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and expenses is documented and substantiated, the Court finds that the requested
award for attorneys’ fees will likely be found to be reasonable.7
iv. 	Other Agreements
The fourth factor requires courts to consider “any agreement required to be
identified under Rule 23(e)(3),” i.e., “any agreement made in connection with the
proposal.” Fed. R. Civ. P. 23(e)(2)(C)(iv), (e)(3). Rule 23(e)(3) is aimed at revealing
“undertakings that, although seemingly separate, may have influenced the terms of the
settlement by trading away possible advantages for the class in return for advantages
for others,” namely, the representative plaintiffs or their attorneys. Fed. R. Civ. P. 23
advisory committee’s note to 2003 amendment; see also David F. Herr, Annotated
Manual for Complex Litigation § 21.631 (4th ed., Aug. 2025 Update) (“Requiring the
parties to file the complete agreement might elicit comments from class members and
facilitate judicial review.”).
Here, Lead Counsel represent that they “are not aware of any agreements
required to be disclosed under Rule 23(e)(3).” (Mem., ECF No. 87, at 20.) The parties
further confirmed at the Fairness Hearing that there are no other agreements amongst
the parties. (Fairness Hearing, ECF No. 91, at 32:4–33:13.)
7 The Court notes that Lead Counsel’s requested award is, of course, subject to
modification at final settlement approval. See Rosenfeld v. Lenich, No. 18-CV-6720 (NGG) (PK),
2021 WL 508339, at *7 (E.D.N.Y. Feb. 11, 2021). Lead Counsel should be prepared to submit
contemporaneous time records to facilitate a cross-check against the lodestar. See In re PPDAI
Grp. Inc. Secs. Litig., No. 18-CV-6716 (TAM), 2022 WL 198491, at *14–17 (E.D.N.Y. Jan. 21, 2022);
see also Marion S. Mishkin L. Off. v. Lopalo, 767 F.3d 144, 148–49 (2d Cir. 2014) (discussing the
“strict rule” that any request for attorneys’ fees must be “accompanied by contemporaneous
time records” (quotation marks omitted)).
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b. 	Equitable Treatment
The proposed settlement must “treat[] class members equitably relative to each
other.” Fed. R. Civ. P. 23(e)(2)(D). In making this assessment, “the court may weigh
‘whether the apportionment of relief among class members takes appropriate account of
differences among their claims, and whether the scope of the release may affect class
members in different ways that bear on the apportionment of relief.’” Rosenfeld, 2021
WL 508339, at *7 (quoting Fed. R. Civ. P. 23 advisory committee’s note to 2018
amendment). As explained above, the Settlement Agreement provides for disbursement
to Class Members on a pro rata basis, relative to each Class Member’s damages for each
claim. “In this way, the agreement appropriately and fairly accounts for . . . point[s] of
differentiation among class members’ claims.” Id.
The Court further notes that the proposed settlement agreement contemplates a
Case Contribution Award to Plaintiff. (See Settlement Agreement, ECF No. 88-1, § 1.10;
Mem., ECF No. 87, at 20.) Specifically, the Settlement Agreement provides that
“Plaintiff, through Class Counsel, may seek an amount not exceeding $10,000.00
payable from the Gross Settlement Amount,” and that “[a]ny such Case Contribution
Award shall be subject to the approval of the Court.” (Settlement Agreement, ECF No.
88-1, § 1.10.) “Incentive awards are not uncommon in class action cases and are within
the discretion of the court.” Torres v. Toback, Bernstein & Reiss LLP, No. 11-CV-1368
(NGG) (VVP), 2014 WL 1330957, at *3 (E.D.N.Y. Mar. 31, 2014) (quotation marks
omitted). At this juncture, given the size of the settlement fund, the Court finds it
unlikely that a requested award of up to $10,000 total will preclude final settlement
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approval, assuming that Plaintiff demonstrates “special circumstances” for such an
award.8 Id. (quotation marks omitted).
c. 	Stage of Proceedings and Amount of Discovery Completed (Grinnell
Factor 3)9
“This [Grinnell] factor requires the Court to consider whether the parties have
adequate information about their claims.” Charron v. Pinnacle Grp. N.Y. LLC, 874 F.
Supp. 2d 179, 198 (S.D.N.Y. 2012). “To approve a proposed settlement,” however, “the
Court need not find that the parties have engaged in extensive discovery.” In re Austrian
& German Bank Holocaust Litig., 80 F. Supp. 2d 164, 176 (S.D.N.Y. 2000). The Court need
only ensure that the parties have sufficiently investigated the facts such that the
settlement is fair and reasonable. See id.
Here, the parties have engaged in dispositive motion practice, as well as
discovery, which involved the production of documents and information. (Mem., ECF
No. 87, at 3.) Additionally, the parties exchanged detailed mediation statements and
exhibits in advance of mediation. (Id.) Plaintiff represents that the parties’ “thorough
investigation” has “afforded them extensive knowledge and information about the
8 Special circumstances include “the personal risk (if any) incurred by the plaintiff-
applicant in becoming and continuing as a litigant, the time and effort expended by that
plaintiff in assisting in the prosecution of the litigation or in bringing to bear added value (e.g.,
factual expertise),” as well as “any other burdens sustained by that plaintiff in lending himself
or herself to the prosecution of the claim, and of course, the ultimate recovery.” Torres v. Toback,
Bernstein & Reiss LLP, No. 11-CV-1368 (NGG) (VVP), 2014 WL 1330957, at *3 (E.D.N.Y. Mar. 31,
2014) (quotation marks omitted). The reasonableness and amount of the incentive award may
also depend on the average amount ultimately paid to similarly situated individual claimants
out of the settlement fund. Cf. id. at *4 (reducing proposed incentive award based, in part, on
estimated compensation to be paid to other class members). Plaintiff is “encouraged to be
mindful of [these] concerns when” making any future request for an incentive award. Id.
9 The second Grinnell factor, “the class’s reaction to the settlement,” cannot be assessed at
this time. Rosenfeld, 2021 WL 508339, at *3; see id. at *4 n.2 (declining to assess this factor at the
preliminary approval stage because the factor “cannot be considered until after notice has been
provided to the class”).
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claims and defenses relevant to this action.” (Id. at 18.) Accordingly, the Court finds that
the parties were adequately informed about the claims prior to reaching a proposed
settlement.
d. 	Defendant’s Ability to Withstand a Greater Judgment (Grinnell Factor 7)
“Under the Grinnell analysis, the court also considers Defendant’s ability to
withstand a greater judgment than that provided for in the proposed settlement.”
Rosenfeld, 2021 WL 508339, at *7. Neither party has claimed that the proposed settlement
amount approaches the upper limit of Defendant’s ability to pay. (Fairness Hearing,
ECF No. 91, at 34:17–35:24.) As Plaintiff notes, however, a defendant’s “ability to
withstand a greater judgment, standing alone, does not suggest that the settlement is
unfair.” Pinnacle Grp., 874 F. Supp. 2d at 201 (quotation marks omitted). (See Mem., ECF
No. 87, at 21–22 (quoting In re GSE Bonds Antitrust Litig., 414 F. Supp. 3d 686, 696
(S.D.N.Y. 2019) (observing that while a defendant entity “is likely to be able to
withstand a more substantial judgment, [] against the weight of the remaining factors,
this fact alone does not undermine the reasonableness” of a settlement)).) Rather, “[t]his
factor must be weighed in conjunction” with the others. In re AOL Time Warner, Inc., No.
02-CV-5575, 2006 WL 903236 (SWK), at *12 (S.D.N.Y. Apr. 6, 2006).
Accordingly, although the proposed $2,750,000 settlement may be less than
Defendant’s theoretical capacity to pay, the Court finds that this factor is not likely to
preclude settlement approval given that the settlement amount represents a substantial
percentage of the estimated damages.
e. 	Range of Reasonableness of Settlement Fund (Grinnell Factors 8 and 9)
The Court next considers “the range of reasonableness of the settlement fund in
light of [both] the best possible recovery” and “the attendant risks of litigation.” Charron
v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013) (quotation marks omitted); see Payment Card,
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330 F.R.D. at 47–48 (noting that these “two Grinnell factors . . . are often combined for
the purposes of analysis”). To calculate the best possible recovery, courts “assume
complete victory on both liability and damages as to all class members on every claim
asserted against each defendant in the [a]ction.” Payment Card, 330 F.R.D. at 48
(quotation marks omitted). The risks of litigation include “the uncertainties of law and
fact in any particular case and the concomitant risks and costs necessarily inherent in
taking any litigation to completion.” Visa U.S.A., 396 F.3d at 119 (quotation marks
omitted).
Here, as discussed above, Plaintiff avers that the settlement amount “represents a
substantial percentage of the Plan’s recoverable losses.” (Mem., ECF No. 87, at 23;
Fairness Hearing, ECF No. 91, at 15:8–16.) That said, it is well established that although
“a proposed settlement may only amount to a fraction of the potential recovery,” that
does not “mean that the proposed settlement is grossly inadequate and should be
disapproved.” Grinnell, 495 F.2d at 455. “[T]here is no reason, at least in theory, why a
satisfactory settlement could not amount to a hundredth or even a thousandth part of a
single percent of the potential recovery.” Id. at 455 n.2. This is because the “best possible
recovery” may not be “a realistic” one. Cagan v. Anchor Sav. Bank FSB, No. 88-CV-3024
(CPS), 1990 WL 73423, at *13 (E.D.N.Y. May 22, 1990). Accordingly, it remains important
to evaluate the settlement amount “in light of the strengths and weaknesses of [the]
plaintiffs’ case.” Rodriguez v. CPI Aerostructures, Inc., No. 20-CV-982 (ENV) (CLP), 2023
WL 2184496, at *16 (E.D.N.Y. Feb. 16, 2023) (quotation marks omitted). Given the risks
of litigation described above, including the risk of an adverse outcome for Plaintiff in
light of the complexity of the claims and applicable law, the Court finds that the parties’
settlement amount, which is estimated at approximately 49 to 70% of Plaintiff’s “best
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possible outcome” after trial, falls well within a reasonable range. (Fairness Hearing,
ECF No. 91, at 15:15.)
* 	* 	* 	* 	*
On balance, the Court concludes that an evaluation of both the procedural and
substantive factors set forth in Rule 23 and Grinnell indicates that the parties’ proposed
settlement is fair and reasonable.
II. Likelihood of Class Certification
A. Legal Standards
“In order to conclude that giving notice to the putative class is justified, the court
must also determine that it will likely be able to certify the class for purposes of
judgment on the proposal” under Rule 23(a) and (b). Rosenfeld, 2021 WL 508339, at *8. It
is the burden of the party seeking class certification to “affirmatively demonstrate”
compliance with these rules. In re Am. Int’l Grp., Inc. Secs. Litig., 689 F.3d 229, 237 (2d
Cir. 2012) (quotation marks omitted).
Rule 23(a) sets forth the familiar “four prerequisites for class certification”:
(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
Rosenfeld, 2021 WL 508339, at *8; see Fed. R. Civ. P. 23(a). “In addition to the explicit
requirements of Rule 23(a), the class must satisfy the implied requirement of
ascertainability.” Payment Card, 330 F.R.D. at 50 (citing In re Petrobras Secs., 862 F.3d 250,
266 (2d Cir. 2017)).
Rule 23(b) “lays out three alternative ‘types’ of class actions that may be
maintained.” Rosenfeld, 2021 WL 508339, at *9. Relevant here, Plaintiff seeks certification
under Rule 23(b)(1). (See Mem., ECF No. 87, at 11–14.) Plaintiff must therefore satisfy at
least one subsection of Rule 23(b)(1), which requires that Plaintiff demonstrate that the
prosecution of separate actions would create either (A) the risk of “inconsistent or
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varying adjudications with respect to individual class members,” or (B) the 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.” Fed. R. Civ. P. 23(b)(1)(A)–(B).
B. Analysis
1. 	Rule 23(a) Requirements
a. 	Numerosity
“The numerosity requirement mandates that the class be ‘so numerous that
joinder of all members is impracticable.’” In re Sadia, S.A. Secs. Litig., 269 F.R.D. 298, 304
(S.D.N.Y. 2010) (quoting Fed. R. Civ. P. 23(a)(1)). The “inquiry is not strictly
mathematical but must take into account the context of the particular case.” Penn. Pub.
Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014); see also id.
(listing factors to consider). As a general rule, when a class consists of 40 or more
members, numerosity is presumed. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473,
483 (2d Cir. 1995).
Here, Plaintiff represents that there are more than 50,000 proposed Class
Members who participated in or benefitted from the Plan over the course of the
proposed Class Period. (See Mem., ECF No. 87, at 6; Berin Decl., ECF No. 88, ¶ 4
(“[T]here were over 65,374 participants in the Plan as of January 1, 2023.”).) Defendant
does not dispute that the numerosity requirement is likely to be met. (Cf. Fairness
Hearing, ECF No. 91, at 36:8 (the Court observing that “[n]umerosity [is] clearly not a
concern here”).) The Second Circuit recognizes that numerosity may be found where
the proposed class is “obviously numerous.” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d
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Cir. 1997). Plaintiff has thus established a high likelihood that the numerosity
requirement will be satisfied at the time of final settlement approval.
b. 	Commonality
“Commonality requires a showing that common issues of fact or law affect all
class members.” In re Sadia, 269 F.R.D. at 304 (citing Fed. R. Civ. P. 23(a)(2)). It “requires
the plaintiff to demonstrate that the class members ‘have suffered the same injury,’” not
“merely that they have all suffered a violation of the same provision of law.” Dukes, 564
U.S. at 349–50 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). “In other
words, the relevant inquiry is whether a classwide proceeding is capable of
‘generat[ing] common answers apt to drive the resolution of the litigation.’” Jacob v.
Duane Reade, Inc., 602 F. App’x 3, 6 (2d Cir. 2015) (alteration and emphasis in original)
(quoting Dukes, 564 U.S. at 350 (internal quotation marks omitted)).
Given that this case centers on “legal and factual questions that inherently affect
all participants and beneficiaries in the Plan,” and courts commonly find that ERISA
breach of fiduciary duty claims satisfy commonality, the Court concludes that the
pleadings clearly allege that the class members have suffered the same injury. (Mem.,
ECF No. 87, at 7.) See, e.g., Cunningham v. Cornell Univ., No. 16-CV-6525 (PKC), 2019 WL
275827, at *5 (S.D.N.Y. Jan. 22, 2019) (“Because the fiduciary duties are owed to the
Plans, not to individual accounts, common questions of law and fact are central to the
case.”). Commonality is present.
c. 	Typicality
“[T]he typicality requirement[] is satisfied by a showing that ‘each class
member’s claim arises from the same course of events and each class member makes
similar legal arguments to prove the defendant’s liability.’” In re Deutsche Bank AG Secs.
Litig., 328 F.R.D. 71, 80 (S.D.N.Y. 2018) (quoting In re Flag Telecom Holdings, Ltd. Secs.
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Litig., 574 F.3d 29, 35 (2d Cir. 2009) (internal quotation marks omitted)). It “is usually
met” where “the same unlawful conduct was directed at or affected both the named
plaintiff and the class sought to be represented.” Robidoux v. Celani, 987 F.2d 931, 936–37
(2d Cir. 1993). In this case, each Class Member’s claim is typical, given that allegations
of breach of fiduciary duty affect each member and every member “is asserting the
Plan’s claim.” (Mem., ECF No. 87, at 9.) The Court finds that Plaintiff has demonstrated
the typicality requirement in this case.
d. 	Adequacy of Representation
To satisfy the adequacy requirement, “[p]laintiffs must meet two standards —
that ‘class counsel . . . be qualified, experienced[,] and generally able to conduct the
litigation,’ and that ‘the class members . . . not have interests that are antagonistic to one
another.’” Balestra v. ATBCOIN LLC, No. 17-CV-10001 (VSB), 2022 WL 950953, at
*4 (S.D.N.Y. Mar. 29, 2022) (quoting In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285,
291 (2d Cir. 1992)). Based on the Court’s determinations supra regarding the parallel
requirements under Rule 23(e)(2), the Court finds that the proposed class is adequately
represented by Plaintiff and Lead Counsel, and that adequacy of representation will
likely be found at the time of final settlement approval and judgment.
e. 	Ascertainability
“[A] class is ascertainable if it is defined using objective criteria that establish a
membership with definite boundaries.” In re Petrobras Secs., 862 F.3d at 257. Here, “the
Settlement Class is defined using the objective criterion of status as a participant or
beneficiary of the Plan during the proposed Class Period” and therefore is readily
ascertainable. (Mem., ECF No. 87, at 5.) Moreover, the full class can be ascertained from
the Plan’s records, as discussed above. (Id.) See, e.g., Douglin v. GreatBanc Tr. Co., 115 F.
Supp. 3d 404, 409 (S.D.N.Y. 2015) (finding class ascertainable); Beach v. JPMorgan Chase
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Bank, Nat'l Ass'n, No. 17-CV-563 (JMF), 2019 WL 2428631, at *8 (S.D.N.Y. June 11, 2019)
(finding class ascertainable because class members could be identified through the
plan’s records during the relevant period). Under these circumstances, the Court finds
that the class is ascertainable.
2. 	Rule 23(b)(1) Requirements
Plaintiff must also satisfy at least one subsection of Rule 23(b)(1) in addition to
the requirements of Rule 23(a). Namely, Plaintiff must show that the prosecution of
separate actions would create either (A) the 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. P.
23(b)(1)(A), or (B) the 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,” Fed. R. Civ. P. 23(b)(1)(B). See Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 614 (1997).
Courts in this Circuit have routinely found that “claims for breach of fiduciary
duty brought under ERISA . . . are well suited to Rule 23(b)(1).” Douglin, 115 F. Supp. 3d
at 412. Framed another way, “‘ERISA litigation of this nature presents a paradigmatic
example of a [Rule 23](b)(1) class.’” In re Polaroid ERISA Litig., 240 F.R.D. 65, 78
(S.D.N.Y. 2006) (quoting Kolar v. Rite Aid Corp., No. CIV.A 01–1229, 2003 WL 1257272, at
*3 (E.D. Pa. Mar. 11, 2003)).
Here, because the allegations involve claims of misconduct in the management of
the Plan as a whole, all participants and beneficiaries in the settlement class could be
impacted by the resolution of the claims. In these circumstances, disparate lawsuits by
separate individuals would necessarily create the risk of “inconsistent or varying
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adjudications.” Fed. R. Civ. P. 23(b)(1)(A). Relatedly, multiple actions, which would
each seek the same relief from Defendant on behalf of the Plan, would potentially harm
individual class members and could create “incompatible standards of conduct” for
Defendant. Id. Indeed, it has been observed that the risk of inconsistent adjudications
and incompatible standards contemplated by Rule 23(b)(1)(A) “speaks directly to
ERISA suits,” in light of an ERISA defendant’s “statutory obligation[ and] fiduciary
responsibility[] to treat the members of the class alike.” In re Citigroup Pension Plan
ERISA Litig., 241 F.R.D. 172, 179 (S.D.N.Y. 2006). Accordingly, the Court finds that
Plaintiff will almost certainly be able to show that Rule 23(b)(1)(A) is met here.
Rule 23(b)(1)(B) is also very likely to be satisfied here. The “structure of ERISA
favors the principles enumerated under Rule 23(b)(1)(B), since the statute creates a
‘shared’ set of rights among the plan participants by imposing duties on the fiduciaries
relative to the plan, and it even structures relief in terms of the plan and its accounts,
rather than directly for the individual participants.” Douglin, 115 F. Supp. 3d at 412
(citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999)). Rule 23(b)(1)(B) is also
applicable in the context of ERISA because individual actions would create the risk of
adjudicating the interests of non-parties. After all, “‘a breach of fiduciary duty claim
brought by one member of a retirement plan necessarily affects the rights of the rest of
the plan members to assert that claim, as the plan member seeks recovery on behalf of
the plan as an entity.’” Kindle v. Dejana, 315 F.R.D. 7, 12 (E.D.N.Y. 2016) (quoting In re
AOL Time Warner ERISA Litig., No. 02-CV-8853 (SWK), 2006 WL 2789862, at *4 (S.D.N.Y.
Sept. 27, 2006)); see also Fed. R. Civ. P. 23(b)(1)(B) advisory committee’s note to 1966
amendment (stating that certification under 23(b)(1)(B) is appropriate in cases charging
breach of trust by a fiduciary affecting a large class of beneficiaries).
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For these reasons, the Court concludes that certification is highly likely to be
found appropriate under Rule 23(b)(1).
* 	* 	* 	* 	*
The Court finds that Plaintiff has demonstrated a very good likelihood of class
certification. Having concluded that Plaintiff has also demonstrated a likelihood of final
settlement approval, the Court respectfully recommends granting preliminary
settlement approval and finding that notice to “all class members who would be bound
by the proposal” is justified. Fed. R. Civ. P. 23(e)(1)(B).
III. Notice
Rule 23 also establishes notice requirements. Rule 23(c) describes the notice
requirements for when a court certifies a class, while Rule 23(e) describes the notice
requirements to class members when a court is approving a settlement, voluntary
dismissal, or compromise. See Fed. R. Civ. P. 23(c), (e). Here, because Plaintiff seeks
certification of the settlement class as well as approval of the proposed settlement, “the
elements of Rule 23(c) notice (for class certification) are combined with the elements of
Rule 23(e) notice (for settlement or dismissal).” In re Glob. Crossing Sec. & ERISA Litig.,
225 F.R.D. 436, 448 (S.D.N.Y. 2004). For this inquiry, courts generally focus on Rule
23(c)’s requirements as they are more specific than Rule 23(e)’s guidelines. See, e.g., id.
For mandatory class action cases, including ERISA actions like this one, in which there
is no opportunity for class members to opt out of the class, Rule 23 mandates
“appropriate notice to the class” as the “court may direct.” Fed. R. Civ. P. 23(c)(2)(A).
Notably, due process requires “‘notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.’” Glob. Crossing, 225 F.R.D. at 448
(quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)); see also Harry
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M. v. Penn. Dep't of Pub. Welfare, No. 1:10-cv-922 (YK), 2013 WL 1386286, at *2 (M.D. Pa.
Apr. 4, 2013) (“Adequate notice is essential to securing due process of law for the class
members, whom are bound by the judgment entered in the action.”) (citing Matsushita
Elec. Indus. Co. v. Epstein, 516 U.S. 367, 378–79 (1996)).
A. The Notice Plan
Plaintiff proposes a notice plan designed to reach as many class members as
possible. The notice will be first sent via email and/or first-class mail to the last known
address of each member, in advance of the final fairness hearing. (Mem., ECF No. 87, at
23–24.) For any notices returned as undeliverable, the Plan recordkeeper will use the
information it has available to update those addresses. (Id. at 24.) In addition, the notice,
settlement agreement and exhibits, and other litigation documents, including a list of
frequently asked questions, will be posted on a website established by the settlement
administrator, Strategic Claims Services.10 (Id.)
B. Notice Content
Plaintiff has submitted a notice for the Court’s review. (See Notice, Ex. A to
Settlement Agreement, ECF No. 88-1, at ECF pp. 32–39; Revised Notice, ECF No. 92-1.)
The notice sets forth an extensive description of the action and claims process, and
includes information regarding how individuals may raise objections. As noted by
Plaintiff, the proposed notice “plainly describes: (i) the terms and operation of the
Settlement; (ii) the nature and extent of the released claims; (iii) the maximum
10 During the Fairness Hearing, Lead Counsel detailed the qualifications of the
settlement administrator, Strategic Claims Services. Lead Counsel attested that they have
worked with Strategic Claims Services in “the majority [of] these ERISA cases that have settled”
and represented that Strategic Claims Services is capable of adequately managing the
administration of the Plan. (Fairness Hearing, ECF No. 91, at 22:13–23:8.)
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attorneys’ fees, expenses, and case contribution awards that may be sought; (iv) the
procedure and timing for objecting to the settlement; and (v) subject to the Court’s
schedule, the date and location of the Fairness Hearing.” (Mem., ECF No. 87, at 24.) The
proposed notice also provides contact information for class counsel and explains that
the settlement administrator will establish and monitor a phone number for any
inquiries. (Id. at 24.) Having carefully reviewed the parties’ filings, the Court finds that
the proposed notice contains the information required by Rule 23 and due process. Fed.
R. Civ. P. 23(c)(2)(A). (See Revised Notice, ECF No. 92-1.)
Plaintiff has also submitted the following proposed schedule of events:
Event 	Deadline for Compliance
Distribute Settlement Notice 	Within 30 calendar days of entry of
Preliminary Approval (Proposed Order,
Ex. C to Settlement Agreement, ECF No.
88-1, ¶ 8(a))
Settlement Administrator to establish
website and toll-free phone number
Within 30 calendar days of entry of
Preliminary Approval (Id. ¶ 8(b))
Filing of Motion for Final Approval and
fee request
45 calendar days before the Fairness
Hearing (Id. ¶¶ 10, 11)
Filing of Independent Fiduciary Report 	Not later than 45 calendar days before the
Fairness Hearing (Settlement Agreement,
ECF No. 88-1, ¶ 2.1.2)
Filing of objections 	At least 30 calendar days before the
Fairness Hearing (Proposed Order, Ex. C
to Settlement Agreement, ECF No. 88-1,
¶ 12)
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Event 	Deadline for Compliance
Supplemental CAFA Notice11 	Filed and served on the appropriate
parties thirty (30) days before the Fairness
Hearing, if feasible, or as soon as
practicable thereafter
Filing of responses to objections or
additional papers in support of
settlement
Not later than 7 calendar days before the
Fairness Hearing (Id. ¶¶ 12, 13)
Fairness Hearing 	No sooner than 140 calendar days after
filing of the Preliminary Approval Order
(Id. ¶ 6)
(See Mem., ECF No. 87, at 4; Pl.’s Letter, ECF No. 92, at 1.)
The Court finds that Plaintiff’s proposed schedule and manner of notice comply
with Rule 23 and adequately afford due process. Notice should be ordered as proposed
by the parties.
IV. Appointment of Class Counsel
“When a district court certifies a class, it must appoint class counsel.” Payment
Card, 330 F.R.D. at 58. Under Rule 23(g)(1)(A), the Court “must consider: (i) the work
counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the
11 Plaintiff also provided a CAFA Notice along with their proposed settlement materials.
(See CAFA Notice, Ex. E to Settlement Agreement, ECF No. 88-1, at ECF pp. 69–72.) As the
Court noted during the Fairness Hearing, the CAFA Notice did not comply with the
requirement under 28 U.S.C. § 1715(b)(7) to provide, “if feasible, the names of class members
who reside in each State and the estimated proportionate share of the claims of such members
to the entire settlement to that State’s appropriate State official” or, if that is not feasible, “a
reasonable estimate of the number of class members residing in each State and the estimated
proportionate share of the claims of such members to the entire settlement[.]” 28 U.S.C.
§ 1715(b)(7). (See Fairness Hearing, ECF No. 91, at 43:5–47:25.) Accordingly, the parties agreed to
file a supplemental CAFA Notice that would include the estimated proportionate share of the
claims for each state, to comply with 28 U.S.C. § 1715(b)(7), before the Final Fairness Hearing.
(See Fairness Hearing, ECF No. 91, at 50:3–51:3; see also Pl.’s Letter, ECF No. 92, at 1.)
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types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P.
23(g)(1)(A). The Court may also “consider any other matter pertinent to counsel’s ability
to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
“The adequacy of counsel requirement is [ordinarily] satisfied where the class attorneys
are experienced in the field or have demonstrated professional competence in other
ways, such as by the quality of the briefs and the arguments during the early stages of
the case.” Mendez v. MCSS Rest. Corp., No. 16-CV-2746 (NGG) (RLM), 2019 WL 2504613,
at *13 (E.D.N.Y. June 17, 2019) (quotation marks omitted).
As discussed above, the filings in this case show that Lead Counsel has engaged
in significant investigation of the underlying claims, that they are experienced in ERISA
class action litigation and are knowledgeable in the applicable area of law, and that they
have the resources necessary to represent the class. The Court therefore respectfully
recommends appointment of Lead Counsel as class counsel for the purposes of
settlement.
CONCLUSION
For the foregoing reasons, the Court respectfully recommends (1) granting
Plaintiff’s motion for preliminary settlement approval (Mot., ECF No. 86); (2) entering
an order preliminarily approving the class action settlement consistent with the parties’
proposed order12 (see Proposed Order, Ex. C to Settlement Agreement, ECF No. 88-1, at
12 The Court notes that the order may require minor revisions to reflect the correct dates,
refer to the updated, revised proposed notice, and similar. The Court further notes that
paragraph cross-references may need to be updated, including the reference in paragraph 14,
which should refer to paragraph 12, not 11. (See Proposed Order, Ex. C to Settlement
Agreement, ECF No. 88-1, at ECF pp. 56–58.)
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ECF pp. 47–59); (3) directing the parties to issue notice as proposed, consistent with the
revised submissions (see Revised Notice, ECF No. 92-1); (4) appointing Plaintiff Kaila
Gonzalez as class representative for the Settlement Class and Miller Shah LLP as class
counsel for the purposes of settlement; and (5) scheduling a fairness hearing13 to
consider final approval of the settlement, to be held no sooner than 140 calendar days
after the filing of the Preliminary Approval Order (see Mot., ECF No. 86, at 1).
* 	* 	* 	* 	*
This report and recommendation will be filed electronically. Objections to this
report and recommendation must be filed, with a courtesy copy sent to the Honorable
Rachel P. Kovner at 225 Cadman Plaza East, Brooklyn, New York 11201, within
fourteen (14) days of filing. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed.
R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections
within the specified time waives the right to appeal both before the district court and
appellate courts. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008)
(explaining that “failure to object timely to a . . . report [and recommendation] operates
as a waiver of any further judicial review of the magistrate[ judge’s] decision”
(quotation marks omitted)).
SO ORDERED.
Dated: Brooklyn, New York
December 22, 2025
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
13 Alternatively, the undersigned Magistrate Judge respectfully recommends referring
the parties to this Court for scheduling of the final approval hearing.
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