Case 2:20-cv-02644-MAK Document 56 Filed 03/08/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`: CIVIL ACTION
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`: NO. 20-2644
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`:
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`MARY K. BOLEY, et al.
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`v.
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`UNIVERSAL HEALTH SERVICES,
`INC., et al.
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`MEMORANDUM
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`KEARNEY, J.
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` March 8, 2021
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`Three participants in their former employer’s defined contribution plan are suing the
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`plan’s fiduciaries for allegedly breaching fiduciary duties owed to them under ERISA. The three
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`plan participants move to certify and represent a class of over 60,000 active participants. The
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`plan participants invested in different funds but focus their allegations on the fiduciaries
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`allegedly retaining more expensive and underperforming funds despite the availability of lower
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`cost funds, failing to monitor excessive record keeping and administrative fees and costs relative
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`to similar plans, offering an excessively expensive menu of investment options, and failing to
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`monitor their appointees. We denied the fiduciaries’ partial motion to dismiss four months ago.
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`The fiduciaries now oppose class certification arguing individualized defenses under
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`ERISA section 404(c), potentially differing limitations periods, and the three participants’
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`investments in different funds render the participants atypical and the defenses create issues
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`unable to be resolved on a class-wide basis. Following discovery, we find the three participants
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`may proceed in representing a class of current and former plan participants. We agree with the
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`persuasive reasoning from courts around the country rejecting the fiduciaries’ arguments at this
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`stage. We grant the three participants’ motion for class certification.
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`I.
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`Background
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`Universal Health Services, Inc. sponsors the Universal Health Services, Inc. Retirement
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`Savings Plan (“Plan”), a defined contribution plan under which its qualified employees can
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`invest a portion of their paycheck in one or more of thirty available investment options.
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`Universal Health Services matches a portion of those contributions.1 Universal Health Services
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`and its Investment Committee appointed by the Board of Directors serve as the Plan’s fiduciaries
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`and administrators.2 The fiduciaries must administer the Plan under Congress’ mandates in the
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`Employee Retirement Income Security Act of 1974 (“ERISA”).3
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`The Plan had 60,018 active participants in 2018 with 41,872 holding active account
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`balances.4 The Plan had net assets totaling over $1.9 billion.5 From June 5, 2014 through at least
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`last month, the Plan offered participants a menu of thirty-seven investment options including
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`some offered for a limited time.6
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`Former Universal Health Services employees Mary Boley, Kandie Sutter, and Phyllis
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`Johnson (“Participants”), on behalf of the Plan and a purported class of similarly situated Plan
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`participants and beneficiaries, sue Universal Health and its Investment Committee (the
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`“Fiduciaries”) under ERISA. The Participants allege the Fiduciaries breached their fiduciary
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`duties, including by: (1) retaining a suite of thirteen expensive and underperforming actively
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`managed target date funds despite the availability of lower cost, passively managed index funds;
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`(2) failing to monitor the excessive recordkeeping fees and administrative costs charged to Plan
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`participants relative to other similarly large plans; (3) offering an excessively expensive menu of
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`investment options; and (4) failing to monitor the Committee’s appointees.7 The Participants are
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`either current or former Plan participants: Ms. Boley invests in the Fidelity Freedom K 2050
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`target date fund; Ms. Sutter invests in the Fidelity Freedom K 2025 target date fund, the Fidelity
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`Contrafund, the Fidelity Managed Income Portfolio II, the PIMCO Total Return Fund, and the
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`MetWest Total Return Bond Fund; and Ms. Johnson invested in the Fidelity Freedom K 2045
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`target date fund.8
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`The Fiduciaries, largely relying on the Supreme Court’s recent decision in Thole v. U.S.
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`Bank, N.A.,9 moved to partially dismiss the Participants’ claims several months ago arguing they
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`lacked constitutional standing to pursue claims relating to alleged losses in discrete investments
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`they never selected.10 We denied the Fiduciaries’ motion after finding Thole to be of limited
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`relevance in the context of defined contribution plans.11 We found the Participants plead
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`individualized injury – and therefore standing – with respect to each of their claims.12 The
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`Participants invested in one of the allegedly imprudent investments in target date funds13 We
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`further found their remaining claims involved the Fiduciaries’ decision-making processes
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`impacting all Plan participants.14
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`II.
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`Analysis
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`The Participants move under Federal Rule of Civil Procedure 23(a) and 23(b)(1) to
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`certify a class of “[a]ll participants and beneficiaries in [the Plan] at any time on or after June 5,
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`2014 to the present (the “Class Period”), including any beneficiary of a deceased person who was
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`a participant in the Plan at any time during the Class Period.”15 The Participants must satisfy the
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`four requirements of Rule 23(a) and the requirements of either Rule 23(b)(1), (b)(2), or (b)(3).
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`We may grant class certification if, “after a rigorous analysis,” we are satisfied the Participants
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`established each of the Rule’s requirements by a preponderance of the evidence.16
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`A.
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`The Class satisfies the Rule 23(a) requirements.
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`Under Rule 23(a), a class may be certified only if “(1) the class is so numerous that
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`joinder of all members is impracticable; (2) there are questions of law or fact common to the
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`class; (3) the claims or defenses of the representative parties are typical of the claims or defenses
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`of the class; and (4) the representative parties will fairly and adequately protect the interests of
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`the class.”17 The Participants argue they meet Rule 23(a) because the: (1) Plan consisted of over
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`60,000 participants during the class period; (2) same overarching questions of law and fact apply
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`to all Plan participants’ claims; (3) Participants suffered the same or similar injuries the Plan
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`participants did; and (4) class counsel will adequately represent the interests of all Plan
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`participants.18 The Fiduciaries do not dispute the putative Class satisfies the numerosity and
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`adequacy requirements but argue the Participants’ claims are neither common nor typical of the
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`claims of the putative Class for three reasons: (1) the claims of the Participants and putative
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`Class are subject to individualized defenses available to fiduciaries under section 404(c) of
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`ERISA; (2) individualized factual determinations will be required to determine whether the
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`claims are untimely under ERISA’s statute of limitations; and (3) the Participants only invested
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`in a few of the investment options available to the Plan. We conclude the putative Class satisfies
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`the requirements of Rule 23(a).
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`a.
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`The Class satisfies the numerosity requirement.
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`Rule 23(a)(1) requires a proposed Class be “so numerous that joinder of all members is
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`impracticable.”19 While no threshold number is required, “a plaintiff in this circuit can generally
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`satisfy Rule 23(a)(1)’s numerosity requirement by establishing ‘that the potential number of
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`plaintiffs exceeds 40.’”20 The Plan’s Form 5500 demonstrates it had 60,108 active participants as
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`of 2018; 41,872 of those participants had active account balances.21 The Fiduciaries do not
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`dispute the putative Class satisfies the numerosity requirement. We agree it satisfies the
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`requirement.
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`b.
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`The Class satisfies the commonality requirement.
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`Rule 23(a)(2) requires a plaintiff demonstrate “there are questions of law or fact common
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`to the class.”22 This requirement is satisfied if the proposed class members “share at least one
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`question of fact or law with the grievances of the prospective class.”23 “A complaint’s mere
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`recital of questions that happen to be shared by class members is ‘not sufficient to obtain class
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`certification.’”24 Commonality instead requires the plaintiff to demonstrate the class members
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`“have suffered the same injury.”25
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`The Participants satisfy the commonality requirement. They allege the Fiduciaries
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`breached their duties to the Plan by, among other things, allowing excessive recordkeeping and
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`administrative costs to be charged to Plan participants, retaining high-cost actively managed
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`funds as investments despite the availability of low-cost index funds, and failing to have a
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`prudent investment evaluation process.26 All Plan participants chose from the same menu of
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`investment options and paid the same administrative and recordkeeping fees. Many common
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`questions of law and fact will drive the resolution of the litigation. The alleged Plan-wide
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`conduct further impacted all Plan participants in a similar way, for example, through the payment
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`of excessive fees.27
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`c.
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`The Class satisfies the typicality requirement.
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`Rule 23(a)(3) requires a plaintiff demonstrate “the claims or defenses of the
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`representative parties are typical of the claims or defenses of the class.”28 The typicality
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`requirement “ensur[es] that the class representatives are sufficiently similar to the rest of the
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`class . . . so that certifying those individuals to represent the class will be fair to the rest of the
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`proposed class.”29 To determine whether the requirement has been met, we focus on “the
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`similarity in the legal theory and legal claims; the similarity of the individual circumstances on
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`which those theories or claims are based; and the extent to which the proposed representative
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`may face significant or atypical defenses to her claims.”30
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`The similarity between the legal theory and legal claims asserted by the Participants and
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`the proposed class “does not have to be perfect.”31 The claims must instead be “typical, in
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`common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned
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`with those of the class.”32 There likewise need not be complete overlap in the individual factual
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`circumstances underlying the legal claims but “just enough…so that maintaining a class action is
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`reasonably economical and the interests of the other class members will be fairly and adequately
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`protected in their absence.”33 Our Court of Appeals explained “even relatively pronounced
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`factual differences will generally not preclude a finding of typicality where there is a strong
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`similarity of legal theories.”34
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`In Schering Plough, our Court of Appeals explained “there is no doubt” a plan participant
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`bringing ERISA breach of fiduciary duty claims on behalf of a plan met this threshold of legal
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`and factual similarity.35 Not only did the plan participant have legal claims identical to those of
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`the proposed class, but the “basic factual circumstances supporting those claims – namely,
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`defendants’ conduct, [plaintiff’s] participation in the [p]lan, and her investment in [the
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`challenged stock] – are shared by the rest of the proposed class.”36 Judge Bartle similarly found
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`the participant met the typicality requirement in an ERISA breach of fiduciary duty action
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`despite the fact the sole plaintiff signed a release barring her recovery for part of the proposed
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`class period.37 Judge Bartle explained “[w]hile [plaintiff’s] specific claim may occur over a
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`shorter or different time period than other class members’ claims, there is a ‘strong similarity of
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`legal theories’ based on a single ‘course of conduct.’”38 Consistent with this reasoning, courts in
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`other circuits have found the typicality requirement satisfied in analogous ERISA cases
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`challenging fiduciaries’ conduct and decision-making processes.39
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`The Fiduciaries argue the Participants have not shown the requisite commonality and
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`typicality for three reasons. They initially argue, relying heavily on the Court of Appeals for the
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`Fifth Circuit’s decision in Langbecker v. Electric Data Systems Corporation,40 the “potential
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`applicability of the individualized defense under Section 404(c) renders class certification
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`inappropriate.”41 Section 404(c) provides an affirmative defense to fiduciaries under certain
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`circumstances:
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`(1)(A) In the case of a pension plan which provides for individual accounts and permits a
`participant or beneficiary to exercise control over the assets in his account, if a participant
`or beneficiary exercises control over the assets in his account (as determined under
`regulations of the Secretary)—
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`(ii) no person who is otherwise a fiduciary shall be liable under this part for any loss, or
`by reason of any breach, which results from such participant’s or beneficiary’s exercise
`of control,…”42
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`The Fiduciaries overstate the significance of Langbecker. The Court of Appeals for the
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`Fifth Circuit vacated and remanded the district court’s grant of class certification in an ERISA
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`breach of fiduciary duty case brought on behalf of a plan because the district court, “[f]astening
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`on the directive suit characterization” of the action, categorically found the section 404(c)
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`defense inapplicable to a suit brought on behalf of a plan as a whole.43 The court of appeals in
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`Langbecker did not hold, as the Fiduciaries contend, the potential applicability of section 404(c)
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`automatically defeats commonality or typicality, but instead found it improper that the lower
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`court “incorrectly eliminated the Section 404(c) defense from its evaluation of the suitability…of
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`class treatment” altogether.44
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`Since Langbecker, courts in our Circuit have consistently found the potential applicability
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`of the section 404(c) defense does not defeat class certification because, if applicable, the
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`defense would defeat claims on a class-wide basis.45 In Stanford, for example, Judge Yohn
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`rejected the argument section 404(c) precluded class certification in an ERISA case brought on
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`behalf of a plan challenging specific transactions made by the fiduciaries.46 Judge Yohn first
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`found this defense would not be unique to the class representative because “[i]t seems clear that
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`the 404(c) defense, if applicable, would presumably work to defeat the claims of the class as a
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`whole.”47 Judge Yohn further found an analysis into 404(c) would not result in individualized
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`inquiries explaining, “because the Section 404(c) defense, appears to apply, if at all, on a class-
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`wide basis, adjudication of a Section 404(c) defense in a class action setting seems quite
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`appropriate.”48 In Zhu v. Schering Plough Corporation, Judge Hayden similarly rejected the
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`theory a putative class could not be certified under Rule 23(b) due to the section 404(c) defense
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`because, if the fiduciaries raised the defense, it would not be unique to the named plaintiffs and
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`instead would apply to all class members, “given that it is clearly [d]efendants’ position in this
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`case that they bear no responsibility for the [p]lan losses at issue here in light of the control
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`[p]lan participants exercised over the investment of their accounts in [the challenged ] stock.”49
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`Other district courts have likewise concluded the potential applicability of the section
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`404(c) defense does not defeat commonality or typicality where the claims “focus on defendants’
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`actions towards the [p]lan, and whether those actions were prudent,” rather than on “individual
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`investment patterns.”50 In Brieger v. Tellabs, Inc., Judge Kennelly found the section 404(c)
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`defense did not render plan participants’ claims regarding fiduciaries’ allegedly imprudent
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`management of a plan’s investments atypical because the defense would not be unique to the
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`claims but would apply to the plan as a whole.51 Judge Kennelly also discussed the limited
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`significance of Langbecker, explaining it only suggested the availability of section 404(c)
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`defenses “should have some bearing on class certification” and did not regard the possibility of
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`section 404(c) defenses “as [a] barrier[] to typicality in suits brought under Section 502(a)(2) of
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`ERISA.”52 Judge Lungstrum in In re YRC Worldwide Inc. ERISA Litigation similarly “joined
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`what appears to be every other court that has addressed this issue” in concluding the section
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`404(c) defense does not defeat typicality or class certification generally for breach of fiduciary
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`duty claims alleging plan fiduciaries acted imprudently in managing the plan’s investments.53
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`Consistent with several district court decisions after Langbecker, we also conclude the
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`potential applicability of the section 404(c) defense does not defeat commonality or typicality.
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`The claims here focus on Fiduciaries’ plan-wide conduct rather than on the investment decisions
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`of individual plan participants. The evidence required to establish the applicability of the section
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`404(c) defense likewise hinges on the Plan rather than on individual Plan participants. The
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`defense would not be unique to the Participants or other Class members and instead would apply
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`to defeat the claims on a class-wide basis.
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`The Fiduciaries next argue the individualized inquiry into whether the claims of the
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`Participants or those of the putative Class are time-barred precludes class certification.54 A
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`plaintiff cannot bring suit under ERISA alleging breach of fiduciary duties after the earlier of
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`(1) six years after the last action constituting a breach or violation or (2) three years after the
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`earliest date on which the plaintiff had “actual knowledge” of the breach or violation.55 The
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`Fiduciaries contend some of the Participants’ deposition testimony suggests receipt of Plan-
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`related communications before filing suit. The Fiduciaries then argue claims of some
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`Participants or putative Class members could be barred by the statute of limitations.
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`Courts have rejected this theory under similar circumstances, finding statute of
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`limitations issues to be common to putative class members and therefore capable of class-wide
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`resolution. In Henderson v. Emory University, for example, Judge Pannell, Jr. rejected the
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`fiduciaries’ theory individualized statute of limitations inquiries defeated commonality based on
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`proof some named plaintiffs received disclosures with plan-related information over three years
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`before they filed suit.56 Judge Pannell, Jr. found instead the statute of limitations presented
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`common inquiries, for example, “whether the disclosures that the [fiduciaries] point to – which
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`appear to be materials made available to the [p]lans’ participants generally – did, in fact, provide
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`a given plaintiff or class member with ‘actual knowledge’ of the claims.”57 Judge Pannell further
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`explained even assuming the statute of limitations raised some individualized inquiries, it “does
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`not negate the many other common issues” present in cases alleging fiduciaries breached their
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`duties on a plan-wide basis.58 Judge Eagles in Clark v. Duke University similarly found statute of
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`limitations inquiries could be common to putative class members based on plan-wide
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`communications providing actual knowledge of alleged breaches of fiduciary duties.59 Even if
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`individual statute of limitations questions existed, they could only limit damages rather than
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`preclude them entirely and could not outweigh the “abundance of common legal and factual
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`questions” presented by the claims.60
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`Since Henderson and Clark, however, the Supreme Court in Intel Corporation
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`Investment Policy Committee v. Sulyma clarified the “actual knowledge” needed to trigger the
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`statute of limitations under Section 1113 of ERISA.61 In Sulyma, the Court held actual
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`knowledge is not the same as constructive knowledge and therefore “requires more than
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`evidence of disclosure alone.”62 The Court explained disclosure of information to the plaintiff “is
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`no doubt relevant in judging whether he gained knowledge of that information,” but to meet the
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`actual knowledge standard, “the plaintiff must in fact have become aware of that information.”63
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`We are not yet aware of any decisions applying Sulyma in the class certification context.
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`We conclude the Fiduciaries cannot defeat class certification based solely on their
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`speculative theory individualized statute of limitations issues may arise as to the Participants or
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`putative Class members.64 The Fiduciaries establish only the Participants received or had access
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`to Plan-wide communications.65 This is insufficient under Sulyma to demonstrate statute of
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`limitations issues exist or they will become a major focus of the litigation. Even if such issues do
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`arise, they likely cannot defeat the many common legal and factual issues described above
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`underlying the Participants’ claims based on plan-wide conduct.
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`The Fiduciaries finally argue the Participants’ claims are atypical of the claims of
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`putative Class members because the Participants only invested in a few of the many investment
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`options available to Plan participants.66 The Fiduciaries’ argument misses the mark. The focus of
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`the Participants’ claims is on the Fiduciaries’ conduct as to all Plan participants rather than about
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`the individual investment choices made by Participants and putative Class members. As we
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`explained in our decision denying the Fiduciaries’ motion for partial dismissal, the Participants’
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`claims primarily involve allegedly imprudent decision-making processes as to the Plan as a
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`whole. The Participants’ claims, challenging uniform conduct across the Plan, are typical of the
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`claims of putative Class members. The varying choices of the Participants and putative Class
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`members may result in varying levels of recovery, but that inquiry is beyond the scope of class
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`certification.67
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`The putative Class meets the commonality and typicality requirements of Rule 23(a).
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`d.
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`Class counsel and the Participants will adequately represent the Class
`members.
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`Rule 23(a)(4) requires class representatives “will fairly and adequately protect the
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`interests of the class.”68 “Class members are adequately represented if class counsel is qualified
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`to represent the class and the interests of the class representatives are not in conflict with the
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`interests of the class members.”69 The Fiduciaries do not dispute the qualifications of Class
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`counsel. Mark Gyandoh, James Miller, and their respective law firms Capozzi Adler, P.C. and
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`Shepherd Finkelman Miller & Shah, LLP have competently represented the Participants in this
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`case thus far by actively engaging in motions practice and discovery. They further have
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`extensive experience in litigating ERISA class actions in this Circuit and throughout the
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`country.70 As discussed in our analysis of typicality, the Participants’ interests and incentives
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`align with those of the proposed Class members. The Participants satisfy this requirement.
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`B.
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`The Class satisfies Rule 23(b)(1).
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`Having determined the proposed Class meets all the Rule 23(a) requirements, we next
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`determine whether the proposed Class falls into one of the categories outlined in Rule 23(b). The
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`Participants seek class certification under Rule 23(b)(1), which allows us to certify a class if
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`“prosecuting separate actions by or against individual class members would create a risk of:
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`(A) inconsistent or varying adjudications with respect to individual class members that
`would establish incompatible standards of conduct for the party opposing the class;
`or
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`(B) 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.”71
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`Both types of class actions under Rule 23(b)(1) are “designed to prevent prejudice to the parties
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`arising from multiple potential suits involving the same subject matter.”72 Our Court of Appeals
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`explained breach of fiduciary duty claims brought under section 502(a)(2), like those asserted
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`here, are “paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1)
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`class.”73
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`The Participants argue certification under Rule 23(b)(1) is proper because the focus of the
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`litigation is on the Fiduciaries’ uniform treatment of Plan participants and allowing separate
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`actions to proceed would create inconsistent standards for the Fiduciaries and would
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`substantially impair the interests of other class members.74 The Fiduciaries argue, relying on the
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`Supreme Court’s decision in Wal-Mart Stores v. Dukes,75 certification under Rule 23(b)(1) is
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`improper because the Participants and putative Class seek individual monetary relief.76 We
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`conclude Dukes does not apply to these facts and class certification is proper under Rule
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`23(b)(1).
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`The Fiduciaries overstate Dukes by arguing all classes seeking individualized monetary
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`claims can only be brought under Rule 23(b)(3). In Dukes, the Supreme Court held putative class
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`members’ claims for backpay in a Title VII case had been improperly certified under Rule
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`23(b)(2) – not Rule 23(b)(1) – because Rule 23(b)(2) “applies only when a single injunction or
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`declaratory judgment would provide relief to each member of the class” and it consequently
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`“does not authorize class certification when each class member would be entitled to an
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`individualized award of monetary relief.”77 The Court held certification under Rule 23(b)(3) to
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`be proper because “the procedural protections attending the [Rule 23](b)(3) class….are missing
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`from [Rule 23](b)(2).”78
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`Even assuming the Court’s holding in Dukes extended to class certification under Rule
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`23(b)(1), we find it inapplicable because the Participants and putative Class members here do not
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`seek individualized monetary relief. Courts since Dukes have declined to extend its holding to
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`ERISA claims where, as here, recovery is being sought on behalf of a plan rather than at the
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`individual level. In Henderson, for example, Judge Pannell found class certification under Rule
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`23(b)(1) of ERISA breach of fiduciary duty claims because regardless of whether the logic of
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`Dukes extended to Rule 23(b)(1), “plaintiffs do not seek ‘individualized monetary damages,’ but
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`recovery for losses to the [p]lans as a whole.”79 In Jacobs v. Verizon Communications, Judge
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`Gardephe recently certified a Rule 23(b)(1) class in an analogous ERISA case brought on behalf
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`of a plan, and in doing so, expressly rejected defendants’ objection certification was improper
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`because the class members sought individualized damages.80 In the report and recommendation –
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`adopted by Judge Gardephe in its entirety – Magistrate Judge Lehrburger explained:
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`These arguments have been floated before in other similar cases and soundly
`rejected. The principal flaw in [d]efendants’ argument is a misapprehension of the
`nature of an ERISA class action case such as this one. Regardless whether
`damages and/or injunctive relief are sought, the named [p]laintiff brings suit in a
`derivative capacity seeking relief on behalf of the [p]lan….[T]he fact that
`damages awarded to the [p]lan may provide plaintiffs with an indirect benefit
`does not convert their derivative suit into an action for individual relief as
`[d]efendants seek to portray it.81
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`We agree with the reasoning in Henderson and Jacobs under analogous circumstances.
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`The Participants seek, in addition to injunctive and declaratory relief, compensatory damages for
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`losses to the Plan. If any damages are awarded, they would belong to the Plan in the first instance
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`rather than to Plan participants. The fact the Plan would subsequently distribute damages to Plan
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`participants does not convert the lawsuit into one where putative Class members are directly
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`seeking individualized monetary damages, as in Dukes.
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`Having determined we are not barred from certifying the Class under Rule 23(b)(1), we
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`now must consider whether the putative Class otherwise meets the requirements of the Rule.
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`1.
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`Certification is appropriate under Rule 23(b)(1)(A).
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`Our analysis under Rule 23(b)(1)(A) focuses on whether allowing separate actions would
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`create “inconsistent orders” or “unworkable standards” for the party opposing the class.82
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`Certification under Rule 23(b)(1)(A) is appropriate “in cases where the party is obliged by law to
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`treat the members of the class alike…or where the party must treat all alike as a matter of
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`practical necessity.”83 Courts have certified classes under Rule 23(b)(1)(A) in analogous cases
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`because “the nature of a defined contribution plan means a fiduciary must treat participants
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`uniformly” and allowing individual actions to proceed could subject the fiduciaries to differing
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`standards of duty.84 In Stanford, for example, Judge Yohn found certification appropriate under
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`Rule 23(b)(1)(A) for an ERISA breach of fiduciary duty action due to the potential for
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`inconsistent adjudications:
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`When raising a plan-wide claim, a plaintiff is purs[u]ing a claim on behalf of the
`entire plan, which necessarily includes discrete accounts within the plan.
`Accordingly, if a court entertaining an individual account claim were to reach a
`different conclusion from a court entertaining a plan-wide claim, the fiduciaries
`would be left with incompatible orders concerning the same account.85
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`The breach of fiduciary duty claims alleged here raise similar concerns. The Participants
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`– on behalf of the Plan – generally allege the Fiduciaries mismanaged the Plan’s investments,
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`failed to monitor the decision-making process regarding investments, and allowed participants to
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`be charged excessive fees. If we allowed separate actions to proceed, the Fiduciaries could be
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`subject to varying and incompatible standards of conduct and liability. Class certification is
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`appropriate under Rule 23(b)(1)(A).
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`2.
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`Certification is also appropriate under Rule 23(b)(1)(B).
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`The Advisory Committee Notes to Rule 23 confirm certification under Rule 23(b)(1)(B)
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`is typically appropriate in “an action which charges a breach of trust by an indenture trustee or
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`other fiduciary similarly affecting the members of a large class of security holders or other
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`beneficiaries, and which requires an accounting or like measures to restore the subject of the
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`trust.”86 In Schering Plough, our Court of Appeals explained the requirement of Rule
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`23(b)(1)(B) would “clearly” be met in ERISA breach of fiduciary duty claims brought on behalf
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`of a plan because the claims “are based on defendants’ conduct, not…on unique facts and
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`individual relationships” and “[plaintiff’s] proofs regarding defendants’ conduct will, as a
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`practical matter, significantly impact the claims of other [p]lan participants and of employees
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`who invested in the [challenged] [f]und.”87 Judges in this District and elsewhere have
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`accordingly certified classes under Rule 23(b)(1)(B) in analogous ERISA breach of fiduciary
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`duty actions brought on behalf of plans.88
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`Our Court of Appeals’ reasoning in Schering Plough applies with equal force here. The
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`Participants’ claims focus on the Fiduciaries’ conduct in administering the Plan – which is
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`identical for all Plan participants – rather than the unique circumstances