Huang v. TriNet HR III, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHIQIONG HUANG, et al.,

Plaintiffs,

Case No. 8:20-cv-2293-VMC-TGW

v.

TRINET HR III, INC., et al.,

Defendants.

_____________________________/

ORDER

This matter comes before the Court pursuant to

Plaintiffs’ Motion for Class Certification (Doc. # 66), filed

on May 23, 2022. Defendants responded on June 13, 2022. (Doc.

# 68). Plaintiffs replied on July 6, 2022. (Doc. # 75). For

the reasons that follow, the Motion is granted to the extent

set forth herein.

I. Background

A. Factual Background

This Employee Retirement Income Security Act (“ERISA”)

case involves multiple employer plans (“MEPs”). (Doc. # 23 at

¶ 38). “At its most basic level, a MEP is a retirement plan

that is adopted by two or more employers that are unrelated

for income tax purposes.” (Id. at ¶ 39) (internal quotation

marks omitted). MEPs “are typically used by outsourced human

resource providers . . . like TriNet.” (Id. at ¶ 38).

Specifically, TriNet is a professional employer organization

(“PEO”) that provides human-resources expertise, payroll, and

employee benefits services to small and medium-sized

businesses. (Id. at ¶¶ 24, 38).

The retirement plans at issue are the TriNet 401(k) Plan

(the “TriNet III Plan”) and the TriNet Select 401(k) Plan

(the “TriNet IV Plan”) (referred to collectively as the

“Plans”). (Id. at 1). TriNet established the Plans to help

the employees of their client employers save money for

retirement. (Id. at ¶ 41). The Plans are defined-contribution

plans, (Id. at 42), “which provide[] for an individual account

for each participant and for benefits based solely upon the

amount contributed to the participant’s account, and any

income, expenses, gains and losses.” 29 U.S.C. § 1002(34). By

the end of 2018, the TriNet III Plan had $2.9 billion in

assets under management, and the TriNet IV Plan had $1.1

billion in assets under management. (Doc. # 23 at ¶ 48).

Plaintiffs are all participants in the Plans. (Id. at ¶¶

17-21). Shiqiong Huang, Chris R. Stokowski, Everett Uhl, and

Mark J. Hearon (“TriNet IV Plaintiffs”) participated in the

TriNet IV Plan. (Doc. # 67, Huang Decl. at ¶ 3; Stokowski

Decl. at ¶ 3; Uhl Decl. at ¶ 3; Hearon Decl. at ¶ 3). Mary T.

Patterson participated in the TriNet III Plan. (Doc. # 67,

Patterson Decl. at ¶ 3). Defendants TriNet HR III, Inc. and

TriNet HR IV, Inc. are the sponsors and fiduciaries of the

Plans. (Doc. # 23 at ¶¶ 1, 24). Defendant Investment Committee

of TriNet Group, Inc. (the “Committee”) is responsible for

selecting and monitoring the investments in the Plans and

monitoring the Plans’ expenses. (Id. at ¶ 25). Plaintiffs

also name as Defendants the Boards of Directors of TriNet III

and TriNet IV because the companies acted through the Boards.

(Id. at ¶ 29).

Plaintiffs purport to bring this case as a class action

for the following proposed class:

All persons, except Defendants and their immediate

family members, who were participants in or

beneficiaries of the Plans, at any time between

September 29, 2014 through the date of judgment[.]

(Id. at ¶ 50).

According to Plaintiffs, Defendants breached their

fiduciary duties by failing to adequately review the Plans’

investment portfolio to ensure that each investment option

was prudent, maintained certain funds in the Plan despite the

availability of identical or materially similar investment

options with lower costs and/or better performance histories,

and failed to control the Plans’ recordkeeping expenses. (Id.

at ¶¶ 11-12, 57-116). First, Plaintiffs allege that

Defendants failed to investigate and utilize lower-cost and

better performing passively managed funds in favor of higher-

cost actively managed funds. (Id. at ¶¶ 58, 85-96).

Specifically, Plaintiffs allege that Defendants retained

several actively managed funds in the Plans’ investment

options “despite the fact that these funds charged grossly

excessive fees compared with comparable or superior

alternatives[.]” (Id. at ¶ 61). Plaintiffs allege that the

expense ratios for many funds in the Plans greatly exceeded

the median expense ratio for similar funds. (Id. at ¶¶ 63-

66).

Second, Plaintiffs allege that Defendants breached their

fiduciary duty by failing to utilize lower fee share classes

that are available to “jumbo” defined contribution investment

plans. (Id. at ¶¶ 68-77). Plaintiffs allege that “a fiduciary

to a large defined contribution plan such as the Plans [here]

can use its asset size and negotiating power to invest in the

cheapest share class available,” but that the TriNet

fiduciaries failed to do so on multiple occasions. (Id. at ¶¶

70, 73-77).

In addition to their allegations regarding the selected

investments’ costs and performance, Plaintiffs also allege

that Defendants failed to monitor or control the Plans’

recordkeeping expenses. (Id. at ¶¶ 97-116). Plaintiffs take

issue with the Plans’ approach of using revenue sharing to

pay for the Plans’ recordkeeping and administrative costs and

with the Plans’ process of identifying and retaining its

recordkeepers. (Id. at ¶¶ 101, 113-16).

Based on these allegations, Plaintiffs bring the

following causes of action: (1) as against the Committee,

breach of the fiduciary duty of prudence under ERISA; and (2)

as against TriNet and the Board, failure to adequately monitor

the Committee, thus breaching their fiduciary duties under

ERISA. (Id. at ¶¶ 117-30).

B. Procedural History

Plaintiffs initiated this case on September 29, 2020.

(Doc. # 1). In December 2020, the parties filed a joint motion

to stay the case pending the Plaintiffs’ exhaustion of the

administrative remedies set forth in the Plans. (Doc. # 16).

The Court granted the motion, requiring periodic status

reports. (Doc. # 17). On August 6, 2021, based on the parties’

representation that the appeals administrator had issued a

final decision, the Court reopened the case. (Doc. # 22).

Plaintiffs filed the operative Amended Complaint on August

20, 2021. (Doc. # 23).

Plaintiffs filed their Motion for Class Certification on

May 23, 2022. (Doc. # 66). Specifically, Plaintiffs seek to

certify the following class: “All persons, except the

Defendants and their immediate family members, who were

participants in or beneficiaries of the Plans, at any time

between September 29, 2014 through the date of judgment (the

‘Class Period’).” (Doc. # 66 at 3).

Defendants oppose the Motion on three grounds. First,

they argue that no named Plaintiff has standing as to the

TriNet III Plan. (Doc. # 68 at 1). Second, Defendants contend

that Plaintiffs have not satisfied the typicality requirement

under Rule 23 as to the TriNet III Plan. (Id. at 2). Finally,

they contend that Plaintiffs’ claims are not typical as to

the funds in the TriNet IV Plan in which Plaintiffs were not

invested. (Id. at 2). The Motion has been fully briefed (Doc.

## 68, 75) and is now ripe for review.

II. Legal Standard

To certify a class action, the moving party must satisfy

a number of prerequisites. First, the named plaintiff must

demonstrate standing, Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009). Second, the putative class must

meet all four requirements enumerated in Federal Rule of Civil

Procedure 23(a):

(1) the class is so numerous that joinder of

all members is impracticable;

(2) there are questions of law or fact common

to the class;

(3) the claims or defenses of the

representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly

and adequately protect the interests of

the class.

Fed. R. Civ. P. 23(a).

Third, the putative class must fit into at least one of

the three class types defined by Rule 23(b). Vega, 564 F.3d

at 1265. Relevant to this case, Rule 23(b)(1) permits

certification of a class in two circumstances. Certification

under Rule 23(b)(1)(A) is appropriate where separate actions

by individual class members creates a risk of “inconsistent

or varying adjudications . . . that would establish

incompatible standards of conduct for the party opposing the

class[.]” Fed. R. Civ. P. 23(b)(1)(A). Certification under

Rule 23(b)(1)(B) is appropriate when one class member’s

action would, “as a practical matter . . . 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).

The party moving to certify any class or subclass

ultimately bears the burden of proving that all prerequisites

are met. See Brown v. Electrolux Home Prods., Inc., 817 F.3d

1225, 1233–34 (11th Cir. 2016).

III. Analysis

A. Standing

“A plaintiff’s standing to bring and maintain her

lawsuit is a fundamental component of a federal court’s

subject matter jurisdiction.” Baez v. LTD Fin. Servs., L.P.,

No. 6:15-cv-1043-PGB-DCI, 2016 WL 3189133, at *2 (M.D. Fla.

June 8, 2016) (citing Clapper v. Amnesty Int’l USA, 133 S.

Ct. 1138, 1146 (2013)). The doctrine of standing “limits the

category of litigants empowered to maintain a lawsuit in

federal court to seek redress for a legal wrong.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May

24, 2016). To establish standing, “[t]he plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” Id.

“The party invoking federal jurisdiction bears the

burden of establishing’ standing.” Clapper, 133 S. Ct. at

1148 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992)).

The injury in fact requirement is the most important

element. Spokeo, 136 S. Ct. at 1547. An injury in fact is

“‘an invasion of a legally protected interest’ that is

‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Id. at 1548 (quoting Lujan,

504 U.S. at 560). The injury must be “particularized,” meaning

it “must affect the plaintiff in a personal and individual

way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at

560 n.1). Additionally, the injury must be “concrete,”

meaning “it must actually exist.” Spokeo, 136 S. Ct. at 1548.

The Supreme Court in Spokeo emphasized that a plaintiff cannot

“allege a bare procedural violation, divorced from any

concrete harm, and satisfy the injury-in-fact requirement of

Article III.” Id. at 1549.

Defendants argue that no Plaintiff has standing to

pursue claims related to the TriNet III Plan. (Doc. # 68 at

10). Defendants contend that Plaintiffs did not suffer any

injury under their own theory of the case. Only Ms. Patterson

invested in the TriNet III Plan, and she did not invest in

one of the funds challenged by Plaintiffs. (Id. at 10-11).

Ms. Patterson also paid lower annual recordkeeping fees than

Plaintiffs’ expert asserts are reasonable. (Id. at 11). The

TriNet IV Plaintiffs did not invest in any of the TriNet III

Plan funds and paid recordkeeping fees pursuant to a separate

arrangement. (Id. at 12).

In their reply, Plaintiffs do not address Defendants’

argument that Ms. Patterson lacks standing. Instead,

Plaintiffs respond that the TriNet IV Plaintiffs have

standing to bring a class action on behalf of the unnamed

individuals in the TriNet III Plan. (Doc. # 75 at 1). They

point out that several other courts have determined that a

named plaintiff has standing to sue on behalf of several plans

where each plan was administered by the same company and the

alleged conduct affected participants across different plans

in a similar manner. (Id. at 2).

The Court agrees with Defendants that Ms. Patterson

lacks standing. Ms. Patterson has not demonstrated an injury

in fact. She was not invested in any of the challenged funds

in the TriNet III Plan, and – based on the report of

Plaintiffs’ own expert – she did not pay excessive

recordkeeping fees. Ms. Patterson was invested in the

Vanguard 2015 Fund and the TriNet III Plan stable value fund,

neither of which are funds Plaintiffs challenge in the

complaint. (Doc. # 68 at 10). Plaintiffs’ expert asserts that

the reasonable cost of recordkeeping for the Plans was $36

per participant. (Doc. # 69, Ex. 8 at 17). During 2017 and

2018, the two full years in which Ms. Patterson was invested

in the TriNet III Plan, she paid $25.80 and $25.96 in

recordkeeping fees respectively. (Doc. # 69 at ¶¶ 13-14).

Despite Plaintiffs’ assertion that Ms. Patterson paid

excessive recordkeeping fees, the fees Ms. Patterson actually

paid are well below the amount their own expert deems

reasonable.

Ms. Patterson has not demonstrated an injury in fact,

and, therefore, lacks standing. Plaintiffs’ claims as to Ms.

Patterson are dismissed without prejudice, and Ms. Patterson

will not be appointed as a representative for the certified

class.

Nevertheless, the TriNet IV Plaintiffs have standing to

pursue their claims related to both the TriNet III and TriNet

IV Plans. The TriNet IV Plaintiffs invested in challenged

funds in the TriNet IV Plan and allegedly paid excessive

recordkeeping fees. (Doc. # 67, Huang Decl. at ¶ 5; Stokowski

Decl. at ¶ 5; Uhl Decl. at ¶ 5; Hearon Decl. at ¶ 5).

Defendants argue that the TriNet IV Plaintiffs do not have

standing to pursue claims related to the TriNet III Plan.

However, Defendants confuse the constitutional standing

requirement with the Rule 23(a) typicality requirement. See

Fallick v. Nationwide Mut. Ins. Co., F.3d 410, 424 (6th Cir.

1998) (“[O]nce a potential ERISA class representative

establishes his individual standing to sue his own ERISA

governed plan, there is no additional constitutional standing

requirement related to his suitability to represent the

putative class of members of other plans to which he does not

belong.”); Velazquez v. Massachusetts Fin. Servs. Co., 320 F.

Supp. 3d 252, 257 (D. Mass. 2018) (“Defendants argue that

plaintiff lacks standing to bring claims on behalf of a plan

in which she was never enrolled and for the period after which

she closed her account. This position erroneously conflates

the requirements of Article III . . . with the procedural

requirements of Rule 23.” (quotations omitted)).

The TriNet IV Plaintiffs have demonstrated an injury in

fact by investing in the challenged funds and paying allegedly

excessive recordkeeping fees. The TriNet IV Plaintiffs allege

that they, along with all other Plan participants, were

injured in the same manner due to Defendants’ failure to

discharge their duties in the interests of Plan participants,

leading to unreasonable recordkeeping fees and unreasonable

investment options with high expenses and poor performance.

Several other courts have found standing in similar

ERISA class actions, where the challenge is to the defendants’

general practices affecting all plans. See Fallick, F.3d at

421-24 (reversing denial of class certification and

determining named plaintiff had demonstrated constitutional

standing to bring claims related to plans to which he did not

belong); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th

Cir. 1993) (reversing denial of class certification where the

named plaintiff was only invested in one of four challenged

pension plans); Velazquez, 320 F.Supp.3d at 257-58 (finding

the named plaintiff established standing to bring claims “on

behalf of a plan in which she was never enrolled and for the

period after which she closed her account”); Mulder v. PCS

Health Systems, Inc., 216 F.R.D. 307, 317 (D.N.J. 2003)

(individual in one ERISA benefit plan may represent a class

of participants in numerous other plans).

Because the TriNet IV Plaintiffs have standing to pursue

all claims related to both Plans, the Court now turns to the

requirements for class action certification.

B. Ascertainability of Class

“Ascertainability is an implied prerequisite of Rule

23.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir.

2021). “Class representatives bear the burden to establish

that their proposed class is ‘adequately defined and clearly

ascertainable,’ and they must satisfy this requirement before

the district court can consider whether the class satisfies

the enumerated prerequisites of Rule 23(a).” Id. (citation

omitted).

The Eleventh Circuit has “collapsed class definition and

ascertainability into one inquiry. A class is inadequately

defined if it is defined through vague or subjective criteria.

And without an adequate definition for a proposed class, a

district court will be unable to ascertain who belongs in

it.” Id. (citations omitted). However, “[b]ecause

administrative feasibility has no connection to Rule 23(a),

it is not part of the ascertainability inquiry.” Id. at 1303.

The Court agrees with Plaintiffs that the class is

ascertainable. As Plaintiffs note, the “proposed class

definition is objective and the identification of its members

is administratively feasible via the Plans’ participant

records.” (Doc. # 66 at 10). The Plan participants during the

relevant time can be “readily determined from the records of

the Plan[s][.]” Pizarro v. Home Depot, Inc., No. 1:18-cv-

01566-WMR, 2020 WL 6939810, at *4 (N.D. Ga. Sept. 21, 2020).

Defendants do not dispute that the class is ascertainable.

Whether the class meets the requirements of Rule 23 is

a separate question, to which the Court now turns.

C. Rule 23(a) Requirements

The putative class must meet all four requirements

outlined in Rule 23(a): “numerosity, commonality, typicality,

and adequacy of representation.” Vega, 564 F.3d at 1265

(quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d

1181, 1188 (11th Cir. 2003)). Although Defendants only

challenge the typicality requirement, the Court will address

each in turn. See Piron v. Gen. Dynamics Info. Tech., Inc.,

No. 3:19-cv-709, 2022 WL 363958, at *5 (E.D. Va. Feb. 7, 2022)

(“A review of the record discloses that the proposed class

meets each of these [Rule 23(a)] elements. Defendants do not

appear to suggest otherwise. Nonetheless, it is appropriate

to confirm that to be the case.”).

1. Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that

the class be “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1). While “mere

allegations of numerosity are insufficient,” Rule 23(a)(1)

imposes a “generally low hurdle,” and “a plaintiff need not

show the precise number of members in the class.” Manno v.

Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684

(S.D. Fla. 2013); see Vega v. T–Mobile USA, Inc., 564 F.3d

1256, 1267 (11th Cir. 2009); Evans v. U.S. Pipe & Foundry

Co., 696 F.2d 925, 930 (11th Cir. 1983) (explaining that the

class representative is not required to establish the exact

number in the proposed class). “Nevertheless, a plaintiff

still bears the burden of making some showing, affording the

district court the means to make a supported factual finding

that the class actually certified meets the numerosity

requirement.” Manno, 289 F.R.D. at 684 (quoting Vega, 564

F.3d at 1267).

Plaintiffs argue that the numerosity requirement is met

because there are over 94,000 participants in the TriNet III

Plan and 16,000 participants in the TriNet IV Plan. (Doc. #

66 at 12). In their complaint, Plaintiffs state that, in 2019,

there were 94,295 participants in the TriNet III Plan and

16,167 in the TriNet IV Plan. (Doc. # 23 at ¶ 104).

Plaintiffs have satisfied the numerosity requirement.

The Eleventh Circuit has indicated that having more than forty

class members is generally enough to satisfy the numerosity

requirement. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546,

1553 (11th Cir. 1986) (“[T]he trial court’s decertification

of the 47-member class for lack of numerosity was by no means

compelled by Rule 23 or the case law. As the trial judge who

originally certified the class pointed out, citing 3B Moore’s

Federal Practice ¶ 23.05[1] at n. 7 (1978), while there is no

fixed numerosity rule, ‘generally less than twenty-one is

inadequate, more than forty adequate, with numbers between

varying according to other factors.’”). And, again, the Court

notes that Defendants do not argue that the numerosity

requirement is unmet.

2. Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that

there be “questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). Commonality pertains to the

characteristics of the group or class as a whole, unlike

typicality, which refers to the individual characteristics of

the class representative as compared to those of the class

members. Piazza v. Ebsco Indus. Inc., 273 F.3d 1341, 1346

(11th Cir. 2001) (citing Prado–Steiman v. Bush, 221 F.3d 1266,

1279 (11th Cir. 2000)).

Commonality “does not require that all the questions of

law and fact raised by the dispute be common or that common

questions of law or fact predominate over individual issues.”

Vega, 564 F.3d at 1268. In fact, commonality can be satisfied

even with some factual variations among class members.

Armstead v. Pingree, 629 F. Supp. 273, 280 (M.D. Fla. 1986).

In Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),

the Supreme Court clarified the commonality requirement for

class certification by specifically rejecting the use of

generalized questions to establish commonality. Noting that

“any competently crafted class complaint literally raises

common questions,” the Court focused the required discussion

as follows:

What matters to class certification . . . is

not the raising of common ‘questions’ — even

in droves — but, rather the capacity of a

class-wide proceeding to generate common

answers apt to drive the resolution of the

litigation. Dissimilarities within the

proposed class are what have the potential to

impede the generation of common answers.

Id. at 350 (internal citation omitted) (emphasis in

original). The Court explained that the “common contention”

underpinning a finding of Rule 23(a)(2) “must be of such a

nature that it is capable of class wide resolution — which

means that determination of its truth or falsity will resolve

an issue that is central to the validity of each one of the

claims in one stroke.” Id.

Plaintiffs contend that the commonality requirement is

met because the questions related to whether Defendants

breached their fiduciary duty are questions of law and fact

common to all Plan participants. Plaintiffs allege Defendants

breached their fiduciary duty by

selecting and retaining investment options in the

Plans despite the high cost of the funds in relation

to other comparable investments; failing to

investigate the availability of lower-cost share

classes of certain mutual funds in the Plans; and

failing to monitor or control the compensation paid

for recordkeeping and administration services[.]

(Doc. # 66 at 14). Additionally, all Plan participants were

subject to the Defendants’ decisions regarding selection of

Plan investments and recordkeeping arrangements. (Id. at 14).

The Court agrees with Plaintiffs. “Accordingly, the

Court concludes that the questions posed . . . are common to

the claims of the class members of those respective classes

and, consequently, will generate answers common to all of

those class members.” Pizarro, 2020 WL 6939810, at *10

(citation omitted). These questions are sufficient to show

commonality because they will generate common answers and

require the same proof for all class members.

3. Typicality

The focus of Rule 23(a)(3) typicality is whether the

class representatives’ interests are so aligned with the

proposed class that they may stand in their shoes for the

purposes of the litigation and bind them in a judgment on the

merits. See Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322–

23 (11th Cir. 2008) (“[T]ypicality measures whether a

sufficient nexus exists between the claims of the named

representatives and those of the class at large.”).

To establish typicality, “there must be a nexus between

the class representative’s claims or defenses and the common

questions of fact or law which unite the class.” Kornberg v.

Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.

1984). When the class representatives’ injuries are different

from that of the rest of the class, their claims are not

typical and they cannot serve as the class representatives.

Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001).

Moreover, when proof of the class representatives’ claims

would not necessarily prove the claims of the proposed class

members, the class representatives do not satisfy the

typicality requirement. Brooks v. S. Bell Tel. & Tel. Co.,

133 F.R.D. 54, 58 (S.D. Fla. 1990). “Typicality, however,

does not require identical claims or defenses.” Kornberg, 741

F.2d at 1337. “A factual variation will not render a class

representative’s claim atypical unless the factual position

of the representative markedly differs from that of other

members of the class.” Id.

Defendants contend the TriNet IV Plaintiffs cannot

satisfy the typicality requirement in two respects. First,

Defendants argue the TriNet IV Plaintiffs’ claims are not

typical of the claims of potential class members in the TriNet

III Plan. (Doc. # 68 at 14). The TriNet IV Plaintiffs did not

invest in any of the challenged funds in the TriNet III Plan.

(Id. at 14). Further, the Plans are serviced by different

recordkeepers, which provide different services and utilize

different fee structures. (Id. at 4-5). Second, Defendants

argue that the TriNet IV Plaintiffs cannot satisfy the

typicality requirement with respect to the claims challenging

funds in which they did not invest in the TriNet IV Plan.

(Id. at 17). Because the TriNet IV Plaintiffs’ claims are not

typical of the participants in the TriNet III Plan or the

other funds in the TriNet IV Plan, Defendants state that “the

class definition should be limited to TriNet IV Plan

participants and beneficiaries, and the class claims should

exclude any claims related to the performance of funds that

the TriNet IV plaintiffs never held.” (Id. at 20).

In their reply, Plaintiffs argue that the TriNet IV

Plaintiffs’ claims satisfy the typicality requirement as to

the TriNet III Plan because both Plans “(1) have identical

sponsors and named fiduciaries; (2) are administered by the

same Committee; (3) have a nearly identical menu of funds for

investment; and (4) Defendants failed to comply with their

fiduciary obligations to both Plans in identical ways.” (Doc.

# 75 at 3). They also contend that they satisfied the

typicality requirement as to the funds in which the TriNet IV

Plaintiffs were not invested because they “allege similar

harm resulting from defendants’ alleged fiduciary breaches.”

(Doc. # 66 at 15). They argue that they are challenging “the

process utilized by Defendants [that] resulted in the

selection of several imprudent funds as well as in excessive

recordkeeping fees,” thereby implicating the TriNet IV Plan

as a whole. (Doc. # 75 at 5). The Court addresses each of

these arguments in turn.

First, the TriNet IV Plaintiffs are not typical

representatives as to the TriNet III Plan. None of the TriNet

IV Plaintiffs invested in any of the challenged funds in the

TriNet III Plan. (Doc. # 67, Huang Decl. at ¶ 5; Stokowski

Decl. at ¶ 5; Uhl Decl. at ¶ 5; Hearon Decl. at ¶ 5). There

is no overlap between the TriNet III challenged funds and the

TriNet IV challenged funds. (Doc. # 23 at ¶¶ 92-93). The Plans

also utilized different recordkeepers operating under

different contracts. (Doc. # 68 at 4-5). MassMutual is the

recordkeeper for the TriNet III Plan, and TransAmerica is the

recordkeeper for the TriNet IV Plan. (Doc. # 23 at ¶ 113

n.20). The recordkeepers were chosen through separate Request

for Proposal processes in 2015 and 2018. (Id.). Finally, the

recordkeeping arrangements for the Plans are subject to

different fee structures: “MassMutual collects its service

fees from the TriNet IV Plan via an asset-based fee whereas

Transamerica charges both a per-participant fee and a

contract asset charge.” (Doc. # 68 at 4-5).

There is not a sufficient nexus between the TriNet IV

Plaintiffs’ claims and the claims of unnamed class members in

the TriNet III Plan to satisfy the typicality requirement. “A

class representative must possess the same interest and

suffer the same injury as the class members in order to be

typical under Rule 23(a)(3).” Murray v. Auslander, 244 F.3d

807, 811 (11th Cir. 2001). The TriNet III Plan claims are not

based on similar enough facts to the TriNet IV Plan. None of

the challenged funds are common to both plans, and the

recordkeeping arrangements were handled by separate companies

under separate agreements. Because recovery under ERISA is on

behalf of the plan as a whole, the TriNet IV Plaintiffs have

no incentive to prove the TriNet III claims. See 29 U.S.C. §

1109 (“Any person who is a fiduciary with respect to a plan

who breaches any of the responsibilities, obligations, or

duties imposed upon fiduciaries . . . shall be personally

liable to make good to such plan any losses to the plan

resulting from each such breach[.]”). The TriNet IV

Plaintiffs do not possess the same interest and did not suffer

the same injury as the unnamed class members in the TriNet

III Plan.

Second, the TriNet IV Plaintiffs are typical

representatives as to the TriNet IV Plan. The TriNet IV

Plaintiffs were invested in four of the challenged funds in

the TriNet IV Plan and were subject to the same allegedly

excessive recordkeeping fees as all other participants in the

TriNet IV Plan. Defendants’ alleged breach of their fiduciary

duty affected all participants in the TriNet IV Plan in the

same manner. The TriNet IV Plaintiffs’ claims and the claims

of all participants in the TriNet IV Plan are based on the

same legal theory and underlying events: the Committee

Defendants breached their duty of prudence by imprudently

selecting, administering, and reviewing the TriNet IV Plan

investments and recordkeeping fees, and TriNet and the Board

Defendants breached their duty by failing to monitor the

performance of the Committee.

Other courts have reached the same conclusion based on

plans involving multiple funds. See Boley v. Universal Health

Servs., Inc., 36 F.4th 124, 134–35 (3d Cir. 2022) (“Named

Plaintiffs’ interests are sufficiently aligned with those of

the class because the common allegation for each class member

— Universal’s alleged imprudence in managing the Plan’s funds

— is comparably central to the claims of the named plaintiffs

as to the claims of the absentees.” (quotations omitted));

Cunningham v. Cornell Univ., No. 16-cv-6525 (PKC), 2019 WL

275827, at *7 (S.D.N.Y. Jan. 22, 2019) (“The allegedly

imprudent conduct thus impacted the funds in the Plans in a

similar manner. The variations between Plan participants’

individual account choices do not destroy the typicality of

plaintiffs’ claims.”); Clark v. Duke Univ., 2018 WL 1801946,

at *3 (M.D.N.C. Apr. 13, 2018) (plaintiffs’ claims were

typical because they “allege[d] that the same decision-making

process, or lack thereof, resulted in the inclusion of all of

these higher-cost funds”); Sims v. BB & T Corp., No. 1:15-

cv-732, 2017 WL 3730552, at *4 (M.D.N.C. Aug. 28, 2017) (“In

this case, each named plaintiff’s claim and each class

member’s claim is based on the same events and legal theory

— a breach of fiduciary duty stemming from the defendants’

alleged disloyal and imprudent process for selecting,

administering, and monitoring the Plan’s investments.”).

Therefore, the TriNet IV Plaintiffs have met the

typicality requirement as to their claims regarding the

TriNet IV Plan. Because the TriNet IV Plaintiffs are not

typical representatives as to the TriNet III Plan, the Court

narrows the certified class to include only participants in

the TriNet IV Plan.

4. Adequacy

The adequacy of representation analysis involves two

inquiries: “(1) whether any substantial conflicts of interest

exist between the representatives and the class, and (2)

whether the representatives will adequately prosecute the

action.” Valley Drug Co., 350 F.3d at 1189 (quoting In re

HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460–61 (N.D.

Ala. 2003)). “The existence of minor conflicts alone will not

defeat a party’s claim to class certification.” Id. Rather,

“the conflict must be a fundamental one going to the specific

issues in controversy.” Id. In securities cases, the Eleventh

Circuit has stated that “class certification should not be

denied simply because of a perceived lack of subjective

interest on the part of the named plaintiffs unless their

participation is so minimal that they virtually have

abdicated to their attorneys the conduct of the case.” Fuller

v. SunTrust Banks, Inc., No. 1:11-cv-784-ODE, 2018 WL

3949698, at *5 (N.D. Ga. June 27, 2018) (quoting Kirkpatrick

v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th Cir. 1987)).

Here, the TriNet IV Plaintiffs will provide adequate

representation for the class. First, the TriNet IV Plaintiffs

“have no interests antagonistic with each other, the [c]lass,

or any segment of the [c]lass.” (Doc. # 66 at 16). They were

participants during the relevant time and seek Plan-wide

relief for Defendants’ alleged breach of fiduciary duty.

(Id.).

Second, the TriNet IV Plaintiffs have shown that they

will adequately prosecute the action. Each named Plaintiff

has “submitted a declaration attesting to their efforts to

date and confirming their desire to serve as a representative”

of the class. (Id. at 17; Huang Decl. at ¶ 12-13; Stokowski

Decl. at ¶¶ 12-13; Uhl Decl. at ¶¶ 12-13; Hearon Decl. at ¶¶

12-13). Each of the TriNet IV Plaintiffs has reviewed the

complaint, maintained contact with counsel, provided

documents in discovery, and been deposed. (Doc. # 66 at 17).

Courts have found similar declarations sufficient to show the

named plaintiffs’ adequacy. See Pizarro, 2020 WL 6939810, at

*11 (“[Plaintiffs] have responded to discovery requests. . .,

appeared for depositions. . ., and submitted affidavits

attesting to their participation in this action and their

willingness to pursue the case vigorously[.]”); Fuller, 2018

WL 3949698, at *6 (finding class representatives had

demonstrated adequacy through similar affidavits).

D. Rule 23(b)

In addition to the requirements of Rule 23(a), the class

must satisfy at least one of the three requirements of Rule

23(b). The TriNet IV Plaintiffs assert that the class should

be certified under either Rule 23(b)(1)(A) or 23(b)(1)(B).

Rule 23(b)(1)(B), which the TriNet IV Plaintiffs contend is

most appropriate for certification, states that a class

action may be maintained if “prosecuting separate actions by

or against individual class members would create a risk of .

. . adjudications with respect to individual class members

that, as a practical matter, would be dispositive of the

interests of the other members not parties to the individual

adjudications or would substantially impair or impede their

ability to protect their interests.” Fed. R. Civ. P.

23(b)(1)(B). Defendants do not challenge that the class meets

one of the requirements of Rule 23(b).

The Court agrees that the proposed class as modified in

this Order meets the requirement in Rule 23(b)(1)(B). “A

classic case of certification under Rule 23(b)(1)(B) includes

‘actions charging a breach of trust by an indenture trustee

or other fiduciary similarly affecting the members of a large

class of beneficiaries, requiring an accounting or similar

procedure to restore the subject of the trust.’” Pizarro,

2020 WL 6939810, at *13 (citing Ortiz v. Fibreboard Corp.,

527 U.S. 815, 834 (1999)); see also Fed. R. Civ. P.

23(b)(1)(B) Advisory Committee’s Note (1966 Amendment)

(instructing that certification under Rule 23(b)(1)(B) is

appropriate where plaintiffs allege breach of fiduciary duty

affecting the members of a large class of security holders or

other beneficiaries).

Further, courts in the Eleventh Circuit have certified

ERISA fiduciary breach cases under Rule 23(b)(1). See

Pizarro, 2020 WL 6939810, at *12-15; Henderson, 2018 WL

6332343, at *9-10; Fuller, 2018 WL 3949698, at *7-8; In re

Suntrust Banks, Inc. ERISA Litig., No. 1:08-cv-03384-RWS,

2016 WL 4377131, at *5-8 (N.D. Ga. Aug. 17, 2016). Thus, the

proposed class meets the requirements of Rule 23(b)(1)(B).

Alternatively, the TriNet IV Plaintiffs’ modified

proposed class also meets the requirements of Rule

23(b)(1)(A), which allows class actions if separate actions

“would create a risk of . . . inconsistent or varying

adjudications with respect to individual class members that

would establish incompatible standards of conduct for the

party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). Rule

23(b)(1)(A) “takes in cases where the party is obligated by

law to treat the members of the class alike . . . or where

the [defendant] must treat all alike as a matter of practical

necessity.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614

(1997) (citation omitted). Here, Defendants owed the same

fiduciary duty to all class members. (Doc. # 66 at 25).

Therefore, certification under 23(b)(1)(A) would also be

appropriate.

IV. Conclusion

In short, the TriNet IV Plaintiffs have satisfied all of

Rule 23’s requirements with respect to the TriNet IV Plan.

The Court will certify the class as defined below:

All persons, except Defendants and their immediate

family members, who were participants in or

beneficiaries of the TriNet IV Plan, at any time

between September 29, 2014 through the date of

judgment[.]

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiffs’ Motion for Class Certification (Doc. # 66)

is GRANTED to the extent stated herein as to the class

defined in the conclusion of this Order.

(2) Plaintiffs Shiqiong Huang, Chris R. Stokowski, Everett

Uhl, and Mark J. Hearon are appointed as lead Plaintiffs

and class representatives.

(3) Plaintiff Mary Patterson’s claims are DISMISSED without

prejudice.

(4) Capozzi Adler, P.C., is appointed as class counsel.

(5) Pursuant to the Court’s Order granting the Joint Motion

for a Stay (Doc. # 78), the parties shall file — if they

wish — motions for summary judgment and Daubert motions

within 30 days from the date of this Order.

DONE and ORDERED in Chambers in Tampa, Florida, this

21st day of October, 2022.

bio I. Heen, jut

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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