# Huang v. TriNet HR III, Inc.

> District Court, M.D. Florida · April 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10112777

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112777

## How later opinions describe it (automated extraction)

- concluding plaintiffs’ expert “lacked the particular expertise necessary to provide useful opinions to the Court” 26 because he had “virtually no experience with” the type of retirement plans at issue
- affirming district court’s decision to bar expert’s testimony where expert “had based his opinion on experience” but “never explained how his experience or the relevant texts supported his opinion”
- holding that an ERISA plaintiff failed to state a claim where the complaint “failed to allege that the [recordkeeping] fees were excessive relative to the services rendered”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHIQIONG HUANG, CHRIS R.
STOKOWSKI, EVERETT UHL, and
MARK J. HEARON,

Plaintiffs,
v. Case No. 8:20-cv-2293-VMC-TGW
TRINET HR III, INC., et al.,

Defendants.
______________________________/
ORDER
This matter is before the Court on consideration of the
Motion for Summary Judgment (Doc. # 92), filed on November
18, 2022, and the Daubert Motion to exclude the testimony of
Plaintiffs’ expert (Doc. # 93), filed on November 21, 2022,
by Defendants TriNet HR III, Inc., TriNet HR IV, Inc., the
Board of Directors of TriNet III, Inc., the Board of Directors
of TriNet IV, Inc., the Investment Committee of TriNet Group,
Inc., and John Does 1-30. Plaintiffs responded to Defendants’
Motions on December 9, 2022, and December 12, 2022,
respectively. (Doc. ## 98, 100). Defendants replied on
December 23, 2022. (Doc. # 103). For the reasons that follow,
both Defendants’ Daubert Motion and Motion for Summary
Judgment are granted.
1
I. Background
This is a class action brought under the Employee
Retirement Security Act of 1974 (“ERISA”) by Plaintiffs
Shiqiong Huang, Chris R. Stokowski, Everett Uhl, and Mark J.
Hearon, participants in the TriNet Select 401(k) Plan
(“Plan”). Plaintiffs allege that the authorities responsible
for overseeing the Plan breached their fiduciary duties under
ERISA in two respects: (1) by selecting high-cost,
underperforming investment options and (2) by causing the

Plan participants to pay excessive recordkeeping fees. (Doc.
# 23 at ¶¶ 117-130). The Court previously certified the
following class to pursue these claims:
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.

(Doc. # 85 at 30).
A. TriNet and the Retirement Committee
TriNet Group, Inc. (“TriNet”) provides human resources
services to small and medium-sized businesses and offers its
client-employers the opportunity to participate in one of two
defined contribution 401(k) plans: the TriNet 401(k) Plan
(“TriNet III”) and the Plan at issue. (Doc. # 23 at ¶¶ 24,
2
41). At the beginning of the Class Period, the Plan had 8,417
participants. The number of participants steadily climbed:
11,877 in 2017, 14,420 in 2018, 16,167 in 2019, and 18,200 in
2020. (Doc. # 92-19 at 145). The Plan is a multiple employer
plan (“MEP”) with more than 1,200 participating employers.
(Doc. # 92-2 at ¶ 3).
From September 29, 2014, to the present (“Class
Period”), the Retirement Committee (“RC”) was delegated
authority to administer the Plan, including retaining a

recordkeeper and selecting and monitoring the Plan’s
investment options. (Id. at ¶ 6). The RC comprised between
five and seven TriNet employees with expertise in different
subject areas, including in finance, human resources, and
law. (Id. at ¶ 7).
B. Plan Investment Options
The Plan’s Investment Policy Statement established
guidelines for the selection, monitoring, and removal of
investment options, including identifying qualitative and
quantitative factors to consider. (Id. at ¶ 9). The RC was
advised during the Class Period by two independent investment
advisors with significant investment expertise: NFP

Retirement (“NFP”) until February 2016, and DiMeo Schneider
3
(“DiMeo”) from 2016 onward. (Doc. # 92-15 at 107-18). Before
each RC meeting, the Plan’s investment consultant distributed
materials containing detailed information regarding the
Plan’s investments and potential alternatives. (Id. at 117-
18). The consultant’s investment reviews contained a
scorecard that evaluated the Plan’s funds relative to their
benchmarks and peer groups across numerous criteria, and
identified any funds for the RC to “watch” or “discuss” based
on those factors. (Doc. # 92-5 at 17-78; Doc. # 92-6 at 1-

291). The scorecards consistently indicated that the Plan’s
investments had below-average fees relative to peers. (Id.).
Throughout the Class Period, the Plan offered
participants a broad range of investment strategies with
differing management styles and risk-return characteristics.
(Doc. # 92-17 at 13-14).
C. Plan Recordkeeping Costs
In 2015, NFP assisted the RC in conducting a Request for
Proposal (“RFP”) for the Plan’s recordkeeping services. (Doc.
# 92-2 at ¶ 22). The 2015 RFP was issued to six recordkeepers
with experience with MEPs, and it consisted of hundreds of
questions examining, among other things, each vendor’s

relevant experience, structure and organization, systems,
4
capacity for growth, account management plan, technological
services, personnel, data security and risk management,
participant disclosures, and communications and education.
(Id. at ¶¶ 22-23; Doc. # 92-10 at 13-87). In addition to the
six to which it issued the 2015 RFP, the RC also approached
other large recordkeepers, including Fidelity and Vanguard;
however, they were not interested in submitting a response.
(Doc. # 92-2 at ¶ 22).
Three recordkeepers (MassMutual, Transamerica, and Voya)

responded to the 2015 RFP. (Id. at ¶¶ 23-24). The other three
recordkeepers declined because they were either unable to
meet the pre-established minimum bid requirements or had
capacity concerns. (Id. at ¶ 25). The RC chose MassMutual,
which submitted the lowest price quote of the three responding
recordkeepers, and negotiated a further price reduction
before retaining its services. (Id. at ¶¶ 25–26).
In 2018, DiMeo assisted the RC in issuing a Request for
Information (“RFI”) for the plan’s recordkeeping services to
the three prior responding vendors (MassMutual, Transamerica,
and Voya). (Id. at ¶ 27). DiMeo and the RC evaluated the
responses based on numerous criteria, including pricing. (Id.

at ¶ 28). Again, MassMutual provided the lowest price and the
5
RC concluded that the existing structure with MassMutual as
the recordkeeper was “working well.” (Id. at ¶ 29).
In 2021, DiMeo once again assisted the RC in issuing an
RFP for the Plan’s recordkeeping services. (Id. at ¶ 30).
DiMeo issued the 2021 RFP to four recordkeepers: Empower
(which had acquired MassMutual’s recordkeeping business),
Transamerica, Voya, and Northwest Plan Services. (Id.). The
2021 RFP solicited information on each recordkeeper’s
organization, capabilities, services, and fees. (Id. at ¶ 31;

Doc. # 92-12 at 53-61). The two finalists, Empower and
Transamerica, provide nearly identical price quotes. (Doc. #
92-12 at 82). The results of the 2021 RFP were discussed at
the February, August, September, and October 2021 board
meetings. (Doc. # 96-2 at 29-31, 36-41).
As a result of the 2021 RFP, the RC consolidated the
recordkeeping services for TriNet III and the Plan, securing
Empower as the vendor for both. (Id. at 41). The consolidation
resulted in a fee reduction for the Plan. (Doc. # 92-2 at ¶¶
32–33).
In the intervals between the 2015 RFP, 2018 RFI, and
2021 RFP, DiMeo regularly reviewed the Plan’s recordkeeping

arrangement and presented the RC with information regarding
6
the recordkeeping costs of other plans. (Id. at ¶ 34; Doc. #
92-13 at 1-39).
D. Expert Testimony
1. Defendants’ Experts
Defendants offer the testimony of three experts: Steven
Case, Dr. Jennifer Conrad, and Peter Swisher. Mr. Case is a
former investment consultant, who opined that the RC’s
processes for monitoring the Plan’s investment options and
recordkeeping expenses were “consistent with best fiduciary

practices.” (Doc. # 92-16 at 10). Dr. Conrad, a tenured
professor of finance at the Kenan-Flagler Business School,
University of North Carolina at Chapel Hill, explained that
(1) fees of index funds “are not meaningful benchmarks for
actively managed funds’ fees,” and (2) that it is appropriate
to include actively-managed options in retirement plans
because research indicates that active management produces
superior results in certain market conditions. (Doc. # 92-17
at 12-25).
Mr. Swisher, an expert in MEPs with nearly ten years’
experience administering and selecting recordkeepers for a
large MEP, opined that the RC followed best practices in

conducting competitive bidding through the 2015 RFP, 2018
7
RFI, and 2021 RFP. (Doc. # 92-18 at 11-13). He further noted
that recordkeeping fees for single-employer plans are not
comparable to those for MEPs. (Id. at 40, 52). Mr. Swisher
explained that the Plan includes well over 1,000 distinct
participating employers and most recordkeeping services for
an MEP must be performed on an employer-by-employer basis.
(Id. at 51-53). The process of onboarding new client employers
“is a substantial cost for MEP recordkeepers” and the Plan
onboards ten to twenty new employers per month. (Id. at 41-

42, 51-52; Doc. # 92-13 at 37). He added that IRS regulations
governing MEPs require each participating employer to be
treated separately for purposes of tests related to non-
discrimination, top-heaviness, participation and coverage,
and highly compensated employees. (Doc. # 92-18 at 15-17, 45-
47). Finally, Mr. Swisher determined that, based on the data
utilized by Plaintiffs’ expert, the TriNet Plans paid some of
the lowest recordkeeping fees of any MEP in the market, and
noted that all MEPs paid more than $30 per participant. (Id.
at 62-65).
2. Plaintiffs’ Expert
Plaintiffs offer the testimony of Frances Vitagliano as

to the reasonableness of the Plan’s recordkeeping fees. (Doc.
8
# 92-19 at 23:3–24:1). Mr. Vitagliano has “35 years of
experience in the record keeping and administration business
and the related asset management processing.” (Id. at 134).
In approximately 1980, he established an MEP, the National
Pension Group (“NPG”) and worked closely with his co-founder
“in the design, implementation and pricing of the record
keeping system used to record keep and administer the NPG
MEP.” (Id. at 137). NGP closed at some point in the 1980s.
(Id. at 77:15-17). While he has experience responding to RFPs

for vendor services from his role as Vice President of State
Street Bank and Trust in the late 1980s (Id. at 135), Mr.
Vitagliano admitted that he does not have experience issuing
RFPs or evaluating responsive bids. (Id. at 51:23–53:2).
In this case, he relied on his experience and considered
a (1) 1998 consultant study submitted to the Department of
Labor, (2) a survey of eight government plans for the State
of North Carolina, and (3) the recordkeeping expenses he
calculated for two single-employer plans: Federal Thrift
Savings Plan (5 million participants) and the Mallinckrodt
Pharmaceuticals Retirement Savings and Investment Plan (5,362
participants), and one multi-employer plan, Amalgamated

9
Transit Union National 401(k) Pension Plan (17,000
participants). (Id. at 145-148).
Mr. Vitagliano reached the following conclusions:
(1) The Plan’s recordkeeping fees were
unreasonable because they exceeded $30 per
participant (plus $3 to $6 in additional
“administrative” fees), which is the
reasonable rate for both the TriNet III and
TriNet IV Plans.
(2) The RC and its consultants were “imprudent and
likely negligent” when they conducted the 2015
RFP for recordkeeping services.

(Id. at 138, 228). Mr. Vitagliano based his reasonable fee
conclusion on his review of the aforementioned documents.
(Doc. # 92-19 at 145-48). With respect to the 2015 RFP, he
concluded that it was imprudent because it did not include
any “independent” or “unbundled” recordkeepers. (Id. at 16).
E. Procedural History
Plaintiffs initiated this action on September 29, 2020,
(Doc. # 1) and filed an amended complaint on August 20, 2021.
(Doc. # 23). Defendants filed their answer to the amended
complaint on January 24, 2022. (Doc. # 54).
Now, Defendants seeks final summary judgment in their
favor. (Doc. # 92). Additionally, Defendants filed a Daubert
motion to exclude the expert report and testimony of Mr.
Vitagliano. (Doc. # 93). Plaintiffs responded to both
10
Motions. (Doc. ## 98, 100). Defendants replied. (Doc. # 103).
The Motions are ripe for review.
II. Legal Standard
A. Daubert Motion
Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion or
otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the
testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.

Fed. R. Evid. 702.
Implementing Rule 702, Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires district
courts to ensure that any and all scientific testimony or
evidence admitted is both relevant and reliable. See Id. at
589–90. The Daubert analysis also applies to non-scientific
expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). District courts must conduct this gatekeeping
function “to ensure that speculative, unreliable expert
testimony does not reach the jury under the mantle of
reliability that accompanies the appellation ‘expert
11
testimony.’” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005). The Eleventh Circuit “requires trial courts
acting as gatekeepers to engage in a ‘rigorous three-part
inquiry.’” Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th
Cir. 2010).
The district court must assess whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through
the application of scientific, technical, or
specialized expertise, to understand the evidence
or to determine a fact in issue.

Id. The proponent of the expert testimony bears the burden of
showing, by a preponderance of the evidence, that the
testimony satisfies each of these requirements. Id.
B. Summary Judgment
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
12
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’
designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

13
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
conclusional allegations,” summary judgment is not only
proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
A. Daubert Motion
Defendants seeks to exclude Mr. Vitagliano’s expert
testimony on the grounds that it meets neither the
qualification nor reliability requirements of Rule 702. (Doc.
# 93 at 1-4).
During his deposition, Mr. Vitagliano made several

statements that Defendants contend undermined his
14
qualifications, methodology, and final conclusions. First, he
admitted that he did not compare the Plan’s fees to those of
any other MEP. (Id. at 111:14–20). Mr. Vitagliano
acknowledged that most of the plans he considered in deriving
his reasonable recordkeeping fee were not similar in size or
structure to the Plan. See (Doc. # 92-19 at 228:10–230:6,
236:4–237:4, 239:14–243:5, 246:18–248:18) (admitting that the
Thrift Savings Plan, Amalgamated plan, and Mallinckrodt plans
were not comparable to the Plan). He also stated that he did

not consider the size or type of plans when he chose to
include in his report the North Carolina plans and that he
did not know how many participants each plan had. (Id. at
236:4–237:4, 239:14–243:5).
He further agreed that an MEP would have higher
recordkeeping costs than a single-employer plan of the same
size, (Id. at 192:14–25), because there are significant
differences in the administrative costs incurred by a
recordkeeper and plan administrator in administering a
single-employer plan, as opposed to a multiple employer plan.
(Id. at 243:15–21, 191:24–193:8, 204:9–206:25). He also
explained that multiemployer plans, such as the Amalgamated

plan, differ from MEPs because multiemployer plans are union
15
plans subject to less burdensome regulations than MEPs and,
thus, he “would expect the cost of recordkeeping and
administration for [the Plan] to be greater than the [cost]
of the Amalgamated [plan].” (Id. at 235:12–237:4, 241:14–18).
Second, Mr. Vitagliano recognized that he “did not
undertake an analysis of the costs incurred by . . .
MassMutual in servicing [the Plan].” (Id. at 224:4-10). He
acknowledged that an MEP recordkeeper undertakes “quite a bit
of work” to onboard and terminate employers, but he did not

attempt to calculate MassMutual’s onboarding or termination
costs. (Id. at 122:20–127:8, 146:25–150:12, 153:2–157:24,
181:2–182:4).
Third, Mr. Vitagliano conceded that, with regard to the
2015 RFP, the Defendants solicited bids from at least one
unbundled recordkeeper and acknowledged that TriNet was “not
at all” at fault for the “very reasonable and rational”
decision of that vendor not to bid. (Id. at 258:4-20, 268:2–
13). He further did not identify any other recordkeepers to
which the Defendants should have sent the RFP. (Id. at 258:13-
20). Indeed, Mr. Vitagliano admitted that he himself was not
“up on” the current recordkeeper market and instead would

“depend upon the . . . expertise in that area” of a
16
specialized recordkeeping consultant, Siegel company. (Id. at
260:21-261:1). He went on to state the following:
Q. So you don’t know whether there were more than
three vendors in the marketplace that could have
even responded to the RFP, correct?
A. That is correct. I would leave that up to the
experts who spent their entire lives just in the
recordkeeping field for multiple and multiemployer
plans.
Q. And that’s not within your area of expertise,
correct?
A. I’m on the providing of services rather than
surveying other competitors of them.

(Id. at 263:10–264:3) (emphasis added).
1. Qualifications
The first question under Daubert is whether Mr.
Vitagliano is qualified to testify competently regarding the
matters he intends to address. City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 563 (11th Cir. 1998). An expert
may be qualified “by knowledge, skill, experience, training,
or education.” Fed. R. Evid. 702. “Determining whether a
witness is qualified to testify as an expert ‘requires the
trial court to examine the credentials of the proposed expert
in light of the subject matter of the proposed testimony.’”
Clena Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653,
661 (S.D. Fla. 2012) (quoting Jack v. Glaxo Wellcome, Inc.,
239 F. Supp. 2d 1308, 1314–16 (N.D. Ga. 2002)).
17
“This inquiry is not stringent, and so long as the expert
is minimally qualified, objections to the level of the
expert’s expertise [go] to credibility and weight, not
admissibility.” Id. (citations and internal quotation marks
omitted). The Court is aware that its “gatekeeper role under
Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz v. Virani, 253 F.3d 641, 666
(11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d 1300,
1311 (11th Cir. 1999)). “Courts must also be mindful that

‘[e]xpertise in one field does not qualify a witness to
testify about others.’” Easterwood v. Husqvarna Pro. Prod.,
Inc., 576 F. Supp. 3d 950, 958 (M.D. Ala. 2021) (quoting
Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772
F.3d 1352, 1368 (11th Cir. 2014)).
Defendants contend that Mr. Vitagliano is not qualified
to opine on the 2015 RFP process because he does not have the
necessary knowledge or experience. (Doc. # 93 at 20-21).
Defendants note that Mr. Vitagliano stated during his
deposition that he would ask a consultant that was “intimately
knowledgeable about multi and multiple employer plans” to
determine which recordkeepers should have received the 2015

RFP. (Id. at 21) (quoting Doc. # 92-19 at 258:21–259:12,
18
260:21–261:1). They also point to his statement that he “would
leave that up to the experts” when asked whether there were
any other recordkeepers that could have responded to the RFP.
(Doc. # 93 at 21) (quoting Doc. # 92-19 at 263:10–264:3).
In response, Plaintiffs argue that Mr. Vitagliano is
qualified to opine that NFP, the consultant on which
Defendants relied for the 2015 RFP process, was unqualified.
(Doc. # 100 at 17) (citing Doc. # 92-19 at 259:2-8). They
further contend that Mr. Vitagliano opined that the 2018 RFI

and the 2021 RFP were also deficient. (Id. at 7-8). According
to Plaintiffs, he also alternatively concluded that the 2015
RFP process was flawed because NFP was an unqualified
consultant. (Id. at 17).
First, though Plaintiffs contend otherwise, Mr.
Vitagliano stated specifically that he did not offer an
opinion as to the 2018 RFI or 2021 RFP. (Doc. # 92-19 at
252:7–10). He also expressly stated during his deposition
that he was not offering an opinion on NFP’s qualifications:
Q. So are you expressing an opinion that NFP was
not qualified to run this RFP process?
A. I’m expressing an opinion that NFP’s strength
lay in investment management, that NFP itself paid
significantly less for its own recordkeeping fees,
and I didn’t find any of their publicly presented
individuals and experts having any extensive
background in recordkeeping itself.
19
Q. But what’s the answer to my question? Are you
expressing an opinion that they were unqualified to
run this RFP process, yes or no?
A. I’m not in a position to make that final decision
on that. I have not interviewed them, I have not
gone into them, and before I’d make a statement
like that I’d like to go into dramatically more
detail with them and meet them individually.

(Id. at 253:13-254:3).
Second, as to the 2015 RFP process, the Court finds that
Mr. Vitagliano is not qualified to testify competently. Mr.
Vitagliano himself readily admitted that he would have to
rely on the expertise of a consultant to determine how the
Defendants could have improved the RFP process. He further
stated that his experience was in the “providing of services”
— not in conducting an RFP process. (Doc. # 92-19 at 263:10–
264:3). Plaintiffs’ response attempts to evade the underlying
issue of his qualifications. Instead they argue that “he has
experience with RFPs and he is more than qualified to offer
this opinion” on the consultant, NFP. (Doc. # 100 at 17). The
Court, however, is not persuaded by this argument, as Mr.
Vitagliano expressly disclaimed any opinion on the
qualifications of NFP to conduct the RFP process. (Doc. # 92-
19 at 253:21-254:13).
The bottom line is that, despite his experience in other
areas within this field, Mr. Vitagliano has never conducted
20
an RFP, has not responded to an RFP in nearly forty years,
and acknowledged that he would need to rely on a consultant
to determine the best way to conduct the process. See Griffin
v. Coffee Cnty., 608 F. Supp. 3d 1363, 1370 (S.D. Ga. 2022)
(finding forensic pathologist unqualified to opine on
treatment of methamphetamine overdose because expert had not
treated emergent patients in forty years and acknowledged he
would defer to an emergency room physician regarding the
course of treatment); Parc at Duluth, LLC v. Cintas Corp. No.

2, No. 1:10-CV-2752-RWS, 2012 WL 113650, at *3 (N.D. Ga. Jan.
13, 2012) (barring fire-protection engineer from opining on
the standards of an annual sprinkler system inspection
because expert had not performed such an inspection). Because
Mr. Vitagliano’s qualifications do not fit with the topic of
his opinion, his testimony with respect to the 2015 RFP is
barred.
2. Reliability
The Court must also assess whether the expert’s
methodology is reliable. “Exactly how reliability is
evaluated may vary from case to case, but what remains
constant is the requirement that the trial judge evaluate the

reliability of the testimony before allowing its admission at
21
trial.” Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citing
Fed. R. Evid. 702, Advisory Committee Notes (2000)). There
are four recognized, yet non-exhaustive, factors a district
court may consider in evaluating reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has been generally accepted in the proper
scientific community.

Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.
2016) (citations omitted). A district court can take other
relevant factors into account as well. Id. (citations
omitted).
“If the [expert] witness is relying solely or primarily
on experience, then,” in establishing reliability, “the
witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to the facts.” Frazier, 387 F.3d at 1261 (citation and
internal quotation marks omitted). “[A] trial court may
exclude expert testimony . . . whose factual basis is not
adequately explained.” Cook ex rel. Est. of Tessier v. Sheriff
of Monroe Cnty., Fla., 402 F.3d 1092, 1111 (11th Cir. 2005).
22
Expert opinions must have “a traceable, analytical basis
in objective fact.” Bragdon v. Abbott, 524 U.S. 624, 653
(1998). “[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997).

Defendants argue that Mr. Vitagliano’s opinion as to the
reasonableness of the Plan’s recordkeeping fees is not based
on any methodology or, at the very least, not on a reliable
one. (Doc. # 93 at 10-15). Specifically, Defendants contend
that he has not articulated his method for how he arrived at
his reasonable recordkeeping fee of $30 per participant (with
$3-6 in administrative fees). (Id. at 10-11). They also argue
that the comparator plans referenced in Mr. Vitagliano’s
report are not, in fact, comparable to the Plan and that Mr.
Vitagliano admitted as much during his deposition. (Id. at
11-13).
Plaintiffs respond that Mr. Vitagliano did articulate

his method of generating his reasonable fee: he relied on his
23
experience and considered the comparator plans referenced in
his report. (Doc. # 100 at 11-12). Further, they contend that
Mr. Vitagliano chose his referenced comparator plans based on
the size of those plans and “factor[ed] in the different sizes
of these mega plans to calculate how much the Plans’
recordkeeping fees would have cost if they also used per-
participant fees[.]” (Id. at 12). Plaintiffs contend that
size was the most important factor he relied on in determining
the reasonable recordkeeping fees for a given plan. See (Id.

at 12) (“[I]t’s clear from Vitagliano’s report that he
purposely chose mega sized plans like TriNets’ Plans to
calculate how plans of similar sizes used per participant
fees and economy of scale to negotiate lower fees.”).
The Court agrees with Defendants: Mr. Vitagliano has not
satisfactorily explained his methodology. Mr. Vitagliano does
not detail how his knowledge and experience led him to
calculate the fees for the relevant time period, or why those
numbers are reasonable in light of any features of the Plan.
Without more, this conclusory statement of applied knowledge
of the industry’s practices is insufficient under Rule 702
because “‘general references’ to an expert’s ‘experience’ do

not provide a reliable basis for his proposed testimony.”
24
Cunningham v. Cornell Univ., No. 16-CV-6525 (PKC), 2019 WL
4735876, at *9 (S.D.N.Y. Sept. 27, 2019); see also, Hughes v.
Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014)
(affirming district court’s decision to bar expert’s
testimony where expert “had based his opinion on experience”
but “never explained how his experience or the relevant texts
supported his opinion”). “The trial court’s gatekeeping
function requires more than simply taking the expert’s word
for it.” Fed. R. Evid. 702, advisory committee’s note, 2000

amendment (internal quotation marks omitted).
The Court finds persuasive the reasoning articulated in
Cunningham. In Cunningham, the court found unreliable an
expert witness’s method of determining the reasonable
recordkeeping fees a pension plan could have secured. Id. The
expert testified that he generated the fee estimate by relying
on his “experience . . . in the marketplace” working for a
firm that generated RFPs and his evaluation of the relevant
case documents. Id. The court found that this generalized
reference to his experience did not provide a reliable basis
for his proposed testimony. Id.
Like the expert in Cunningham, Mr. Vitagliano has not

sufficiently explained his methodology beyond general
25
references to his experience and his review of several
studies. Mr. Vitagliano’s experience alone is insufficient to
support his opinion. “[I]f an expert is relying solely on or
primarily on his experience, then he must explain how that
experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.” Frazier,
387 F.3d at 1261. Here, Mr. Vitagliano does not indicate a
single plan in his experience with $30 per participant fees

for similar services, he does not explain how his experience
helped him determine a reasonable fee, and he has very little
experience setting recordkeeping prices in the first place.
See Ramos v. Banner Health, 461 F. Supp. 3d 1067, 1134 (D.
Colo. 2020) (“The Court declines to rely on [plaintiffs’
expert]’s testimony as to the reasonable annual ranges of
recordkeeping fees because his opinion is based on vague and
insufficient references to his experience in the 401(k) plan
industry.”), aff’d, 1 F.4th 769 (10th Cir. 2021); Sacerdote
v. N.Y. Univ., 328 F. Supp. 3d 273, 283 n.19 (S.D.N.Y. 2018)
(concluding plaintiffs’ expert “lacked the particular
expertise necessary to provide useful opinions to the Court”

26
because he had “virtually no experience with” the type of
retirement plans at issue).
Further, the comparator plans included in Mr.
Vitagliano’s report cannot support his conclusion. As in
Cunningham, he offers no rationale in his report for why or
how the comparator plans were selected. In fact, he
acknowledged that at least one of the plans was not even meant
to be a comparator, but instead was intended to show the low
end of possible recordkeeping fees. See (Doc. # 92-19 at

228:23-229:1) (“I put the Federal Thrift Savings Plan in
purely to show the absolute lower bounds that one would not
ever expect a plan to go below for expenses and what have
you.”). He offers no explanation for how he arrived at his
$30 reasonable fee or how he decided to tack on $3-6 in
administrative fees, and he makes no attempt to tie these
numbers to the fees for the comparator plans listed in his
report.
Plaintiffs’ post hoc reasoning for Mr. Vitagliano’s
chosen comparator plans is also unavailing. Plaintiffs state
that Mr. Vitagliano chose plans of similar size as comparators
and “factor[ed] in the different sizes” between the plans to

generate his fee estimate. (Doc. # 100 at 12). The Court is
27
not persuaded that Plaintiffs’ explanation indicates a
reliable methodology.
First, Mr. Vitagliano did not explain in either his
report or deposition why he picked these comparator plans. To
the contrary, he acknowledged during his deposition that many
of the plans listed in his report are not comparable in size
or type to the Plan. See (Doc. # 92-19 at 228:10–230:6, 236:4–
237:4, 239:14–243:5, 246:18–248:18) (admitting that the
Thrift Savings Plan, Amalgamated plan, and Mallinckrodt plans

were not comparable to the Plan); see also (Id. at 236:4–
237:4, 239:14–243:5) (acknowledging that he did not consider
the size or type of plans when he chose to include in his
report the North Carolina plans).
Second, if the Court accepted that Mr. Vitagliano simply
“considered” these comparator plans to generate his
reasonable fee estimate, this explanation alone is
insufficient to constitute a reliable methodology. Other
courts in this circuit have excluded experts under similar
circumstances to the ones present here. See generally Pledger
v. Reliance Tr. Co., No. 1:15-CV-4444-MHC, 2019 WL 4439606,
(N.D. Ga. Feb. 25, 2019). In Pledger, the court barred the

testimony of the plaintiffs’ expert, who opined on the
28
reasonableness of the recordkeeping fee charged by the
retirement plan at issue. Id. at *15. There, the court found
that the expert, who had decades of experience in the
recordkeeping industry, had not utilized a reliable
methodology in determining a reasonable fee for the plan. Id.
at *16. The expert did not “use any pricing model from any
recordkeepers when performing his analysis” and did not rely
on pricing databases or “any objective source of pricing
information from a third party.” Id. Instead he relied on a

fifteen-year-old table noting the fees for plans a fraction
of the size of the plan at issue and the data from several
Form 5500s with fees that did not support his fee estimate.
Id. at 18.
Here, the Court faces a nearly identical scenario. Mr.
Vitagliano purports to have “considered” the recordkeeping
fees of several plans incomparable in size and structure to
the Plan and relied on his experience to determine what a
reasonable fee should have been. Such a methodology is
insufficient to support his opinion. See Id. (“The Court
agrees with Defendants that in short, [the expert] contends
that he is a walking benchmark and is able to conjure the

29
exact dollar figures the Plan allegedly should have paid. .
. . This evidence is inadmissible.”).
Finally, Mr. Vitagliano did not compare the Plan to any
other MEPs, instead relying on single and multiemployer plans
as comparators – despite recognizing that such plans are not,
in fact, comparable to MEPs. Mr. Vitagliano stated that there
are “significant differences in the administrative costs
incurred by a recordkeeper and plan administrator in
administering a single employer plan, as opposed to a multiple

employer plan.” (Doc. # 92-19 at 243:15–21). He also admitted
that a single employer of comparable size to an MEP would
have lower recordkeeping fees – undercutting Plaintiffs’
contention that the size of the plans is the only relevant
variable. See (Id. at 192:14-25) (“Q. And you would also
expect a multiple employer plan with a certain number of
participating employers to have higher recordkeeping and
administrative fees than a single employer plan; is that
correct? A. Single employer plan of the same number of
participants, yes.”). According to Mr. Vitagliano,
multiemployer plans should also have lower fees than MEPs.
(Id. at 235:12–237:4, 241:14–18).

30
Mr. Vitagliano has not demonstrated that his methodology
is reliable, and his testimony is excluded. Therefore,
Defendants’ Daubert Motion is granted.
B. Defendants’ Motion for Summary Judgment
In their amended complaint, Plaintiffs base their claims
for breach of fiduciary duty on two theories: (1) that
Defendants imprudently selected underperforming, high-cost
investment options and (2) that Defendants caused the Plan
participants to pay excessive recordkeeping fees. The Court

will address each theory in turn.
1. Plaintiffs’ Recordkeeping Fee Theories
First, Defendants seek summary judgment as to
Plaintiffs’ recordkeeping fee theories. (Doc. # 92 at 20-25).
They argue that they have demonstrated that the RC diligently
monitored the Plan’s recordkeeping costs and that Plaintiffs
cannot meet their burden of demonstrating that the Plan’s
recordkeeping costs were excessive. (Id.). In their response,
Plaintiffs rely solely on Mr. Vitagliano’s report to
demonstrate that the 2015 RFP, 2018 RFI, and 2021 RFP
processes were flawed and that the recordkeeping costs were
excessive. (Doc. # 98).

31
Under ERISA, a plan fiduciary is required to meet a
standard of “prudence” in administering the plan holding the
participant’s retirement assets in a defined contribution
plan. 29 U.S.C. § 1104(a)(1)(B) (requiring fiduciaries to
discharge their duties “with the care, skill, prudence, and
diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims”).

“An ERISA fiduciary’s duty is derived from the common
law of trusts.” Tibble v. Edison Int’l, 575 U.S. 523, 528
(2015). Fiduciaries must prudently select third-party service
providers and can be subject to liability if they do not
reasonably monitor the fees charged and such fees are
excessive. Pizarro v. Home Depot, Inc., --- F. Supp. 3d ---,
2022 WL 4687096, at *14 (N.D. Ga. Sept. 30, 2022) (citation
omitted). ERISA empowers a plan participant or beneficiary to
sue plan fiduciaries for breach of fiduciary duties. 29 U.S.C.
§ 1132(a)(2).
To succeed on their claims for breach of fiduciary duty
under ERISA, Plaintiffs must prove that (1) Defendants acted

as fiduciaries, (2) Defendants breached their fiduciary
32
duties, and (3) the breaches proximately caused a loss to the
Plan. Solis v. Seibert, No. 8:09-cv-1726-VMC-AEP, 2011 WL
398023, at *4 (M.D. Fla. Feb. 4, 2011), aff’d, 464 F. App’x
820 (11th Cir. 2012). Because of the proximate causation
requirement, fiduciaries are not liable under ERISA where
their actions — “although a breach of [their] fiduciary duty
— did not cause the loss to the Fund.” Perez v. DSI
Contracting, Inc., No. 1:14-CV-282-LMM, 2015 WL 12618779, at
*5 (N.D. Ga. July 24, 2015) (quoting Ironworkers Local No.

272 v. Bowen, 695 F.2d 531, 536 (11th Cir. 1983)). The only
elements at issue here are breach and loss causation.
Plaintiffs have not put forth any evidence demonstrating
that Defendants breached their fiduciary duties. In fact, the
undisputed record evidence shows the opposite. The RC
monitored the Plan’s recordkeeping fees, conducting three
competitive searches for recordkeepers during the Class
Period and conducting regular benchmarking exercises in the
interim. (Doc. # 92-2 at ¶¶ 22, 27, 30, 34). The 2015 RFP and
the 2021 RFP resulted in price negotiations that reduced the
per participant recordkeeping fees. (Id. at ¶¶ 25-26, 32-33);
see also Johnson v. PNC Fin. Servs. Grp., Inc., 2021 WL

3417843, at *4 (W.D. Pa. Aug. 3, 2021) (“[T]he fact that the
33
Plan’s recordkeeping fees trend downward for the period at
issue points in the direction of prudence rather than
imprudence.”). This Court joins the refrain of other district
courts that have found evidence of regular, competitive
searches compelling evidence that there was no breach of
fiduciary duty. See, e.g., Marshall v. Northrop Grumman
Corp., 2019 WL 4058583, at *11 (C.D. Cal. Aug. 14, 2019)
(granting summary judgment to defendants on recordkeeping
fees claim where defendants engaged in RFP); Ramos, 461 F.

Supp. 3d at 1101 (finding fiduciary committee prudently
managed its recordkeepers because it ran regular RFP
processes); Sacerdote v. N.Y. Univ., 328 F. Supp. 3d 273, 293
(S.D.N.Y. 2018) (same); Cryer v. Franklin Res., Inc., 2018 WL
6267856, at *10–11 (N.D. Cal. Nov. 16, 2018) (same).
Even if Plaintiffs had adduced evidence of a breach of
fiduciary duty, they have no evidence of loss causation.
Plaintiffs have not offered specific facts showing that the
Plan’s recordkeeping costs were excessive. Again, the only
evidence to which they cite is Mr. Vitagliano’s report, which
the Court will not consider. Indeed, the only evidence
regarding the reasonableness of the recordkeeping fees comes

from Defendants’ expert, Mr. Swisher, who concludes that the
34
Plan paid some of the lowest recordkeeping fees of any MEP in
the market, and noted that all MEPs paid more than $30 per
participant. (Doc. # 92-18 at 62-65).
Even if the Court did consider Mr. Vitagliano’s report,
it still would reach the same conclusion, as Mr. Vitagliano
did not analyze the specific services provided by MassMutual
– an element of the loss causation analysis that courts have
found necessary in cases such as this. See Albert v. Oshkosh
Corp., 47 F.4th 570, 580 (7th Cir. 2022) (holding that an

ERISA plaintiff failed to state a claim where the complaint
“failed to allege that the [recordkeeping] fees were
excessive relative to the services rendered”); Smith v.
CommonSpirit Health, 37 F.4th 1160, 1169 (6th Cir. 2022)
(same); Young v. General Motors Inv. Mgmt. Corp., 325 F. App’x
31, 33 (2d Cir. 2009) (same); Ramos, 461 F. Supp. 3d at 1132
(“A high fee alone does not mandate a conclusion that
recordkeeping fees are excessive; rather, fees must be
evaluated relative to the services rendered.”). At best,
Plaintiffs have demonstrated that a different type of
retirement plan could have paid lower recordkeeping fees for
a different package of services. This showing is insufficient

to avoid summary judgment.
35
Summary judgment is therefore granted to Defendants on
Plaintiffs’ recordkeeping fee theories.
2. Plaintiffs’ Investment Options Theories
Defendants also seek summary judgment on Plaintiffs’
claim that the RC employed an imprudent process in selecting
and monitoring the Plan’s investments, arguing that
Plaintiffs have adduced no evidence to that effect. (Doc. #
92 at 16-20). In their response, Plaintiffs “acknowledge that
they never submitted an expert report to calculate damages

with respect to its investment-related theories” and state
that they are not seeking damages with respect to their
investment-related theories. (Doc. # 98 at 20).
Plaintiffs have not met their burden to avoid summary
judgment on their investment-related claims. First, while
they “maintain Defendants did not follow a prudent process
for selecting and monitoring the Plan’s investment options,”
they did not cite to any facts that specifically controvert
those Defendants included in their statement of material
facts related to the investment selection process. (Id.).
Thus, the Court deems admitted all such facts. See (Doc. # 42
at 3) (“In deciding a motion for summary judgment, the Court

will deem admitted any fact in the statement of material facts
36
that the opposing party does not specifically controvert,
provided record evidence supports the moving party’s
statement.”).
Second, there is substantial evidence that Defendants
prudently monitored the Plan during the class period. The RC
regularly met, received detailed reports regarding the
performance of Plan investments, and discussed which funds
should be included in the Plan. (Doc. # 92-5 at 17-78; Doc.
# 92-6 at 1-291). Again, even if the evidence was not

indicative of prudence, Plaintiffs’ failure to present
evidence of a loss stemming from such alleged imprudence is
fatal to their claims. See Pizarro, 2022 WL 4687096, at *24
(granting summary judgment in favor of defendants where “even
assuming an imprudent monitoring process, Plaintiffs . . .
failed to marshal evidence of loss causation”). Likely for
this reason, Plaintiffs acknowledge they are not seeking
damages related to their investment claims.
Therefore, the Court grants summary judgment in favor of
Defendants as to Plaintiffs’ investment option theories.

37
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) Defendants’ Daubert Motion (Doc. # 93) 1s GRANTED. The
Court excludes Mr. Vitagliano’s testimony.
(2) Defendants’ Motion for Summary Judgment (Doc. # 92) is
GRANTED.
(3) The Clerk is directed to enter judgment in favor of
Defendants and against Plaintiffs.
(4) Thereafter, the Clerk is directed to terminate all
pending motions and deadlines and CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of April, 2023.

VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE

38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112777. Public record. Not legal advice.