# SMITH v. SHOE SHOW, INC.

> District Court, M.D. North Carolina · February 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10254122

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 25, 2022
- **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/10254122

## How later opinions describe it (automated extraction)

- finding burden on the defendants to establish “reasonable compensation” exemption to a prohibited transaction claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SARAH SMITH, MICHAEL CRISCO, )
and JEFFREY MORROW, )
individually and as )
representatives of a class of )
similarly situated persons, )
)
Plaintiffs, )
)
v. ) 1:20CV813
)
SHOE SHOW, INC.; BOARD OF )
TRUSTEES OF SHOE SHOW )
RETIREMENT SAVINGS PLAN; JOHN )
VAN DER POEL, ROBERT TUCKER, )
and LISA TUCKER, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before the court is a Motion to Dismiss
Plaintiffs’ Complaint under Federal Rule of Civil Procedure
12(b)(6) filed by Defendants Shoe Show, Inc., Board of Trustees
of Shoe Show Retirement Savings Plan, John Van Der Poel, Robert
Tucker, and Lisa Tucker (together, “Defendants”). (Doc. 11.)
Individually and as representatives of a class of similarly
situated persons, Plaintiffs Sarah Smith, Michael Crisco, and
Jeffrey Morrow (together, “Plaintiffs”) responded in opposition.
(Doc. 20.) Defendants filed a reply. (Doc. 22.)
For the reasons set forth herein, this court will grant in
part and deny in part Defendants’ Motion to Dismiss. This court
will dismiss some of the claims asserted under Count I, dismiss
the entirety of Count II, and decline to dismiss Count III.
I. FACTUAL BACKGROUND
On a motion to dismiss, a court must “accept as true all of
the factual allegations contained in the complaint . . . .” Ray
v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (internal quotation
marks omitted) (quoting King v. Rubenstein, 825 F.3d 206, 212

(4th Cir. 2016)). The facts, taken in the light most favorable
to Plaintiffs, are as follows.
Defendant Shoe Show, Inc. (“Shoe Show”), a footwear
retailer with over 1,100 stores across forty-seven states,
sponsors a tax-qualified, defined contribution retirement plan
(the “Plan”) for eligible current and former employees. (Compl.
– Class Action (“Compl.”) (Doc. 1) ¶¶ 15-19, 21.)1 This type of
plan, commonly referred to as a 401(k), allows participants to
direct their retirement savings contributions into various
investment fund options offered by the Plan. (Id. ¶ 1.) The Plan
is “relatively large,” (id. ¶ 106), with over 1,500 participants

1 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
and total assets over $40 million, (Ex. F, 2019 Form 5500
(Excerpts) (Doc. 12-6) at 3, 5).2 Plaintiffs are former Plan
participants. (Compl. (Doc. 1) ¶¶ 10-12.) Defendants are Plan
fiduciaries and responsible for its administration. (Id. ¶¶ 2-3,
22-28, 29.) During the relevant time period, MassMutual served
as the Plan’s recordkeeper and was responsible for tracking “who
[wa]s in the plan, what they own[ed], and what money [wa]s going
in and out.” (Id. ¶¶ 28, 47.)
Plaintiffs allege that since 2014, Defendants have been in

violation of the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001, et seq., by breaching their
fiduciary duties and engaging in prohibited transactions with a
party in interest. (Compl. (Doc. 1) ¶¶ 9, 188-229.) Plaintiffs’

2 Even though Plaintiffs have not attached the Plan’s Form
5500 annual report filings to their Complaint, there are two
reasons why this court may consider them at the motion to
dismiss stage. First, the filings are “integral to and
explicitly relied on in the [C]omplaint and . . . [P]laintiffs
do not challenge [their] authenticity.” Phillips v. LCI Int’l,
Inc., 190 F.3d 609, 618 (4th Cir. 1999). Indeed, Plaintiffs’
Complaint references the Form 5500s repeatedly. (E.g., Compl.
(Doc. 1) ¶¶ 2, 4, 20, 61, 97.) Second, the filings may be
considered because “[i]n reviewing a Rule 12(b)(6) dismissal,
[courts] may properly take judicial notice of matters of public
record.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009). Here, the Form 5500s are unquestionably matters
of public record. They are filed with the United States
Department of Labor and are publicly available online. U.S.
Dep’t of Labor, Form 5500 Search, EFAST, https://www.efast.dol.
gov/5500search/ (last visited Feb. 22, 2022) (enter “Shoe Show,
Inc.” in “Sponsor Name” field).
factual foundation for these claims rests on Defendants’: (1)
failure to limit MassMutual’s fees, (2) failure to offer the
most affordable share classes, (3) failure to offer passive
funds, and (4) failure to diversify the Plan’s equity funds.
(Id. ¶¶ 94-169.) These factual allegations are described in
greater detail in Part IV’s analysis, infra.
II. PROCEDURAL BACKGROUND
Plaintiffs filed their Complaint on September 3, 2020.
(Compl. (Doc. 1).) Plaintiffs assert three ERISA counts:

(I) breach of the fiduciary duties of prudence, monitoring,
loyalty, and the obligation to act in accordance with Plan
documents and instruments; (II) breach of the fiduciary duties
of prudence and diversification, and (III) prohibited
transactions with a party in interest. (Id. ¶¶ 188-229.)
Defendants filed a Motion to Dismiss Plaintiffs’ Complaint on
November 16, 2020, (Doc. 11), along with an accompanying
Memorandum, (Mem. of Law in Supp. of Defs.’ Mot to Dismiss Pls.’
Compl. (“Defs.’ Br.”) (Doc. 12)). Plaintiffs responded in
opposition, (Resp. in Opp’n to Defs.’ Mot to Dismiss (“Pls.’
Br.”) (Doc. 20)), and Defendants replied, (Defs.’ Reply in Supp.

of Mot. to Dismiss Pls.’ Compl. (“Defs.’ Reply”) (Doc. 22)).
Plaintiffs then filed a notice of subsequently decided authority
regarding the United States Supreme Court’s ruling in Hughes v.
Northwestern University, 142 S. Ct. 737 (2022). (Doc. 25.)
Additionally, Plaintiffs have filed a Motion for Class
Certification and Appointment of Fitzgerald Law as Class
Counsel, (Doc. 16), along with an accompanying Memorandum,
(Doc. 17). This court postponed further briefing on and
determination of Plaintiffs’ Motion for Class Certification
“until further order of this court.” (Doc. 21 at 2.) Because
this Memorandum Opinion and Order will grant in part and deny in

part Defendants’ Motion to Dismiss, this court finds that it is
now appropriate for briefing on Plaintiffs’ Motion for Class
Certification to proceed. This court will order the parties to
propose a briefing schedule in their Federal Rule of Civil
Procedure 26(f) report to this court.
III. STANDARD OF REVIEW
“To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged” and
demonstrates “more than a sheer possibility that a defendant has
acted unlawfully.” Id. When ruling on a motion to dismiss, this
court accepts the complaint’s factual allegations as true. Id.
Further, this court liberally construes “the complaint,
including all reasonable inferences therefrom . . . in the
plaintiff’s favor.” Est. of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004). This court does not, however, accept legal conclusions as
true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
IV. ANALYSIS
Plaintiffs advance three ERISA counts: (I) breach of the
fiduciary duties of prudence, monitoring, loyalty, and the
obligation to act in accordance with Plan documents and
instruments; (II) breach of the fiduciary duties of prudence and
diversification; and (III) prohibited transactions with a party
in interest. (Compl. (Doc. 1) ¶¶ 188-229 (citing 29 U.S.C.
§§ 1104(a)(1), 1106(a)(1)).) All three counts are predicated on
allegations that the Plan is governed by ERISA and Defendants

are Plan fiduciaries. (E.g., id. ¶¶ 15, 190, 210, 219.)
Defendants do not contest these threshold elements. Instead,
they focus on each count’s substance. As to Counts I and II,
Defendants argue that Plaintiffs have failed to plausibly allege
any fiduciary breach occurred. (Defs.’ Br. (Doc. 12) at 15-31,
35-41.) As to Count III, Defendants argue that MassMutual’s fee
arrangement is statutorily exempted from ERISA’s prohibited
transaction provision. (Id. at 32-35.)
A. Count I: Prudence, Monitoring, Loyalty, and Acting in
Accordance with Plan Documents and Instruments

Count I alleges Defendants violated ERISA by breaching
their fiduciary duties of (1) prudence, (2) monitoring,
(3) loyalty, and (4) obligation to act in accordance with plan
documents and instruments. (Compl. (Doc. 1) ¶¶ 188-208 (citing
29 U.S.C. § 1104(a)(1)(A)-(B), (D)).) These “fiduciary
obligations of the trustees to the participants and
beneficiaries of [an ERISA] plan are . . . the highest known to
the law.” Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 356
(4th Cir. 2014) (alterations in original) (internal quotation
marks omitted) (quoting Donovan v. Bierwirth, 680 F.2d 263, 272
n.8 (2d Cir. 1982)). Each fiduciary duty is addressed in turn.
1. Duty of Prudence
ERISA’s duty of prudence requires that plan fiduciaries act
“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.” 29
U.S.C. § 1104(a)(1)(B). “The primary question is whether the
fiduciary, ‘at the time [it] engaged in the challenged
transactions, employed the appropriate methods to investigate
the merits of the investment’” or the merits of a third-party
service provider’s proposed fees and services. Reetz v. Lowe’s
Cos., Inc., Civil Action No. 5:18-CV-00075-KDB-DCK, 2021 WL
4771535, at *53 (W.D.N.C. Oct. 12, 2021) (alteration in
original) (quoting DiFelice v. U.S. Airways, Inc., 497 F.3d 410,
420 (4th Cir. 2007)).

In Count I, Plaintiffs allege Defendants imprudently failed
to (1) limit MassMutual’s fees, (2) offer funds utilizing the
most affordable share classes, and (3) offer passive funds.
(Compl. (Doc. 1) ¶¶ 191, 200.) Courts in this circuit have found
similar factual allegations sufficiently alleged ERISA
imprudence claims. See e.g., Jones v. Coca-Cola Consol., Inc.,
No. 3:20-cv-00654-FDW-DSC, 2021 WL 1226551, at *4 n.3 (W.D.N.C.
Mar. 31, 2021) (“Alleging that excessively high fees were
charged to plan participants can independently constitute a
breach of one’s dut[y] of prudence . . . under ERISA.”); Kruger
v. Novant Health, Inc., 131 F. Supp. 3d 470, 478 (M.D.N.C. 2015)

(“[The] present [p]laintiffs have stated enough of a claim for
breach of fiduciary duty to survive Defendants’ motion to
dismiss based on the imprudent retention of the retail class
funds when institutional class shares were available.”); Dearing
v. IQVIA, Inc., No. 1:20CV574, 2021 WL 4291171, at *2 (M.D.N.C.
Sept. 21, 2021) (declining to dismiss the plaintiffs’
allegations that the “[d]efendants’ decision to add the Active
[fund] suite over the Index [fund] suite, and their failure to
replace the Active suite with the Index suite at any point
during the Class Period, constitute[d] a glaring breach of their
fiduciary duties.”).
a. Failure to Limit MassMutual’s Fees

Plaintiffs allege that MassMutual, the Plan’s recordkeeper,
“received handsome compensation, much higher than what Shoe Show
could have easily negotiated, which ultimately the Plan’s
participants, including the class representatives, paid.”3
(Compl. (Doc. 1) ¶¶ 93, 96; accord id. ¶¶ 191(C), 191(E),
200(C).) MassMutual was compensated via a practice known as
“revenue sharing,” meaning it received “asset based
compensation, not fixed dollar or per head pay.” (Id. ¶¶ 59,
101.) Therefore, when the Plan’s “assets grew, so did
MassMutual’s effective earnings even though its duties and
accounting costs did not grow in proportion.” (Id. ¶ 102.)

3 Plaintiffs level similar overpayment allegations against
LPL Financial (Id. ¶¶ 109–11.)
Plaintiffs argue that Defendants should have used “the
Plan’s increasing size and long-standing relationship [with
MassMutual] as bargaining power to reduce the participants’
recordkeeping fee.” (Id. ¶ 104.) Specifically, Defendants
“should have required MassMutual to charge a flat fee, such as
$60 at the most, for each participant to reflect the actual cost
of recordkeeping.” (Id. ¶ 106.) Defendants discarding revenue
sharing would be in accordance “with the consistent [industry]
trend of not utilizing investment revenue to pay fees.” (Id.

¶ 158(A) (internal quotation marks omitted) (quoting the
Deloitte Defined Contribution Benchmarking Survey, 2019
edition)4.) At a minimum, Plaintiffs argue Defendants should have
hired a consultant to benchmark the Plan’s administrative costs
or “engaged in an objective, competitive process to hire the
lowest cost” recordkeeper. (Id. ¶¶ 197-98.)

4 Defendants argue that Plaintiffs’ references to the
Deloitte and NEPC publications are “inapposite” because the
plans those publications studied were significantly larger, had
higher participant account balances, and greater employee
participation than the Plan here. (Defs.’ Br. (Doc. 12) at 34
n.6.) Nevertheless, when adjudicating Defendants’ Motion to
Dismiss, this court must liberally construe “the [C]omplaint,
including all reasonable inferences therefrom,” in Plaintiffs’
favor. Est. of Williams-Moore, 335 F. Supp. 2d at 646.
Therefore, this court reserves judgment as to whether the
publications’ survey samples are too dissimilar from the Plan to
serve as useful benchmarks.
“A plaintiff raising an excessive fee claim under ERISA
must allege ‘that fees were excessive related to the services
rendered.’” Kendall v. Pharm. Prod. Dev., LLC, No. 7:20-CV-71-D,
2021 WL 1231415, at *11 (E.D.N.C. Mar. 31, 2021) (quoting Young
v. Gen. Motors Inv. Mgmt. Corp., 325 F. App’x 31, 33 (2d Cir.
2009)). Moreover, a “plan fiduciary’s failure to reduce
recordkeeping costs through negotiation or the solicitation of
competing bids may in some cases breach the duty of prudence.”
Id. at *10 (internal quotation marks omitted) (quoting Silva v.

Evonik Corp., CV No. 20-2202, slip op. at 8 (D.N.J. Dec. 30,
2020) (unpublished)).
Plaintiffs have sufficiently and plausibly alleged that
MassMutual’s fees were excessive compared to the services it
provided. (E.g., Compl. (Doc. 1) ¶¶ 94, 102 (“Defendants allowed
excessive compensation to be paid to providers such as . . .
MassMutual over the years” because when the Plan’s “assets grew,
so did MassMutual’s effective earnings even though its duties
and accounting costs did not grow in proportion.”).) Likewise,
Plaintiffs have sufficiently and plausibly alleged that
Defendants failed to reduce recordkeeping costs via negotiation

or solicitation of competing bids. (E.g., id. ¶¶ 93, 191(E)
(Defendants never “negotiat[ed] with service providers to lower
costs” or “put the Plan’s recordkeeping contract up for bid to
cause MassMutual to competitively bid for Shoe Show’s work.”);
accord e.g., id. ¶ 198.)
Defendants argue that the Plan’s asset pool was too small
to confer enough bargaining power for Defendants to renegotiate
MassMutual’s revenue sharing fee arrangement. (Defs.’ Br.
(Doc. 12) at 27-28.) They stress that the Plan’s approximately
$40 million asset pool makes it of “relatively small size,”
compared to what is usually seen in ERISA cases. (Id. at 19, 28;
Defs.’ Reply (Doc. 22) at 13-14 (“Shoe Show’s Plan is only 3%

the size of Novant’s plan, and less than 0.5% the size of Wal-
Mart’s plan. Plaintiffs’ implication that Shoe Show similarly
enjoys the bargaining leverage of a Novant or Wal-Mart is not a
‘close call’—it is implausible on its face. Moreover, none of
the other cases cited in Plaintiffs’ brief involved 401(k) plans
near as small as Shoe Show’s Plan. The smallest plan at issue
was $500 million, still more than ten times larger than Shoe
Show’s Plan.” (internal citations omitted)).)
Defendants’ argument raises factual questions and is thus
premature. While the Plan’s asset pool may be significantly
smaller than those in other cases, at this preliminary juncture

it cannot be determined that—as a matter of law—a $40 million
asset pool fails to confer a plan with sufficient bargaining
power to renegotiate a recordkeeper’s revenue sharing fee
structure. At the motion to dismiss stage, this court must
accept the Complaint’s factual allegations (not Defendants’
allegations) as true. Iqbal, 556 U.S. at 678. The Complaint
alleges that the Plan is “relatively large,” bestowing upon
Defendants significant “bargaining power to reduce the
participants’ recordkeeping fee.” (Compl. (Doc. 1) ¶¶ 104, 106.)
Given that these allegations must be taken as true, this court
declines at this time to find that the Plan’s asset pool was too
small for Defendants to negotiate lower fees from MassMutual.

Defendants also argue that even if the Plan was large
enough to allow MassMutual’s fee arrangement to be renegotiated,
the Plan would not have been better served by replacing revenue
sharing with a flat fee per participant structure. (Defs.’ Br.
(Doc. 12) at 27.) Defendants insist that because Plaintiffs have
failed to allege “that any fees not paid through revenue sharing
would have been paid instead by Shoe Show,” “abandoning revenue
sharing would . . . [simply] redirect administrative costs to be
borne by the Plan.” (Id. at 25, 27.) This argument does not
rebut Plaintiffs’ imprudence claim. Insofar as that claim,
Plaintiffs do not allege that forgoing revenue sharing would

necessarily shift the fee burden to Defendants from participants
or the Plan itself. Rather, Plaintiffs acknowledge that even if
revenue sharing is replaced by direct fees, the Plan may still
be responsible for those fees. (Compl. (Doc. 1) ¶¶ 54-55 (“Fixed
dollar or per head compensation occurs when a recordkeeper or
custodian is paid a certain, set amount per participant . . . .
[These] expenses can be paid . . . directly by the plan[.]”).)
Nonetheless, Plaintiffs still argue that revenue sharing should
be discarded because they would ultimately be better served by a
flat per participant direct fee structure. (Id. ¶¶ 106, 200(B).)
Plaintiffs allege that the Plan’s current revenue sharing
arrangement charges participants $219 in annual fees, a

“windfall” for MassMutual given that the industry fee average is
far lower. (Id. ¶¶ 97, 106.) Plaintiffs also assert that among
plan fiduciaries there is a “consistent trend of not utilizing
investment revenue to pay fees.” (Id. ¶ 158(A) (internal
quotation marks omitted) (quoting the Deloitte Defined
Contribution Benchmarking Survey, 2019 edition); accord id.
¶ 57.) Given these allegations—which must be taken as true at
this juncture, Iqbal, 556 U.S. at 678—Plaintiffs’ claim that
Defendants imprudently failed to require “MassMutual to charge a
flat fee, such as $60 at the most, for each participant to
reflect the actual cost of recordkeeping,” (id. ¶ 106), passes

“across the plausibility line, and the court allows
[P]laintiffs’ claim of imprudence regarding recordkeeping fees
to proceed.” Kendall, 2021 WL 1231415, at *10-11 (allowing an
ERISA excessive recordkeeping fee imprudence claim to proceed
where a revenue sharing arrangement allegedly cost participants
between $54 and $143 annually).
b. Failure to Offer Funds Utilizing the Most
Affordable Share Classes

Plaintiffs allege that “Defendants continually imprudently
limited their participants’ choices to high-cost retail share
classes of funds.” (Compl. (Doc. 1) ¶ 115; accord id. ¶ 191(A).)
Plaintiffs explain that “[t]he only difference between retail
and institutional funds is that the institutional funds are less
expensive to the participants.” (Id. ¶ 114 (emphasis in
original).) Plaintiffs maintain that Defendants “did not even
ask MassMutual for institutional funds,” even though MassMutual
would be “willing, particularly given the size of the Plan, to
offer institutional funds and even to waive minimum purchase
amounts for institutional funds when asked.” (Id. ¶ 118.)
While Plaintiffs acknowledge that in 2018 “Defendants
replaced some share classes in the Plan with slightly less
costly classes,” Plaintiffs assert these new classes were still
“not the lowest cost options”; rather, “they were also
unnecessarily expensive and detrimental to the Plan’s
participants.” (Id. ¶ 133.) Plaintiffs question why when
Defendants replaced these share classes, they did not choose
funds with even cheaper classes that the Plan qualified for.
(Id. ¶¶ 134-42.) Defendants’ failure to “pick up the phone and
call MassMutual and demand the exact same fund with a lower cost
structure” “caused inferior performance for the Plan . . . as
well as the participants en masse.” (Id. ¶ 143.)
In Tibble v. Edison International, 575 U.S. 523 (2015), the
plaintiffs made similar allegations to Plaintiffs here. The
Tibble plaintiffs alleged that their plan fiduciaries had
offered “higher priced retail-class mutual funds as Plan
investments when materially identical lower priced

institutional-class mutual funds were available.” Id. at 525–26.
In remanding the case for further findings, the Supreme Court
held that the plaintiffs had identified a potential violation
with respect to these funds because “[a] plaintiff may allege
that a fiduciary breached the duty of prudence by failing to
properly monitor investments and remove imprudent ones.” Id. at
530. But importantly, “‘merely alleging that a plan offered
retail rather than institutional share classes is insufficient
to carry a claim for fiduciary breach.’ In analyzing alleged
lower cost alternatives, a court should consider ‘whether the
[more expensive] class share offered other benefits that may

have offset any additional costs.’” Kendall, 2021 WL 1231415, at
*7 (internal citations omitted) (quoting Marks v. Trader Joe’s
Co., No. CV19-10942 PA (JEMx), 2020 WL 2504333, at *8 (C.D. Cal.
Apr. 24, 2020)). If there are no other benefits, but instead the
lower cost alternatives are identical, then a plausible breach
of a plan fiduciary’s duty of prudence has been alleged. Jones,
2021 WL 1226551, at *5 (“Plaintiffs’ factual allegations
regarding Defendants’ alleged failure to utilize cheaper
investments that offer identical underlying investments [such as
cheaper share classes] sufficiently states a claim for breach of
fiduciary duty.”).
Here, Plaintiffs have alleged sufficient facts that

Defendants breached their duty of prudence by offering funds
featuring overly expensive retail share classes. Plaintiffs have
alleged that Defendants offered funds with share classes that
are composed of “the exact same” underlying investments as funds
with “lower cost structure[s].” (Compl. (Doc. 1) ¶ 143.) These
allegations plausibly suggest that Defendants have failed to
properly monitor the Plan’s investments and remove imprudent
funds. Tibble, 575 U.S. at 528. Defendants have not provided any
credible explanation justifying the more expensive share
classes. Defendants argue that the Plan’s more expensive retail
share classes are “meaningfully different” from the less

expensive classes because the cheaper “institutional share
classes do not enable Plan administrative expenses to be paid
through revenue sharing.” (Defs.’ Br. (Doc. 12) at 20-21
(emphasis in original).) But, per Plaintiffs’ allegations,
revenue sharing is not a benefit—it is a detriment, see supra
Part IV.A.1.a, and at the motion to dismiss stage Plaintiff’s
allegations are assumed to be true. Defendants also maintain
that the Plan was too small “to negotiate for less expensive
institutional share classes.” (Defs.’ Br. (Doc. 12) at 20.) This
argument fails for the same reason it failed regarding
Defendants’ ability to negotiate lower recordkeeping fees. See
supra Part IV.A.1.a. It raises a factual dispute that at this

juncture must be decided in favor of Plaintiffs’ averments to
the contrary. Therefore, Plaintiffs plausible allegations that
Defendants selected unnecessarily expensive share classes for
the Plan suffice to state an imprudence claim.
c. Failure to Offer Passively Managed Funds

Plaintiffs allege that “Defendants had the option and
ability to obtain passive . . . funds [also known as index
funds], which would be unequivocally better for the
participants, but they failed to do so.” (Id. ¶ 129; accord id.
¶¶ 79, 191(B).) Instead, “Defendants only offer[ed] actively
managed funds in the plan,” (id. ¶ 124), which “are typically
much more expensive than index funds,” (id. ¶ 81). Plaintiffs
question whether this added expense is worthwhile, using one of
the Plan’s underperforming active funds to support the
proposition that “80% or more of active managers across all
categories underperformed their respective benchmarks.” (Id.
¶¶ 80, 151 (internal quotation marks omitted) (quoting S&P Dow
Jones Scorecard).) Given this persistent underperformance,
Plaintiffs allege that plan fiduciaries are increasingly turning
to index funds. (Id. ¶ 159(C).)
While this court and others in this circuit have allowed
imprudence allegations based on the use of active rather than
passive funds to survive motions to dismiss, to do so a

plaintiff must identify passive funds that can serve as a
meaningful benchmark to a plan’s active funds. See e.g.,
Dearing, 2021 WL 4291171, at *2 (alleging that the passive funds
the defendants should have selected and the active funds the
defendants had selected were “similar in many ways—they [we]re
offered by the same investment management company, they share[d]
a management team, and appear[ed] to have near identical asset
allocation strategies”); Kendall, 2021 WL 1231415, at *9
(holding that if “actively-and passively-managed funds can be
compared, [a] complaint . . . [must] contain a meaningful
benchmark”).

Here, Plaintiffs have failed to identify a meaningful
benchmark that could support the Complaint’s conclusory
allegations. They simply broadly assert that replacing the
Plan’s costly active funds with cheaper passive funds would be
“unequivocally better” for plan participants, (Compl. (Doc. 1)
¶ 128), but Plaintiffs never specify exactly which particular
passive funds should be added or why those funds can serve as
meaningful benchmarks to the Plan’s active funds. In lieu of
such allegations, Plaintiffs have failed to plead sufficient
facts to plausibly allege Defendants’ failure to offer passive
funds was imprudent.
2. Duty to Monitor

“A claim for the failure to monitor derives from and
depends on an ‘underlying breach of fiduciary duty cognizable
under ERISA.’” Kendall, 2021 WL 1231415, at *11 (quoting In re
Duke Energy ERISA Litig., 281 F. Supp. 2d 786, 795 (W.D.N.C.
2003)). Thus, the “duty to monitor claim is only as broad as the
surviving prudence claim and is otherwise dismissed.” Id. at *12
(internal quotation marks omitted) (quoting Cunningham v.
Cornell Univ., No. 16-cv-6525 (PKC), 2017 WL 4358769, at *11
(S.D.N.Y. Sept. 29, 2017)). Because this court has found
Plaintiffs’ excessive fee and share class allegations state
plausible imprudence claims, supra Parts IV.A.1.a-b, Plaintiffs’

monitoring claim survives as well. The duty to monitor requires
that plan fiduciaries “‘systematic[ally] conside[r] all the
investments . . . at regular intervals’ to ensure that they are
appropriate.” Tibble, 575 U.S. at 529 (quoting A. Hess, G.
Bogert, & G. Bogert, Law of Trusts and Trustees § 684, at 145–46
(3d ed. 2009)). In short, “a fiduciary is required to conduct a
regular review of its investment.” Id. at 528.
Plaintiffs allege Defendants breached this duty “to monitor
and control investment and administrative costs on an ongoing
basis” because Defendants failed to take steps “such as hiring a
consultant to conduct a benchmarking study” and “conduct[ing] a
prudent and objective review of the Plan’s investments.” (Compl.

(Doc. 1) ¶¶ 200(E), 204.) Defendants respond that this alleged
failure to monitor is contradicted by the Plan’s Form 5500
filings and Plaintiffs’ own allegations, which show that
Defendants periodically changed the Plan’s funds—evincing
adequate monitoring. (Defs.’ Br. (Doc. 12) at 30-31.) But
Plaintiffs’ factual allegations about these changes cast them in
a different light. Plaintiffs argue that it was not until 2018
that Defendants replaced several expensive share classes with
cheaper identical classes, suggesting that Defendants must not
have been “monitor[ing] the fee structures of the Plan until
that time.” (Compl. (Doc. 1) ¶ 152.) Thus, for the first four

years of the class period, (id. ¶ 9), Defendants allegedly
failed to monitor the Plan. Because when adjudicating motions to
dismiss this court makes “all reasonable inferences . . . in the
plaintiff’s favor,” Est. of Williams-Moore, 335 F. Supp. 2d at
646, this court must defer to Plaintiffs’ description of the
2018 Plan changes. Therefore, Plaintiffs have alleged sufficient
facts to state a plausible monitoring claim.
3. Duty of Loyalty
ERISA’s duty of loyalty requires that a plan fiduciary
“discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries and . . . for the
exclusive purpose of: (i) providing benefits to participants and

their beneficiaries; and (ii) defraying reasonable expenses of
administering the plan.” 29 U.S.C. § 1104(a)(1)(A). “To state a
claim for breach of the duty of loyalty, plaintiffs must
plausibly allege that the [defendants] acted with the purpose of
benefitting itself or a third party.” Kendall, 2021 WL 1231415,
at *11. These allegations “must do more than simply recast
purported breaches of the duty of prudence as disloyal acts.”
Id. (internal quotation marks omitted) (quoting Sacerdote v.
N.Y. Univ., No. 16-cv-6284 (KBF), 2017 WL 3701482, at *5
(S.D.N.Y. Aug. 25, 2017)) (“Specifically, prudence claims
regarding recordkeeping may not simply be repackaged as a

disloyalty claim without additional allegations.”). Rather,
disloyalty allegations must “must contain independent facts
‘suggesting [that] Defendant benefitted, financially or
otherwise, from any decisions related to the Plan[] or engaged
in disloyal conduct in order to benefit itself or someone other
than the Plan[’s] beneficiaries.’” Id. (alterations in original)
(quoting Nicolas v. Trs. of Princeton Univ., No. 17-3695, 2017
WL 4455897, at *3 (D.N.J. Sept. 25, 2017)).
Plaintiffs allege Defendants breached their duty of loyalty
by “[f]ailing to act ‘solely and exclusively’ for the benefit of
participants by selecting and retaining investments in the Plan
. . . because they would generate more revenue for MassMutual

and therefore, the Defendants would not receive an invoice for
recordkeeping.” (Compl. (Doc. 1) ¶ 200(A).) Plaintiffs assert
Defendants’ desire to relieve pressure off themselves to pay
MassMutual’s fees was Defendants’ motivation in selecting the
Plan’s higher price active funds and share classes. (Id. ¶ 127.)
This is rank speculation and does not raise more than a
“sheer possibility,” Iqbal, 556 U.S. at 678, that Defendants
actually had these disloyal motivations, see, e.g., Brotherston
v. Putman Invests., LLC, 907 F.3d 17, 40-41 (1st Cir. 2018) (To
establish disloyalty it must be shown that a “fiduciary’s
operative motive was to further its own interests.” (internal

quotation marks omitted) (quoting Ellis v. Fid. Mgmt. Tr. Co.,
883 F.3d 1, 6 (1st Cir. 2018))). Plaintiffs have failed to
provide any “independent facts” or “additional allegations,”
Kendall, 2021 WL 1231415, at *11, to support the disloyalty
claim and distinguish it from the imprudence claim. Instead,
Plaintiffs “simply recast,” id., the facts underlying the
imprudence claim—namely, that Defendants offered unnecessarily
expensive active funds and share classes—and speculate that
these facts make it “possible” Defendants “potentially had an
incentive” to “push costs to its workers” to “relieve[] pressure
on the recordkeeper to charge Shoe Show fees directly.” (Compl.
(Doc. 1) ¶¶ 120-21, 127.) These allegations concerning

Defendants’ “possible” and “potential” motives, (id. ¶¶ 120,
127), do not rise to the level of plausibility necessary to
state a disloyalty claim.
Further undermining the disloyalty claim is that Plaintiffs
never allege Defendants would have necessarily paid any
increased fees that MassMutual would have demanded if the Plan
transitioned to cheaper share classes or passive funds. Contra
Kruger, 131 F. Supp. 3d at 479 n.9 (The plaintiffs alleged the
defendants “repeatedly represented that the administrative costs
of the Plan would not be paid by the Plan itself,” thus
indicating that the defendants would pay any increased fees

imposed by the recordkeeper.). Instead, it seems just as likely—
perhaps more so—that Defendants would push those new fees back
on participants by having the Plan pick up the increased tab.
Plaintiffs expressly acknowledge that this is an option by
explaining that ERISA plan administrative expenses do not have
to be either “paid directly by employers” or paid via “revenue
sharing,” but rather can also be paid “directly by the plan.”
(Compl. (Doc. 1) ¶ 55.) Consequently, there is no reason to
believe that in this case Defendants were selecting more
expensive funds to relieve pressure off themselves to have to
pay MassMutual’s fees. Even if Defendants had selected cheaper
funds and as a result MassMutual demanded greater fees to make

up for the lost revenue, the Complaint fails to plausibly allege
that those new fees would be shouldered by Defendants as opposed
to the Plan itself. Therefore, Plaintiffs have failed to plead
sufficient facts to state a plausible disloyalty claim, and the
portions of Count I that attempt to assert such a claim will be
dismissed.
4. Duty to Act in Accordance with Plan Documents and
Instruments

ERISA requires that plan fiduciaries act “in accordance
with the documents and instruments governing the plan.” 29
U.S.C. § 1104(a)(1)(D). “ERISA’s ‘statutory scheme . . . is
built around reliance on the face of written plan documents,’”
Jordan v. MEBA Pension Tr., No. ELH-20-3649, 2021 WL 4148460, at
*9 (D. Md. Sept. 10, 2021) (alteration in original) (quoting
U.S. Airways, Inc. v. McCutchen, 569 U.S. 88, 100 (2013)), and
thus plan fiduciaries must administer the Plan in accordance
with the “literal and natural meaning” of Plan documents’ “plain
language,” United McGill Corp. v. Stinnett, 154 F.3d 168, 172
(4th Cir. 1998) (internal quotation marks omitted) (quoting
Health Cost Controls v. Isbell, 139 F.3d 1070, 1072 (6th Cir.
1997)).
Plaintiffs insist that “Defendants violated their own plan
documents” by failing to adhere to “MassMutual’s investment
policy.” (Compl. (Doc. 1) ¶ 148; accord id. ¶¶ 149, 168-69,

204.) Plaintiffs’ Complaint, after alleging that the Plan’s
investment options were too expensive and insufficiently
diversified, recites MassMutual’s investment policy and then
declares—in rather conclusory fashion—that “Defendants’ actions
did not meet this policy.” (Id. ¶ 169.) Thus, “Defendants
violated . . . [t]he ERISA statute [which] requires fiduciaries
to act ‘in accordance with the documents and instruments
governing the plan.’” (Id. ¶ 149 (quoting 29 U.S.C. §
1104(a)(1)(D)).)
These allegations amount to “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory

statements.” Iqbal, 556 U.S. at 678. Moreover, it appears that
MassMutual’s investment policy, which Defendants have allegedly
violated, is simply a “recommended” policy. (Compl. (Doc. 1)
¶ 168.) Indeed, the policy uses non-binding language. (Id. ¶ 169
(“The policy states: ‘The Plan intends to provide . . . . Major
asset classes to be offered may include . . . .’”) (emphases
added); id. ¶ 148(A) (“The particular investments should pursue
the following standards . . . .”) (emphasis added).)
However, this court remains mindful
of the practical context of ERISA litigation. No
matter how clever or diligent, ERISA plaintiffs
generally lack the inside information necessary to
make out their claims in detail unless and until
discovery commences. Thus, while a plaintiff must
offer sufficient factual allegations to show that he
or she is not merely engaged in a fishing expedition
or strike suit, [courts] must also take account of
their limited access to crucial information. If
plaintiffs cannot state a claim without pleading facts
which tend systemically to be in the sole possession
of defendants, the remedial scheme of the statute will
fail, and the crucial rights secured by ERISA will
suffer. These considerations counsel careful and
holistic evaluation of an ERISA complaint’s factual
allegations before concluding that they do not support
a plausible inference that the plaintiff is entitled
to relief.

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598 (8th Cir.
2009); accord Reetz v. Lowe’s Cos., Inc., Civil Action No. 5:18-
CV-00075-KDB-DCK, 2019 WL 4233616, at *3 (W.D.N.C. Sept. 6,
2019). Plaintiffs’ failure to sufficiently state a plausible
claim for failure to act in accordance with plan documents and
instruments may possibly be a result of this “limited access to
crucial information . . . which tend[s] systemically to be in
the sole possession of defendants.” Braden, 588 F.3d at 598.
Plaintiffs seem to admit as much; they state that “[o]nce
Plaintiffs obtain the Plan’s Adoption Agreement,” and other Plan
documents, “a more formal and precise list of . . . breaches
can be asserted.” (Compl. (Doc. 1) ¶ 202.)
Nevertheless, despite ERISA litigation’s inherent
information asymmetries, pursuant to Iqbal, 556 U.S. at 678,
this court simply cannot allow this “threadbare” and
“conclusory” claim to proceed. Dismissal of Plaintiffs’ failure
to act in accordance with plan documents and instruments claim

is especially warranted given that the Complaint itself
acknowledges that the Plan document Defendants allegedly
violated, and the terms contained therein, were non-binding.
(See Compl. (Doc. 1) ¶¶ 148(A), 168.) Therefore, Plaintiffs have
not pled sufficient facts to state a plausible failure to act in
accordance with plan documents and instruments claim, and the
portions of Count I that attempt to assert such a claim will be
dismissed.
B. Count II: Diversification
Count II alleges that Defendants imprudently failed to
diversify the Plan’s funds.5 (Id. ¶¶ 209-17.) ERISA requires that
plan fiduciaries “diversify[] the investments of the plan so as
to minimize the risk of large losses.” 29 U.S.C.
§ 1104(a)(1)(C). A failure to diversify can lead to excessive
correlation between the plan’s funds, causing funds that “are in

the same sector . . . to rise and fall together.” Stegemann v.
Gannett Co., 970 F.3d 465, 478 (4th Cir. 2020). “[T]he essence
of diversification is that a diversified portfolio is superior
to a non-diversified portfolio because a diversified portfolio
can achieve the same expected return as an un-diversified
portfolio, but the diversified portfolio will be less risky.”
Id. at 481.
Plaintiffs allege that the portfolio of funds “Defendants
selected provided little diversification among the equity
funds.” (Compl. (Doc. 1) ¶ 167.) For example, the Plan “lacked a

5 Count II advances both an ERISA imprudence claim and an
ERISA diversification claim. (Compl. (Doc. 1) at 59 (“COUNT II
VIOLATION OF ERISA §§ 404(a)(1)(B) and (C) BREACH OF DUTIES OF
PRUDENCE AND DIVERSIFICATION”).) ERISA’s structure intertwines
these claims. Stegemann, 970 F.3d at 473 n.7 (“Between
§ 1104(a)(1)(B) and § 1104(a)(1)(C), ERISA has a somewhat
circular structure. Prudence includes diversification, and
diversification references prudence.”). Given this “overlap,”
id., this court’s analysis of Count II appropriately applies to
both claims.
basic emerging market fund or real estate fund . . . that would
have greatly helped participants diversify.” (Id. ¶ 214.)
Defendants insist this lack of diversity led to high levels of
correlation between the Plan’s equity funds, (id. ¶ 166),
leaving participants “unable to maintain a good portfolio,” (id.
¶ 215).
Plaintiffs have failed to plead sufficient facts to state a
plausible diversification claim. That the Plan lacked certain
sector-specific funds, such as an emerging market or real estate

fund, (id. ¶ 214), does not render the Plan undiversified
because ERISA “does not demand that plans offer . . . any []
particular type of investment.” Reetz, 2021 WL 4771535, at *51.
Plaintiffs themselves acknowledge “that ‘the Plan has offered
over twenty investment options,’” (Pls.’ Br. (Doc. 20) at 35-36
(quoting Defs.’ Br. (Doc. 12) at 12)), and do not contest that
the Plan’s Form 5500s show this includes
(1) a suite of lifestyle funds, each of which is “one-
stop shopping” to invest in a diversified mix of
underlying funds with exposure to bonds and equity in
a range of geographies, sectors, and market
capitalizations; (2) a balanced fund, which invests
roughly 60/40 in equities and bonds; (3) a suite of
target-date funds, each of which is a “set it and
forget it” dynamic portfolio of diversified
investments in underlying bond and equity funds in a
variety of geographies, sectors, and market
capitalizations, the allocation of which becomes more
conservative over time through retirement; (4) an
array of funds allowing for non-U.S. geographic
investment diversity, including developing and
emerging markets; (5) an array of funds allowing for
diversity based on market capitalization, including
small- and mid-cap and large-cap options; and (6) a
variety of funds offering diversified cash and cash
equivalency exposures, including diversified bond
funds and a stable value fund.

(Defs.’ Br. (Doc. 12) at 38-39 (citing the Plan’s Form 5500s,
Exs. A–F (Docs. 12-1 – 12-6)).) Thus, Plaintiffs’ insistence
that the Plan was undiversified, among equity funds or
otherwise, is a bare allegation made implausible by
uncontroverted public records.
Finally, there is no legal basis for Plaintiffs’ allegation
that Defendants breached their duty to diversify by offering
equity funds that were too correlated. In this circuit, the
correlation theory of diversification has been applied only to
plans offering multiple funds that are solely invested in a
single company’s stock. Stegemann, 970 F.3d at 478; Tatum, 855
F.3d at 566–67. Because the Plan here did not contain any of
these so-called “single-stock” funds, there is no legal
precedent for finding its equity funds too correlated—even
taking as true Plaintiffs’ allegations that “Defendants’ equity
(stock) fund[s]” feature a “>90% correlation.” (Compl. (Doc. 1)
¶ 166.) Therefore, Count II will be dismissed because it lacks
sufficient facts to state a plausible diversification claim.
C. Count III: Prohibited Transactions
ERISA prohibits plan fiduciaries from entering transactions
with a “party in interest,” which includes “a person providing
services to such plan.” 29 U.S.C. §§ 1002(14)(B), 1106(a).
Specifically, the statute requires that
(1) A fiduciary with respect to a plan shall not
cause the plan to engage in a transaction, if he
knows or should know that such transaction
constitutes a direct or indirect—

. . . .

(C) furnishing of . . . services . . . between
the plan and a party in interest;

(D) transfer to, or use by or for the benefit of
a party in interest, of any assets of the
plan.

Id. § 1106(a)(1). These prohibitions “supplement[] the
fiduciary’s general duty of loyalty to the plan’s beneficiaries
by categorically barring certain transactions deemed ‘likely to
injure the pension plan.’” Harris Tr. & Sav. Bank v. Salomon
Smith Barney, Inc., 530 U.S. 238, 241-42 (2000) (internal
citation omitted) (quoting Comm’r v. Keystone Consol. Indus.,
Inc., 508 U.S. 152, 160 (1993)). Importantly, however, a plan
fiduciary may prove a given transaction with a party in interest
is exempted from these prohibitions if it raises the affirmative
defense that the transaction was “necessary for the . . .
operation of the plan,” and “no more than reasonable
compensation [wa]s paid therefor.” 29 U.S.C. § 1108(b)(2)(A);
see also Sims v. BB&T Corp., No. 1:15-CV-732, 2018 WL 3128996,
at *11 (M.D.N.C. June 26, 2018) (“The defendants bear the burden
of establishing an exemption to a prohibited transaction.”);
Braden, 588 F.3d at 600-01 (finding burden on the defendants to
establish “reasonable compensation” exemption to a prohibited
transaction claim).
Plaintiffs allege that the Plan’s revenue sharing with
MassMutual constituted a prohibited transaction with a party in

interest. (Compl. (Doc. 1) ¶¶ 105, 219, 223.) Plaintiffs assert
that the revenue sharing fees “not only were not ‘necessary for
operation of the Plan’” but also featured “excessive
compensation constitut[ing] a direct or indirect furnishing of
services between the Plan and a party in interest for more than
reasonable compensation and a transfer of assets of the Plan to
a party in interest.” (Id. ¶ 222.)
Defendants do not contest that MassMutual is a party in
interest or that the revenue sharing arrangement falls within
the definition of a prohibited transaction; rather, Defendants
argue that the revenue sharing fees are exempted from ERISA’s

prohibited transaction provisions because “Plaintiffs have not
plausibly alleged that the compensation to services providers is
‘more than reasonable.’” (Defs.’ Br. (Doc. 12) at 33 (citing 29
U.S.C. § 1108(b)(2)).)
This argument fails. As a preliminary matter, Plaintiffs
have plausibly alleged that MassMutual’s fees are more than
reasonable. See supra Part IV.A.1.a. But such allegations are
not necessary for Plaintiffs to state a prohibited transaction
claim. All that is required are allegations that Defendants
caused the Plan to enter a transaction with a party in interest.
29 U.S.C. § 1106(a)(1); see Braden, 588 F.3d at 600-02 (In

stating a prohibited transaction claim, a plaintiff “does not
bear the burden of pleading facts showing that the revenue
sharing payments were unreasonable in proportion to the services
rendered.”). The alleged prohibited transaction’s amount only
becomes relevant when a defendant asserts the statutory
“reasonable compensation” exemption, an affirmative defense. See
Braden, 588 F.3d at 600-02 (“The statutory exemptions
established by § 1108 are defenses which must be proven by the
defendant.”); Sims, 2018 WL 3128996, at *11 (“The defendants
bear the burden of establishing an exemption to a prohibited
transaction.”).

This holds true even when, as here, a plaintiff’s
allegations explicitly address the reasonableness of the amount
of the allegedly prohibited transaction. Braden, 588 F.3d at 601
n.10 (The defendants argued that the plaintiff’s “allegations
‘put the [reasonable compensation] exemption in play’ and he
therefore must plead sufficient facts to show that the payments
were unreasonable. To the contrary, a plaintiff need not plead
facts responsive to an affirmative defense before it is
raised.”). Pursuant to Federal Rule of Civil Procedure 12(b),
only certain defenses—not including the reasonable compensation
exemption to an ERISA prohibited transaction claim—can be
asserted in a motion. All other defenses may only be asserted in

responsive pleadings. Fed. R. Civ. P. 12(b). This court is
presently adjudicating Defendants’ Motion to Dismiss, and thus
the case has yet to progress to the responsive pleading stage.
Consequently, as a matter of law, it is premature for Defendants
to assert the reasonable compensation affirmative defense.
Therefore, this court finds that Plaintiffs have sufficiently
stated a plausible prohibited transaction claim.
V. CONCLUSION
For the foregoing reasons, this court finds that Defendants’
Motion to Dismiss Plaintiffs’ Complaint, (Doc. 11), should be
granted in part and denied in part.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss

Plaintiffs’ Complaint, (Doc. 11), is GRANTED IN PART and DENIED
IN PART.
Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED
IN PART as to Count I. The Motion to Dismiss is GRANTED as to the
portions of Count I that assert an imprudence claim based on a
failure to offer passively managed funds, a disloyalty claim, and
failure to act in accordance with plan documents and instruments
claim. The remainder of the claims contained in Count I-an
imprudence claim based on a failure to limit MassMutual’s fees,
an imprudence claim based on a failure to offer funds utilizing
the most affordable share classes, anda duty to monitor claim—
are not dismissed, and Defendants’ Motion to Dismiss is DENIED as
to those claims.
Defendants’ Motion to Dismiss is GRANTED IN FULL as to Count
Il.
Defendants’ Motion to Dismiss is DENIED IN FULL as to Count
Til.
IT IS FURTHER ORDERED that briefing on Plaintiffs’ Motion
for Class Certification and Appointment of Fitzgerald Law as
Class Counsel, (Doc. 16), shall proceed. The parties are hereby
instructed to propose a briefing schedule in their Federal Rule
of Civil Procedure 26(f) report to this court.
This the 25th day of February, 2022.

LW Win L.- ehir. xt.
□ United States District Judge
=_ 36 =_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254122. Public record. Not legal advice.