LUCIANO v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA - COLLEGE RETIREMENT EQUITIES FUND (TIAA-CREF)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LORRAINE H. LUCIANO, on behalf of

herself and all others similarly situated,

Plaintiff,

Civil Action No. 15-6726 (ZNQ) (DEA)

v.

OPINION

TEACHERS INSURANCE AND

ANNUITY ASSOCIATION OF AMERICA

– COLLEGE RETIREMENT EQUITIES

FUND, et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon a Motion to Strike Class Allegations from

Plaintiff’s First Amended Complaint by Defendants Teachers Insurance and Annuity Association

of America – College Retirement Equities Fund, Teachers Insurance and Annuity Association of

America, and College Retirement Equities Fund (collectively, “Defendants” or “TIAA-CREF”).

(“Motion,” ECF No. 117.) Defendants filed a brief in support of the Motion. (“Moving Br.,” ECF

No. 125-1.) Lorraine H. Luciano (“Plaintiff”) opposed the Motion, (“Opp’n Br.,” ECF No. 124),

to which Defendants replied, (“Reply,” ECF No. 126). The Court has carefully considered the

parties’ submissions and decided the Motion without oral argument pursuant to Federal Rule of

Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, the Court will deny

the Motion.

I. BACKGROUND AND PROCEDURAL HISTORY1

This matter arises from Defendants’ treatment of defined-contribution pension benefits

allegedly payable to Plaintiff. TIAA-CREF provides retirement and savings plan design,

consultation, and administration for employee benefit plans governed by the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq. (July 29, 2016 Mem. Op. at

2, ECF No. 59.) Plaintiff’s husband, James Rosso (“Mr. Rosso”), was employed by Educational

Testing Service (“ETS”) and was a participant in the ETS Retirement Plan (“40l(a) Plan”) and the

ETS 403(b) Match Plan (“403(b) Plan”) (collectively, the “Plans”). (Id.) Mr. Rosso originally

designated his parents and sister, Intervenor Lucille Rosso (“Intervenor”), as his beneficiaries

under the Plans. (Id.) Mr. Russo later changed his designated beneficiary to only his sister. (Id.)

Thereafter, Plaintiff and Mr. Rosso married in February 2004, and Mr. Rosso passed away in April

2014. (Id.)

After her husband’s death, Plaintiff informed TIAA-CREF that she was his surviving

spouse. (Id. at 3.) TIAA-CREF informed Plaintiff that as the surviving spouse, she was entitled

to a death benefit of $119,253.33, half of Mr. Rosso’s account balance. (Id.) TIAA-CREF

informed Plaintiff that the other half of the benefit would be paid to Intervenor. (Id.) Plaintiff first

filed an injunction application in the Superior Court of New Jersey to prevent TIAA-CREF from

paying out any of the funds to Intervenor. (Id.) The state court action was voluntarily dismissed

following an agreement that no funds would be disbursed until the outcome of the formal plan

procedures and any related litigation. (Id.) Plaintiff then filed a claim for benefits with TIAA-

1 The Court will consider documents and materials cited in the Complaint. See Doug Grant, Inc. v. Greate Bay Casino

Corp., 232 F.3d 173, 177 n.2 (3d Cir. 2000) (“[i]nasmuch as the complaint references and relies on the content of

certain documents, [the court will] consider them”); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993) (consideration of even a stand-alone contract is proper when the “complaint is based

on [a] contract”).

CREF, which was denied by written decision on March 13, 2015. (Id.) Plaintiff appealed the

denial, which ETS affirmed on July 8, 2015. (Id.) Defendants interpreted Section 7.3 of the 40l(a)

Plan and Section 8.4 of the 403(b) Plan to entitle a surviving spouse to a qualified pre-retirement

survivor annuity (“QPSA”) of 50% of a participant’s account balance. (Id.)

Plaintiff subsequently filed this putative class action challenging Defendants’ fifty-percent

benefit determination and the 401(a) Plan’s mandatory arbitration provision through six counts:

(1) failure to make payments pursuant to 29 U.S.C. § 1132(a)(l) and (3); (2) declaratory judgment

regarding payments pursuant to 28 U.S.C. § 2201 and 29 U.S.C. § 1132(a)(3); (3) breach of

fiduciary duty pursuant to 29 U.S.C. § 1104; (4) declaratory judgment regarding the arbitration

clause pursuant to 28 U.S.C. § 2201, 29 U.S.C. §§ 1132(a)(3), 1133(2), and 29 C.F.R.

§ 2560.503-1; (5) enjoinment of the arbitration clause pursuant to 29 U.S.C. § 1132(a)(3); and (6)

breach of fiduciary duty regarding the arbitration clause pursuant to 29 U.S.C. § 1104. (See

generally Am. Compl., ECF No. 3.)

Defendants filed motions to dismiss, and the Court determined that the 40l(a) Plan

contained a mandatory arbitration provision. (July 29, 2016 Mem. Op. at 9.) The Court

determined that the mandatory arbitration provision was enforceable and dismissed Counts Four,

Five, and Six of Plaintiff’s Amended Complaint, which sought relief from the 40l(a) Plan’s

mandatory arbitration provision. (Id. at 9–13.) The Court further compelled arbitration pursuant

to the mandatory arbitration provision with respect to Counts One, Two, and Three of Plaintiff’s

Amended Complaint as they related to the 401(a) Plan. (Id.) The Court, however, declined to

compel arbitration with respect to the 403(b) Plan because it did not contain a mandatory

arbitration provision. (Id.) Accordingly, the Court stayed Counts One, Two, and Three as they

related to the 403(b) Plan pending arbitration with respect to the 40l(a) Plan. (Id. at 12–13.)

In 2017, Plaintiff and the ETS Employee Benefits Administration Committee (“EBAC”)

conducted an arbitration to resolve Plaintiff’s individual claim under the 40l(a) Plan. On April 30,

2018, the Arbitrator held that the terms of the 401(a) Plan required payment of 100% of Mr.

Rosso’s account balance to Plaintiff, not 50% as previously determined. (Alison Douglas Decl.,

Ex C, ECF No. 117-2.) The Arbitrator found that the terms of the 401(a) Plan were “clear and

unambiguous and require[d] payment to [Plaintiff] of a . . . benefit based upon the full Account

Balance value of Mr. Rosso’s account . . . .” (Id.)

Plaintiff then filed a Motion to Confirm the Arbitration Award and Reopen the Case, which

the Court granted. (April 28, 2021, Mem. Op., ECF No. 111.) At this juncture, Plaintiff’s putative

TIAA-CREF Plan Arbitration Class and the ETS Plan Arbitration Sub-Class are no longer viable.

(See July 29, 2016 Mem. Op. 9–13.) Therefore, Defendants challenge the two remaining putative

classes: the TIAA-CREF Plan Class and the ETS Plan Sub-Class. Plaintiff’s Amended Complaint

proposes the following classes:

The TIAA-CREF Plan Class: Any Plan Participant or current or

surviving spouse of a Plan Participant who participates or

participated in a “qualifying” Plan under ERISA, which Plan’s

account or assets were invested with or managed or administered by

TIAA-CREF, or applied toward the purchase of TIAA or CREF

Contracts and which Plan had or has a Plan Document2 that provides

for a QPSA at a level above 50% of the Account Balance, in

language identical to or substantially similar to that in the Plan

Documents under which the Plaintiff is claiming relief.

The ETS Plan Sub-Class: Any Plan Participant or current or

surviving spouse of a Plan Participant who participates or

participated in a “qualifying” plan under ERISA, which was

sponsored by ETS and which Plan’s account or assets were invested

with or managed or administered by TIAA-CREF, or applied toward

the purchase of TIAA or CREF Contracts and which Plan had or has

a Plan Document that provides for a QPSA at a level above 50% of

the Account Balance, in language identical to or substantially

2 The Plan Document sets forth a Plan Participant’s rights in detail. (Id. ¶ 24.)

similar to that in the Plan Documents under which the Plaintiff is

claiming relief.

(Am. Compl. ¶ 89(a)-(b).) For clarity, Plaintiff alleges that the Plans are subject to ERISA as

amended by the Retirement Equity of 1984 (“REACT”), which views a marital relationship as a

partnership and the retirement benefits derived therefrom as result of the efforts of both spouses.

(Am. Compl. ¶ 12.) She alleges that “ERISA establishes certain minimum requirements for all

private-employer-sponsored retirement plans,” including “the right of a surviving spouse to

receive an annuity if the Plan Participant dies before the spouse does.” (Id. ¶ 13.) Specifically,

REACT provides the surviving spouse a death benefit known as the QPSA when the Plan

Participant dies before retirement. (Id. ¶ 15.) The QPSA of a defined-contribution plan must be

in the form of an annuity, “the actuarial value of which is not less than 50% of the vested

accumulated account value” (“Account Balance”). (Id. ¶ 18.) Notably, “REACT permits the Plan

Participant to waive the QPSA benefits[] or designate anyone other than the spouse as beneficiary

of Plan death benefits, only with written spousal consent.” (Id. ¶ 16.)

Plaintiff alleges that “TIAA-CREF permits alienation of up to ‘one half’ of the Account

Balance without the spouse’s consent,” in violation of ERISA. (Id. ¶ 32.) Plaintiff claims that:

[U]pon receiving notice of a Plan Participant’s death, TIAA-CREF

sends out a form letter advising the surviving spouse of the precise

monetary value of 50% of the Account Balance, stating that this is

the amount payable to the surviving spouse. The letter does not state

that the amount is, in fact, only 50% of the Account Balance or that,

if the surviving spouse has not executed a waiver, he or she may be

entitled to more than 50%.

(Id. ¶ 36.) Plaintiff alleges “many TIAA-CREF Plans require QPSAs of more than 50%” of the

Account Balance, and TIAA-CREF employs this uniform practice regardless of the language in

the Plan Document. (Id. at 33, 37.) According to Plaintiff, even where the terms of a plan require

the QPSA to be funded with more than 50% of the Account Balance, TIAA-CREF pays the

surviving spouse only 50% of the Account Balance, contrary to the provisions of its plans and

ERISA. (Id. ¶ 38.) Thus, the parties dispute whether the 40l(a) Plan, the 403(b) Plan, and other

similar TIAA-CREF plans provide for a QPSA funded with either 100% or 50% of the Account

Balance. (Opp’n Br. at 4.) Plaintiff seeks compensation for surviving spouses who have been

denied the QPSA to which they are entitled under the plans, along with declaratory and injunctive

relief to enjoin Defendants’ uniform practice. (Am. Compl. at 39–42.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(f) permits a district court to “strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.

P. 12(f). However, “[m]otions to strike are generally viewed with disfavor[] and will usually be

denied unless the allegations in the pleading have no possible relation to the controversy[] and may

cause prejudice to one of the parties.” Gray v. BMW of N. Am., LLC, 22 F. Supp. 3d 373, 386

(D.N.J. 2014) (quoting Sliger v. Prospect Mortgage, LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal.

2011)).

Motions to strike class allegations are disfavored because a motion for class certification

is a more appropriate vehicle for arguments about class propriety. Id. (citing Holak v. Kmart Corp.,

Civ. No. 12-304, 2012 WL 6202298 (E.D. Cal. Dec. 12, 2012)). “Class determination generally

involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s

cause of action, and discovery is therefore integral.” Id. See Peruto v. TimberTech Ltd., 126 F.

Supp. 3d 447, 459 (D.N.J. 2015) (“Generally courts do not consider whether a proposed class

meets the [Rule] 23 class requirements until after plaintiffs move for class certification.”).

“A defendant may move to strike class action allegations prior to discovery in those rare

cases where the complaint itself demonstrates that the requirements for maintaining a class action

cannot be met.” In re Allergan Biocell Textured Breast Implant Prod. Liab. Litig., 537 F. Supp.

3d 679, 752 (D.N.J. 2021) (quoting Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n.3 (D.N.J.

2003)). “In a putative class action suit, a plaintiff is generally entitled to discover information

relevant to Rule 23’s class certification requirements.” McPeak v. S-L Distribution Co., Civ. No.

12-348, 2014 WL 4388562, at *4 (D.N.J. Sept. 5, 2014). Thus, “a court should grant a motion to

strike class allegations only if the inappropriateness of class treatment is evident from the face of

the complaint and from incontrovertible facts.” Id. “It is only when no amount of discovery or

time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a motion

to strike class allegations should be granted.” Id. (citing Pilgrim v. Universal Health Card, LLC,

660 F.3d 943, 949 (6th Cir.2011)). See also John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443,

445 (5th Cir. 2007) (“Where it is facially apparent from the pleadings that there is no ascertainable

class, a district court may dismiss the class allegation on the pleadings”).

“If the viability of a class depends on factual matters that must be developed through

discovery, a motion to strike will be denied pending the full-blown certification motion.” McPeak,

2014 WL 4388562 at *4 (quoting 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3.4

(7th ed.2010)). In this District, “dismissal of class allegations at [the pleading] stage should be

done rarely,” and “the better course is to deny such motion because the shape and form of a class

action evolves only through the process of discovery.” Allergan Litig., 537 F. Supp. 3d at 752

(citation omitted and alteration in original).

III. DISCUSSION

Defendants seek to strike the class allegations even though Plaintiff has not yet moved for

class certification. Defendants argue that the “class allegations should be stricken because of the

facial structural and legal issues with each of Plaintiff’s alleged classes.” (Moving Br. at 11.)

Here, the Amended Complaint itself does not demonstrate that the requirements for maintaining a

class action cannot be met. Allergan Litig., 537 F. Supp. 3d at 752. The Court will deny the

Motion for the foregoing reasons.

“[E]very putative class action must satisfy the four requirements of Rule 23(a) and the

requirements of either Rule 23(b)(1), (2), or (3).” Marcus v. BMW of N. Am., LLC, 687 F.3d 583,

590 (3d Cir. 2012). “Before turning to the explicit requirements of Rule 23 in Marcus, [the Third

Circuit] addressed two ‘preliminary matters’: first, whether the class was clearly defined, and

second, ‘whether the class must be (and, if so, is in fact) objectively ascertainable.’” Carrera v.

Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013) (quoting Marcus, 687 F.3d at 591).

Regarding the second of these two preliminary matters, the “ascertainability inquiry is two-

fold, requiring a plaintiff to show that: (1) the class is ‘defined with reference to objective criteria’;

and (2) there is ‘a reliable and administratively feasible mechanism for determining whether

putative class members fall within the class definition.’” Byrd v. Aaron’s Inc., 784 F.3d 154, 163

(3d Cir. 2015) (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)). “The

ascertainability requirement consists of nothing more than these two inquiries. And it does not

mean that a plaintiff must be able to identify all class members at class certification—instead, a

plaintiff need only show that ‘class members can be identified.’” Byrd, 784 F.3d at 163 (quoting

Carrera, 727 F.3d at 308 n.2).

“The method of determining whether someone is in the class must be ‘administratively

feasible.’” Carrera, 727 F.3d at 307 (quoting Marcus, 687 F.3d at 594). “A plaintiff does not

satisfy the ascertainability requirement if individualized fact-finding or mini-trials will be required

to prove class membership.” Id. (citing Marcus, 687 F.3d at 593). “Administrative feasibility

means that identifying class members is a manageable process that does not require much, if any,

individual factual inquiry.” Id. at 307–08 (quotation marks and citation omitted).

A. Facial Defect

Defendants argue that Plaintiff’s TIAA-CREF Plan Class and ETS Sub-Plan Class contain

facial defects because they include “Plan Participants” who have suffered no harm. (Moving Br.

at 14, 24–25.) They argue that the inclusion of Plan Participants in Plaintiff’s purported TIAA-

CREF Plan Class is deficient because a Plan Participant, while alive, can change the beneficiary

designation and obtain an appropriate spousal waiver at any time. (Id. at 14.) In addition,

Defendants claim that there is no harm to Plan Participants who have not died and no harm to

spouses who do not disagree with a benefits determination that they receive less than 100% of the

Account Balance. (Id.) Defendants rely on Green v. Green Mountain Coffee Roasters, Inc., 279

F.R.D. 275, 284–85 (D.N.J. 2011), for the proposition that there are members of the class who

have not yet suffered any harm and, therefore, presently have no claim against Defendants. (Id. at

14–15.)

In opposition, Plaintiff argues that Defendants’ challenges to the propriety of this matter

proceeding as a Rule 23(b)(3) class action are meritless. (Opp’n Br. at 24.) Plaintiff contends

there are no facial defects in the class definitions as ERISA expressly permits the type of forward-

looking relief that would benefit all class members. (Id.) In addition to seeking compensation for

surviving spouses who have already been denied the QPSA to which they are entitled under the

Plans, Plaintiff also seeks declaratory and injunctive relief for the class. (Id.) She contends that

an injunction would benefit every member of the putative class because it would “requir[e]

Defendants to make QPSA determinations based upon the actual language of the applicable plan

and/or to cease their uniform practice of always assigning a 50% QPSA without examining the

plan’s text . . . .” (Id.) Plaintiff contends this “requested relief [would] benefit all current Plan

Participants and their spouses, now and going forward, by requiring Defendants to stop violating

their fiduciary obligations to make benefit determinations based upon actual plan language.” (Id.;

see Am. Compl. ¶¶ 17–28.)

The Court agrees with Plaintiff. She claims that Defendants have engaged in the uniform

practice of always assigning a 50% QPSA to a surviving spouse regardless of what the underlying

ERISA plan actually says—thereby denying Plaintiff and other surviving spouses half of the death

benefits to which they are entitled as a matter of federal law. (Am. Compl. ¶¶ 25, 30–32, 36, 60–

65.) Plaintiff’s requested relief seeks to prevent a uniform practice. See 29 U.S.C. § 1132(a)(3)

(“A civil action may be brought . . . by a participant, beneficiary, or fiduciary (A) to enjoin any act

or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain

other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of

this subchapter or the terms of the plan”). Indeed, Defendants’ citations are inapposite because

they are not ERISA cases. The Court finds that the TIAA-CREF Plan Class and ETS Plan Sub-

Class definition do not contain facial defects.

B. Ascertainability of Class

Defendants also argue that there is “no reliable and administratively feasible means of

identifying [the TIAA-CREF Plan Class members and the ETS Plan Sub-Class] members absent

individual inquiries.” (Moving Br. at 17, 25.) They contend Plaintiff failed to plead that TIAA-

CREF would know of any surviving spouse who would be a potential class member. (Id.) Second,

they argue that there is no administratively feasible way to determine on a class-wide basis whether

the spouses that Plaintiff seeks to represent (in connection with her challenge to Defendants’

administration of QPSA benefits) is actually eligible for benefits under the TIAA Plan Class and

ETS Plan Sub-Class.3 (Id. at 17–18.)

In opposition, Plaintiff argues that Defendants’ motion incorrectly assumes that she is only

seeking certification under Federal Rule of Civil Procedure 23(b)(3). (Opp’n Br. at 22.) She

contends that ascertainability is not a requirement under Federal Rule of Civil Procedure 23(b)(2)

and that predominance only applies to Rule 23(b)(3). (Id. at 22.) Plaintiff notes that courts have

routinely held that ERISA class actions are suitable for certification under Rule 23(b)(1) and

(b)(2).4 (Id. at 23.)

In the alternative, Plaintiff argues that there is a reliable and administratively feasible way

of identifying the class members. She claims that TIAA-CREF—one of the largest ERISA

fiduciaries in the United States and the administrator of the Plans—maintains required detailed

records of Plan Participants and their beneficiaries, as well as their surviving spouses (who are

entitled to payment under ERISA) and any qualified elections. (Id. at 25.) Plaintiff contends that

each time death benefits are distributed, federal law requires the administrator of the benefits to

determine the following: (1) whether the Plan Participant had a Surviving Spouse; (2) whether the

Plan Participant died before the distribution of benefits commenced; (3) whether the Plan

Participant had any other beneficiaries; and (4) whether there had been a qualified election. (Id.

at 26.) Plaintiff argues that Defendants should, therefore, know what the benefit determination

was in each case because TIAA-CREF already conducted the factual inquiries necessary to

determine class membership. (Id.)

3 Defendants contend eligibility is contingent on the following events: (1) the Plan Participant predeceasing the spouse;

(2) the Plan Participant died before the payout period of the deceased Plan Participant’s benefits; (3) the spouse was

still married to the Plan Participant at the time of death; (4) the Plan Participant had named one or more non-spouse

beneficiaries; (5) the surviving spouse did not sign a waiver concerning the non-spouse beneficiaries; (6) Defendants

made benefits determination adverse to the surviving spouse. (Id. at 18, 25.)

4 Because this Motion seeks to strike class allegations rather than certify the class, the Court will not foreclose

Defendants’ arguments concerning ascertainability and predominance.

The Court cannot determine upon the present pleadings the ascertainability of the class

members. See Peruto, 126 F. Supp. 3d at 460 (“the question of ascertainability is more

appropriately addressed upon a developed factual record after class discovery”). Plaintiff does not

need to identify all class members at the class certification stage, much less at this stage. See Byrd,

784 F.3d at 163. Plaintiff need only show that the “class members can be identified.” Byrd, 784

F.3d at 163 (quoting Carrera, 727 F.3d at 308 n.2). There could be an “administratively feasible”

method of determining the TIAA-CREF members, including the putative class members who were

allegedly harmed by adverse determinations and those who will be harmed by Defendants’ alleged

uniform practice of always assigning a 50% QPSA without examining the plan’s text. See

Carrera, 727 F.3d at 307. Defendants argue that identifying the class members is contingent on

several events. (Id. at 17–18.) However, discovery may reveal that Defendants are able to identify

the class members because they already made certain determinations before distributing the QPSA

benefits to the surviving spouses (e.g., whether the Plan Participant had a surviving spouse,

whether the Plan Participant died before the distribution of benefits commenced, whether the Plan

Participant had any other beneficiaries, and whether there had been a qualified election). So,

identifying the class members may involve a “manageable process,” not requiring much—if any—

individual factual inquiry. Carrera, 727 F.3d at 307–08. Thus, it is not facially apparent from the

pleadings that there is no ascertainable class.

C. Individual Inquiries

Defendants also argue that Plaintiff’s class allegations raise numerous individualized issues

warranting dismissal.5 (Id. at 18, 25.) First, they contend an individualized inquiry would be

needed to determine indispensable parties like Ms. Rosso, the non-spouse beneficiary in this

instance. (Id. at 20, 25.) Second, resolution of any beneficiary’s claim depends on an

individualized inquiry concerning her or his eligibility in light of facts unique to each beneficiary

and the Plan Participant, including whether each purported class member exhausted all forms of

administrative remedies as provided by ERISA. (Id.) Third, an individualized inquiry is required

to determine if the plan in question is governed by ERISA because there are numerous statutory

provisions that exempt retirement plans from ERISA. (Id. at 21.) Fourth, the court would have to

determine whether different plans in the putative TIAA-CREF Plan Class have statute of

limitations provisions that preclude any putative class member from seeking redress. (Id. at 22.)

Fifth, the court would have to determine whether the plans in the TIAA-CREF Plan Class have

arbitration provisions that require arbitration, such as the 401(a) Plan. (Id. at 22, 25.) Sixth, an

individualized inquiry is needed to determine how each plan’s language should be interpreted to

determine whether a plan allows for a 50% or 100% QPSA or for some other amount. (Id.)

Seventh, ETS anticipated motion to reform the ETS Plans evidences an additional complicating

factor precluding class treatment. (Id. at 23.)

In opposition, Plaintiff contends Defendants’ argument concerning the “numerous

individual issues” is a predominance challenge. (Opp’n Br. at 27.) She argues that there are no

5 Defendants rely on Trunzo v. Citi Mortgage, Civ. No. 11-1124, 2014 WL 1317577, *7–9 (W.D. Pa. Mar. 31, 2014),

for the proposition that class treatment is not appropriate where claims are based on “specific circumstances” and

conduct that was individual to each of the claimants. (Id. at 19.) Defendants also rely on Semenko v. Wendy’s Int’l,

Inc., Civ. No. 12-836, 2013 WL 1568407, *8 (W.D. Pa. Apr. 12, 2013), for the proposition that a motion to strike

class allegation should be granted where individualized issues of eligibility under the statute would require a number

of individual mini-trials. (Id.)

individual issues in this case that predominate over the common issues of fact and law. (Id.)

Though Defendants argue that an individualized inquiry would be needed to determine

indispensable parties, Plaintiff contends TIAA-CREF and the non-spouse beneficiaries hold the

same interests. (Id. at 29–30.) Plaintiff also argues that “[t]he overwhelming consensus among

other courts to consider the question in the ERISA context is that exhaustion by unnamed class

members is not necessary where the named plaintiffs have exhausted their administrative

remedies.” (Id. at 30.) In addition, Plaintiff argues that discovery will address whether the plan is

governed by ERISA and whether the plans contain any statute of limitations. (Id. at 31.)

Moreover, Plaintiff argues that “every plan managed by TIAA may not be identical, but the

applicable QPSA calculation provisions are a discrete part of each plan, and irrelevan[t]

differences as to other portions of the plan are meaningless.” (Id. at 31.) She contends that without

the benefit of discovery, she cannot determine how similar the other TIAA plans are to TIAA’s

ETS plans. (Id. at 32.)

“[A]t the motion to strike stage, the burden on plaintiffs is less than at the certification

stage.” Allergan Litig., 537 F. Supp. 3d at 756 (quoting In re Ry. Indus. Emple. No-Poach Antitrust

Litig., 395 F. Supp. 3d 464, 514 (W.D. Pa. 2019)). “The court must determine only whether

plaintiffs satisfied their burden to set forth factual allegations to advance a prima facie showing of

predominance or that at least it is likely that discovery will reveal evidence” that will satisfy critical

elements of the plaintiff’s claims on a class-wide basis. Id. “Courts in this Circuit have declined

to conduct a predominance inquiry upon a defendant’s motion to strike/dismiss a plaintiff’s class

allegations, recognizing the dismissal of class claims before discovery and a class certification

motion ‘is the exception rather than the rule.’” Id. (citations omitted). Courts in this Circuit and

other circuits have found that a pre-discovery predominance inquiry is premature. Id. at 756–57.

The Court agrees with Plaintiff that Defendants’ arguments challenge predominance. The

Court finds that a predominance inquiry is premature at this juncture. The Court will not scrutinize

the factual differences among individual class members at this stage and will not dismiss class

allegations because of potential differences. Plaintiff has made a prima facie showing of

predominance. She referred to a series of common factual and legal issues arising out of

Defendants’ uniform practice as it pertains to the QPSA distribution. In addition, Plaintiff’s prayer

for relief does not present issues that predominate over common ones—Plaintiff seeks damages

relating to adverse determinations and seeks injunctive relief to stop Defendants’ uniform practice.

IV. CONCLUSION

For the reasons stated above, the Court will deny Defendants’ Motion. An appropriate

Order will follow.

Date: April 7, 2022

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE