finding that the class “would be better served by the appointment of one law firm to manage the case” because it would “enable plaintiffs to control counsel’
How later courts described this case
- finding that the class “would be better served by the appointment of one law firm to manage the case” because it would “enable plaintiffs to control counsel’
Written by the judges who cited it.
The opinion
GRC) Application for a pre-motion conference granted. A conference has
been scheduled for 12/11/2020 at 10:30 a.m. The request for
consolidation, application to appoint interim lead counsel, and the
proposed motion to dismiss will be discussed at the conference, as we
Sarah M. Adams as the issues raised in the pre-motion letter and response filed in the
(202) 861-5432 related action, Greenberg v. Bd. of Dirs. of Pentegra Defined
sadams@ groom.com Contribution Plan, 7:20-cv-08503. At the time of the scheduled
conference, all parties shall call the following number: (888) 398-2342:
access code 3456831.
SO SRDERED.
Via ECF
The Honorable Philip M. Halpern Philip M. Halpern
Daniel Patrick Moynihan Courthouse [United States District Judge
500 Pearl Street, Room 1950 Dated: New York. New York
New York, NY 10007 ated: New York, New Yor
November 30, 2020
Re: Khan v. Bad. of Dirs. of Pentegra Defined Contribution Plan, 7:20-cv-07561;
Greenberg v. Bd. of Dirs. of Pentegra Defined Contribution Plan, 7:20-cv-
08503
Dear Judge Halpern:
We represent all Defendants in the above-referenced matters. Pursuant to your Individual
Practice 2(C), we write to request a pre-motion conference regarding Defendants’ anticipated
motion under Federal Rule of Civil Procedure 42(a) to consolidate Khan v. Board of Directors of
Pentegra Defined Contribution Plan, No. 7:20-cv-07561, and Greenberg v. Board of Directors
of the Pentegra Defined Contribution Plan for Financial Institutions, No. 7:20-cv-08503. In
their forthcoming motion, Defendants intend to request that the Court: 1) consolidate the Khan
and Greenberg matters; (2) order Plaintiffs to file a consolidated amended complaint; and (3)
appoint a single firm as interim lead counsel pursuant to Rule 23(g)(3).
We have conferred with Plaintiffs’ counsel in both matters. The two sets of counsel take
opposite positions on each of the three aspects of relief to be requested. Counsel in the
Greenberg matter consents to the motion to consolidate and the filing of a consolidated amended
complaint, but does not consent to the motion for appointment of a single firm as interim lead
counsel. See Ex. A (Email from M. Gyandoh to S$. Adams). Counsel in the Khan matter does
not consent to the motion to consolidate or to the filing of a consolidated amended complaint, but
Groom Law GROUP, CHARTERED
1701 Pennsylvania Ave., N.W.* Washington, D.C. 20006-5811
202-857-0620 © Fax: 202-659-4503 * www.eroom.com
GROOM
The Honorable Philip M. Halpern
November 20, 2020
Page 2
nonetheless consents to the motion for appointment of a single firm as interim lead counsel. See
Ex. B (Email from J. Schlichter to S. Adams).
Rule 42(a) promotes judicial economy by allowing a court to consolidate actions that, as
is the case here, involve common questions of law or fact. Indeed, these two cases significantly
overlap. Both are brought on behalf of putative classes composed of current and former
participants (and their beneficiaries) in the Pentegra Defined Contribution Plan for Financial
Institutions (the “Plan’”), and the class periods almost completely overlap.' Both Complaints
name the Plan’s board of directors and Pentegra Services, Inc., a service provider to the Plan, as
defendants.” The central claim in both Complaints is that Defendants breached their fiduciary
duties to the Plan under the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. § 1001, et seg. (SERISA”).? The relief each Complaint seeks is essentially identical.*
The high degree of similarity between the two cases justifies consolidation.>
' Compare Khan Corrected Compl. § 131 (“All participants and beneficiaries of the Pentegra
Defined Contribution Plan for Financial Institutions from September 15, 2014 through the date
of judgment, excluding Defendants) with Greenberg Compl. 4 36 (“All persons, except
Defendants and their immediate family members, who were participants in or beneficiaries of the
Plan, at any time between October 13, 2014 through the date of judgment’).
? Compare Khan Corrected Compl. 4] 15-24 with Greenberg Compl. 4] 23-34.
3 Compare Khan Corrected Compl., p.53 (‘Count I: Breach of Fiduciary Duties Related to
Excessive Administrative Fees.”) with Greenberg Compl., p.30 (“First Claim for Relief:
Breaches of Fiduciary Duties of Loyalty and Prudence.’’).
“ Compare Khan Corrected Compl., pp. 62-63 (“[R]estore the Plan to the position it would have
occupied but for the breaches of fiduciary duty.”) with Greenberg Compl. p.34 (“[R]estore to
the Plan all profits which the participants would have made if the Defendants had fulfilled their
fiduciary obligations.”).
> Considering the extensive overlap between the two complaints, it is clear the most efficient
course of action would be to order Plaintiffs to file a consolidated amended complaint. Rule
Groom Law GROUP, CHARTERED
1701 Pennsylvania Ave., N.W. * Washington, D.C. 20006-5811
202-857-0620 © Fax: 202-659-4503 * www.eroom.com
The Honorable Philip M. Halpern
November 20, 2020
Page 3
Indeed, none of the parties involved believes the two cases are insufficiently similar to
warrant consolidation. The only party opposing consolidation (the Khan Plaintiffs) admits that
“Tt]he claims in [the Khan] case cover the claims in the second filed case’”—but nonetheless
“do[es] not agree to [Defendants’] request to consolidate the two cases or to file a consolidated
complaint at this time.” Ex. B. Khan counsel further takes the position that, despite opposing
consolidation, they support the appointment of a single firm as interim lead counsel. Id.
(“Insofar as your request to appoint a single firm as interim class counsel, we agree with your
request.”).
In short, the Court is faced with two very similar complaints brought by law firms taking
two very different positions—one that is willing to consolidate but wants two firms to represent
one class, and one that does not want to consolidate but nonetheless wants a single firm
appointed interim lead counsel.
Faced with these opposing positions by the firms vying to serve as class counsel, it is the
Court itself, Defendants respectfully suggest, that must safeguard the interests of the putative
class. Court action is necessary to ensure the Plaintiffs themselves are controlling the litigation
and money is not wasted on duplicative legal fees. See In re Donnkenny Inc. Sec. Litig., 171
42(a) also allows a court to order the filing of a consolidated complaint to “expedite trial and
eliminate unnecessary repetition and confusion.” Endress v. Gentiva Health Servs., Inc., 278
F.R.D. 78, 81 (E.D.N.Y. 2011). A consolidated amended complaint harmonizing Plaintiffs’
claims will save both the parties and the Court time and effort by eliminating duplicative filings.
Were the matter to survive to discovery, a consolidated amended complaint would narrow its
focus and scope by, for example, eliminating superfluous claims and limiting repetitious
document production or depositions.
Groom Law GROUP, CHARTERED
1701 Pennsylvania Ave., N.W. * Washington, D.C. 20006-5811
202-857-0620 © Fax: 202-659-4503 * www.eroom.com
GROOM
The Honorable Philip M. Halpern
November 20, 2020
Page 4
F.R.D. 156, 158 (S.D.N.Y. 1997) (warning against “duplication of attorneys’ services” and
“increase[d] attorneys’ fees and expenses” arising from proposed co-lead counsel arrangement);
Yousefi v. Lockheed Martin Corp., 70 F. Supp. 2d 1061, 1072 (C.D. Cal. 1999) (finding that the
class “would be better served by the appointment of one law firm to manage the case” because it
would “enable plaintiffs to control counsel’). Appointing a single firm as interim lead counsel
under Rule 23(g)(3) advances Rule 42(a)’s efficiency goals by streamlining the management of
the consolidated case. “[I]ndeed [appointment of interim class counsel] is probably essential for
efficient case management[.]” In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56,
57 (E.D.N.Y. 2006); see also Szymczak v. Nissan N. Am., Inc., Nos. 10-CV-7493 (VB), 2012 WL
1877306, at *2 (S.D.N.Y. May 15, 2012) (appointing interim lead counsel to ensure the
consolidated cases “are administered efficiently, the claims of named plaintiffs and the putative
class members are properly prosecuted, and redundant work is minimized’). Appointing two
firms as co-lead counsel can “work against a cohesive litigation strategy and prove inefficient.”
Farrah vy. Provectus Biopharmaceuticals, Inc., 68 F. Supp. 3d 800, 806 (E.D. Tenn. 2014); see
also St. Clair Cnty. Employees’ Ret. Sys. v. Acadia Healthcare Co., No. 3:18-CV-00988, 2019
WL 494129, at *1 (M.D. Tenn. Jan. 9, 2019) (denying co-lead counsel arrangement where
movants had failed to demonstrate the need for the involvement of multiple law firms). Indeed,
the current arrangement appears already to have “work[ed] against a cohesive litigation
strategy,” as the two firms have taken opposing positions on each of the three issues Defendants
will raise in their anticipated motion.
Consolidation is necessary to protect the Defendants’ interests as well. Proceeding with
GROOM Law GROUP, CHARTERED
1701 Pennsylvania Ave., N.W. * Washington, D.C. 20006-5811
202-857-0620 © Fax: 202-659-4503 * www.sroom.com
GROOM
The Honorable Philip M. Halpern
November 20, 2020
Page 5
highly duplicative but separate cases would unjustifiably increase defense costs by forcing the
Defendants to respond to costly and repetitious discovery requests, and would put the Defendants
at risk of inconsistent judgments, not to mention potentially conflicting rulings on any number of
interim matters, depending on the arguments and strategies Plaintiffs’ counsel choose to employ
in the two different cases. Proceeding with multiple law firms even in a consolidated action
would increase defense costs, exacerbate scheduling difficulties, and, ultimately, drive up
settlement values as each firm seeks to maximize its recovery.
At this time, Defendants take no position as to which law firm the Court should appoint
as interim lead counsel for the consolidated action. Regardless, there is no reason the
consolidated case should require the attention of two firms, particularly ones as experienced as
each firm claims to be in ERISA lawsuits like this. See Khan Compl. 4 134 (‘Schlichter Bogard
& Denton has been appointed as class counsel in over 30 other ERISA class actions regarding
excessive fees in large defined contribution plans.”); Letter Motion to Consolidate Cases, Bilello
v. Estee Lauder, Inc., No. 1:20-cv-04770 (S.D.N.Y. Aug. 8, 2020), Dkt. #10 (“Capozzi Adler
currently serves as counsel in over two dozen fiduciary breach actions across the country.”).
Defendants will be prepared to discuss the foregoing issues at the pre-motion conference,
should the Court feel that its decision would be aided by one.
Respectfully,
/s/ Sarah M. Adams
Sarah M. Adams
Counsel for Defendants
GROOM Law GROUP, CHARTERED
1701 Pennsylvania Ave., N.W. * Washington, D.C. 20006-5811
202-857-0620 © Fax: 202-659-4503 * www.sroom.com