Brown v. Nationwide Life Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THERESA BROWN

Individually, and as a representative of

a Class of participants and beneficiaries on

behalf of the Andrus Wagstaff, PC 401(k)

Profit Sharing Plan and all other similarly Case No. 2:17-cv-558

Situated individual Retirement plans, CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

Plaintiff,

v.

NATIONWIDE LIFE INSURANCE

COMPANY, ef ai.,

AND

ANDRUS WAGSTAFF, PC

Individually and on behalf of a class of

others similarly situated,

Defendants.

OPINION & ORDER

This matter is before the Court on Defendants Nationwide Life Insurance Company,

Nationwide Bank, and Nationwide Trust Company’s (collectively “Nationwide”) Motion to

Strike the Class Allegations from the Second Amended Complaint (ECF No. 62); Defendant

Andrus Wagstaff, PC’s (“AW”) Motion to Strike the Class Allegations from the Second

Amended Complaint (ECF No. 85); Named Plaintiff Theresa Brown’s (“Plaintiff”) Response in

Opposition to Nationwide’s Motion to Strike (ECF No. 76); Plaintiff's Response in Opposition

to AW’s Motion to Strike (ECF Nos. 91 &101'); and Nationwide and AW’s (“Defendants”)

Reply briefs (ECF Nos. 81 & 98).

Also before the Court is Plaintiffs Motion for Class Certification (ECF Nos. 115 &

120°); Nationwide’s Response in Opposition to Plaintiff's Motion for Class Certification (ECF

Nos. 124 & 135°); AW’s Response in Opposition to Plaintiff's Motion for Class Certification

(ECF Nos, 125 & 134*); and Plaintiff's Reply brief (ECF No. 137°). For the reasons that follow,

Defendants’ Motions to Strike the Class Allegations from the Second Amended Complaint are

DENIED as moot (ECF Nos. 62 & 85); and Plaintiff's Motion for Class Certification is

DENIED (ECF Nos. 115 & 120).

On June 27, 2017, former Named Plaintiff Alana Schmitt (“Ms. Schmitt”) commenced

this action on behalf of herself, other participants and beneficiaries of AW’s 401(k) Profit

Sharing Plan (“the Plan”), and the participants and beneficiaries of similarly-situated individual

account plans. (See generally Compl., ECF No. 1). AW is the administrator and fiduciary of the

' Nationwide moved to seal Plaintiff's Response in Opposition to AW’s Motion to Strike (ECF No. 91)

because it contains Nationwide’s confidential business information. (ECF No. 94). The Court conducted

an in camera review of Nationwide’s proposed redactions and set the matter for an informal conference

between the parties. Plaintiff subsequently redacted the confidential sections as agreed and filed that

version as ECF No. 101.

? With the Court’s permission, Plaintiff filed her Motion for Class Certification (ECF No. 115) under seal

because it contains information that Nationwide designated as confidential. Plaintiff appropriately

redacted the confidential information and filed that version as ECF No. 120.

3 On July 11, 2019, Defendants jointly moved for leave to file their Responses in Opposition to Plaintiffs

Motion for Class Certification under seal. (ECF No. 122). The Court granted Defendants’ joint motion

on July 15, 2019. (ECF No. 123). Accordingly, Nationwide filed its Response in Opposition to

Plaintiff's Motion for Class Certification (ECF No. 124) under seal. Nationwide subsequently redacted

the confidential information and filed that version as ECF No. 135.

4 AW filed its Response in Opposition to Plaintiff's Motion for Class Certification (ECF No. 125) under

seal. AW subsequently redacted the confidential information and filed that version as ECF No. 134.

> On August 7, 2019, the Court granted Plaintiff's Unopposed Motion to File her Reply Under Seal.

(ECF No. 131). The Court also ordered that Plaintiff file a redacted form of her Reply brief within 14

days of filing her Reply under seal. (Jd.).

Plan, which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).

(id). To “navigate the labyrinth of federal regulations governing employee benefit plans,” the

Plan contracted with Nationwide to provide recordkeeping and administrative services at a fee of

one percent of the value of each participant’s account, per year. (/d { 1-2). According to Ms.

Schmitt, the Plan account charged “excessive and unreasonable fees.” Ud. J 11). Specifically,

Ms. Schmitt averred that “[b]y charging an asset[-]based fee which resulted in fees approaching

$500 per plan member, [Nationwide] received excessive and unreasonable compensation for

their services” in violation of 29 U.S.C. § 1106(a). Ud J 71-72).

On July 5, 2017, Ms. Schmitt filed an Amended Class Action Complaint against

Nationwide. (ECF No. 8). Nationwide moved to dismiss the Amended Complaint, alleging that

Ms. Schmitt failed to state a claim under Federal Rule of Civil Procedure (“Rule”) 12(6)(6) and

failed to join AW as a necessary party under Rule 12(b)(7). (ECF No. 19). The Court denied

Plaintiffs Motion on August 24, 2018, and ordered Ms. Schmitt to amend the Amended

Complaint to name AW as a necessary party in the suit. (ECF No. 46). On September 28, 2018,

Theresa Brown (“Plaintiff’) moved to intervene and assume the role of Named Plaintiff. (ECF

No. 51). That same day Plaintiff filed a Second Amended Complaint. (ECF No. 52). The Court

granted Plaintiff's Motion to Intervene on October 1, 2018. (ECF No. 53).

“Plaintiff seeks to certify this action as a class action under Fed. R. Civ. P. 23 on behalf

of the AW Plan and the [similarly situated] Plans and against both the Nationwide Defendants

and a class of Defendant Plan Sponsors.” (Second Am. Compl. { 66, ECF No. 52). In addition

to claiming that Nationwide charged excessive fees, Plaintiff contends that “confusing and

misleading information contained in Nationwide’s 408b-2 disclosures” prevented AW and other

similarly-situated plan sponsors from “determin[ing] the true costs of the Nationwide Retirement

Flexible Advantage Retirement Plans Program to Plan participants.” (Second Am. Compl. ff 53,

60). Plaintiff asserts: (1} an unjust enrichment claim against Nationwide for excessive

compensation for services in violation of 29 U.S.C. §§ 1108(b)(2) and 1106(a)(1)(C); and (2) a

claim for declaratory judgment stating that Nationwide’s fees are unreasonable and that AW and

the proposed Defendant Class breached their fiduciary duties by agreeing to pay excessive fees

to Nationwide. (/d. J{[ 74-92). Plaintiff seeks: (1) certification of a Plaintiff Class; (2)

certification of a Defendant Class; (3) declaratory judgment; (4) disgorgement by Nationwide of

the excessive fees charged; (5) attorney’s fees and costs; and (6) pre and post-judgment interest.

(id. at 30-31).

On November 26, 2018, Nationwide filed a Motion to Strike the Class Allegations from

the Second Amended Complaint. (ECF No. 62). AW filed its own Motion to Strike the Class

Allegations from the Second Amended Complaint on February 27, 2019. (ECF No. 85).

Plaintiff responded (ECF Nos. 76, 91, 101), and Defendants replied (ECF Nos. 81 & 98). On

June 14, 2019, Plaintiff moved for class certtfication of both a Plaintiff Class and a Defendant

Class pursuant to Rule 23. (ECF Nos. 115 & 120). Defendants responded (ECF Nos. 124, 125,

134, 135), and Plaintiff replied (ECF No. 137). All motions are ripe for review.

Il.

Rule 23 governs class actions in federal court. Fed. R. Civ. P. 23(a). Generally, district

courts have broad discretion in deciding whether to certify a class. See Inre Am. Med. Sys., Inc.,

75 F3d 1069, 1079 (6th Cir. 1996). To obtain class certification, the putative class must establish

four prerequisites pursuant to Rule 23{a): (1) the class is so numerous that joinder of all members

is impractical; (2) there are questions of law or fact common to the class; (3) the claims or

defenses of the representative parties are typical of the claims or defenses of the class; and (4)

the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ.

P, 23(a); see also Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 945 (6th Cir. 2011).

In addition, the party seeking class certification must demonstrate that the class action is

maintainable under one of Rule 23(b)’s three provisions. Fed. R. Civ. P. 23(b); see also Pilgrim,

660 F.3d at 945. Notably, Rule 23 is more than a “mere pleading standard;” a party seeking

class certification must demonstrate sufficient facts to meet its requirements. Wal-Mart Stores,

Inc. v. Dukes, 564 U.S. 338, 350 (2011). Certification of a class is appropriate if, after

conducting a “rigorous analysis” of the facts, the district court determines that the prerequisites

of Rule 23 have been met. /d at 350-51; Fed. R. Civ. P. 23(c)(1)(A).

The Court may not inquire into the merits at the class certification stage. Eisen v.

Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974) [w]e find nothing in either the language or

history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the

merits of a suit in order to determine whether it may be maintained as a class action. Indeed,

such a procedure contravenes the Rule”). Accordingly, the Court's rigorous analysis must be

limited to the substance and structure of Plaintiff's claims. As the Sixth Circuit has stated,

“(mlJerits questions may be considered to the extent—but only to the extent—that they are

relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”

Rikos v. Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015) (quoting Amgen Inc. v. Conn.

Ret. Plans & Tr. Funds, 133 8. Ct. 1184, 1194-95 (2013) (emphasis in original)).

III.

Plaintiff moves for class certification of both a Plaintiff Class and a Defendant Class.

Mot. for Class Cert. at 1, ECF No. 120). The putative classes are described as follows:

Plaintiff Class, represented by Theresa Brown:

All participant-directed individual 401(k) account plans that, at any time from

October 1, 2014 through the date of judgment (the “Class Period”), that (1) have

total Plan assets of less than $10 million; (2) paid Nationwide for recordkeeping

and other administrative services through the Nationwide Retirement Flexible

Advantage Retirement Plans Program; and (3) paid recordkeeping and

administrative service fees to Nationwide in excess of $64 per participant.

Excluded from the Plaintiff Class are employees of Plaintiff's law firms.

Defendant Class, represented by defendant Andrus Wagstaff, P.C.:

All sponsors of participant-directed individual 401(k) account plans that, at any

time from October 1, 2014 through the date of judgment (the “Class Period”), (1)

have total Plan assets of less than $10 million; (2) entered into Program

Agreements with Nationwide through the Nationwide Retirement Flexible

Advantage Retirement Plans Program to provide recordkeeping and

administrative services for their companies’ defined contribution retirement plans;

and (3) paid recordkeeping and administrative service fees to Nationwide in

excess of $64 per participant.

The Court will consider the certifiability of each proposed class in turn.

A. Certification of Defendant Class

Rule 23 “authorizes defendant class actions as well as plaintiff class actions.” Alexander

Grant & Co. v. McAlister, 116 F.R.D. 583, 585 (S.D. Ohio 1987) (citing /n re Itel Securities

Litigation, 89 F.R.D. 104, 108 (N.D. Cal. 1981); In re Consumers Power Company Securities

Litigation, 105 F.R.D. 583, 611 (E.D. Mich. 1985); In re Alexander Grant & Company

Litigation, 110 F.R.D. 528, 533 (S.D. Fla. 1986)). The initial “burden of showing the

satisfaction of all four of the prerequisites of Rule 23(a) falls on the party seeking to utilize the

class action.” /d. (citing Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976)).

However, the Sixth Circuit has stated that: “[s]tanding is a prerequisite to bringing suit,

and [that] nothing in Fed. R. Civ. P. 23 alters this requirement.” Thompson v. Bd. of Educ. of

Romeo Cmty. Sch., 709 F.2d 1200, 1204 (6th Cir. 1983) (citing La Mar v. H & B Novelty & Loan

Co., 489 F.2d 461, 462 (9th Cir, 1973)). Thus, a plaintiff generally “cannot represent those

[class members] having causes of action against other defendants against whom [that] plaintiff

has no cause of action and from whose hands [she] suffered no injury.” fd (quoting La Mar, 489

F.2d at 466).° “This is true even though the plaintiff may have suffered an injury identical to that

of the other parties [she] is representing.” Jd. (quoting La Mar, 489 F.2d at 466); see also Inre

itel, 89 F.R.D. at 119 (“class treatment is not proper unless each plaintiff class representative has

a cause of action against each defendant, even though the plaintiffs were all injured by a method

of dealing common to all defendants”).’

The Sixth Circuit has recognized an exception to this general rule where “all defendants

are juridically related in a manner that suggests a single resolution of the dispute would be

expeditious.” /d at 1205; see also Thillens, Inc. v. Cmty. Currency Exch. Ass’n of Ill, Inc., 97

F.R.D. 668, 673 (N.D. Ill. 1983) (the general rule that “[a] defendant class will not be certified

unless each named plaintiff has a colorable claim against each defendant class member . . . may

be waived where the defendant members are related by a conspiracy or ‘juridical link’”); In re

ftel, 89 F.R.D. at 120 (“[t]he exceptions to Za Mar, however, (conspiracy or juridical links)

should apply to defendant class certification as they do to plaintiff class certification”).

According to the Sixth Circuit, this juridical relationship is “most often found” in instances

La Mar addressed the appropriateness of certifying a plaintiff class, rather than a defendant class. Jn re

89 F.B.D. at 119. “Although the question has received little discussion, the rules of La Mar

apparently should be applied to defendant class certifications.” Jd. In other words, defendant class

certification is only proper where “the representative defendant is subject to liability to every plaintiff.”

id. Because the parties address standing in the context of the Defendant Class, the Court will follow suit.

? The Court notes that the La Mar court premised its holding on the Rule 23(a)(3) and (4) requirements of

typicality and adequacy of representation, rather than standing. La Mar, 489 F.2d at 466. In other words,

the Ninth Circuit found that the representative party cannot be “typical of the class” where he “never had

a claim of any type against any defendant.” Jd at 465. Similarly, the La Mar court stated that the

adequacy of representation “is particularly troublesome in class actions, such as these, in which the injury

to any possible representative party is quite small.” fd. “Nevertheless, the crux of the decision was that

the exercise of judicial power is generally inappropriate in a case where the named plaintiffs do not have a

cause of action against each defendant.” Thompson, 709 F.2d at 1205 (quoting Thompson v. Bd. of Educ.

of Romeo Cmty. Sch., 71 F.R.D. 398, 407 (W.D. Mich. 1976)). Following Sixth Circuit precedent in

Thompson, thts Court considers the appropriateness of class certification in the context of standing before

analyzing the Rule 23 factors.

“[w]here all members of the defendant class are officials of a single state and are charged with

enforcing or uniformly acting in accordance with a state statute, or a common rule or practice of

state-wide application, which is alleged to be unconstitutional.” /d. (quoting Mudd v. Busse, 68

F.R.D, 522, 527-528 (N.D. Ind. 1975)).

Other districts have found that “[p]artnership, joint enterprise, control, conspiracy, and

aiding and abetting all may serve as such a [juridical] link, since they denote some form of

activity or association on the part of the defendants that warrants [the] imposition of joint

liability against the group even though the plaintiff may have dealt primarily with a single

member.” Akerman v. Oryx Comm., Inc., 609 F. Supp. 363, 375 (S.D.N.Y. 1984); see also In re

89 F.R.D. at 119 Guridical link may exist where the “proponent of the class action can allege

a conspiracy or concerted scheme among the defendants”); Barker v. FSC Sec. Corp., 133 F.R.d.

548, 553 (W.D. Ark. 1989) (finding a juridical link where there is a “contractual obligation

among all defendants”); Frazier v. Preferred Credit, No. 01-2714 GB, 2002 WL 31039856, at *8

(W.D. Tenn. July 31, 2002) (holding same).

Plaintiff contends that “a juridical link exists among the [putative] Defendant Class

members.” (PI.’s Mot. for Class Cert. at 28). Relying on United States v, Trucking Emp’rs, Inc.,

75 F.R.D. 682, 689-690 (D.D.C. 1977), Plaintiff points out that a juridical link may exist where

contractual agreements bind the defendant class “in certain crucial respects,” and where “the

legality of certain provisions of these agreements is at issue in [the] case.” (Ud.). In Trucking

Employers, the plaintiffs alleged that several hundred trucking firms across the United States

engaged in discriminatory employment practices. Trucking Emp’rs, 75 F.R.D. at 685-687.

Examining the proposed defendant class, D.C. Circuit found that each putative member was a

party to the National Master Freight Agreement, which bound “the employment practices of the

entire class in certain crucial respects, e.g., with respect to seniority.” Jd. at 689. Because this

bond “suggest[ed] to the court that in a practical sense [the putative defendant class members]

themselves ha[d] elected to become a ‘class,’” and the legality of the seniority provision was at

issue, the Court found the defendants were juridically related. Jd at 689-690.

Analogizing Trucking Employers to the instant action, Plaintiff notes that all members of

the proposed Defendant Class are “subject to a common rule or practice, namely ERISA’s

prohibition against paying excessive fees for administrative services.” (P1.’s Mot. for Class Cert.

at 28). Plaintiff points out that all putative Defendant Class members signed Flexible Advantage

Program Agreements with Nationwide which demanded excessive fee payments. (/d. at 29). In

addition, Plaintiff claims that all putative Defendant Class members “received the same

misleading disclosures regarding the ‘reasonable estimate’ of Nationwide’s fees.” (Jd.). Thus,

Plaintiff identifies the Flexible Advantage Program Agreements as the “juridical link that binds

the Defendant Class members together.” (Ud).

Nationwide argues that certification of a Defendant Class would be improper because

“{Plaintiff does not and cannot allege any relationship—contractual, juridical or otherwise—

among the putative defendant class members, and in fact none exists.” (NW Opp’n to Pl.’s Mot.

for Class Cert..at 15, ECF No. 135). First, Nationwide asserts that the putative Defendant Class

members are not government officials, or otherwise “enforcing a common statute or other

government rule or policy.” (NW Mot. to Strike at 7, ECF No. 62).8 Second, Nationwide points

out that Defendants were not “partners, participants in a conspiracy or joint enterprise, or under

common ownership.” (/d.). Third, Nationwide avers that Plaintiff does not allege any

“communication or coordination among or between the putative defendant class members.”

* Nationwide incorporates by reference the arguments on pages 6-13 of its Motion to Strike. (NW Opp’n

to P1.’s Mot. for Class Cert. at 15).

Finally, Nationwide contends there is no common contractual relationship between

Defendants which binds them together. (/d. at 8).

Nationwide distinguishes Trucking Employers from the present facts, arguing that

“enter[ing] into similar but separate and unrelated contracts with Nationwide is a far cry from

establishing ‘a contractual obligation among all defendants.’” (/d.) (quoting Mull v. Alliance

Mortg. Banking Corp., 219 F. Supp. 2d 895, 908 (E.D. Tenn. 2002)). Specifically, Nationwide

maintains that the defendant class members in Trucking Employers were all “party to the

National Master Freight Agreement or its area supplements.” (/d.) (quoting Trucking Emp ’rs, 75

F.R.D. at 689)). Asa result, the Ninth Circuit found the alleged common discriminatory practice

was “traceable, at least in part, to the terms of the Freight Agreement.” (/d.). In contrast,

Nationwide maintains that each Defendant in the putative class “had its own separate contract

with Nationwide.” (/d, at 9) (emphasis in original) (citing Second Am. Compl. § 73). Because

“each of the subject plans sponsored by the putative defendant class had similar but distinct

obligations,” Nationwide contends these “wholly separate agreements with the same vendor” are

not sufficient to establish a juridical link. (/@.).

Moreover, Nationwide argues that Plaintiff does not challenge a specific provision in the

Flexible Advantage Program Agreements. (Yd). Unlike the Trucking Employers plaintiffs who

challenged a specific provision in a shared contract, Nationwide avers that, here, Plaintiff alleges

that plan sponsors breached their fiduciary duties by “entering into the agreements with

Nationwide.” (/d. at 10) (emphasis added) (quoting Second Am. Compl. 91). Accordingly,

Nationwide states that even if Defendants shared a common contractual agreement, their

challenged conduct, i.e., entering into fee agreements with Nationwide, is not traceable to that

contractual agreement. (/d.). Finally, Nationwide points out that the “contracts at issue vary in

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terms that are critical to Plaintiff's claim.” (/d.). For instance, Nationwide argues that not every

contract bears the same 100 basis point (“bp”) fee; the same requirement to provide information

regarding certain regulatory filings; or the same obligation to provide trustee services to every

plan. Ud at 11-13) (citing AW Program Agreement at 15-44 & 5, ECF No. 19-13). Thus,

Nationwide argues the Court should strike the Defendant Class allegations for failure to establish

a juridical link. (fd. at 13).?

Defendants’ arguments are well taken. As noted by the Southern District of New York in

Angel Music, Inc. v. ABC Sports, Inc., the juridical link doctrine “carve[s] out an exception for

defendant classes whose conduct is standardized by a common link to an agreement, contract or

enforced system which acts to standardize the factual underpinnings of the claims and to insure

the assertion of defenses common to the class.” 112 F.R.D. 70, 77 (S.D.N.Y. 1986); see also

Trucking Emp’rs, 75 F.R.D. at 689 (finding a juridical link exists where “each member of the

defendant class provides an identical service, requires employees who possess identical skills,

and utilizes identical job classifications . . . [and] is a party to the National Master Freight

agreement or its area supplements”).

Here, Nationwide points to a key distinction in the present facts versus those in Trucking

Employers. Plaintiff does not allege that all plan participants signed identical or standardized

contracts. In fact, Plaintiff alleges the putative Defendant Class Members “entered into

° AW adopts Nationwide’s arguments by reference. (AW Opp’n to PI.’s Mot. for Class Cert. at 4, ECF

No. 134). In addition, AW contends that should the Court find a juridical link, and therefore conduct a

full Rule 23 analysis, Defendant Class certification fails under Rule 23(a)(4). (/d. at 1). First, AW

contends that making it “the unwilling representative of the putative defendant class would place [AW] in

the unfair and untenable position of incurring the unbearable expense of defending thousands of unrelated

plans or capitulating altogether.” (id. at 2). Second, AW argues that representing the Defendant Class

would raise conflicts of interest. Ud. at 3). For instance, if AW highlights the particular qualifications

and investigative efforts of its own advisors, it could simultaneously undercut the due diligence of other

plan sponsors. (/d. at 9). Consequently, AW maintains that it could not adequately represent the interests

of the Defendant Class. (Jal at 1).

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agreements with Nationwide for the same or similar services.” (Second Am. Compl. 73)

(emphasis added), Moreover, Nationwide points out that plan agreements varied based on the

information and services provided. (NW Mot. to Strike at 11-13) (citing AW Program

Agreement). Thus, Plaintiffs alleged injury, i-e., excessive fees, is not traceable to a specific

provision in a shared contract. Furthermore, Plaintiff presents no evidence to suggest that

Defendants acted in concert when investigating the terms of their proposed plan agreements.

Rather, AW represents that it “knows the process that it undertook in selecting Nationwide and

evaluating Nationwide’s fees . . . [bjut it and its counsel have absolutely no idea what steps the

sponsors of the thousands of other plans took in the same vein.” (AW Opp’n to P].’s Mot. for

Class Cert. at 2). Accordingly, the parties did not standardize their conduct by contracting with

Nationwide as part of a joint enterprise.

In sum, the Court finds the putative Defendant Class members do not share a juridical

link. As a result, Plaintiff lacks standing to sue each Defendant, and Rule 23 certification of the

putative Defendant Class would be improper. Because class certification fails on the issue of

sianding, the Court declines to analyze the Rule 23(a) and (b) factors with respect to the

Defendant Class. The Court DENIES Plaintiffs Motion for Class Certification with respect to

the Defendant Class.

B. Certification of Plaintiff Class

Plaintiff does not address standing in the context of Plaintiff Class certification. (See

generally Pl.’s Mot. for Class Cert.). Instead, Plaintiff asserts that the putative Plaintiff Class

satisfies Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy. (/d. at

1320). In addition, Plaintiff maintains that the putative Plaintiff Class would be manageable

12

pursuant to Rules 23(b)(1) or (b)(3).!° Nationwide claims that the “fiduciaries of the putative

plaintiff class plans are plainly indispensable to claims alleging they have violated ERISA, just

as the Court has already found AW to be indispensable to claims involving the AW plan.” (NW

Opp’n to PI.’s Mot. for Class Cert. at 15). Thus, Nationwide contends that “because Plaintiff

lacks standing to sue a class of defendants who have in no way injured her, her plaintiff class

allegations—on behalf of plans as to which she is a complete stranger—fail as well.” (/d.)

(citing NW Mot. to Strike at 13-17) (emphasis in original). AW asserts the same arguments,

stating that “the unavailability of a defendant class makes Plaintiff's proposed plaintiff class

untenable as well.” (AW Opp’n to Pl.’s Mot. for Class Cert. at 5),

The Court agrees with Defendants. In its August 24, 2018 Opinion and Order, this Court

held that AW, as Plaintiff's fiduciary, is an indispensable party pursuant to Rule 19. (Op. & Or.

8, ECF No. 46). The Court noted that, “although Nationwide and [A W’s] interests are similar,

they are not identical.” (Ud). Accordingly, the Court found that Nationwide could not

adequately protect AW’s interests in AW’s absence. (/d.). By that same logic, the similarly-

situated plan sponsors who acted as fiduciaries to the putative Plaintiff Class members (i.e., the

putative Defendant Class members) are also indispensable parties in the proposed class action.

As these fiduciaries are indispensable parties, the putative Plaintiff class cannot proceed against

Nationwide as the sole class action defendant.

Nor can the putative Plaintiff Class proceed against Nationwide, AW, and all similarly-

situated plan sponsors (i.e., putative Defendant Class members). In Thompson, pregnant

10 “Rule 23(b) Nis satisfied if prosecuting separate actions would create a risk of inconsistent or varying

adjudications that would establish incompatible standards for the defendants or that would be dispositive

of the interests of non-party class members. Rule 23(b)(3) is satisfied if (1) common questions

predominate over any questions affecting only individual members; and (2) class resolution is superior to

other available methods for the fair adjudication of the controversy.” (PI.’s Mot. for Class Cert. at 21)

(citing Fed. R. Civ. P. 23(b)).

13

teachers brought a Title VII action against approximately 500 school boards alleging

discrimination on the basis of sex. 709 F.2d at 1202. The Sixth Circuit reversed the district

court’s decision to certify both a plaintiff class and a defendant class, finding that “this case does

not fall within the second La Mar [juridical link] exception, and that the plaintiffs as a class do

not have standing.” Jd. at 1205. In particular, the Thompson court noted:

We reemphasize that this case does not involve a state statute or uniform policy

being applied statewide by the defendants. Each school board adopted its own

matemity leave policies to be applied to the teachers within that particular school

district. A separate determination will have to be made by the district court with

respect to each set of policies to decide whether, in fact, they treated pregnancy

differently from other temporarily disabling conditions. This type of situation

does not involve defendants that are ‘juridically related in a manner that suggests

a single resolution of the dispute would be expeditious.’”

id. (quoting La Mar, 489 F.2d at 466). The Sixth Circuit cited Vulcan Society v. Fire Dept. of

City of White Plains, 82 F.R.D. 379 (S.D.N.Y. 1979), in which several black firefighters sued

various townships alleging employment discrimination. Thompson, 709 F.2d at 1205. The

Southern District of New York denied certification of a plaintiff class, stating that “the individual

plaintiffs had no cause of action or standing against those municipalities for which they had not

worked.” /d. (citing Vulcan, 82 F.R.D. at 398-399).

As noted supra, this case presents analogous facts. Plaintiff can only assert a cause of

action against Nationwide and her plan sponsor, AW. Likewise, each of the 250,000 putative

Plaintiff Class members can only assert causes of action against Nationwide and their individual

plan sponsors. In other words, those putative Plaintiff Class members who did not utilize AW as

a fiduciary lack standing to bring claims against AW. Moreover, like the school boards in

Thompson, each plan sponsor negotiated its own distinct contract with Nationwide. Thus, the

juridical link exception articulated in Za Mar does not apply. Because the putative Plaintiff

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Class lacks standing to sue AW and all similarly-situated plan sponsors, the Court DENIES

Plaintiff's Motion for Class Certification with respect to the Plaintiff Class.

IV.

Both Nationwide and AW previously filed Motions to Strike the Class Allegations from

the Second Amended Complaint. (ECF Nos. 62 & 85). A court may strike class action

allegations prior to a motion for class certification “where the complaint itself demonstrates that

the requirements for maintaining a class action cannot be met.” Loreto v, Proctor & Gamble

Co., No. 1:09-cv-815, 2013 WL 6055401, at *2 (S.D. Ohio Nov. 15, 2013) (citing Pilgrim, 660

F.3d at 945). The Court denied Plaintiff's Motion for Class Certification in this Opinion and

Order. Accordingly, Defendants’ Motions to Strike are DENIED as moot.

V.

For the reasons stated above, Defendants’ Motions to Strike the Class Allegations from

the Second Amended Complaint are DENIED as moot (ECF Nos. 62 & 85), and Plaintiffs

Motion for Class Certification is DENIED (ECF Nos. 115 & 120).

IT YS SO ORDERED.

~14~lol4 fH 7 sn

DATE EDMUND *& GUS, JR.

CHIEF STATES DISTRICT JUDGE

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