Packer v. Glenn O. Hawbaker, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LESTER PACKER, SR., No. 4:21-CV-01747

LESTER PACKER, II, and

SHAWN DYROFF, individually and (Chief Judge Brann)

on behalf of the Glenn O. Hawbaker,

Inc. Benefit Plan,

Plaintiffs,

v.

GLENN O. HAWBAKER, INC.,

BOARD OF DIRECTORS OF

GLENN O. HAWBAKER, INC.,

PLAN ADMINISTRATOR OF THE

GLENN O. HAWBAKER, INC.

BENEFIT PLAN, and

JOHN DOES 1–20,

Defendants.

MEMORANDUM OPINION

JUNE 6, 2023

In this putative class action, the Plaintiffs allege that their employer—the

heavy construction contractor Glenn O. Hawbaker, Inc.—stole their pension and

health and welfare benefits, as well as those of their coworkers similarly assigned

to public, prevailing wage projects. Accordingly, the Plaintiffs have brought claims

under the Employee Retirement Income Security Act of 1974 (“ERISA”) against

Hawbaker, the Hawbaker Board of Directors, and the Administrator of Hawbaker’s

employee benefits plan. They now move for class certification. Because they have

satisfied the requirements of Federal Rule of Civil Procedure 23, the motion is

granted.

I. BACKGROUND

On April 8, 2021, the Office of the Attorney General for the Commonwealth

of Pennsylvania filed a criminal complaint against Hawbaker, alleging that the

company failed to provide its employees working prevailing wage jobs with the

required “fringe benefits” under Hawbaker’s employee benefits plan (the

“Hawbaker Benefit Plan” or “Plan”).1 Specifically, the Attorney General asserted

that Hawbaker stole “its prevailing wage workers’ pension and health and welfare

money,” using those “fringe benefit funds to lower its costs, thereby helping [it]

win more government bids, and increase the company’s profits.”2 Between 2015

and 2018, the fringe benefit funds Hawbaker allegedly stole from its prevailing

wage workers totaled more than $20 million.3 The Attorney General brought four

charges of Theft by Failure to Make Required Disposition of Funds Received, in

1 See Doc. 30-1 (Hawbaker Criminal Complaint & Affidavit of Probable Cause). Constructor

contractors like Hawbaker that work on certain public works projects in Pennsylvania are

subject to the Davis-Bacon Act and its Pennsylvania corollary, the Prevailing Wage Act. See

id. at 8. As explained in the probable cause affidavit attached to the Attorney General’s

criminal complaint, those laws “create a level playing field by ensuring that every bidder on a

project that received federal or state funds pays the same wage rates” (i.e., the “prevailing

wage”). Id. The prevailing wage determinations “consist[] of both an hourly base rate and an

amount allowable as a fringe benefit credit.” Id. at 9. The fringe benefit credit allows employers

to offset the costs they incur for providing certain employee benefits—such as health

insurance, retirement plans, or paid time off. Id.

2 Doc. 30-1 (Hawbaker Criminal Complaint & Affidavit of Probable Cause) at 12.

violation of 18 Pa. C.S. § 3927(a)—one claim for each year between 2015 and

2018.4

In August 2021, Hawbaker pleaded nolo contendere to all four counts,

effectively accepting punishment for the offenses without admitting to the facts

alleged.5 As part of the plea agreement, Hawbaker committed to “pay restitution

for the charged period in the amount of $20,696,453.00 to affected victims.”6

Attached to the plea agreement was a restitution table listing 1,262 prevailing wage

workers, with the restitution amount owed itemized by worker.7

Two months later, the Plaintiffs—Lester Packer Sr., Lester Packer II, and

Shawn Dyroff—initiated the instant action.8 All three men worked at Hawbaker

between 2012 and 2018, with each dedicating at least 95 percent of their work to

prevailing wage projects.9 The Plaintiffs styled their Complaint as a putative class

action, bringing on behalf of all “current and former hourly wage employees who

worked on prevailing wage contracts at Hawbaker within the Commonwealth of

Pennsylvania during the period September 1, 2018, though December 31, 2018,”

4 Id. at 2–3, 21.

5 See Doc. 30-2 (Hawbaker Plea Agreement); see also United States v. Poellnitz, 372 F.3d 562,

568 (3d Cir. 2004) (“Under Pennsylvania law, ‘[a]lthough the effect of a plea of nolo

contendere is equivalent to a plea of guilty, the import of the pleas is not the same. In pleading

nolo contendere[,] the defendant does not admit his guilty, but merely consents to being

punished as if he were guilty.’” (quoting Commonwealth v. Gunter, 771 A.2d 767, 773 (Pa.

2001) (Cappy, J., concurring)).

6 Doc. 30-2 (Hawbaker Plea Agreement) at 3.

7 See Doc. 32 (Hawbaker Restitution Table – SEALED).

8 See Doc. 1 (Compl.).

9 Id. ¶¶ 8–9; see also Doc. 27-2, Ex. A (Jan. 10, 2023, L. Packer, Sr. Decl.); Doc. 27-3, Ex. B

claims for breach of fiduciary duty and failure to adequately monitor other

fiduciaries against Hawbaker, its Board of Directors, and the Administrator of the

Hawbaker Benefit Plan.10

The Plaintiffs moved for class certification on January 16, 2023.11 That

motion has been fully briefed and is now ripe for disposition.12

II. LAW

Plaintiffs seeking class certification must “satisfy the prerequisites of

Rule 23(a)” and also “show that the action is maintainable under Rule 23(b)(1),

(2), or (3).”13 To succeed, they must “affirmatively demonstrat[e]” their

compliance with the requirements of Rule 23 “by a preponderance of the

evidence.”14

When assessing whether certification is proper, courts must “refrain from

conducting a preliminary inquiry into the merits.”15 That said, the United States

Court of Appeals for the Third Circuit directs courts to “carefully examine the

factual and legal allegations.”16

10 See Doc. 1 (Compl.) ¶¶ 82–93 (class action allegations), 94–102 (Count I: Breach of Fiduciary

Duties of Loyalty and Prudence, against Hawbaker and the Plan Administrator), 103–09

(Count II: Failure to Adequately Monitor Other Fiduciaries, against Hawbaker and the Board).

11 See Doc. 26 (Class Cert. Mot.).

12 See Doc. 27 (Class Cert. Br.); Doc. 28 (Defs’ Opp.); Doc. 29 (Plaintiffs’ Reply).

13 Barnes v. American Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998) (internal quotation marks

and citation omitted).

14 Russell v. Educational Commission for Foreign Medical Graduates, 15 F.4th 259, 265

(3d Cir. 2021) (internal quotation marks and citation omitted).

15 Barnes, 161 F.3d at 140.

III. ANALYSIS

The Plaintiffs move under Rules 23(a) and 23(b)(1) to certify the following

class:

All current and former hourly wage employees who

worked on prevailing wage contracts at [Hawbaker] within

the Commonwealth of Pennsylvania during the period

September 1, 2012, through December 31, 2018.17

For the reasons provided below, the Court finds that the Plaintiffs have satisfied all

four prerequisites of Rule 23(a) as well as the requirements of both

Rules 23(b)(1)(A) and 23(b)(1)(B). Class certification is therefore warranted.

A. Rule 23(a)

Under Rule 23(a), plaintiffs must satisfy four prerequisites: (1) numerosity,

(2) commonality, (3) typicality, and (4) adequacy of representation.18 The Court

addresses each in turn.

1. Numerosity

The first Rule 23(a) prerequisite asks whether “the putative class is ‘so

numerous that joinder of all members is impracticable.’”19 Neither the rule nor

courts interpreting it have imposed a “minimum number of plaintiffs . . . required

to maintain a suit as a class action.”20 That said, the Third Circuit instructs that

17 Doc. 27 (Class Cert. Br.) at 2.

18 See Barnes, 161 F.3d at 140 (citing Fed. R. Civ. P. 23(a)).

19 Johnston v. HBO Film Management, Inc., 265 F.3d 178, 184 (3d Cir. 2001) (quoting

Fed. R. Civ. P. 23(a)(1)).

20 In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016) (internal quotation marks and

“generally[,] if the named plaintiff demonstrates that the potential number of

plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.”21

In their moving brief, the Plaintiffs claim there were “1,400 plus

participants” in the Hawbaker Benefits Plan during the class period.22 But as proof,

the Plaintiffs cite only the “Annual Return/Report of Employee Benefit Plan on

Form 5500 for 2018,” for which they provide the URL; they offer no evidence

received via discovery and make no mention of the criminal complaint against

Hawbaker filed by the Pennsylvania Attorney General.23

In response, the Defendants bemoan the lack of evidentiary support, noting

that the Plaintiffs have not “point[ed] to any record evidence regarding the number

of eligible prevailing wage workers.”24 Indeed, although the proposed class

includes only “hourly wage employees who worked on prevailing wage contracts,”

the Plaintiffs’ moving brief did not “specify how many of these workers there

actually were.”25

But the Plaintiffs remedy this deficiency in their Reply brief. Specifically,

the Plaintiffs note that their Complaint “tracks almost verbatim the irrefutable (and

21 Id. at 249–50 (internal quotation marks and citation omitted).

22 See Doc. 27 (Class Cert. Br.) at 18 (citing Annul Return/Report of Employee Benefit Plan on

Form 5500 for 2018, at 3).

23 See id.

24 Doc. 28 (Defs’ Opp.) at 10.

25 Id. (emphasis omitted). All quotations from the Defendants’ brief included in this

Memorandum Opinion omit the bold and/or italics that Defense counsel added for emphasis.

See Hyperphase Technologies, LLC v. Microsoft Corp., No. 02-C-647-C (W.D. Wis.

unrebutted) proof of [Hawbaker’s] criminal conduct, which is set forth in the

[Attorney General’s] criminal complaint charging [Hawbaker] with four felonies of

‘theft by failure to make required disposition of funds received.’”26 They

emphasize that Hawbaker “entered into a plea agreement, in which it pleaded no

contest to the four felony charges and agreed to pay restitution to the 1,262

prevailing wage workers listed on Attachment A to the plea agreement.”27 The

Plaintiffs identify those 1,262 prevailing wage workers as “the Class Members,”

arguing that “the restitution amounts for each” contained in the Attachment “prove

conclusively that each Class Member suffered an ascertainable loss of retirement

benefits during the Class Period.”28 To the extent there are class members not

encompassed by Hawbaker’s plea agreement, the Plaintiffs argue that their

identities can be established through Hawbaker’s business records (which

Hawbaker purportedly has yet to produce in this case).29

As the Plaintiffs note, Federal Rule of Evidence 201 provides that courts

may take “judicial notice” of facts “not subject to reasonable dispute because

[they] . . . can be accurately and readily determined from sources whose accuracy

26 Doc. 29 (Plaintiffs’ Reply) at 1 (citing Doc. 30-1 (Hawbaker Criminal Complaint & Affidavit

of Probable Cause)).

27 Id.

28 Id. at 4.

29 Id. at 5; see also id. at 2 (“While Defendants have produced some documents, they have failed

to provide relevant electronic records (such as company payroll records and Prevailing Wage

cannot reasonably be questioned.”30 Consistent with that Rule, the Court takes

judicial notice of the Pennsylvania Attorney General’s criminal complaint,

Hawbaker’s nolo contendere plea, and the employee information contained in the

restitution table attached to the plea agreement.31 The Court agrees with the

Plaintiffs that by pleading no contest to the four offenses charged, Hawbaker has,

indeed, rendered the existence of the plea agreement and the employment records

attached thereto “irrefutable.”32 And those facts establish that the potential number

of plaintiffs significantly exceeds the forty (40) sufficient to satisfy the numerosity

requirement.

2. Commonality

For the second prerequisite of Rule 23(a), plaintiffs must demonstrate “that

‘there are questions of law or fact common to the class.’”33 The Third Circuit

explains that commonality “does not require an identity of claims or facts among

class members; instead, the commonality requirement will be satisfied if the named

plaintiffs share at least one question of fact or law with the grievances of the

prospective class.”34

30 Fed. R. Evid. 201(b)(2).

31 See Doc. 30-1 (Hawbaker Criminal Complaint & Affidavit of Probable Cause);

Doc. 30-2 (Hawbaker Plea Agreement); Doc. 32 (Hawbaker Restitution Table – SEALED).

32 Doc. 29 (Plaintiffs’ Reply) at 3.

33 Johnston, 265 F.3d at 184 (citing Fed. R. Civ. P. 23(a)(2)).

Here, the Plaintiffs identify several “overarching questions of law or fact”

that are “applicable to all Plan participants,” including “whether [the] Defendants

breached fiduciary duties owed to the Plan and its participants by failing to pay

properly and timely the correct amount of wages and benefits.”35 The Defendants

again respond by citing the Plaintiffs’ purported failure to provide “evidence

regarding when or how often either the named class representatives or the putative

class members worked on prevailing wage projects.”36 According to the

Defendants, the absence of evidence is particularly important for this Rule 23(a)

prerequisite because “it is entirely possible that certain putative class members are

owed no money at all and that certain putative class members have actually been

overpaid under Hawbaker’s policy.”37

But as the Plaintiffs argue, this concern is obviated by the restitution

schedule attached to Hawbaker’s plea agreement: because the restitution schedule

itemizes Hawbaker’s payment obligations by plan participant, and the listed

participants comprise the bulk of the putative class, the Plaintiffs can show both

35 Doc. 27 (Class Cert. Br.) at 19.

36 Doc. 28 (Defs’ Opp.) at 12–13.

37 Id. at 13 (explaining that “the ‘prevailing wage money’ was allegedly distributed into each

employee’s individual retirement account, regardless of whether that individual ever worked

on a prevailing wage project (or, regardless of how many prevailing wage projects each

that the class members are entitled to damages and precisely how much each

member is owed.38

The Court therefore concurs with the Plaintiffs that there are questions of

both law and fact common to the proposed class, and finds the Defendants’

objections unpersuasive. The Plaintiffs have satisfied the commonality

requirement.

3. Typicality

The third Rule 23(a) prerequisite asks whether “the claims of the class

representatives [are] typical of the class as a whole.”39 For this, “the district court

must determine whether the named plaintiffs’ individual circumstances are

markedly different or the legal theory upon which the claims are based differs from

that upon which the claims of other class members will perforce be based.”40

Accordingly, the typicality showing is relatively modest: “so long as the claims of

the named plaintiffs and putative class members involve the same conduct by the

defendant, typicality is established regardless of factual differences.”41

Here, the alleged injuries to all proposed class members stem from the same

conduct. According to the Plaintiffs, the Defendants breached their fiduciary duties

by not paying the Hawbaker Benefits Plan participants “the correct amount of

38 See Doc. 29 (Plaintiffs’ Reply) at 7; see also Doc. 32 (Hawbaker Restitution Table –

SEALED).

39 Johnston, 265 F.3d at 184.

40 Id. (brackets, ellipsis, and internal quotation marks omitted).

wages and benefits.”42 The Defendants’ response is again premised solely on the

purported absence of evidentiary support for the Plaintiffs’ claims.43 But, as

discussed, this objection is without merit: the allegations in the Pennsylvania

Attorney General’s criminal complaint and the supporting documentation attached

thereto provide the factual basis for both this case and the Plaintiffs’ motion for

class certification.44 Moreover, each of the named Plaintiffs submitted declarations

affirming they were participants in the Hawbaker Benefits Plan and that they

worked on Hawbaker’s prevailing wage projects in Pennsylvania during the Class

Period.45 And the Complaint contains specific allegations about their dates of

employment, job titles, and the amount of time spent of prevailing wage projects.46

Taken together, this information establishes that the claims the Plaintiffs

advance on their behalf and on behalf of all other putative class members involve

42 Doc. 27 (Class Cert. Br.) at 21; see also Doc. 29 (Plaintiffs’ Reply) at 9–10 (“The breach of

fiduciary claims of [the] Plaintiffs and all other Class Members seek to redress [the]

Defendants’ uniform failure to comply with the terms of the Plan and [U.S. Department of

Labor] regulations by failing to make required contributions to the 401(k) accounts of [the]

Plaintiffs and the Class within the strict time limitations for making such contributions and

making contributions that were less than the required amounts throughout the Class Period.

[The] Defendants’ fiduciary breaches caused the Plan to sustain millions of dollars of losses,

and every worker (Class Member) listed on Attachment A to the [Hawbaker] plea agreement—

like [the] Plaintiffs—would have had more money available to them for retirement due to [the]

Defendants’ wrongful acts.”) (internal citations omitted).

43 See Doc. 28 (Defs’ Opp.) at 14 (“Plaintiffs cannot satisfy the typicality requirement, as they

fail to provide any evidence about themselves, or about the members of the putative class they

seek to represent, other than the fact that they were Hawbaker employees who allegedly

worked on prevailing wage projects at some point during the defined class period.”).

44 See Doc. 30-1 (Hawbaker Criminal Complaint & Affidavit of Probable Cause).

45 See Doc. 27-2, Ex. A (Jan. 10, 2023, L. Packer, Sr. Decl.); Doc. 27-3, Ex. B (Jan. 10, 2023,

L. Packer II Decl.); Doc. 27-4, Ex. C (Jan. 10, 2023, S. Dyroff Decl.).

the same conduct by the Defendants. The typicality requirement is therefore

satisfied.

4. Adequacy of Representation

The final Rule 23(a) prerequisite provides that “class representatives must

‘fairly and adequately protect the interests of the class.’”47 And for that, the

required showing is twofold: the named plaintiffs must demonstrate that their

interests do not “conflict with those of the class,” and that “the class attorney is

capable of representing the class.”48

Here, the Plaintiffs have established both prongs of the adequacy inquiry. As

the Supreme Court of the United States has explained, the first prong of the

adequacy inquiry “tends to merge with the commonality and typicality criteria of

Rule 23(a),” as all “serve as guideposts for determining whether maintenance of a

class action is economical and whether the named plaintiff’s claim and the class

claims are so interrelated that the interests of the class members will be fairly and

adequately protected in their absence.”49 Accordingly, this Court’s findings

concerning commonality and typicality apply with equal force to this Rule 23(a)

prerequisite. The Court agrees with the Plaintiffs that they “have the same

47 Johnston, 265 F.3d at 185 (quoting Fed. R. Civ. P. 23(a)(4)).

48 Id.

49 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (internal quotation marks,

brackets, and ellipses omitted); see also In re Schering Plough Corp. ERISA Litig.,

589 F.3d 585, 602 (3d Cir. 2009) (“There are clear similarities between the components of the

typicality inquiry relating to the absence of unique defenses and alignment of interests, and

incentives and motivations to obtain full relief from [the] Defendants as all other

Class Members.”50

For the second prong, the Court likewise concurs with the Plaintiffs: they

have, indeed, “retained experienced class action attorneys who are well qualified to

pursue the Class’s claims.”51 The Defendants have not raised any issues regarding

the adequacy of the Plaintiffs’ counsel for purposes of representing the Class.52

B. Rule 23(b)

Because the Plaintiffs have satisfied the Rule 23(a) requirements, the Court

now turns to Rule 23(b), which outlines in subsections (1) to (3) the three “types”

of classes that “may be certified.”53 Here, the Plaintiffs seek certification under

Rule 23(b)(1). That rule authorizes classes in two circumstances: if prosecuting

separate actions by or against individual class members would create either

“(A) inconsistent or varying adjudications with respect to individual class members

that would establish incompatible standards of conduct for the party opposing the

class”; or “(B) adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other members not

parties to the individual adjudications or would substantially impair or impede their

50 Doc. 29 (Plaintiffs’ Reply) at 12.

51 Id.

52 See Doc. 28 (Defs’ Opp.) at 17 n.4 (“Hawbaker does not dispute the alleged qualifications of

Plaintiffs’ counsel under Rule 23(a)(4)’s adequacy prong.”) (cleaned up).

ability to protect their interests.”54 The proposed class satisfies the requirements of

both Rule 23(b)(1)(A) and Rule 23(b)(1)(B).

The Third Circuit has consistently “held that ERISA ‘breach of fiduciary

duty claims brought under § 502(a)(2) are paradigmatic examples of claims

appropriate for certification as a Rule 23(b)(1) class.’”55 For Rule 23(b)(1)(A), this

Court finds particularly instructive the rulings in Boley v. Universal Health

Services, Inc. At the district court level, my colleague from the Eastern District of

Pennsylvania, the Honorable Mark A. Kearney, found certification appropriate

under Rule 23(b)(1)(A) for the ERISA breach of fiduciary duty action.56

Judge Kearney explained that because “[t]he [p]articipants—on behalf of the

[p]lan—generally allege[d] the [f]iduciaries mismanaged the [p]lan’s investments,

failed to monitor the decision-making process regarding investments, and allowed

participants to be charged excessive fees,” if he “allowed separate actions to

proceed, the [f]iduciaries could be subject to varying and incompatible standards of

conduct and liability.”57 This ruling was not disturbed on appeal.58

As in Boley, this case centers on allegations that fiduciaries mismanaged the

funds in an employee benefit plan, with companion allegations that the company

54 Fed. R. Civ. P. 23(b)(1)(A), (B).

55 Boley v. Universal Health Services, Inc., 36 F.4th 124, 136 (3d Cir. 2022) (quoting Schering

Plough, 589 F.3d at 604)).

56 Boley v. Universal Health Services, Inc., 337 F.R.D. 626, 638–39 (E.D. Pa. 2021), aff’d 36

F.4th 124 (3d Cir. 2022).

57 Id. at 639.

and its board of directors failed to monitor the fiduciaries’ activities.59

Accordingly, the analysis in Boley applies with equal force here: allowing separate

actions to proceed could result in contrary rulings concerning the scope of the

Defendants’ respective duties and whether their conduct violated those duties. The

Court therefore agrees with the Plaintiffs that “one district court should determine

whether [the] Defendants’ uniform conduct with respect to the [Hawbaker Benefits

Plan] constitutes a breach of fiduciary duties.”60

Separately, the Defendants argue that certification under Rule 23(b)(1)(A)

would be improper in this case because the predominant relief sought is monetary

damages, citing a 1997 district court ruling from the Eastern District of

Pennsylvania in Wilensky v. Olympic Airways, S.A. for the proposition that

Rule 23(b)(1) “was not intended to authorize certification where a primary

objective of the class action is monetary damages.”61 But that case was a putative

class action concerning alleged violations of the Federal Aviation Act.62 The

59 See Doc. 1 (Compl.) ¶¶ 99 (alleging that Hawbaker and the Plan Administrator breached their

fiduciary duties by “failing to make required contributions to [the] Plaintiffs’ and the [Class’s]

individual 401(k) accounts within the strict time limitations for making such contributions and

in [the] required . . . amounts”), 107 (alleging that Hawbaker and its Board of Directors

“[f]ail[ed] to monitor and evaluate the performance of the Plan Administrator” and “the process

by which Plan contributions were made to participant amounts”).

60 Doc. 29 (Packer Reply) at 14.

61 See Doc. 28 (Defs’ Opp.) at 19 (quoting Wilensky v. Olympic Airways, S.A., 73 F.R.D. 473,

477 (E.D. Pa. 1997)).

Defendants provide no analysis for how that case—or the principal holding for

which its cited—applies to ERISA breach of fiduciary duty class actions.63

That’s for good reason. In Boley, Judge Kearney confronted the same

argument the Defendants’ present here and described it as “a misapprehension of

the nature of an ERISA class action case,” in which any damages awarded “would

belong to the [benefits plan] in the first instance rather than to the [p]lan

participants.”64 Judge Kearney held that “[t]he fact the [p]lan would subsequently

distribute damages to [p]lan participants does not convert the lawsuit into one

where putative [c]lass members are directly seeking individualized monetary

damages.”65 This Court again concurs with Judge Kearney; the Plaintiffs are not

barred from certifying their putative class under Rule 23(b)(1) due to the nature of

the damages at issue.

For Rule 23(b)(1)(B), the Court looks to the Third Circuit’s ruling in

In re Schering Plough Corp. ERISA Litigation. In that case, the Third Circuit

affirmed the district court’s decision granting certification under Rule 23(b)(1)(B)

in an ERISA breach of fiduciary duty action.66 The Third Circuit explained that

unlike class certification under Rule 23(b)(3), for “Rule 23(b)(1)(B) class

certification . . . there is no predominance or superiority requirement”; the question

63 See Doc. 28 (Defs’ Opp.) at 19.

64 337 F.R.D. at 638 (quoting Jacobs v. Verizon Communications, 2020 WL 4601243, at *14

(S.D.N.Y. June 1, 2020)).

65 Id.

is only whether prosecuting separate actions would create a risk of “adjudications

with respect to individual class members that, as a practical matter, would be

dispositive of the interests of the other members not parties to the individual

adjudications or would substantially impair or impede their ability to protect their

interests.”67 To that end, the Third Circuit explained that ERISA breach of

fiduciary duty claims “are based on [a] defendants’ conduct, not . . . on unique

facts and individual relationships,” and, as such, an individual plaintiff’s “proofs

regarding [the] defendants’ conduct will, as a practical matter, significantly impact

the claim of other [participants in the benefits plan at issue].”68

That ruling controls the Court’s analysis here. Because the Plaintiffs’ claims

are based on the Defendants’ administration or oversight of the Hawbaker Benefits

Plan, the class members, were they forced to litigate their claims individually,

would have to make identical showings—presumably relying on the same

evidence. Accordingly, as in Schering Plough, a ruling as to one class member

would “significantly impact the claim[s] of other [participants in the Hawbaker

Benefits Plan].”69 Class certification is therefore appropriate under

Rule 23(b)(1)(B) as well.

67 Id. at 604 (citing Fed. R. Civ. P. 23(b)(1)(B)).

68 Id.

IV. CONCLUSION

Given the clear direction provided by the Third Circuit, this Court is

favorably disposed to requests for class certification on ERISA breach of fiduciary

duty claims such as those presented here. And by tethering their claims to the

criminal complaint the Pennsylvania Attorney General brought against

Hawbaker—to which Hawbaker pleaded no contest—the Plaintiffs have presented

the evidence necessary to meet their obligations under Rule 23. The motion for

class certification is therefore granted.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge