MCDONALD v. LABORATORY CORPORATION OF AMERICA HOLDINGS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAMIAN MCDONALD, on behalf of the )

Laboratory Corporation of America )

Holdings Employees’ Retirement Plan, )

himself, and all others similarly situated, )

)

Plaintiff, )

) 1:22CV680

v. )

)

LABORATORY CORPORATION OF )

AMERICA HOLDINGS, )

Defendant.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Damian McDonald (“Plaintiff”), brought this action against Defendant Laboratory

Corporation of America Holdings (“LabCorp”), alleging a breach of LabCorp’s fiduciary duty

of prudence in violation of the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1001 et seq. (ECF No. 15 ¶ 4.) Before the Court is Plaintiff’s Motion for Class

Certification pursuant to Federal Rule of Civil Procedure Rule 23. (ECF No. 36.) For the

reasons stated herein, Plaintiff’s motion will be granted.

I. BACKGROUND

Plaintiff alleges that LabCorp is a statutory fiduciary of the Laboratory Corporation of

America Holdings Employees’ Retirement Plan (the “Plan”), a qualified retirement plan

governed by ERISA. (ECF No. 15 ¶¶ 1, 16, 18.) The Plan is a defined contribution 401(k)

plan that “provides the primary source of retirement income for many former LabCorp

in assets and had over 55,000 participants. (Id. ¶ 21.) Plaintiff is a current employee of

LabCorp and is a participant in the Plan. (Id. ¶ 23.) Specifically, Plaintiff alleges that LabCorp

breached its fiduciary duty of prudence by: (1) selecting imprudent investments for the Plan;

and (2) failing to prudently manage and control the compensation the recordkeeper received

from the Plan. (Id. ¶¶ 132–34.)

Plaintiff alleges, with respect to his first claim, that the Plan is eligible to qualify for the

“lowest-cost share classes available on the market” and LabCorp repeatedly included the Plan’s

investments in high-cost share classes. (ECF No. 37 at 11.) Plaintiff identifies fourteen share

classes of mutual funds he alleges are too expensive, and thirteen corresponding lower cost

alternatives. (ECF No. 15 ¶¶ 117, 120.) Regarding the second claim, Plaintiff alleges that the

Plan paid recordkeeping fees to a third-party service provider, Fidelity, for administrative

services using participants assets. (Id. ¶¶ 43–44.) He contends that the “cost of providing

recordkeeping services depends mainly on the number of participants in a plan,” and “most

plans are charged on a per participant basis.” (Id. ¶ 36.) Plaintiff believes that due to the size

of the Plan, recordkeeping services should be paid an annual rate of no more than $25 per

participant, but instead the Plan paid $43 per participant (or more) during that time. (See id.

¶¶ 44, 67–69, 71.) Plaintiff also alleges that LabCorp paid Fidelity excess compensation

through indirect methods such as revenue sharing, and interest earned on Plan participant

money while the money sits in Fidelity’s clearing account. (Id. ¶¶ 46–47.)

Plaintiff filed the instant Complaint on August 18, 2022. (ECF No. 1.) On October

24, 2022, LabCorp filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 9.)

Plaintiff then filed his First Amended Complaint on November 14, 2022. (ECF No. 15.) On

December 12, 2022, LabCorp filed a Motion to Dismiss Plaintiff’s First Amended Complaint

for Failure to State a Claim. (ECF No. 17.) On July 28, 2023, the Court granted in part and

denied in part LabCorp’s motion. (ECF No. 24 at 16.) This Court found that Plaintiff failed

to state a claim that LabCorp breached its duty of prudence by removing a mutual fund in

favor of a Mid Cap Growth CIT, and that all Plaintiff’s other claims were sufficient. (Id.)

Plaintiff filed the instant Motion for Class Certification on March 1, 2024. (ECF No. 37.)

II. LEGAL STANDARD

A plaintiff seeking class certification “must affirmatively demonstrate [his]

compliance” with Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 350 (2011). Parties must do this using “evidentiary proof.” Comcast Corp. v. Behrend, 569

U.S. 27, 33 (2013). Rule 23(a) requires that a prospective class satisfy four prerequisites to

ensure that the class claims are fairly encompassed by those of the named plaintiffs. See Fed.

R. Civ. P. 23(a). These prerequisites are often referred to as numerosity, commonality,

typicality, and adequacy. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 654 (4th Cir.

2019) (citing id.). The Fourth Circuit has also recognized that Rule 23 “contains an implicit

threshold requirement” of “ascertainability”—that the members of a proposed class be

“readily identifiable” by way of reference to objective criteria. See id. at 654–55. Once these

initial requirements are met, Plaintiff must then demonstrate that the proposed class fits

within at least one of the three types of classes outlined in Rule 23(b). Id. at 655.

While it is Plaintiff’s burden to demonstrate compliance with Rule 23, this Court “has

an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the

prerequisites have been satisfied.” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014)

(quoting Dukes, 564 U.S. at 350–51). As Rule 23’s criteria are often “enmeshed in the factual

and legal issues comprising the plaintiff’s cause of action,” this analysis may entail some

consideration of the merits of the underlying claims. Dukes, 564 U.S. at 351 (quoting Gen.

Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (internal citation omitted)). However,

“[m]erits questions may be considered . . . only to the extent . . . that they are relevant to

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

Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

III. DISCUSSION

This Court must make two initial determinations before considering the criteria set

forth under Rule 23(a): (1) that a precisely defined class exists, Roman v. ESB, Inc., 550 F.2d

1343, 1348 (4th Cir. 1976), and (2) that the class representatives are members of the proposed

class. E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). Plaintiff has defined

the class as “[a]ll persons who were participating in or beneficiaries of the Plan, at any time

between November 8, 2016, and the present.” (ECF No. 15 ¶ 26.) The Plan is “a qualified

retirement plan” made up of “[e]ligible current and former employees of LabCorp.” (Id. ¶¶

16, 19.) Plaintiff is a current employee of LabCorp and is a participant in the Plan. (Id. ¶ 23.)

LabCorp does not contest that these prerequisites have been met. (See ECF No. 39 at 2, 6–

12.) The Court concludes that Plaintiff has demonstrated the existence of a precisely defined

class, and Plaintiff is a member of the class he seeks to represent.

Regarding the prerequisites under Rule 23, the parties primarily dispute whether

Plaintiff and his counsel can adequately represent the interests of the proposed class. LabCorp

does not challenge the other prerequisites associated with class certification; however, this

Court out of an abundance of caution will address each prerequisite. The Court will begin

with the threshold 23(a) prerequisites. There are four prerequisites under Rule 23 that a class

must comply with in order to be certified. “(1) numerosity of parties; (2) commonality of

factual and legal issues; (3) typicality of claims and defenses of class representatives; and (4)

adequacy of representation.” Fed. R. Civ. P. 23(a). After satisfying these four requirements,

the class action must fall within one of three categories outlined in Rule 23(b). Gunnells v.

Healthplan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). Plaintiff seeks to proceed with

certification under Rule 23(b)(1). (ECF No. 37 at 25.) This rule allows certification if separate

actions by class members would create a risk of: (A) “inconsistent or varying adjudications …

that would establish incompatible standards of conduct for the party opposing the class;” or

(B) “adjudications with respect to individual class members that … 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.” Fed. R. Civ. P.

23(b)(1)(A)-(B).

A. Numerosity of Parties

Plaintiff asserts that numerosity is met because there are over 55,000 individual Plan

participants who will be class members. (ECF No. 37 at 21.) LabCorp does not contest that

Plaintiff has satisfied the numerosity requirement. (See ECF No. 39 at 2, 6–12.)

For numerosity to be met the proposed class must be “so numerous that joinder of all

members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no specified number needed to

maintain a class action. Cypress v. Newport News Gen. and Nonsectarian Hosp. Ass’n, 375 F.2d 648,

653 (4th Cir. 1967) (holding that a class of 18 is sufficiently large under the existing

circumstances). Furthermore, Rule 23 contains an “implicit threshold requirement” that

members of a proposed class be “readily identifiable.” Adair, 764 F.3d at 358 (internal

quotation marks omitted) (quoting Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972).

However, Plaintiff need not show they can identify every class member at the time of

certification. Id.

Here, the proposed class contains over 55,000 members, which is certainly large

enough to make joinder impractical. Additionally, the class members are readily identifiable.

The proposed class is made up of current and former employees of LabCorp that are Plan

participants, who can be ascertained through Plan records. (ECF No. 37 at 10.)

Therefore, the Court finds that Plaintiff has satisfied the Rule 23(a) numerosity

requirement.

B. Commonality of Factual and Legal Issues

Plaintiff asserts that commonality is met because there are numerous questions

common to the class including LabCorp’s alleged breach of fiduciary duty, and whether the

Plan suffered losses. (ECF No. 37 at 22.) These questions are ones that apply to all class

members because LabCorp’s conduct applied to the Plan as a whole. (Id.) LabCorp does not

state a position on the issue of commonality. (See ECF No. 39 at 2, 6–12.)

In order to satisfy the commonality requirement, there must be “questions of law or

fact common to the class.” Fed. R. Civ. P. 23(a)(2). Since any “competently crafted class

complaint literally raises common questions,” the important factor is that these questions

“generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at

349–50 (emphasis in original) (internal citation omitted). Although Rule 23(a)(2) speaks of

“questions,” plural, a “single common question” will satisfy the commonality requirement so

long as it is “of such a nature that its determination will resolve an issue that is central to the

validity of each one of the claims in one stroke.’” Id. at 350.

Plaintiff lists four questions common to the class: (1) the scope of LabCorp’s fiduciary

duties; (2) whether a breach or breaches of the fiduciary duties occurred; (3) whether the Plan

suffered losses; and (4) how to calculate the Plan’s losses. (ECF No. 37 at 22.) These questions

all appear well suited to common resolution as the answers will apply equally to all class

members and do not rely on any one Plan participants’ circumstances. Additionally, the

answers will “resolve an issue central to the validity” of whether LabCorp violated ERISA by

breaching its fiduciary duty. Dukes, 564 U.S. at 350.

Thus, this Court finds that Plaintiff has satisfied the Rule 23(a)(2) commonality

requirement.

C. Typicality of Claims and Defenses

Plaintiff asserts that typicality is met because the claims are all based on the same events,

LabCorp’s alleged breach of fiduciary duty. (ECF No. 37 at 23.) Further, they contend that

the claims are all based on the same “remedial theory,” enforcement of LabCorp’s obligations

under 29 U.S.C. § 1109(a) through § 1132(a)(2). (Id.) LabCorp does not contest that typicality

is satisfied. (See ECF No. 39 at 2, 6–12.)

To satisfy typicality, the claims of the named Plaintiff must be typical of the claims of

the class. Fed. R. Civ. P. 23(a)(3). Typicality is met when the claims asserted by the named

Plaintiff arise from the same course of conduct and are based on the same legal theories as the

claims of other class members. Haywood v. Barnes, 109 F.R.D. 568, 578 (E.D.N.C. 1986). This

does not require that the “plaintiff’s claims and the claims of class members be perfectly

identical or perfectly aligned.” Deiter v. Microsoft Corp., 436 F.3d 461, 467 (4th Cir. 2006).

However, courts will deny class certification “when the variation in claims strikes at the heart

of the respective causes of actions.” Id.

Here, “Plaintiff and all class members are bringing the same claims under the same

legal and remedial theory.” (ECF No. 37 at 24.) Plaintiff’s claims and the claims of the

proposed class members all center around the events surrounding LabCorp’s alleged breach

of fiduciary duty in the selection, administration, and monitoring of the Plan’s recordkeepers

and investments. (Id.) Additionally, the claims of the named Plaintiff and proposed class

members arise from the same legal theory: LabCorp’s fiduciary duty as imposed by ERISA.

(ECF No. 37 at 6.) Further, the same remedial theory is at play here, LabCorp’s obligation to

make good to the Plan all losses caused by a breach of duty and for the proper equitable relief.

(ECF No. 37 at 24 (citing 29 U.S.C. § 1109(a)).)

Therefore, the Court finds that Plaintiff has established that his claims are typical of

the claims of the class he seeks to represent in accordance with Rule 23(a)(3).

D. Adequacy of Representation

Plaintiff argues that adequacy is met because he is pursing claims on behalf of the entire

Plan rather than an individual claim. (ECF No. 37 at 25.) Plaintiff further argues that his

counsel meets the adequacy requirement because he has significant experience litigating class

actions. (Id.) LabCorp challenges the adequacy of both Plaintiff and his counsel by arguing

that (1) the suit is being controlled entirely by Plaintiff’s counsel and (2) Plaintiff’s counsel

“has demonstrated a lack of integrity.” (ECF No. 39 at 2 (internal citation omitted).) The

Court will address each argument in turn.

1. Adequacy of Named Plaintiff

LabCorp outlines three reasons why it believes Plaintiff is inadequate to represent the

class: (1) Plaintiff’s knowledge of the case comes only from what he has been told by his

counsel; (2) Plaintiff’s counsel objected based on attorney-client privilege when Plaintiff was

(3) Plaintiff did not contemplate filing a lawsuit concerning the Plan until after Plaintiff’s

counsel raised it. (ECF No. 39 at 6–7.) Plaintiff responds by arguing that he has sufficient

knowledge to adequately represent the class. (See ECF No. 40 at 3, 5–6.)

Under Rule 23, a representative party must “fairly and adequately protect the interests

of the class.” Fed. R. Civ. P. 23(a)(4). Although a robust understanding of the case isn’t

necessary, if Plaintiff lacks any understanding of the class representative’s role in litigation,

adequacy may not be satisfied. See Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385 (4th

Cir. 2009); see also Gunnells, 348 F.3d at 430 (It is hornbook law … that ‘[i]n a complex lawsuit

… the representative need not have extensive knowledge of the facts of the case in order to

be an adequate representative.’” (alteration in original) (internal citation omitted)). For

instance, Plaintiff may demonstrate that they can adequately represent the interests of the class

by showing they have knowledge of the case and of their duties as a class representative. 1

HERBERT B. NEWBERG & WILLIAM RUBENSTEIN, NEWBERG AND RUBENSTEIN ON CLASS

ACTIONS § 3:66 (6th ed. 2022). This inquiry also requires an investigation into the proposed

representative’s credibility or integrity and uncover any conflicts of interest between named

parties and the class they seek to represent. See Monroe, 579 F.3d at 385.

Here, LabCorp does not assert there is a conflict of interest between the Plaintiff and

the class Plaintiff seeks to represent, nor does this Court independently find there to be one.

(See ECF No. 39 at 2, 6–12.) With respect to Plaintiff’s knowledge of the case, LabCorp argues

that Plaintiff has no knowledge about his allegations in this case other than what he has been

told by his counsel. (ECF No. 39 at 6.) To support this contention, LabCorp quotes Plaintiff’s

deposition where he was asked “do you have any basis for believing that, other than any

conversations you may have had with your lawyer?” (ECF No. 39-2 at 44:16-17.) Plaintiff

responds, “I mean, I would only know about this, or understand this by talking with my

lawyer.” (Id. at 44:20-22.) Class action suits where the named plaintiff reports to have received

all their information about the potential class action from counsel does not necessarily make

that plaintiff inadequate. See e.g., Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 371–72 (1966)

(finding an uneducated plaintiff who was “illiterate in economic matters” was not inadequate

under Rule 23).

In Surowitz, the Supreme Court reversed the dismissal of a class action suit where the

Named Plaintiff was found to be “wholly ignorant” of the alleged facts of her case and

“verified the complaint, not on the basis of her own knowledge and understanding, but in the

faith that her son-in-law [an attorney] had correctly advised her either that the statements in

the complaint were true or to the best of his knowledge he believed them to be true.” Surowitz,

383 U.S. at 367, 370–71.

This Court does not find that Plaintiff receiving information about the suit from

counsel equates to him “lending his name to a suit controlled entirely by the class attorney,”

as LabCorp represents. (ECF No. 39 at 6 (quoting Monroe, 579 F.3d at 385 (internal citation

omitted).) LabCorp cites excerpts from Plaintiff’s deposition to support its argument that

Plaintiff has no knowledge about the allegations in this case or his role in the lawsuit. (See

ECF No. 39-2 at 64:13-18; 73:18–74:2; 88:1-10.) Plaintiff responds by citing to numerous

instances in the deposition that showcase his understanding of the allegations before the

Court. (See ECF No. 40 at 6.)

Plaintiff, unlike in Surowitz, has demonstrated a basic understanding of the facts of this

case and an interest in the litigation. Plaintiff knows the basis of his claims regarding the

alleged high recordkeeping expenses, he can identify the recordkeeping company, he discussed

a previous motion to dismiss that this Court ruled on, and he identified documents he

produced for this case, among other things. (See ECF No. 39-2 at 52:11–53:13, 56:10-17.)

Plaintiff also sat for a deposition in this case. Compare Clark v. Duke Univ., No. 1:16-CV-1044,

2018 WL 1801946, at *7 (M.D.N.C. Apr. 13, 2018) (finding that participation in depositions

show that named plaintiffs would adequately represent the class), with Monroe, 579 F.3d at 385

(affirming district court’s ruling against class certification where named plaintiff showed “little

interest in or knowledge and understanding of the case” and “offered virtually no evidence

refuting glaring questions as to his adequacy as a class representative”).

LabCorp’s second argument is that Plaintiff’s counsel objected based on attorney-

client privilege when Plaintiff was asked about the answers in his interrogatory. (ECF No. 39

at 7.) While asking Plaintiff about the answers to his interrogatory, LabCorp inquires whether

he “understood this response at the time [he] signed the interrogatory.” (ECF No. 39-2 at

40:8-9.) Plaintiff responds, “I mean somewhat” and explains that the part he did not

understand was “when he gets into the money, like, percentage, and things of that nature.”

(Id. at 40:10-18.) LabCorp then asks Plaintiff “you believe that this response is accurate based

on your conversation with your lawyers; is that correct?” (Id. at 43:22–44:2.) Plaintiff’s counsel

objects to form and instructs Plaintiff not to answer the question. (Id. at 44:3-5.) However

later instructs Plaintiff to answer, and Plaintiff states “I mean, I would only know about this,

or understand this by talking with my lawyer.” (Id. at 44:20-22.)

To support its contention that this is improper, LabCorp primarily references a

securities fraud case, Kelley v. Mid-Am. Racing Stables, Inc., from the Western District of

Oklahoma. 139 F.R.D. 405 (W.D. Okla. 1990); (ECF No. 39 at 6–7.) In Kelley, the court

found that the named plaintiff did not satisfy the adequacy requirement because he appeared

to “have no personal knowledge… of any wrongdoing or misrepresentations made by any

defendant” and demonstrated “an almost total lack of personal knowledge of their claims.”

139 F.R.D. at 410. Here, Plaintiff has demonstrated an understanding of his claims, as stated

above. Further, in Kelley, when the plaintiff was asked why he believed to have been defrauded,

his counsel directed him not to answer based on attorney client privilege. Kelley, 139 F.R.D.

at 410. Whereas here, the question that LabCorp points to was actually answered by Plaintiff

following his counsel’s objection. (Id. at 44:20-22.) The Court does not find LabCorp’s

argument regarding the objection persuasive.

2. Adequacy of Proposed Class Counsel

LabCorp argues that Plaintiff’s counsel does not meet the adequacy requirement

because they “made false statements to this Court and prepared false interrogatory responses

for Plaintiff.” (ECF No. 39 at 10, 10–11.) Plaintiff responds by asserting that LabCorp

misrepresents the facts pertaining to the alleged false statements. (ECF No. 40 at 11–12.)

Under Rule 23(g) “class counsel must fairly and adequately represent the interest of the

class.” Fed. R. Civ. P. 23 (g)(4). LabCorp argues that this is not met because Plaintiff’s

counsel in their Motion for Class Certification, (ECF No. 37), allegedly made two false

statements: (1) “both the documents and deposition testimony demonstrate Defendant

violated ERISA’s duty of prudence,” and (2) the “Defendant breached its fiduciary duty of

prudence mandated by ERISA … by allowing Fidelity to pocket from the Plan millions in

float compensation.” (ECF No. 39 at 10–11.) LabCorp states that Plaintiff’s counsel was

alerted in LabCorp’s deposition that Fidelity received no compensation from the Plan via float

after 2019, and float received prior to 2019 are accounted for in the 408(b)(2) disclosures. (Id.

at 11.) Because of this they believe Plaintiff’s counsel’s claim that “millions” were pocketed

by Fidelity is a false representation to the Court and to Plaintiff. (Id.) Additionally, LabCorp

believes that Plaintiff’s counsel had Plaintiff falsely claim to the Court that LabCorp “has not

yet produced documents or evidence to show what the recordkeeper was compensated from

the Plan via float.” (Id. at 12 (internal citation omitted).) LabCorp asserts that the documents

in question were timely provided to the Plaintiff, and they filed email documentation of their

submission. (See ECF No. 39-7 at 2.)

Although an analysis into class certification may entail some consideration of the

merits of the underlying claims, this Court refuses to find that Plaintiff’s counsel is

inadequate based on differing perspectives surrounding what appears to be the heart of

Plaintiff’s claim. See Dukes, 564 U.S. at 351. Whether the Plan paid Fidelity millions in float

compensation or thousands, is not relevant to determining whether the Rule 23(a)(4)

prerequisite for class certification is satisfied. Additionally, an inquiry into whether Plaintiff’s

interrogatory correctly or incorrectly states that certain documentation has or has not been

received, does not bear on the adequacy of Plaintiffs counsel’s ability to represent the class.

What is relevant to this determination is “the work counsel has done in identifying or

investigating potential claims in the action; counsel’s experience handling class actions, other

complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the

applicable law; and the resources that counsel will commit to representing the class.” Fed. R.

Civ. P. 23(g)(1)(A)(i)-(iv).

To support its argument, LabCorp references a case in which the 7th Circuit found

plaintiff’s counsel inadequate. Creative Montessori Learning Ctr. v Ashford Gear LLC., 662 F.3d

913 (7th Cir. 2011). In Creative Montessori, plaintiff brought a class suit under the Telephone

Consumer Protection Act, which imposes damages on those who send out an unsolicited fax.

Id. at 914–15. Plaintiff’s counsel in that case gained evidence of an unsolicited fax from a fax

broadcaster after plaintiff’s counsel promised not to disclose any material she provided to a

third party. Id. However, once counsel received the evidence they reached out to a third party,

plaintiff, Creative Montessori, one of the recipients of the unsolicited fax. Id. The court found

that conduct by counsel need not be “egregious” to require denial of class certification. Id. at

918. However, the “lack of integrity” shown by counsel caused the court to “cast serious

doubt on their trustworthiness as representatives of the class.” Id. at 917. Those facts could

not be further from those before this Court. Here, LabCorp’s argument appears to be a mere

disagreement on the evidence surrounding the merits of the case, which is distinguishable

from the deceitful practice of the proposed class counsel in Creative Montessori.

In this case, Plaintiff’s counsel, Brandon J. Hill appears to be an experienced class

action litigator and has been practicing for 17 years. (ECF No. 40 at 8.) He provided this

Court with a list of forty-two class actions in which he was appointed as class counsel. (ECF

No. 37-2 ¶ 8.) Mr. Hill is also currently litigating “approximately fifteen ERISA class action

cases throughout the country.” (Id. ¶ 7.) In addition, Mr. Hill’s co-counsel, Michael McKay,

has practiced almost exclusively ERISA class action suits for the past 20 years. (ECF No. 40

at 9.) He has acted as class counsel in over sixty certified class action lawsuits. (ECF No. 37-

6 ¶ 3.) Mr. McKay is currently litigating over fifteen ERISA nationwide class actions and has

been formally appointed as class counsel in several of those. (Id. ¶ 5.) Both attorneys possess

the experience and expertise necessary to adequately litigate the suit at hand. In addition to

their extensive class action experience, according to counsel, they have retained the country’s

“foremost ERISA expert witnesses” to analyze the data and provide feedback prior to filing

the Complaint. (ECF No. 40 at 10.) They have clearly demonstrated that they have dedicated

resources and work to identify potential claims and represent the class.

The Court concludes that Plaintiff and his Counsel would adequately represent the

class. Thus, the requirements of numerosity, commonality, typicality, and adequacy have been

met. The Court now turns its attention to whether Plaintiff’s proposed class can be certified

under Rule 23(b).

E. Certification Pursuant to Rule 23(b)(1)

Plaintiff seeks to proceed with certification under Rule 23(b)(1). (ECF No. 37 at 25.)

LabCorp does not contest Plaintiff’s certification under Rule 23(b)(1). (See ECF No. 39 at 2,

6–12.) This rule allows certification if separate actions by class members would create a risk

of: (A) “inconsistent or varying adjudications … that would establish incompatible standards

of conduct for the party opposing the class;” or (B) “adjudications with respect to individual

class members that … 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.” Fed. R. Civ. P. 23(b)(1)(A)-(B).

Here, Plaintiff brings a claim on behalf of Plan participants and the recovery he seeks

is on behalf of the Plan. Separate adjudication of these claims by individual Plan members

could substantially “impair or impede” other Plan members who may bring claims. Rule

23(b)(1)(B). Adjudicating these claims requires a determination on the Plan as a whole, not

individual claims by separate Plan participants.

Additionally, certification under Rule 23(b)(1)(B) is appropriate in “an action which

charges breach of trust by an indenture trustee or other fiduciary similarly affecting the

members of a large class of security holders or other beneficiaries, and which requires an

accounting or like measures to restore the subject of the trust.” See Fed. R. Civ. P. 23, Advisory

Committee Note, 1966 Amendments; see also Ortiz v. Fireboard Corp., 527 U.S. 815, 833–34

(1999) (referencing the Civil Rules Advisory Committee Note for the same proposition).

Therefore, the Court finds that certification is proper under Rule 23(b)(1)(B).

IV. CONCLUSION

The prerequisites of numerosity, commonality, typicality, and adequacy are satisfied

here. Additionally, Rule 23(b)(1) certification is proper. In conclusion, the Court grants the

certification of the proposed class.

Plaintiff’s motion will be granted.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Class Certification,

(ECF No. 36), is GRANTED, and Damian McDonald is hereby appointed as class

representative, and McKay Law LLC and Wenzel Fenton Cabassa, P.A. are hereby appointed as

class counsel for Plaintiffs.

This, the 16th day of October 2024.

/s/ Loretta C. Biggs

United States District Judge