The opinion
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
IN RE: AME CHURCH EMPLOYEE ) Lead Case No.
RETIREMENT FUND LITIGATION, ) 1:22–md–03035–STA–jay
)
) ALL CASES
ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL RECONSIDERATION
OF ORDER GRANTING CLASS CERTIFICATION
Before the Court is Plaintiffs’ Motion for Partial Reconsideration of Order Granting Class
Certification (ECF No. 1106) filed January 12, 2026. Plaintiffs ask the Court to reconsider two
discrete aspects of its class certification ruling. Defendant Symetra Life Insurance Company
(“Symetra”) responded in opposition, though Plaintiffs and Symetra have since announced a
settlement of their dispute. For the reasons set forth below, the Motion is GRANTED.
BACKGROUND
The Court has set out the full background of this matter in previous orders. Briefly,
Plaintiffs initially filed a class certification motion (ECF No. 805) on May 7, 2025. Symetra was
the only Defendant to oppose that request. After the parties had fully briefed the initial motion, the
United States Court of Appeals for the Sixth Circuit issued its en banc decision in Speerly v.
General Motors, 143 F.4th 306 (6th Cir. 2025). Although Plaintiffs and Symetra submitted
supplemental briefing based on Speerly, the Court ultimately decided that a completely fresh look
at class certification was preferable. The Court therefore denied Plaintiff’s initial request for class
certification without prejudice. Plaintiffs filed a renewed motion for class certification and
appointment of class counsel (ECF No. 981) on October 3, 2025. Once again, Symetra was the
only Defendant to oppose class certification.
The Court granted in part and denied in part the renewed motion for class certification in
certified the following class claims, issues, and defenses for class action:
(1) civil conspiracy against the Estate of Dr. Jerome V. Harris; Sandra Harris;
Robert Eaton; Symetra Life Insurance Company; Financial Freedom Funds, LLC;
Day & Night Solar; Trinity Financial; Financial Freedom Group, Inc.; Financial
Technologies, LLC; and the Motorskill Entities (Second Am. Compl., count 8);
(2) Symetra’s affirmative defenses on the statute of limitations, including (a) the
application of the discovery rule and when plan participants learned of facts
sufficient to put a reasonable person on notice that they had suffered an injury as a
result of wrongful conduct; and (b) whether Defendants fraudulently concealed
their alleged wrongs from plan participants.
(3) any other affirmative defense preserved by Symetra and Defendants named in
the civil conspiracy count.
Consistent with the Court’s Class Certification Order, Plaintiffs proposed a form of notice to the
class concerning the certification of these claims.
In their Motion for Partial Reconsideration, Plaintiffs ask the Court to revise the Class
Certification Order in two respects. First, Plaintiffs argue that the Court should reconsider its
decision and certify their class action claims against the Estate of Dr. Jerome V. Harris and Robert
Eaton for three specific breaches of fiduciary duty. Plaintiffs believe their damages model meets
the Rule 23(b) predominance test as to these claims. For example, Plaintiffs’ model can account
for the effect of the decision made by Dr. Harris and Eaton to invest the Plan’s assets in Symetra
annuities instead of Symetra mutual funds. The model also accounts for nearly $13.5 million in
improper administrative fees paid to Dr. Harris and $740,000 in state property taxes paid on real
property imprudently purchased with plan assets. In addition to or as alternative relief, Plaintiffs
have offered to produce a supplemental opinion evidence disclosure to explain how their damages
model properly tracks these individual breaches of duty.
Second, Plaintiffs argue they can prove class-wide damages without the model devised by
2
evidence at all, simply by showing the difference between amounts they expected to receive in
their retirement accounts and the amounts they actually had when the alleged scheme was
discovered in 2021, a total of over $88.4 million. Plaintiffs argue then that the Court should certify
their class claims against the Estate of Dr. Harris and Eaton for breach of fiduciary duty and
fraudulent concealment based on this simplified measure of expectation damages.
In a similar fashion, Plaintiffs can also prove the amounts wrongfully taken from the Plan’s
assets. For instance, the proof will show that Dr. Harris improperly transferred $3.4 million from
the Plan to his own company, Trinity Financial. Plaintiffs seek to hold Trinity Financial liable for
conversion and aiding and abetting Dr. Harris’s breach of fiduciary duty. Plaintiffs will also show
that Sandra Harris is liable for conversion based on the amounts she jointly held in bank accounts
with her late husband. And Plaintiffs can prove that Day and Night Solar, LLC, a company
controlled by Eaton, received over $1.7 million in loans representing assets of the Plan and never
repaid the loans. Plaintiffs argue that no damages model based on expert analysis is required to
prove these losses to the Plan. For all of these reasons, Plaintiffs ask the Court to reconsider its
class certification order and permit Plaintiffs to pursue class action relief on their claims for breach
of fiduciary duty against the Estate of Dr. Harris and Eaton as well as specified claims against
other Defendants.
STANDARD OF REVIEW
Plaintiffs seek the revision of the Class Certification Order, a decision of an interlocutory
character. Local Rule 7.3 states that “[b]efore the entry of a judgment adjudicating all of the claims
and the rights and liabilities of all the parties in a case, any party may move, pursuant to Fed. R.
Civ. P. 54(b), for the revision of any interlocutory order made by that Court” but only for specific
3
from the Court based only one of the following factors:
(1) a material difference in fact or law from that which was presented to the Court
before entry of the interlocutory order for which revision is sought, and that in the
exercise of reasonable diligence the party applying for revision did not know such
fact or law at the time of the interlocutory order; or (2) the occurrence of new
material facts or a change of law occurring after the time of such order; or (3) a
manifest failure by the Court to consider material facts or dispositive legal
arguments that were presented to the Court before such interlocutory order.
Local R. 7.3(b); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5, (2008) (citing 11
C. Wright & A. Miller, Federal Practice & Procedure, § 2810.1 pp. 127-128 (2d ed. 1995)).
Otherwise, motions to reconsider are not allowed. Local R. 7.3(a).
ANALYSIS
The issue presented is whether Plaintiffs have shown why the Court should reconsider its
Class Certification Order. Strictly speaking, Plaintiffs have identified two issues for revision they
could have briefed in their original presentation on class certification but did not. “[A] motion to
reconsider generally is not a vehicle to reargue a case” with new theories the party could have
raised at an earlier stage of the case. United States v. LaDeau, 734 F.3d 561, 572 (6th Cir. 2013)
(citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
By the same token, Plaintiffs seek only partial reconsideration of the Court’s ruling and only as it
pertains to very specific class action claims: breach of fiduciary duty (against the Estate of Dr.
Harris and Robert Eaton) and their non-conspiracy claims for conversion and aiding and abetting
breach of fiduciary duty (against Sandra Harris, Day and Night Solar, and other Defendants). As
Plaintiffs point out, none of these Defendants responded in opposition to class certification.
The Court would highlight here that Plaintiffs addressed their arguments in the first place
to objections raised by Symetra. Symetra was the only Defendant to oppose Plaintiffs’ renewed
4
model concerned the broad sweep of the model and its fit with Plaintiffs’ class action claims
against Symetra. The Court’s class certification ruling therefore was naturally addressed to
Plaintiffs’ class action claims against Symetra and the arguments briefed by the parties. In other
words, Plaintiffs did not raise the points they have now argued in support of reconsideration
because the issues were not actually in dispute the first time around.
Plaintiffs’ arguments for partial reconsideration are focused on claims against Defendants
other than Symetra. Plaintiffs rightly point out that none of the other Defendants except Symetra
ever responded to oppose class certification. As the Court noted in its Class Certification Order, a
party’s failure to raise an argument in response to a motion for class certification results in the
forfeiture of the argument. Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d
540, 545 (6th Cir. 2014). Each Defendant except Symetra has forfeited its opposition to class
certification.
For that matter, no Defendant except Symetra has responded to oppose Plaintiffs’ request
for reconsideration. Following the Court’s February 2026 status conference with the parties, the
Court ordered the non-moving parties to show cause as to why the Court should not reconsider its
class certification order, either by responding on the merits to the Motion for Partial
Reconsideration or stating on the record that they did not oppose the Motion. The Court cautioned
the parties that the failure to respond to the order might result in the Court granting the Motion
without further notice. Order to Show Cause Feb. 20, 2026 (ECF No. 1138).
Two Defendants heeded the Court’s admonition and responded to the show cause order.
Defendant Sandra Harris stated that she took no position on the Motion for Partial Reconsideration.
S. Harris Show Cause Resp., Feb. 20, 2026 (ECF No. 1139). Defendant Day and Night Solar,
5
Motion for Partial Reconsideration and also that it did not oppose the Motion. DNS Show Cause
Resp., Mar. 5, 2026 (ECF Nos. 1142, 1143). Neither Robert Eaton nor Financial Freedom Group,
Inc. responded to the show cause order at all. The Estate of Dr. Harris, which was formally served
and substituted into the case for the late Dr. Harris only recently, has not responded. See Order
Granting Pls.’ Mot. to Substitute, Apr. 30, 2026 (ECF No. 1176).1 All other Defendants who
remain in the case are in default.2
Under the circumstances, the Court finds good cause to reconsider its Class Certification
Order. The request for reconsideration is partial in nature and limited to specific claims alleged on
behalf of the class against specific Defendants. Each of the non-moving Defendants forfeited their
right to oppose class certification by failing to respond in opposition to class certification in the
first place. None of those Defendants have responded to oppose reconsideration. Perhaps more
important, Plaintiffs seek reconsideration on very narrow grounds. Plaintiffs have shown that they
1 Separately, the Court ordered Plaintiffs to address whether they had properly served the
Estate of Dr. Harris, both with their Second Amended Complaint naming the Estate as a Defendant
and with the dispositive motions filed by Plaintiffs against the Estate of Dr. Harris. Plaintiffs have
now served Daniel Parrish, the administrator ad litem of the Harris Estate, see Affidavit of Service
(ECF No. 1174), and requested that the Court reserve ruling on the Motion for Partial
Reconsideration until the time for the Estate to file its responsive pleading had passed. Jt. Status
Rep. 9, Apr. 8, 2026 (ECF No. 1156). Parrish’s deadline to respond to the Second Amended
Complaint was May 13, 2026. Therefore, the Court finds that the Motion for Partial
Reconsideration is now ripe for determination.
2 This includes Financial Technologies, LLC; Financial Freedom Funds, LLC; Trinity
Financial Consultants, LLC; Motorskill Ventures, Inc., Motorskill Ventures I, L.P., and Motorskill
Asia Ventures 1, L.P. (collectively “the Motorskill entities”).
Defendant Rodney Brown & Company, a small accounting practice which provided annual
audits of the AMEC Department of Retirement Services and/or the Plan and its assets, is not in
default. However, Plaintiffs did not seek class certification of their claim against the firm for
professional negligence and instead suggested that they intended to nonsuit the claim for lack of
proof.
6
standards for class certification and the cases applying Rule 23. Therefore, Plaintiffs’ Motion for
Partial Reconsideration is GRANTED.
I. Application of the Dirks/Devor Model to Plaintiffs’ Class Claims Against the Estate
of Dr. Harris and Robert Eaton
First, the Court finds good cause to reconsider its conclusion that Plaintiffs were not
entitled to class certification of their breach of fiduciary duty claims against the Estate of Dr. Harris
or Robert Eaton. In its previous order, the Court held that Plaintiffs could satisfy each of the Rule
23(a) gatekeeping safeguards for class certification on their breach of fiduciary duty claims:
adequacy, numerosity, typicality, and commonality. The Court denied class certification on the
claims because the Court concluded Plaintiffs’ damages model could not meet Rule 23(b).
A class that satisfies Rule 23(a)’s requirements must also fall within one of three categories
found in Rule 23(b). Plaintiffs argued for certification under Rule 23(b)(3), which sets out a two-
part test and requires two showings, predominance and superiority. Fed. R. Civ. P. 23(b)(3)
(requiring a plaintiff to show that common questions “predominate” and that class action is
“superior to other available methods” of adjudication). “Class certification under Rule 23(b)(3)
requires that a plaintiff establish ‘that damages are capable of measurement on a class-wide basis.’”
In Re FirstEnergy Corp. Secs. Litig., 149 F.4th 587, 620 (6th Cir. 2025) (quoting Comcast Corp.
v. Behrend, 569 U.S. 27, 34, 133 S.Ct. 1426, 1431 (2013)). Whether at the class certification stage
or at trial, “courts must conduct a ‘rigorous analysis’ to determine whether a plaintiff’s damages
case is consistent with its liability case.” Id. (cleaned up). And in cases involving multiple theories
of liability or causes of action, the plaintiff’s damages must be “specifically attributable” to each
theory of liability. Id. at 621. If a class proposes a damages model that fails the Rule 23(b)(3)
predominance test, “[q]uestions of individual damage calculations will inevitably overwhelm
7
As part of its class certification ruling, the Court concluded that Plaintiffs’ damages model
(“the Dirks/Devor Model”) failed Rule 23(b)(3)’s predominance test because the Dirks/Devor
Model did not fit the alleged breaches of fiduciary duty committed by Dr. Harris or Eaton. In
support of their Motion for Partial Reconsideration, Plaintiffs argue, albeit for the first time, that
their model can account for particular breaches of fiduciary duty, for example, the decision made
by Dr. Harris and Eaton to invest the Plan’s assets in Symetra annuities instead of Symetra mutual
funds. The model also accounts for nearly $13.5 million in improper administrative fees paid to
Dr. Harris and $740,000 in state property taxes paid on real property purchased with plan assets.
“The first step in a damages study is the translation of the legal theory of the harmful event
into an analysis of the economic impact of that event.” Comcast, 569 U.S. at 38 (quoting Fed. Jud.
Ctr., Reference Manual on Scientific Evidence 432 (3d ed. 2011)). “[A]fter Comcast [a] class must
be able to show that their damages stemmed from the defendant’s actions that created the legal
liability.” In re VHS of Michigan, Inc., 601 F. App’x 342, 344 (6th Cir. 2015). Plaintiffs have the
burden then to show that the opinion evidence on damages expressed in the Dirks/Devor Model
“stemmed from” the alleged breaches of fiduciary duty committed by Dr. Harris and Eaton. The
Court will discuss each specific claim about Harris’ and Eaton’s breach of fiduciary duty
separately.
Decision to Invest Exclusively in Symetra Annuities. Plaintiffs allege on behalf of the class
of plan participants that both Dr. Harris and Eaton breached their fiduciary duties by making the
original choice to invest the full corpus of the Plan’s assets in fixed and variable rate annuities with
Symetra as opposed to a prudent mix of stocks and bonds. Plaintiffs have supported their allegation
with opinion evidence. As the Court explained in the Class Certification Order,
8
two witnesses, Martin Dirks and Harris Devor. Plaintiffs’ opinion witnesses have
opined that the Plan’s total balance would have been $265,806,852 had it obtained
the historical results of a benchmark index fund, the Vanguard VBIAX fund.
Measured against the actual value of the Plan’s assets as of the end of the second
quarter of 2021 ($38,066,613), Mr. Devor concluded that the Plan suffered a total
loss of $227,740,239, that is, the difference between its value had the Plan’s assets
been prudently invested and its actual value.
One of the assumptions underpinning the Dirks/Devor Model was Mr. Dirks’ opinion that the
Vanguard ETF VBIAX was an appropriate fund and comparator as a benchmark for a prudently
managed retirement fund with a 60%–40% mix of equities and fixed income investments. The
Dirks/Devor Model then calculates what the Plan’s assets would have been worth, had Dr. Harris
and Eaton invested the Plan’s assets in an appropriate manner reflecting a prudent mix of stocks
and bonds consistent with the VBIAX benchmark. If the Plan’s assets had been invested in a
manner consistent with the VIABX benchmark and assuming the Plan had obtained the historical
results of the benchmark fund, Mr. Devor concluded the Plan’s total balance would have been
$265,806,852, as of June 2021. The Court noted all the particulars of the Dirks/Devor Model in its
Class Certification Order. See also Class Certification Order 64–66.
The Court declined to certify the class claims for breach of fiduciary duty based on the
initial selection of Symetra annuities as the investment for the Plan’s assets for two reasons. First,
Plaintiffs’ damages model assumes that the plan participants’ injuries began in 2002 with the
selection of Symetra as the annuity provider for the Plan when, according to Mr. Dirks, an
investment of 100% of the Plan’s assets in annuities was not a prudent way of investing the assets.
Plaintiffs’ Second Amended Complaint, however, did not allege the selection of annuities as a
specific breach of fiduciary duty by Dr. Harris or Eaton. See id. at 68. Plaintiffs now cite evidence
submitted as part of their briefing on a separate motion for summary judgment, and not the renewed
motion for class certification, which tends to show that Dr. Harris and Eaton had the opportunity
9
sold by Symetra), not the low yield annuities Harris and Eaton actually selected.
“A plaintiff may not shift its theory of liability at the summary judgment stage in a way
that materially alters the pleaded factual basis of its claim and prejudices the opposing party.”
Grand Traverse Band of Ottawa & Chippewa Indians v. Blue Cross Blue Shield of Mich., 146
F.4th 496, 511–12 (6th Cir. 2025) (citing S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321,
327–28 (6th Cir. 2013)). A plaintiff is “ not rigidly bound” to the specific legal theories articulated
in the pleadings. Id. at 512 (citing Johnson v. City of Shelby, 574 U.S. 10, 11, 135 S.Ct. 346, 190
L.Ed.2d 309 (2014)). By the same token, a defendant is entitled to “fair notice of the nature and
basis or grounds for a claim,” meaning a plaintiff cannot “pivot to a new factual basis for liability”
if the pivot prejudices the defendant. Id. (citing Sierra Brokerage, 712 F.3d at 327–28 (quoting
Colonial Refrigerated Trans., Inc., v. Worsham, 705 F.2d 821, 825 (6th Cir. 1983)).
Here, the Court finds that Plaintiffs are not unfairly expanding the factual basis for their
theory that Dr. Harris and Eaton breached their fiduciary duties. The Second Amended Complaint
contains several allegations about the imprudence of Plan fiduciaries choosing low-interest
Symetra annuities as the principal investment vehicle for the Plan’s assets. Neither the Estate of
Dr. Harris nor Eaton has argued that Plaintiffs’ pursuit of this theory on behalf of the class would
cause either Defendant to suffer prejudice. In fact, neither Defendant has opposed certification of
the claim for class treatment at all. Therefore, the Court finds no reason not to consider the claim
as part of its reconsideration of the class certification ruling.
The Court gave a second and more fundamental reason for denying class certification of
Plaintiffs’ breach-of-fiduciary-duty claim based on the selection of Symetra annuities. The Court
held that the selection of annuities was a discrete act in 2002. Since the Dirks/Devor Model
10
completely unrelated to any economic harm caused by the choice to keep the Plan’s funds in
annuities, the model did not “isolate the economic harm resulting from one specific breach of
fiduciary duty and instead combines each into an undifferentiated combination of damages.” Class
Certif. Order 68–69. In the Court’s view, Comcast required “a closer, more congruent fit between
a specific theory of liability and a theory of damages.” Id. at 69.
Upon further review, the Court finds that the Dirks/Devor Model properly pinpoints the
selection of annuities as the correct starting point for calculating Plaintiffs’ damages. The fact is
the selection of annuities in 2002 was the temporal starting point for the injuries alleged on behalf
of the Plan or the plan participants, whether viewed as a civil conspiracy or breach of fiduciary
duty. The injury continued as long as the Plan was not prudently invested. Moreover, Plaintiffs
represent to the Court that “the Dirks/Devor Model’s flexibility allows for” a jury to isolate the
damages caused by each discrete breach of fiduciary duty. This was the very concern the Court
expressed at class certification. Hypothetically, a jury could find in Plaintiffs’ favor on the
fiduciary duty claim related to the selection of annuities but not the fiduciary duty claim based on
another discrete act, for example, the payment of real property taxes on the Florida real estate
owned by the Plan.
Accepting Plaintiffs’ claim about the flexibility of their damages model, the Court is
satisfied that Plaintiffs can meet their burden and properly isolate the damages for each alleged
breach of fiduciary duty in the manner that Comcast requires. The Court concludes that this
suffices to meet Comcast’s test and demonstrates a “fit” between Plaintiffs’ theory of liability
against the Estate of Dr. Harris and Eaton and Plaintiffs’ proposed damages model. Therefore,
Plaintiffs’ Motion for Partial Reconsideration is GRANTED on this issue.
11
of whether the Dirks/Devor Model properly accounts for over $13.4 million in administrative fees
collected by Dr. Harris. Just as with the fiduciary duty claim based on the selection of annuities as
the Plan’s primary investments, the Court held at the class certification stage that the damages
model did not properly isolate the damages caused by the fiduciary duty claim premised on the
payment of allegedly improper administrative fees. In denying Plaintiffs’ request for class
certification on this point, the Court concluded that each payment of quarterly administrative fees
to Dr. Harris amounted to a discrete breach of fiduciary duty and occurred years after Dr. Harris
and Eaton allegedly steered the Plan’s assets into low-interest Symetra annuities. Plaintiffs now
argue that the Dirks/Devor Model accounts for the losses caused by the payment of the improper
fees and can isolate the losses merely by showing what the Plan’s assets would have been as
compared to what they were after the fees were remitted to Dr. Harris.
For the same reasons that the Court grants reconsideration on the fiduciary duty claim
related to the selection of annuities, the Court grants reconsideration on the fiduciary duty claim
related to improper administrative fees. Plaintiffs have met their burden to show that the
Dirks/Devor Model is capable of isolating the damages stemming from the improper
administrative fees. This satisfies the Court’s previously stated concerns and meets the test for
predominance in Comcast. Therefore, Plaintiffs’ Motion for Partial Reconsideration is
GRANTED on this issue.
Payment of Real Property Taxes. Plaintiffs also seek reconsideration of the Court’s ruling
as it pertains to the breach of fiduciary duty claim against Dr. Harris and Eaton for the payment of
real property taxes owed in the State of Florida on real property purchased with Plan assets.
Plaintiffs allege that Dr. Harris and Eaton breached their fiduciary duties to the Plan by selecting
12
assets. The Court held at the class certification stage that each annual payment of property taxes
was a separate and independent breach of fiduciary duty and therefore would amount to a discrete
element of damages.
For all of the reasons the Court has just explained, Plaintiffs have persuasively shown that
the Dirks/Devor Model is capable of isolating the property taxes as a measure of damages and then
calculating the compounded effect of the loss to the Plan. As a result, the Court GRANTS the
Motion for Partial Reconsideration on this issue.
Having determined that reconsideration is warranted, the Court hereby amends its Class
Certification Order to certify the class action claims for breach of fiduciary duty against the Estate
of Dr. Harris and Eaton premised on (1) their selection of Symetra annuities in which to invest
Plan assets, (2) the payment of excessive and improper administrative fees, and (3) the payment
of real property taxes for the Florida property purchased with Plan assets.
II. Measurement of Class-Wide Damages Through Transaction-Specific Proof Without
the Dirks/Devor Model
Plaintiffs next argue that the Court should reconsider its Class Certification Order in as
much as the Court ruled by implication that Plaintiffs were required to prove damages traceable to
their non-civil conspiracy claims by means of an expert witness’ damages model, though that
framing is not exactly what the Court held. The Court actually ruled that the Dirks/Devor Model,
calculating as it does the cumulative effect of almost two decades of lost growth and imprudent
management, failed to model damages for the separate and independent torts allegedly committed
by individual Defendants at specific points in time. The Court summarized its reasoning as follows:
Plaintiffs’ model assumes that the plan participants’ injuries began in 2002
with the selection of Symetra as the annuity provider for the Plan when, according
to Mr. Dirks, an investment of 100% of the Plan’s assets in annuities was not a
13
By contrast, most of Plaintiffs’ theories for relief on behalf of the class do
not trace their injuries back to 2002. Rather, Plaintiffs allege that Defendants are
liable for discrete acts or omissions that occurred later, and sometimes many years
later, and therefore caused injuries in the form of monetary losses long after 2002.
Simply put, a model that purports to measure damages from 2002 to 2021, all the
while compounding the economic effect of the injuries through quarterly
investment growth, is simply overinclusive for most of Plaintiffs’ causes of action.
Class Certification Order 67. The Court went on to analyze how the Dirks/Devor Model failed the
Comcast test for each tort alleged on behalf of the class, except for the tort of civil conspiracy. The
Court ultimately held that “[t]he unique nature of joint-and-several liability for civil conspiracy
matche[d] the somewhat capacious scope of Plaintiffs’ damages model.” Id. at 72. The key to the
Court’s conclusion was how the Dirks/Devor Model “account[ed] for how each claim works,”
Speerly, 143 F.4th at 335, and not, strictly speaking, whether Plaintiffs were obligated to prove
damages with an expert opinion model.
Now, instead of proving damages solely through the Dirks-Devor Model, Plaintiffs contend
that they can establish some measures of damage “by simply adding up the amount of previously-
reported account balances that could not be found after Dr. Harris’s retirement or by referencing
specific financial transactions that depleted Plan assets.” Pls.’ Mot. for Partial Reconsideration 6.
For example, Plaintiffs assert that they are entitled to their expectation damages (measured as the
difference between what they expected and were told the Plan was worth just before Dr. Harris’
retirement and the actual value of the Plan after Dr. Harris’ retirement). Plaintiffs argue that
expectation damages are particularly appropriate for their claims of breach of fiduciary duty and
fraudulent concealment. Plaintiffs request therefore that the Court revisit its prior decision and
determine whether Plaintiffs can establish damages on other class claims besides their claim of
civil conspiracy, simply with proof that Plan assets were improperly transferred from the Plan to
14
While it is true Plaintiffs did not raise this argument as part of their original briefing on the
class certification issue, the Court finds good cause to revisit its earlier ruling. The Court’s original
analysis was confined to the question presented in the renewed motion for class certification,
namely, whether Plaintiffs could satisfy Rule 23(b)(3)’s predominance test for all of their tort
claims with the Dirks/Devor Model. As a result of its analysis of that specific question, the Court
limited class certification to Plaintiffs’ civil conspiracy claim based on the fit between the
Dirks/Devor Model and Plaintiffs’ civil conspiracy theory of liability against Defendants. The
Court never addressed the availability of simpler calculations of damages based on separate and
independent transfers or transactions. Plaintiffs argue in their Motion for Partial Reconsideration
that they can establish measures of damages on other tort claims outside of the expert opinions
reflected in the Dirks/Devor Model. Because that is a contention the Court did not previously
reach, reconsideration to address Plaintiff’s argument is warranted.
The narrow issue presented then is whether Plaintiffs can meet their burden to satisfy Rule
23(b)(3)’s predominance test and prove damages on several of their class tort claims without
recourse to the Dirks/Devor Model. Pickett v. City of Cleveland, Ohio, 140 F.4th 300, 314–15
(6th Cir 2025) (Gibbons, J., concurring) (“Parties seeking class certification must satisfy the pre-
requisites under Rule 23(a) and 23(b).”) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
613–14, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Court has held that Plaintiffs can prove
their claims for civil conspiracy and breach of fiduciary duty through the Dirks/Devor Model. In
addition to those claims, Plaintiffs also charge Defendants with fraudulent misrepresentation
(Estate of Dr. Harris), fraudulent concealment (Estate, Eaton), conversion (Estate, Sandra Harris,
Eaton, et al.), and aiding and abetting breaches of fiduciary duty (multiple Defendants).
15
a measure of damages for the class as a whole on specific tort claims, thereby establishing “that
damages are capable of measurement on a class-wide basis.” In Re FirstEnergy Corp. Secs. Litig.,
149 F.4th at 620 (quoting Comcast, 569 U.S. at 34). Plaintiffs have done so by showing that their
class-based damages are “specifically attributable” to their several theories of each Defendant’s
liability, id. at 621, and “account[] for how each claim works.” Speerly, 143 F.4th at 335. The
Court analyzes in turn each of Plaintiffs’ tort theories and the damages recoverable under
Tennessee law.
Breach of Fiduciary Duty and Aiding and Abetting Breach of Fiduciary Duty. First,
Plaintiffs allege both Dr. Harris and Eaton breached their fiduciary duties to the Plan and thereby
caused losses to the class of plan participants. In Tennessee a fiduciary is liable to its principal “for
harm resulting from a breach of duty imposed by the relation.” Restatement (Second) of Torts §
874; see also Pagliara v. Johnston Barton Proctor & Rose, LLP, No. 3:10–cv–00679, 2012 WL
913256, at *5 (M.D. Tenn. Mar. 16, 2012). The scope of damages for breach of fiduciary duty is
quite broad. A fiduciary is liable to “make full indemnity.” Gay & Taylor, Inc. v. American Cas.
Co. of Reading, Pa., 381 S.W.2d 304, 305–06 (Tenn. Ct. App. 1963) (quoting Walker v. Walker,
52 Tenn. 425, 428, 1871 WL 3774, at *1 (Tenn. 1871)). When a breach occurs, the fiduciary is
liable for damages “naturally and proximately flowing from the breach of duty.” Id. For the
fiduciary to be held liable, damages must be “fairly attributable” to the breach “as the natural result
or just consequence” of it. Marshall v. Sevier Cnty., 639 S.W.2d 440, 446 (Tenn. Ct. App. 1982).
Plaintiffs argue that as damages for their breach-of-fiduciary-duty claims against the Harris
Estate and Eaton, they are entitled to recover the difference between the amount of the Plan’s
misrepresented value and its actual value, what Plaintiff’s have called their “expectation
16
breach of fiduciary duty work under Tennessee law. A breach of fiduciary duty occurs “at the
time when the alleged unsuitable investments were made . . . and [an investor’s] funds were put
at risk. Dean Witter Reynolds, Inc. v. McCoy, 853 F. Supp. 1023, 1036 (E.D. Tenn. 1994) (citing
Gay & Taylor, 381 S.W.2d at 304) (other citation omitted). The starting point for calculating the
damages for any single breach of fiduciary duty would be the amount of the “unsuitable
investment,” and not a later misrepresentation about the appreciation or increase in value of the
investment.
For instance, much of the inflated value of the Plan’s assets consisted of the Plan’s
supposed “paper profits” in the Motorskill entities. The alleged breaches of fiduciary duty,
however, occurred when Dr. Harris and/or Eaton invested Plan assets in the Motorskill entities. In
ascertaining the damages from the breaches, a jury would start with the amount of the investments
made in the Motorskill entities, not by calculating the difference between the misrepresented value
of the investments and their actual value.
In any event, the fact remains that Plaintiffs can prove damages on a class-wide basis by
proving the amounts of Plan assets loaned or invested in a manner by which Dr. Harris and/or
Eaton breached their fiduciary duties to the Plan. Plaintiffs would be entitled to seek damages for
each transfer of assets constituting a fiduciary breach as well as the damages “fairly attributable”
3 Generally speaking, expectation damages are available for breach of contract under
Tennessee law where the measure of expectation damages is “awarding the party the benefit of its
bargain.” Mueller Brass Co. v. Crompton, No. 2:20-CV-2496-SHL-atc, 2024 WL 2303953, at *3
(W.D. Tenn. May 21, 2024) (quoting Alsbrook v. Concorde Career Colls., Inc., 469 F. Supp. 3d
805, 826 (W.D. Tenn. 2020)). The Court discusses Tennessee’s “benefit of the bargain” rule
below. Otherwise, Plaintiffs have not shown that expectation damages are cognizable as a measure
of damages for breach of fiduciary duty (or for that matter fraudulent concealment). In any event,
Plaintiffs’ use of the phrase “expectation damages” is perhaps better understood as an analogy.
17
The same method would apply to any damages proven by Plaintiffs to recover on their
aiding and abetting claims. Under Tennessee law, a plaintiff may hold a defendant liable for a
third party’s breach of duty if “the defendant knew that his companions’ conduct constituted a
breach of duty, and that he gave substantial assistance or encouragement to them in their acts.”
PNC Multifamily Cap. Inst. Fund, 387 S.W.3d at 552 (quoting Carr v. United Parcel Serv., 955
S.W.2d 832, 836 (Tenn. 1997)). Plaintiffs allege on behalf of the class that the following
Defendants all aided and abetted certain breaches of fiduciary duty committed by Dr. Harris and/or
Eaton: Financial Freedom Funds, LLC; Financial Freedom Group, Inc.; Financial Technologies,
LLC; Day & Night Solar; Trinity Financial Consultants, LLC; the Motorskill Entities; and Sandra
Harris. In some cases the alleged acts of aiding and abetting took the form of accepting a loan from
funds held by the Plan, which was never repaid, or receiving a capital investment of Plan assets in
the company.
Just as Plaintiffs can show that each breach of fiduciary duty started with an improper or
imprudent transfer of Plan assets, each act of aiding and abetting will likewise be tied to a specific
transfer of Plan assets. The Court holds then that Plaintiffs can establish their class-wide damages
on the class claims for breach of fiduciary duty and aiding and abetting the breach of fiduciary
duty by showing the amount of each improper transfer or imprudent investment as well as the
damages “fairly attributable” to the breach “as the natural result or just consequence” of it.
Marshall, 639 S.W.2d at 446.
Conversion. Likewise, Plaintiffs have shown that they can prove damages for conversion
based on discrete transactions or transfers of Plan assets. The general measure of damages for the
conversion of personal property in Tennessee is “the market or actual value of the property at the
18
v. Hobbs, No. W2004-01553-COA-R3-CV, 2005 WL 1541866, at *4 (Tenn. Ct. App. Jan. 20,
2005) (“[T]he proper measure of damages in a conversion case ‘is the value of the property
converted at the time and place of conversion, with interest.’”) (collecting cases). Plaintiffs can
therefore recover damages for the class as a whole with evidence of the actual value of property
wrongly transferred from the Plan to one of the Defendants named in the conversion count.
Plaintiffs would be entitled to recover the actual value of the property plus interest.
Take Plaintiffs’ class claim for conversion against Defendant Trinity Financial
Consultants, LLC’s (“Trinity Financial”). Plaintiffs claim that they can prove a total of $3,404,427
in damages based on Trinity Financial’s alleged acts of conversion. According to Plaintiffs, the
total damages are traceable to a series of transfers of Plan assets, first from the Plan to Financial
Freedom Funds and then from Financial Freedom Funds to Trinity Financial, in the total amount
of $2,714,427 as well as transfers representing $667,000 in improper administrative fees collected
by Dr. Harris and then moved over to Trinity Financial. Assuming Plaintiffs can prove how each
transfer established the elements of conversion, a jury could find that the class is entitled to an
award of damages based just on the value of the property at the time of each transfer plus interest.
In a similar way, Plaintiffs could prove damages on a class-wide basis arising out of the
alleged acts of conversion committed by Sandra Harris and Day and Night Solar, LLC. One of
the elements Plaintiffs must prove at trial to establish their class conversion claim against Mrs.
Harris is that Mrs. Harris appropriated the Plan’s assets for her own use and benefit. In re Piercy,
21 F.4th 909, 922 (6th Cir. 2021) (quoting White v. Empire Express, Inc., 395 S.W.3d 696, 720
(Tenn. Ct. App. 2012)) (“In Tennessee, the elements of a conversion claim are (1) an appropriation
of another’s tangible property to one’s use and benefit; (2) an intentional exercise of dominion
19
chattel.”). Plaintiffs have proof that Mrs. Harris held joint bank accounts with her late husband in
which Dr. Harris improperly deposited money rightfully belonging to the Plan. By depositing Plan
assets into his personal accounts, Dr. Harris would be liable for conversion and breach of fiduciary
duty. According to Plaintiffs’ theory of liability, Mrs. Harris would also be liable for conversion
(and aiding and abetting her husband’s breach of fiduciary duty) for all amounts deposited into
their joint bank accounts. Assuming Plaintiffs could prove the elements of conversion for each
improper transfer of Plan assets, Plaintiffs could establish their damages for Mrs. Harris’ alleged
acts of conversion by showing the value of the Plan assets improperly moved into Dr. and Mrs.
Harris’ joint accounts. Plaintiffs would be entitled to recover the amounts of the improper transfers
plus interest.
As for Day and Night Solar, Plaintiffs would hold the company liable for allegedly sham
loans made with Plan assets totaling $1,767,500, plus accrued interest. Plaintiffs contend that the
proof will show Day and Night Solar never repaid the loans and that Dr. Harris and Eaton funneled
the money to the company, which they controlled, thereby breaching their own fiduciary duties
and making Day and Night Solar liable for conversion (and aiding and abetting the breaches).
Again, assuming Plaintiffs can prove the elements of conversion on their claim against Day and
Night Solar, Plaintiffs would be entitled to recover the amount of the loans plus interest.
Fraudulent Concealment and Fraudulent Misrepresentation. Lastly, Plaintiffs have carried
their burden to show that they can seek on a class-wide basis damages against the Estate of Dr.
Harris and Eaton for fraudulent concealment and the Harris Estate for fraudulent
misrepresentation. Both sets of claims involve misrepresentation. Under Tennessee law, the tort
of fraudulent concealment occurs when “a party who has a duty to disclose a known fact or
20
thereby suffering injury.” Roopchan v. ADT Sec. Sys., Inc., 781 F. Supp. 2d 636, 650 (E.D. Tenn.
2011) (quoting Odom v. Oliver, 310 S.W.3d 344, 349–50 (Tenn. Ct. App. 2009)); see also Shah v.
Racetrac Petroleum Co., 338 F.3d 557, 571 (6th Cir. 2003) (quoting Chrisman v. Hill Home Dev.,
Inc., 978 S.W.2d 535, 538–39 (Tenn. 1998)). Fraudulent misrepresentation or intentional
misrepresentation involves a false statement made with the intent to deceive. Hodge v. Craig, 382
S.W.3d 325, 342 & n.28 (Tenn. 2012).
Each tort sounding in fraud concerned the false statements about the value of the Plan and
the concealment or misrepresentation of the Plan’s true value. For each theory, Plaintiffs and the
class of plan participants seek the “benefit of the bargain,” that is, the value of the retirement assets
they had been promised. “The ‘benefit of the bargain,’ a concept relevant to the computation of
certain damages, refers to the difference between the value of what the plaintiff would have
received if the misrepresentation had been true and the actual value of what the plaintiff received.”
Houghton v. Malibu Boats, LLC, --- S.W.3d ---, 2025 WL 2971436, at *4 n.10 (Tenn. Oct. 22,
2025) (quoting T.P.I.—Civil § 8.49). Plaintiffs have introduced evidence that Dr. Harris
misrepresented to plan participants just before his retirement in 2021 that the Plan’s assets were
worth $126.8 million when, in fact, the Plan had a value closer to $37 million.
The Court finds that Plaintiffs could present this evidence to support an award of damages
for fraudulent concealment and fraudulent misrepresentation, based just on the difference between
the amount plan participants were told the Plan had and the amount it actually had, without the
need to introduce any additional opinion-based evidence models to account for lost asset growth
and appreciation. In short, a jury could decide to award the class of plan participants the difference
in the represented value of Plan assets and the actual value.
21
Plaintiffs can satisfy the test for class treatment under Rule 23(b)(3) and prove damages on certain
tort claims outside the Dirks/Devor Model and with evidence of discrete transfers and transactions
involving Plan assets.
CONCLUSION
Plaintiffs’ Motion for Reconsideration is GRANTED. The Court hereby amends its Class
Certification Order and CERTIFIES the following additional class claims and issues for class
action:
(1) breach of fiduciary duty against the Estate of Dr. Harris and Robert Eaton
(Second Am. Compl., count 1);
(2) conversion against the Estate of Dr. Harris; Sandra Harris; Eaton; Financial
Freedom Funds, LLC; Financial Freedom Group, Inc.; Trinity Financial
Consultants, LLC; Financial Technologies, LLC; and Day & Night Solar (count 4);
(3) fraudulent concealment against the Estate of Dr. Harris and Eaton (count 5);
(4) fraudulent misrepresentation against the Estate of Dr. Harris (count 6); and
(5) aiding and abetting breach of fiduciary duty against Financial Freedom Funds,
LLC; Financial Freedom Group, Inc.; Financial Technologies, LLC; Day & Night
Solar; Trinity Financial Consultants, LLC; the Motorskill Entities; and Sandra
Harris (count 9); and
(6) any affirmative defense preserved by the Defendants named in these counts and
certified for class action.
Class counsel is directed to propose a form of notice to the class and submit its proposal within 14
days of the entry of this order.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: May 29, 2026.
22