Acosta

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSE LUIS ACOSTA, et al., )

)

Plaintiffs, )

)

v. ) No. 1:22 C 01458

)

BOARD OF TRUSTEES OF UNITE HERE ) Judge Rebecca R. Pallmeyer

HEALTH, et al., )

)

Defendants.

MEMORANDUM OPINION AND ORDER

The Board of Trustees of Unite Here Health (“UHH” or “the Fund”) is a Taft-Hartley,

national multi-employer employee benefit plan that provides benefits for workers in the retail,

hospitality, and service industries. Plaintiffs in this class action are participants in two of the Plan

Units of which UHH is comprised, referred to here as Plan Units 178 and 278. Plaintiffs allege

that UHH breached its fiduciary duties under the Employee Retirement Income Security Act

(“ERISA”) by allocating costs incurred by the Fund in a way that is unfair to Plan Units 178 and

278, and by incurring excessive amounts of administrative expenses.

The facts are complex: As noted, UHH is comprised of individual Plan Units, which provide

benefits for employees working for various employers in different regions around the country.

Plan Units 178 and 278, in which Plaintiffs are participants, serve the Los Angeles and Long

Beach/Orange County, California areas. Plaintiffs bring two claims for breach of fiduciary duty.

First, they challenge UHH’s policy for allocating administrative expenses, specifically the

allocation of costs based on each Plan Unit’s relative contribution rate to the Fund, and a discount

that UHH has granted to Plan Units based in Las Vegas, Nevada. Second, Plaintiffs assert that

UHH incurs an excessive amount of administrative expenses. Plaintiffs seek an award of

restitution, disgorgement of profits, and an order enjoining Defendants’ allegedly improper

policies. They also ask the court to award plan assets that are attributable to their contributions

to another benefits plan—the “Santa Monica Plan,” which has no connection to UHH, and in which

many of the class members are now participants. Defendants move for summary judgment on

all claims [257] and to exclude the Plaintiffs’ expert [260], Mr. Alex Zeid. Plaintiffs also move for

partial summary judgment on Count One [262]. As explained in this opinion, the court concludes

that even after ample discovery, Plaintiffs have not demonstrated that Defendants’ administration

of the Plans caused them harm. Defendants’ motion for summary judgment is therefore granted,

Plaintiffs’ cross motion for summary judgment is denied, and the Daubert motion to strike the

testimony of Mr. Zeid is stricken as moot.

BACKGROUND

I. Factual Background1

A. UHH Background

UNITE HERE HEALTH (“UHH,” “the Fund,” or “the Plan”) is a national multi-employer

health and welfare benefit plan, as defined in ERISA, § 3(1), 29 U.S.C. § 1002(1). (DSOF [259]

¶¶ 1, 4.) The majority of UHH participants are members of UNITE HERE, a labor union

representing workers in the hotel, gaming, food service, and related industries. (DSOF [259] ¶ 1.)

The welfare benefits that UHH provides are funded by contributions from employees and from

participant employers. (PSOF [264] ¶ 2.) Each signatory employer is required to make regular

contributions to UHH, and in return, the employees receive benefits from UHH. (PSOF [264] ¶ 2.)

1 The facts set forth here are presented in the parties' statements of fact pursuant to

this court's Local Rule 56.1. UHH’s Local Rule 56.1 Statement of Material Facts [259] is cited

here as “DSOF [259] ¶ ___.” Plaintiffs’ Response to Defendants’ Local Rule 56.1 Statement [269]

is cited here as “Pls.’ Resp. to DSOF [269] ¶ ___.” In opposition to UHH’s motion for summary

judgment, Plaintiffs also filed an Additional Statement of Facts [270] cited here as “PSAF [270] ¶

___.” UHH’s response to Plaintiffs’ Additional Statement of Facts [285] is cited here as “Def.’s

Resp. to PSAF [285] ¶ ___.”

Plaintiffs, who have filed a cross-motion for partial summary judgment, have also

submitted their own Local Rule 56.1 Statement of Material Facts [264] which is cited here as “s

[264] ¶ ___.” UHH’s Response to Plaintiffs’ Statement of Fact [274] is cited here as “Def.’s Resp.

to PSOF [274] ¶ ___.” ___.” In opposition to Plaintiffs’ motion for summary judgment, UHH also

filed an Additional Statement of Facts [279] cited here as “DSAF [279] ¶ ___.” Plaintiffs’ response

to UHH’s Additional Statement of Facts [281] is cited here as “Pls.’ Resp. to DSAF [281] ¶ ___.”

Employer contribution rates are negotiated in collective bargaining between each local union and

employer, and documented in collective bargaining agreements (“CBAs”) (DSOF [259] ¶¶ 11, 12),

and are subject to approval by UHH. (Pls.’ Resp. to DSOF [269] ¶ 17.) UHH is managed by its

participating labor unions and employers, who have equal representation on the Board of

Trustees, the Defendants in this case and fiduciaries of the Plan. (DSOF [259] ¶ 2; PSOF [264]

¶ 1.)

UHH is comprised of twenty Plan Units. (DSOF [259] ¶ 8.) Each Plan Unit provides

benefits to employees in a certain region of the country, or to a specific group of employers or

participants. (Id.) Each Plan Unit, however, is considered part of the Fund as a whole, rather

than a separate employee benefit fund or plan. (Id.) Each Plan Unit can offer multiple benefit

options or a single set of benefits to its participants. (DSOF [259] ¶ 9.)2

Plaintiffs in this class action are persons who participate or have participated in two Plan

Units—Plan Units 178 and 278—at any point from March 21, 2016 through the present. (Order

on Class Cert. [224] at 33.) Many, but not all, of these individuals are also members of the UNITE

HERE union Local 11 (“Local 11”). (Pls.’ Resp. to DSOF [269] ¶ 13.) Plan Units 178 and 278

provide benefits for workers in Los Angeles, California and the Long Beach/Orange County,

California area, respectively. (DSOF [259] ¶ 13.) Plan Units 178 and 278 were created after two

once-separate funds—the Los Angeles Hotel-Restaurant Employer-Union Welfare Fund (the “Los

Angeles Fund”) and the UNITE HERE Long Beach and Orange County Health Benefit Fund (the

“Long Beach Fund”)—merged into UHH in March 2012 and July 2012 respectively. (DSOF [259]

¶ 14.) Plan Unit 278 no longer exists; it closed on January 31, 2025, years after this litigation was

filed. (PSOF [264] ¶ 3.)

2 Neither party suggests that the availability of these options has any effect on

administrative allocations or contribution rates.

UHH has two administrative offices, one in Las Vegas, Nevada and another in Aurora,

Illinois. (Pls.’ Resp. to Def.’s SOMF [269] ¶ 55.) The Las Vegas office serves Plan Units based

in Las Vegas and Alaska, as well as a unit referred to as the “Hospitality Plan Unit” (the “Las

Vegas-administered Plan Units”). (Pls.’ Resp. to Def.’s SOMF [269] ¶ 55.) The Aurora office

serves all UHH Plan Units other than those administered by Las Vegas. (Id.) The two Plan Units

at issue in this case, Plan Units 178 and 278, have both been administered by Aurora.

B. Overall Budget Monitoring

The Board of Trustees manages the Fund under a single budget, which covers all Plan

Units. (DSOF [259] ¶ 5.) Consequently, contributions from employers, or trust funds established

for similar purposes, are “pooled to support all benefit programs.” (Id. ¶ 7.) As explained below,

however, the Trustees track the surpluses and deficits of individual Plan Units through internal

monitoring systems. (Pls.’ Resp. to DSOF [269] ¶ 5.) The Fund-wide budget is governed by

various policies, referred to here as the Reserve Policy, the Vendor Bid Policy, and the Salary

Administration Policy. The Reserve Policy, implemented by the Board of Trustees, sets the

minimum level of reserves that UHH must have on hand. (DSOF [259] ¶¶ 26–27.) The Vendor

Bid Policy, adopted in 2006 and updated in 2023, requires UHH staff and trustees to engage in a

“market competitiveness” analysis of certain contracts every three to five years and to monitor the

quality of vendor services and expenses. (Id. ¶¶ 35–42.) The Salary Administration Policy sets

guidelines for determining UHH staff salaries; UHH “regularly” employs a compensation

consultant to review staff compensation and ensure that it is appropriate. (Id. ¶¶ 44–46.)

Defendants do not say how often such reviews are conducted, but they assert generally that in

each such review, the consultant determined that UHH staff and executive salaries were

reasonable, but sometimes recommended increases consistent with market rates. (Id. ¶ 46.)

Recall that UHH also sets target contribution rates that it expects employers to make.

(Pls.’ Resp. to DSOF [269] ¶ 119.) UHH sometimes approves contribution rates that are lower

than the target rate (including, on occasion, at the request of Local 11), but it also reserves the

right to terminate employers who do not pay target rates. (Id. ¶¶ 121–23, 127.) UHH thus

maintains some control over the contribution rate that employers negotiate with their employees,

although the extent of this control is disputed by the parties. In setting target contribution rates,

UHH underwriting staff make future projections based on expected health care costs, numbers of

participants, projected numbers of work hours, and the necessary reserves that must be

maintained. (Id. ¶¶ 115–117.) In order to determine the amount of necessary reserves, UHH

must estimate future administrative expenses (id. ¶ 117), that is, the expense of managing the

funds rather than the cost of providing welfare benefits to participants. (PSOF [264] ¶ 5.)

This internal calculation of administrative expenses is what is at issue in this case.

Plaintiffs have two complaints. First, Plaintiffs claim that UHH unfairly allocates its administrative

expenses among Plan Units. As a result, higher reserves are maintained for some Plan Units,

leading UHH to set higher contribution rates for those Plan Units and causing employees in those

Plan Units to pay more than they should. Second, Plaintiffs target UHH’s management of its

administrative expenses, arguing that UHH violates its duty of prudence by incurring

administrative expenses that are too high. Defendants argue that the evidence does not support

either of these claimed harms.

C. Overall Administrative Expenses

UHH divides administrative expenses into three categories: “Departmental,” “Overhead,”

and “Professional.” (DSOF [259] ¶ 53.) Departmental expenses include UHH staff salaries and

employment costs, like travel and training, while Professional expenses cover payments to the

Trustees and lawyers. (Id. ¶¶ 54, 61.) Overhead expenses include rent, employee benefits,

payroll taxes, and supplies. (Id. ¶ 58.) Administrative expenses in total account for about 8% of

UHH’s overall budget, with the remaining 92% available to pay employee benefits. (Id. ¶ 31.)

Plaintiffs challenge UHH’s administrative expenses as excessive, based on the analysis

of their expert, Alex Zeid. Mr. Zeid is an actuary, specifically, an Associate of the Society of

Actuaries and a Member of the American Academy of Actuaries, who has consulted on issues in

the life and health insurance space. (Zeid Rep. [261-2] at 2.) Mr. Zeid has been self-employed

since 1985, and he currently works as an Appointed Actuary and Illustration Actuary, which

“includes premium determination, valuations, due diligence, pricing, underwriting, policy drafting

and filing, and other life insurance company matters.” (Id. at 1-2.) His experience with Taft-

Hartley funds, however, is limited: when asked about this in his deposition, he testified that he

had provided services to Amalgamated Clothing and Textile Workers, but he could not say with

confidence that this was a Taft-Hartley plan. (Def.’s Ex. 14 [261-2] at 169–67, Zeid Dep. at 37:1–

38:24.)

Mr. Zeid “compared UHH's administrative costs with the administrative costs of other

multiemployer plans.” (PSAF [270] ¶ 26.) He found that “of the 20 multiemployer health plans

with the most participants, no plan spent as much as UHH as a percentage of contributions.” (Id.)

Importantly, Zeid compared administrative expenses using Form 5500 data,3 looking at the overall

administrative expenses for “every health plan in the country that submitted Form 5500s for the

years he analyzed.” (Id. ¶ 21.) Self-funded health and welfare plans are required to file Form

5500 with the Department of Labor. (Zeid Apr. 9, 2025 Supp. Rep., Def.’s Ex. 5 [261-2] at 103);

Zeid limited his examination to forms submitted by plans with certain characteristics that make

them similar to UHH in asset size, contributions, and number of lives. Specifically, he looked at

plans that cover more than 50,000 participants, and have assets exceeding $10 million for health

plans coded 4A—that is, health plans other than dental and vision plans. (PSAF [270] ¶ 22; Zeid

Rep. [261-2] at 11.) Zeid excluded consideration of certain filings that “distorted the analysis,”

like those plans that had “little or no contributions.”4 (Id.) Based on that analysis, Zeid concluded

3 A Form 5500 is an Internal Revenue Service (“IRS”) form that an employer

maintaining an ERISA plan must file “to report information on the qualification of the plan, its

financial condition, investments and the operations of the plan.” http://irs.gov/retirement-

plans/form-5500-corner (last visited Mar. 31, 2026).

4 Plaintiffs have not explained (nor is it clear to the court) how a plan covering 50,000

lives could function with “little or no contributions,” but it is reasonable to conclude that filings

made by such a fund would be outliers.

that during the class period, UHH incurred the largest amount of administrative expenses per

participant, as well as per contributions. (PSAF [270] ¶ 22.) Only one plan in 2020 exceeded

UHH’s administrative expense per participant. (Id.)

Defendants’ expert Stephanie Patrick, a senior consulting actuary with nearly 20 years of

experience in the health and group benefits consulting field, criticized this analysis on the basis

that Form 5500 data does not “capture all the nuances and complexities of a plan’s operations.”

(Id. ¶ 31; Patrick Rep., Def.’s Ex. 130 [259-7] at 309, 320.) According to Mr. Zeid, however, such

data is still useful because, he contends, “the administrative requirements of all health plans are

essentially the same and consist primarily of ‘claims adjudication, claims reimbursement,

enrollment, policyholder/participant services, billing, collection and cost-savings initiatives.’ ”

(PSAF [270] ¶ 31.)

UHH also submitted the report of David Evangelista, a rebuttal expert. Evangelista, a

Certified Public Accountant with almost forty years of experience servicing multiemployer

employee benefit plans, was retained to opine on the reasonableness and oversight of UHH’s

allocation policy and administrative expenses, and to rebut Zeid’s expert findings. (Evangelista

Rep., Def.’s Ex. 129 [259-7] at 168, 177.) Evangelista, like Patrick, took issue with Zeid’s use of

Form 5500 data to compare overall administrative expenses because “[b]y resorting to straight

comparison administrative expense numbers across funds, [Zeid] falsely assumes that health and

welfare funds offer similar administrative services across the board.” (Id. at 208.)

D. Allocation of Administrative Expenses

In addition to the claim that UHH incurs excessive administrative expenses, Plaintiffs

challenge the allocation of those expenses among UHH Plan Units. Some of UHH’s

administrative expenses, such as “information technology, legal, human resources, finance,

underwriting, payroll audit, and health policy services,” are spent on the Fund as a whole, while

others, such as professional expenses, are spent on services for a specific Plan Unit or

geographic region. (PSOF [264] ¶¶ 8, 10 (undisputed in relevant part); DSOF [259] ¶¶ 56, 59–

60, 62–64.) UHH does not allocate administrative expenses based directly on the percentage of

administrative services each Plan Unit uses, however. Not all Plan units rely on UHH for all of

their administrative services. As a result, UHH allocates its administrative expenses by

approximating how much it costs UHH to provide services to each Plan Unit. UHH attempts to

capture this approximation by allocating administrative expenses across Plan Units according to

an “Administrative Expense Allocation Policy” (PSOF [264] ¶ 6)5, described in some detail below.

1. Contribution-based Allocation

Under the Administrative Expense Allocation Policy, the cost of administrative services

that are shared among the entire Fund is generally allocated to each Plan Unit according to its

percentage contribution to the Fund. In other words, to calculate the administrative expense

allocation for a certain Plan Unit, that Plan Unit’s administrative expense allocation is divided by

its total contributions to the Fund. (DSOF [259] ¶ 78.) But administrative expenses are allocated

slightly differently depending on whether they are categorized as Departmental, Professional, or

Overhead.

Departmental expenses that are spent on the entire Plan (also known as “shared

services”) are allocated among Plan Units based on each Plan Unit’s relative contribution to the

fund. (DSAF [275] ¶ 24.) But there are two other categories of Departmental expenses: (1)

departmental expenses for servicing only the Las Vegas-administered Plan Units, and (2)

departmental expenses for servicing only the Aurora Plan Units. (DSOF [259] ¶ 56.) Las Vegas

departmental expenses are allocated among Las Vegas-administered Plan Units, and Aurora

departmental expenses are allocated among Aurora Plan Units, according to each Plan Unit’s

relative contribution. (Id.) For example, staff that serve only Las Vegas would only have their

salaries allocated across Las Vegas-administered Plan Units, and the same for Aurora-specific

5 This policy was adopted in 1988 and subsequently modified in 2007 and 2002.

(Pls.’ SOMF [264] ¶ 6.)

staff, but staff that perform shared services have their salaries allocated among all Plan Units.

(PSOF [264] ¶ 11.)

Overhead expenses that serve all employees and offices are first allocated among

departments according to each department’s salary expenditures. (DSOF [259] ¶ 59.) Overhead

expenses that serve a specific geographic location (i.e., rent for offices serving one Plan Unit) are

allocated to the departments in that location. (Id. ¶ 60.) Once expenses are allocated to a

department, that department’s overhead expenses are then allocated among Plan Units

according to each Plan Unit’s relative contribution rate. (Id. ¶ 59.)

Professional expenses that are spent on services provided to all Plan Units are also

allocated across Plan Units according to their relative contribution to the Fund. (Id. ¶ 62.) But

professional fees directly incurred by the Las Vegas-administered Plan Units are only borne by

the Las Vegas Plan Units. (Id. ¶ 63.) The Aurora Plan Units are likewise allocated professional

fees incurred by the Aurora Department, which are allocated among Aurora Plan Units depending

on their percentage of contribution. (Id. ¶ 64.)

UHH contends these contribution-based allocations are reasonable, but acknowledges

that contributions are not a perfect proxy for determining allocations. For example, Trustee Donna

DeCaprio testified that administrative costs for each Plan Unit are incurred even on those

occasions when a Plan Unit is delinquent in making its contributions. (Pls.’ Ex. 202 [264-67] at

9–10, DeCaprio Dep.at 30:14–31:7.) If not perfect, allocations based on contributions are

nevertheless a reasonable proxy, UHH maintains.

Trustees who were deposed in this case endorse that conclusion, sometimes without a

clear reason beyond history. When asked why allocation was based on contributions, Trustee

George Greene testified in his deposition that “[t]he fund staff, the outside consultants, and the

trustees over the years, . . . have looked at our options, and we have looked at other options

periodically and made the determination that this is the fairest way.” (Def.’s Ex. 20 [259-2] at 710,

Greene Dep. at 85:11–23.) He continued, “It’s not exact, but it’s the best option selected by the

fund.” (Id. at 710–711, 85:23–86:1.) Greene was not on the Board in 1988 when the policy was

first adopted, however, and he was unaware of other options that had been considered. (Id. at

711, 86:2–17.) He also testified that contribution rates “were not tied directly to any expense.”

(Pls.’ Ex. 205 [264-70] at 24–25, Greene Dep. at 84:3–85:9.) Trustee James Louis Claus similarly

testified that “[t]here may be other bases, but this [allocation method] has been established,” and

was reviewed and approved by outside auditors “[w]hen it was initially set up.” (Def.’s Ex. 33

[259-3] at 208–209, Claus Dep. at 72:17–73:8.) When asked whether the contribution amounts

affected the costs of administration, however, Trustee Claus responded, “I don’t believe so.” (Pls.’

Ex. 204 [264-69] at 6, Claus Dep. at 23:14–18.)

Trustee Ades testified that while it may not be perfect, contribution-based allocation

appeared to be a reasonable way to determine how to measure and allocate costs. (Def.’s Ex.

38 [259-3] at 284–85, Ades Dep. at 121:19–122:16.) That said, he did not know whether Plan

Units that pay more contributions into the Fund actually cost more to administer. (Def.’s Ex. 38

[259-3] at 286, Ades Dep. at 123:17–23.) Trustee DeCaprio testified that she did not know why

contributions were picked as the allocation method, just that the “method has been in place for

quite a long time.” (Pls.’ Ex. 202 [264-67] at 23, DeCaprio Dep. at 100:5–20.)

2. The Las Vegas Discount

As detailed, UHH allocates administrative expenses based roughly on each Plan Unit’s

contribution. UHH’s administrative expense policy, however, often calls for “weighting” in

calculating the proportion of each Plan Unit’s contribution rates for the purposes of determining

their allocations. (DSOF [259] ¶ 66.) These “weights” are effectively discounts that account for

what UHH describes as the “unique circumstances” of each Plan Unit. (Id.) For example, for

Plan Units 178 and 278, which provide health care benefits by way of health maintenance

organizations (“HMOs”), UHH uses only 75% of their proportional contribution amounts (i.e., a 25

percent discount) to allocate administrative expenses because, UHH asserts, HMO plans are less

costly to administer. (DSOF [259] ¶ 67.) Another Plan Unit, the “Food Service Plan Unit” receives

an 8% discount, which accounts for the percentage of its contributions that go towards its less-

expensive HMO benefits. (DSOF [259] ¶ 68.)6

A central focus of Plaintiffs’ concern is another discount, one accorded to the Las Vegas-

administered Plan Units. Those Plan Units are allocated 100% of their direct expenses, and pay

shared Professional expenses based on their proportional contribution rate, without any

weighting. (DSOF [259] ¶¶ 69–70.) In other words, they receive no discount on shared

Professional expenses. But the Las Vegas Plan Units do receive a significant discount on their

allocated amount of shared Departmental and Overhead expenses. For those expenses, Las

Vegas-administered Plan Units’ contribution rates are weighted at 1/3 of their full contribution

allocation, meaning that the Las Vegas Plan Units enjoy a 66% discount on their contribution rates

for these shared Departmental and Overhead expenses.7 (DSOF [259] ¶ 71.) UHH justifies this

discount on the basis that the Las Vegas-administered Plan Units perform (and independently

bear the cost of) substantial administrative work that otherwise would be provided through the

Plan’s shared services. (Id. ¶ 72.) For example, the Las Vegas-administered Plan Units employ

Zenith American Solutions, a third-party administrator which provides contribution and

accounting, eligibility and enrollment, and claims processing services. In addition, Las Vegas

Plan Units staff perform work that is provided to other Plan Units by UHH shared services. (Id.;

PSOF [264] ¶¶ 21, 23.) Thus, according to Defendants, the discount accounts for the fact that

Las Vegas-administered units bear independent costs that other Plan Units do not, and other Plan

Units benefit from shared services that Las Vegas Plan Units do not use.8

6 The parties do not explain why the HMO-based discount is just 8% for the Food

Service Plan Unit, but the greater discount (25%) for Plan Units 178 and 278 appears to benefit

Plaintiffs.

7 Actually 66.67%, as Plaintiffs point out, but this is immaterial except for damages

purposes. (Pls.’ Resp. to DSOF [269] ¶ 71.)

8 The Trustees likewise testified in their depositions that the discount applies

because of the extra costs that Las Vegas bears independently. Trustee Greene testified that the

discount was applied “[b]ecause the [third-party administrator] takes away a lot of the work

Plaintiffs dispute that this is a reasonable justification for the discount. Plaintiffs contend

that the work performed by Zenith would not otherwise be paid for as part of “shared services.”

(Pls.’ Resp. to DSOF [269] ¶ 72.) Zenith is contracted to provide member services, contribution

and accounting, eligibility and enrollment, and claims processing. Those services are performed

in-house at UHH by UHH’s member services department; the CAER department (acronym for

“contribution and accounting, and eligibility and enrollment”); and the claims processing

department. (Pls.’ Resp. to DSOF [269] ¶ 72.) But Plaintiffs contend the fact that UHH provides

these services in-house does not justify the discount because these in-house services are

provided only to the Aurora Plan Units, and the costs for those services are allocated only to the

Aurora Plan Units. Indeed, UHH admits that these UHH departments are not considered shared

services at UHH. (Def.’s Resp. to PSOF [274] ¶¶ 18–25.) Plaintiffs point out, further, that Zenith

does not provide Las Vegas with any IT, legal, HR, finance, underwriting, payroll audit, or health

policy services. UHH provides those services to all Plan Units, and all Plan Units pay for them by

way of the allocations for shared services. Thus, Plaintiffs contend, Las Vegas should not receive

a discount from its shared services allocation because (as Defendants acknowledge), Las Vegas

enjoys the full benefits of shared services while it only pays for a substantially discounted portion

of them. (Pls.’ Resp. to DSOF [269] ¶ 72; Def.’s Resp. to PSOF [274] ¶ 10, 98–103.)

Plaintiffs argue, further, that even if the services Zenith performs would otherwise be

considered shared services, the 66% discount is an arbitrary reduction rather than an accurate

reflection of the work that Zenith performs. (Pls.’ Resp. to DSOF [269] ¶ 72.) Indeed, there is no

clear explanation in the record of how the 66% discount figure was chosen. When asked why the

Las Vegas Plan Units were granted a discount of 2/3 rather than some other number, Trustee

Ades testified that he would have to “speculate,” but that the number has historically been

required by the fund staff.” (Pls.’ Ex. 205 [264-70] at 7–8, Green Dep. at 30:23–31:4.) Trustee

Ades similarly explained that the discount applied because “they have a third-party administrator

that does a lot,” specifically, “work that otherwise would be performed . . . in-house.” (Def.’s Ex.

38 [259-3] at 287, Ades Dep., at 124:4–18.)

determined to be a reasonable deduction, “and the board and those who have looked at it,”

including the restructuring committee, “have not found any reason to change that.” (Def.’s Ex. 38

[259-3] at 287–289, Ades Dep. at 124:24–126:3.) Trustee DeCaprio also was unable to say

whether the Las Vegas Plan Units use just 1/3 of the amount of shared services that other Plan

Units use, nor does she know how that number was determined. (Pls.’ Ex. 202 [264-67] at 12,

DeCaprio Dep. at 33:6–14.) Trustee Greene also testified that he did not know why the number

was chosen. (Pls.’ Ex. 205 [264-70] at 29, Greene Dep. at 89:10–23.)

3. Impacts of Allocation Policy

Importantly, the Administrative Expense Allocation Formula described above is used only

for “internal accounting purposes.” (DSOF [259] ¶ 48.) It does not actually reflect what is charged

to Plaintiff Plan Units. Instead, as Defendants have explained, the Formula is used by the finance

department for internal monitoring of the health of the fund as a whole. The formula provides

additional data concerning costs at the Plan-Unit level. (Id. ¶ 49.) But this formula (and the

allocated expenses it produces) is used internally and is not audited. (Id. ¶¶ 49, 51.) Plaintiffs

have produced no evidence that it influences the fund’s overall budget, which is prepared on a

fund-wide level. UHH maintains monthly dashboards to monitor expense allocation according to

the Formula. The dashboards break out each individual Plan Unit’s contributions and allocated

administrative expenses for UHH staff and the Board of Trustees to review. (Id. ¶¶ 49–52.)

Because these dashboards are merely a “snapshot” of information, the Dashboard’s surplus and

deficit numbers do not “roll over into the following year.” (Id. ¶ 52.) These dashboards were

shared with the Board of Trustees starting in 2015. (Id. ¶ 104.)

Target contribution rates are set, however, by the underwriting department with the goal

of maintaining six months of reserves to ensure Plan Unit self-sufficiency. (Id. ¶¶ 115–118; PSOF

[264] ¶¶ 131–133.) The underwriting department does factor in projected administrative costs to

set these contribution rates, but it does so using a different formula than the allocation formula

described above. (Simon Decl. [259-2] at 566.) As the parties agree, Local 11 (the Union

representing Plan Units 178 and 278) was directing certain employers to over-contribute to UHH

because of expected increases in minimum wage. This overcontribution meant that “projecting

administrative expenses based on contributions would disadvantage Plan Units 178 and 278.”

(Pls.’ Resp. to DSOF [269] ¶ 133.) For that reason, UHH has made an adjustment in its rate

setting process in response: for Plan Units 178 and 278 alone, “UHH estimates future

administrative expenses as a percentage of the cost of health benefits,” not by contributions.

(Pls.’ Resp. to DSOF [269] ¶ 133.) UHH’s chief underwriter Rob Simon confirmed that this formula

is separate and apart from the allocation policy described in detail above. (Pls.’ Ex. 91A [264-32]

at 11–12, Simon Dep. at 48:14–49:15.)

All of this means, Defendants contend, that UHH’s allocation policy is irrelevant to how it

sets target contribution rates for the Plaintiffs in this case, and thus, they cannot prove that the

policy caused them harm. Plaintiffs counter that “it is necessarily the case that the contribution

rates must be high enough to account for the allocated administrative expenses.” (Pls.’ Resp. to

DSOF [269] ¶ 134.) For the reasons explained below, however, the court concludes that Plaintiffs

have failed to sufficiently prove the allocation formula they challenge is related to any harm for

which they seek redress.

II. Procedural History

Plaintiffs bring two claims under ERISA §§ 502(a)(2), 502(a)(3), and 409; 29 U.S.C. §§

1132(a)(2), 1132(a)(3), and 1109, for breaches of fiduciary duty. As noted, Plaintiffs claim that

the Board of Trustees breached these fiduciary duties in two ways: (1) through its Administrative

Expense Allocation Policy—specifically, tying allocation to relative contribution rates, and

applying the 66% discount to the Las Vegas-administered Plan Units’ allocated Overhead and

Departmental Expenses—(Count I), and (2) by incurring excessive and unreasonable total

administration expenses (Count II).

In terms of remedies, should these violations be proven, Plaintiffs seek (1) restitution of

their “lost income and other compensation caused by the Defendants’ breaches of their fiduciary

duties,” as well as disgorgement of Defendants’ profits; (2) an injunction prohibiting UHH from

accruing excessive administrative fees, from allocating expenses based on percentage of

contributions without regard to the number of participants in each plan unit, and from applying a

66% discount to the Las Vegas Plan Unit; and (3) a court order transferring “plan assets

attributable to contributions on behalf of Named Plaintiffs and Class Members to a health plan

that currently provides their benefits,” i.e., the Santa Monica Fund. (First Am. Complaint [46] at

52–54, ¶ 8; Pls. Resp. to DSOF [269] ¶ 153.)

Plaintiffs filed their original complaint [1] on March 21, 2022, and, following Judge

Leinenweber’s partial grant [31] of Defendants’ first motion to dismiss [19], filed a First Amended

Complaint (“FAC”) [46] on October 3, 2023. This court denied Defendants’ motion to dismiss [49]

Plaintiffs’ first amended complaint [120]. On April 16, 2024, Plaintiffs moved for class certification

[76]. This court certified the following issues for class resolution pursuant to FED. R. CIV. P.

23(c)(4):

• 1. Whether Defendant had a policy of allocating administrative expenses among Plan Units

based on the amount of each Plan Unit’s incoming contributions, and whether such policy was

a breach of Defendant’s fiduciary duties under ERISA, 29 U.S.C. ch. 18.

• 2. Whether Defendant had a policy of discounting contributions from Las Vegas Unit 150 by

66% in allocating administrative expenses, and whether such policy was a breach of

Defendant’s fiduciary duties under ERISA, 29 U.S.C. ch. 18.

• 3. Whether Defendant took on administrative costs that were significantly greater than those

of similar health benefit plan, and whether such conduct was a breach of Defendant’s fiduciary

duties under ERISA, 29 U.S.C. ch. 18.

• 4. Whether members of the class are entitled to injunctive relief.

(Order Clarifying Class Cert. [248] at 4.)

On August 27, 2025, Defendants moved for summary judgment on all claims [257] and to

exclude the opinions of Plaintiffs’ expert, Mr. Alex Zeid [260]. Plaintiffs also moved for partial

summary judgment on Count I, which alleges that Defendants breached their fiduciary duties by

adopting and failing to review an unreasonable allocation policy for administrative expenses [262].

For the reasons stated, the court grants Defendants’ motion for summary judgment, denies

Plaintiffs’ motion, and strikes the motion to exclude the expert testimony of Alex Zeid as moot.

LEGAL STANDARD

Summary judgment is appropriate if “‘there is no genuine dispute as to any material fact,’

and the moving party ‘is entitled to judgment as a matter of law.’” Johnson v. Edwards, 164 F.4th

1074, 1079 (7th Cir. 2026) (quoting FED. R. CIV. P. 56(a)); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986). A genuine issue of material fact exists only if “there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In considering a motion for summary judgment,

the court construes “the facts in the light most favorable” to the non-moving party and draws “all

reasonable inferences in its favor.” Waukegan Potawatomi Casino, LLC v. City of Waukegan,

128 F.4th 871, 873 (7th Cir. 2025). It does not “weigh evidence or make credibility

determinations.” Johnson, 164 F.4th at 1079.

Once a motion for summary judgment has been properly supported, the opposing party

must produce affirmative evidence showing there is more than a “metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87

(1986). An opposing party must produce affirmative evidence raising a genuine issue for trial;

they may not rest upon allegations in the pleadings. Anderson, 477 U.S. at 256–57

(1986). Speculation “cannot create a genuine issue of fact that defeats summary judgment” and

“is insufficient to defeat a summary judgment motion.” Flowers v. Kia Motors Fin., 105 F.4th 939,

946 (7th Cir. 2024).

DISCUSSION

Under ERISA, plan administrators owe a fiduciary duty of loyalty and prudence to the plan

participants and their beneficiaries in their administration of the plan. “These duties are ‘the

highest known to the law.’” Appvion, Inc. Ret. Sav. & Emp. Stock Ownership Plan by & through

Lyon v. Buth, 99 F.4th 928, 943 (7th Cir. 2024) (citation omitted). Under the duty of loyalty, a

fiduciary must act for “the exclusive purpose of: (i) providing benefits to participants and their

beneficiaries; and (ii) defraying reasonable expenses of administering the plan.” 29 U.S.C. §

1104(a)(1)(A). Under the duty of prudence, the fiduciary must act “with the care, skill, prudence,

and diligence” of a “prudent man acting in a like capacity and familiar with such matters.” 29

U.S.C. § 1104(a)(1)(B); Appvion, 99 F.4th at 943. This is known as “the prudent man standard of

care.” 29 U.S.C. § 1104(a).

A plaintiff bringing a claim for breach of fiduciary duty must prove “‘(1) that the defendant

is a plan fiduciary; (2) that the defendant breached its fiduciary duty; and (3) that the breach

resulted in harm to the plaintiff.’” Albert v. Oshkosh Corp., 47 F.4th 570, 579 (7th Cir. 2022)

(quoting Allen v. GreatBanc Trust Co., 835 F.3d 670, 678 (7th Cir. 2016)). There is no dispute

that the Defendant Trustees are plan fiduciaries. Defendants do, however, argue that they did

not breach any duty, and even if they did, Plaintiffs have failed to produce evidence showing that

any breach caused them harm.

Courts look to the common law of trusts in evaluating an ERISA fiduciary’s actions. Tibble

v. Edison Int'l, 575 U.S. 523, 529 (2015) (ERISA fiduciary’s duty is informed by common law of

trusts). Under trust law, a fiduciary not only has a duty to make prudent decisions, but to

continually monitor its decisions and revise imprudent ones. Id. at 529 (this “continuing duty exists

separate and apart from the trustee's duty to exercise prudence in selecting investments at the

outset.”). Consequently, “a fiduciary’s failure to exercise his or her discretion—i.e., . . . under

circumstances in which a prudent fiduciary would have done so is a breach of the prudent man

standard of care.” George v. Kraft Foods Glob., Inc., 641 F.3d 786, 796 (7th Cir. 2011).

“Because the content of the duty of prudence turns on ‘the circumstances . . . prevailing’

at the time the fiduciary acts, § 1104(a)(1)(B), the appropriate inquiry will necessarily be context

specific.” Hughes v. Nw. Univ., 595 U.S. 170, 177 (2022) (citation omitted). Further, “[w]hether

an ERISA fiduciary has acted prudently requires consideration of both the substantive

reasonableness of the fiduciary’s actions and the procedures by which the fiduciary made its

decision.” Fish v. GreatBanc Tr. Co., 749 F.3d 671, 680 (7th Cir. 2014).

I. Count I: Unfair Allocation of Administrative Expenses

Both Plaintiffs and UHH seek summary judgment on Count I—Plaintiffs’ claim that UHH

and its Board of Trustees breached their fiduciary duty in adopting an Administrative Allocation

Policy that tied allocation of costs to relative contribution rates, and applied a two-thirds discount

to certain costs allocated to the Las Vegas Plan Units.

“Cross-motions must be evaluated together, and the court may not grant summary

judgment for either side unless the admissible evidence as a whole—from both motions—

establishes that no material facts are in dispute.” Bloodworth v. Vill. of Greendale, 475 F. App'x

92, 95 (7th Cir. 2012). “Even though the parties may agree that no genuine dispute of material

fact exists, the Court can deny all motions if the parties do not establish their rights to judgment

as a matter of law.” Tokio Marine Specialty Ins. Co. v. Altom Transp., Inc., 618 F. Supp. 3d 791,

795 (N.D. Ill. 2022), aff'd, No. 23-1443, 2024 WL 808059 (7th Cir. Feb. 27, 2024).

As explained here, the court concludes that Plaintiffs have what may be meritorious

criticisms of UHH’s overall allocation policy, but they have not shown how that policy caused them

actual harm, nor have they established that the policy UHH employs to calculate the contribution

rates for their Plan Units is not a reasonable one.

A. The contribution-based allocation

The court begins with Plaintiffs’ objections to UHH’s policy of allocating certain shared

administrative expenses according to a Plan Unit’s relative contribution rate. Plaintiffs contend

that policy is unreasonable, because contribution rates do not rationally relate to UHH’s actual

cost of administering its Plan Units. Consequently, Plaintiffs argue, Plan Units 178 and 278 end

up subsidizing other Plan Units by paying more than their fair share of administrative expenses.

Instead, in Plaintiffs’ view, the UHH should utilize an allocation method based on numbers of

participants in each Plan Unit, a method that their expert, Mr. Zeid, contends would be a better

proxy for administrative costs. Plaintiffs also claim that even if the allocation method that UHH

has used is not substantively unreasonable, UHH’s failure, for 25 years, to exercise any discretion

in assessing this method by itself constitutes a breach of fiduciary duty.

The parties have spilled much ink on the question of whether UHH’s contribution-based

allocation approach is reasonable, a question that may turn on relatively complicated accounting

decisions. The court concludes it need not decide the issue, however, because Plaintiffs have

not demonstrated that the allocation approach they challenge actually caused the harm for which

they seek redress. It is undisputed that this approach is not used by UHH to determine the target

contribution rates for Plaintiff Plan Units. (DSOF [259] ¶ 133; Pls.’ Resp. to DSOF [269] ¶ 133.)

This means Plaintiffs have not been subject to excessive contribution rates as a result of this

approach and have not suggested how, otherwise, they have been harmed. Without a showing

of harm, Plaintiffs have not established this essential element of their claim of breach of fiduciary

duty claim under ERISA. See George, 2011 WL 5118815, at *9 (“[B]oth loss and a causal

connection between that loss and defendant's breach are necessary elements of an ERISA claim

for damages under 29 U.S.C. § 1109(a).”)

Plaintiffs acknowledge that in fact, UHH sets contribution rates for Plan Units 178 and 278

using a percentage-of-benefits approach—not a percentage-of-contributions approach. They

acknowledge, further, that this practice is adopted to ensure that Plan Units 178 and 278 were

not overcharged relative to the actual cost of administering their plans. (See Pls.’ Mot. [263] at

24; Pls.’ Resp. to DSOF [269] ¶ 133.) But Plaintiffs nevertheless insist that UHH’s allocation

approach must have an impact on the contribution rates set for their Plan Units because the

general allocation approach is used for internal accounting purposes, and “it is necessarily the

case that the calculated contribution rates must be high enough to account for the allocated

administrative expenses.” (Pls.’ Resp. to DSOF [269] ¶ 134.) Because, according to Plaintiffs,

Trustees use the general allocation approach in determining whether a Plan Unit (including

Plaintiff Plan Units) is self-sufficient, and because “the Trustees ‘may take necessary action’ to

‘return such Plan Unit to self-sufficiency,’ ” it follows that the general allocation approach informed

decisions about Plaintiff Plan Units contribution rates. (Id.)

The court does not find Plaintiffs’ contention that “it must have happened” satisfactory for

purposes of summary judgment. In short, beyond conjecture and speculation, Plaintiffs have

failed to point to any evidence regarding how UHH’s general allocation approach, or the Las

Vegas discount, actually increased the contributions that Plaintiffs are required to pay. Plaintiffs

have not demonstrated, for example, that on any particular occasion, even once, Trustees or UHH

staff—after assessing the financial health of their Plan Units via reference to the allocated

administrative expenses, and finding those Plan Units would run a deficit—increased contribution

rates for Plaintiff Plan Units to ensure that their Plans remained in the black. Nor have they

demonstrated that the administrative expenses used by UHH’s underwriting department to set

target rates closely mirrored the administrative expense allocation developed by the finance

department. Quite the opposite: Plaintiffs have repeatedly acknowledged that the formula used

to calculate their target contribution rates is different than the allocation formula they challenge.

(Pls.’ Resp. to DSOF [269] ¶ 134, Pls.’ Resp to DSAF [281] ¶ 64.). Instead, Plaintiffs baldly argue

that “the exact formula by which UHH determined how much to overcharge [Plaintiff Plan Units]

is irrelevant.” (Pls. Reply [280] at 2.) But the formula for determining contribution rates is

profoundly relevant when Plaintiffs challenge that formula as unreasonable or unfair. Plaintiffs

have engaged in several months of discovery, but have yet to add meat to the bones of their

causation theory, sufficient to create a genuine dispute of material fact. Celotex, 477 U.S. at 322

(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which that party will

bear the burden of proof at trial.”)

In reaching its conclusion, the court acknowledges that Defendants have done a poor job

of explaining their apparent failure to review this allocation approach on a regular basis, or

justifying the discount applied to administrative expenses allocated to the Las Vegas Plan Units.

The evidence suggests that Defendants did not review the Las Vegas discount policy for at least

25 years. (Pls.’ Opp’n [268] at 20–21, 42.) Defendants point to several dates where they claim

the Trustees reviewed the policy, but the evidence they present does not suggest that any review

between 2000 and 2021 was sufficiently detailed to make their decision to keep the Las Vegas

discount a reasoned one. For example, in 2002, meeting minutes reflect that UHH’s CFO merely

“addressed a Trustee inquiry about the ‘allocation of administrative expenses’,” which was the

extent of the discussion regarding the discount. (Def.’s Resp. to PSOF [274] ¶ 55.) In 2007,

when UHH’s pension fund merged with other pension plans, meeting minutes from the Board of

Trustees’ meeting show that Trustees did not discuss the Las Vegas discount, despite this being

a circumstance where review of the allocation policy would have been warranted. (PSOF [264] ¶

56.) In 2009, Trustees apparently asked UHH executive staff to prepare a report to the Trustees

regarding the allocation of expenses between Las Vegas and Aurora, after UHH’s CEO told

trustees that “[t]he reasons why any particular item is allocated appear to be lost in the mists of

time.” But there is no evidence that such a report was provided or that the Trustees requested

any follow up after their November 19, 2009 meeting. (Def. Resp. to PSOF [274] ¶¶ 57–58.) And

“Defendants admit they have identified no records reflecting review of the allocation policy

between December 3, 2014 and June 2, 2021.” (Id. ¶ 69.)

Defendants cannot, however, be held liable for procedural imprudence alone. ERISA

requires Plaintiffs to demonstrate that imprudent decision-making resulted in an objectively

unreasonable decision that harmed them in some way. Albert, 47 F.4th at 583 (quoting Rogers

v. Baxter Int'l Inc., 710 F. Supp. 2d 722, 740 (N.D. Ill. 2010)) (“[S]everal [district] courts have held

that a failure to monitor claim is derivative in nature and must be premised [on] an underlying

breach of fiduciary duty.”). It is true that under ERISA, a fiduciary has a duty to “exercise his or

her discretion—i.e., to balance the relevant factors and make a reasoned decision as to the

preferred course of action—under circumstances in which a prudent fiduciary would have done

so . . . .” George v. Kraft Foods Glob., Inc., 641 F.3d 786, 796 (7th Cir. 2011); see also Munt v.

WEC Energy Grp., Inc., 728 F. Supp. 3d 957, 969 (E.D. Wis. 2024) (explaining that while

fiduciaries need not make a decision regarding every aspect of a plan at “regular or prescribed

intervals,” they may be liable “for failing entirely to do so, or for failing to do so for a long period of

time”). But plaintiffs bringing claims under ERISA must still sufficiently prove causation to be

entitled to a remedy. Appvion, 2025 WL 346736, at *4 (“ERISA plaintiffs must plead that there is

some causal connection between their claim and the alleged losses.” (citing Brant v. Grounds,

687 F.2d 895, 898 (7th Cir. 1982)). Because Plaintiffs here have failed to sufficiently demonstrate

that the allocation approach and discount caused them harm, the court need not say more about

this asserted breach of the UHH’s Trustees fiduciary duty.

Defendants’ motion for summary judgment is granted as to UHH’s contribution-based

allocation approach and the Las Vegas discount.

II. Count II: Excessive Administrative Expenses

Plaintiffs have alleged that the Trustees breached their fiduciary duties in a second way,

as well: by incurring “unreasonable administrative expenses compared to the level of benefits

provided.” (Am. Compl. [46] ¶ 6.) Plaintiffs’ basis for this allegation is a comparison performed by

their expert, Mr. Alex Zeid, of UHH’s overall administrative costs to those incurred by comparable

plans. UHH’s costs were substantially higher—among the highest in the nation, according to Mr.

Zeid. (Pls. Opp’n [268] at 24.) Defendants move for summary judgment on this claim, as well.

They argue that the other plans to which Plaintiffs compare UHH are not comparable as a matter

of law. The court agrees.9

Guidance on this issue can be found in Albert v. Oshkosh Corp., 47 F.4th 570 (7th Cir.

2022). There, affirming dismissal of an ERISA plaintiff’s complaint, the Seventh Circuit outlined

9 Defendants also argue that UHH’s monitoring activities were reasonable as a

matter of law; because summary judgment is granted on other grounds, the court need not

consider this argument.

the standard for stating a claim regarding overall excessive expenses under ERISA. The court

observed that, while the determination of whether a plaintiff's complaint regarding excessive

administrative expenses passes muster requires careful, “ ‘context-sensitive scrutiny of a

complaint's allegations,’ ” it is not sufficient for plaintiffs to simply allege that fees were higher than

average fees for other plans. 47 F.4th at 580 (citation omitted). Rather, plaintiffs are required to

“allege that recordkeeping fees were excessive relative to the services rendered.” Id. (quoting

Smith v. CommonSpirit Health, 37 F.4th 1160, 1169 (6th Cir. 2022) (cleaned up and emphasis

added)).

Defendants raised a concern on this score when they filed their motion to dismiss Count

II in October 2023 [49], asserting there that the allegations in Plaintiffs’ complaint were based on

improper average comparisons. The court denied that motion [120], finding that Plaintiffs’

distinction between fully-funded and self-insured plans was sufficiently distinct from a comparison

of average administrative expenses to suffice at the pleading stage. Acosta v. Bd. Of Trustees of

UNITE Here Health, No. 22 C 1458, 2024 WL 3888862, *8 (N.D. Ill. Aug. 21, 2024). But the court

observed that discovery was ongoing, and that “this analysis may change as more information

comes to light.” (Id.) A comparison between other multiemployer plans listed in the complaint

would “indeed end up being apples-to-oranges” if those other plans, for example, turned out to

“offer varying portfolios of health-care benefits at vastly divergent price points.” (Id.) In other

words, for Plaintiffs to demonstrate sufficiently that the administrative costs they faced were

actually excessive relative to the services they received, they would need to investigate whether

the administrative services of other plans were comparable to the services rendered by UHH.

Plaintiffs have failed to do so.

Plaintiffs’ claim regarding average administrative expenses relies almost exclusively on

the opinion of their expert, Mr. Zeid. In conducting his analysis of UHH’s administrative costs, Mr.

Zeid did not perform an analysis of the services rendered by UHH and its vendors compared to

the services rendered in the comparator plans. Rather, Mr. Zeid assumed, for the purposes of

his report, that “the administrative requirements of all health plans are essentially the same”

consisting primarily of “claims adjudication, claims reimbursement, enrollment, policyholder/

participant service, billing, collection and cost-savings initiatives.” (PSOF [270] ¶ 31.) According

to Plaintiffs, Zeid’s assumption means that “differences in services have no material impact on

the expenses incurred by a plan,” so “it is not necessary to show that the services provided to or

available to other plans are the same as long as there are other metrics that provide for a

meaningful comparison.” (Pls.’ Opp’n [268] at 31–32.)

Plaintiffs’ argument fails for several reasons. First, as the Seventh Circuit established in

Albert, it is legally insufficient to simply assume that all administrative expenses are the same

between plans and then conduct a comparison of averages to support a claim regarding

excessive costs. 47 F.4th at 580. This is precisely what Mr. Zeid has done in developing his

opinion. Plaintiffs’ reference to UHH’s excessive costs as compared to a variety of different

comparison sets is unavailing when their expert failed to do what the case law requires in any of

the comparisons he offers—namely, to dig deeper regarding what specific administrative services

were offered by UHH or the comparator plans. Mr. Zeid instead assumed relative uniformity of

administrative costs among health plans, but offered no support for this assumption and admitted

in his deposition that he did not look at the administrative services used by either UHH or

comparator plans in developing his opinion. (Defs. Ex. 137 [259-7] at 572, Zeid Dep. at 203:16–

21.) Nor did he identify any other evidentiary source for his assumption. (See Zeid Rebuttal

Report to Evangelista, [261-2] at 71.)

Finally, even assuming that Mr. Zeid’s assumption is supported and accurate, Plaintiffs’

suggestion—that “other metrics for meaningful comparison” can replace an analysis regarding

the services rendered in comparator plans—was rejected in Albert. Indeed, the metrics offered

by Plaintiffs, including “the assets of the plan, the amount of contributions received by the plan,

and the number of participants in the plan” (Pls.’ Opp’n [268] at 30–31), were precisely the ones

that the Seventh Circuit found insufficient to state a claim. Albert, 47 F.4th at 579 (finding that

plaintiff failed to state a claim where comparator plans had “similar numbers of participants” and

“total assets,” but did not include information concerning the quality or type of recordkeeping

services provided by comparator plans).

Plaintiffs cite to Mator v. Wesco Distribution, Inc., 102 F.4th 172, 185 (3d Cir. 2024), to

support their argument that Zeid’s comparison, which used administrative costs listed on various

plans’ Form 5500s, is sufficient to establish their claim. (Pls.’ Opp’n [268] at 33–34.) In Mator,

plaintiffs, a class of plan participants and beneficiaries, alleged that the plan’s fiduciaries caused

the plan to pay excessive record keeping fees. To support their allegation, plaintiffs ran a

comparative analysis of Form 5500s for various comparable plans. In doing so, they assessed

the recordkeeping fees for the defendant plan by comparing other plans with identical or similar

“service codes,” which are codes that outline the specific services that are rendered under the

umbrella of recordkeeping. Id. at 185. The court concluded that it would be overly burdensome

to require plaintiffs to identify “identical comparators,” i.e., those with an exact match for service

codes on their Form 5500s, at the motion to dismiss stage. Id. at 186 n.4 (“[I]t would be virtually

impossible for a plaintiff to identify plans that buy precisely the same bundle of services as a

defendant plan. That would make it more important for courts not to disregard every less-than-

identical comparator.”) Importantly, however, the court found the complaint sufficient because

plaintiffs “provide[d] specific plan comparators, not just industry averages, and plausibly allege[d]

that the services purchased were sufficiently similar to render the comparisons valid.” Id. at 188.

Unlike the information supporting plaintiffs’ complaint in Mator, Zeid’s report did not look beyond

the overall administrative costs outlined in Form 5500s. (See Pls.’ Opp’n [268] at 17.) Plaintiffs’

reliance on Mator is therefore misplaced.

Because the comparison Plaintiffs use is insufficient as a matter of law, summary

judgment in favor of Defendants is warranted on Count II. The court need not address Plaintiffs’

claim for procedural breach of fiduciary duty on this issue. See Cutrone v. Allstate Corp., No. 20

CV 6463, 2025 WL 306179, at *5 (N.D. Ill. Jan. 27, 2025).

III. A Note on Requested Remedies

One final observation: If Plaintiffs could prove their claims here, there would be open

questions regarding their requested remedies. First, Plaintiffs’ argument that they can recover

lost wages is unsupported, as ERISA is limited to equitable relief. Plaintiffs rely on CIGNA Corp.

v. Amara, 563 U.S. 421, 442 (2011) to argue that lost wages are an appropriate form of relief

under ERISA. Amara did seem to broaden the type of relief available under ERISA to monetary

damages that looked more compensatory rather than equitable in nature, and many courts

permitted such relief in its wake. Tapley v. Locs. 302 & 612 of the Int'l Union of Operating Eng'rs-

Emps. Constr. Indus. Ret. Plan, No. 3:10-CV-0033-HRH, 2014 WL 12616914, at *2 (D. Alaska

July 11, 2014) (permitting recovery of lost wages in the wake of Amara); cf. McCravy v. Metro.

Life Ins. Co., 690 F.3d 176, 181 (4th Cir. 2012) (permitting claim for life insurance proceeds lost

as a result of defendant's breach). The Supreme Court has since clarified, however, that such

extension of the relief available under ERISA was inappropriate. See Montanile v. Bd. of Trs. of

Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136, 148 n.3 (2016) (clarifying that Amara’s

discussion of relief available under § 502(a)(3) was “not essential to resolving that case,” and that

the Court’s interpretation of equitable relief in earlier cases limiting relief to recovery of “’particular

funds or property in the defendant's possession . . . remains unchanged”); see also Rose v. PSA

Airlines, Inc., 80 F.4th 488, 504 (4th Cir. 2023) (rejecting McCravy’s expansion in light of

Montanile.) Even had they proven their claims, Plaintiffs could not move forward to pursue a lost

wages remedy.

That leaves their other forms of requested relief, including injunctive relief and an “order

to transfer plan assets attributable on behalf of Named Plaintiffs and Class Members to a health

plan that currently provides their benefits,” i.e., the Santa Monica Fund. (Am. Compl. [46] at 53–

54; Pls’. Resp. to DSOF [269] ¶ 153.) As to injunctive relief, Plaintiffs must demonstrate that they

are entitled to a permanent injunction by showing that “future harm [is] imminent rather than likely

to occur at some undefined point down the road.” Pa. Chiropractic Ass'n v. Blue Cross Blue

Shield Ass'n, No. 09 C 5619, 2014 WL 4087221, at *5 (N.D. Ill. Aug. 19, 2014), rev'd on other

grounds sub nom, Pa. Chiropractic Ass'n v. Indep. Hosp. Indem. Plan, Inc., 802 F.3d 926 (7th Cir.

2015) (citation and internal quotation marks omitted). Plaintiffs allege in their complaint that

another health plan “currently provides their benefits.” (Am. Compl. [46] at 54.) It is therefore

unclear whether Plaintiffs would have standing to request an injunction, as it appears that UHH

no longer provides benefits to the named class members.

And in terms of Plaintiffs’ request that the court order a transfer of funds attributable to

their contributions to the Santa Monica Fund, the court is at a loss regarding the propriety of such

a remedy; the Santa Monica Fund provides benefits to participants who are not members of the

class and never received benefits from UHH. (DSOF [259] ¶ 156, Pls.’ Resp. to DSOF [269]

¶ 156; Def.’s Exh. 100 [259-5] at 223, Lynch Dep. at 53:3-8); TransUnion LLC v. Ramirez, 594

U.S. 413, 431 (2021) (“Article III does not give federal courts the power to order relief to any

uninjured plaintiff, class action or not.” (internal quotations omitted)). At oral argument, the court

pushed Plaintiffs to explain how their proposed remedy would be limited to benefit class members

alone. Plaintiffs’ counsel responded by saying that he “suspect[ed] that [the Santa Monica Fund]

would be willing and able to implement some type of reasonable limitation on the spending” of the

transferred funds (Tr. of Oral Argument [293] at 58:5–8), but it remains unclear how such a

limitation would operate. Because Defendants are entitled to summary judgment on other

grounds, however, the court need not attempt to weed through this confusion in more detail.

CONCLUSION

For the reasons explained here, Defendants’ motion for summary judgment [257] is

granted. Plaintiffs’ cross motion for summary judgment is denied [262]. The pending motion to

exclude the testimony of Dr. Zeid [260] is stricken as moot. The Clerk is directed to enter judgment

in favor of Defendants and against Plaintiffs.

ENTER:

Sepreca Hfrdnege —

Dated: March 31, 2026

REBECCA R. PALLMEYER

United States District Judge

28