August 28, 2014 Articles

Recent ERISA Decisions Favor Certification

Courts have had little trouble finding commonality satisfied in these cases, even post-Dukes.

By Mark G. Boyko

Momentum in class actions involving the Employee Retirement Income Security Act (ERISA) has been undoubtedly in favor of certification. Within the past year, defendants have either chosen not to seek appellate review of orders granting class certification or have been unsuccessful in seeking interlocutory review of class-certification decisions under Rule 23(f). Krueger v. Ameriprise Fin., Inc., No. 11-2781 (D. Minn. May 23, 2014), ECF No. 384 (defendants did not file a Rule 23(f) motion following class certification); Tussey v. ABB, Inc., 746 F.3d 327 (8th Cir. 2014) (defendants appealed judgment for plaintiff class following trial but chose not to appeal earlier class certification); Spano v. Boeing Co., 294 F.R.D. 114 (S.D. Ill. Sept. 19, 2013) (defendants’ Rule 23(f) motion denied by Seventh Circuit).

Courts granting Rule 23(b)(1) certification have recognized the natural logic to certifying classes in ERISA cases brought by plan participants. ERISA authorizes a plan participant to bring a civil suit against plan fiduciaries for breaches of the fiduciaries’ duties of loyalty and prudence. See ERISA § 502(a)(2). The plan participant, however, cannot seek to recover personal damages for misconduct and must instead seek recovery that “inures to the benefit of the plan as a whole.” Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695 (11th Cir. 2014) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140 (1985)).

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