18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 315 Plaintiffs were subject to several different plans, an analysis of their claims would require Plaintiffs to establish that their particular wrap language did not empower Defendant to withhold additional payment. Id . at *19. The Court further ruled that Plaintiffs’ unique defenses precluded a finding that their claims were typical as compared to other potential class members. The Court also explained that due to an ongoing parallel lawsuit, Plaintiffs potentially would receive a monetary recovery, and therefore class members would have little incentive to pursue claims and would not be a member of the class they sought to represent. For these reasons, the Court denied Plaintiffs’ motion for class certification. Lipari-Williams, et al. v. Missouri Gaming Co., 2021 U.S. Dist. LEXIS 220833 (W.D. Mo. Nov. 16, 2021). Plaintiffs, a group of casino employees who participated in Defendant’s healthcare plan, filed a class action alleging that Defendant imposed a tobacco surcharge for all healthcare participants that used tobacco products in violation of the ERISA. Plaintiffs filed a motion for class certification of a class and subclass pursuant to Rule 23, including all participants who had a tobacco surcharge deducted from their wages. The Court granted the motion. Plaintiffs asserted that their class and subclass consisted of over 1,500 members, and thus the Court concluded that it was sufficiently numerous. Plaintiffs further argued the proposed class met the commonality requirement because Defendant distributed the tobacco surcharge documents at issue to each class member during that plan year. Defendant contended that individualized inquiries would be necessary to determine whether any participant was harmed by the alleged ERISA violations. The Court agreed with Plaintiffs that their theory of liability was based on common, class-wide tobacco surcharge documents that were distributed and/or available to all participants, and that participants allegedly suffered a common injury by paying an unlawful fee. Id . at *14. The Court therefore held that Plaintiffs met the commonality requirement. In addition, the Court reasoned that Plaintiffs’ claims regarding whether Defendant’s tobacco surcharge violated the ERISA and the corresponding surcharges paid as a result of that violation were typical of the claims of all proposed class members. The Court also found that Plaintiffs met the adequacy requirement and that class counsel was qualified to litigate the class claims. Further, Plaintiffs asserted that Rule 23(b)(1)(B) was satisfied because adjudication of their claims would be dispositive of the interests of other Plan participants as well as their claims. Id . at *23. In particular, Plaintiffs cited deposition testimony in which Defendant acknowledged having fiduciary responsibilities with respect to the Plan, which they alleged that Defendant breached by implementing the tobacco surcharge and by using that money to off-set its own costs related to the Plan. Id . at *24. The Court ruled that Plaintiffs’ claim for breach of fiduciary duty on behalf of the Plan likely would be dispositive of the claims of other class members. Id . As to certification pursuant to Rule 23(b)(3), Plaintiffs argued that common questions predominated over individual questions for both proposed classes. Id . at *26-27. The Court agreed that any individualized inquiries did not override the predominate commonality of the class-wide documents the Defendant distributed and/or made available to all participants. Id . at *28. Finally, the Court ruled that a class action would be the superior method of adjudication for Plaintiffs’ claims. Accordingly, the Court granted Plaintiffs’ motion for class certification pursuant to Rule 23. Thorne, et al. v. U.S. Bancorp, 2021 U.S. Dist. LEXIS 94575 (D. Minn. May 18, 2021). Plaintiffs, a group of participants in the U.S. Bank Pension Plan ("the Plan") who elected to receive their benefits as an annuity before reaching the Plan’s anticipated retirement age of 65, filed a class action alleging that Defendants paid an insufficient percentage of their annuity benefit based on unreasonable actuarial calculations in violation of the ERISA. Plaintiffs filed a motion for class certification pursuant to Rule 23, which the Court denied. Plaintiffs sought declaratory and injunctive relief in the form of a "retroactive Plan Amendment," which would provide class members the greater of either an equivalent benefit to their age-65 "Early Commencement Factor" ("ECF") or their current benefit. Id . at *4. To prove that there were common questions or law and fact, Plaintiffs offered six alternative calculations by their expert, Michael Serota, using different actuarial assumptions than those in the Plan to argue that one of the models should replace the current ECFs used to calculate benefits. Id . at *5. Defendants asserted that the models were unworkable because potential class members would favor different models, as no model actually resulted in higher benefits for all class members. Some of the potential class members’ benefits would actually decrease using the models and 251 class members already received actuarially equivalent benefits. Id . The Court ruled that any potential class members who received actuarially equivalent benefits were not injured by the Plan. The Court also determined that there was no commonality across the proposed class because some potential class members lacked standing due to not being injured by the loss of benefits from the Plan. The Court also held that Plaintiffs’ proposed class lacked typicality because