TriNet III and TriNet IV were not typical of one another, and that the TriNet IV plaintiffscould not satisfy the typicality requirement with respect to their claims challenging fundsin which they did not invest in their own plan. Id. at *20. The defendants sought to limitthe class to participants and beneficiaries of TriNet IV, and exclude any claims relatedto the performance of funds that those putative class members never held.Notwithstanding its decision on standing, the court agreed with the defendants that “theTriNet IV plaintiffs are not typical representatives as to the TriNet III Plan” because none“invested in any of the challenged funds in the TriNet III Plan” and there was “no overlapbetween” the challenged funds in the two plans, which also “utilized differentrecordkeepers operating under different contracts.” Id. at *20-23. For these reasons, thecourt held there was “not a sufficient nexus between the TriNet IV plaintiffs’ claims” andthose of the “unnamed class members in the TriNet III Plan to satisfy the typicalityrequirement” and the claims were “not based on similar enough facts” between the twoplans. Id. at *22-23. The court reached the opposite conclusion as to the TriNet IVclaims, concluding that the plaintiffs in that plan were typical representatives withrespect to that because their claims “and the claims of all participants in the TriNet IVPlan are based on the same legal theory and underlying events.” Id. at *23-24.Accordingly, the court held that the TriNet IV plaintiffs had met the typicality requirementas to their claims regarding the TriNet IV Plan, but were not typical representatives as tothe TriNet III Plan and, as such, the court narrowed the certified class to include onlyparticipants in the TriNet IV Plan. Id. at *24-25.F.Appellate Decertification Of ERISA Class Certification OrdersAmong the more significant class action appellate decisions in 2022 is Haley, et al. v.Teachers Insurance And Annuity Association Of America, 2022 WL 17347244 (2d Cir.Dec. 1, 2022), in which the Second Circuit decertified a class of more than 200,000participants.There, the plaintiff alleged that a loan program defendant offered to her 403(b) definedcontribution retirement plan was a prohibited transaction under the ERISA and sought tocertify a class of approximately 8,000 employee benefit plans whose fiduciariescontracted with the defendant to provide similar loan programs. The loan programplaintiff challenged offered loans secured by plan participants’ retirement savings.Though the defendant did not charge origination or maintenance fees for loans, itearned money on the “spread” or difference between the amount of interest aparticipant paid on the loan and the amount investment income derived from theretirement investments used to secure the loan. Id. at *1-2. The plaintiff took several ofthese loans and sought to hold the defendant liable as a non-fiduciary under the ERISAwho nevertheless knowingly participated in the alleged violations by her plan fiduciary.The district court allowed the claims to proceed against the defendant as a nonfiduciary, and the plaintiff moved to certify the class. The defendant argued that theloans challenged across the class were too disparate to warrant class treatment andthat the ERISA recognizes exemptions to prohibited transactions, but that the factors fordetermining whether the subject loans were except were not subject to common proof.Id. The district court nevertheless certified the class under Rule 23(b)(3) but “did notmake any findings about the purported variations among the loans in the putative class202© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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