Duane Morris Class Action Review - 2023 - Report - Page 275
failure to actively and regularly negotiate the Plans’ recordkeeping fees resulted in plan
participants paying fees that were higher than those prevailing in the market. Id. The
court determined that the “prudent” alternative investment options that Hare proposed
improperly relied on hindsight and thus could not be used to establish the defendants’
breach of fiduciary duty. As to O’Neal’s expert report, the court ruled that the derivative
loss calculations were also unreliable. The court determined that Minnich provided his
estimate of the per-participant recordkeeping fees based on methodology considering
only a representative sample of defined contribution plans, and was therefore reliable.
The court thus granted in part and denied in part the defendants’ motion. The plaintiffs
sought to exclude Gissiner’s expert report. The court ruled that Gissiner’s explanation
concerning his method of comparing the fees paid by 403(b) plans on a record keeperby-record keeper basis, as well as other third-parties’ utilization of similar methods, was
sufficient to render his testimony admissible. For these reasons, the court denied the
plaintiffs’ motion to exclude defendants’ expert report.
J.
Preliminary Injunction Issues In Class Actions
The plaintiffs in a class action sometimes move for an immediate ruling on their claims
by way of a motion for a preliminary injunction. It typically accelerates the court’s
involvement in the case, and typically can set the parameters for the class action
moving forward.
In one of the most significant rulings on this issue in 2022, the Sixth Circuit denied an
emergency stay for a preliminary injunction for class certification. In Doster, et al. v.
Kendall, 48 F.4th 608 (6th Cir. 2022), the plaintiffs alleged that the Department of the Air
Force regularly rejected religious accommodation requests to the COVID-19 vaccine
requirement, while regularly granting requests for medical and administrative
exemptions. The plaintiffs contended that Department’s “systematic” denial of requests
for religious exemptions violated the Religious Freedom and Restoration Act (RFRA)
and the First Amendment. The plaintiffs sought certification of a class of some 10,000
affected service members. The district court granted class certification and preliminarily
enjoined the Department from taking punitive measures against a class of service
members with sincere faith-based objections to receiving the vaccine. Id. at 609. The
Department’s appealed and moved for an emergency stay of the class-wide injunction.
The Department argued that RFRA claims could not be certified for class treatment. The
Sixth Circuit agreed that most RFRA claims require individualized analysis, but the
district court’s certification order emphasized that the RFRA claim certified was one
based on a class-wide “clear policy of discrimination against religious accommodation
requests.” Id. at 610. The Department also argued that the injunction caused it to suffer
“irreparable harm” because it “requires [the Department] to retain” nearly 10,000
unvaccinated service members who, in the judgment of professional military
commanders, are ineligible to deploy and are limited in their ability to travel for training,
exercise, and other operational needs.” Id. The Sixth Circuit determined that the
Department failed to demonstrate that the district court abused its discretion when it
afforded the class members (during the pendency of the accommodation requests) the
same relief that the Department afforded them. Accordingly, the Sixth Circuit denied the
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Duane Morris Class Action Review – 2023
