Counsel has considerable experience litigating class action cases involving ERISA pension benefits and was approved by Judge Crabb in the Western District of Wisconsin in a case alleging similar claims. SeeRuppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 636 (W.D.Wis.2009). The Plans do briefly argue that the interests of certain class representatives may conflict with the interests of certain lump sum subclass members.
The court finds that the class may be certified under Rule 23(b)(1) or (2), so it is not necessary to determine whether it may also be certified under Rule 23(b)(3). Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 637 (W.D.Wis.2009) (allowing class to be maintained under Rule 23(b)(3), which allows class members to opt out, would be counterproductive if the class is maintainable under Rule 23(b)(1) or (2), which does not allow opt out). Rule 23(b)(1) covers actions for which " prosecuting separate actions" would create certain risks, including a risk of " inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class," Rule 23(b)(1)(A), or " adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests."
The conclusion made by the district court and adopted by this Court is consistent with established law and the public policy concerns surrounding earned pension rights. See, e.g., Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 635 (W.D.Wis.2009) (“[T]o the extent plaintiffs' releases could be construed as releasing defendant from this ERISA suit, the agreement would be unenforceable because agreements that waive future violations of ERISA are unenforceable....”); Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1293 (10th Cir.1991) (holding that a waiver of a right to sue was insufficient to release future ERISA claims where the parties were unaware of such claims when the release was signed); see also29 Williston on Contracts § 73:10 (4th ed.) (“[A] general release will not be construed to bar the enforcement of a claim that had not accrued as of the date of the release.”). Appellants rely on a series of cases where courts have held that ERISA claims could be released.
Moreover, the fact-intensive nature of our reasonableness approach could make it difficult for a potential class representative to meet the typicality requirement of Fed.R.Civ.P. 23(a)(3). But the case law on the effect of an individualized statute-of-limitations-accrual evaluation on a proposed class's ability to meet the typicality requirement, if any, is sparse, see Chiang v. Veneman, 385 F.3d 256, 269 (3d Cir.2004); Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 633–34 (W.D.Wis.2009), and we decline to address whether that requirement is satisfied on the record before us. We note, however, the well-established rule that a plaintiff must satisfy all of the requirements of Rule 23, by a preponderance of the evidence, to obtain class certification, seeTeamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir.
See In re J.P. Morgan, 2017 WL 1273963, at *11 (finding that release defense did not produce “fundamental” conflict and, in any event, could be addressed through the creation of a subclass); Sexton v. Franklin First Fin., Ltd., 2009 WL 1706535, at *9 (E.D.N.Y. June 16, 2009) (rejecting “individualized inquiry objection” as it related to some plaintiffs' release agreements where “[t]he legal validity of such agreements are likely to apply across the board or fail as a matter of law”); see also Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 635 (W.D. Wis. 2009) (certifying class even though individual releases contained carveouts “related to plaintiff's pension benefit rights” with differing terms, and concluding that releases would likely not apply because “agreements that waive future violations of ERISA are unenforceable”); Nelson v. IPALCO Enters., 2003 WL 23101792, at *6-8 (S.D. Ind. Sept. 30, 2003) (granting certification where release defense was “susceptible to resolution on a class-wide basis”). Defendants rely on Spann v. AOL Time Warner, Inc., 219 F.R.D. 307 (S.D.N.Y. 2003), but that case is distinguishable.
Courts have held, however, that such releases cannot protect a fiduciary from suit when the cause of action arose after the signing of the release. See Ruppert v . Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 635 (W.D. Wis. 2009) ("[T]o the extent plaintiffs' releases could be construed as releasing defendant from this ERISA suit, the agreement would be unenforceable because agreements that waive future violations of ERISA are unenforceable ...."). An attempt to release future ERISA violations would not be valid because it would be an attempt to relieve the fiduciary of responsibility.
But an adequate class representative must understand only the basic facts underlying the claims and have some general knowledge, willingness, and ability to participate in discovery. See Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 636 (W.D. Wis. 2009); Wahl v. Midland Credit Mgmt., Inc., 243 F.R.D. 291, 298 (N.D. Ill. 2007). In other words, "[a] class representative need not possess detailed knowledge of the lawsuit."
"To decide whether notice is proper in such actions, the court should 'balanc[e] the risk that notice costs may deter the pursuit of class relief against the benefits of notice.'" Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 638 (W.D. Wis. 2009) (quoting 2003 Advisory Committee Notes to Rule 23). Because the parties have not addressed this issue, it is difficult to determine whether notice should be required in this case.
Further, Spears' representation of plaintiffs who do require tolling to make their claims timely does not conflict with his duty to represent other plaintiffs. See Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 634 (W.D. Wis. 2009). D. Plaintiffs' Motion to Bifurcate
See Winnett v. Caterpillar, Inc., 609 F.3d 404, 410 (6th Cir.2010) (“[T]he accrual of a cause of action turns on when subclass members knew of Caterpillar's change in benefits, not when they felt its effects.”).Plaintiffs cite to this court's opinion in Ruppert v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628 (W.D.Wis.2009), to rebut defendants' argument that a claim accrues when participants know of a change, not when they feel the effect of the change. In Ruppert, however, the court concluded that the claim did not accrue until the calculation had been completed, because it was the calculation that caused the injury.