United States District Court, D. Colorado
ORDER RE PLAINTIFFS' MOTION FOR CLASS
E. Blackburn United States District Judge.
matter before me is Plaintiffs' Motion for Class
Certification [#104],  filed June 30, 2017. I grant the
motion on the terms set forth herein.
jurisdiction over this matter under 28 U.S.C.
§1331(federal question) and 29 U.S.C. § 1132(e)(1)
STANDARD OF REVIEW
to Fed.R.Civ.P. 23, a class may be certified if the following
requirements are met: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of
those of the class, and; (4) the representative parties will
protect the interests of the class adequately. In addition,
one of the three alternative requirements outlined in Rule
23(b) also must be satisfied. Sibley v. Sprint Nextel
Corp., 254 F.R.D. 662, 670 (D. Kan. 2008).
question whether to certify a class certification is
committed to the sound discretion of the trial court.
Anderson v. City of Albuquerque, 690 F.2d 796, 799
(10thCir. 1982). As the proponent of class
certification, plaintiffs bear a “strict burden of
proof” to demonstrate the requirements of Rule 23 are
satisfied. Trevizo v. Adams, 455 F.3d 1155, 1162
(10th Cir. 2006). Nevertheless, because a
certified class may be altered, expanded, subdivided, or
abandoned as the case develops, Daigle v. Shell Oil
Co., 133 F.R.D. 600 (D. Colo. 1990), doubts as to the
propriety of entertaining a class action should be resolved
in favor of certification, see Esplin v. Hirschi,
402 F.2d 94, 99 (10th Cir. 1968) (“[I]f
there is to be an error made, let it be in favor and not
against the maintenance of the class action, for it is always
subject to modification should later developments during the
course of the trial so require.”).
lawsuit concerns the Oracle 401(k) Savings and Investment
Plan (“the Plan”), a defined contribution
retirement benefits plan sponsored and maintained by
defendant Oracle Corporation (“Oracle”) for the
benefit of its employees. Oracle is the named fiduciary and
administrator of the Plan. The Plan currently has more than
70, 000 participants and manages over $12 billion in assets.
to the terms of a Trust Agreement, Oracle delegated to the
Oracle Corporation 401(k) Committee (“the
Committee”), inter alia, its fiduciary
responsibility for determining investment options for the
Plan. It also delegated its duties to serve as
recordkeeper and trustee for the Plan to Fidelity Management
Trust Company (“Fidelity”). In return for these
services, Oracle agreed to pay Fidelity reasonable
lawsuit, named plaintiffs seek to represent a class
All participants and beneficiaries of the Oracle Corporation
401(k) Savings and Investment Plan from January 1, 2009
through the date of judgment, excluding the Defendants.
putative class asserts four claims based on two primary
allegations: (1) that defendants allowed Fidelity to collect
excessive and unreasonable recordkeeping and administrative
fees from the Plan; and (2) that defendants caused the Plan
to make certain imprudent investments. Defendants do not
oppose class certification per se, but argue
plaintiffs' proposed class definition does not meet the
requirements of Rule 23.
by examining that definition. “Although not mentioned
specifically in Rule 23 itself, a prerequisite to class
certification is an appropriate class definition.”
Maez v. Springs Automotive Group, LLC, 268 F.R.D.
391, 394 (D. Colo. 2010). The adequacy of the class
definition must be determined before the court addresses the
other requirements of Rule 23. Warnick v. Dish Network,
LLC, 301 F.R.D. 551, 556 (D. Colo. 2014), appeal
dismissed (October 7, 2015). This latent aspect of the
class certification inquiry - the question of
“ascertainability” - “ensures that a
proposed class will actually function as a class” by
ensuring “that class members can be
identified.” Byrd v. Aaron's Inc., 784
F.3d 154, 162 (3rd Cir. 2015) (emphasis in
is sufficiently defined when potential class members can be
identified by reference to objective criteria. Rhodes v.
Olson Associates, P.C., 83 F.Supp.3d 1096, 1111-12 (D.
Colo. 2015). “[T]he description of the class must be
sufficiently definite so that it is administratively feasible
for the court to ascertain whether a particular individual is
a member.” Joseph v. General Motors Corp., 109
F.R.D. 635, 639 (D. Colo. 1986). “[T]he district court
has broad discretion to determine whether the class
description is sufficiently definite.” 5 James W. Moore
et al., Moore's Federal Practice § 23.21 at 23-61
(3rd ed. 1999).
prerequisite is ostensibly met in this case. “ERISA
[fiduciary] litigation ... presents a paradigmatic example of
a [Rule 23](b)(1) class.” In re Global Crossing
Securities & ERISA Litigation, 225 F.R.D. 436, 453
(S.D.N.Y. 2004) (internal quotation marks omitted). Indeed,
defendants do not suggest this class is unascertainable.
Rather, they claim plaintiff's definition is both (1)
overly broad generally in terms of its proposed time frame;
and (2) with respect to the imprudent investment claims
particularly, insufficiently specific in terms of which Plan
participants and beneficiaries may be part of that class. The
later argument will be addressed more fully in the context of
considering the requirements of Rule 23(a).
the former, defendants suggest the proposed class must be
limited by the applicable six-year statute of repose which
applies to ERISA claims. See 29 U.S.C. §
1113(1). Fulghum v. Embarq Corp., 785 F.3d 395, 415
(10th Cir.), cert. denied, 136 S.Ct. 537
(2015). However, I concur with plaintiffs that such a
determination is premature. The Amended Complaint alleges
defendants concealed the various breaches of their fiduciary
duties on which plaintiffs' claims are based
(see Am. Compl. ¶ 59 at 18 & ¶¶
72-75 at 25-26 [#84], filed May 26, 2017), which
circumstance, if proven, would toll limitations, see
29 U.S.C. § 1113. It would be inappropriate at this
early juncture to attempt to discern the merits of those
allegations. See Kanawi v. Bechtel Corp., 254 F.R.D.
102, 112 (N.D. Cal. 2008); Taylor v. United Technologies
Corp., 2008 WL 2333120 at *6 (D. Conn. June 3, 2008).
present, therefore, I will certify a class defined by the
time frame suggested by plaintiffs, subject to later
modification if discovery fails to bear out the truth of
plaintiffs' allegations of concealment. See Fed.
R. Civ. P. 23(c)(1)(C); In re Integra Realty Resources,
Inc., 354 F.3d 1246, 1261 (10th Cir. 2004)
(“[A] trial court overseeing a class action retains the
ability to monitor the appropriateness of class certification
throughout the proceedings and to modify or decertify a class
at any time before final judgment.”).
so concluded, I now turn to the explicit requirements of Rule
23. As noted above, defendants do not oppose certification of
this action as a class action, but only challenge the manner
in which plaintiffs purport to define the class as regards
the imprudent investment claims. Examining the requirements
of Rule 23, I agree with defendants that certification of
more tightly defined subclasses as to those claims is
appropriate here, as discussed in more depth below.
is no question here but that the proposed class, however
defined or subdivided, satisfies the requirement of
numerosity. Fed.R.Civ.P. 23(a)(1) (proposed class must be so
numerous that joinder of all members of the class is
impracticable). As of December 31, 2014, the Plan had more
than 65, 000 participants; it now has more than 70, 000.
Regardless whether the class is defined as a single entity,
as plaintiffs suggest, ...