Frequently Asked Questions
What is the Notice and why should I read it?
A court authorized the Notice to let you know about a proposed settlement of a class action lawsuit called Davis v. Washington University in St. Louis, No. 4:17-cv-01641 (E.D. Mo.), brought on behalf of the Settlement Class Members, and pending in the United States District Court for the Eastern District of Missouri. The Notice describes the Settlement. Please read the Notice carefully. Your rights and options—and the deadlines to exercise them—are explained in the Notice. Please understand that if you are a Settlement Class Member, your legal rights are affected regardless of whether you act.
The Court has not yet decided whether to approve the Settlement. If the Court does so, and after any objections and appeals are resolved, the Net Settlement Amount will be allocated among Settlement Class Members according to a Court-approved Plan of Allocation. Information about your individual share of the Net Settlement Amount, if any, will not be available until several months after the Court grants final approval of the Settlement and any appeals are resolved.
What is a class action lawsuit?
A class action is a lawsuit in which one or more plaintiffs sue on behalf of a large group of people who allegedly have similar claims. After the Parties reached an agreement to settle this case, the Court granted preliminary approval of the Settlement and determined that the case should be treated as a class action for settlement purposes. Among other things, this preliminary approval permits Settlement Class Members to voice their support for, or opposition to, the Settlement before the Court makes a final determination of whether to approve the Settlement. Because this is a class action for settlement purposes, the Court will resolve these issues for all class members.
Plaintiffs in this Action, Latasha Davis, Jennifer Elliot, and Marla Aliece King-Sims, were participants in the Plan during the Class Period and are referred to as the “Plaintiffs.” The Court has appointed them as named representatives of the Settlement Class.
THE CLAIMS IN THE LAWSUIT AND THE SETTLEMENT
What is this Action about?
Plaintiffs filed a complaint alleging that Defendants breached their fiduciary duties under ERISA—that is, certain responsibilities under federal law—by causing the Plan to incur unreasonable and “excessive” fees for administrative and investment services. Specifically, Plaintiffs alleged that Defendants caused the Plan and its participants to pay excessive fees for recordkeeping services and offered higher-cost “retail” investment options when lower-cost “institutional” options were available. A more complete description of what Plaintiffs alleged is in the operative Complaint.
Defendants deny any and all wrongdoing or liability and assert that their conduct was lawful. Defendants maintain that, at all relevant times, they have acted prudently and solely in the best interests of Plan participants, in accordance with their fiduciary duties under ERISA. Among other things, Defendants monitor, review, and evaluate the Plan’s investment options, their performance and expenses, and the Plan’s administrative fees, thus ensuring the Plan offers participants a reasonable, affordable, and diverse array of investment options.
Why is there a Settlement?
The Court has not decided in favor of either side in the Action. Since the Action was filed June 2017, the Settling Parties have engaged in spirited litigation efforts, including extensive merits and expert discovery that included Defendants’ production of thousands of documents, both parties taking several depositions, and the exchange of written expert reports. Pursuant to a Court order, the Settling Parties engaged in a full-day mediation in late January 2022 before a nationally-recognized mediator and ultimately agreed to the Settlement.
Plaintiffs and their attorneys believe the Settlement is the best option for the Settlement Class Members. As with any litigated case, Settlement Class Members would face an uncertain outcome if the Action were to continue, which could result in a range of possible recoveries, including a judgment greater or less than the recovery under the Settlement Agreement, or no recovery at all. Class Counsel also have taken into account the limited availability of insurance. Class Counsel thus believe this Settlement reflects a reasonable compromise in light of the range of possible outcomes, and that the Settlement is preferable to continued litigation and is in the best interest of the Settlement Class Members.
As noted, Defendants deny any and all liability associated with Plaintiffs’ allegations. However, Defendants and their insurance provider have decided to settle the Action to avoid the expense, inconvenience, and inherent risk of continued litigation, thereby securing a full and final resolution of these claims as to the University and other Released Parties on the terms and conditions set forth in the Settlement Agreement.
WHO IS INCLUDED IN THE SETTLEMENT?
How do I know if I am part of the Settlement?
The Court has decided that anyone who fits the following description is part of the Settlement Class:
All participants in the Plan at any time during the Settlement Class Period, including any Beneficiary of a deceased person who participated in the Plan at any time during the Settlement Class Period, and any Alternate Payee of a person subject to a Qualified Domestic Relations Order that was in effect before the end of the Settlement Class Period and who participated in the Plan at any time during the Settlement Class Period. Excluded from the Settlement Class are: Monica Allen, Donna Bequette, Lisa Braun, Robert Buer, Trey Byrne, Legail Chandler, Mary Corcoran, Phil Dybvig, Ronald Faulbaum, Barbara Feiner, Lorraine Goffe-Rush, Linda Hack, Margo Jarrell, Amy Kweskin, Ann Prenatt, Jennifer Schaefer, Michael Stohler, Mary Stull, Kim Walker, Henry Webber, Peter Wiedenbeck, Lisa Wood, and Gary Yuhas.
If you meet the definition above, then you are a member of the Settlement Class.
THE SETTLEMENT BENEFITS
What does the Settlement provide?
Defendants, through their insurance carrier, have agreed to pay a total amount of $7,500,000 into an account at a financial institution identified by Class Counsel, which shall constitute the “Settlement Fund.” This Gross Settlement Amount includes amounts for expenses associated with administering the Settlement, taxes, tax expenses, fees incurred for an Independent Fiduciary’s review of the Settlement on behalf of the Plan, as well as Court-approved Attorneys’ Fees and Expenses and compensation to the Plaintiffs. (See Questions 9 & 11.) The net amount of the Settlement Fund, after payment of the aforementioned costs and expenses, will be allocated to the Settlement Class Members according to the approved Plan of Allocation, if and when the Court enters an order finally approving the Settlement. According to the proposed Plan of Allocation, the amount of each Settlement Class Member’s payment is based on the size of his or her average end-of-quarter Plan account balances during the Settlement Class Period. (See Question 7.)
As part of the Settlement, Defendants also agreed to take certain actions in the future with respect to how they manage the Plan. Specifically, Defendants will: (i) continue providing annual fiduciary training for all RPAC members; (ii) evaluate the Plan’s investment policy statement at least annually; (iii) issue a “request for proposal” for Plan recordkeeping services within no more than three (3) years; (iv) have the Plan’s current investment consultant advise on certain specific attributes concerning the Plan’s investment options and fees; and (v) continue maintaining the privacy of Plan participants’ confidential personal information.
How much will my payment be?
The specific amount you might receive is not yet known and will be determined based on a proposed Plan of Allocation to be approved by the Court.
If you qualify, you will receive a pro rata share of the Net Settlement Amount. The Plan of Allocation describes how the Net Settlement Amount will be distributed among Settlement Class Members. The full Plan of Allocation, including the details of each step in how the Settlement Administrator will calculate the Settlement payments, is described further in the Settlement Agreement. In general terms, however, the Plan of Allocation provides that each Settlement Class Member’s share of the Net Settlement Amount will be calculated as follows:
The percentage of the Net Settlement Amount to be allocated to each Settlement Class Member will be calculated by dividing the sum of a Settlement Class Member’s quarter-end account balances for quarter ended during the Settlement Class Period by the sum of quarter-end account balances of all of the Settlement Class Members for each quarter ended during the Settlement Class Period.
No amount will be distributed to Former Plan Participants whose pro rata share is $25.00 or less, because such amount is de minimis and would cost more in processing than its value. The Plan of Allocation accounts for these individuals by reallocating these amounts among other eligible Settlement Class Members. The total amount of all checks to be written by the Settlement Administrator plus the total amount of all credits the Plan is instructed to make to Current Participants may not exceed the Net Settlement Amount.
The Settlement Administrator will perform all calculations and determine your pro rata amount. The Settlement Administrator will have access to all available records, so you do not need to be concerned if you no longer have your account statements.
HOW TO GET BENEFITS
How do I get a settlement payment?
If you are a Settlement Class Member (see Question 5) and a Current Participant, your payment will be credited automatically into your Plan account and then invested in accordance you’re your investment elections then on file with the Plan recordkeeper for new contributions. If you have no investment election on file, you will be deemed to have directed such payment to be invested in the Plan’s “qualified default investment alternative,” as defined in 29 C.F.R. § 2550.404c-5.
If you are a Settlement Class Member and a Former Participant, your payment will be made via a tax-deferred distribution process as described in the Settlement Agreement, by which your payment will be transferred into a new automatic rollover IRA and you will then receive instructions for how to access and manage such account. Among other options, you may elect to roll over your payment to another eligible account or take an immediate cash distribution (subject to taxes and other applicable withholdings).
If you are a Beneficiary entitled to receive payments on behalf of a Settlement Class Member, you will receive your payment under the Settlement directly in the form of a check. If you are an Alternate Payee entitled to receive payments on behalf of a Settlement Class Member pursuant to a Qualified Domestic Relations Order that was in effect during the Settlement Class Period (i.e., between June 8, 2011 and March 31, 2022), you also will receive your payment of the Settlement amount (pursuant to the terms of your QDRO) directly in the form of a check.
When will I get my payment?
It is hard to say when you may receive your pro rata share of the Net Settlement Amount. However, the Settlement amounts should be distributed approximately three (3) months after the Settlement has received final approval by the Court (and/or after any appeals have been resolved in favor of the Settlement). The hearing to consider the final fairness of the Settlement is scheduled for August 31, 2022. Should there be an appeal, this can take one year or longer.
All checks will expire and become void 120 days after they are issued, if they have not been cashed.
These payments may have certain tax consequences. You should consult your tax advisor.
Please note: There will be no payments if the Settlement is terminated. The Settlement may be terminated on several grounds, described in the Settlement Agreement. In the event any of these conditions occur, there will be no Settlement payment made, and the litigation will resume.
THE LAWYERS REPRESENTING YOU
Who represents the Settlement Class, including me?
For purposes of the Settlement, the Court has appointed as Plaintiffs’ “Co-Lead Class Counsel” the law firms of Berger Montague, PC, Chimicles Schwartz Kriner & Donaldson-Smith LLP, and Schneider Wallace Cottrell Konecky LLP. “Class Counsel” includes these Co-Lead Class Counsel as well as the law firms of Edelson Lechtzin LLP, Carey Danis & Lowe, and the Edgar Law Firm LLC. If you want to be represented by your own lawyer, you may hire one at your own expense.
In addition, the Court appointed Plaintiffs Latasha Davis, Jennifer Elliot, and Marla Aliece King-Sims as representatives of the Settlement Class. They are also Settlement Class Members. Subject to approval by the Court, Class Counsel has proposed that $5,000 may be paid to each Plaintiff as the Class representative, in recognition of time and effort they expended on behalf of the Settlement Class. The Court will determine the proper amount of any such payment to Plaintiffs.
How will the lawyers be paid?
No later than August 1, 2022, Class Counsel will file a petition asking the Court to award Attorneys’ Fees and Expenses (a copy will be posted on the Important Documents page). The Court will consider Class Counsel’s petition at the Final Fairness Hearing. Class Counsel will apply for attorneys’ fees not to exceed one-third of the Gross Settlement Amount, plus out-of-pocket expenses incurred in prosecuting this case. The Court will decide the amount of any attorneys’ fees and expenses to award to Class Counsel. Any and all attorneys’ fees and expenses awarded by the Court will be paid to Class Counsel from the Gross Settlement Amount.
As noted, Class Counsel also will request that $5,000 be paid from the Gross Settlement Amount to each of the three Plaintiffs, in recognition of their assistance in this case.
You have the right to object to this aspect of the Settlement even if you approve of its other aspects.
YOUR RIGHTS AND OPTIONS
What is the effect of the Court’s final approval of the Settlement?
If the Court grants final approval of the Settlement, a final order and judgment dismissing the case will be entered in the Action. Payments under the Settlement will then be processed and distributed. The release by Settlement Class Members will also take effect. All members of the Settlement Class will release and forever discharge the University, Defendants, and each of the other Released Parties from any and all of “Plaintiffs’ Released Claims,” which are defined in the Settlement Agreement (at ¶ 2.33) as follows:
2.33 “Released Claims” means any and all actual or potential claims, actions, demands, rights, obligations, liabilities, damages, attorneys’ fees, expenses, costs, and causes of action, whether arising under federal, state or local law, whether by statute, contract or equity, whether brought in an individual or representative capacity, whether known or unknown, suspected or unsuspected, foreseen or unforeseen, arising from conduct by the Released Parties with respect to the Plan occurring during the Class Period:
2.33.1 That were asserted in the Class Action, or that arise out of, relate to, or are based on any of the allegations, acts, omissions, facts, matters, transactions, or occurrences that were alleged, asserted, or set forth in any iteration of the Plaintiffs’ complaints in the Class Action; or
2.33.2 That arise out of, relate in any way to, are based on, or have any connection with the Plan’s management or administration, including but not limited to: (a) the selection, oversight, retention, monitoring, compensation, fees, or performance of the Plan’s investment options or service providers or advisors; (b) fees, costs, or expenses charged to, paid, or reimbursed by the Plan or any Settlement Class Member; (c) Released Parties’ disclosures or failures to disclose information regarding the Plan’s investment options or service providers; (d) the investment options offered to Plan participants; (e) the compensation paid by the Plan to the Plan’s service providers; (f) the selection of service providers or advisors to the Plan; (g) the services provided to the Plan or costs of those services; (h) the payment of compensation based on a percentage of total assets; (i) the Plan’s investment structure(s); or (j) any alleged breach by the Released Parties of the duty of loyalty, care, prudence, diversification, or any other fiduciary duties or prohibited transactions; or
2.33.3 That would be barred by res judicata based on entry of the Final Order; or
2.33.4 That relate to the direction to calculate, the calculation of, and/or the method or manner of allocation of the Qualified Settlement Fund to the Plan or any member of the Settlement Class in accordance with the Plan of Allocation; or
2.33.5 That relate to the approval by the Independent Fiduciary of the Settlement Agreement, unless brought against the Independent Fiduciary alone.
2.33.6 Without in any way limiting the foregoing release, and solely for the avoidance of doubt, it is the intent of the parties that the Released Claims include all breach of fiduciary duty and prohibited transaction claims against the University relating to TIAA’s participant loan program, but it is not the intent of the parties to release the claims alleged by the Plaintiffs against TIAA in Haley v. Teachers Insurance and Annuity Assoc., 1:17-cv-00855-JPO (S.D.N.Y.) in connection with TIAA’s loan program with respect to any ERISA retirement plan.
If the Settlement is approved, no Settlement Class Member will be permitted to assert any Released Claims in any other litigation against the University, Defendants, or any other Released Party.
Can I opt out of the Settlement?
No. If the Court approves the Settlement, you will be bound by it and will receive whatever benefits you are entitled to under its terms. You cannot exclude yourself from the Settlement. If the Court approves the Settlement, it will do so on behalf of a “mandatory” class under Federal Rule of Civil Procedure 23(b)(1), which does not permit class members to opt out of the Settlement Class. However, although you cannot opt out of the Settlement, you can notify the Court of any objection you might have to the Settlement, as described below (see Question 16).
What happens if I do nothing at all?
If you are a Settlement Class Member and do nothing, you still will participate in the Settlement of the Action as described in the Notice, and you will release any claims you may have against Defendants and the other Released Parties concerning the conduct Plaintiffs allege in this Action. You may receive a payment as described in Question 8.
Can I sue Defendants for the same thing later?
How do I tell the Court that I object to the Settlement?
If you are a Settlement Class Member, you can object to the Settlement if you do not agree with any part of it. To object, you must file with the Court a written statement of your objection(s), specifying the reason(s) for each objection, including any legal support or evidence that you wish to bring to the Court’s attention. The Court will consider your views.
Your objection must include your name, address, and phone number. Your objection must also be signed by you or your counsel. Be sure to also include the following case caption and notation: “Davis, et. al., v. Washington University in St. Louis, et. al., Case No. 4:17-cv-01641-RLW.”
Please note that the Court’s Preliminary Approval Order of this Settlement provides that any party to the litigation may, but is not required to, serve discovery requests on any objector, including requests for documents and notice of deposition not to exceed two hours in length. Any responses to discovery, or any depositions, must be completed within ten (10) days of the request being served on the objector.
You must mail your objection to each of the addresses listed below and file the objection with the Court at least twenty (20) calendar days prior to the Final Fairness Hearing. If you do not timely file an objection it will be deemed to have been waived, and you will be barred from raising the untimely objection.
Court Class Counsel Defendants’ Counsel Clerk of the Court
United States District Court
Eastern District of Missouri
111 South 10th Street
St. Louis, MO 63102
Todd Collins, Esquire
Berger Montague OC
1818 Market Street, Suite 300
Philadelphia, PA 19103
Steve Schwartz, Esquire
Chimicles Schwartz Kriner & Donaldson-Smith LLP
361 West Lancaster Avenue
Haverford, PA 19041
John Nestico, Esquire
Schneider Wallace Cottrell Konecky Wotkyns LLP
8501 N. Scottsdale Road
Scottsdale, AZ 85253
Brian T. Ortelere
Morgan, Lewis & Bockius LLP
1701 Market St.
Philadelphia, PA 19103
Deborah S. Davidson
Matthew A. Russell
Morgan, Lewis & Bockius LLP
110 N. Wacker Drive
Chicago, Illinois 60606
Christopher A. Smith
The Plaza in Clayton
190 Carondelet Plaza
St. Louis, Missouri 63105
THE COURT’S FAIRNESS HEARING
When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Fairness Hearing to decide whether to approve the Settlement as fair, reasonable, and adequate. The Final Fairness Hearing has been set for August 31, 2022, at 2:00 p.m., before The Honorable Ronnie L. White, at the United States District Court for the Eastern District of Missouri, 111 South 10th Street, St. Louis, MO 63102.
At the hearing, the Court will hear any comments, objections, and arguments concerning the fairness of the proposed Settlement, including the amount requested by Class Counsel for Attorneys’ Fees and Expenses and the Plaintiffs’ Compensation. You may attend the Final Fairness Hearing and also may ask to speak. If there are objections, the Court will consider them—but you do not need to attend the Final Fairness Hearing to have the Court consider an objection.
Note: The date and time of the Final Fairness Hearing are subject to change by Court Order and may be conducted via conference call or other remote means. You will not receive a separate notice, but any such changes will be posted on this website.
Do I have to come to the hearing?
No, but you are welcome to come at your own expense. Class Counsel will answer any questions the Court may have. If you send an objection, you do not have to attend the Final Fairness Hearing to voice your objection in person. As long as you mail your written objection on time and meet the other criteria outlined above, the Court will consider it. You also may pay your own lawyer to attend the Final Fairness Hearing, but attendance is not necessary.
May I speak at the hearing?
Yes. You must send a letter or other paper called a “Notice of Intention to Appear at the Final Fairness Hearing in Davis, et. al., v. Washington University in St. Louis, et. al., Case No. 4:17-cv-01641-RLW.” Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be postmarked no later than August 11, 2022 and be sent to the Clerk of the Court, Class Counsel, and Defendants’ Counsel at the addresses listed above.
GETTING MORE INFORMATION
Where can I get more information?
You may also obtain more information by writing to the Settlement Administrator at 1650 Arch Street, Suite 2210, Philadelphia, PA 19103, by emailing info@WashingtonUniversityERISAsettlement.com, or by calling toll-free at (888) 874-1788. The Settlement Agreement and other pleadings and papers filed with the Court are also available during regular business hours at the office of the Clerk of the United States District Court located at 111 South 10th Street, Suite 3.300, St. Louis, MO 63102.
If you would like additional information, Class Counsel may be reached at:
PLEASE DO NOT CONTACT THE COURT, THE JUDGE, THE UNIVERSITY, OR OTHER DEFENDANTS WITH QUESTIONS ABOUT THE SETTLEMENT.