DiFelice v. US Airways, Inc.

235 F.R.D. 70, 2006 U.S. Dist. LEXIS 15711, 2006 WL 763657
CourtDistrict Court, E.D. Virginia
DecidedMarch 22, 2006
DocketNo. 1:04CV889
StatusPublished
Cited by23 cases

This text of 235 F.R.D. 70 (DiFelice v. US Airways, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiFelice v. US Airways, Inc., 235 F.R.D. 70, 2006 U.S. Dist. LEXIS 15711, 2006 WL 763657 (E.D. Va. 2006).

Opinion

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiff in this breach of fiduciary duty case brought pursuant to §§ 502(a) and 409(a) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(a) and 1109(a), seeks certification of the following class of plaintiffs pursuant to Rule 23, Fed.R.Civ.P.:

All participants and their beneficiaries in the U.S. Airways, Inc. 401(k) Savings Plan (the “Plan”) for whose accounts the fiduciaries of the Plan acquired or held units of the U.S. Airways Group, Inc. Common Stock Fund at any time between August 1, 2001 and August 11, 2002.

Defendant U.S. Airways, Inc. (“US Airways”) raises several objections to the certification of plaintiffs proposed class, and argues alternatively that in the event of certification, several reasons require the shortening of the proposed class period.

I.

US Airways, the sole remaining defendant,1 is a Delaware corporation and a major American passenger airline. In 1988, U.S. Airways created the U.S. Airways, Inc. 401(k) Savings Plan (“the Plan”), an ERISA retirement plan, which allowed Plan participants to contribute to their individual accounts a portion of their income on a tax free basis. The Plan allows participants to choose from among thirteen different investment options, including the U.S. Airways Group, Inc. Common Stock Fund (the “Company Stock Fund”), which consists primarily of the publicly traded shares of U.S. Airways Group, Inc. (“Group”), U.S. Airways’ parent corporation. US Airways was designated as the administrator of the Plan and a named fiduciary of the Plan as that term is defined by ERISA. As such, U.S. Airways was responsible for the selection and monitoring of the investments available to the Plan participants.

During the period 2000-2002, U.S. Airways suffered several business setbacks and financial misfortunes which led ultimately to its bankruptcy filing on August 11, 2002. US Airways’ attempt to improve its competitive position in the airline industry by merging with United Airlines, Inc. (“United”) was thwarted on July 27, 2001 when the United States Department of Justice publicly announced its intention to block the proposed [74]*74merger by filing suit pursuant to the antitrust laws. US Airways was dealt a further blow by the terrorist attacks of September 11, 2001, which negatively impacted domestic air travel generally, and were particularly devastating for U.S. Airways because it uses Ronald Reagan National Airport as a hub, and derives a disproportionate amount of its revenue from travel in the Northeast. Throughout the remainder of 2001 and into 2002, U.S. Airways continued to lose a significant amount of cash through its operations, estimated in early 2002 to be $3 million per day. The airline sought to avoid bankruptcy by attempting to obtain a low interest loan from the government, which was contingent on the renegotiation of certain of its labor contracts and debts. These efforts were ultimately unsuccessful. On June 27, 2002, U.S. Airways appointed Aon Fiduciary Counselors, Inc. as an independent fiduciary with responsibility for the Company Stock Fund. On August 11, 2002, Group and its affiliated companies, including U.S. Airways, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code.

Plaintiff Vincent D. DiFelice has been employed by U.S. Airways since 1990 and was a participant in Plan at all times during the proposed class period. At certain points during the proposed class period, DiFelice chose to invest a portion of his Plan assets in Company Stock Fund. Specifically, on October 30, 2001, in the wake of a steep decline in the value of Group’s common stock following the terrorist attacks of September 11, 2001, DiFelice chose to invest nearly 100% of his Plan assets in the Company Stock Fund. On March 7, 2002, he directed that this investment be sold resulting in a gain of $95,800 or approximately 43% of his initial investment. Less than seven weeks later, on April 24, 2002, DiFelice again invested nearly all of his Plan assets in the Company Stock Fund. He retained this investment throughout the Spring and Summer of 2002, selling it in September 2002 following Group’s and U.S. Airways’ bankruptcy filing. In the end, Di-Felice’s investment in the Company Stock Fund resulted in a loss to him of approximately $243,000.

DiFelice has brought this action pursuant to ERISA § 502(a), 29 U.S.C. § 1132(a), on behalf of himself and a proposed class of plaintiffs, alleging that U.S. Airways breached its fiduciary duty under ERISA § 404(a), 29 U.S.C. § 1104(a), by failing to exercise its authority during the proposed class period to remove the Company Stock Fund as a Plan investment option.

II.

As a threshold matter, U.S. Airways argues that DiFelice lacks the prudential and Article III standing necessary to bring this suit under ERISA §§ 502(a)(2) and 502(a)(3), 29 U.S.C. §§ 1132(a)(2) and (a)(3),2 and therefore cannot serve as the class representative. In this regard, it is well-settled that a class representative must “establish! ] the requisite of a case or controversy with the defendant” before bringing suit on behalf of the class. See Central States SE & SW Areas Health & Welfare Fund, L.L.C. v. Merck-Medco Managed Care L.L.C., 433 F.3d 181, 199 (2d Cir.2005) (quoting O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)); see also Allee v. Medrano, 416 U.S. 802, 828-29, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (Burger, J., concurring in part and dissenting in part) (“a named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs ... [standing cannot be acquired through the back door of a class action.”). Thus, in order to bring this lawsuit, DiFelice must satisfy the standing requirements imposed by Article Ill’s “case or controversy requirement,” and the statutory standing requirements imposed by ERISA itself. See [75]*75Bollig v. Christian Cmty. Homes & Servs., Inc., No. 02-C-532-C, 2003 WL 23200362, at *2 (W.D.Wis. July 10, 2003); Carducci v. Aetna U.S. Healthcare, 247 F.Supp.2d 596, 621 (D.N.J.2003).

First, U.S. Airways argues that Di-Felice is unable to satisfy the Article III standing requirement because the Plan suffered no injury in fact. In order to satisfy the requirements of Article III a plaintiff must prove that he, or the entity on whose behalf he sues,3 has suffered an injury in fact, ie., the invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct.

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Bluebook (online)
235 F.R.D. 70, 2006 U.S. Dist. LEXIS 15711, 2006 WL 763657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/difelice-v-us-airways-inc-vaed-2006.