Haddock v. Nationwide Financial Services, Inc.

272 F.R.D. 61, 49 Employee Benefits Cas. (BNA) 1801, 2010 U.S. Dist. LEXIS 74268, 2010 WL 2976910
CourtDistrict Court, D. Connecticut
DecidedJuly 23, 2010
DocketNo. 3:01cv1552 (SRU)
StatusPublished

This text of 272 F.R.D. 61 (Haddock v. Nationwide Financial Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haddock v. Nationwide Financial Services, Inc., 272 F.R.D. 61, 49 Employee Benefits Cas. (BNA) 1801, 2010 U.S. Dist. LEXIS 74268, 2010 WL 2976910 (D. Conn. 2010).

Opinion

RULING ON MOTION FOR CERTIFICATION OF COUNTERCLAIM DEFENDANT CLASS AND ORDER

STEFAN R. UNDERHILL, District Judge.

Defendants Nationwide Financial Services, Inc. and Nationwide Life Insurance Company (collectively, “Nationwide”) move to certify a class of counterclaim defendants. The putative class includes all Trustees of ERISA-qualified retirement plans that had variable annuity contracts with Nationwide, or whose participants had contracts with Nationwide, at any time from January 1, 1996, or the first date Nationwide began receiving payments from mutual funds based on a percentage of the assets invested in the funds by Nationwide, whichever came first, to the date November 6, 2009. In short, Nationwide seeks to certify the existing plaintiff class as a class of counterclaim defendants. For the reasons that follow, that motion is denied.

I. Background

The history of this case is set forth in several previous rulings. See Haddock v. Nationwide Fin. Servs. (“Haddock I”), 419 F.Supp.2d 156 (D.Conn.2006); Haddock v. Nationwide Fin. Servs. (“Haddock II”), 514 F.Supp.2d 267 (D.Conn.2007); Haddock v. Nationwide Fin. Servs. (“Haddock III”), 570 F.Supp.2d 355 (D.Conn.2008); Haddock v. Nationwide Fin. Servs. (“Haddock IV”), 262 F.R.D. 97 (D.Conn.2009). I therefore assume familiarity with the facts of the case, although two of my earlier decisions, Haddock III and TV, warrant recapitulation for the purpose of deciding the defendants’ motion.

In Haddock III, I ruled that, although the defendants were unable to sue the plaintiffs for contribution or indemnification, if Nationwide were found to be a fiduciary to the Plans then it would have standing to sue the Trustees for violating their ERISA fiduciary duties. 570 F.Supp.2d at 364-65. I specified that Nationwide’s potential standing was limited to “bring[ing] a breach of fiduciary duty counterclaim to the extent that they sue on behalf of the Plans for harm arising out of the revenue sharing payments.” Id. at 365. That counterclaim had to be an independent action holding the Trustees personally liable for their alleged breaches of fiduciary duty, and not an attempt, akin to contribution or indemnification, to distribute monetary liability between Nationwide and the Trustees. I ultimately dismissed Nationwide’s counterclaim, however, because it failed to state “an actual harm or loss to the Plans” for which the Trustees were responsible. Id. at 365-66.

In Haddock IV, I certified the class of Trustee plaintiffs pursuant to Federal Rule of Civil Procedure 23(b)(2).1 In particular, I held that Nationwide’s “ratification” defense — that Nationwide is not liable because the plaintiff Trustees consented to and ratified the revenue sharing payments — applied to all class members, as did Nationwide’s breach of fiduciary duty counterclaim. “[T]hese counterclaims are not ‘unique’ to those named plaintiffs; any trustee who stepped forward to act as class representative (or, for that matter, any putative class member who opts out and chooses to litigate his or her claims individually) would be sub[64]*64ject to the same breach of fiduciary duty counterclaim.” 262 F.R.D. at 118-19. I also clarified that the Nationwide defendants were fiduciaries to the extent they exercised authority or control over the Plans’ assets in the form of investment accumulation units, and that the existence of the revenue sharing payments could be sufficient to demonstrate that Nationwide exercised such authority and control. Id. at 123-24. I then held that the Trustees’ claims for injunctive relief predominated over their claims for monetary relief because they are suing primarily to stop Nationwide from breaching its fiduciary duty in the future; furthermore, the Trustees are seeking disgorgement, an equitable form of monetary relief, on behalf of their plans pursuant to ERISA section 502(a)(2), 29 U.S.C. § 1132(a)(2). Id. at 59-60. That is, the plaintiffs are seeking to obtain the net profits that Nationwide had received from its revenue sharing payments- — earnings that allegedly should have been received by the Plans and not by Nationwide.

Nationwide filed a new answer and third amended counterclaim to the plaintiffs’ sixth amended complaint in December 2009. See Def. Answer and Third Amended Countercl. (Doe. #429.) In that answer, Nationwide re-alleged its defenses, which include, inter alia, that “[a]ny injuries that the Plaintiffs and the class members allegedly sustained occurred as a direct result of their failure to exercise reasonable prudence and care,” and that the Trustees had ratified all of the revenue sharing payments of which they now complain. Def. Answer at 9. Nationwide also renewed its breach of fiduciary duty counterclaim brought pursuant to ERISA section 502(a)(2), 29 U.S.C. § 1132(a)(2), against the named plaintiffs and any Trustees who become members of the plaintiff class. That counterclaim is contingent on Nationwide being found to be a Plan fiduciary and “the [Pjlans proving] that they have suffered any harm.” Def. Third Amended Countercl. ¶ 12. The counterclaim is put forward in strong, absolute terms: Nationwide alleges that the Trustees are exclusively responsible for any lost profits suffered by the retirement plans on account of Nationwide’s revenue sharing payments. Id. 11 ¶¶ 37-38. The Trustees are singularly responsible, according to the defendants, regardless of whether Nationwide is found to have breached its fiduciary duties with respect to the revenue sharing payments. Id. ¶ 37. The damages that Nationwide seeks are “any ‘revenue sharing payments’ or other excessive fees, charges, or payments described in the Sixth Amended Complaint.” Id. ¶ 40.

Nationwide now moves to certify the plaintiff class as a class of counterclaim defendants pursuant to Rule 23(b)(2) and (b)(3). Essentially, Nationwide argues that the requirements of Rule 23(a) are satisfied for the same reasons I identified in Haddock IV when I certified the class of plaintiff Trustees: the counterclaim defendants are sufficiently numerous, the counterclaim raises common questions of law and fact for all of the Trustees, the named counterclaim defendants are typical of the Trustees, and there is nothing unique about the counterclaims for particular Trustees that would render the named counterclaim defendants inadequate class representatives. Nationwide then argues that it is entitled to class certification under Rule 23(b)(2) because it seeks to enjoin the Trustees from accepting the advantages of revenue sharing payments henceforth, and under Rule 23(b)(3) because the Trustees are personally liable and must pay the Plans for earnings that accrued to Nationwide in the form of net profits from the revenue sharing payments.

II. Standard of Review

To certify a class, the party seeking certification must prove by a preponderance of the evidence that its putative class meets the requirements of Rule 23(a) and (b). Teamsters Local Freight Div. Pension, Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir.2008).

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Bluebook (online)
272 F.R.D. 61, 49 Employee Benefits Cas. (BNA) 1801, 2010 U.S. Dist. LEXIS 74268, 2010 WL 2976910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haddock-v-nationwide-financial-services-inc-ctd-2010.