From PLI’s Course Handbook
Class Action Litigation 2009
#18243
2
CURRENT TOPICS IN ERISA CLASS
ACTIONS: “STOCK DROPS”AND
“REVENUE SHARING”
Eric S. Mattson
Sidley Austin LLP
ERISA anecdotes are hard to come by, but here’s one.
When I was in law school, there was a guy who had to write a
comment for the Law Review. While most of his classmates
searched for inherently interesting topics involving the First
Amendment and such, this student was fascinated by a law that, to
most students, seemed arcane at best: the Employee Retirement
Income Security Act of 1974, more commonly known as ERISA.
The student delved into ERISA, wrote his comment (complete
with 331 footnotes), got it published, and saw his work cited with
approval in an opinion of the Supreme Court of the United States.1
That ERISA-loving law student was . . . not me. Based on
what little I knew of it, I wanted nothing to do with this statute,
which seemed not only arcane and densely written but not
especially relevant. I was right about the first two – ERISA is
among the less lucid of Congress’s body of work – but irrelevant it
is not. For the past 35 years, ERISA has set the standards that
govern most pension plans in the United States, including 401(k)
plans.
In recent years, the statute has become fertile ground for
class actions, as plaintiffs seek to impose class-wide liability on
plan fiduciaries and service providers for a wide variety of
perceived misdeeds. And with the recent economic meltdown and
concomitant declines in the balances of participants’ 401(k) plans,
the pace of filings would seem more likely to speed up than slow
down.
This paper provides an overview of two types of ERISA
class actions. It begins with a description of ERISA basics, then
discusses “stock drop” cases involving 401(k) plans and “revenue
sharing” cases against both 401(k) plan fiduciaries and service
providers. These two types of lawsuits are among the higher
profile ERISA class actions, but other types have been filed – and
more are assuredly on the way.
1
John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank,
510 U.S. 86, 97 (1993).
2
I.
ERISA Basics
ERISA recognizes two kinds of pension plans: defined
contribution plans and defined benefit plans.2 Defined benefit
plans once dominated the landscape of retirement plans, but as the
Supreme Court recently observed, “That landscape has changed.”3
Today, defined contribution plans such as 401(k) plans are the
predominant form of employer-supported retirement plan.4
Defined contribution plans function like a retirement
savings account. Employees or employers, sometimes both,
contribute money to a plan participant’s account. Generally, the
participant (the employee) chooses how to invest the money in the
account, choosing from a menu of options that may include mutual
funds, company stock (i.e., stock in the company that employs the
participant), and a guaranteed interest option. Some plans include a
brokerage window that enables the participant to invest in virtually
any publicly traded security. Whether the account gains or loses
money depends on the performance of the investments chosen by
the participant.
Defined benefit plans, in contrast, place the investment
risk on the “sponsor” of the plan – typically the employer. In
defined benefit plans, participants accrue benefits calculated in
accordance with a formula generally based on the participant’s
salary and length of employment. For example, a plan may provide
that a participant will receive an annual pension equal to 1.5
percent of the participant’s highest average salary, measured over a
five-year period that yields the highest average, multiplied by the
number of the participant’s years of employment. Such benefits
generally are paid in the form of an annuity beginning at the
participant’s “normal retirement age” under the plan and
continuing for the rest of the participant’s life.
One type of defined benefit plan is known as a “cash
balance plan.” Although from a legal perspective they are defined
benefit plans, cash balance plans have some of the characteristics
of defined contribution plans. For example, benefits in cash
2
29 U.S.C. § 1002(34) (definition of defined contribution plan);
id. § 1002(35) (definition of defined benefit plan).
3
LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct. 1020, 1025
(2008).
4
Id.
3
balance plans are expressed in the form of a hypothetical account
balance, even though participants do not have individual accounts.
Cash balance plans are thought to provide some of the benefits of
defined contribution plans, such as portability when employees
switch jobs, while retaining the features of defined benefit plans,
such as lodging investment risks (and potential investment
rewards) with the plan sponsor.5
Although many employers offer one or sometimes both
kinds of pension plans, “Nothing in ERISA requires employers to
establish employee benefits plans. Nor does ERISA mandate what
kind of benefits employers must provide if they choose to have
such a plan.”6 Instead, ERISA endeavors to ensure that benefits,
once promised and accrued, are paid,7 and that ERISA fiduciaries
act with loyalty and prudence when acting as such.8
More specifically, ERISA requires fiduciaries to
“discharge [their] duties with respect to a plan solely in the interest
of the participants and beneficiaries and . . . for the exclusive
purpose of: (i) providing benefits to participants and their
beneficiaries; and (ii) defraying reasonable expenses of
administering the plan.”9 It also requires fiduciaries to act “with
the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims”; to diversify plan
investments “so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so”; and to
follow “the documents and instruments governing the plan.”10
5
Cash balance plans have been regular targets of ERISA class
action litigation, on a variety of theories. See, e.g., Cooper v. IBM
Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006) (age
discrimination claim); Esden v. Bank of Boston, 229 F.3d 154 (2d
Cir. 2000) (“whipsaw” claim that pension plan provided lump sum
distribution that was not the actuarial equivalent of benefit payable
at normal retirement age).
6
Lockheed Corp. v. Spink, 517 U.S. 882, 886 (1996)
7
E.g., id.; 29 U.S.C. § 1054(g).
8
29 U.S.C. § 1104(a).
9
Id. § 1104(a)(1)(A).
10
Id. § 1104(a)(1)(B)-(D).
4
While these general principles are easily stated, ERISA is
“an enormously complex and detailed statute.”11 It provides for
nine types of civil actions,12 three of which are most often invoked
in class actions. The first authorizes participants and beneficiaries
to sue for benefits they are entitled to, but did not receive, under
the terms of the plan.13 The second authorizes participants,
beneficiaries and fiduciaries to pursue relief under a crossreferenced provision, 29 U.S.C. § 1109 – the basic remedy for
breach of fiduciary duty, which permits courts to order fiduciaries
to pay damages (“make good to such plan any losses to the plan
resulting from each such breach”), disgorge profits (“restore to
such plan any profits of such fiduciary which have been made
through use of assets of the plan by the fiduciary”), and provide
“other equitable and remedial relief,” including removal of the
fiduciary.14 The third form of remedy authorizes various forms of
equitable relief to address violations of ERISA and violations of
the terms of the plan.15
II.
“Stock Drop” Cases
A.
Background
In some 401(k) plans, participants are given the option of
investing their 401(k) money in the stock of the company that
employs them. ERISA encourages plans to offer this option by,
11
Mertens v. Hewitt Assocs., 508 U.S. 248, 261 (1993).
29 U.S.C. § 1132.
13
Id. § 1132(a)(1)(B). See generally Metropolitan Life Ins. Co. v.
Glenn, 128 S. Ct. 2343 (2008).
14
See 29 U.S.C. § 1132(a)(2) (authorizing specified plaintiffs to
seek relief under 29 U.S.C. § 1109). Notwithstanding the
references in section 1109 to providing relief to the “plan” rather
than individual participants, the Supreme Court has held that
participants in defined contribution plans may recover for lost
value in their individual accounts. LaRue, 128 S. Ct. at 1025.
15
29 U.S.C. § 1132(a)(3). See generally Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002).
12
5
among other things, exempting such offerings from the usual
requirement of diversification.16
In good times, the stock price goes up and the 401(k)
assets invested in the stock grow with the stock price. In bad times,
the stock price drops and so does the account balance in
participants’ accounts. Depending in part on how much money was
lost, litigation may ensue.
The basic theory behind ERISA stock drop cases is that
one or more fiduciaries of the plan should have pulled company
stock from the plan’s menu of investment options before the stock
price dropped – or even that company stock never should have
been offered as an option at all. These cases are typically brought
under 29 U.S.C. §§ 1109 and 1132(a)(2) (the second of the three
remedies discussed above), and they are often filed as tag-alongs to
securities fraud cases – often based on the same allegations of
mismanagement and fraud that appear in the companion securities
case.
The Seventh Circuit has explained why stock drop cases
may be brought in addition to a securities case based on the same
drop in stock price: “The burden of proving fraud [in a securities
case] is heavier than that of proving a breach of fiduciary duty
(provided, of course, that a fiduciary relation is established).”17 In
other words, “The duty of care, diligence, and loyalty imposed by
the fiduciary principle is far more exacting than the duty imposed
by tort law not to mislead a stranger.”18
As the Seventh Circuit noted, however, the plaintiff must
show that the defendant was acting as a fiduciary when breaching
any duty. As discussed in the next section, that is trickier than it
may sound.
16
29 U.S.C. § 1104(a)(2). See also Kirschbaum v. Reliant Energy,
Inc., 526 F.3d 243, 248 (5th Cir. 2008).
17
Harzewski v. Guidant Corp., 489 F.3d 799, 805 (7th Cir. 2007)
(Posner, J.).
18
Id.
6
B.
Fiduciary status
ERISA is rooted in the common law of trusts, but it is not
a mirror image of it.19 For one thing, “the trustee at common law
characteristically wears only his fiduciary hat when he takes action
to affect a beneficiary, whereas the trustee under ERISA may wear
different hats.”20
Thus, while a common law trustee had to avoid conflicts
of interest at virtually all costs, an ERISA fiduciary “may have
financial interests adverse to beneficiaries.”21 This is because
ERISA provides that a person is a fiduciary only “to the extent” he
does certain things.22 “In every case charging breach of ERISA
fiduciary duty, then, the threshold question is not whether the
actions of some person employed to provide services under a plan
adversely affected a plan beneficiary’s interest, but whether that
The Supreme Court has stated that “the law of trusts often will
inform, but will not necessarily determine the outcome of, an effort
to interpret ERISA’s fiduciary duties.” Varity Corp. v. Howe, 516
U.S. 489, 497 (1996).
20
Pegram v. Herdrich, 530 U.S. 211, 225 (2000).
21
Id.
22
29 U.S.C. § 1002(21); Pegram, 530 U.S. at 225-26. ERISA
provides that a person is a fiduciary “to the extent
19
(i) he exercises any discretionary authority or discretionary
control respecting management of such plan or exercises any
authority or control respecting management or disposition of its
assets,
(ii) he renders investment advice for a fee or other
compensation, direct or indirect, with respect to any moneys or
other property of such plan, or has any authority or responsibility
to do so, or
(iii) he has any discretionary authority or discretionary
responsibility in the administration of such plan. Such term
includes any person designated under section 1105(c)(1)(B) of this
title.” Fiduciary status can also arise by virtue of being designated
a “named fiduciary” in the plan document. 29 U.S.C. § 1102(a)(1).
7
person was acting as a fiduciary (that is, was performing a
fiduciary function) when taking the action subject to complaint.”23
Deciding this threshold question is not always easy.
Fiduciary status does not extend to “the decisions of a plan sponsor
to modify, amend or terminate the plan,”24 but other situations are
less clear-cut. Given that a corporate executive or board member
may properly wear two hats – one fiduciary, one for making
business decisions – the question of whether a particular act was
“fiduciary” in nature, and whether a particular defendant is a
fiduciary at all, is regularly contested.25
C.
Liability standards
Assuming that a defendant is an ERISA fiduciary with
respect to the selection of company stock, the next question is
whether that defendant breached any duty under ERISA by
allowing company stock to be offered. In many cases, this question
is complicated by the fact that the plan document – a document
that the fiduciary is generally obligated to follow – provides that
company stock must be among the investment options.
One leading case, Moench v. Robertson, 62 F.3d 553, 556
(3d Cir. 1995), held that “in limited circumstances” fiduciaries can
be liable for following directions in the plan document to invest in
company stock. Much stock drop litigation has involved how
“limited” those circumstances of potential liability will be.
Moench held that a fiduciary of an Employee Stock
Ownership Plan “is entitled to a presumption that it acted
consistently with ERISA” by investing in company stock.26
“However, the plaintiff may overcome that presumption by
establishing that the fiduciary abused its discretion by investing in
employer securities.”27 The touchstone under Moench is whether
23
Pegram, 530 U.S. at 226.
Kirschbaum, 526 F.3d at 251.
25
See, e.g., In re Worldcom, Inc., 263 F. Supp. 2d 745 (S.D.N.Y.
2003); In re Williams Cos. ERISA Litig., 271 F. Supp. 2d 1328
(N.D. Okla. 2003).
26
62 F.3d at 571.
27
Id.
24
8
the fiduciary complied with “the settlor’s expectations of how a
prudent trustee would operate.”28
Other circuits have questioned the analysis in Moench. The
Ninth Circuit, for example, observed that the Moench standard is
“difficult to reconcile with ERISA’s statutory text,”29 which says
nothing about a rebuttable presumption. Among other problems,
the Ninth Circuit highlighted an issue that Moench acknowledged
but did not resolve – namely, that requiring fiduciaries to remove
company stock as an option when the company encounters
financial difficulty might encourage corporate officials to “utilize
inside information for the exclusive benefit of the corporation and
its employees,” which would presumably violate the federal
securities laws.30
The Seventh Circuit has likewise recognized that “the
fiduciary’s duty of loyalty does not extend to violating the law.” 31
Nor does ERISA require plan fiduciaries to “continuously audit
operational affairs.”32 Instead, “a duty to investigate only arises
when there is some reason to suspect that investing in company
stock may be imprudent – that is, there must be something akin to
a ‘red flag’ of misconduct.”33
D.
Class certification
Whether to certify a class is usually not the focus of the
battleground in stock drop cases. The members of the putative
class are typically all participants in a single defined contribution
plan, and as a result courts have regularly found that it is
appropriate for stock drop cases to be litigated on a classwide
basis.34
28
Id.
Wright v. Oregon Metallurgical Corp., 360 F.3d 1090, 1097 (9th
Cir. 2004) (affirming dismissal of ERISA claim).
30
Id. at 1098 n.4.
31
Harzewski, 489 F.3d at 808.
32
Pugh v. Tribune Co., 521 F.3d 686, 700 (7th Cir. 2008)
(affirming dismissal of ERISA claim).
33
Id.
34
E.g., In re IKON Office Solutions, Inc., 191 F.R.D. 457 (E.D. Pa.
2000).
29
9
Assuming that the prerequisites of Rule 23(a) are satisfied,
stock drop cases are typically certified under what might be called
the “Three Musketeers” provision of Rule 23 – the “one for all, all
for one” standard of Rule 23(b)(1). Rule 23(b)(1)(A) may be
invoked when separate actions could require defendants to follow
incompatible judgments issued by different courts. In other words,
Rule 23(b)(1)(A) “‘takes in cases where the party is obliged by law
to treat the members of the class alike (a utility acting toward
customers; a government imposing a tax), or where the party must
treat all alike as a matter of practical necessity (a riparian owner
using water as against downriver owners).’”35 Some courts have
held that this standard fits stock drop cases because a plan is
generally required to treat participants alike, and cannot
practicably offer company stock to some plan participants (those
with a greater appetite for risk, perhaps) but not others.36
Certification of stock drop claims is not automatic,
however. Only if plaintiffs show that the prerequisites of Rule
23(a) and at least one of the provisions of Rule 23(b) have been
satisfied can certification be granted.
35
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
See, e.g., In re Enron Corp. Securities, Derivative & “ERISA”
Litig., No. MDL 1446, Civ.A. H-01-3913, 2006 WL 1662596
(S.D. Tex. June 7, 2006) (noting that “ERISA plan participants can
only seek relief on behalf of the plan for breach of fiduciary duty,”
so a judgment “will impose obligations on defendants that are
applicable to the plans, and thus on all participants and
beneficiaries in the Savings Plan and the ESOP”).
Rule 23(b)(1)(B) applies when separate actions would put
members of a putative class in a position where the fate of their
claims would be determined by the outcome of other cases. This
rule “includes, for example, ‘limited fund’ cases, instances in
which numerous persons make claims against a fund insufficient to
satisfy all claims.” Amchem, 521 U.S. at 614. Stock drop cases
have been certified under this provision as well. See, e.g., In re
Syncor ERISA Litig., 227 F.R.D. 338 (C.D. Cal. 2005).
36
10
III.
“Revenue sharing” cases
A.
Background
Less well established than stock drop cases, a more recent
wave of ERISA class action litigation challenges a common
practice in the mutual fund industry sometimes known as “revenue
sharing.” The first (and as of this writing only) Court of Appeals
opinion on the subject was a resounding victory for defendants, but
a petition for rehearing is pending.37 Meanwhile, another revenue
sharing case is on appeal in a neighboring circuit.38
These cases challenge revenue sharing payments that have
been made by mutual fund companies (which provide the mutual
funds that participants invest in) to service providers (which
handle ministerial duties like record-keeping). Defendants describe
these payments as fair compensation for work that the mutual fund
companies would otherwise have to do. For example, service
providers bundle the trades of many plan participants into single
daily trades, which alleviates an administrative burden on the
mutual fund company. Plaintiffs, in contrast, tend to characterize
the payments as “kickbacks” that violate ERISA’s prohibited
transaction rules.39
Revenue sharing cases have mostly involved 401(k) plans,
and they have come in two types. One type is brought on behalf of
plan participants in a single plan against alleged fiduciaries. They
challenge all or most of the investment choices offered to
participants as being too laden with fees and expenses.
The second type of revenue sharing case is brought against
service providers that are hired by plans to handle ministerial
duties like record-keeping. The plaintiffs in these cases have been
trustees of 401(k) plans who purport to sue not only on behalf of
their own plan, but also on behalf of thousands of other plans
37
Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009).
Braden v. Wal-Mart Stores, Inc., No. 08-3798 (8th Cir.).
39
While 29 U.S.C. § 1104(a) sets out the general standards of
fiduciary duty, the prohibited transaction rules – categories of
transactions that are forbidden because they are thought to present
a serious risk of abuse – are found at 29 U.S.C. § 1106.
Complicating matters further, Congress has provided exemptions
to these prohibited transactions. See 29 U.S.C. § 1108.
38
11
served by the defendant.40 They allege that the service providers
became ERISA fiduciaries by, among other things, exercising
control over plan assets.
In Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009),
the Seventh Circuit became the first Court of Appeals to address
these theories. It found no merit to them and affirmed the dismissal
of all claims pursuant to Rule 12(b)(6). Plaintiffs have filed a
petition for rehearing, and the Seventh Circuit has ordered the
defendants to respond to that petition – a sign that the court is
taking the petition seriously – so it is not yet clear whether the case
is really over.
B.
Fiduciary status
As in any ERISA case alleging breach of fiduciary duty,
“the threshold question is not whether the actions of some person
employed to provide services under a plan adversely affected a
plan beneficiary’s interest, but whether that person was acting as a
fiduciary (that is, was performing a fiduciary function) when
taking the action subject to complaint.”41
Most of the disagreement about fiduciary status in revenue
sharing cases has revolved around service providers – the third
parties that provide 401(k) plans with services such as recordkeeping and that provide access to large menus of investment
options. Addressing the role of Fidelity (the largest service
provider to 401(k) plans in the industry) the Hecker court found
that plaintiffs had failed to state a plausible claim that Fidelity was
a fiduciary.42
The court acknowledged plaintiffs’ theory that Fidelity
exercised “control” over Deere’s selection of investment options
by limiting the menu of choices to funds managed by another
Fidelity company. “But what if it did?” the court retorted. It found
“no authority that holds that limiting funds to a sister company
automatically creates discretionary control sufficient for fiduciary
40
E.g., Columbia Air Servs., Inc. v. Fidelity Management Trust
Co., No. 07-11344-GAO, 2008 WL 4457861 (D. Mass. Sept. 30,
2008).
41
Pegram, 530 U.S. at 226.
42
556 F.3d at 583-84. The same conclusion was reached in
Columbia Air Services, 2008 WL 4457861.
12
status.”43 The court also rejected the theory that Fidelity
determined what investment options would be offered and that
Deere merely “rubber-stamped” those determinations, finding that
this claim was inconsistent with allegations in the complaint.44
In contrast, a pre-Hecker district court case found that a
service provider became an ERISA fiduciary by assuming
“discretionary authority to determine the amount of its
compensation” and by virtue of its “ability to substitute investment
options” for options that had been selected by the plan.45
C.
Liability standards
Assuming that the defendant is found to be a fiduciary in a
relevant way, the standards that will be applied in revenue sharing
cases are not yet entirely clear, although Hecker went a long way
to undercutting plaintiffs’ theories. In the wake of Hecker, one
district court granted summary judgment in favor of defendants,46
while in another case summary judgment was granted only in
part.47 As of this writing, none of the cases in this wave of revenue
sharing cases has been either tried or settled.
Importantly, Hecker categorically rejected the idea that
“there is something wrong, for ERISA purposes,” with revenue
sharing,48 and it rejected the idea that plan fiduciaries have a duty
to disclose the amount of revenue sharing being paid to a service
provider. What matters to plan participants, the court said, is the
“total fees for the funds” in which they invest – information that is
available in fund prospectuses.49
Hecker also rejected the claim that the plan fiduciary,
Deere, “violated its fiduciary duty by selecting investment options
43
556 F.3d at 583-84.
Id. at 584.
45
Charters v. John Hancock Life Ins. Co., 583 F. Supp. 2d 189,
197-99 (D. Mass. 2008). See also Haddock v. Nationwide
Financial Servs., Inc., 419 F. Supp. 2d 156 (D. Conn. 2006).
46
Taylor v. United Technologies Corp., No. 3:06cv1494 (WWE),
2009 WL 535779 (D. Conn. March 3, 2009).
47
Abbott v. Lockheed Martin Corp., No. 06-cv-0701-MJR, 2009
WL 839099 (S.D. Ill. March 31, 2009).
48
556 F.3d at 585.
49
Id. at 586.
44
13
with excessive fees.” The court noted that the fees associated with
the plan’s investment options ranged from .07 percent to 1 percent
and that these fees “were set against the backdrop of market
competition.” The court concluded, “The fact that it is possible that
some other funds might have had even lower ratios [i.e., fees] is
beside the point; nothing in ERISA requires every fiduciary to
scour the market to find and offer the cheapest possible fund
(which might, of course, be plagued by other problems).”50
The Seventh Circuit also gave a boost to an ERISA
affirmative defense that shields fiduciaries from liability for the
results of individual participants’ decisions.51 Based on the
allegations of plaintiffs’ complaint, the court held, in the
alternative, that this defense protected the fiduciaries from liability.
D.
Class certification
In revenue sharing cases involving participants in a single
plan – the first type of case discussed above in III.A. – motions for
class certification have generally been granted pursuant to Rule
23(b)(1).52
In contrast, class certification on behalf of thousands of
separate 401(k) plans – the second type of case discussed above in
III.A. – has been vigorously contested. In part, these debates have
involved the threshold question of the defendant’s alleged status as
a fiduciary. The U.S. Department of Labor, which is charged with
enforcing ERISA, has stated that whether a service provider
qualifies as a fiduciary is “inherently factual and will depend on
the particular actions or functions [the provider] performs on
behalf of the Plans.”53
50
Id.
Id. at 587-89 (citing 29 U.S.C. § 1104(c)(1)).
52
Kanawi v. Bechtel Corp., 254 F.R.D. 102 (N.D. Cal. 2008);
Spano v. Boeing Co., No. 06-0743-DRH, 2008 WL 4449516 (S.D.
Ill. Sept. 29, 2008); Taylor v. United Technologies Corp., No.
3:06CV1494(WWE), 2008 WL 2333120 (D. Conn. June 3, 2008);
Tussey v. ABB, Inc., No. 06-04305-CV-NKL, 2007 WL 4289694
(W.D. Mo. Dec. 3, 2007); Loomis v. Exelon Corp., No. 06 C 4900,
2007 WL 2981951 (N.D. Ill. June 26, 2007).
53
Dep’t of Labor Advisory Opinion 97-16A, 1997 WL 277979, at
*5 (May 22, 1997).
51
14
Only one ruling on class certification has been issued thus
far in this second type of case. In Ruppert v. Principal Life
Insurance Co., 252 F.R.D. 488 (S.D. Iowa 2008), the court held
that plaintiff had failed to meet his burden of showing either
commonality or typicality under Rule 23(a) because each plan in
the putative class presented “individualized and fact-specific
inquiries into Principal’s alleged fiduciary status and breach
thereof.” The Eighth Circuit subsequently denied plaintiff’s
petition for leave to appeal under Rule 23(f).
15