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Another University 403(b) Suit Settles


With a filing date looming, the parties in another excessive fee suit have announced a settlement. 

The announcement came in a suit (Latasha Davis et al. v. Washington University in St. Louis et al.) originally filed in June 2017 by Latasha Davis and Jennifer Elliott[i] on behalf of the Washington University’s plan of more than 24,000 participants and beneficiaries. The suit claimed that the fiduciary defendants violated ERISA by: 

  • allowing plan participants to pay excessive fees for recordkeeping services (Count I); and 
  • offering certain investment options they say were too expensive for one reason or another (Count II).

In October 2018, those claims were dismissed by Judge Ronnie L. White of the U.S. District Court for the Eastern District of Missouri, basically holding that the plaintiffs failed to state a claim. 

However, in 2020, noting that “at this point, the complaint only needed to give the district court enough to infer from what is alleged that the process was flawed,” the Eighth Circuit Court of Appeals breathed new life into some of the claims brought against the fiduciaries of St. Louis-based Washington University’s $3.8 billion 403(b) plan. That led to a pushback from the fiduciary defendants, claiming that these plaintiffs were unable to adequately represent the interests of the plan’s 27,000 current and former workers, and a motion for summary judgment (dismissal of the case based on a failure to state an injury/claim). 

Current Status

On March 1 —the deadline by which the plaintiffs were to file oppositions to the defendants’ summary judgment and Daubert motions (with a response to that response due by March 18, and a trial date of June 21)—“the parties can now report that, with the assistance of Hunter E. Hughes, Esquire, they have reached an agreement-in-principle to resolve this matter on behalf of a proposed settlement class.” 

Not that we’re quite ready to know the specific terms. The filing (Davis v. Wash. Univ. in St. Louis, E.D. Mo., No. 4:17-cv-01641, joint consent motion 2/28/22) explains that “the parties require sufficient time to negotiate a written settlement agreement and anticipate that Plaintiffs will file a motion seeking preliminary approval of the settlement no later than April 15, 2022.”

And thus, “for the foregoing reasons, the parties jointly and respectfully move the Court to relieve them of the current case deadlines as described in this motion, and to establish April 15, 2022 as the deadline for filing a preliminary approval motion.”

Stay tuned.

[i] The plan participants are represented by Chimicles Schwartz Kriner & Donaldson-Smith LLP; Berger Montague PC; Schneider Wallace Cottrell Konecky LLP; Edelson Lechtzin LLP; Carey Danis & Lowe; and Edgar Law Firm LLC. The plan fiduciaries are represented by Morgan, Lewis & Bockius LLP and Husch Blackwell LLP.