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Capozzi Adler, Miller Shah Strike Settlement with LinkedIn


The parties in another excessive fee suit have come to terms following work with a “respected mediator.”

The plaintiffs here (In re: LinkedIn ERISA Litigation, case number 5:20-cv-05704, in the U.S. District Court for the Northern District of California) are two former and one current participant of the LinkedIn Corporation 401(k) Profit Sharing Plan and Trust. For the most part the allegations made in the suit (filed in August 2020) are the “usual” suspects—criticisms regarding the use of something other than the lowest priced share class, the choice of active management (the Fidelity Freedom Funds) when suitable passive alternatives were (ostensibly) available, a reliance on mutual funds when (less expensive) collective investment trusts existed—not to mention issues with revenue sharing, claims of improper dealings with the recordkeeper and a general failure to “leverage the size of the Plan to negotiate for lower expense ratios for certain investment options maintained and/or added to the Plan during the Class Period….” Oh, and the plaintiffs here are represented by Miller Shah LLP[i], Capozzi Adler PC[ii] and Rosman & Germain LLP.

U.S. District Judge Edward J. Davila tossed the class action entirely about a year ago, but gave the plaintiffs in the case a chance to amend (a.k.a. fix the parts of their suit that were lacking), and they did so a month later.

That said, the parties are now “pleased to report that, following mediation with a neutral, well-respected mediator, and after continued discussions, the Parties have agreed in principle to resolve the litigation.” They go on to explain (Bailey et al. v. LinkedIn Corporation et al., case number 5:20-cv-05704, in the U.S. District Court for the Northern District of California) that they are “working to memorialize their agreement and prepare the appropriate papers to submit to the Court for preliminary approval under Federal Rule of Civil Procedure 23,” and that they plan to file a motion for preliminary approval of the settlement “and all necessary and appropriate supporting papers by December 9, 2022.” They go on to note that if they aren’t in a position to do so by that date (“or obtain all necessary consents or approvals”), they will update the court on their progress—and request additional time.

Stay tuned.


[i] No newbie to the excessive fee suit genre, Miller Shah has most recently drawn notice for a series of suits filed against plans that held the BlackRock Lifepath target-date funds—suits that include actions against Genworth Financial Inc., MicrosoftCisco Systems Inc., Booz Allen Hamilton Inc., Stanley Black & Decker Inc., Wintrust Financial Corp., Advance Publishing and Marsh & McLennan Cos.

[ii] Capozzi Adler PC has been one of the more active litigants of late. It had a busy 2020, in addition to the suit against LinkedIn, there were actions filed against Universal Health Services, Inc., and before that Aegis Media Americas well as the $2 billion health technology firm Cerner Corp., as well as Pharmaceutical Product Development, LLC Retirement Savings PlanGerken v. ManTech Int’l Corp—and the appeal of losses at the district court in a case involving Salesforce. In May 2021, they also filed suit against the $5.3 billion Humana Retirement Savings Plan, in June against the $2.3 billion Wake Forest University Baptist Medical Center, and in August against the $1.5 billion Baptist Health South Florida, Inc. 403(b) Employee Retirement Plan.