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Excessive Fee Suit Settles in 18 Months


The parties in another excessive fee suit have come to terms six months after getting the green light to go to trial.

In the U.S. District Court for the Eastern District of Wisconsin the parties noted that on Sept. 13, 2022, they “…mediated before private mediator Bob Meyer of JAMS, and reached a settlement in principle to resolve this matter.” According to a filing with the court (Walter v. Kerry Inc., E.D. Wis., No. 2:21-cv-00539, joint status report 9/15/22), they “…will continue to negotiate the terms of a class action settlement agreement over the next several weeks, and Plaintiff intends to file a motion for preliminary approval of the class action settlement no later than October 31, 2022.”

And indeed, they now have. 

Now the plaintiffs here, represented by Walcheske & Luzi LLC, had filed suit against the $444 million retirement plan back in April 2021, but as recently as May 2022, Judge Brett H. Ludwig had allowed the suit to go forward, noting that the U.S. Court of Appeals for the Seventh Circuit’s 2020 decision in Divane v. Northwestern University (where the dismissal of a similar suit was affirmed) no longer controlled, following its remand by the U.S. Supreme Court to a lower court for reconsideration in January 2022.

The Terms

Under the terms of the proposed Settlement, a Gross Settlement Amount of $900,000 will be paid “to resolve the claims of Settlement Class Members[i] who participated in the Plan during the subject period. This is a significant recovery for the Class in relation to the claims that were alleged and falls well within the range of negotiated settlements in similar ERISA cases.”

The settlement is said to be “fair, reasonable, and adequate, and merits preliminary approval so that notice may be disseminated to the class.” According to the notice it:

  • was negotiated at arm’s length with the assistance of a respected mediator;
  • provides for significant monetary relief that is on par with other settlements; and
  • conveniently provides for automatic distribution of the settlement proceeds to the accounts of former participants in the Plans.

The Settlement requires that Class Counsel file their Motion for Attorneys’ Fees and Costs no later than the deadline set in the Preliminary Approval Order—but notes that it “may not exceed one-third of the Gross Settlement Amount.”

The settlement also provides for recovery of Administrative Costs related to the Settlement, and for a case contribution award up to $10,000 for the named plaintiff here.

We’ll have to see if the court approves…


[i] The motion says there are about 5,000 class members.