LUCIANO v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA - COLLEGE RETIREMENT EQUITIES FUND (TIAA-CREF) et al

Filing 136

OPINION Filed. Signed by Judge Zahid N. Quraishi on 4/7/2022. (jal, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORRAINE H. LUCIANO, on behalf of
herself and all others similarly situated,
Plaintiff,
Civil Action No. 15-6726 (ZNQ) (DEA)

v.

OPINION

TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
– COLLEGE RETIREMENT EQUITIES
FUND, et al.,
Defendants.
QURAISHI, District Judge

THIS MATTER comes before the Court upon a Motion to Strike Class Allegations from
Plaintiff’s First Amended Complaint by Defendants Teachers Insurance and Annuity Association
of America – College Retirement Equities Fund, Teachers Insurance and Annuity Association of
America, and College Retirement Equities Fund (collectively, “Defendants” or “TIAA-CREF”).
(“Motion,” ECF No. 117.) Defendants filed a brief in support of the Motion. (“Moving Br.,” ECF
No. 125-1.) Lorraine H. Luciano (“Plaintiff”) opposed the Motion, (“Opp’n Br.,” ECF No. 124),
to which Defendants replied, (“Reply,” ECF No. 126). The Court has carefully considered the
parties’ submissions and decided the Motion without oral argument pursuant to Federal Rule of
Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, the Court will deny
the Motion.

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I.

BACKGROUND AND PROCEDURAL HISTORY1
This matter arises from Defendants’ treatment of defined-contribution pension benefits

allegedly payable to Plaintiff.

TIAA-CREF provides retirement and savings plan design,

consultation, and administration for employee benefit plans governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq. (July 29, 2016 Mem. Op. at
2, ECF No. 59.) Plaintiff’s husband, James Rosso (“Mr. Rosso”), was employed by Educational
Testing Service (“ETS”) and was a participant in the ETS Retirement Plan (“40l(a) Plan”) and the
ETS 403(b) Match Plan (“403(b) Plan”) (collectively, the “Plans”). (Id.) Mr. Rosso originally
designated his parents and sister, Intervenor Lucille Rosso (“Intervenor”), as his beneficiaries
under the Plans. (Id.) Mr. Russo later changed his designated beneficiary to only his sister. (Id.)
Thereafter, Plaintiff and Mr. Rosso married in February 2004, and Mr. Rosso passed away in April
2014. (Id.)
After her husband’s death, Plaintiff informed TIAA-CREF that she was his surviving
spouse. (Id. at 3.) TIAA-CREF informed Plaintiff that as the surviving spouse, she was entitled
to a death benefit of $119,253.33, half of Mr. Rosso’s account balance. (Id.) TIAA-CREF
informed Plaintiff that the other half of the benefit would be paid to Intervenor. (Id.) Plaintiff first
filed an injunction application in the Superior Court of New Jersey to prevent TIAA-CREF from
paying out any of the funds to Intervenor. (Id.) The state court action was voluntarily dismissed
following an agreement that no funds would be disbursed until the outcome of the formal plan
procedures and any related litigation. (Id.) Plaintiff then filed a claim for benefits with TIAA-

1

The Court will consider documents and materials cited in the Complaint. See Doug Grant, Inc. v. Greate Bay Casino
Corp., 232 F.3d 173, 177 n.2 (3d Cir. 2000) (“[i]nasmuch as the complaint references and relies on the content of
certain documents, [the court will] consider them”); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993) (consideration of even a stand-alone contract is proper when the “complaint is based
on [a] contract”).

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CREF, which was denied by written decision on March 13, 2015. (Id.) Plaintiff appealed the
denial, which ETS affirmed on July 8, 2015. (Id.) Defendants interpreted Section 7.3 of the 40l(a)
Plan and Section 8.4 of the 403(b) Plan to entitle a surviving spouse to a qualified pre-retirement
survivor annuity (“QPSA”) of 50% of a participant’s account balance. (Id.)
Plaintiff subsequently filed this putative class action challenging Defendants’ fifty-percent
benefit determination and the 401(a) Plan’s mandatory arbitration provision through six counts:
(1) failure to make payments pursuant to 29 U.S.C. § 1132(a)(l) and (3); (2) declaratory judgment
regarding payments pursuant to 28 U.S.C. § 2201 and 29 U.S.C. § 1132(a)(3); (3) breach of
fiduciary duty pursuant to 29 U.S.C. § 1104; (4) declaratory judgment regarding the arbitration
clause pursuant to 28 U.S.C. § 2201, 29 U.S.C. §§ 1132(a)(3), 1133(2), and 29 C.F.R.
§ 2560.503-1; (5) enjoinment of the arbitration clause pursuant to 29 U.S.C. § 1132(a)(3); and (6)
breach of fiduciary duty regarding the arbitration clause pursuant to 29 U.S.C. § 1104. (See
generally Am. Compl., ECF No. 3.)
Defendants filed motions to dismiss, and the Court determined that the 40l(a) Plan
contained a mandatory arbitration provision.

(July 29, 2016 Mem. Op. at 9.) The Court

determined that the mandatory arbitration provision was enforceable and dismissed Counts Four,
Five, and Six of Plaintiff’s Amended Complaint, which sought relief from the 40l(a) Plan’s
mandatory arbitration provision. (Id. at 9–13.) The Court further compelled arbitration pursuant
to the mandatory arbitration provision with respect to Counts One, Two, and Three of Plaintiff’s
Amended Complaint as they related to the 401(a) Plan. (Id.) The Court, however, declined to
compel arbitration with respect to the 403(b) Plan because it did not contain a mandatory
arbitration provision. (Id.) Accordingly, the Court stayed Counts One, Two, and Three as they
related to the 403(b) Plan pending arbitration with respect to the 40l(a) Plan. (Id. at 12–13.)

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In 2017, Plaintiff and the ETS Employee Benefits Administration Committee (“EBAC”)
conducted an arbitration to resolve Plaintiff’s individual claim under the 40l(a) Plan. On April 30,
2018, the Arbitrator held that the terms of the 401(a) Plan required payment of 100% of Mr.
Rosso’s account balance to Plaintiff, not 50% as previously determined. (Alison Douglas Decl.,
Ex C, ECF No. 117-2.) The Arbitrator found that the terms of the 401(a) Plan were “clear and
unambiguous and require[d] payment to [Plaintiff] of a . . . benefit based upon the full Account
Balance value of Mr. Rosso’s account . . . .” (Id.)
Plaintiff then filed a Motion to Confirm the Arbitration Award and Reopen the Case, which
the Court granted. (April 28, 2021, Mem. Op., ECF No. 111.) At this juncture, Plaintiff’s putative
TIAA-CREF Plan Arbitration Class and the ETS Plan Arbitration Sub-Class are no longer viable.
(See July 29, 2016 Mem. Op. 9–13.) Therefore, Defendants challenge the two remaining putative
classes: the TIAA-CREF Plan Class and the ETS Plan Sub-Class. Plaintiff’s Amended Complaint
proposes the following classes:
The TIAA-CREF Plan Class: Any Plan Participant or current or
surviving spouse of a Plan Participant who participates or
participated in a “qualifying” Plan under ERISA, which Plan’s
account or assets were invested with or managed or administered by
TIAA-CREF, or applied toward the purchase of TIAA or CREF
Contracts and which Plan had or has a Plan Document2 that provides
for a QPSA at a level above 50% of the Account Balance, in
language identical to or substantially similar to that in the Plan
Documents under which the Plaintiff is claiming relief.
The ETS Plan Sub-Class: Any Plan Participant or current or
surviving spouse of a Plan Participant who participates or
participated in a “qualifying” plan under ERISA, which was
sponsored by ETS and which Plan’s account or assets were invested
with or managed or administered by TIAA-CREF, or applied toward
the purchase of TIAA or CREF Contracts and which Plan had or has
a Plan Document that provides for a QPSA at a level above 50% of
the Account Balance, in language identical to or substantially

2

The Plan Document sets forth a Plan Participant’s rights in detail. (Id. ¶ 24.)

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similar to that in the Plan Documents under which the Plaintiff is
claiming relief.
(Am. Compl. ¶ 89(a)-(b).) For clarity, Plaintiff alleges that the Plans are subject to ERISA as
amended by the Retirement Equity of 1984 (“REACT”), which views a marital relationship as a
partnership and the retirement benefits derived therefrom as result of the efforts of both spouses.
(Am. Compl. ¶ 12.) She alleges that “ERISA establishes certain minimum requirements for all
private-employer-sponsored retirement plans,” including “the right of a surviving spouse to
receive an annuity if the Plan Participant dies before the spouse does.” (Id. ¶ 13.) Specifically,
REACT provides the surviving spouse a death benefit known as the QPSA when the Plan
Participant dies before retirement. (Id. ¶ 15.) The QPSA of a defined-contribution plan must be
in the form of an annuity, “the actuarial value of which is not less than 50% of the vested
accumulated account value” (“Account Balance”). (Id. ¶ 18.) Notably, “REACT permits the Plan
Participant to waive the QPSA benefits[] or designate anyone other than the spouse as beneficiary
of Plan death benefits, only with written spousal consent.” (Id. ¶ 16.)
Plaintiff alleges that “TIAA-CREF permits alienation of up to ‘one half’ of the Account
Balance without the spouse’s consent,” in violation of ERISA. (Id. ¶ 32.) Plaintiff claims that:
[U]pon receiving notice of a Plan Participant’s death, TIAA-CREF
sends out a form letter advising the surviving spouse of the precise
monetary value of 50% of the Account Balance, stating that this is
the amount payable to the surviving spouse. The letter does not state
that the amount is, in fact, only 50% of the Account Balance or that,
if the surviving spouse has not executed a waiver, he or she may be
entitled to more than 50%.
(Id. ¶ 36.) Plaintiff alleges “many TIAA-CREF Plans require QPSAs of more than 50%” of the
Account Balance, and TIAA-CREF employs this uniform practice regardless of the language in
the Plan Document. (Id. at 33, 37.) According to Plaintiff, even where the terms of a plan require
the QPSA to be funded with more than 50% of the Account Balance, TIAA-CREF pays the
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surviving spouse only 50% of the Account Balance, contrary to the provisions of its plans and
ERISA. (Id. ¶ 38.) Thus, the parties dispute whether the 40l(a) Plan, the 403(b) Plan, and other
similar TIAA-CREF plans provide for a QPSA funded with either 100% or 50% of the Account
Balance. (Opp’n Br. at 4.) Plaintiff seeks compensation for surviving spouses who have been
denied the QPSA to which they are entitled under the plans, along with declaratory and injunctive
relief to enjoin Defendants’ uniform practice. (Am. Compl. at 39–42.)
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) permits a district court to “strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). However, “[m]otions to strike are generally viewed with disfavor[] and will usually be
denied unless the allegations in the pleading have no possible relation to the controversy[] and may
cause prejudice to one of the parties.” Gray v. BMW of N. Am., LLC, 22 F. Supp. 3d 373, 386
(D.N.J. 2014) (quoting Sliger v. Prospect Mortgage, LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal.
2011)).
Motions to strike class allegations are disfavored because a motion for class certification
is a more appropriate vehicle for arguments about class propriety. Id. (citing Holak v. Kmart Corp.,
Civ. No. 12-304, 2012 WL 6202298 (E.D. Cal. Dec. 12, 2012)). “Class determination generally
involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s
cause of action, and discovery is therefore integral.” Id. See Peruto v. TimberTech Ltd., 126 F.
Supp. 3d 447, 459 (D.N.J. 2015) (“Generally courts do not consider whether a proposed class
meets the [Rule] 23 class requirements until after plaintiffs move for class certification.”).
“A defendant may move to strike class action allegations prior to discovery in those rare
cases where the complaint itself demonstrates that the requirements for maintaining a class action

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cannot be met.” In re Allergan Biocell Textured Breast Implant Prod. Liab. Litig., 537 F. Supp.
3d 679, 752 (D.N.J. 2021) (quoting Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n.3 (D.N.J.
2003)). “In a putative class action suit, a plaintiff is generally entitled to discover information
relevant to Rule 23’s class certification requirements.” McPeak v. S-L Distribution Co., Civ. No.
12-348, 2014 WL 4388562, at *4 (D.N.J. Sept. 5, 2014). Thus, “a court should grant a motion to
strike class allegations only if the inappropriateness of class treatment is evident from the face of
the complaint and from incontrovertible facts.” Id. “It is only when no amount of discovery or
time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a motion
to strike class allegations should be granted.” Id. (citing Pilgrim v. Universal Health Card, LLC,
660 F.3d 943, 949 (6th Cir.2011)). See also John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443,
445 (5th Cir. 2007) (“Where it is facially apparent from the pleadings that there is no ascertainable
class, a district court may dismiss the class allegation on the pleadings”).
“If the viability of a class depends on factual matters that must be developed through
discovery, a motion to strike will be denied pending the full-blown certification motion.” McPeak,
2014 WL 4388562 at *4 (quoting 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3.4
(7th ed.2010)). In this District, “dismissal of class allegations at [the pleading] stage should be
done rarely,” and “the better course is to deny such motion because the shape and form of a class
action evolves only through the process of discovery.” Allergan Litig., 537 F. Supp. 3d at 752
(citation omitted and alteration in original).
III.

DISCUSSION
Defendants seek to strike the class allegations even though Plaintiff has not yet moved for

class certification. Defendants argue that the “class allegations should be stricken because of the
facial structural and legal issues with each of Plaintiff’s alleged classes.” (Moving Br. at 11.)

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Here, the Amended Complaint itself does not demonstrate that the requirements for maintaining a
class action cannot be met. Allergan Litig., 537 F. Supp. 3d at 752. The Court will deny the
Motion for the foregoing reasons.
“[E]very putative class action must satisfy the four requirements of Rule 23(a) and the
requirements of either Rule 23(b)(1), (2), or (3).” Marcus v. BMW of N. Am., LLC, 687 F.3d 583,
590 (3d Cir. 2012). “Before turning to the explicit requirements of Rule 23 in Marcus, [the Third
Circuit] addressed two ‘preliminary matters’: first, whether the class was clearly defined, and
second, ‘whether the class must be (and, if so, is in fact) objectively ascertainable.’” Carrera v.
Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013) (quoting Marcus, 687 F.3d at 591).
Regarding the second of these two preliminary matters, the “ascertainability inquiry is twofold, requiring a plaintiff to show that: (1) the class is ‘defined with reference to objective criteria’;
and (2) there is ‘a reliable and administratively feasible mechanism for determining whether
putative class members fall within the class definition.’” Byrd v. Aaron’s Inc., 784 F.3d 154, 163
(3d Cir. 2015) (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)). “The
ascertainability requirement consists of nothing more than these two inquiries. And it does not
mean that a plaintiff must be able to identify all class members at class certification—instead, a
plaintiff need only show that ‘class members can be identified.’” Byrd, 784 F.3d at 163 (quoting
Carrera, 727 F.3d at 308 n.2).
“The method of determining whether someone is in the class must be ‘administratively
feasible.’” Carrera, 727 F.3d at 307 (quoting Marcus, 687 F.3d at 594). “A plaintiff does not
satisfy the ascertainability requirement if individualized fact-finding or mini-trials will be required
to prove class membership.” Id. (citing Marcus, 687 F.3d at 593). “Administrative feasibility

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means that identifying class members is a manageable process that does not require much, if any,
individual factual inquiry.” Id. at 307–08 (quotation marks and citation omitted).
A.

Facial Defect

Defendants argue that Plaintiff’s TIAA-CREF Plan Class and ETS Sub-Plan Class contain
facial defects because they include “Plan Participants” who have suffered no harm. (Moving Br.
at 14, 24–25.) They argue that the inclusion of Plan Participants in Plaintiff’s purported TIAACREF Plan Class is deficient because a Plan Participant, while alive, can change the beneficiary
designation and obtain an appropriate spousal waiver at any time. (Id. at 14.) In addition,
Defendants claim that there is no harm to Plan Participants who have not died and no harm to
spouses who do not disagree with a benefits determination that they receive less than 100% of the
Account Balance. (Id.) Defendants rely on Green v. Green Mountain Coffee Roasters, Inc., 279
F.R.D. 275, 284–85 (D.N.J. 2011), for the proposition that there are members of the class who
have not yet suffered any harm and, therefore, presently have no claim against Defendants. (Id. at
14–15.)
In opposition, Plaintiff argues that Defendants’ challenges to the propriety of this matter
proceeding as a Rule 23(b)(3) class action are meritless. (Opp’n Br. at 24.) Plaintiff contends
there are no facial defects in the class definitions as ERISA expressly permits the type of forwardlooking relief that would benefit all class members. (Id.) In addition to seeking compensation for
surviving spouses who have already been denied the QPSA to which they are entitled under the
Plans, Plaintiff also seeks declaratory and injunctive relief for the class. (Id.) She contends that
an injunction would benefit every member of the putative class because it would “requir[e]
Defendants to make QPSA determinations based upon the actual language of the applicable plan
and/or to cease their uniform practice of always assigning a 50% QPSA without examining the

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plan’s text . . . .” (Id.) Plaintiff contends this “requested relief [would] benefit all current Plan
Participants and their spouses, now and going forward, by requiring Defendants to stop violating
their fiduciary obligations to make benefit determinations based upon actual plan language.” (Id.;
see Am. Compl. ¶¶ 17–28.)
The Court agrees with Plaintiff. She claims that Defendants have engaged in the uniform
practice of always assigning a 50% QPSA to a surviving spouse regardless of what the underlying
ERISA plan actually says—thereby denying Plaintiff and other surviving spouses half of the death
benefits to which they are entitled as a matter of federal law. (Am. Compl. ¶¶ 25, 30–32, 36, 60–
65.) Plaintiff’s requested relief seeks to prevent a uniform practice. See 29 U.S.C. § 1132(a)(3)
(“A civil action may be brought . . . by a participant, beneficiary, or fiduciary (A) to enjoin any act
or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of
this subchapter or the terms of the plan”). Indeed, Defendants’ citations are inapposite because
they are not ERISA cases. The Court finds that the TIAA-CREF Plan Class and ETS Plan SubClass definition do not contain facial defects.
B.

Ascertainability of Class

Defendants also argue that there is “no reliable and administratively feasible means of
identifying [the TIAA-CREF Plan Class members and the ETS Plan Sub-Class] members absent
individual inquiries.” (Moving Br. at 17, 25.) They contend Plaintiff failed to plead that TIAACREF would know of any surviving spouse who would be a potential class member. (Id.) Second,
they argue that there is no administratively feasible way to determine on a class-wide basis whether
the spouses that Plaintiff seeks to represent (in connection with her challenge to Defendants’

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administration of QPSA benefits) is actually eligible for benefits under the TIAA Plan Class and
ETS Plan Sub-Class.3 (Id. at 17–18.)
In opposition, Plaintiff argues that Defendants’ motion incorrectly assumes that she is only
seeking certification under Federal Rule of Civil Procedure 23(b)(3). (Opp’n Br. at 22.) She
contends that ascertainability is not a requirement under Federal Rule of Civil Procedure 23(b)(2)
and that predominance only applies to Rule 23(b)(3). (Id. at 22.) Plaintiff notes that courts have
routinely held that ERISA class actions are suitable for certification under Rule 23(b)(1) and
(b)(2).4 (Id. at 23.)
In the alternative, Plaintiff argues that there is a reliable and administratively feasible way
of identifying the class members. She claims that TIAA-CREF—one of the largest ERISA
fiduciaries in the United States and the administrator of the Plans—maintains required detailed
records of Plan Participants and their beneficiaries, as well as their surviving spouses (who are
entitled to payment under ERISA) and any qualified elections. (Id. at 25.) Plaintiff contends that
each time death benefits are distributed, federal law requires the administrator of the benefits to
determine the following: (1) whether the Plan Participant had a Surviving Spouse; (2) whether the
Plan Participant died before the distribution of benefits commenced; (3) whether the Plan
Participant had any other beneficiaries; and (4) whether there had been a qualified election. (Id.
at 26.) Plaintiff argues that Defendants should, therefore, know what the benefit determination
was in each case because TIAA-CREF already conducted the factual inquiries necessary to
determine class membership. (Id.)

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Defendants contend eligibility is contingent on the following events: (1) the Plan Participant predeceasing the spouse;
(2) the Plan Participant died before the payout period of the deceased Plan Participant’s benefits; (3) the spouse was
still married to the Plan Participant at the time of death; (4) the Plan Participant had named one or more non-spouse
beneficiaries; (5) the surviving spouse did not sign a waiver concerning the non-spouse beneficiaries; (6) Defendants
made benefits determination adverse to the surviving spouse. (Id. at 18, 25.)
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Because this Motion seeks to strike class allegations rather than certify the class, the Court will not foreclose
Defendants’ arguments concerning ascertainability and predominance.

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The Court cannot determine upon the present pleadings the ascertainability of the class
members.

See Peruto, 126 F. Supp. 3d at 460 (“the question of ascertainability is more

appropriately addressed upon a developed factual record after class discovery”). Plaintiff does not
need to identify all class members at the class certification stage, much less at this stage. See Byrd,
784 F.3d at 163. Plaintiff need only show that the “class members can be identified.” Byrd, 784
F.3d at 163 (quoting Carrera, 727 F.3d at 308 n.2). There could be an “administratively feasible”
method of determining the TIAA-CREF members, including the putative class members who were
allegedly harmed by adverse determinations and those who will be harmed by Defendants’ alleged
uniform practice of always assigning a 50% QPSA without examining the plan’s text. See
Carrera, 727 F.3d at 307. Defendants argue that identifying the class members is contingent on
several events. (Id. at 17–18.) However, discovery may reveal that Defendants are able to identify
the class members because they already made certain determinations before distributing the QPSA
benefits to the surviving spouses (e.g., whether the Plan Participant had a surviving spouse,
whether the Plan Participant died before the distribution of benefits commenced, whether the Plan
Participant had any other beneficiaries, and whether there had been a qualified election). So,
identifying the class members may involve a “manageable process,” not requiring much—if any—
individual factual inquiry. Carrera, 727 F.3d at 307–08. Thus, it is not facially apparent from the
pleadings that there is no ascertainable class.

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C.

Individual Inquiries

Defendants also argue that Plaintiff’s class allegations raise numerous individualized issues
warranting dismissal.5 (Id. at 18, 25.) First, they contend an individualized inquiry would be
needed to determine indispensable parties like Ms. Rosso, the non-spouse beneficiary in this
instance.

(Id. at 20, 25.)

Second, resolution of any beneficiary’s claim depends on an

individualized inquiry concerning her or his eligibility in light of facts unique to each beneficiary
and the Plan Participant, including whether each purported class member exhausted all forms of
administrative remedies as provided by ERISA. (Id.) Third, an individualized inquiry is required
to determine if the plan in question is governed by ERISA because there are numerous statutory
provisions that exempt retirement plans from ERISA. (Id. at 21.) Fourth, the court would have to
determine whether different plans in the putative TIAA-CREF Plan Class have statute of
limitations provisions that preclude any putative class member from seeking redress. (Id. at 22.)
Fifth, the court would have to determine whether the plans in the TIAA-CREF Plan Class have
arbitration provisions that require arbitration, such as the 401(a) Plan. (Id. at 22, 25.) Sixth, an
individualized inquiry is needed to determine how each plan’s language should be interpreted to
determine whether a plan allows for a 50% or 100% QPSA or for some other amount. (Id.)
Seventh, ETS anticipated motion to reform the ETS Plans evidences an additional complicating
factor precluding class treatment. (Id. at 23.)
In opposition, Plaintiff contends Defendants’ argument concerning the “numerous
individual issues” is a predominance challenge. (Opp’n Br. at 27.) She argues that there are no

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Defendants rely on Trunzo v. Citi Mortgage, Civ. No. 11-1124, 2014 WL 1317577, *7–9 (W.D. Pa. Mar. 31, 2014),
for the proposition that class treatment is not appropriate where claims are based on “specific circumstances” and
conduct that was individual to each of the claimants. (Id. at 19.) Defendants also rely on Semenko v. Wendy’s Int’l,
Inc., Civ. No. 12-836, 2013 WL 1568407, *8 (W.D. Pa. Apr. 12, 2013), for the proposition that a motion to strike
class allegation should be granted where individualized issues of eligibility under the statute would require a number
of individual mini-trials. (Id.)

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individual issues in this case that predominate over the common issues of fact and law. (Id.)
Though Defendants argue that an individualized inquiry would be needed to determine
indispensable parties, Plaintiff contends TIAA-CREF and the non-spouse beneficiaries hold the
same interests. (Id. at 29–30.) Plaintiff also argues that “[t]he overwhelming consensus among
other courts to consider the question in the ERISA context is that exhaustion by unnamed class
members is not necessary where the named plaintiffs have exhausted their administrative
remedies.” (Id. at 30.) In addition, Plaintiff argues that discovery will address whether the plan is
governed by ERISA and whether the plans contain any statute of limitations. (Id. at 31.)
Moreover, Plaintiff argues that “every plan managed by TIAA may not be identical, but the
applicable QPSA calculation provisions are a discrete part of each plan, and irrelevan[t]
differences as to other portions of the plan are meaningless.” (Id. at 31.) She contends that without
the benefit of discovery, she cannot determine how similar the other TIAA plans are to TIAA’s
ETS plans. (Id. at 32.)
“[A]t the motion to strike stage, the burden on plaintiffs is less than at the certification
stage.” Allergan Litig., 537 F. Supp. 3d at 756 (quoting In re Ry. Indus. Emple. No-Poach Antitrust
Litig., 395 F. Supp. 3d 464, 514 (W.D. Pa. 2019)). “The court must determine only whether
plaintiffs satisfied their burden to set forth factual allegations to advance a prima facie showing of
predominance or that at least it is likely that discovery will reveal evidence” that will satisfy critical
elements of the plaintiff’s claims on a class-wide basis. Id. “Courts in this Circuit have declined
to conduct a predominance inquiry upon a defendant’s motion to strike/dismiss a plaintiff’s class
allegations, recognizing the dismissal of class claims before discovery and a class certification
motion ‘is the exception rather than the rule.’” Id. (citations omitted). Courts in this Circuit and
other circuits have found that a pre-discovery predominance inquiry is premature. Id. at 756–57.

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The Court agrees with Plaintiff that Defendants’ arguments challenge predominance. The
Court finds that a predominance inquiry is premature at this juncture. The Court will not scrutinize
the factual differences among individual class members at this stage and will not dismiss class
allegations because of potential differences.

Plaintiff has made a prima facie showing of

predominance. She referred to a series of common factual and legal issues arising out of
Defendants’ uniform practice as it pertains to the QPSA distribution. In addition, Plaintiff’s prayer
for relief does not present issues that predominate over common ones—Plaintiff seeks damages
relating to adverse determinations and seeks injunctive relief to stop Defendants’ uniform practice.
IV.

CONCLUSION
For the reasons stated above, the Court will deny Defendants’ Motion. An appropriate

Order will follow.

Date: April 7, 2022

s/ Zahid N. Quraishi
ZAHID N. QURAISHI
UNITED STATES DISTRICT JUDGE

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