Walker v. Teachers Insurance and Annuity Association of America - College Retirement and Equities Fund

Filing 353

MEMORANDUM AND ORDER: denying 319 Motion for Reconsideration of the Class Certification Order. Proposed 320 Class Notice Plan filed by Norman Walker, Carolyn B. Duffy, Christine Bauer-Ramazani is APPROVED and shall be executed as soon as possible. Signed by District Judge J. Garvan Murtha on 7/2/2013. (wjf)

UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
CHRISTINE BAUER-RAMAZANI
:
and CAROLYN B. DUFFY, on behalf
:
of themselves and all others similarly situated, :
:
Plaintiffs,
:
:
v.
:
:
TEACHERS INSURANCE AND ANNUITY :
ASSOCIATION OF AMERICA-COLLEGE
:
RETIREMENT AND EQUITIES FUND,
:
COLLEGE RETIREMENT AND EQUITIES :
FUND, TIAA-CREF INVESTMENT
:
MANAGEMENT, LLC, TEACHERS
:
ADVISORS, INC., TIAA-CREF
:
INDIVIDUAL & INSTITUTIONAL
:
SERVICES, LLC, and TEACHERS’
:
INSURANCE AND ANNUITY
:
ASSOCIATION OF AMERICA,
:
:
Defendants.
:
_____________________________________ :

No. 1:09-CV-190

MEMORANDUM AND ORDER
(Docs. 319, 320)
I.

Introduction
Defendants Teachers Insurance and Annuity Association of America-College Retirement

and Equities Fund, College Retirement and Equities Fund, TIAA-CREF Individual &
Institutional Services, LLC, TIAA-CREF Investment Management, LLC, Teachers Advisors,
Inc., and Teachers’ Insurance and Annuity Association of America (collectively, “Defendants” or
“TIAA-CREF”) move for reconsideration of a class certification order issued May 9, 2013.
(Doc. 319.) Plaintiffs Christine Bauer-Ramazani and Carolyn Duffy (collectively, “Plaintiffs”)

oppose the motion (Doc. 336) and also submit for court approval a proposed class notice plan
(Doc. 320). Defendants raise objections to the proposed notice plan. (Doc. 335.)
II.

Motion for Reconsideration
Defendants move for reconsideration of the May 9 Class Certification Order requesting

the Court amend the order to add “a readily discernible delineation of the claims, issues, and
defenses that are subject to class treatment.” (Doc. 352 at 1.) To achieve this result, Defendants
ask the Court to include four issues that cannot be tried on a class basis: Defendants’ limitations
defenses; Plaintiffs’ claim for breach of the duty of impartiality; claims of individuals who have
released claims against Defendants; and, claims related to internal transfers among TIAA-CREF
investment products. Id. at 1-2. With regard to internal transfers, however, Defendants request
the class definition be revised to exclude those potential class members with only internal
transfers. Id. at 9-10.
While the Court is cognizant there may be issues to be resolved prior to trial -- and has
specifically noted the Class Certification Order “is subject to alteration or amendment” (Doc. 306
at 20) -- the Court refuses to delay dissemination of the notice of class certification.
Accordingly, the Court will consider those issues prior to trial; Defendants’ Motion for
Reconsideration (Doc. 319) is denied.
III.

Class Notice Plan
Plaintiffs request approval of their class notice plan. (Doc. 320.) Plaintiffs submit a short

form notice, long form notice, and an exclusion form. See Docs. 320-1, 320-2, 320-3. Rule
23(c) requires potential class members must receive notice of class certification. A class certified
under Rule 23(b)(3) must receive “the best notice that is practicable under the circumstances,
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including individual notice to all members who can be identified through reasonable effort.”
Rule 23(c)(2)(B). The notice must “clearly and concisely state . . . (i) the nature of the action; (ii)
the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class
member may enter an appearance through an attorney if the member so desires; (v) that the court
will exclude from the class any member who requests exclusion; (vi) the time and manner for
requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule
23(c)(3).” Id.
Defendants respond and object to the proposed class notice plan, first requesting the court
abstain from approving the plan until it has resolved the reconsideration motion, and second, if it
does not, to revise the long form notice to include “individual issues language,” require the long
form notice be both mailed and emailed, display the amended class definition on the website, and
publish the short form notice in the New York Times or Wall Street Journal instead of the
Chronicle of Higher Education. (Doc. 335.)
Plaintiffs do not object to displaying the amended class definition on the website,
publishing the short form notice in either newspaper or emailing the long form notice.
(Doc. 338.) Plaintiffs, however, do object to the court requiring mailing of the long form notice
unless Defendants pay the extra postage cost and submit publication in a trade-specific journal is
a useful supplement. Id. Regarding the “individual issues language,” Plaintiffs note the motion
for reconsideration should be denied but, should the court be inclined to approve the notice plan
prior to deciding that motion, that language could be added to the form. Id.
Given the parties’ agreement, the notice plan should include emailing the long form
notice without mailing unless Defendants pay the additional postage, displaying the amended
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class definition on the internet website, and publishing the short form notice in either the
New York Times or Wall Street Journal. The Court agrees with Plaintiffs that publication in a
trade specific journal is useful and may be the “best notice that is practicable” for those potential
class members whose addresses are unavailable. Accordingly, the short form notice should be
published in the Chronicle of Higher Education as well.
Regarding the “individual issues language,” Defendants request the following be added to
the long form notice:
Depending on the Court’s ruling on the class issues, there may be issues
that still will need to be litigated on an individual class member basis, including:
Plaintiffs’ theory that Defendants breached a duty of impartiality by not providing
class members the same relief as other investors, who were paid as part of a
settlement in an unrelated lawsuit; whether particular class members’ claims are
timely; whether class members’ claims are reduced by offset; and whether class
members whose only transactions involved transfers among TIAA-CREF
investments are entitled to relief.
(Doc. 335 at 3.) This request is denied. As noted above, there may be issues to be resolved prior
to or at trial and the Court will consider those issues in due course. The proposed class
certification notice will not be delayed.
IV.

Conclusion
Defendants’ motion for reconsideration (Doc. 319) is DENIED. Plaintiffs’ proposed

class notice plan (Doc. 320) is approved and shall be executed as soon as possible.
Dated at Brattleboro, in the District of Vermont, this 2nd day of July, 2013.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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