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Tussey v. ABB, Inc.

United States District Court for the Western District of Missouri, Central Division

December 3, 2007, Decided; December 3, 2007, Filed

Case No. 06-04305-CV-NKL



Pending before the Court is Plaintiffs' Motion to Certify Class [Doc. # 71] in this breach of fiduciary duty case brought pursuant to §§ 502(a) and 409(a) of the Employee Retirement Income Security Act ("ERISA"). Plaintiffs seek certification of the following class pursuant to Fed. R. Civ. P. 23:

All persons, excluding individual employees who are or may be liable for the conduct described in the Complaint, who are or were participants or beneficiaries of the Plans and who are, were or may have been affected by the conduct set forth in the Complaint, as well as those who will become participants or beneficiaries of the Plans in the future.

Defendants ABB, Inc.("ABB"), and Fidelity Management Trust Company ("Fidelity Trust") and its affiliated advisor, Fidelity Management & Research Company ("Fidelity Management") raise several objections to the certification of Plaintiff's proposed class based on the sufficiency of Plaintiffs' class-wide evidence, and argue alternatively that in the event of certification, several reasons require the shortening of the proposed class period and narrowing  [*3] of class scope. Because Plaintiffs satisfy each element required under Fed. R. Civ. P. Rule 23, Plaintiffs' motion will be GRANTED.

I. Background

ABB, Inc., is a subsidiary of ABB, Ltd., a Swiss corporation and a major manufacturer of power and automation equipment. In 1992, ABB created a 401(k) plan for its employees (the "Plan"), which allowed Plan participants to contribute a portion of their income to individual retirement accounts. Several investment options were selected for the Plan participants to choose from. Each participant was able to select from that list his or her individual investment. In 1995, ABB selected Fidelity Trust to manage the Plan. (Trust Agreement Between Asea Brown Boveri Inc. And Fidelity Management Trust Company). Plaintiffs allege that, until 2004, the Trust Agreement between ABB and Fidelity Trust required ABB to get the consent of Fidelity Trust before choosing investment options for the Plan. (Am. Compl. P 34). As a result, Plan participants were steered toward investments which were managed, operated or advised by Fidelity Trust or one of its affiliates. In addition, the investment options made available to the Plan participants charged higher fees  [*4] to the Plan participants than were charged in the open market for the same product. Id. P 36.

ABB was designated as the administrator of the Plan and a named fiduciary of the Plan as that term is defined by ERISA. Fidelity Trust and Fidelity Management are also alleged to be fiduciaries subject to ERISA. Plaintiff Ronald C. Tussey ("Tussey") has been employed by ABB since 1990 1 and participated in the Plan at all times during the proposed class period.

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2007 U.S. Dist. LEXIS 88668 *; 42 Employee Benefits Cas. (BNA) 1616

RONALD C. TUSSEY, et al., Plaintiffs, v. ABB, INC., et al., Defendants.

Subsequent History: Motion denied by, Motion to strike denied by, As moot Tussey v. ABB, Inc., 2008 U.S. Dist. LEXIS 9806 (W.D. Mo., Feb. 11, 2008)

Prior History: Kennedy v. ABB Inc., 2007 U.S. Dist. LEXIS 58686 (W.D. Mo., Aug. 10, 2007)


plan participant, fiduciary, breached, options, class certification, certify, Defendants', parties, fiduciary duty, class member, proposed class, Plaintiffs', commonality, Plans, funds, injunctive relief, certification, revenue sharing, allegations, defenses, merits, statute of limitations, adjudications, employees, damages, select