Can a former employee serve as a class representative for ERISA claims when she has signed a general release agreement and has waived her right to participate in class actions? According to a recent decision by the District Court for the Western District of Oklahoma, the answer may very well be “no.”

That court dealt with this issue in Myers v. Administrative Committee, Seventy Seven Energy, Inc. Retirement & Savings Plan. There, a former employee named Kathleen Myers sought class-wide relief against her retirement plan’s fiduciaries, claiming that the plan’s investments were not sufficiently diversified.

While reviewing Myers’ motion for class certification, the court acknowledged that the numerosity and commonality requirements of Rule 23(a) were satisfied. There was a hitch, however, when evaluating whether Myers’ claims were typical of the proposed class members (the “typicality” requirement of Rule 23(a)) and whether Myers was an adequate class representative (the “adequacy” requirement).

Before filing this lawsuit, Meyers had signed a severance agreement, which released all claims against her former employer and its agents. In that agreement, Myers had also waived her right to participate in any class actions against her former employer or its agents. This included a waiver of serving as a class representative.

Without deciding whether Myers could serve as the class representative, the court concluded that Myers did not satisfy Rule 23’s adequacy or typicality requirements. Critically, Myers’ motion for class certification failed to address how Myers was similarly situated to the putative class members, including whether other plan participants had signed release agreements. The court was troubled by this because, if Myers could not recover for any losses attributable to her individual account in the litigation, she would have little incentive to pursue this alleged fiduciary breach on behalf of a plan in which she was no longer a participant. As Myers failed to show that she was an adequate class representative or that her claims were typical of the putative class members, her motion for class certification was denied.

A second putative class representative fared little better. In apparent anticipation of the court’s ruling, Myers’ attorneys identified a new potential class representative, Christopher Snider, at the conclusion of expert discovery. Instead of moving for Snider’s intervention or joinder, however, Myers’ attorneys filed a second class action case with Snider as the plaintiff, then moved to consolidate the Myers and Snider cases. The court denied the consolidation motion, deeming it an attempt to circumvent the long-standing schedule in the original case.  For the same reasons, when plaintiffs’ counsel sought to add Snider as a co-representative for the class in the Myers case, the court refused.

The case is Myers v. Administrative Committee, Seventy Seven Energy, Inc. Retirement & Savings Plan, No. 17-cv-200 (W.D. Okla. Sept. 29, 2021).

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Photo of Charles F. Seemann III Charles F. Seemann III

Charles F. Seemann III is office managing principal of the New Orleans, Louisiana, office of Jackson Lewis P.C. His practice emphasizes ERISA class action defense and employment law, but encompasses a wide variety of litigation and counseling matters as well.

Charles’s primary practice…

Charles F. Seemann III is office managing principal of the New Orleans, Louisiana, office of Jackson Lewis P.C. His practice emphasizes ERISA class action defense and employment law, but encompasses a wide variety of litigation and counseling matters as well.

Charles’s primary practice focus includes the defense of ERISA plans and plan fiduciaries at both public and private companies, multi-employer plans and plan fiduciaries, and financial institutions providing services to ERISA plans. Routinely, he defends large ERISA class actions, COBRA class actions, and ESOP litigations. In addition to ERISA, Charles has extensive experience in a wide range of employment matters, including stock-option disputes and executive compensation litigation; wage and hour advice and litigation; and private litigation and regulatory investigations in discrimination, hostile-environment and similar matters. Charles is admitted to practice in both Louisiana and Texas, but has represented clients in complex and class action matters in numerous jurisdictions, including New York, California, Ohio, Illinois, Pennsylvania, Michigan, Massachusetts, Indiana, Florida, Oklahoma, Georgia, Tennessee, Virginia, Mississippi, and Washington D.C.