CourtListener opinion 10262507

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IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF NEBRASKA 

TAMERA S. LECHNER, Individually, on 
behalf of the Mutual of Omaha 401(k) Long- 
Term Savings Plan and on behalf of a class 8:18CV22 
of all those similarly situated; REGINA K. 
WHITE, Individually, on behalf of the Mutual 
of Omaha 401(k) Long-Term Savings Plan MEMORANDUM AND ORDER 
and on behalf of a class of all those similarly 
situated; and STEVEN D. GIFFORD, 
Individually, on behalf of the Mutual of 
Omaha 401(k) Long-Term Savings Plan and 
on behalf of a class of all those similarly 
situated; 

 Plaintiffs, 

 vs. 

MUTUAL OF OMAHA INSURANCE 
COMPANY, UNITED OF OMAHA LIFE 
INSURANCE COMPANY, and JOHN DOES 
1-50, 

 Defendants. 

 This matter is before the Court on the plaintiffs' unopposed motion for preliminary 
approval of a settlement and for certification of the proposed settlement class, Filing No. 
101. This is a purported class action for breach of fiduciary duty under the Employee 
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. 
I. BACKGROUND 
 Plaintiffs Tamera S. Lechner, Regina K. White and Steven D. Gifford (collectively, 
"Plaintiffs" or "Named Plaintiffs"), individually and on behalf of all others similarly situated 
and on behalf of the Mutual of Omaha 401(k) Long-Term Savings Plan and the Mutual of 
Omaha 401(k) Retirement Savings Plan1 (the "Plans"), have asserted claims for alleged 
violations of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et 
seq. ("ERISA"), with respect to the Mutual of Omaha 401(k) Long-Term Savings Plan and 
the Mutual of Omaha 401(k) Retirement Savings Plan1 (together, the "Plans") against 
defendants Mutual of Omaha Insurance Company ("Mutual of Omaha"), its wholly-owned 
subsidiary United of Omaha Insurance Company ("United") and the individual "John Doe" 

defendants who are current or former members of the Retirement Plans Administration 
Committee ("Administration Committee"), the Retirement Plans Investment Committee 
("Investment Committee") and/or the Investment Manager Oversight Committee ("IMOC") 
(collectively referred to as "Mutual" or "Defendants"). 
 Mutual and the named plaintiffs have entered into the Settlement Agreement to 
resolve all claims asserted in this ERISA lawsuit in exchange for a $6.7 million cash 
payment. The terms of the Settlement are set out in a Settlement Agreement executed 
on September 18, 2020 (the "Settlement Agreement"), which has been signed by Plaintiffs 
and their Counsel on behalf of the proposed Settlement Class and Defendants 

(collectively with Plaintiffs, the "Parties").2 Filing No. 101-2 Exhibit 1, Settlement 
Agreement. The proposed "Settlement Class" is defined as 
 All persons who are or were participants or beneficiaries in one or both of 
 the Plans at any time during the Class Period, including any Beneficiary of 
 a deceased person who participated in one or both of the Plans at any time 
 during the Class Period, and/or Alternate Payee, in the case of a person 

1 At the time the lawsuit was initiated, the Mutual of Omaha Retirement Savings Plan did not yet exist. 
Effective January 1, 2019, the Long-Term Savings Plan was split into two plans with the split determined 
on whether participants were active participants in or excluded from the Mutual of Omaha Retirement 
Income Plan ("MORIP"), a defined benefit pension plan. Participants eligible for the MORIP remained in the 
Long-Term Savings Plan while non-eligible participants were transferred to the Mutual of Omaha 401(k) 
Retirement Savings Plan ("RSP"), a new defined contribution plan established by Mutual. Effective January 
16, 2019, Long-Term Savings Plan investments in the amount of $339,231,855 were transferred from the 
Long-Term Savings Plan to the RSP. See Mutual of Omaha Long-Term Savings Plan, Form 5500 (2018), 
available at www.efast.dol.gov. 

2 Capitalized terms in this Order will have the same meaning and definition as in the Settlement Agreement. 
 subject to a Qualified Domestic Relations Order who participated in one or 
 both of the Plans at any time during the Class Period. Excluded from the 
 Settlement Class are all current and/or former employees of Defendants 
 who were members of the Administration Committee, Investment 
 Committee, and/or IMOC during the Class Period. 

Id. at § 2.9. 
 In their Amended Complaint, plaintiffs allege that Defendant Mutual of Omaha 
("Mutual"), the Plans' sponsor and fiduciary, violated the duties of loyalty and prudence 
by selecting its affiliate, United, to provide administrative and investment services for the 
Plans. Defendants Mutual of Omaha and United provided investment options to the Plans 
through "Separate Account K," which is the principal vehicle through which Defendant 
United conducts its qualified retirement plan administration business. The Amended 
Complaint further alleges that Separate Account K includes many commonly available 
mutual funds as investment options for the Plans' participants. However, in addition to 
the ordinary investment management fees charged by the underlying fund managers, the 
Defendants charged the Plans and the Class Members significant additional fees (the 
"Markups") that other investors in those mutual funds do not pay. 
 Additionally, Plaintiffs allege that Defendants acted disloyally and in their own best 
interest, rather than the best interest of the Plans' participants, by selecting another 
United investment choice, the Guaranteed Account, a general account guaranteed 
interest product, rather than other non-proprietary general account products available in 
the market. Plaintiffs allege that these arrangements violated ERISA's fiduciary duty and 
prohibited transaction provisions. 
 The Defendants vigorously oppose and dispute these allegations. The defendants 
filed motions to dismiss both the original and amended complaints, and when those 
motions were not granted, asserted various merits and affirmative defenses to the claims 
asserted in the Amended Complaint. Defendants state that they continue to believe that 
the plaintiffs' allegations are without merit that that Defendants have, at all times, acted 
in accordance with ERISA's requirements with respect to the Plans. The Parties have 
shown that defendants produced thousands of pages of documents and other data and 

information to the plaintiffs and the parties participated in private mediation and extensive 
arms-length negotiations over several weeks. Id. at 3. The parties have also produced 
evidence that proposed class counsel has extensive experience in class-action litigation. 
Filing No. 101-4, Exhibit 3, Declaration of Todd S. Collins. 
II. LAW 
 A. Class Certification 
 Before assessing whether the Settlement is within the range of reasonableness for 
the purposes of preliminary approval, the Court must conduct an independent class 
certification analysis. Fed. R. Civ. P. 23(b)(3). Under the Federal Rules of Civil 

Procedure, "one or more members of a class may sue or be sued as representative 
parties on behalf of all members only if: (1) the class is so numerous that joinder of all 
members is impracticable; (2) there are questions of law or fact common to the class; (3) 
the claims or defenses of the representative parties are typical of the claims or defenses 
of the class; and (4) the representative parties will fairly and adequately protect the 
interests of the class." Fed. R. Civ. P. 23(a); see Amchem Prods., Inc. v. Windsor, 521 
U.S. 591, 613 (1997) (describing requirements as (1) numerosity; (2) commonality; (3) 
typicality; and (4) adequacy of representation). \In order to obtain class certification