In Gary Spano, et al v. The Boeing Company, et.al, participants in the Boeing 401(k) plan filed suit against Boeing, Boeing's Employee Benefits Plans Committee, Boeing's director of benefits, and the Employee Benefits Investment Committee. In the suit, plaintiffs alleged breach of fiduciary duties under ERISA by causing the plan to pay excessive fees and expenses, both through contract fees and revenue-sharing.
The District Court certified a class of participants and Boeing requested in interlocutory appeal. The Seventh Circuit granted the interlocutory appeal. The case was consolidated with Beesley, et al. v. International Paper Company, et al. for disposition. The Seventh Circuit vacated the class certification for failure to meet the typicality and adequacy requirements for a class action. The court, at the same time, told participants that they were not precluded from bringing class actions at a later date. Amended motions were then filed and four subclasses of an administrative fee class were certified - mutual fund subclass, small cap fund subclass, technology fund subclass, and company stock fund subclass.
The certified class numbers at least 190,000 but the exact number is unknown according to the order. All requirements of Rule 23 had been met and the case is proceeding toward trial.
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