The Board of Trustees of the Southern California IBEW-NECA Defined Contribution Plan et al. v. The Bank of New York Mellon Corporation et al.

A judge in the US District Court for the District of Southern New York denied a motion for class certification filed by the board of trustees of the Southern California IBEW-NECA Defined Contribution Plan against The Bank of New York Mellon Corporation, The Bank of New York, and BNY Mellon NA.

The plaintiffs had alleged that the defendants had violated the Employee Retirement Income Security Act (ERISA) by investing securities-lending cash collateral in allegedly risky notes issued by Lehman Brothers Holdings, and by refusing to sell such notes despite alleged warnings about the lack of liquidity in the credit market and declines in the market value of the investments.

A team from Analysis Group, led by Managing Principal Andrew Wong, Senior Advisor Keith R. Ugone, Principal Na Dawson, and Vice President Steven Saeger, was retained by Boies Schiller & Flexner LLP on behalf of the defendants to address issues related to class certification.

Dr. Ugone filed an expert report, opining on the requirements necessary to certify the class of ERISA-governed plans. "A [c]lass-wide approach would obfuscate (or mask) … important differences" among proposed class members' individual investment expectations and tolerances, Dr. Ugone observed in his report, citing differences in the plans' maturity guidelines, credit-quality guidelines, prohibited investments, and diversification requirements.

Citing Dr. Ugone's report widely in his decision, Judge Richard Berman said the plaintiffs' claims failed to meet conditions of numerosity and commonality, because the plaintiffs had not established that "common questions of law or fact predominate over individual issues." He denied the plaintiffs' motion for class certification.