United States District Court, D. Massachusetts
ASHBY HENDERSON and THOMAS HERSHENSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
THE BANK OF NEW YORK MELLON, NATIONAL ASSOCIATION, Defendants.
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
proposed class action claims that defendant Bank of New York
Mellon, National Association (“BNY Mellon”), the
trustee for thousands of trusts, breached its fiduciary
duties to its trust beneficiaries in two ways: by imprudently
investing trust assets in poorly performing proprietary and
affiliated investment vehicles and by charging unauthorized
fees for the preparation of tax returns.
plaintiffs move for class certification. Docket No. 285. As
part of its opposition, BNY Mellon moves to strike putative
class representative Ashby Henderson on the basis of
inadequacy. Docket No. 319. BNY Mellon also filed its motion
for summary judgment ahead of schedule, Docket No. 315, and
sought to defer decision on class certification until after
adjudication of its motion to strike and its motion for
summary judgment, Docket No. 322.
Court DENIES BNY Mellon's motion to
strike putative class representative Ashby Henderson (Docket
No. 319). Because the other class certification issues are
intertwined with the merits of the case and the summary
judgment briefing is not yet complete, the Court
DEFERS decision on the plaintiffs'
motion for class certification (Docket No. 285). Once the
Court reviews the full summary judgment briefing, the Court
will determine the proper order of decision between class
certification and summary judgment.
Henderson is a beneficiary of a trust administered by BNY
Mellon. She is a purported class representative for both sets
of claims in this suit: that BNY Mellon imprudently invested
trust assets in poorly performing proprietary and affiliated
investment vehicles and that BNY Mellon charged its trusts
unauthorized fees for the preparation of tax returns. The
other named plaintiff, Thomas Hershenson, is only a purported
class representative for the claim of unlawful tax
Mellon seeks to strike class allegations related to Henderson
under Federal Rules of Civil Procedure 12(f) and 23(d)(1)(D)
on the basis that Henderson would not be an adequate class
representative. Docket No. 319. Rule 12(f) allows a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Striking class allegations
under Rule 12(f) is disfavored. Manning v. Boston Med.
Ctr. Corp., 725 F.3d 34, 58- 60 (1st Cir. 2013)(vacating
the Court order striking the class allegations on the
pleadings). Rule 23(d)(1)(D) allows a court to “require
that the pleadings be amended to eliminate allegations about
representation of absent persons and that the action proceed
accordingly.” Fed.R.Civ.P. 23(d)(1)(D).
Mellon's motion is not based solely on the pleadings.
Rather, BNY Mellon's motion is based on evidence outside
of the four corners of the pleadings, including the
deposition testimony of Henderson and the unusual history of
this case. As such, a motion to strike class allegations is
an ill-fitting procedural vehicle for BNY Mellon's
argument. As the plaintiffs' motion for class
certification had already been filed, the better course would
have been for BNY Mellon to include its arguments in its
opposition to the plaintiffs' motion for class
the Court could deny the motion as procedurally deficient,
the Court will treat it as a partial opposition to the motion
for class certification. The burden of showing compliance
with the Rule 23 requirements remains on the party seeking
certification, namely the plaintiffs. See In re Nexium
Antitrust Litig., 777 F.3d 9, 18 (1st Cir. 2015).
Mellon's instant motion challenges only the adequacy
prong of Rule 23, under which a class action may proceed only
if “the representative parties will fairly and
adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a)(4). The First Circuit has stated that
there are two elements to the adequacy requirement:
“first that the interests of the representative party
will not conflict with the interests of any of the class
members, and second, that counsel chosen by the
representative party is qualified, experienced and able to
vigorously conduct the proposed litigation.”
Andrews v. Bechtel Power Corp., 780 F.2d 124, 130
(1st Cir. 1985).
Mellon argues that Henderson does not meet the adequacy
requirement for two reasons. First, BNY Mellon argues that
Henderson does not have a sufficient understanding of the
case to protect the interests of the class. Docket No. 320 at
14. Second, BNY Mellon argues that rather than meaningfully
participating in her case, Henderson has abdicated control of
the case to Brian McTigue, a lawyer that BNY Mellon argues is
unfit to represent the interests of the class. Id.
at 18. Finally, BNY Mellon argues that Henderson's