The attorneys, from the firms Motley Rice LLC, Ajamie LLP and Izard Kindall & Raabe LLP, told U.S. District Judge Joseph F. Anderson Jr. on Friday that their settlement likely constitutes the largest recovery in an Employee Retirement Income Security Act case involving a deferred compensation plan allegedly misclassified as a “top hat” plan for executives.
“To class counsel’s knowledge, the settlement is by far the largest recovery in a ‘top hat’ case in the history of ERISA,” the attorneys wrote in a memorandum in support of their motion for attorney fees. “But by any measure, the settlement’s recovery of $79 million, or approximately $31,000 per class member, is an excellent result.”
The motion requests $19.75 million in attorney fees, $390,053 in reimbursement for litigation costs and $10,000 for lead plaintiff Robert Berry, a retired Wells Fargo financial adviser. The money would come out of the $79 million settlement total, according to the memorandum.
Berry’s suit accused Wells Fargo of violating ERISA by denying payouts to him and other deferred compensation plan participants under a forfeiture clause applicable to departing employees.
That clause, according to Berry, runs afoul of certain ERISA anti-forfeiture and other provisions that the bank has skirted by misclassifying the plan as an exempt “top hat” plan aimed at executives and high-level employees.
The suit took aim at Wells Fargo & Co. as well as two subsidiaries that do business under the name Wells Fargo Advisors, and it has been pared down since its 2017 filing to just claims related to the Wells Fargo Advisors LLC Performance Award Contribution and Deferral Plan.
Berry said he participated in this deferral plan for more than a decade, but when he left Wells Fargo in 2014 and started his own business, the bank enforced the forfeiture clause and denied him more than $200,000 of deferred compensation.
Wells Fargo had no comment Monday. Counsel for the parties did not immediately respond to requests for comment.
Berry is represented by William S. Norton, Erin C. Williams, William H. Narwold and Mathew P. Jasinski of Motley Rice LLC, Thomas R. Ajamie, David S. Siegel and John S. Edwards Jr. of Ajamie LLP and Mark P. Kindall and Douglas P. Needham of Izard Kindall & Raabe LLP.
Wells Fargo is represented by Adam N. Yount, Robert Knowlton and Pierce MacLennan of Haynsworth Sinkler Boyd PA and Frederick T. Smith, Amanda A. Sonneborn and Samuel Schwartz-Fenwick of Seyfarth Shaw LLP.
The case is Berry v. Wells Fargo & Co. et al., case number 3:17-cv-00304, in the U.S. District Court for the District of South Carolina.