Omnicom ERISA: Federal Judge Denies Motion for Summary Judgment

On December 23, 2022, the Honorable Colleen McMahon, a District Judge in the United States District Court for the Southern District of New York, largely denied the motion for summary judgment (“Motion”) filed by Omnicom Group, Inc. (“Omnicom”), the Administrative Committee of the Omnicom Group Retirement Savings Plan (“Committee”), the Board of Directors of Omnicom Group, Inc. (“Board”) and individual members of the Board and Committee (collectively, “Defendants”). The Court previously denied Defendants’ motion to dismiss the class action in August 2021.

Omnicom offers the Omnicom Group Retirement Savings Plan (the “Plan”), a defined contribution 401(k) savings plan monitored by the Committee. The Plan, which has over 36,000 participants and nearly $2.8 billion in assets, is in the top 0.1% of all 401(k) plans by size. Participants can direct their contributions into various preselected investment options or allow their account balance to be automatically invested in the Plan’s qualified default investment alternative (“QDIA”).

Plaintiffs, represented by Miller Shah LLP, alleged that Defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (“ERISA”) by (1) selecting and retaining the risky Fidelity Freedom Funds Active Suite (“Freedom Funds”), which served as the Plan’s QDIA until 2019, instead of retaining a more prudent alternative, and (2) allowing participants to be charged excessive recordkeeping and administrative fees.

On October 24, 2022, Defendants moved for summary judgment, arguing that because no genuine issues of material fact existed between the parties, Omnicom should be entitled to judgment as a matter of law. In addition, Omnicom argued that neither the Committee nor the Board were suable entities because they maintain no assets (and thus could not satisfy a potential judgment) and do not fall under ERISA’s statutory definition of “person.”

The Court ultimately decided the Motion largely in favor of Plaintiffs in an Order issued on December 23.  During a hearing on the Motion on December 13, the Court identified several contested issues of fact making it unclear whether the fiduciaries of the Plan acted prudently and solely in the interest of Plan participants. In addition, the Court found that the Committee is a proper defendant because Plan documents expressly state that the Committee is the named fiduciary with respect to the Plan and ERISA expressly contemplates that a named fiduciary may be sued.  Emphasizing the significance of ERISA claims, Judge McMahon explained that “plan participants are not to be denied relief on technicalities.”

Defendants’ Motion also sought to preclude each of Plaintiffs’ three expert witnesses. To successfully preclude expert testimony, the moving party must show that the testimony is speculative or conjunctural. In evaluating such motions, courts in the Second Circuit consider the (1) qualifications that render a witness an expert; (2) the reliability of the expert’s opinion in their specific field; and (3) the relevance of the opinion to the trier of fact.  Judge McMahon largely determined that Defendants’ arguments regarding Plaintiffs’ experts pertained to the weight that the testimony should be given at trial, not its relevance, and the Court accordingly denied the motions to exclude in its December 23 Order.  

Two subclasses have been certified in this Action. The first consists of all participants and beneficiaries of the Plan who invested in the Freedom Funds during the Class Period. The second includes all participants and beneficiaries who paid the $34 dollar per-participant recordkeeping fee during the relevant portion of the Class Period.

The parties are now preparing for trial.  If you have been identified as a potential member of either subclass, you do not need to take any further action at this time to share in any eventual recovery. The caption for the lawsuit is Carol Maisonette et al. v. Omnicom Group, Inc. et al., Case No. 1:20-cv-04141-CM, filed in the Southern District of New York.  Updates will be posted to this blog as the matter progresses.

The legal team at Miller Shah LLP has extensive experience representing class action matters. If you have any questions regarding this subject or this post, please contact Stephen Rutkowski ( or Alec Berin ( The Firm can also be reached toll-free at (866) 540-5505. Miller Shah LLP is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. The firm is an active member of International Advisory Group (IAG Global), which provides clients access to excellent legal and accounting resources across the globe. For more information about the firm, please visit us at

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