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ERISA and Federal Rule 23... Point 1

In an ERISA case pending in the Northern District of Illinois involving breach of fiduciary duty and prohibited transaction claims, the plaintiffs filed a motion asking the court to allow them to proceed in a representative capacity on behalf of the plan under ERISA section 502(a)(2) rather than require them to certify a class under Federal Rule 23.  The District Court in Chicago denied that motion based on the defendants' opposition, and suggested that the case proceed, not as a class action under Federal Rule 23, but as a "derivative action" under Federal Rule 23.1.

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