MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Before the court for consideration is the relief sought by plaintiffs in a document they filed in the above-captioned action on July 18, 2016, titled "Unopposed Motion for Order Preliminarily Approving (I) Conditional Certification of the Settlement Classes; (II) Appointment of Lead and Class Counsel; (III) Preliminary Approval of Settlement; and (IV) Approval of Form and Manner of Notice." By this memorandum opinion and order, the court is providing reasons why it is not in a position at this time to grant any of the relief sought by that motion. However, the court is not denying the requested relief, but is informing plaintiffs of additional information the court wishes to receive and consider before proceeding further.

I.

Plaintiffs' Complaint

This action was initiated on February 10, 2016, by Salvadora Ortiz ("Ortiz") and Thomas Scott ("Scott") ("plaintiffs"), on behalf of themselves and others similarly situated, by the filing of a "Class Action Complaint (ERISA)" naming as defendants American Airlines, Inc. ("American"), The American Airlines Pension Asset Administration Committee ("Committee"), and American Airlines Federal Credit Union ("Credit Union").

An abbreviated summary form of plaintiffs allegations is as follows:

The action is brought on behalf of a 401(k) retirement plan for employees of participating AMR Corporation subsidiaries (the "Plan") under §§ 502(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") (29 U.S.C. §§ 1132(a)(2) and 1132(a)(3)). Each defendant is a fiduciary as to the Plan and its participants, and each violated fiduciary duties owed to the Plan and its participants. Each named plaintiff has been a participant in the Plan, as defined in ERISA § 3(7) (29 U.S.C. § 1002(7)), and has owned, directly or indirectly, an interest in the Plan's investment option that is referred to in the complaint as the American Airlines Credit Union Demand Deposit Fund ("AA Credit Union Fund").

In addition to asserting actions on behalf of the Plan, plaintiffs seek certification of the action as a class action on behalf of all participants and beneficiaries of the Plan who invested directly on indirectly in the AA Credit Union Fund at any time from February 12, 2010, through the date of the judgment in this action (excluding certain categories of persons). The class of participants and beneficiaries plaintiffs requested the court to certify was defined as follows:

Doc. 1 at 9, ¶ 33.1

The Plan is an employee pension benefit plan within the meaning of ERISA § 3(2)(A) (29 U.S.C. § 1002(2)(A)). It is an eligible individual account plan, which provides an individual retirement account for each participant, as contemplated by ERISA § 3(34) (29 U.S.C. § 1002(34)), the benefits of which are based solely on the amount contributed to the participant's account, with adjustments for income, gains, losses, and expenses. Such a plan is commonly referred to as a "defined contribution plan." The participants select the investments to be made to their accounts from investment options provided for the participants by one or more Plan fiduciaries. The Plan is intended to comply with ERISA § 404(c) (29 U.S.C. § 1104(c)) and related regulations.

By ERISA regulation, one of the investment options that must be provided to the participants of such a plan is an income-producing, low-risk, liquid fund. The only option provided by defendants to the Plan participants for an investment in that category was the AA Credit Union Fund, which is a fund sponsored and managed by Credit Union.

Defendants violated their fiduciary duties by having the AA Credit Union Fund as the only Plan investment option that would qualify as an income-producing, low-risk, liquid fund. The AA Credit Union Fund produced extremely poor investment returns. As of November 5, 2015, the twelve-month return on an investment in that fund was 0.22%; and, as of January 3, 2016, the twelve-month return was 0.24%. The return on the AA Credit Union Fund was at all material times less than a poorly managed checking account. At the same time that the AA Credit Union Fund was providing the Plan participants who invested in it the meager returns described above, checking accounts offered by Credit Union to its depositors paid better returns than those earned by the Plan participants who elected to invest in the AA Credit Union Fund. One such account paid interest at the rate of 2.27%. Stable value funds, commonly used by large plans similar to the Plan, typically offered a greater return on a participant's investment than does the AA Credit Union Fund.

If defendants had properly performed their fiduciary obligations to the Plan and its participants, the income-producing, low-risk, liquid fund option would have been, or included, a stable value fund. According to a 2015 Stable Value Study, 80% of sponsors of similar plans offered a stable value fund option. That same study disclosed that returns on stable value funds were more than double the returns on money market funds from 1988 to 2015, and that almost 90% of financial advisors of defined contribution plans were in agreement that the stable value funds outperformed the returns of money market funds over the last twenty-five years.

If the Plan funds invested in the AA Credit Union Fund had instead been invested in a stable value fund returning average benchmark returns during the proposed class period, plaintiffs and the other Plan participants would not have lost tens of millions of dollars in their retirement savings, and would not continue to suffer additional losses as a result of the existence of the AA Credit Union Fund option in the Plan.

American Airlines and Committee are liable under 29 U.S.C. § 1109(a) to make good to the Plan any losses to the Plan resulting from their breach of fiduciary duties related to the failure to provide a stable value fund as an investment option.

At all relevant times, Credit Union held $1 billion in Plan assets in the AA Credit Union Fund, which is a demand deposit account, for which it had a fiduciary obligation to pay a reasonable rate of interest. Rather than to pay a reasonable rate of interest to the Plan participants who elected to invest in the AA Credit Union Fund, Credit Union used the $1 billion in Plan assets it held as investments by Plan participants to provide loans to members of Credit Union and to make other investments for which it earned substantial income, which, in turn, permitted Credit Union to offer substantially higher interest rates on similar demand deposit accounts to customers other than the Plan participants who invested in the AA Credit Union Fund. Credit Union should have paid to plaintiffs in the proposed class at least the same rate of interest it was offering to its other customers.

Consequently, Credit Union is liable under 28 U.S.C. § 1109(a) to make good to the Plan any losses to the Plan resulting from Credit Union's breach of fiduciary duty in failing to pay to the Plan participants a reasonable rate of return on investments they made in the AA Credit Union Fund option. American shares with Credit Union, as American's co-fiduciary, liability under 29 U.S.C. § 1105(a) for those losses by reason of having participated in Credit Union's breach of fiduciary duty knowing that Credit Union's conduct was such a breach and by failing to take reasonable efforts under the circumstances to remedy the breach.

American and Committee share liability for the loss resulting from Credit Union's breach of fiduciary duties to the Plan and its participants by reason of ERISA § 406(a) (29 U.S.C. § 1106(a)), which prohibits transactions between the Plan and a party-in-interest.

II.

Defensive Positions of American, Committee, and Credit Union

While none of the defendants filed an answer to the complaint, each made known its defensive positions by means of a motion to dismiss. American and Committee (collectively "Am/Com") jointly filed a motion to dismiss, with a supporting memorandum and appendix, on May 10, 2016. On the same date, Credit Union filed its motion to dismiss and supporting memorandum.

A. The Substance of the Motion Filed by American and Committee

Am/Com sought dismissal of all claims asserted by plaintiffs against them on the ground that plaintiffs failed to allege any claims against either of them upon which relief might be granted. They interpreted plaintiffs' contention to be that only a stable value fund is an acceptable principal preservation option for 401(k) plans. Am/Com urged that Count I be dismissed in its entirety because plaintiffs have failed to "allege facts that, if accepted as true, would show that a prudent fiduciary under like circumstances would not and could not have made the same investment decision." Doc. 26 at 6. Am/Com noted that nothing in ERISA or its accompanying regulations precluded Plan investment in Credit Union demand deposit vehicles or required the inclusion of a stable value fund as an investment option. They mention that ERISA § 408(b)(4) (29 U.S.C. § 1108(b)(4)) expressly contemplates that all or a part of Plan assets may be invested in deposits with a bank or similar financial institution, such as credit unions.

As substantiation for the wisdom of the provision for the Plan participants of the AA Credit Union Fund option rather than a stable value fund option, Am/Com pointed to a study they included in the appendix to their motion that indicates that 18% of defined contribution plans do not include a stable value fund option, and that 45% of the defined contribution plans that provide a stable value fund option also provide an alternative capital preservation option. Another argument advanced is that an investment in a stable value fund would have a greater risk of investment loss than would an investment in the AA Credit Union Fund.

According to Am/Com, plaintiffs' comparison between stable value funds and credit union demand deposit vehicles "is all the more flawed because it ignores the role of the Credit Union Option in the Plan's broadly diversified lineup," and that "[t]he Credit Union is just one option among many made available to Plan participants, all across the risk/return spectrum, from which participants can construct their individual investment portfolios according to their individual investment needs and preferences." Doc. 26 at 10. The investment options the Plan participants had during the years 2010-14 are disclosed in Form 5500 excerpts found in the appendix to the motion. Doc. 27 at AA-APP 090, 105, 121, 136, and 151. Those items suggest that the only income-producing, low-risk, liquid fund option provided to the Plan participants in each of those years was the AA Credit Union Fund option, and that

(1) of the $7,124,859,000 invested by the Plan participants as of December 31, 2010, $1,255,308,000 was invested in the AA Credit Union Fund demand deposit,

(2) of the $6,439,645,000 invested by the Plan participants as of December 31, 2011, $1,695,160,000 was invested in the AA Credit Union Fund demand deposit,

(3) of the $6,877,523,000 invested by the Plan participants as of December 31, 2012, $1,259,896,000 was invested in the AA Credit Union Fund demand deposit,

(4) of the $8,435,430,000 invested by the Plan participants as of December 31, 2013, $1,145,443,000 was invested in the AA Credit Union Fund demand deposit, and

(5) of the $9,093,254,000 invested by the Plan participants as of December 31, 2014, $1,059,795,000 was invested in the AA Credit Union Fund demand deposit.

Am/Com maintained that the comparison between the returns on the AA Credit Union Fund investment and the 2.27% paid by Credit Union to its checking account depositors is a false comparison because the 2.27% checking account rate applied only to balances up to $5,000, and was subject to reduction for fees, and that any balances above $5,000 "receive a return of 0.05%, . . ., again subject to fees — a fraction of what the Complaint itself reports that the Credit Union Option returns to investors." Doc. 26 at 11.

American contended that the complaint does not allege facts that would support a claim of co-fiduciary liability for alleged fiduciary breaches by Credit Union. It asserted that, to establish co-fiduciary liability against it, plaintiffs must first establish that Credit Union had fiduciary duties under ERISA, and violated them, and that, for the reasons set forth in Credit Union's separately filed motion to dismiss, the complaint fails to allege facts establishing violation of Credit Union of any fiduciary duty owed to plaintiffs or the Plan. Alternatively, American contended that the complaint does not allege facts that would state a co-fiduciary liability against it even if one were to assume a plausible claim of breach of fiduciary duty against Credit Union because none of the three circumstances prescribed by ERISA § 405(a) (29 U.S.C. § 1105(a)) that authorize co-fiduciary liability against a defendant fiduciary have been alleged by plaintiffs.

Moreover, Am/Com asserted, plaintiffs' allegations that the Plan's investment in the AA Credit Union Fund is a prohibited transaction under ERISA § 406(a) is in error because the investment comes within an exemption provided by ERISA § 408(b)(4) (29 U.S.C. § 1108(b)(4)).2

B. The Substance of Credit Union's Motion

Credit Union urged by its motion that all claims asserted by plaintiffs against it should be dismissed because plaintiffs have failed to state a plausible right to relief.

Credit Union interpreted plaintiffs' claim against it to be that it used Plan assets to benefit itself and its other customers in violation of ERISA § 406(b)(1) (29 U.S.C. § 1106(b)(1)), resulting in significant losses for the Plan and its participants. First, Credit Union contended that plaintiff has failed to allege factual bases for its conclusion that Credit Union is a Plan fiduciary. Second, Credit Union maintained that plaintiffs do not allege facts sufficient to establish that Credit Union used any of the Plan's assets for its own interest or for its own account, as they must under the plain terms of 29 U.S.C. § 1106(b)(1). In support of the latter contention, Credit Union maintained that plaintiffs never allege a transaction that benefitted Credit Union, much less a transaction that would be prohibited.

Alternatively, Credit Union maintained that, even if plaintiffs had sufficiently pleaded a claim against Credit Union for a violation of 29 U.S.C. § 1106(b)(1), the alleged prohibited transactions are exempt under 29 U.S.C. § 1108(b)(4). In support of that position, Credit Union maintained that "[p]laintiffs' sole complaint, . . ., appears to be that the Credit Union failed to pay the same rate of interest to Plan participants as it did to its other customers." Doc. 20 at 8. From there, Credit Union proceeded to argue that the comparison between the interest rate earned by the Plan participants on the AA Credit Union Fund demand deposits and the 2.27% Credit Union paid on the depositors in one of its checking accounts is inappropriate because of limitations placed on the checking account to which plaintiffs refer. Credit Union maintains that a more appropriate comparison would be between the interest paid on the AA Credit Union Fund investments and interest paid by Credit Union on its other demand deposit accounts.

III.

Pertinent Allegations In, and Information Provided by, Plaintiffs' Motion and Its Supporting Memorandum and Appendix

The court has not been made aware of the positions plaintiffs would take in response to the grounds of defendants' motions to dismiss. Rather than to respond to those motions, plaintiffs sought and obtained two extensions of time for the filing of responses before their filing on July 18, 2016, of the motion the court now has under consideration.

The instant motion and its supporting memorandum and appendix contain allegations and information that raise concerns as to whether an order of the kind sought by plaintiffs should be issued.

A. Information Plaintiffs Say Caused Them to Conclude That They Had Valid Claims Against Defendants

On the fifth page of plaintiffs' supporting memorandum, the following statements are made:

Doc. 52 at 5.3 And, plaintiffs add that:

Id. at 22.

B. The Process That Plaintiffs Say Led to the Proposed Settlement

Plaintiffs described the process that led to their decision to advocate the proposed settlement agreement now under consideration by saying in their memorandum:

Id. at 5-6.4 Plaintiffs explained that:

Id. at 22-23. And, at page 22 of the memorandum:

Id. at 22 (footnote omitted).

Plaintiffs informed the court in their memorandum that they have undertaken discovery to confirm the accuracy and truthfulness of the facts they relied upon in connection with the proposed settlement, which, when the discovery has been completed, will have entailed a review of years of records of the Plan's relevant fiduciary committees and interviews of key individuals. Id. at 23. John J. Nestico, one of the attorneys for plaintiffs, in his declaration, elaborated on plaintiffs' ongoing efforts to acquire information relative to the merit of the proposed settlement by saying:

Doc. 53 at APP65, ¶ 9.

C. The Proposed Settlement Agreement

The motion documents disclose that the proposed settlement agreement contemplates certification for settlement purposes of two non opt-out (Doc. 53 at APP15, ¶ 2.13) classes, one designated the "Monetary Relief Class," defined as follows:

Doc. 52 at 11, and, the other designated the "Structural Relief Class," defined as follows:

Id.

Plaintiffs disclosed in their memorandum that the only monetary payment defendants5 will make as part of the settlement is $8,800,000.6 Out of that, there is to be deducted attorneys' fees to be received by plaintiffs' counsel, not to exceed one-third of the remaining balance of the $8,800,000 payment7 after certain described deductions have been made.8 Whatever is left is to be allocated to Monetary Relief Class Members on a pro rata basis according to a formula described in an exhibit to the proposed settlement agreement.9

The benefits to be received by the members of the Structural Relief Class, as well as members of the Monetary Relief Class, are described in plaintiffs' memorandum as follows:

Doc. 52 at 6-7.10

Plaintiffs, through their counsel, estimate that the future monetary value to Plan participants of the "Structural Relief" described above "is between $30,000,000 to $48,000,000 for the three-year [period] following the implementation of the Structural Relief, based on certain assumptions." Id. at 7. A detailed explanation of how that estimated future monetary value was determined is found in the declaration of Nestico, in which he explains:

Doc. 53 at APP64-65, ¶ 8.

Plaintiffs' memorandum explains that the proposed settlement contemplates that all members of the settlement classes will release defendants and other parties, as described in the settlement agreement, of any claims arising out of or relating in any way to the subject matter of the instant action, and covenant not to sue any of the released parties on any such claims. According to the memorandum,

Doc. 52 at 9.11

The proposed settlement agreement has language that has the potential to cause the agreement to be terminated if the court does not use the proposed preliminary approval order, the proposed notice to members of the classes, or the proposed final order and judgment, "including, but not limited to any judicial findings included therein." Doc. 53 at APP27, ¶¶ 9.1 & 9.2. The provisions in the proposed settlement agreement the court has located that, in effect, provide that, if the court were to approve the settlement, the court would be obligated to use the proposed court documents attached thereto as exhibits are found at Doc. 53 at APP7, ¶ 1.20; APP7-8, ¶ 1.25; APP9, ¶ 1.33; APP11, ¶ 2.2; APP12, ¶ 2.6; APP14, ¶ 2.9; APP27, ¶¶ 9.1 & 9.2; and APP28, ¶ 9.4.

IV.

Concerns of the Court

The court recognizes that at this preliminary approval stage, the court is limited to determinations as to whether the court is satisfied that the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, and does not improperly grant preferential treatment to class representatives or segments of the class, and that there is good cause to order issuance of notice to the proposed settlement classes of the proposed settlement, and to proceed with a hearing to determine whether the proposed settlement should be approved as being fair, reasonable, and adequate to the members of the proposed classes as Rule 23(e)(2) of the Federal Rules of Civil Procedure contemplates. See In re Shell Oil Refinery, 155 F.R.D. 552, 555 (E.D. La. 1993). The court has not been persuaded by the information it has received thus far that there is good cause for entry of such an order or to proceed with such a hearing.

A. Information Received by the Court Suggests That the Monetary Payment Is Inadequate

Plaintiffs have provided the court information that causes the court to be persuaded that if this case were to go to trial, a fact finder probably would find that American and Committee, as Plan fiduciaries, should have provided the Plan participants an opportunity to invest in a stable value fund as an income-producing, low-risk, liquid fund option instead of, or in addition to, the AA Credit Union Fund option.

All parties to this action seem to take as a given that money market funds, though perhaps riskier, generally generate higher returns on a participant's investment than a demand deposit fund such as the AA Credit Union Fund. At least one authority has recognized that "Stable Value Funds simply outperform money market funds." Paul J. Donahue, Plan Sponsor Fiduciary Duty for the Selection of Options in Participant-Directed Defined Contribution Plans and the Choice Between Stable Value and Money Market, 39 Akron L. Rev. 9, 24 (2006). According to that author, "Stable Value Funds are one of the more popular investment options among [defined contribution] Plan Participants." Id. at 20. The author included the following in the article's Conclusion:

Id. at 33. Also pertinent is the study mentioned by plaintiffs in their complaint, supra at 5, a copy of which is in the appendix American and Committee filed with their motion to dismiss, Doc. 27 at AA-APP 153-179.12

According to plaintiffs and their experts, if defendants were to provide a stable value fund option to the Plan participants for the next three years, the participants would earn an additional $10 million to $16 million per year, for a total increase in earnings of $30 million to $48 million for the three-year period. Using those same per-year numbers, if a stable value fund option had been included as an income-producing, low-risk, liquid fund option, from February 2010 through this date, the income the Plan participants have lost by reason of the absence of a stable value fund option would appear to have been between $55 million and $88 million. Based on the information provided to the court, if this action were to be pursued through litigation rather than by settlement, such an outcome would appear likely.13 That being so, the court does not now have information that would allow it conclude that there is a realistic chance that after a hearing the court would determine that the proposed settlement, which contemplates a payment by defendants of only $8.8 million to certain of the putative class members, should be approved as being fair, reasonable, and adequate to the members of the proposed classes.

B. The Court Is Concerned with the Broad Releases, and Covenants Not to Sue, to Which the Class Members Would Be Subjected If the Settlement Were to Be Approved

The court would not be inclined to approve a settlement agreement that is binding on all the settlement class members that contains broad release and covenant-not-to-sue language of the kind contemplated by the proposed settlement agreement. The court would not expect release or covenant-not-to-sue language in a settlement of claims of the kind that have been made by the plaintiffs in this action to be broader than the scope of the claims that are being settled.

Another concern is the effect on the Structural Relief Class of the proposed releases and covenants not to sue. Even though the members of the Structural Relief Class are not being permitted to participate in the monetary relief aspect of the proposed settlement, they would be denied by the broad release and covenant-not-to-sue language from bringing a future action against any of the defendants (or other released parties) for whatever losses they might have suffered in the past from the failure of the Plan fiduciaries to give them an opportunity to invest in a stable value fund as an income-producing, low-risk, liquid fund option, rather than in the AA Credit Union Fund option. The court is not satisfied that none of the members of the Structural Relief Class who chose not to invest in the AA Credit Union Fund (or one of the other funds listed in the Monetary Relief Class definition) suffered damages by reason of not having an option to invest in a stable value fund in years past.

C. Members of Both Settlement Classes Should Receive Notice by First-Class Mail

A related concern is the language in the proposed settlement agreement that contemplates that the Structural Relief Class members would not receive by first-class mail the Class Notice, thus causing them to be less likely than the Monetary Relief Class members to have notice of a final approval hearing. Doc. 53 at APP14, ¶ 2.9.

D. The Court Is Satisfied That it Would Not Approve Certain Provisions in the Proposed Court Documents

The proposed documents contemplate that the court, after approving the settlement agreement, and entering a final judgment, would, nevertheless, have ongoing involvement in this action, perhaps for years, in matters related to the settlement. See Doc. 53 at APP6, ¶ 1.15; APP17, ¶ 4.1(c), (d), & (e); APP19-20, ¶ 4.2(b); APP21, ¶ 4.5; APP22, ¶ 5.2; APP32, ¶ 11.8; APP33, ¶ 11.12. The proposed Judgment Approving Settlement of Class Action contains injunctive-type language, such as the wording in its paragraph 6 that "[t]he Parties are directed to implement, perform, and consummate the Settlement in accordance with the terms and provisions of the Agreement." Doc. 53 at APP42, ¶ 6. The court would not be inclined to put that language in a judgment.14 The court would expect the parties to include in their settlement agreement whatever language needs to be in it for there to be a complete settlement between the parties, without the court being involved in an ongoing basis through wording of the settlement agreement or a judgment.

The court anticipates that if the court were to preliminarily approve a settlement agreement, conditionally certify the settlement classes, and appoint for settlement purposes leading class counsel, the court would prepare its own order granting that relief and providing the court's explanations as to why it was doing so. Therefore, the court does not anticipate that it would use an order on those subjects provided by the parties for the court's signature. The same is true as to notice to the class members and any final approval order and final judgment, if the matter were to go that far.

The court adds that it would not, if the matter were to go that far, approve the wording of the proposed notice to the settlement class members that is identified as Exhibit B to the proposed settlement agreement. Id. at APP48-55. The court anticipates that, if the matter were to reach that point, the court would prepare a notice acceptable to the court, using as much of the proposed notice as would be consistent with the court's view of what a proper notice should say, and then present the notice to the parties for comment before making a final decision as to the wording to be used.

The court is calling the matters discussed under this subheading to the attention of the parties because of the wording in some of the documents presented by plaintiffs to the court for review indicating that the proposed settlement will not go forward, or will be subject to termination, if the court does not choose to use as court documents ones worded consistent with the ones drawn by the parties.

V.

Possible Future Courses of Action for Plaintiffs to Take

If, after considering the foregoing contents of this memorandum opinion and order, and after consultation with counsel for defendants, plaintiffs wish to proceed further with the motion they filed on July 18, 2016, the court suggests that plaintiffs give thought to the following courses of action:

(a) Presumably the concerns the court expressed in the B, C, and D parts of section IV could be resolved by a redrafting of the proposed settlement agreement and a rethinking of their wishes as to the contents of the proposed court documents. If the parties do not wish to tackle those projects, all plaintiffs need to do is to inform the court of that fact. Upon being so informed, the court will deny plaintiffs' July 18, 2016 motion, and go forward with steps to dispose of the litigation in the usual manner, starting with fixing a deadline for plaintiffs' responses to defendants' motions to dismiss.

If redrafting is to be accomplished and rethinking is to be done, plaintiffs should promptly inform the court of that fact, and give the court an indication as to when the court might be expected to receive further filings by plaintiffs. As the court has indicated, the court plans for the most part to do its own wording of any preliminary approval order, notice to the class members, and final order and final judgment. In preparing those documents, the court would take into account the terms of any revised proposed settlement agreement that the court has found acceptable.

(b) If plaintiffs wish to address the concerns the court expressed in part A of section IV, the court will be receptive to the receipt of further information from plaintiffs bearing on that subject. The documents filed by plaintiffs suggest that they have an abundance of information that might give the court further insight on the subject.

The court would benefit from the results of the "extensive investigation to support the allegations and claims in the Complaint" to which plaintiffs refer in their memorandum. See supra at 14. According to plaintiffs, that investigation involved plaintiffs' counsel working with industry experts and ERISA consultants, examining and evaluating Department of Labor filings from the Plan and peers, Department of Labor filings from parties-in-interest to the Plan, the investment structure of the Plan, etc. Supra at 15. Plaintiffs assert that their counsel, working with consultants, "constructed estimated damages models for the Plan extrapolating from the publicly available, but necessarily non-plenary information," id., and that later counsel for plaintiffs, "working with experts and consultants, incorporated information shared by defendants in mediation into these models," id. The court would benefit from copies of the results and products of all of the activities described in the quoted language in section III. A. above.

Equally informative would be the writings that are mentioned in section III. B. above, particularly (1) all documentation provided to Judge Hochberg for her consideration, (2) the mediation briefs and other supporting documents that were prepared or exchanged in advance of the June 6, 2016 mediation, (3) Judge Hochberg's mediator's proposal, and (4) any other documentation that had a role in the mediation conducted by Judge Hochberg, including all information exchanged by the parties in preparation for or in the process of the mediation.

If a record was made of any of the "vigorous questioning and analysis by the mediator" (supra at 16), a transcript of the record could prove helpful. Plaintiffs indicate in their memorandum that there were extensive exchanges between Judge Hochberg and one or both of the parties. Whatever record was made of any of those exchanges would be helpful. The court probably would benefit from seeing the memorandum of understanding summarizing the key terms that was executed on June 14, 2016.

VI.

Order

Consistent with the foregoing, the court is withholding a final ruling on the motion filed by plaintiffs on July 18, 2016.

The court ORDERS that if plaintiffs wish to take steps to resolve the concerns of the court expressed in section IV above, they advise the court of that fact by a document filed by December 8, 2016, providing in that document a detailed description of what plaintiffs propose to do to resolve those concerns and when the court can expect them to do whatever that is.