Frequently Asked Questions

No, you are not being sued.

While Defendants obtained successful dismissal of some alleged claims, the remaining viable claims in the Action assert that Defendants were fiduciaries to the Plan and violated statutory obligations under ERISA that Defendants owed to the Plan and the Plan’s participants and beneficiaries. Plaintiffs allege Defendants breached certain fiduciary duties by causing the Plan to incur higher administrative fees and expenses than reasonable and necessary in relation to the managed account services used by the Plan.

Defendants deny each and every allegation of wrongdoing made in the Complaint and contend that they have no liability in the Action. Defendants specifically deny the allegations that they breached any fiduciary duty or any other provisions of ERISA in connection with the administrative fees or expenses incurred by the Plan, including but not limited to in the Plan’s use of managed account services, and further deny that they in any way failed to act prudently or loyally to the Plan’s participants and beneficiaries.

The Court has held that this Settlement shall proceed on behalf of everyone who fits the following description:

“All persons who were participants in or beneficiaries of the Smith & Nephew U.S. Savings Plan at any time between August 30, 2018, and May 13, 2026.”

The Court has not reached any final decision in connection with Plaintiffs’ claims against the Defendants. Instead, Plaintiffs and Defendants have agreed to a Settlement. In reaching the Settlement, they have avoided the cost, risks, time, and disruption of prolonged litigation and trial.

Class Counsel believe that the Settlement is the best option for the Settlement Class members.

The Settlement provides that Smith & Nephew or Defendants’ insurers will pay $350,000.00 (the “Gross Settlement Amount”) into an account at a financial institution identified by the Settlement Administrator. The net amount of the Gross Settlement Amount, after payment of Court-approved attorneys’ fees and costs, and any expenses incurred administrating the Settlement, will be allocated to the members of the Settlement Class according to a Plan of Allocation to be approved by the Court if and when the Court enters an order finally approving the Settlement.

In addition, the Settlement provides that Smith & Nephew will direct the Plan’s fiduciaries to conduct a request for proposal related to the managed account services offered under the Plan on or before December 31, 2027, with that request for proposal related to managed account services to be conducted in the manner and at the time chosen by the Plan’s fiduciaries in their sole discretion.

If the Settlement is given final approval, you will not have to do anything to get a payment from the Settlement if you are entitled to one under the Plan of Allocation.

If you qualify, you will receive a pro rata share of the Net Settlement Amount. If the dollar amount of the settlement payment to a Settlement Class member is calculated by the Settlement Administrator to be less than $10.00, then that Settlement Class member’s payment or pro rata share shall be zero for all purposes.

The Court has designated Walcheske & Luzi, LLC and Jonathan M. Feigenbaum, Esq as Class Counsel for the Settlement Class. If you want to be represented by your own lawyer, you may hire one at your own expense.

No. In some class actions, class members have the opportunity to exclude themselves from the Settlement. This is sometimes referred to as “opting out” of the Settlement. Because of the legal issues involved in the Action, however, the class of participants affected by this Settlement has been preliminarily certified as a mandatory class. This means you cannot opt out of the benefits of the Settlement in order to pursue your own claims or for any other reason. Therefore, you will be bound by any judgments or orders that are entered in this Action, and if the Settlement is approved, you will be deemed to have released Defendants from any and all claims that were or could have been asserted in this case on your behalf or on behalf of the Plan or that are otherwise included in the release in the Settlement, other than your right to obtain the relief provided to you, if any, by the Settlement.

Although you cannot opt out of the Settlement, you can object to the Settlement and ask the Court not to approve the Settlement, as described in the following FAQ.

If you are a member of the Settlement Class, you can object to the Settlement if you disagree with any part of it. You can give reasons why you think the Court should not approve the Settlement. The Court will consider your views. To object, you must send a letter or other written filing saying that you object to the Settlement. Be sure to include the following case caption and notation of: Nykiel v. Smith & Nephew, Inc., Case No. 1:24-cv-12247-NMG (D. Mass).

In addition, your objection must also include your name, address, telephone number, signature, and the reasons why you object to the Settlement. Any objection must be signed by the Settlement Class member even if an attorney is retained by the Settlement Class member. Mail the objection to each of the addresses listed below, postmarked no later than September 4, 2026. You must mail your objection by this date. If you fail to do so, the Court will not consider your objection. If you plan to speak at the Fairness Hearing, you must send a Notice of Intention to Appear along with your objection, as described in the following FAQ.

COURT CLERK
Clerk
U.S. District Court
John Joseph Moakley United States Federal Courthouse
1 Courthouse Way, Suite 9200
Boston, MA 02210

PLAINTIFFS’ COUNSEL
Paul M. Secunda
WALCHESKE & LUZI, LLC
235 N. Executive Dr., Suite 240
Brookfield, WI 53005

DEFENDANTS’ COUNSEL
Wesley E. Stockard
Littler Mendelson, P.C.
3424 Peachtree Road NE
Suite 1200, Monarch Tower
Atlanta, GA 30326

The Court will hold a Final Fairness Hearing to decide whether to approve the Settlement as fair, reasonable, and adequate. You may attend the Final Fairness Hearing, and you may ask to speak, but you do not have to attend. The Court will hold the Final Fairness Hearing on September 18, 2026, at 2:00 p.m. in Courtroom 4, 3^rd Floor of the U.S. District Court, John Joseph Moakley United States Federal Courthouse, 1 Courthouse Way, Suite 2300 Boston, MA 02210. At that hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. If there are objections, the Court will consider them. After the Final Fairness Hearing, the Court will decide whether to approve the Settlement. The Court will also rule on the motions for attorney’s fees and expenses.

Only if you have previously filed an objection to the Settlement may you ask the Court for permission to speak at the Final Fairness Hearing. To do so, you must send a letter or other paper called a “Notice of Intention to Appear at Final Fairness Hearing,” in Nykiel v. Smith & Nephew, Inc., Case No. 1:24-cv-12247-NMG (D. Mass). Be sure to include your name, address, telephone number, and signature. Your Notice of Intention to Appear must be postmarked no later than September 4, 2026, and be sent to the Clerk of the Court, Class Counsel, and Defendants’ counsel at the addresses listed in the previous FAQ.

You may contact the Settlement Administrator by email at SmithandNephewERISA@noticeadministrator.com, or call at 877-518-9379.