govinfo:USCOURTS-njd-2_24-cv-00603-0

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Not for Publication 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
In re E*TRADE CASH 
SWEEP LITIGATION 
 
 
 
Civil Action No. 24-0603 (ES) (MAH) 
 
OPINIO
N 
 
 
S
ALAS, DISTRICT JUDGE 
 
Before the Court are three competing motions for the appointment of interim class council: 
(i) one filed by Sergey Burmin and Kenneth W. Luke’s (together, “Burmin Plaintiffs”), (D.E. No. 
86 (“Burmin Motion”); D.E. No. 86-1 (“Burmin Mov. Br.”));1 (ii) another by Thomas M. Simmons 
(“Simmons Plaintiff”), Simmons v. E*TRADE Securities, LLC , No. 24-11341 (D.N.J.), D.E. No. 
59 (“Simmons Motion”); and (iii) a final motion by Mark E. McKinney, Neal Gagner, and James 
Bertonis’s (together, “ McKinney Plaintiffs”), McKinney v. Morgan Stanley , No. 25 -14143 
(D.N.J.), D.E. No. 89 (“ McKinney Motion”). The Court resolves the motions without oral 
argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below, the Court 
GRANTS the Burmin Motion and the McKinney Motion IN PART. It accordingly DENIES the 
Simmons Motion as MOOT. 
I. BACKGROUND 
On February 1, 2024, Burmin Plaintiffs filed a class action complaint against E*TRADE 
Securities, LLC and Morgan Stanley Smith Barney, LLC (together, “Defendants”) on behalf of 
persons or entities who maintained retirement accounts with Defendants at any time beginning 
 
1 Burmin Plaintiffs additionally move for the appointment of liaison counsel. PageID:
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February 1, 2018. (D.E. No. 1 at 1). Plaintiffs alleged that Defendants had violated a contractual 
obligation “to provide Plaintiffs and Class Members with ‘ a reasonable rate of interest ’ on 
retirement cash assets .” ( Id. ¶ 131). On April 15, 2024, Defendants filed a motion to dismiss 
Plaintiffs’ Complaint, which Plaintiffs opposed. (D.E. No. 31; see also D.E. No. 35; D.E. No. 
38).2 
On January 10, 2025, Mark E. McKinney and Neal Gagner filed a motion to intervene 
pursuant to Federal Rule of Civil Procedure 24. (D.E. Nos. 47 & 48). McKinney and Gagner 
requested intervention “for the limited purpose of moving (1) to transfer the above -captioned 
action to the United States District Court for the Southern District of New York or, in the 
alternative, (2) to temporarily stay further proceedings in the Instant Action pending a decision by 
the Judicial Panel for Multidistrict Litigation in In re Cash Sweep Programs Contract Litigation, 
MDL No. 3136.” (D.E. No. 48 (citation modified)). Defendants wrote to the Court in support of 
the motion; Plaintiffs did the same in opposition. (D.E. Nos. 51 & 52). On January 28, 2025, this 
Court held a telephonic status conference to discuss the motion. (D.E. No. 55). 
On October 17, 2025, the Honorable Michael A. Hammer, U.S.M.J. (“Judge Hammer”) 
ordered the parties to file a proposed stipulation and order for the consolidation of related matters; 
the parties complied. (D.E. Nos. 83 & 87). Judge Hammer thereby consolidated two other actions 
into Burmin v. E*TRRADE Securities, LLC, et al ., No. 24-0603 (D.N.J.) (the “Burmin Action”): 
Simmons v. E*TRADE Securities LLC, et al ., No. 24- 11341 ( the “Simmons Action”); and 
McKinney, et al. v. Morgan Stanley, et al ., No. 25-14143 (the “McKinney Action”). Two other 
cases, Gagner v. Morgan Stanley, et al ., No. 24-9875 (S.D.N.Y.) (filed December 21, 2024) and 
 
2 On November 6, 2025, the Court DENIED this motion as moot, without prejudice. (D.E. No. 87). PageID:
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Bertonis v. Morgan Stanley, et al ., No. 25- 1589 (filed February 25, 2025) , were previously 
consolidated with McKinney on January 7 and March 14, 2025, respectively. Together, these 
actions make up the present “Consolidated Action” and bear the caption In re E*TRADE Cash 
Sweep Litigation, No. 24-0603. 
Judge Hammer further ordered the parties to file any motion for the appointment of interim 
class counsel by October 30, 2025. In accordance with His Honor’s order, Burmin Plaintiffs filed 
the Burmin Motion, moving for appointment of law firm Wolf Popper, LLC (“Wolf Popper”) as 
interim lead class counsel and Cohn Lifland Pearlman Herrmann & Knopf, LLP (“Cohn Lifland”) 
as liaison counsel. (D.E. No. 86). Burmin Plaintiffs also filed a memorandum in opposition to the 
competing motions previously filed by counsel for plaintiffs in McKinney and Simmons before 
those matters were consolidated with Burmin. (D.E. No. 88; see also McKinney Motion (moving 
for appointment of law firm Robbins Geller Rudman and Dowd (“Robbins Geller”)) ; Simmons 
Motion (moving for appointment of law firms BLB&G, BMPC, and WDD (“Sweeps Counsel”)). 
McKinney Plaintiffs filed an opposition to both the Burmin and Simmons Motions. (D.E. No. 89 
(“McKinney Opp. Br.”)). Simmons Plaintiff filed an opposition to both the Burmin and McKinney 
Motions. (D.E. No. 90 (“Simmons Opp. Br.”)). Burmin Plaintiffs replied to the McKinney and 
Simmons oppositions, (D.E. No. 91 (“ Burmin Reply Br.”)); McKinney Plaintiffs replied to the 
Burmin and Simmons oppositions, (D.E. No. 92 (“McKinney Reply Br.”)); and Simmons Plaintiff 
replied to the Burmin and McKinney oppositions, (D.E. No. 93 (“Simmons Reply Br.”)). 
II. LEGAL STANDARD 
“A court may appoint interim class counsel before certifying a class.” Berkelhammer v. 
Automatic Data Processing, Inc., No. 20-5696, 2022 WL 3593855, at *2 (D.N.J. Aug. 23, 2022) 
(citing Fed. R. Civ. P. 23(g)). To do so, a court must consider four factors: “(i) the work counsel PageID:
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has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in 
handling class actions, other complex litigation, and the types of claims asserted in the action; 
(iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to 
representing the class.” Fed. R. Civ. P. 23(g)(1)(A). A court may also “consider any other matter 
pertinent to counsel's ability to fairly and adequately represent the interests of the class.” Fed. R. 
Civ. P. 23(g)(1)(B). “If more than one adequate applicant seeks appointment, the court must 
appoint the applicant best able to represent the interests of the class. ” Fed. R. Civ. P. 23(g)(2). 
“‘In determining lead counsel, a court should conduct an independent review to ensure that counsel 
appointed to leading roles are qualified and responsible, that they will fairly and adequately 
represent all of the parties on their side, and that their charges will be reasonable. ’” In re New 
Jersey Tax Sales Certificates Antitrust Litig., No. 12-1893, 2012 WL 5214598, at *2 (D.N.J. Oct. 
22, 2012) (quoting In re Delphi ERISA Litig., 230 F.R.D. 496, 498 (E.D. Mich. 2005)). 
III. DISCUSSION 
The Wolf Popper, Robbins Geller, and Sweeps Counsel applications demonstrate that each 
entity possesses the knowledge and experience to ably represent the interests of the class. After 
careful consideration, however, the Court holds that Wolf Popper and R obbins Geller are best 
suited to serve as interim co-class counsel in this consolidated matter. 
The Court is persuaded by Wolf Popper’s involvement in the original Burmin action, prior 
to the consolidation of the Simmons and McKinney matters—both of which were “filed months 
after Burmin.” (D.E. No. 86-1). Indeed, “McKinney’s initial pleading . . . borrowed heavily from 
Burmin.” (Id. at 7–8). And Sweeps Counsel have “acknowledged . . . that Burmin was the first-
filed action and ‘has progressed significantly’ and that Simmons was filed to supplement Burmin 
to ‘cover all potential class members ’ in order ‘ to address the full scope of E*TRADE’s PageID:
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misconduct.’” (Id. at 9 (quoting McKinney Action, ECF 26 at 1)). In preparing the Burmin 
complaint, Wolf Popper conducted “extensive research into Defendants’ sweep programs, as well 
as client interviews and an analysis of Mr. Burmin’s and Mr. Luke’s E*TRADE brokerage 
materials and investing conduct.” ( Id. at 14). Wolf Popper further reports that, until the 
Undersigned stayed the Burmin matter, Burmin Plaintiffs made significant progress, including 
“negotiat[ing] a joint discovery plan[,]” “exchang [ing] initial disclosures, comprehensive 
document requests and interrogatories, and written responses[,]” and “engag[ing] in numerous and 
lengthy meet-and-confer correspondence and videoconference sessions over discovery disputes 
and alleged discovery deficiencies.” (Id. at 16). 
Moreover, Wolf Popper modeled the Burmin action on its “ Valelly case against Merrill 
Lynch, commenced in 2019 in the Southern District of New York, where Judge Caproni sustained 
the plaintiff’s nearly -identical claim for breach of a retirement account agreement to pay a 
reasonable rate of interest on swept cash.” (Id. at 4 (citing Valelly v. Merrill Lynch, Pierce, Fenner 
& Smith Inc., No. 19-7998, 2021 WL 240737, at *1 (S.D.N.Y. Jan. 25, 2021)). Burmin Plaintiffs 
report that, “[o]ver six years, Valelly [has] advanced through extensive fact and expert discovery 
and Wolf Popper defeated Merrill Lynch’s Daubert motion and its summary judgment motion.” 
(Id. at 5 (citation modified)). Many sweep cases, like this one, have been filed since, and “ other 
sweep counsel repeatedly citing to rulings from Valelly in their briefs. Relatedly, motion to dismiss 
decisions in these subsequently-filed actions also often cite to Valelly.” (Id. at 14). While Robbins 
Geller and Sweeps Counsel certainly have experience litigating such matters, their “experience is 
all in connection with litigation pending for approximately a year or less.” (Id. at 13). 
Both Robbins Geller and Sweeps Counsel, however, contend that Wolf Popper cannot 
adequately represent the interests of the class, as the Burmin complaint focuses only on retirement PageID:
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claims, while the Simmons and McKinney complaints include non-retirement claims. (McKinney 
Opp. Br. at 1). The Court does not necessarily share these concerns. It will, nevertheless, appoint 
Robbins Geller as interim co -lead class counsel, alongside Wolf Popper, in order to ensure that 
plaintiffs with non -retirement claims are adequately represented . Like Wolf Popper, Robbins 
Geller has the experience and knowledge required by Rule 23(g), particularly given that “[t]he 
firm serves as sole or co -lead counsel for plaintiffs in four other ongoing cash sweep cases.” 
(McKinney Opp. Br. at 6 (citing In re Merrill Lynch Cash Sweep Programs , No. 23-10768 
(S.D.N.Y.), ECF 58 (appointing Robbins Geller as interim co- lead counsel); In re RBC Capital 
Markets Cash Sweep Litig., No. 24- 08226 (S.D.N.Y.), ECF 31 (appointing Robbins Geller as 
interim co -lead counsel ); Liberty Cap. Grp. v. Oppenheimer Holdings Inc ., No. 25-4822 
(S.D.N.Y.) (sole counsel); Witchko v. EdgeCo Holdings, L.P ., No. 25- 0781 (W.D. Pa.) (sole 
counsel))). 
Furthermore, Wolf Popper and Robbins Geller presently serve as interim co -lead class 
counsel in the consolidated Merrill Lynch cash sweep action , a fact which makes the Court 
optimistic that the two entities will be able to work quickly and efficiently with one another . (Id. 
at 15 (citing In re Merrill Lynch Cash Sweep Programs, No. 23-10768 (S.D.N.Y.)). Wolf Popper 
in particular has represented that it is “receptive to working with either Bernstein Litowitz Berger 
& Grossmann, LLP . . . or Robbins Geller Rudman & Dowd LLP . . . on an Interim Co- Lead 
Counsel basis.” (Burmin Mov. Br. at 3). And in a letter to the Undersigned filed on August 4, 
2025, Robbins Geller represented that it and Wolf Popper “are . . . best positioned to advance the 
interests of the putative class by using their shared experience and work to limit unnecessary 
expense and delay.” (D.E. No. 72-1 at 4 n.2). Nevertheless, “[t]he Court reminds interim counsel 
that they ‘are subject to an on -going duty to advise the Court of any conflicts of interest that PageID:
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develop between the [parties] that the putative class is to represent so that the Court may, if 
necessary, modify its appointed interim leadership structure to address and mitigate any such 
conflicts.’” In re New Jersey Tax Sales Certificates Antitrust Litig. , No. 12- 1893, 2012 WL 
5214598, at *3 (D.N.J. Oct. 22, 2012) (quoting Delphi, 230 F.R.D. at 499). 
Finally, the Simmons Motion does not persuade the Court. In the last -filed complaint of 
the three, the Simmons Plaintiff largely “allege[s] the same underlying facts, against the same 
defendants, on behalf of the same putative class. ” (McKinney Opp. Br. at 9). And though not 
dispositive, the Court is unconvinced that the Sweeps Counsels’ five-firm structure will not result 
in undue strain on judicial resources and economy. See, e.g., In re Milestone Sci. Sec. Litig., 187 
F.R.D. 165, 176 (D.N.J. 1999) (“[T]he approval of multiple lead counsel may engender 
inefficiency in class action litigation. . . . The potential for duplicative services and the 
concomitant increase in attorneys ’ fees works against the approval of multiple lead counsel.”); 
Manual for Complex Litigation 3rd § 20.221 at 27 –28 (“Because the appointment of committees 
of counsel can lead to substantially increased costs, they should not be made unless needed; a need 
is most likely to exist in cases in which the interests and positions of group members are 
sufficiently dissimilar to justify giving them representation in decision making. . . . Great care 
must be taken, however, to avoid unnecessary duplication of efforts and to control fees and 
expenses.”); In re Remicade Antitrust Litig., No. 17-4326, 2018 WL 514501, at *2 (E.D. Pa. Jan. 
23, 2018) (“The PSC has not demonstrated how the possible benefits derived from a multi -firm 
structure outweigh . . . inherent risks. We will therefore not burden the proposed class with the 
litigation-by-committee approach.”). 
IV. CONCLUSION 
For the reasons set forth above, (i) the Burmin Motion is GRANTED in part and DENIED PageID:
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in part; (ii) the McKinney Motion is GRANTED in part and DENIED in part; and (iii) the 
Simmons Motion is DENIED. An appropriate Order accompanies this Opinion. 
 
s/Esther Salas 
 Esther Salas, U.S.D.J. PageID:
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