UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
DANIEL NYKIEL and ANNEMARI COOLEY,
individually and as the representatives of a class
of similarly situated persons, and on behalf of The
Smith & Nephew U.S. Savings Plan,
Plaintiffs,
v. Civil Action No. 1:24-cv-12247-NMG
SMITH & NEPHEW, INC., BOARD OF
DIRECTORS OF SMITH & NEPHEW, INC.,
US PENSION AND BENEFITS EXECUTIVE
COMMITTEE OF SMITH & NEPHEW, INC.,
Defendants.
NOTICE OF CLASS ACTION SETTLEMENT
This notice advises you of the Settlement of Nykiel, et al., v. Smith & Nephew, Inc., et al., Case No. 1:24-cv-12247-NMG
(D. Mass) (the “Action”).
On August 30, 2024, Plaintiffs Daniel Nykiel and Annemari Cooley filed a Class Action Complaint on behalf of the Smith
& Nephew U.S. Savings Plan (the “Plan”) asserting claims under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §§ 1109, 1132, for breach of fiduciary duties against Smith & Nephew, Inc. (“Smith & Nephew” or
“the Company”), the Board of Directors of Smith & Nephew, Inc., (the “Board”), and the US Pension and Benefits Executive
Committee of Smith & Nephew, Inc. (the “Committee” and, collectively with the Board and the Company, “Defendants”)
during the period from August 30, 2018 through May 13, 2026 (the “Class Period”).
The parties in the Action have reached a Settlement and, if approved by the Court, the Settlement will release Defendants
and related parties from any claims filed against them in the Action or arising out of the administration of the Plan during
the Class Period. The terms and conditions of the Settlement are set forth in a Settlement Agreement & Stipulation (the
“Settlement Agreement”). Capitalized terms used in this Notice but not defined in this Notice have the meanings assigned
to them in the Settlement Agreement. The Settlement Agreement and additional information with respect to the Action and
the Settlement are available at www.SmithandNephewERISA.com.
The Parties have agreed to settle this case for $350,000.00 (the “Gross Settlement Amount”). The Parties have also agreed
that, as part of the Settlement, 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. The Court has scheduled a hearing concerning Final Approval of the Settlement and Class Counsel’s anticipated
motion for attorney’s fees and costs. That hearing, before the Honorable Nathaniel M. Gorton is scheduled on September
18, 2026, at 2:00 p.m. in Courtroom 4, 3rd Floor of the U.S. District Court, John Joseph Moakley United States Federal
Courthouse, 1 Courthouse Way, Suite 2300 Boston, MA 02210.
If Final Approval is granted, the Settlement will bind you as a member of the Settlement Class. You may appear at this
hearing and/or object to the Settlement. Any objection to the Settlement and/or the motion for attorney’s fees and costs
must be served in writing on the Court and the Parties’ counsel. More information about the hearing and how to object is
explained below.
YOUR LEGAL RIGHTS WILL BE AFFECTED WHETHER OR NOT YOU TAKE ANY ACTION. READ THIS
NOTICE CAREFULLY. PLEASE DO NOT CONTACT DEFENDANTS OR THE COURT. THEY WILL NOT BE
ABLE TO ANSWER YOUR QUESTIONS.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
If the Settlement is approved by the Court and you are a
You can do nothing. member of the Settlement Class entitled to a payment under
(No action is necessary to receive a payment.) the Plan of Allocation, you need not do anything to receive a
payment.
If you wish to object to any part of the Settlement, you may
You can submit an objection. write to the Court and Counsel and explain why. For more
(It must be postmarked by September 4, 2026.) information and where to send your objection, see Question
13, below.
If you submit a written objection to the Settlement before
You can appear at the Final Fairness Hearing
the Court-Approved Deadline, you may (but do not have to)
on September 18, 2026.
speak in Court about the fairness of the Settlement.
SUMMARY OF ACTION
As described in more detail below, Plaintiffs’ Class Action Complaint alleges on behalf of the Plan that Defendants breached
ERISA fiduciary duties of prudence owed to participants in and beneficiaries of the Plan during the Class Period related to
the Defendants’ fiduciary choices made around the Plan’s managed account services. Defendants deny these allegations. The
Action is brought on behalf of the Plan and seek recovery on behalf of the Plan during the Class Period.
Copies of the Class Action Complaint, Settlement Agreement, and related documents are available at
www.SmithandNephewERISA.com.
SUMMARY OF THE SETTLEMENT AGREEMENT
The Settlement Agreement provides that Defendants will pay $350,000.00, which will be deposited into an account called the
Qualified Settlement Fund. After payment of attorneys’ fees and litigation costs, and any expenses related to administration
of the Settlement, the amount remaining in the Qualified Settlement Fund shall constitute the Net Settlement Amount and
will be allocated among members of the Settlement Class according to a Plan of Allocation to be approved by the Court.
The Parties have also agreed that, as part of the Settlement, 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.
STATEMENT OF POTENTIAL OUTCOME OF THE ACTION
Class Counsel believe that the claims against Defendants are well-grounded in law and fact and that ERISA violations
have occurred in the Action. However, as with any litigated case, members of the Settlement Class would face an uncertain
outcome if the Action was to continue against Defendants. Continued litigation of the Action could result in a range of
possible recoveries, including a judgment or verdict greater or less than the recovery under the Settlement Agreement, or
no recovery at all.
Class Counsel believe that this Settlement reflects a reasonable compromise in light of the range of possible outcomes. Class
Counsel believe that the Settlement is preferable to continued litigation and is in the best interest of the members of the
Settlement Class because the Settlement provides certainty with respect to the amount of recovery and results in a prompt
recovery.
Throughout this litigation, Defendants have denied and continue to deny the claims and contentions alleged by Plaintiffs.
Defendants have strong and well-thought-out defenses. Nevertheless, Defendants have concluded that it is desirable for
the Action to be fully and finally settled as to it and the other Released Parties on the terms and conditions set forth in the
Settlement Agreement.
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The Court has not ruled in favor of either side. Both sides agreed to the Settlement to ensure a resolution and avoid the cost
and risk of further litigation.
STATEMENT OF FEES AND EXPENSES INCURRED BY AN INDEPENDENT FIDUCIARY
AND THE SETTLEMENT ADMINISTRATOR
An Independent Fiduciary is evaluating the Settlement and will be asked to authorize the Settlement on behalf of the Plan.
The fees and expenses incurred by the Independent Fiduciary (including fees and expenses incurred by consultants, attorneys,
and other professionals retained or employed by the Independent Fiduciary and fees associated with the recordkeeper’s
administration of the Settlement) in the course of evaluating and authorizing the Settlement on behalf of the Plan will be
independently paid by Defendants and are not part of the Gross Settlement Amount.
A Settlement Administrator has been engaged to mail the notice to the Members of the Settlement Class, administer the
Settlement, and allocate the Net Settlement Amount among Members of the Settlement Class. The fees and expenses for the
Settlement Administrator will be paid from the Gross Settlement Amount. Class Counsel believe and are informed that the
Settlement Administrator’s fees and expenses will not exceed $100,000.00.
STATEMENT OF ATTORNEY’S FEES AND EXPENSES SOUGHT IN THE ACTION
Class Counsel will submit a fee petition to the Court in which they will ask the Court to award them attorneys’ fees in
an amount not to exceed 33% of the Gross Settlement Amount, plus reimbursement of out-of-pocket costs and expenses
advanced by Class Counsel and reasonably incurred in prosecuting the Action.
QUESTIONS AND ANSWERS
1. Why did I receive a notice in the mail?
You received this Notice because you or someone in your family is or may have been a participant in or a beneficiary of the
Plan at some time between August 30, 2018, through the present.
The Court ordered this notice to be sent to you because you have a right to know about the Settlement and all the options
available to you regarding the Settlement before the Court decides whether to approve the Settlement. If the Court approves
the Settlement, and after any objections and appeals are resolved, the Net Settlement Amount will be allocated among
members of the Settlement Class according to a Court-approved Plan of Allocation.
The Court in charge of this case is the United States District Court for District of Massachusetts. The individuals who sued
are called the “Plaintiffs,” and the parties they sued are called the “Defendants.” The legal Action that is the subject of this
notice and the Settlement is titled Nykiel, et al., v. Smith & Nephew, Inc., Case No. 1:24-cv-12247-NMG (D. Mass).
2.What is the Action about?
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.
3. Why is this case a class action?
In a class action, one or more plaintiffs sue on behalf of a large number of people who have similar claims. All the individuals
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on whose behalf the plaintiffs are suing are “Class Members.” One court resolves the issues for all Class Members. In its
order setting the Final Fairness Hearing, the Court preliminarily certified the Settlement Class in the Action.
4. Why is there a settlement?
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.
5. How do I know whether I am part of the Settlement Class?
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 SETTLEMENT BENEFITS
6. What does the Settlement provide?
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.
7. How much will my payment be?
If you qualify, you will receive a pro rata share of the Net Settlement Amount. Class Counsel have filed a detailed Plan of
Allocation. It is available at www.SmithandNephewERISA.com. The Plan of Allocation describes the manner in which the
Net Settlement Amount will be distributed to members of the Settlement Class. In general terms, the Plan of Allocation will
provide that each Settlement Class member’s share of the Net Settlement Amount will be calculated as follows:
A. The Settlement Administrator will calculate an average account balance for each Settlement Class member based
on his or her total annual-ending account balances invested in the Plan for the Class Period (“Average Account
Balance”).
B. The Settlement Administrator will sum the Average Account Balances for all Settlement Class members.
C. The Settlement Administrator will then determine the total settlement payment available to each Settlement Class
member by calculating each such person’s pro-rata share of the Net Settlement Amount based on his or her Average
Account Balance compared to the sum of the Average Account Balances for all Settlement Class members.
D. 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.
E. The Settlement Administrator’s calculations regarding settlement payments will be final and binding under the
Court-approved Plan of Allocation.
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8. How can I get a payment?
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.
9. When will I get my payment?
The balance of the Net Settlement Amount will be allocated to members of the Settlement Class pursuant to the Plan of
Allocation after final approval has been obtained for the Settlement, including any appeals. Any appeal of the final approval
may take a year or more. Please be patient.
There will be no payments if the Settlement is terminated.
The Settlement may be terminated on several grounds, which are described in the Settlement Agreement. In the event any
of these conditions occur, there will be no Settlement payment made, and the litigation will resume.
10. Can I opt out of the Settlement?
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 below.
THE LAWYERS REPRESENTING YOU
11. Do I have a lawyer in the Action?
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.
12. How will the lawyers be paid?
Class Counsel will file a petition for an award of attorneys’ fees and expenses by August 4, 2026, after which a copy will be
posted on the settlement website (www.SmithandNephewERISA.com). This petition will be considered at the Final Fairness
Hearing. Class Counsel have agreed to limit their application for an award of attorneys’ fees to not more than 33% of the
Settlement Amount, plus out-of-pocket costs.
You have the right to object to this aspect of the Settlement even if you approve of the other aspects of the Settlement.
OBJECTING TO THE SETTLEMENT OR THE ATTORNEYS’ FEES
You can tell the Court that you do not agree with the Settlement or some part of it.
13. How do I tell the Court that I object to the Settlement?
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).
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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 below:
COURT CLERK PLAINTIFFS’ COUNSEL DEFENDANTS’ COUNSEL
Clerk Paul M. Secunda Wesley E. Stockard
U.S. District Court Walcheske & Luzi, LLC Littler Mendelson, P.C.
John Joseph Moakley 1200 N. Mayfair Rd., Suite 270 3424 Peachtree Road NE
United States Federal Courthouse Wauwatosa, WI 53226 Suite 1200, Monarch Tower
1 Courthouse Way Suite 9200 Atlanta, GA 30326
Boston, MA 02210
14. When and where will the Court decide whether to approve the Settlement?
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, 3rd 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.
15. Do I have to come to the hearing?
No, but you are welcome to come at your own expense. If you send an objection, you do not have to attend the Fairness
Hearing and voice your objection in person. As long as you mail your written objection on time, the Court will consider it
when determining whether to approve the Settlement as fair, reasonable, and adequate. You also may pay your own lawyer
to attend the Fairness Hearing, but attendance is not necessary.
16. May I speak at the hearing?
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 above.
IF YOU DO NOTHING
17. What happens if I do nothing at all?
If you do nothing and you are a member of the Settlement Class and the Settlement is approved, you will participate in the
Settlement of the Action as described in this notice.
GETTING MORE INFORMATION
18. Are there more details about the Settlement?
This notice summarizes the proposed Settlement. The complete Settlement is set forth in the Settlement Agreement. You may
obtain a copy of the Settlement Agreement on the settlement website, www.SmithandNephewERISA.com, or you may request
one be mailed to you by contacting the Settlement Administrator at [email protected].
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19. How do I get more information?
You may contact the Settlement Administrator at 877-518-9379 or by email using the Contact Us section of the website,
www.SmithandNephewERISA.com. Class Counsel may be reached at: Paul M. Secunda, Walcheske & Luzi, LLC,235
N. Executive Dr., Suite 240, Brookfield, WI 53005, email [email protected], telephone: (414) 828-2372.
Documents are also available at the office of the Clerk located at the U.S. District Court Courthouse, U.S. District Court,
John Joseph Moakley United States Federal Courthouse, 1 Courthouse Way, Suite 9200, Boston, MA 02210.
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