(Violation of USERRA, 38 U.S.C. § 4318, Against the American Plan)   (Violation of ERISA §§ 404(a)(1)(A), (B) and (D) Against the PBAC Defendants)   26.  The class is so numerous that joinder of all members is impracticable.  According  to the most recent Form 5500 for the year 2012, the number of active participants in the Plan as  of December 31, 2012 was 9,365.  Upon information and belief, thousands of former and current  American Pilots are members of the proposed class.     27.  American Airlines currently has domestic and international “hubs” in Queens,  New York, Brooklyn, New York, Los Angeles, California, Miami, Florida, Chicago, Illinois, and  Dallas/Fort Worth, Texas.  American Airlines pilots report for flying duty at pilot domicile bases  located in all the “hubs,” and also the focus cities of Boston, Massachusetts, St. Louis, Missouri,  and, until 2011, San Francisco, California.  Upon information and belief, the members of the  Class are geographically dispersed.   Commonality   30.  Because the pension contributions for periods of the American Pilots’ qualified  military service were based on a uniform policy and any recovery will be on behalf of and paid  into the Plan, all issues regarding relief are common.  Even if the ultimate allocation of recovery  into the American Pilots’ individual accounts is considered, the unifying issue concerning the  policy is the failure to consider each pilot’s average rate of compensation during the 12 months  prior to the period of military leave.  As the Fiduciary Defendants acted in a systematic manner  with respect to the Plan and the Class, all members of the Class suffered the same type of injury  based on a single policy, and resolving the claims of the Class will be based on common legal  and factual questions.    Typicality   31.  Plaintiff’s claims are typical of the other members of the proposed Class.  Plaintiff  challenges a single policy by which the Plan received pension contributions for periods of the  American Pilots’ qualified military service without regard to each pilot’s average rate of  compensation during the 12 months prior to the period of qualified military service.   33.  Plaintiff will fairly and adequately protect the interests of other members of the  Class.  Plaintiff is aware of no conflict with any other member of the Class.  Plaintiff understands  his obligations as a class representative, has already undertaken steps to fulfill them, and is  prepared to continue to fulfill his duties as class representative.   34.  Defendants have no unique defenses against the Plaintiff that would interfere with  Plaintiff’s representation of the Class.   35.  Plaintiff’s counsel are experienced in federal court class action litigation,  including pension and civil rights litigation, and have considerable experience and expertise in  the areas of both ERISA and USERRA.  Rule 23(b)(1)   36.  This action is properly maintainable as a class action under Rule 23(b)(1) of the  Federal Rules of Civil Procedure, because the central questions in this litigation are whether the  American Plan violated USERRA and whether the Fiduciary Defendants of the Plan breached  their duties in connection with calculating the contributions owed to the Plan based on the  American Pilots’ periods of qualified military service and the Fiduciary Defendants’ failure to  take any action to prevent, cease or remedy such improper contributions.   38.  This action is also properly maintainable as a class action under Rule 23(b)(2) of  the Federal Rules of Civil Procedure.   39.  Defendant Plan is alleged to have violated USERRA in a manner as to all  members of the Class.  The Fiduciary Defendants are alleged to have breached their fiduciary  duties in a manner that applied to all members of the Class either by interpreting the Plan in a  manner as to all members of the Class or by failing to properly manage the assets of the Plan.  As  such, Defendants have acted or refused to act on grounds that apply generally to the Class.  As a  result, final declaratory relief is appropriate respecting the Class as a whole.     41.  This action is also properly maintainable as a class action under Rule 23(b)(3) of  the Federal Rules of Civil Procedure.   42.  The questions of law and fact common to the members of the Class predominate  over questions affecting only individual members and a class action is superior to other available  methods for the fair and efficient resolution of this controversy.  By resolving the common issues  described above in a single class proceeding, each member of the proposed class will receive a  determination of whether the American Plan violated USERRA and whether the Fiduciary  Defendants of the Plan breached their fiduciary duties, and will receive the remedy that should  be provided under USERRA and ERISA.   43.  Upon information and belief, there are no other pending lawsuits in which  members of the Class have raised similar allegations involving this Plan.   44.  This is an appropriate forum for these claims because, among other reasons,  jurisdiction and venue are proper, one of the Defendants is located in this District, and, as a result  of American Airlines’ significant operations in this District, a substantial part of the Class likely  earned their pension benefits in this District, and at least a portion of the Class likely resides in  this District.   45.  There are no difficulties in managing this case as a class action.  47.  As set forth in the preambles of the 2009 Plan Document and the 1997 Plan  Document, the American Program consists of two separate Plans: (1) the Fixed Income Plan (or  “A Fund”), which is a defined benefit plan within the meaning of ERISA § 3(35) that provides a  retirement annuity to each American pilot based on the pilot’s credited service, compensation,  and the plan formula; and (2) the Variable Income Plan (or “B Fund”), which is a money  purchase plan and a defined contribution plan within the meaning of ERISA § 3(34).   48.  According to the preamble of the 1997 and 2009 Plan Documents, benefits under  the Variable Income Plan or B Fund are based on the amount credited to an individual account  established for each participant.    50.  Section 12.12 of both the 1997 and 2009 Plan Documents provide that “neither  the interpretation or the Plan nor its administration shall as such be within the jurisdiction of” of  collective bargaining agreement(s) between American Airlines and the Allied Pilots Association.    The Plan’s Obligations Under USERRA    51.  As an employee pension benefit plan, the American Plan was required to comply  with USERRA, 38 U.S.C. § 4318.  Pursuant to 38 U.S.C. § 4318(a)(1)(A), the American Plan  was required to comply with USERRA § 4318(a)(2), which provides as follows:  (A) A person reemployed under this chapter shall be treated as not having  incurred a break in service with the employer or employers maintaining the plan  by reason of such person’s period or periods of service in the uniformed services.  (B) Each period served by a person in the uniformed services shall, upon  reemployment under this chapter, be deemed to constitute service with the  employer or employers maintaining the plan for the purpose of determining the  nonforfeitability of the person’s accrued benefits and for the purpose of  determining the accrual of benefits under the plan.   52.  For each period of military service, USERRA § 4318(b)(1) provides that the  employer is “liable to an employee pension benefit plan for funding any obligation of the plan to  provide the benefits described in subsection (a)(2) [of § 4318] and shall allocate the amount of  any employer contribution for the person in the same manner and to the same extent the  allocation occurs for other employees during the period of service.”     53.  As the American Plan is “an employee pension benefit plan described in Section  3(2) of [ERISA],” the American Plan is an employer under USERRA with respect to its  “obligation to provide [the pension] benefits described in section 4318” within the meaning of,   91.  Plaintiff repeats and incorporates the allegations contained in the foregoing  paragraphs as if fully set forth herein.   93.  Pursuant to USERRA, 38 U.S.C. § 4318(b)(1), an employer reemploying a person  after a period of service in the uniformed services is liable to the employee benefit pension plan  for funding any obligation of the plan to provide benefits, including those accrued under  USERRA § 4318(a)(2)(B).     94.  Pursuant to USERRA, 38 U.S.C. § 4318(b)(3)(B), for purposes of computing an  employer’s liability under § 4318(b)(1), the employee’s compensation during the period of  uniformed service must be computed “in the case that the determination of [the employee’s rate  of compensation] is not reasonably certain, on the basis of the employee’s average rate of  compensation during the 12-month period immediately preceding such period (or, if shorter, the  period of employment immediately preceding such period).”   95.  From 1997 to the present, the compensation of the American Pilots was not and  has not been “reasonably certain” during the periods in which they engaged in qualified military  service.   96.  During all or a portion of the time from 1997 to the present, the policy applied for  making pension contributions to the American Pilots for periods of qualified military service was  not made based on the employee’s own average rate of compensation during the 12-month  period immediately preceding his or her period of military leave.    98.  Because the American Plan applied its policy in violation of USERRA, Plaintiff  and the Class received pension contributions in their B Fund accounts that were smaller than  what they would have received had the American Plan had complied with USERRA.    Background on the American Pilots’ Defined Contribution Pension Plan  