Thompson et al v. Retirement Plan for Employees of SC Johnson & Sons Inc

Filing 200

ORDER signed by Judge J P Stadtmueller on 2/25/10: granting 144 plaintiffs' amended motion to certify class and appoint class counsel; certifying plaintiff classes and subclasses; naming class representatives; appointing Eli Gottesdiener of Gottesdiener Law Firm as class counsel for all classes and subclasses; and denying as moot 118 plaintiffs' motion to certify class. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
M IC H A E L J. THOMPSON, et al., P la in t iffs , v. R E T IR E M E N T PLAN FOR EMPLOYEES O F S.C. JOHNSON & SONS, INC., and R E T IR E M E N T PLAN FOR EMPLOYEES OF JOHNSONDIVERSEY, INC., D e fe n d a n ts . C a s e No. 07-CV-1047

A N T H O N Y J. DECUBELLIS, P l a i n t if f , v. R E T IR E M E N T PLAN FOR EMPLOYEES OF JOHNSONDIVERSEY, INC., D e fe n d a n t. C a s e No. 08-CV-0245

ORDER
P la in tiffs filed this class action lawsuit alleging that defendants Retirement P la n for Employees of S.C. Johnson & Sons, Inc., ("the SCJ Plan") and Retirement P la n for Employees of JohnsonDiversey, Inc., ("the JDI Plan," collectively, "the P la n s ") violated the Employee Retirement Income Security Act of 1974 (ERISA) by im p e rm is s ib ly "backloading" pension benefits and incorrectly calculating lump sum d is trib u tio n s paid to pre-retirement age plan participants. The plaintiffs have moved fo r certification of two classes regarding their "backloading" claim and four

s u b c la s s e s pertaining to their "lump sum" claim. The court finds that the proposed c la s s e s fulfill the requirements of Federal Rule of Civil Procedure 23 and will grant c e r t if ic a tio n . I. PROCEDURAL BACKGROUND P la in tiffs Michael Thompson, David Troestler, and James Patrick Johnson o rig in a lly filed this class action suit against the SCJ and JDI Plans on November 27, 2 0 0 7 , alleging that the Plans miscalculated lump sum distributions resulting in a fo rfe itu re of benefits for the plaintiffs. Each named plaintiff was a former participant in the SCJ Plan who chose to receive a lump sum pension distribution prior to n o rm a l retirement age of 65. The complaint did not assert that any named plaintiff h a d enrolled in, received a pension from, or otherwise participated in the JDI Plan. C o n s e q u e n tly, the JDI Plan moved to dismiss the action against it. A separate but s im ila r action was then filed against the JDI Plan on March 13, 2008, captioned D e C u b e llis v. the Retirement Plan for Employees fo JohnsonDiversey, Inc., No. 08C V - 2 4 5 . The DeCubellis lawsuit raised the same claim for wrongly-calculated lump s u m pension distributions as the original action, but was filed by a former J o h n s o n D iv e rs e y, Inc., employee on behalf of a class of participants in the JDI Plan. T h e court later consolidated the two cases. O n March 27, 2008, the plaintiffs in the instant case filed an amended c o m p la in t naming three additional plaintiffs who had participated in the JDI Plan and tw o additional plaintiffs who were current participants in the Plans, as well as adding

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a claim that the Plans violated ERISA age discrimination rules. The Plans moved fo r dismissal of the complaint, which the court granted in part, dismissing the age d is c rim in a tio n claim. The plaintiffs subsequently filed a second amended complaint o n June 2, 2009, reasserting the "lump sum" claim, adding more plaintiffs, and a s s e rtin g new claims for violations of ERISA § 204(g), § 204(h), and § 204(b)(1). T h e Plans subsequently moved to dismiss these new claims. Shortly after the m o tio n to dismiss was fully briefed, the plaintiffs filed their first motion for class c e rtific a tio n . One week later, on October 2, 2009, the court issued a decision g ra n tin g the Plans' motion to dismiss the § 204(g) and § 204(h) claims and denying th e motion to dismiss the § 204(b)(1) "backloading" claim. The parties then filed c ro s s -m o tio n s for summary judgment and the plaintiffs filed an amended motion for c la s s certification. This motion for certification of two classes and four subclasses is now before the court for decision. II. FACTUAL BACKGROUND T h e SCJ and JDI Plans are "cash balance" plans, a type of defined benefit p e n s io n plan whereby participants accrue pension benefits to a notional account b a s e d on annual amounts credited to that account. The notional accounts for SCJ a n d JDI Plan participants are credited with Annual Earnings Credits, which are in tere s t credits equaling the greater of 4% interest or 75% of the rate of return g e n e ra te d by the Plan's Trust for that year. Plan participants are entitled to the g re a ter of their cash balance benefit, or a "grandparent benefit" calculated under a

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p re -e xis tin g formula. Under the Plans' terms, a participant could elect to receive a lu m p sum distribution of their benefits equal to their notional account balance, unless th e actuarial equivalent present value of their "grandfathered benefit" was greater th a n the notional account balance. T h e Plans' interest credit and the Plans' method of calculating lump sum d is trib u tio n s give rise to the plaintiffs' "backloading" and "lump sum" claims. The p la in tiffs allege that the Plans are impermissibly "backloaded" as to any future in te r e s t credits above the 4% minimum interest applied to a participant's account. T h e plaintiffs also allege that the Plans violated ERISA by giving plan participants w h o elected to take their benefits as a lump sum distribution an amount equal to the b a la n c e in their notional accounts. The plaintiffs assert that the Plans failed to apply a proper "whipsaw" calculation projecting the value of a participant's account forward to age 65 and then discounting it back to present value. The Plans acknowledge th a t they did not apply the "whipsaw" calculation when determining lump sum d is trib u tio n s and, as a result, participants receiving lump sum distributions may not h a ve received the full amount of benefits to which they were entitled. The plaintiffs now move the court to certify a number of classes and s u b c la s s e s relating to their "backloading" and "lump sum" claims. They first propose a n "SCJ Class" and a "JDI Class" that pertain to the "backloading" claims, described a s follows:

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T h e SCJ Class A ll persons for whom the Retirement Plan for Employees of S.C. J o h n s o n & Sons, Inc., (the "SCJ Plan") has ever maintained a notional a c c o u n t, who became vested in their Plan benefit, but who did not also p a rtic ip a te in the Retirement Plan for Employees of JohnsonDiversey, In c ., ("JDI Plan"); and the beneficiaries and estates of such persons a n d alternate payees under a Qualified Domestic Relations Order. T h e JDI Class A ll persons for whom the JDI Plan maintained a notional account prior to January 1, 2004, and who became vested in their Plan benefit; and th e beneficiaries and estates of such persons and alternate payees u n d e r a Qualified Domestic Relations Order. (S e c o n d Am. Compl., at 2). The plaintiffs also propose four subclasses that pertain to the "lump sum" claims. The "lump sum" class members are all members of either th e SCJ Class or JDI Class, but are only those individuals who received a lump sum d is trib u tio n before normal retirement age. The plaintiffs propose two subclasses p e rta in in g to each plan. These subclasses divide participants into subclasses "A" a n d "B" based on the date that a participant received his or her lump sum payment ­ whether the payment was received before or after November 27, 2002. The four p r o p o s e d subclasses are described as follows: S C J Lump Sum Subclass A A ll SCJ Class Members who received a lump sum distribution equal to th e amount of their notional account balance or the present value of th e ir grandfathered benefit between November 27, 2002, and August 1 7 , 2006; and the beneficiaries and estates of such persons and a ltern a te payees under a Qualified Domestic Relations Order. S C J Lump Sum Subclass B A ll SCJ Class Members who received a lump sum distribution equal to t h e amount of their notional account balance or the present value of th e ir grandfathered benefit between January 1, 1998, and November

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2 7 , 2002; and the beneficiaries and estates of such persons and a ltern a te payees under a Qualified Domestic Relations Order. J D I Lump Sum Subclass A A ll JDI Class Members who received a lump sum distribution equal to th e amount of their notional account balance or the present value of th e ir grandfathered benefit between November 27, 2002, and August 1 7 , 2006; and the beneficiaries and estates of such persons and a ltern a te payees under a Qualified Domestic Relations Order. J D I Lump Sum Subclass B A ll JDI Class Members who received a lump sum distribution equal to th e amount of their notional account balance or the present value of th e ir grandfathered benefit between January 1, 1998, and November 2 7 , 2002; and the beneficiaries and estates of such persons and a ltern a te payees under a Qualified Domestic Relations Order. (S e c o n d Am. Compl., at 2-3). The named plaintiffs who seek to represent each re s p e c tive class and subclass are participants in the SCJ or JDI Plans who either e le c te d to receive a lump sum distribution of their benefits or currently participate in th e Plans. Plaintiffs Michael Thompson, David Troestler, James Patrick Johnson, J a m e s Barberis, and David Gray are former employees of S.C. Johnson & Sons, I n c . , who participated in the SCJ Plan during their employment and seek to re p re s e n t "The SCJ Class." Plaintiffs David Thompson, Robert Ault, Terry Conlon, A n th o n y DeCubellis, Roger DeMontravel, and Michael W a k e fie ld are former e m p lo ye e s of S.C. Johnson & Sons, Inc., and JohnsonDiversey, Inc., who p a rtic ip a te d in the SCJ and JDI Plans during their employment and seek to represent "T h e JDI Class." A number of the aforementioned plaintiffs also seek to represent the four lump s u m subclasses. Plaintiffs Michael Thompson, Troestler, and Johnson each -6-

re c e ive d a lump sum distribution from the SCJ Plan prior to retirement age between N o ve m b e r 27, 2002, and August 17, 2006, and are the proposed representatives for S C J Lump Sum Subclass A. Plaintiff Barberis received a lump sum distribution from th e SCJ Plan between January 1, 1998, and November 27, 2002, and is the p ro p o s e d representative for SCJ Lump Sum Subclass B. Plaintiffs David Thompson, A u lt, Conlon and DeCubellis each received a lump sum distribution from the JDI P la n between November 27, 2002, and August 17, 2006, and constitute the p ro p o s e d representatives for JDI Lump Sum Subclass A. Finally, plaintiff

D e M o n tra v e l received a lump sum distribution from the JDI Plan between January 1 , 1998, and November 27, 2002, and is the proposed representative for JDI Lump S u m Subclass B. III. T IM IN G OF THE DECISION ON CLASS CERTIFICATION T h e Plans do not make arguments directly opposing the merits of the motion fo r class certification under Federal Rule of Civil Procedure 23. Instead, they argue th a t the court should not address the question of class certification until after it d e c id e s the pending motions for summary judgment. The Plans justify this order of e ve n ts by asserting that the issue of class certification may be mooted if the court g ra n ts them summary judgment on the plaintiffs' claims. This conclusion of mootness, however, is called into question by the Seventh C irc u it Court of Appeals' holding in Wiesmueller v. Kosobucki. 513 F.3d 784, 787 (7 th Cir. 2008). The Seventh Circuit held that a district court's ruling on the merits

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o f a suit did not moot a pending motion for class certification. Id. at 787. The court re a s o n e d that an unfavorable ruling on the merits of a claim does not moot class c e rt if ic a tio n because the decision may be appealed and reversed, and because a ju d g m e n t against a certified class has preclusive effect against all class members, a n d not just the class representatives. Id. ("[A] district judge does not have the last w o rd on the merits of a plaintiff's claim. The fact that he thinks it unsound doesn't m e a n that a class action by the plaintiff is doomed to failure. Moreover, the fact that a suit lacks merit does not "moot" the question of class certification...since if a class is certified, its members (unless they opt out of the class), and not just the named p la in tiff, are bound by the judgment."). F u rth e r, deciding a motion for class certification prior to deciding a case on the m e rits is generally advisable. The Seventh Circuit suggested as much when it p o in te d out that the district court "could have decided the motion for class c e rtific a tio n , applying the criteria in Fed. R. Civ. P. 23, before deciding the case on the merits." Wiesmueller, 513 F.3d at 787. Federal Rule of Civil Procedure 23 d ire c ts the court to determine whether certification of a class is appropriate at "an e a rly practicable time." Fed. R. Civ. P. 23(c)(1). Thus, deciding a summary

ju d g m e n t motion before deciding a pending motion for class certification may c o n tra ve n e the command of Rule 23. See Bennett v. Tucker, 827 F.2d 63, 67 (7th C ir. 1987). A district court is not prohibited from ever deciding the merits of a case b e fore addressing class certification, but doing so is only appropriate on rare

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o c c a s io n s involving "exceptional" cases. See Wiesmueller, 513 F.3d at 787. This is not such a case and the court will address the motion for class certification prior to resolving the cross-motions for summary judgment. IV . M E R IT S OF THE CLASS CERTIFICATION MOTION F e d e ra l Rule of Civil Procedure 23 governs the certification of class action la w s u its and requires a two-step analysis. First, the court must determine whether th e plaintiff satisfies four prerequisites established in Rule 23(a), including: 1) n u m e ro s ity ; 2) commonality; 3) typicality; and 4) adequacy of representation. O s h a n a v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); see also Fed. R. Civ. P . 23. Failure to meet any of the prerequisites of the rule precludes class

c e rtifica tio n . Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008). Second, the c o u rt must determine if the plaintiff satisfies one of the conditions of Rule 23(b). A llia n c e to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). A. N u m e r o s i ty

R u le 23 requires a proposed class to be "so numerous that joinder of all m e m b e rs is impracticable." Fed. R. Civ. P. 23(a)(1). In determining whether joinder is impractical, the court considers the potential size of the class, as well as other c o n s id e ra tio n s such as the type of relief sought and the "practicality of relitigating the c e n tra l issues of the controversy." Quiroz v. Revenue Production Management, Inc., 2 5 2 F.R.D. 438, 441 (N.D. Ill. 2008). The plaintiffs assert that the SCJ and JDI c la s s e s each include more than 2,000 members and that the lump sum subclasses

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e a c h contain 75 members or more. The Plans do not dispute these numbers. T h e re fo re , the court is satisfied that the proposed classes and subclasses have the re q u ire d numerosity. B. C o m m o n a l it y

R u le 23 also requires that "there are questions of law or fact common to the c la s s ." Fed. R. Civ. P. 23(a)(2). The commonality requirement is generally satisfied b y a common nucleus of operative fact. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1 9 9 8 ). A common nucleus of fact manifests where the defendant has engaged in s ta n d a rd ize d conduct towards putative class members. See id. The plaintiffs easily s a t is f y this requirement because they raise two common issues: 1) whether the P la n s ' Annual Earnings Credits applying interest above the 4% minimum renders th e m impermissibly backloaded; and 2) whether the Plans underpaid lump sum b e n e fits by failing to apply a "whipsaw" calculation. Thus, there are common

q u e s tio n s of law and fact underlying the class members' claims. C. T yp i c a l it y

T yp ic a l it y for Rule 23 purposes exists when "the claims or defenses of the re p re s e n ta tiv e parties are typical of the claims or defenses of the class." Fed. R. Civ. P . 23(a)(3). This occurs when a plaintiff's claim arises from the "same event or p ra c tic e or course of conduct that gives rise to the claims of other class members a n d his or her claims are based on the same legal theory." Rosario v. Livaditis, 963 F .2 d 1013, 1018 (7th Cir. 1992). Here, typicality exists because the claims of all

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n a m e d plaintiffs and putative class members arise from the Plans' formula for in te re s t credits and from the Plans' methods of calculating lump sum payments. The in te re s t credits and lump sum calculation methodology were applied to the accounts o f the proposed class representatives and class members in the same manner. As a result, the typicality requirement is met. D. Ad e q u a c y

R u le 23 further requires that the "representative parties will fairly and a d e q u a te ly protect the interests of the class." Fed. R. Civ. P. 23(a)(4). To establish a d e q u a c y of the class representatives, the court considers whether the plaintiff's a t t o rn e y is qualified, experienced and generally able to conduct the proposed litig a tio n . Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977). The c o u rt also considers whether the plaintiff has interests antagonistic to those of the c la s s . Id. "Antagonistic or conflicting claims" between class members preclude fair a n d adequate representation by the class representatives. Rosario, 963 F.2d at 1018. The Plans make no objection to the qualifications of plaintiffs' counsel to re p re s e n t the interests of the class. Counsel has considerable experience litigating c la s s action cases involving ERISA pension benefits and was approved by Judge C ra b b in the W e s te rn District of Wisconsin in a case alleging similar claims. See R u p p e rt v. Alliant Energy Cash Balance Pension Plan, 255 F.R.D. 628, 636 (W .D . W is . 2009).

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T h e Plans do briefly argue that the interests of certain class representatives may c o n flic t with the interests of certain lump sum subclass members. In their motion for s u m m a ry judgment, the plaintiffs urge the court to order the Plans to apply a flat rate o f 8.95% in performing a "whipsaw" calculation to determine the amount that the s u b c la s s members were underpaid when they received their lump sum distributions p rio r to age 65. The plaintiffs alternatively assert that the court should consider u s in g the actual interest rate for the year when a given participant's lump sum d istrib u tio n was calculated ­ which was higher than 8.95% in certain years. The Plans argue that the issue of which interest crediting rate should be a p p lie d to recalculate the participants' lump sum benefits creates a conflict between c la s s members. They argue that applying an 8.95% interest rate will advantage s o m e class members because it is a higher rate than the actual interest rate for the ye a r in which those members received a lump sum distribution. However, applying a n 8.95% interest rate will disadvantage class members who received a lump sum d istrib u tio n in a year where the actual rate was higher than 8.95%. The court does not believe that this issue creates conflicting claims precluding c la s s certification. The putative class members all claim that the Plans failed to c o n d u c t a proper "whipsaw" calculation, resulting in lump sum payments equaling le s s than the actuarial equivalent of their accrued benefits. Any antagonistic

in te r e s t s relate only to the method of rectifying an underpayment of benefits. F u rth e r, the arguments posited within the parties' summary judgment motions

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re g a rd in g which rate should be applied in recalculating lump sum distributions are n o t at issue here. Therefore, the proposed representatives can adequately

re p re s e n t the class and the requirements of Rule 23(a) are fulfilled. E. C o n d itio n s under Rule 23(b)

A fte r meeting the numerosity, commonality, typicality, and adequacy re q u ire m e n ts of Rule 23(a), a plaintiff must establish that a class action can be "m a in ta in e d " under one of the subsections of Rule 23(b). The plaintiffs argue that th e classes are certifiable under Rule 23(b)(1)(A), 23(b)(1)(B), or 23(b)(2). The P la n s make no argument on the issue and state only that any appropriate class s h o u ld be certified under Rule 23(b)(2). This court agrees. C e rtific a tio n under Rule 23(b)(2) is warranted when the "party opposing the c la s s has acted or refused to act on grounds that apply generally to the class, so that fin a l injunctive relief or corresponding declaratory relief is appropriate respecting the c la s s as a whole." Fed. R. Civ. P. 23(b)(2). The Seventh Circuit endorsed

c e rtific a tio n for "lump sum" claims under this section in Berger v. Xerox Corporation R e tire m e n t Income Guarantee Plan, 338 F.3d 755 (7th Cir. 2003). The Seventh C irc u it found Rule 23(b)(2) certification appropriate because the relief sought by the p la in tiffs was a declaration that the plan's method of calculating lump sum payments w a s illegal. Id. at 763-64. The reasoning also applies to the instant case. The p la in tiffs seek declaratory relief stating that the Plans' method of calculating lump s u m s is illegal. The plaintiffs also seek declaratory relief stating that the Plans'

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in te re s t credit violates ERISA anti-excessive "backloading" rules. Therefore, the c la s s is maintainable under Rule 23(b)(2). The court need not also consider whether th e class is maintainable under Rule 23(b)(1) or Rule 23(b)(3) because classes c e rtifie d under Rule 23(b)(1) and 23(b)(2) are identical for notice and opt out p u rp o s e s , and because allowing members to opt out under Rule(b)(3) is c o u n te rp ro d u c tive . Ruppert, F.R.D. at 637. V. S C O P E OF THE CLASSES AND SUBCLASSES T h e final determination for the court is whether the precise outlines of the c la s s e s and subclasses proposed by the plaintiffs are appropriate. The Plans raise th is general issue by arguing that the certification of four lump sum subclasses is u n n e c e s s a ry. The Plans assert that the lump sum subclasses should be limited to p a rtic ip a n ts receiving lump sum distributions within the applicable statute of lim ita tio n s period of either four or six years.1 As the Plans point out, the "B" Lump S u m Subclasses include plan participants who received lump sum distributions more th a n six years prior to the filing of the lawsuit. However, the proposed subclasses a d d re s s this concern. The prospect that the court will apply a six-year limitations p e rio d to the participants' claims presumably lead the plaintiffs to propose separate s u b c la s s e s for participants who received lump sum payments prior to November 27,

The Plans argue in their sum m a r y judgm e n t m o tio n that a four-year statute of lim ita tio n s applies, or a lte r n a t iv e ly, that a six-year statute of lim ita t io n s applies, rendering the claim s of certain class m e m b e r s tim e - b a r r e d . The plaintiffs argue that the class m e m b e r s ' claim s are not tim e - b a r r e d because the m e m b e r s d id not receive notice that they had been injured outside the statute of lim ita tio n s period. However, the issue o f which statute of lim ita tio n s period applies and when it began to run is argued in the sum m a r y judgm e n t b r i e f i n g s and the court will address it when deciding the cross-m o t io n s for sum m a r y judgm e n t .

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2 0 0 2 , and those receiving lump sum payments afterwards. Therefore, if the court a p p lie s a six-year statute of limitations, the court can rule against the Lump Sum S u b c la s s B class members and leave the claims of the Lump Sum Subclass A m e m b e rs intact. Thus, certification of two lump sum subclasses for each Plan is p e rm is s ib le and appropriate here.2 T h e court notes that it will begin with a presumption that the plaintiffs meant to separate their subclasses based on lump sum distributions received more than s ix years before the filing of the lawsuit and those received less than six years prior. T h e subclasses, as currently proposed, divide class members based on whether th e y received a lump sum distribution before or after November 27, 2002. However, th e court believes that the plaintiffs intended to divide class members based on w h e th e r they received a lump sum distribution before or after November 27, 2001. T h e plaintiffs filed their original complaint on November 27, 2007. Therefore,

a p p lic a tio n of a six-year statute of limitations would prohibit claims filed prior to

Judge Crabb cam e to the sam e conclusion in Ruppert when she certified two separate classes d iv id in g participants based on the date of their lum p sum distributions. See Ruppert, 255 F.R.D. at 634 ("I am p e r s u a d e d that plaintiffs' proposed subclasses properly divide the class to address defendant's statute of lim it a t io n s concerns.").

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N o ve m b e r 27, 2001. The court will accordingly alter the dividing date between the p ro p o s e d lump sum subclasses by one year.3 T h e Plans raise several additional, minor arguments regarding the proposed lu m p sum subclasses. First, the Plans argue that the JDI lump sum subclasses s h o u ld not be distinguished based on the filing date of the original action, but on the filin g date of the DeCubellis case, because none of the original plaintiffs had s ta n d in g to allege injury against the JDI Plan. Next, the Plans argue that one of the n a m e d plaintiffs is not a proper class representative because he waived his right to a s s e rt an ERISA claim. Finally, the Plans object to inclusion of beneficiaries within th e proposed class definitions. A. Ap p lic a b le Date for Distinguishing the JDI Subclasses

T h e Plans argue that the JDI lump sum subclasses should be constructed b a s e d on the March 13, 2008 filing date of the DeCubellis case, rather than the filing d a te of the initial action. The original plaintiffs filed their lawsuit on November 27, 2 0 0 7 , naming both the SCJ and JDI Plans as defendants. However, the initial c o m p la in t only asserted injuries caused by the SCJ Plan because the three named p la in tiffs participated in and received pensions from the SCJ Plan, but made no such

The plaintiffs' use of the year 2002 appears to be an oversight. Plaintiffs' counsel in this case also r e p r e s e n ts the plaintiffs in the Ruppert case and proposed sim ila r lum p sum classes in that case. However, in Ruppert, the proposed lum p sum classes were distinguished based on whether filing occurred m o r e than s ix years prior to the date the lawsuit was filed. (See Ruppert, 255 F.R.D. at 633; Ruppert v. Alliant Energy, 0 8 - C V - 1 2 7 , Dk #1). The court believes that the plaintiffs intended to distinguish the lum p sum classes in the in s ta n t case in a sim ila r m a n n e r, instead of distinguishing between plaintiffs who received their lum p sum p a ym e n ts m o r e than five years prior to the date the lawsuit was filed and those receiving paym e n ts less than f i v e years prior.

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a s s e rtio n s regarding the JDI Plan. Therefore, the Plans conclude, none of the n a m e d plaintiffs had standing to bring suit against the JDI Plan until the filing of the D e C u b e llis suit, which was later consolidated with the first action. The plaintiffs m a k e no response to this argument. T h e court agrees that the plaintiffs lacked standing to bring suit against the JDI P la n prior to the March 13, 2002, filing of the DeCubellis case. The plaintiffs named in the original complaint were former employees of SC Johnson & Sons, Inc. who p a rtic ip a te d in the SCJ Plan. The complaint did not assert that they were employed b y JohnsonDiversey, Inc., that they participated in the JDI Plan, or that they had any re la tio n s h ip with the JDI Plan. Therefore, the named plaintiffs could claim no injury c a u s e d by the JDI Plan's actions and had no standing to sue the plan. See Lujan v. D e fe n d e rs of Wildlife, 504 U.S. 555, 560 (1992) (standing requires a "causal c o n n e c tio n between the injury and the conduct complained of ­ the injury has to be fa irly traceable to the challenged action of the defendant"). This is true despite the c la s s action nature of the complaint. A named plaintiff in a class action suit cannot a c q u ire standing by bringing his action on behalf of others who suffered an injury th a t he does not share. Payton v. County of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (q u o tin g Allee v. Medrano, 416 U.S. 802, 828-29 (1974)). The plaintiffs named in the o rig in a l complaint cannot have suffered injury as a result of the JDI Plan's actions a n d cannot represent others who may have suffered such an injury. Therefore, the filin g of the original complaint did not toll any applicable statute of limitations on

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th e s e claims against the JDI Plan. A plaintiff with standing did not file claims against th e JDI Plan until March 13, 2008. Consequently, the court will alter the proposed J D I Lump Sum Subclasses to distinguish between those lump sum subclass m e m b e r s who received lump sum distributions more than six years prior to March 1 3 , 2008, and those who received their distributions less than six years prior to that d a te . B. R o b e rt Ault's Ability to Serve as a Class Representative

T h e Plans also argue that plaintiff Robert Ault cannot serve as a class re p re s e n ta tive because he waived his right to bring any ERISA claim as a result of a settlement agreement he signed on November 12, 2004. However, a plan

p a r tic ip a n t cannot waive his right to a nonforfeitable vested pension benefit unless th a t waiver is made in the context of a contested pension benefit claim. See Lynn v. C S X Transportation, Inc., 84 F.3d 970, 975-76 (7th Cir. 1996). Ault's claim for an u n d e rp a ym e n t of his lump sum benefits was only a "contested claim" at the time he s ig n e d a settlement agreement if "the claimant knew of the claim at the time [the] d is p u te was settled." Id. at 975. However, the Plans do not present evidence to s u g g e s t that the calculation of Ault's lump sum distribution was "one of the issues o n the bargaining table" when he signed the release in question. Therefore, he did n o t waive his right to claim forfeited benefits. See id. at 976. Further, the settlement a g re e m e n t and release was executed between Ault and JohnsonDiversey, Inc., and

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n o t between Ault and the JDI Plan. re p re s e n ta tive in this suit. C.

The court will include Ault as a named

In c lu s io n of Beneficiaries within the Class Definitions

F in a lly , the Plans object to the inclusion of "beneficiaries" within the proposed c la s s e s and subclasses. The Plans argue that including beneficiaries within the c la s s definitions is unwarranted because class members' beneficiaries will receive a n y damages awarded in this case through the plan participant's estate. The Plans p o in t out that the plaintiffs proposed similar classes including beneficiaries in R u p p e rt and Judge Crabb narrowed the classes to exclude the beneficiary language. 2 5 5 F.R.D. at 637. This court will also eliminate the reference to beneficiaries. The in c lu s io n of beneficiaries within the proposed lump sum subclass definitions is u n n e c e s s a ry and the plaintiffs make no argument suggesting otherwise. A c c o r d in g ly , I T IS ORDERED that the plaintiffs' amended motion to certify and appoint c o u n s e l (Docket #144) be and the same is hereby GRANTED. The following plaintiff c la s s e s and subclasses be and the same are hereby CERTIFIED:

T h e SCJ Class A ll persons for whom the Retirement Plan for Employees of S.C. J o h n s o n & Sons, Inc., has ever maintained a notional account, who b e c a m e vested in their Plan benefit, but who did not also participate in th e Retirement Plan for Employees of JohnsonDiversey, Inc.; and the e s ta te s of such persons and alternate payees under a Qualified D o m e s tic Relations Order.

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T h e JDI Class A ll persons for whom the JDI Plan maintained a notional account prior to January 1, 2004, and who became vested in their Plan benefit; and th e estates of such persons and alternate payees under a Qualified D o m e s tic Relations Order. S C J Lump Sum Subclass A A ll persons for whom the Retirement Plan for Employees of S.C. J o h n s o n & Sons, Inc., has ever maintained a notional account, who b e c a m e vested in their Plan benefit, but who did not also participate in th e Retirement Plan for Employees of JohnsonDiversey, Inc., who re c e iv e d a lump sum distribution equal to the amount of their notional a c c o u n t balance or the present value of their grandfathered benefit b e tw e e n November 27, 2001, and August 17, 2006; and the estates of s u c h persons and alternate payees under a Qualified Domestic R e la tio n s Order. S C J Lump Sum Subclass B A ll persons for whom the Retirement Plan for Employees of S.C. J o h n s o n & Sons, Inc., has ever maintained a notional account, who b e c a m e vested in their Plan benefit, but who did not also participate in th e Retirement Plan for Employees of JohnsonDiversey, Inc., who re c e iv e d a lump sum distribution equal to the amount of their notional a c c o u n t balance or the present value of their grandfathered benefit b e tw e e n January 1, 1998, and November 27, 2001; and the estates of s u c h persons and alternate payees under a Qualified Domestic R e la tio n s Order. J D I Lump Sum Subclass A A ll persons for whom the Retirement Plan for Employees of J o h n s o n D iv e rs e y, Inc., has maintained a notional account, who b e c a m e vested in their Plan benefit, and who received a lump sum d is trib u tio n equal to the amount of their notional account balance or the p re s e n t value of their grandfathered benefit between March 13, 2002, a n d August 17, 2006; and the estates of such persons and alternate p a y e e s under a Qualified Domestic Relations Order.

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J D I Lump Sum Subclass B A ll persons for whom the Retirement Plan for Employees of J o h n s o n D iv e rs e y, Inc., has maintained a notional account, who b e c a m e vested in their Plan benefit, and who received a lump sum d is trib u tio n equal to the amount of their notional account balance or the p re s e n t value of their grandfathered benefit between January 1, 1998, a n d March 13, 2002; and the estates of such persons and alternate p a y e e s under a Qualified Domestic Relations Order. IT IS FURTHER ORDERED that the following plaintiffs shall serve as named c la s s representatives: SCJ Class: M ic h a e l J. Thompson, David A. Troestler, James Patrick Johnson, J a m e s D. Barberis and David Gray JDI Class: David Thompson, Robert K. Ault, Terry Conlon, Anthony J. DeCubellis, R o g e r C. DeMontravel and Michael S. W a k e fie ld S C J Lump Sum Subclass A: M ic h a e l J. Thompson, David A. Troestler and James Patrick Johnson S C J Lump Sum Subclass B: James D. Barberis J D I Lump Sum Subclass A: David Thompson, Robert K. Ault, Terry Conlon and Anthony J. D e C u b e llis J D I Lump Sum Subclass B: Roger C. Montravel IT IS FURTHER ORDERED that Eli Gottesdiener, Esq., of Gottesdiener Law F irm , PLLC, is APPOINTED as class counsel for all classes and subclasses p u rs u a n t to Federal Rule of Civil Procedure 23(g);

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IT IS FURTHER ORDERED that the plaintiffs' motion to certify class (Docket # 1 1 8 ) be and the same is hereby DENIED as moot. D a te d at Milwaukee, W is c o n s in , this 25th day of February, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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