MEMORANDUM OPINION AND ORDER
Plaintiffs Dan Neil and Eric Bailey, former employees of the Tribune Company, have brought this action under the Employee Retirement Income Security Act (“ERISA”). Neil and Bailey charge Defendants Great-Banc, Sam Zell, and EGI-TRB L.L.C., with breaches of fiduciary duty stemming from the leveraged buyout of the Tribune Company by the Employee Stock Ownership Plan (“ESOP”) of which Plaintiffs were participants. Plaintiffs now move for certification of a class of ESOP participants. Defendants Zell and EGI-TRB have taken no position on the propriety of class certification, but Defendant GreatBanc objects, and all three Defendants challenge the adequacy of Neil and Bailey as class representatives. For the reasons explained herein, Plaintiffs’ motion to certify the class is granted and Plaintiffs’ counsel are appointed class counsel.
BACKGROUND
Plaintiffs’ claims arise out of a leveraged buyout that transformed the Tribune Company from a publicly-held corporation into an employee-owned company through the creation of an Employee Stock Ownership Plan (“ESOP”) and the ESOP’s purchase of the Tribune Company. The Tribune Company declared bankruptcy months after going private, and Plaintiffs allege that the stock held by ESOP participants is worthless.
As detailed in several opinions, Plaintiffs allege a number of claims against GreatBanc pursuant to ERISA § 409, 29 U.S.C. § 1109; ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2); and ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). (Third Am. Compl. ¶¶ 170, 171, 172, 186, 187, 188.) Section 502(a)(2) is the enforcement provision allowing a plan participant to bring a civil action against a fiduciary “to make good to such plan any losses to the plan resulting from ... [a] breach” as specified in Section 409. ERISA § 409, 29 U.S.C. § 1109; ERISA § 502(a)(2), 29 U.S.C. § 1132(a)(2). Section 502(a)(3) provides for equitable relief “to redress [ERISA] violations” or “to enjoin any act or practice” which violates ERISA. ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3).
In November 2010, the court granted summary judgment in favor of Plaintiffs on their claim that GreatBanc breached its fiduciary duty in approving the ESOP’s purchase of $250 million worth of Tribune Company stock because that stock did not meet the Tax Code’s definition of “qualifying employer security” as required by ERISA. See ERISA § 406(a)(1)(E), 29 U.S.C. § 1106(a)(1)(E); Neil v. Zell, No. 08 C 6833,
Plaintiffs now ask the court to certify a class of “[a]ll individuals who are, or at any time on or after the 2007 Leveraged ESOP Transaction, were (1) participants in the Tribune ESOP who received or were entitled to receive an allocation to their ESOP Stock Account and/or ESOP Cash Account; or (2) beneficiaries of such participants.” (Mot. for Class Cert. [259] ¶ 1.) The class would exclude “Defendants and their affiliates; the officers and directors of any Defendant or of any entity in which a Defendant has a controlling interest; and legal representatives, successors, and assigns of any such excluded persons.” (Id. ¶2.) Defendant GreatBanc argues that the class should not be certified mainly because Neil and Bailey “are unsuitable class representatives.” (GreatBanc Resp. at 2.) Specifically, GreatBanc argues that Neil and Bailey are driven by “personal animosity” toward Zell and “personal views” that the ESOP transaction “pose[s] a threat to the free press in America.” (Id. at 2-3.) Further, GreatBanc argues that Neil and Bailey have economic interests adverse to those of the proposed class. (Id.) Though Zell and EGI-TRB do not take a “formal stance” on class certification, they do argue that Neil and Bailey “are abusing ERISA to pursue claims improperly against Zell/EGI-TRB for personal reasons that potentially conflict with and could impair the faithful performance of their duties as class representatives.” (Zell Resp. [312] at 1-2.)
DISCUSSION
Federal Rule of Civil Procedure 23 sets out the criteria for certification of a class action. First, the class must satisfy all four criteria of Rule 23(a): “numerosity, common questions of law or fact, typicality of claims or defenses, and adequacy of representation.” Spano v. The Boeing Co.,
I. 23(a)
A. Numerosity
Plaintiffs estimate, based on plan documents, that the class contains 11,000 participants. (Class Br. at 8.) “Although there is no ‘bright line’ test for numerosity, a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co.,
B. Commonality
The commonality requirement may be satisfied by “a common nucleus of operative fact.” Keele v. Wexler,
C. Typicality
The typicality requirement “is meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large.” Oshana v. Coco-Cola Co.,
GreatBanc does raise one valid objection that implicates typicality concerns, which is that nearly 4,000 ESOP participants signed separation agreements or releases that might bar their claims. (GreatBanc Resp. at 24 n. 14.) The Seventh Circuit found a similar release did bar claims for breach of fiduciary duty. See Howell v. Motorola, Inc.,
Defendant GreatBanc does generally argue that “Plaintiffs’ claims are not typical” but does not appear to offer any specific objections on the basis of typicality other than the release issue. (GreatBanc Resp. at 18.) Instead, its other objections in this area appear mainly focused on adequacy of representa
D. Adequacy
Defendant GreatBane objects most strenuously to certification of the class on the ground that, GreatBane contends, Neil and Bailey will not adequately represent the class. Though Zell and EGI-TRB do not take a position on certification, they join GreatBane in arguing that Neil and Bailey should not be class representatives. Defendants’ arguments regarding adequacy will be considered below.
I. Plaintiffs’ Personal Animosity Toward Zell Renders Them Unsuitable
Defendant argues that the named Plaintiffs in this case, Neil and Bailey, are consumed by their “personal concerns and motivations” at the potential expense of the class claims. Neil and Bailey voiced those personal concerns in their depositions, Defendant claims, including their “animosity toward Zell,” their desire to “make a statement about the alleged diminished stature of the Los Angeles Times,” and their objections to “layoffs and corporate structure changes” imposed by Zell and the Tribune. (GreatBanc Resp. at 9-11, 18-21.)
Defendant is correct that a proposed representative may be inadequate when motivated by personal animus. “The trial court may properly consider the plaintiffs vindictiveness toward the defendant in determining whether the plaintiff is an adequate representative.” Smith v. Ayres,
In another case, proposed representatives Bernard Paul Parrish and Herbert Anthony Adderley brought breach of fiduciary duty and breach of contract claims against the National Football League Players Association in connection with “group licensing agreements” the Association arranged for retired players to license use of their names, images, and likenesses. Parrish v. National Football League Players Assoc., No. C 07-00943 WHA,
In yet another situation cited by Defendant, a court found that the proposed class representative for a securities derivative suit alleging underpayment in a tender offer had longstanding and inexplicable “spite” toward one of the defendants. “[P]laintiff had a ‘gut feeling’ that the tender offer was inadequate. He believed Sassower, a director, was ‘not the type of individual who would protect the interests of the shareholders.’ ... [P]laintiff formed an adverse judgment of Sassower’s character ‘[b]y looking at him,’ apparently, by ‘a sighting of him’ at a bar mitzvah.” Norman v. Arcs Equities Corp.,
GreatBane contends Neil and Bailey’s circumstances are troublesome for three reasons reflected in Neil and Bailey’s deposition testimony. First, Defendant notes that both worked as journalists for the Los Angeles Times and are, Defendant believes, more concerned with that paper than with the Tribune Company as a whole. “Neil’s ‘pri
The court acknowledges Neil and Bailey’s apparent regional bias, but is not concerned about it in the context of this case. The court sees no way this action could be prosecuted solely for the benefit of Los Angeles-based ESOP participants without benefitting all Tribune Company ESOP participants, and Defendants do not suggest any way that these concerns could realistically affect this action. To the extent that Defendants have concerns that this action is being prosecuted to make a larger point about print journalism, the court sees no evidence such an agenda has in any way affected these proceedings, and Defendants offer none.
The question of personal animus toward Zell is a closer one. For example, in a February 2010 e-mail to the 550-person Los Angeles Times editorial staff upon his departure, Neil discussed “the jackasses in Chicago who own us____To them I say, with as much gusto as I can muster in an e-mail, f__ y[ou].” (GreatBane Resp. at 10.) This unprompted message does suggest animus on the part of Neil, but the court notes it came in the context of Zell’s own very public use of profanity. In particular, Zell said “f_you” to an Orlando Sentinel photographer in an incident captured on video and widely publicized. Jason Garcia, Zell Profanity Stirs Controversy, Orlando Sentinel (Feb. 5, 2008).
The court concludes that Defendants have not established the type of animus or vindictiveness that would render Neil and Bailey inadequate class representatives. The court notes that Neil and Bailey had distinguished careers as professional journalists.
Two additional factors appear to mitigate any concerns that plaintiffs are improperly motivated by animus against Zell. First, in an earlier decision, the court concluded that Zell
ii. Bailey’s Position with the Consumer Attorneys of California
Plaintiff Bailey is currently employed as communication director for the Consumer Attorneys of California, which represents plaintiffs attorneys. GreatBane urges that this position renders Bailey unfit to serve as class representative. The nature of Defendant’s specific objection to Bailey’s association with the organization is not explained, but Defendant does suggest that Bailey lacks knowledge about the specifics of the lawsuit, and attributes this lack of knowledge to Bailey’s role with the CAOC. “Perhaps not surprisingly given Bailey’s role in this case as an apparent mouthpiece for the CAOC, Bailey has little knowledge of, or interest in, staying on top of this litigation.” (GreatBane Resp. at 20 n. 11.)
A class representative need not possess detailed knowledge of the lawsuit. The Seventh Circuit noted that in one “extreme case,” class certification was allowed by the Supreme Court where “the named plaintiff did not understand her complaint at all, could not explain the statements in it, had little knowledge of what the lawsuit was about, did not know the defendants by name, nor even the nature of the misconduct of the defendants.” Eggleston v. Chicago Journeymen Plumbers’ Local No. 130,
iii. Neil and Bailey’s Economic Interests Conflict With Those of the Class
Defendant GreatBane next argues that Neil and Bailey have economic interests that are at odds with those of the rest of the class. GreatBane asserts that because Tribune employees received $34 per share in the creation of the ESOP, they benefitted to the tune of $452 million. (GreatBane Resp. at 3.) “[Bjecause the class benefited so greatly through a transaction that Neil and Bailey seek to have declared unlawful and equitably ‘remedied,’ the economic interests of the class could not be more diametrically op
Plaintiffs respond that they “seek to recoup losses to the Tribune ESOP; they have not asked the court to order rescission of the Transaction.” (Reply at 16.) Further, Plaintiffs argue that while some shareholders “may have benefitted from their status as ordinary shareholders of Tribune ... these same people were harmed by the ESOP’s overpayment for the stock held by the ESOP.” (Id.) Plaintiffs point out that the remedy they seek would result in a recovery for the ESOP, which would then be distributed to ESOP participants. “Such a recovery will in no way harm those ESOP participants who also happen to have received consideration for Tribune shares tendered at some point in the Transaction. They will not have to give back the money they received in exchange for their shares.” (Id. at 17.)
Defendant points to a number of cases in which class representatives were found inadequate due to conflicting economic interests with the class they sought to represent. For example, one court found a representative inadequate when he wanted rescission of a merger, while 80 percent of his fellow minority shareholders had already tendered their shares in support of the merger. Issen v. GSC Enterprises, Inc.,
Defendant also points to a case in which the Eleventh Circuit reversed and remanded a certification order for a class of all those who had purchased the drug Hytrin (terazo-sin hydrochloride) during a 17-month period directly from Abbott Laboratories (many of those who purchased directly were drug wholesalers). The court did so because it was unsure whether the district court properly “evaluate[d] whether the ‘adequacy of representation’ requirement could be satisfied by the named representatives despite the fact that the most significant members of the certified class arguably experienced [increased profits] from the conduct alleged to be illegal by the named representatives.” Valley Drug Co. v. Geneva Pharm., Inc.,
Relevant case law suggests that the conflicting economic interest necessary to render a representative inadequate must be of the type that, if that plaintiff succeeds, would result in identifiable harm to some member of the class. The Seventh Circuit upheld the district court’s decision not to certify a class, for example, brought on behalf of an estimated 300,000 “residents of northern Illinois adversely affected by noise” associated with an O’Hare Airport expansion. Bieneman v. City of Chicago,
A recent ease in this district examined Bieneman, evaluating this same conflict-of-interest argument. In re Evanston Northwestern Healthcare Corp. Antitrust Litig.,
At the time the ESOP was established, some class members who had been Tribune shareholders may indeed have received a premium over the market price for their shares. In the court’s view, that premium does not create a conflict fatal to class certification. There are no members of the proposed class who would, for any reason, prefer that Defendants not pay damages. Nor is there any basis to fear that any shareholders would be required to pay back the money they were given in exchange for their Tribune Company stock. As Plaintiffs point out, the Tribune’s creditors “seeking to pursue fraudulent conveyance claims in the Delaware Bankruptcy Court have stated they only seek to recoup money from the largest former Tribune shareholders — such as Zell— and not from Tribune employees who had small investments in Tribune stock in their 401(k) or Stock Purchase Plan accounts.” (Reply at 17.) Furthermore, even if those creditors did seek to recoup money from those shareholders, that action is entirely separate from this one, and any recovery gained as a result of this action would only serve to help those shareholders meet their obligations to Tribune creditors.
Defendant GreatBanc makes one additional argument about conflicting economic interests; that it is in the named Plaintiffs’ interests to halt any additional grants of shares to existing employees. Any such distributions would dilute the shares of persons who, like Neil and Bailey, have left the company and will not receive additional shares. (Great-Banc Resp. at 24-25.) Plaintiffs have not asked the court to halt additional share distributions, however. More importantly, Gre-atBanc itself acknowledges in its memorandum that “there will be no further payments from Tribune,” (GreatBanc Resp. at 7), and Defendant admits that the shares will be worthless when the Tribune Company emerges from bankruptcy. See, Neil v. Zell,
II. 23(b)
Plaintiffs contend that this class may be certified pursuant to Rule 23(b)(1), (b)(2), or (b)(3), but urge that (b)(1) or (b)(2) would be most appropriate. The practical difference between the subsections is that 23(b)(1) and 23(b)(2) do not require absent class members be given notice and an opportunity to opt-out of the class action, while 23(b)(3) does. “A court should endeavor to select the most appropriate subsection, not just the first linguistically applicable one in the list. When substantial damages have been sought, the most appropriate approach is that of Rule 23(b)(3), because it allows notice and an opportunity to opt out.” Jefferson v. Ingersoll Int’l Inc.,
A. 23(b)(1)
Certification under Rule 23(b)(1) is appropriate if
prosecuting separate actions ... would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual
class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests____
Fed. R. Civ. P. 23(b)(1)(A), (B).
ERISA class actions are commonly certified under either or both subsections of 23(b)(1) because recovery for a breach of the fiduciary duty owed to an ERISA plan, as is the predominant claim here, will inure to the plan as a whole, and because defendant-fiduciaries are entitled to consistent rulings regarding operation of the plan. Essentially, in an ERISA action in which relief is being sought on behalf of the plan as a whole (as it is here), a plaintiffs victory would necessarily settle the issue for all other prospective plaintiffs. “Courts have held that, in light of the derivative nature of Section 1132(a)(2) claims, breach of fiduciary duty claims brought under this statutory provision are ‘paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) class.’” George v. Kraft Foods Global, Inc.,
Plaintiff argues that certification pursuant to 23(b)(1)(A) is appropriate because absent class certification, “the claims against Defendants alleging the same breaches of fiduciary duty arising from their conduct related to the ESOP would result in contradictory directions to the ESOP’s fiduciaries ... mak[ing] it practically impossible for Defendants to comply, because they would be operating under conflicting orders.” (Class Br. at 15.) Defendant does not address this argument — instead arguing that because Bailey and Neil have interests that are “inimical to those of the rest of the class,” certification under this rule is not appropriate. “[T]he conflict among the class is so stark, and such conflicts should override any concern of ‘inconsistent or varying adjudications.’ ” (Gre-atBanc Resp. at 26.) Though the bulk of Plaintiffs’ pending claims do not seek the type of equitable relief that would require GreatBanc, Zell, or EGI-TRB to take or not take specific actions, such claims (e.g. barring Zell as a fiduciary) remain part of the case and render certification pursuant to 23(b)(1)(A) appropriate. GreatBanc’s argument that the risk of inconsistent directions to those fiduciaries is outweighed by conflicts among the class members is unavailing; 23(b) factors are not meant to be weighed against 23(a) factors, such as the typicality of the class, which appears to be GreatBanc’s concern. The court has already determined that any conflict among the class members is not of the type that should defeat certification.
Plaintiffs contend that certification under 23(b)(1)(B) is appropriate as well, because the claims at issue here — breach of fiduciary duty and engaging in a prohibited transaction — must be brought in a representative capacity on behalf of the entire plan. (Class Br. at 15.) “Therefore, a decision in this ease will affect not only the named Plaintiffs in this case, but all participants and beneficiaries of the ESOP.” (Id.) GreatBanc again responds by making an argument that has already been addressed by this court — that because many ESOP participants benefited from the stock purchase that took place as part of the ESOP’s formation, there is no “shared interest” that would support certification under Rule 23(b)(1)(B). (GreatBanc Resp. at 26.) For reasons previously explained, the court concludes that Plaintiffs’ claims are typical of those of other class members and indeed are paradigmatic ERISA claims suitable for certification pursuant to 23(b)(1)(B) because a victory on these claims by one plan member would necessarily be a victory for all plan members. The court finds that Plaintiffs have satisfied 23(b)(1)(B).
B. 23(b)(2)
Certification under Rule 23(b)(2) is appropriate if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Defendant argues that it is appropriate to certify a class under this provision only if the monetary damages being sought are “incidental to the equitable remedy.” (GreatBanc Resp. at 26 (quoting Ingersoll Int’l,
In In re Allstate Ins. Co.,
On several occasions, courts in this district have certified ERISA class actions pursuant to both 23(b)(1) and 23(b)(2). See, e.g., McDaniel v. North American Indem., N.V.,
C. 23(b)(3)
Defendant’s challenge to certification under Rule 23(b)(3) again echoes an argument that court has already addressed. Specifically, Defendant contends a 23(b)(3) class would be “prohibitively problematic ... because the Court would have to delve into individualized inquiries as to whether individual class members would be willing to jeopardize their substantial payouts from the ESOP Transaction.” (GreatBanc Resp. at 27.) Again, this argument anticipates problems that would arise from a rescission remedy when none has been requested, and is unsupported by authority in this situation.
The Seventh Circuit has suggested that 23(b)(3) certification might be appropriate for an ERISA class action, but in circumstances different from those presented here. Former employees brought a class action against Allstate, alleging that they were constructively terminated in violation of ERISA in order to prevent them from obtaining severance benefits. In re Allstate,
Apart from the release issue, no individualized determinations will need to be made in this case. The court concludes certification under Rule 23(b)(1) or 23(b)(2) is appropriate and therefore declines to certify this class pursuant to 23(b)(3).
III. Appointment of Class Counsel
Plaintiffs also ask that their current attorneys be appointed class counsel. (Class Br. at 18-19.) Three firms currently represent Plaintiffs: Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; Meites, Mulder, Mollica, & Glink; and Cotchett, Pitre & McCarthy. (Deck of Daniel Feinberg in Supp. of Pis.’ Mot. for Class Cert. [263] [hereinafter “Feinberg Declaration”] at 1.) Rule 23(g) requires the court to consider four factors in appointing class counsel: the work counsel has done fleshing out the class claims; counsel’s experience in class actions,
Neither Defendant responds to Plaintiffs’ request that their counsel be appointed class counsel. (GreatBanc Resp. [311]; Zell Resp. [312].) The court has on its own reviewed counsel’s declarations addressing the Rule 23(g) criteria, and finds them satisfactory. In his declaration, Feinberg of Lewis, Fein-berg, Lee, Renaker & Jackson, P.C., details the work his firm has done to investigate Plaintiffs’ claims, (Feinberg Decl. ¶3), lists ERISA class actions and other cases in which he and his firm have participated, {id. ¶ 5, 6, 7), explains his education and ERISA-related publications, {id. ¶¶ 8-11), as well as the qualifications of co-counsel at his firm, {id. ¶¶ 12-14), and notes that counsel has “already incurred considerable expense in litigating the case ... [and has] the means to pay for whatever additional expenses are necessary.” {Id. ¶ 4.) Michael Mulder, a partner with Meites, Mulder, Mollica, and Glink, also submitted a declaration explaining that his firm has been involved in this litigation since December 2008, and that he and his firm have litigated numerous class actions and several ERISA eases. (Decl. of Michael M. Mulder in Supp. of Mot. for Appt. as Class Counsel [266] ¶¶4-7.) Finally, Philip Gregory, a partner with the law firm Cotch-ett, Pitre & McCarthy, has similarly filed a declaration. (Decl. of Philip L. Gregory in Supp. of Mot. to Appoint Class Counsel [267].) Gregory outlines the experience he and his firm have in complex litigation, {id. ¶¶ 3-15), affirms that “[o]ur Firm is willing, able and committed to the successful prosecution of this action” and that it has the necessary resources to do so, {id. ¶¶ 16, 18, 19), and summarizes the research his firm has undertaken in prosecuting this case. {Id. ¶¶ 20-21.)
The court is satisfied by these declarations, the work undertaken by counsel in this case thus far, and the lack of any objection to appointment of class counsel by Defendants that Plaintiffs’ current counsel satisfy Rule 23(g) and should be appointed class counsel.
CONCLUSION
For the aforementioned reasons, Plaintiffs motion to certify the class [259] is granted, and Plaintiffs’ attorneys will be named class counsel. The court hereby certifies a class composed of all individuals who are or, at any time on or after the 2007 Leveraged ESOP Transaction, were (1) participants in the Tribune ESOP who received or were entitled to an allocation to their ESOP Stock Account and/or ESOP Cash Account; or (2) beneficiaries of such participants. Excluded from the class definition are Defendants and their affiliates; the officers and directors of any Defendant or of any entity in which Defendant has a controlling interest; and legal representatives, successors, and assigns of any such excluded persons.
Notes
. Neil does not tie this incident directly to the email in his deposition testimony (he was not asked what prompted his use of the expletive). He does, however, discuss this incident in his deposition, in response to a question about public statements that have damaged the Tribune Company's reputation:
There's one incident in particular that stands out that's relevant. Mr. Zell visited a newspaper in Florida, I think it was the Orlando Sentinel, and he was being questioned about these issues.... A photographer asked Mr. Zell a pointed question, to which Mr. Zell responded, fuck you. This was not the type of conduct that I would hope of a person in charge of one of the largest media companies in America.
(Feinberg Decl. in Supp. of Reply Br., Ex. 2 ("Neil Deposition”) at 92.)
. Neil won a Pulitzer Prize for Criticism, and the Pulitzer board noted that his "one-of-a-kind reviews of automobiles ... blend[ ] technical expertise with offbeat humor and astute cultural criticism.” (Decl. of Dan Neil in Supp. of Mot. for Class Cert. ¶ 3.)