238 F.R.D. 446 | W.D. Tex. | 2006
Class Certification Adjudication and Order
Plaintiffs in this action are: Frank Stof-fels, a retiree of SBC Pacific Telesis, a subsidiary of Defendant SBC Communications, Inc. (“SBC”); Linda Villafane, a retiree of Ameritech, also a subsidiary of SBC; James Belcher, a retiree of Illinois Bell, now an SBC Company; Bumic Joe Dunn, a retiree of Southwestern Bell, a subsidiary of SBC; and Jack Guiliani, a retiree of Pacific Telesis, now a subsidiary of SBC.
Before the Court is Plaintiffs’ Motion to Certify a Class, pursuant to Rule 23 of the Federal Rules of Civil Procedure, Therein, Plaintiffs request that the Court certify two “issues” Classes in this action, and therefore proffers two definitions.
1. Retirees of an SBC Company (including, but not limited to Ameritech, Pacific Telesis, and Southern New England Telephone and any predecessor) who were receiving a Telephone Concession after they retired, anytime from January 1, 2002 to the present and who lived outside the SBC Service Area; or
2. Current or former employees of any SBC Participating Company with more than five years of service with an SBC Participating Company as of June 1, 2005, who were eligible or might become eligible to receive an Out-of Service Telephone Concession after they retired; or
3. Members of the immediate family of any person in Group 1 or Group 2, including surviving spouses and the retiree dependents (and including Registered Domestic Partners of Pacific Tel-esis employees and retirees) during the time that SBC had a policy to provide employees of such SBC Participating Companies with a Telephone Concession after retirement;
regarding the claims asserted by Plaintiffs, on behalf of the “Plan”, against Defendant SBC.
On June 23, 2006, a hearing was held on the plaintiffs’ motion for class certification. Having heard oral argument and considered the moving and opposing papers, this Court finds that both of Plaintiffs’ proposed classes are sufficiently defined, that both classes meet the requirements of Rule 23(a),
Fed. Rule Civ. Pro. 23
Under Federal Rule of Civil Procedure 23(e)(1)(A) and (B), the Court must “determine by order whether to certify the action as a class action” and, if it determines that it should do so, “define the class and the class claims, issues or defenses” in the order certifying the class.
Rule 23(a) lists four prerequisites that must be met before a class action can be maintained. Those are numerosity, common questions of law or fact, typicality of the claims of the representative plaintiffs, and adequacy of representation by the named plaintiffs.
In addition, each class action must meet one of the conditions in Rule 23(b). The Court notes its responsibility to endeavor to select the most appropriate subsection under 23(b) through rigorous analyses, and not
Class Definition
As noted above, Plaintiffs propose two separate classes for certification, seeking to certify each according to a specific issue in this litigation, pursuant to Rule 23(c)(4)(A).
Defendants challenge the Plaintiffs’ proposed class definition on three fronts. First, they argue that the Plaintiffs’ proposed class members are not presently ascertainable by reference to objective criteria.
Defendants’ attack on the Plaintiffs’ putative class definition drives straight to the merits. This is not unusual, as class determinations generally involve considerations that are “enmeshed in the factual and legal issues comprising the plaintiffs cause of action.”
Simply put, Plaintiffs’ proposed definitions encompass current employees and former employees eligible to receive the alleged “Telephone Concession,” which Plaintiffs intend to establish as a “defined retirement” benefit plan, pursuant to ERISA, 29 U.S.C. § 1002(35), and those retirees already in receipt of the averred Plan’s benefits from 2002 to present.
Of course, as Defendant points out, this implicates a determination of whether a plan, upon which eligibility may be premised, actually exists. If the allegation that the Plan is a “defined retirement” benefit plan under ERISA is legally insufficient, then objective “eligibility” under this plan would indeed be a useless measure. That is not the case here. In its prior Order Denying Defendant’s Motion to Dismiss, this Court held that the “Telephone Concession,” as set forth in Plaintiffs’ Amended Complaint, did state a legally sufficient claim, alleging an ERISA “pension plan” as defined in 29 U.S.C. § 1002(2).
Further, at the certification hearing and in supporting memoranda, the Plaintiffs convincingly argued that employees
Rule 23(a) Requirements
Numerosity
The central considerations in determining whether plaintiff classes meet the Rule 23(a) numerosity requirement are the size of the class and whether joinder might be a practical and manageable alternative to class action litigation. Practicability of joinder depends on size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined and their geographic dispersion.
At the hearing, and in supporting memorandum, the Plaintiffs reasonably estimated that the proposed class consists of more than 40,000 members-individual retirees who are entitled to receive the alleged “out-of-service-area” telephone concession benefit (hereinafter “the benefit”), “out-of-service-area” active employees who are likely to become eligible to receive the benefit upon retirement, and spouses who are entitled to, or will become entitled to the benefit.
Defendants’ major objection to Plaintiffs’ claim of numerosity is that it is presently impossible to identify all of the individuals potentially included in the proposed class, since, for example, whether a prospective retiree will move into an “out-of-service” area in the future is undetermined.
Commonality
The undemanding commonality test of Rule 23(a) is met, when there is “at least one issue whose resolution will affect all or a significant number of the putative class.”
Here, shared issues of law and fact satisfy the commonality requirement. The initial, and overwhelming issue in this case is whether the Retiree Telephone Concession Benefit constitutes a “defined benefit plan”, within the meaning of ERISA, § 3(35), 29 U.S.C. § 1002(35).
Defendant contends that even after the question of whether a “defined benefit plan” exists under ERISA is resolved by the Court, this will do little to advance the
Typicality
The typicality test is similarly undemanding, and is met “if the class representatives’ claims are typical of, but not necessarily identical to, those of the class; class representatives should have the same interests and have suffered the same injuries as others in the putative class, and the representatives’ and class members’ claims need only share the same essential characteristics, i.e., arise from a similar course of conduct and share the same legal theories.”
The Court finds that the claims of the class representatives are typical of the entire class, as to both Class I and Class II. The same legal theory-that the “Telephone Concession” is an ERISA defined benefit plan-underlies every claim brought in this action. The representative members, and every absentee class member encompassed by the class definition, are all allegedly eligible to receive the “Telephone Concession” benefits. Additionally, the remedial theories pursued are similar, when not identical. The equitable relief sought by the representative members is identical to those of the class: Plaintiffs seek declaratory judgment that the “Telephone Concession” is a “defined retirement plan” under ERISA § 1002(35), and injunctive relief reforming the averred “Telephone Concession” Plan to comply with ERISA.
The benefits claims, although not identical, are sufficiently similar to satisfy typicality. Plaintiffs request an Order requiring the alleged Telephone Concession Plan to pay benefits, consistent with the Plan, as reformed by injunctive order of this Court. Defendant attacks the similarity of the representative and absentee members’ benefit claims, urging the Court to find atypicality because of the great variation in telephone concessions (i.e. benefits) received by proposed class members.
Accordingly, the representative members will provide the Court with a sufficient factual context in which to fairly adjudicate the interests of all members of the putative class, regarding legal issues involved in this action. Accordingly, the typicality requirement of 23(a) is satisfied.
Adequacy of Representation
The final prerequisite under Rule 23(a) is a finding that “the representative parties will fairly and adequately protect the interests of the class.”
The Court finds that, in this case, the named plaintiffs’ interests and the other class members’ interests are aligned. First, the common interests shared by the class representatives and class members are demonstrated in the satisfaction of the commonality and typicality tests, as discussed above. Although Defendant contends that these interests are possibly antagonistic for several reasons, none of the potential conflicts present antagonism within the class sufficient to defeat adequacy.
In addition, Defendant argues that the representative plaintiffs have “completely ceded control of this litigation to their attorneys” and have little understanding or participation in this lawsuit.
In sum, class representatives must have sufficient knowledge and be able to take an active role in, and control litigation, on their own accord, yet they are entitled to rely on, and be guided, by counsel. It is between these two positions that the adequacy of the class representatives’ knowledge and understanding must be considered. As previously stated, Defendant asserts that the class representatives’ knowledge is detrimentally inadequate. To the contrary, Plaintiffs’ counsel has provided documents from each class representative, setting forth their signed agreement to act as class representative, and signed statements acknowledging their duties as class representatives.
The class representatives’ deposition statements do not demonstrate a complete legal mastery of the many complex claims and potential variations in class member benefits presented here. However, it cannot be said that the representatives are inadequate parties to represent this class in its pursuit to establish that the “Telephone Concession” is a unitary, defined benefit plan under ERISA. It would be unreasonable to require class representatives to know the specific, variant terms in the potential benefits of every absentee class member in this action. Such a demanding standard need not be met to adequately represent the absentee class members’ interests. The representative class members are entitled to work with, and rely upon, their counsel in pursuing their claims and navigating the complicated legal and factual issues associated with ERISA law.
Therefore, after reviewing these depositions, the Court is satisfied that the class representatives in this action have sufficient personal knowledge and understanding of the case.
The Court also finds that the named plaintiffs’ counsel is qualified to vigorously pursue the interests of the class. Class counsel has presented evidence that they are knowledgeable and experienced in class action litigation, and has supplied the Court with declarations specifically regarding extensive experience with ERISA class actions, and Defendant does not challenge the adequacy of class counsel.69 For this, and the aforementioned reasons, the Court finds that the representative parties will fairly and adequately protect the interests of the class.
Rule 23(b) Requirements
Plaintiffs request “divided certification” — that is, to certify the declaratory or injunctive aspects of the suit under Rule 23(b)(1) and/or 23(b)(2) and the damages aspects under Rule 23(b)(3).
The Court is satisfied that certifying the class in this manner is proper, and will best achieve the ends of this litigation. Certifying the declaratory and injunctive Class I claims under Rule 23(b)(1) and (b)(2) will result in consistent treatment of class members, as well as non-class members, and provide one standard of conduct, upon resolution of this ease, by which Defendant may comply. Perhaps most importantly, it will provide a single answer to the dispute over whether the “Telephone Concession” is an ERISA plan. Should the Court find that the “Telephone Concession” is an ERISA plan, certifying the benefit claims (Class II) under Rule 23(b)(3) will provide each individual eligible for benefits under that plan notice, and an opportunity to opt out, thereby protecting their interests.
The Court, hereby, finds that divided certification is appropriate here, and certifies the declaratory or injunctive aspects of the suit (“Class I” claims) under Rule 23(b)(1) and 23(b)(2), and the damages aspects (“Class II” claims) under Rule 23(b)(3).
Rule 23(b)(1):
Class certification is appropriate under Rule 23(b)(1) when:
the prosecution of separate actions by or against individual members of the class would create a risk of: (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not party to the adjudications or substantially impair or impede their ability to protect their interests.74
The Court finds that prosecution of separate actions concerning members of this class
For the same reasons stated above, the Court finds that proceeding with separate actions would result in adjudications which, as a practical matter, would be dispositive of the interests of other class members, not a party to this action. This Court’s determination of whether the alleged “Telephone Concession” benefit constitutes a unitary ERISA plan, for which Defendant is responsible, will affect all individuals, class members and non-class members, who satisfy the averred eligibility criteria under the program. Therefore, resolution of this threshold issue with respect to class members will be dispositive of the interests of non-members regarding the benefits due them, according to the outcome of this adjudication.
Rule 23(b)(2):
Class certification is appropriate under 23(b)(2), if the Defendant has “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”
The Court finds that Plaintiffs’ Class I claims, for declaratory and injunctive relief, merit certification under this subsection. First, the contested conduct in this action is that Defendant, as plan sponsor or administrator of an averred “defined benefit” retirement plan, failed to comply with ERISA in its alleged mismanagement of the plan, grounds which are generally applicable to the class. Second, class members jointly seek a declaratory finding that the “Telephone Concession” is an ERISA plan, injunctive relief ordering Defendant to reform the plan in compliance with ERISA, and an order stating that class members are legally entitled to benefits under the plan.
The Court rejects Defendants’ argument that the class should not be certified under this provision, because Plaintiffs’ claims for injunctive and declaratory relief are “simply a mechanism for characterizing a claim for monetary benefits as a declaratory judgment of their ‘rights’ ” and “claims for individually based money damages.. .predominate.”
Rule 23(b)(3)
Certification under Rule 23(b)(3) is appropriate when the Court finds “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication to the controversy.”
(A) the interest of members of the class in individually controlling the prosecution or*458 defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action80 .
1. Predominance
“In order to ‘predominate,’ common issues must constitute a significant part of the individual cases.”
Defendant objects that the “individual evaluation of each concession is required to determine whether each concession constituted an ERISA plan, and if so, at what time each plan came into existence, who was responsible for it, who was eligible for it, and under what circumstances” overwhelms the common issues in this case.
If the Court finds that an ERISA plan exists, the corpus of individualized claims will consist of determinations as to whether each individual meets the requirements to receive benefits under the plan. Determinations of whether given individuals meet the requirements of class membership, and are therefore entitled to benefits, is a commonplace in the class action context. Admittedly, these determinations may be somewhat complex in this case, considering the great potential variation in plan benefits and individual eligibility. However, the determinations will be centered around the terms of the averred plan, as established through the resolution of the Class I claims.
2. Superiority
The final requirement to certify a class under Rule 23(b)(3) is a finding that “class action is superior to other available methods for the fair and efficient adjudication of the controversy.”
Further, the relatively small amount of benefits at issue, per individual, militates strongly in favor of class certification.
The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring solo action prosecuting his or her rights. A class action solves this problem by aggregating relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.86
Defendants contend that the class action is unmanageable because “it is impossible to ascertain the membership of the proposed classes,” as well as the “enormous undertaking” that would be required to calculate benefits for individual class members.
Therefore, the Court finds that proceeding as a class action is superior to adjudication by other available methods. Class certification will promote efficiency and facilitate the protection of the interests of class members; there is no risk of multiple adjudications, nor is there any available information that any similar action is pending; there is no indication that absentee class members would prefer to litigate their benefits on their own accord. No unique jurisdictional, choice of law, or liability issues are raised by Plaintiffs’ claims. The Court notes that notice and the opportunity to opt out of this suit will be provided to all individuals included in this class.
CONCLUSION
Accordingly, for the reasons stated above, the Court finds that the Plaintiffs’ satisfy all four prerequisites of Rule 23(a), and the requirements of Rule 23(b). It is, therefore,
ADJUDGED, that Plaintiffs’ Motion to Certify a Class, pursuant to Rule 23 of the Federal Rules of Civil Procedure, shall be, and is hereby, GRANTED, as stated previously.
It is further
ADJUDGED and ORDERED that this matter will proceed as a class action, for:
Class I, Plan Claims:
1. Retirees of an SBC Company, receiving a Telephone Concession after they retired, anytime from January 1, 2002, to the present and who lived outside the SBC Service Area; and
2. Current or former employees of any SBC Participating Company with more than five years of service with an SBC Participating Company as of June 1, 2005, who were eligible or might become eligible to receive an Out-of Service Telephone Concession after they retired; or
3. Members of the immediate family of any person in Group 1 or Group 2, including surviving spouses and the retires dependents (and including Registered Domestic Partners of Pacific Tel-*460 esis employees and retirees) during the time that SBC had a policy to provide employees of such SBC Participating Companies with a Telephone Concession after retirement; and for
Class II: Benefit Claims
4. All participants and beneficiaries of the Telephone Concession Plan at a any time from January 31, 2003, to October 1, 2005, for the Benefits Claims Pursuant to ERISA § 502(A)(1)(B) against the Plan
It is further ORDERED
that the parties submit to the Court, not later than fifteen calendar days from the entry of this Order, a proposed order to direct to the members of the Class II, benefits class, that is “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort,” pursuant to Fed. R.Civ.P. 23(c).
. Docket No. 54 (Corrected Second Am. Compl.,¶¶ 8-12).
. Id. (Compl. at ¶ 5)
. Variously described as the "Retiree Concession" and the "Employee Discount.” Id. (Compl. at ¶ 1).
. "(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues...” Fed.R.Civ.P. 23(c)(4)(A).
. Docket No. 54 (Compl. at ¶ 62). The language — "on behalf of the 'Plan’ " — employed by Plaintiffs, engenders some confusion. Plaintiff argues that the claims they assert under Class I are not on behalf of each individual, but are "derivative-style" claims, brought in the interest of the "Plan” itself. In support of this characterization, Plaintiffs cite In re Elec. Data Sys. Corp. "ERISA" Litig., 224 F.R.D. 613, 623 (E.D.Tex. 2004). Docket No. 66. In that case, the Plaintiffs were current and former employees of EDS, who are or were participants in the employer’s 401(k) retirement plan, suing EDS for breach of fiduciary duty in its management of the retirement plan.
However, in EDS, the retirement plan was established. Oppositely, in this case, the existence of the averred Plan is the central, disputed issue. The class members share a common interest-the establishment of the Plan. However, they do not litigate this matter derivatively, as it is heavily disputed whether a "Plan”-in the interest of which they may act-exists. Thus, the Court declines to endorse Plaintiff’s characterization of the Class I claims as "derivative-style,” in the interest of the "Plan,” at this juncture. Therefore, the "Plan”, as discussed herein, is entirely provisional, and this language is employed for class certification purposes only.
. Id. The language — "...against the Plan” — reflects the nature of the relief sought through the Class II claims for benefits under ERISA § 502(a)(1)(B). The initial assessment in this case is whether the "Telephone Concession” is an ERISA plan. If it is, the issue of benefits under that plan may be litigated; it is the "Plan”, and/or the Defendant, who would be liable for benefits due.
. "Rule 23(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a).
. ".. .(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition...” one of the requirements of Rule 23(b) is met, Fed.R.Civ.P. 23(b).
. Fed.R.Civ.P. 23(c)(1)(A) and (B).
. Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir.1996) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)).
. Id. (citing General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
. Unger et al. v. Amedisys Inc., et al., 401 F.3d 316, 321 (5th Cir.2005).
. Id.
. Fed.R.Civ.P. 23(a).
. The Class I ("Plan") claims includes all Plan participants and beneficiaries and thus all Class II ("Benefit”) class members. Because of the significant overlap in the membership of the two putative class, both will be considered together for purposes of Rule 23(a), and, as well, the adequacy of the class definitions. However, each will be considered, in turn, to ascertain the
. See Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 898 (7th Cir.1999).
. Fed. Rule Civ. Proc. 23(c)(2).
. Docket No. 41 (Mem. in Supp. of Pis.’ Mot. for Class Cert.); (See Jefferson., 195 F.3d at 898 (explaining that "It is possible to certify the in-junctive aspects of the suit under Rule 23(b)(2) and the damages aspects under Rule 23(b)(3), achieving both consistent treatment of class-wide equitable relief and an opportunity for each affected person to exercise control over the damages aspects”)).
. Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir.2001)
. Fed. R. Civ. P 23(c)(4)(A).
. Docket No. 54 (Compl. at ¶ 62).
. Expressly excluded from both Classes are “SBC’s officers and directors, including officers and directors of any SBC Company (or subsidiary affiliate, predecessor thereof), any persons who acted as a fiduciary of the Plan, participated in the decision to enact the February 2003 Amendment, the April 2004 Amendment, the June 2005 Amendment, or the October 2005 Amendment, or representing SBC in this litigation and any immediate family member, representative, heir, successor, or assign of any such excluded party.” Id.
. Specifically, SBC argues that it is impossible to presently identify all the members of Plaintiffs' proposed Class I, because it is impossible to determine whether an individual might move their residence to an "Out-of-Service” area upon retirement. Docket No. 49 (Def.'s Resp. to Pls.' Mot. for Class Cert., pg. 10-11).
. Id.
. Bell v. Ascendant Solutions, Inc., 422 F.3d 307, 312 (5th Cir.2005), quoting Coopers & Lyb-
. Id. The Court notes that "findings made for resolving a class action certification motion serve the court only in its determination of whether the requirements of Rule 23 have been demonstrated.” Id. (emphasis in original).
. Castaño, at 744.
. Id.
. Docket No. 41
. Docket No. 32 (Order Den. Def.'s Mot. to Dismiss).
. The word "employees” refers to both current and former employees.
. See Docket No. 66 (Pis.’ Reply Mem. in Supp. of Mot. for Class Cert) (e.g., stating that persons described in the proposed class should be identified by Defendant's records, and Defendant has already identified the categories of eligible persons in response to Interrogatories).
. Id. at 6, n. 9. In addition to gleaning the information from the Defendant's own records, the Plaintiff has requested, but not yet received, data from "Accordia National” the alleged "third party administrator” of the averred plan.
. The Court notes that if concerns regarding the class definition should arise in the course of the litigation, the Court may alter or amend this Order before the decision on the merits. Fed. R.Civ.P. 23(c)(1)(D).
. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980).
. Docket No. 70 (Tr. of Class Cert. Hr'g) This estimate applies to both Class I and Class II claims.
. Id.
. Docket No. 49 (Def.’s Resp. to Pis.' Mot. for Class Cert.).
To the contrary, as Plaintiff acts out in their complaint and memoranda supporting class certification, class member individuals purportedly eligible under the averred benefits plan are readily ascertainable. Whether these allegedly eligible individuals will ever, in fact, move into an "out-of-service” area, thereby triggering the provisions of the alleged plan, remains uncertain, but this does not defeat numerosity. See Docket No. 66.
. Phillips v. Joint Legislative Comm, on Performance & Expenditure, 637 F.2d 1014, 1022 (5th Cir.1981)
. Id.
. Forbush v. J. C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir.1993) (quoting Stewart v. Winter, 669 F.2d 328, 335 (5th Cir.1982)).
. Docket No. 66.
. Docket No. 54. The Court notes that this list is not necessarily exhaustive of common issues of law and fact.
. Docket No. 49.
. Forbush, 994 F.2d at 1106.
. Id.
. See id.
. In re Enron Corp. Secs. v. Enron Corp., No. H-01-3913, 2006 WL 1662596, at *10, 2006 U.S. Dist. LEXIS 43145, at *50 (S.D. Tex. June 7, 2006).
. Jenkins v. Raymark Ind., 782 F.2d 468, 472 (5th Cir.1986).
. Docket No. 54
. Docket No. 49.
. James v. City of Dallas, 254 F.3d 551, 571 (5th Cir.2001).
. These are, that (1) a "defined benefit" retirement plan was created by Defendant, (2) Defendant is a plan sponsor or administrator, (3) as such, Defendant failed to comply with ERISA in its alleged mismanagement of the plan, (3) class members are entitled to benefits consistent with
. Docket No. 49.
. Further, the Court notes the vexing circularity of this line of argument cannot he sustained. It is unreasonable to assert that typicality bars the representative members from seeking to establish, on behalf of a class, that a defined retirement benefit plan exists under ERISA, on the grounds that an ERISA plan is not established.
. Fed.R.Civ.P. 23(a)(4).
. Henry v, Cash. Today, 199 F.R.D. 566, 569 (N.D.Tex.2000).
. Berger, 257 F.3d at 479.
. For example, Defendants argue that the named Plaintiffs do not adequately represent the entire class because the five plaintiffs retired from only three of the four SBC subsidiaries, at issue here. In addition, because the named Plaintiffs may have received different telephone benefits from one another and other members of the class, Defendants argue that there is a possibility of conflicts of interest. Docket No. 66.
However, Defendants concerns over potential conflicts of interest are too speculative to present a cognizable antagonism between the named Plaintiffs and the absentee class members sufficient to overcome Plaintiffs sufficient demonstration of adequacy. See In re EDS Securities Litigation, 226 F.R.D. 559, 569 (E.D.Tex.2005) (holding that “potential complications that may arise during the damages phase of a trial do not bar'a finding of adequacy”).
. Docket no. 75
. Id.
. Berger, 257 F.3d at 484.
. Id.
. Id.
. Docket No. 41, & Pis.’ Ex. G.
. Docket No. 69.
. The Court has considered the depositions of all proposed representative class members. For the sake of brevity, bolstered by the rule that ".. .as long as one of the representatives is adequate, the requirement (of Rule 23(a)(4)) will be met”, 7A C. Wright et al., Federal Practice and Procedure, the Court will only specifically reference the deposition of Mr. Stoffels, the named plaintiff in this case.
1. Understanding of Class Action Litigation:
Q: What was your understanding at that time in March 2005 of a class action?
A: "My understanding of a class action would be that I would be-my name would be out, I would be the lead on that as for as filing suit, but all of my other counterparts that have... been retired.... from Pacific Bell or SBC Communications would also join me in this suit, as we were all affected by it.” (Pg 40).
2. Defendant contends that Plaintiffs have entirely ceded control of the litigation to their attorneys, and the representative class members actually have had little participation in this lawsuit, or understanding of the claims they are asserting. But, to the contrary, Mr. Stoffels stated that he reviewed the complaints in this matter before they were filed, and was aware of, reviewed and understood changes made to the amended complaint, etc. (71 — 73). These statements militate against Defendant's argument that "... capable committed counsel” is pursuing "their own goals through class members" in this action. Docket No. 75.
3. Knowledge and Understanding of facts and Underlying Legal Theory:
Q: .. .1 want to know what factual basis you have for saying that there is an entity called the SBC Telephone Concession Plan.
A: "... It says telephone concession on the W-2 forms that I get. And that's where I derived it from, that they (SBC)you know, that's a parent company, it's their program, they're administering it through the other companies.” (156).
Regarding the alleged changes to the concession, he stated: “...we received a notification through SBC communications that they were doing that. They sent a letter out letting us know that our telephone concessions rates were going down.” (22) Later, Mr. Stoffels refers to a desire to reinstate concession benefits for himself and all those similarly situated. (114).
. Based on Mr. Stoffels' testimony, the Court is satisfied that he is committed to take an active role in the litigation. For example, he stated that: "There was a book that I went to the library and picked out, it was on class action suits... And I just sat there and read it through." (118).
Regarding his responsibilities to the absentee class members, Mr. Stoffels said: "Well, one of them is doing this deposition today, pursuing this on their behalf to try and, you know, reach some kind of an understanding as to what we really should have. Number one, get our concession back the way it was, working on their behalf, reporting to my attorney, working with the attorneys, and testifying, as I am, and going to the next phase if I have to, if I have to appear in front of a judge." (114).
. See Jefferson, at 898 (7th Cir.1999).
. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167 n. 12 (2d Cir.2001), cert denied, 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed.2d 251 (2002), (quoting In re Tetracycline Cases, 107 F.R.D. 719, 111 (W.D.Mo.1985)).
. In re Enron Corp., 2006 WL 1662596, at *8-9, 2006 U.S. Dist. LEXIS 43145, at *47.
. Jefferson, at 898.
. Fed. R. Civ. Proc. 23(b)(1).
. Fed. R. Civ. Proc. 23(b)(2).
. See EDS ERISA Litigation, 224 F.R.D. 613, 628 (E.D.Tex.2004) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412, 414 (5th Cir. 1998)).
. Docket No. 41.
. Docket No. 75.
. Fed. R. Civ. Proc. 23(b)(3).
. Id.
. Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 626 (5th Cir.1999).
. Docket No. 75
. Plaintiffs urge that individual factual determinations regarding benefits will be accomplished using computer records and objective criteria, thus rendering an evidentiary hearing unnecessary. Docket No. 41.
. The Court reiterates that if concerns regarding the Class II definition should arise in the course of the litigation, the Court may after or amend this Order. Fed. R. Civ. Proc. 23(b)(3)
. Plaintiffs allege that the amount of benefits at issue, per individual, is "at most, several hundred dollars per year (before taxes).” Docket No. 41.
. 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
. Docket No. 75.