HARRIS v. KOENIG

o common questions among those class members limited to pursuing Counts I-V and those class members limited to pursuing Counts VI-IX.

First, this argument is purely speculative; there is no evidence in the record to suggest that the putative class will be split along these lines. In fact, at this early stage, the scope of the Illinois release is at least one question of law — and it is a crucial question — which is common to the entire putative class.

Second, assuming arguendo that the effect of the Illinois release is to split the putative class into two groups, the Court does not agree that Counts I-V and Counts VI-IX raise no common questions. While the first and second claim periods differ as to legal and factual issues, the value of the released ERISA claims in Counts I-V, which depends in part on the merits of those claims, is relevant to Counts VI-IX. See Defs.' Opp'n at 2 ("[T]o prevail on the Second Period claims, Plaintiffs must show that the Illinois Judgment released the Plan's First Period claims for inadequate consideration. . . .") (emphasis added). Certain issues related to the merits of Counts I-V are relevant to the value of those claims, and are therefore common to the entire class. See Trief v. Dun Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) ("Commonality does not mandate that all class members make identical claims and arguments, only that common issues of fact or law affect all class members.").

For these reasons, the Court concludes that the existing uncertainty regarding the scope and effect of the Illinois Release does not defeat commonality. Consequently, Plaintiffs have met their burden to demonstrate that there are common issues of law and fact which affect the entire class.

2. Typicality

Rule 23(a) next requires a showing of typicality, or that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Typicality requires that the named plaintiffs have the same motivation as absent class members to ensure fair and effective representation. Typicality is shown if each class member's claim arises from the same course of events that led to the claims of the representative parties and each class member makes similar legal arguments to prove the defendant's liability. Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58 (D.C. Cir. 1994); see also Freeport Partners, 2006 WL 627140, at *6. The commonality and typicality requirements of Rule 23(a) tend to merge, since both look to whether each class member's claims, including the claims of the representative parties, arise from the same course of events. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740 (1982).

The claims brought in the Fifth Amended Complaint are all based on alleged actions or omissions which were directed at the Plan. In fact, Counts I-IX are all brought under ERISA § 502(a)(2), which permits plan participants to bring counts on behalf of the plan to recover plan injuries, not individual injuries. See LaRue, 552 U.S. 248, 256, 128 S.Ct. 1020, 1026. Thus, Plaintiffs' claims in Counts I-IX, as well as the legal arguments in support of the claims, are typical, if not identical, to the claims and arguments of the other Plan participants who are putative class members.

Defendants argue, however, that the specter of a conflict among class members regarding the proper scope of the Illinois release defeats Plaintiffs' arguments in support of typicality. Defendants argue that there is a conflict among the putative class members because some Plan participants may wish to limit the scope of the Illinois release, whereas others may wish to argue it does not apply at all or even that it applies to the entire first claim period.

At times, Defendants suggest that, once the scope of the Illinois release is decided, conflicts would persist among class members who are limited to Counts I-V and class members who are limited to Counts VI-IX. The Court sees no reason why this would be the case. There is no discernible conflict presented by a class containing both (1) members whose ERISA claims in Counts I-V were released and who pursue Counts VI-IX on the ground that the release itself constituted ERISA violations, and (2) members whose ERISA claims in Counts I-V were not released and who continue to pursue Counts I-V. The only potential conflict conceivable at this stage is between those putative class members who might have an incentive to limit the scope of the Illinois release and other putative class members who might have an incentive to interpret the release broadly. However, as explained, the Court deems this conflict speculative.

First, as noted above, this scenario is purely speculative; there is no evidence in the record to suggest that a certain number of putative class members have an incentive to limit the scope of the release, and that a different group of putative class members have an incentive to interpret it broadly. Such "speculative suggestion of potential conflict is insufficient to defeat class certification." Aliotta v. Gruenberg, 237 F.R.D. 4, 12 (D.D.C. 2006) (quoting Rodolico v. Unisys Corp., 199 F.R.D. 468, 477 (E.D.N.Y. 2001));see also Cummings v. Connell, 316 F.3d 886, 896 (9th Cir. 2003).

Second, in the event that such a conflict does arise, the Court has discretion to consider creating sub-classes. See Fed.R.Civ.P. 23(c)(5) (permitting a class action to be divided into subclasses which are treated as a class); In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 271-72 (3d Cir. 2009) (discussing district court's discretion to divide the class into subclasses in order to prevent conflicts of interest). The Court therefore concludes that Plaintiffs have met their burden to prove typicality.

3. Adequacy of Representation

Finally, Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Like the typicality inquiry, this requirement seeks to uncover conflicts of interest between the named parties and the putative class. See Amchem, 521 U.S. at 625-26, 117 S.Ct. at 2250-51. "Two criteria for determining the adequacy of representation are generally recognized: (1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel." Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997) (citation and internal quotations omitted). In addition, the adequacy of representation prong requires that the class representatives have a commitment to, knowledge of, and interest in the litigation, although they need not have expert knowledge of all aspects of the case. Only a "total lack of interest and unfamiliarity with [the] suit would be sufficient grounds to deny plaintiffs' motion [to certify class]." In re Newbridge Networks Sec. Litig., 926 F.Supp. 1163, 1177 (D.D.C. 1996) (citation and internal quotations omitted).

Plaintiffs' proposed representative parties include William S. Harris, Reginald E. Howard, and Peter M. Thornton. These Plaintiffs had Plan accounts which were invested in company stock during the period from January 1, 1990 to November 2, 1994 and throughout the Illinois Class Period (from November 2, 1994 to July 15, 1998). Pls.' Reply at 8. Specifically, Harris was a participant in the Old Waste and New Waste Plans and had invested in the Waste Management Stock Fund from September 30, 1992 until the filing of the present Motion; Howard was a participant in the Old Waste Plan who had invested in the Waste Management Stock Fund from at least January 1, 1992 through February 1, 1999; and Thornton was a participant in the Old Waste Plan who had invested in the Waste Management Stock Fund and the ESOP Fund from at least January 1, 1992 through February 1, 1999. 5th Amd. Compl. ¶¶ 17-19; Decl. of Ellen M. Doyle in Support of Pls.' Reply in Support of Amd. Mot. for Class Certification (Ex. A to Pls.' Mot. at ¶¶ 5-13); Pls.' Mot. at 7.

First, Defendants argue that the named Plaintiffs cannot adequately represent the class because of the potentially conflicting interests with the unnamed members of the class arising out of the Illinois release. As discussed above, the Court rejects this argument on the basis that it is speculative and, in the event any conflict arises, there are procedural mechanisms for protecting all class members.

Second, Defendants argue that the proposed class representatives are inadequate because they know too little about the litigation. Defendants point to a number of instances where Harris, Howard, and Thornton admitted at their depositions to ignorance of certain details of the case, including the details of the Illinois and Texas Litigations, the precise composition of the class, the outcome of Defendants' Motions to Dismiss, and even the contents of the Complaint. Defs.' Opp'n at 20-22.

However, in complex actions such as this, the named representatives are entitled to rely on counsel to conduct the litigation, and are not required to be intimately familiar with the details of the case. In re Avon Secs. Litig., No. 91-cv-2287, 1998 WL 834366, at *9 (S.D.N.Y. Nov. 30, 1998) (in complex case, "the qualifications of class counsel are generally more important in determining adequacy than those of the class representatives").

It should be remembered that all three Plaintiffs were employed as truck drivers. It would be absurd to expect them to understand the intricacies of ERISA and the securities laws, which sometimes elude even experienced counsel.

In addition, Plaintiffs cite to portions of the named representatives' depositions which indicate that they regularly consult with class counsel and review all legal documents which are forwarded to them. Pls.' Reply at 16-17. The statements cited in Plaintiffs' Reply brief also indicate that Harris, Howard, and Thornton share a strong and genuine interest in litigating the suit in order to rectify the alleged injury done to Plan participants. Id. Consequently, the Court concludes that Harris, Howard, and Thornton are adequate class representatives.

Finally, Defendants failed to oppose Plaintiffs' proposed class counsel, so their adequacy may be treated as conceded. D.D.C. Local Rule 7(b); Fox v. Am. Airlines, Inc., Civ. No. 02-2069, 2003 WL 21854800, at *2 (D.D.C. Aug. 5, 2003), aff'd, Fox v. Am. Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004). Plaintiffs have therefore met their burden to prove the adequacy of both the class representatives and class counsel.

B. Rule 23(b) Requirements

In addition to meeting the requirements of numerosity, commonality, typicality, and adequacy of representation in Rule 23(a), Plaintiffs must show that one of the requirements of Rule 23(b) is met. Plaintiffs seek certification of the class under Rules 23(b)(1) and/or (b)(2). Rule 23(b)(1) permits certification when:

prosecuting separate actions by or against individual class members 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).

Rule 23(b)(2) permits certification when "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).

1. Rule 23(b)(1)

Both Rules 23(b)(1)(A) and 23(b)(1)(B) are designed to prevent prejudice to the parties resulting from multiple suits involving the same subject matter by certifying a mandatory class. Rule 23(b)(1)(A) seeks to prevent prejudice to the party opposing the class, while Rule 23(b)(1)(B) seeks to prevent prejudice to other class members who did not participate in the litigation. Because breach of fiduciary duty claims under ERISA § 502(a)(2) are often, as they are here, shared by all Plan participants, the danger of such prejudice is great. Thus, such claims are "paradigmatic examples of claims appropriate for certification as a Rule 23(b)(1) class." In Re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 604 (3d Cir. 2009); see also In re Marsh ERISA Litig., 265 F.R.D. 128, 142 (S.D.N.Y. 2010).

Defendants argue, however, that neither Rule 23(b)(1)(A) nor Rule 23(b)(1)(B) applies because there are individual factual questions relating to each putative class member's claims which eliminate any risk of inconsistent or varying adjudications or adjudications which would be dispositive of the interests of other class members. In other words, Defendants argue that the uncertainty surrounding the Illinois release requires individualized consideration of the class members' claims and, as a result, mandatory certification under Rule 23(b)(1) would be unwarranted.

The Court disagrees. In the Illinois Litigation, Defendants released the ERISA claims of the Plan, not the ERISA claims of the individual participants. Thus, the scope of the release is a single question of law which does not implicate facts applicable to specific individuals, and is appropriate for treatment on a class-wide basis. Cf. In re Polaroid ERISA Litig., 240 F.R.D. 65, 75-76 (S.D.N.Y. 2006). Defendants' argument is therefore rejected, and the Court turns to consideration of Defendants' other arguments against Rule 23(b)(1) certification.

a. Rule 23(b)(1)(A)

Defendants first oppose class certification under Rule 23(b)(1)(A) because "there is little, if any risk, of individual suits by unnamed class members if the class is not certified." Defs.' Opp'n at 24. In support of this argument, Defendants point to the fact that, to date, no one apart from the three named representatives have filed suit. Id. However, as Plaintiffs respond, there is no reason for other class members to have filed suit at this point given that this class action is pending.

Second, Defendants argue that the threat of incompatible standards of conduct is rarely present in suits for monetary damages, and thus certification under Rule 23(b)(1)(A) is inappropriate. Plaintiffs seek an order that Defendants restore to the New Waste Plan all losses occasioned by their breaches of fiduciary duties and "appropriate relief to enjoin the acts and practices of the Defendants alleged herein," as well as "such other equitable and legal relief as the Court deems just." 5th Amd. Compl., Prayer for Relief. It is true, as Defendants argue, that the relief sought by Plaintiffs is primarily monetary.

Although there is some precedent that ERISA § 502(a)(2) suits seeking primarily monetary relief are not appropriate for certification under Rule 23(b)(1)(A), most courts that have recently ruled on the issue have rejected that conclusion.Compare In re First Am. Corp. ERISA Litig., 258 F.R.D. 610, 621-22 (C.D. Cal. 2009) (concluding, on the basis of definitive Ninth Circuit precedent, that an ERISA § 502(a)(2) suit brought primarily for monetary damages was not appropriate for Rule 23(b)(1)(A) certification); and Hochstadt v. Boston Sci. Corp., 708 F.Supp.2d 95, 104 n. 11 (D. Mass. 2010) (concluding the same in a footnote); with Hans v. Tharaldson, No. 3:05-cv-115, 2010 WL 1856267, at *10 (D.N.D. May 7, 2010) (concluding that Rule 23(b)(1)(A) certification is appropriate for § 502(a)(2) claim for monetary relief); Stanford, 263 F.R.D. at 173 (same); Jones v. NovaStar Fin., Inc., 257 F.R.D. 181, 193-94 (W.D. Mo. 2009) (same); Kanawi v. Bechtel Corp., 254 F.R.D. 102, 111 (N.D. Cal. 2008) (same); Inre Nortel Networks Corp. ERISA Litig., No. 3:03-md-01537, 2009 WL 3294827, at *15-16 (M.D. Tenn. Sept. 2, 2009) (same); In re Merck Co. Inc. Secs., Derivative ERISA Litig., Nos. 05-cv-1151, 05-cv-2369, 2009 WL 331426, at *11 (D.N.J. Feb. 10, 2009) (same);Abbott v. Lockheed Martin Corp., No. 06-cv-701, 2009 WL 969713, at *9 (S.D. Ill. Apr. 3, 2009) (same).

Those courts which have found certification under Rule 23(b)(1)(A) inappropriate have done so on the basis of Ninth and Eleventh Circuit precedent concluding that suits primarily for monetary damages pose no risk of incompatible standards of conduct. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th Cir. 2001); Babineau v. Fed Express Corp., 576 F.3d 1183, 1195 (11th Cir. 2009) Significantly, neither Zinser nor Babineau addressed whether their holdings should apply in the ERISA § 502(a)(2) context. Moreover, these cases involved, respectively, product liability and breach of contract claims in which each class member had individual claims against the defendants, and therefore class certification would pose individual liability issues. Here, in contrast, the claims are brought on behalf of the entire Plan, of which the putative class members are participants, and rulings on liability will apply to all members of the class.

As the court in Stanford, 263 F.R.D. at 173 (citations and internal quotations omitted), explained in language that is applicable to this case:

The issue is not whether plaintiff seeks primarily monetary damages; rather, the focus of a Rule 23(b)(1)(A) analysis is on whether separate actions could lead to adjudications that establish incompatible standards of conduct for the party opposing the class. . . . [T]he court is concerned with the effect of inconsistent orders with respect to individual Plan accounts. When raising a plan-wide claim, a plaintiff is pursing a claim on behalf of the entire plan, which necessarily includes discrete accounts within the plan. Accordingly, if a court entertaining an individual account claim [pursuant to LaRue, 552 U.S. 248, 128 S.Ct. 1020] were to reach a different conclusion from a court entertaining a plan-wide claim, the fiduciaries would be left with incompatible orders concerning the same account. . . . Such competing orders lead to incompatible standards of conduct for the defendants.

In addition, although Plaintiffs primarily seek monetary damages in this case, it is not clear why what Defendants term their "perfunctory" requests to enjoin the acts and practices of the Defendants could not result in incompatible standards of conduct if a separate action resulted in a contrary ruling. Defs.' Opp'n at 27; see In re Merck Co., Inc., 2009 WL 331426, at *11 (stating that Rule 23(b)(1)(A) "does not require that the varying adjudications would establish incompatible standards as the exclusive or even primary remedy" but only that "varying adjudications would establish incompatible standards"). For example, this Court could enter a ruling to restore Plan assets, remove Plan fiduciaries, or reform Plan investigative practices and monitoring practices that would directly contradict another Court's ruling on the very same issues. In that event, Defendants would be faced with incompatible standards of conduct with respect to their duties and obligations toward the Plan.

For these reasons, the Court concludes that there is a risk of "inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class" in this case. Thus, certification under Rule 23(b)(1)(A) is appropriate.

b. Rule 23(b)(1)(B)

As noted above, Rule 23(b)(1)(B) focuses not on the danger to defendants of inconsistent rulings, but on the risk that separate actions might dispose of the interests or rights of other class members. Historically, § 502(a)(2) actions brought on behalf of the entire plan have been considered especially appropriate for Rule 23(b)(1)(B) certification. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 833-34, 119 S.Ct. 2295, 2308-09, 144 L.Ed.2d 715 (1999). The Advisory Committee Notes to the 1966 Amendment of Rule 23(b)(1)(B) state that certification is especially appropriate in cases charging breach of trust by a fiduciary to a large class of beneficiaries. In addition, Congress's intent was that ERISA "actions for breach of fiduciary duty be brought in a representative capacity on behalf of the plan as a whole." See Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142 n. 9, 105 S.Ct. 3085, 3090 n. 9, 87 L.Ed.2d 96 (1985).

Defendants argue, however, that the Supreme Court's decision inLaRue, 552 U.S. 248, eliminated the risk that individual class members' rights or interests would be disposed of by § 502(a)(2) actions. The plaintiff in LaRue sought to bring a § 502(a)(2) claim against his plan's fiduciaries for their failure to make certain changes he requested to his individual account, which diminished the value of his interest in the plan. The Supreme Court held that, "although § 502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant's individual account." Id. at 256.

Defendants contend that this holding — that a participant in a defined contribution plan can bring an individual suit for breach of fiduciary duty, in addition to the possibility of bringing a suit on behalf of the entire plan — means that the putative class members can protect their own interests by bringing individual suits, whatever the disposition of this litigation may be, making certification under Rule 23(b)(1)(B) inappropriate. There is some precedent supporting this interpretation. See In re First Am. Corp. ERISA Litig., 258 F.R.D. at 622; In re Computer Sciences Corp. ERISA Litig., No. 08-cv-2398, 2008 WL 7527874, at *3 (C.D. Cal. Sept. 2, 2008).

However, most courts deciding class certification motions for § 502(a)(2) actions post-LaRue have continued to find Rule 23(b)(1)(B) certification appropriate. See George v. Kraft, No. 08-C-3799, 2010 WL 3386, at *402 (N.D. Ill. Aug. 25, 2010); In re Marsh ERISA Litig., 265 F.R.D. at 144; Stanford, 263 F.R.D. at 173-74; Hochstadt, 708 F.Supp.2d at *104 n. 12; Kanawi, 254 F.R.D. at 109; NovaStar Fin., Inc., 257 F.R.D. at 190; Hans v. Tharaldson, 2010 WL 1856267, at *9-10.

In Stanford, the court acknowledged the appeal of Defendants' argument, but concluded that Rule 23(b)(1)(B) certification was still appropriate post-LaRue:

[B]ecause Stanford challenges behavior of defendants that allegedly injured the entire Fund, Stanford's claims would be identical to any individual account claim that another putative class member may raise. Indeed, . . . a participant's individual account is still a part of the Plan, and, therefore, an adjudication as to the Plan will likewise impact a participant's individual accounts. Thus, the availability of an individual account claim under § 502(a)(2) does not alleviate the concerns cited by the numerous courts that have certified ERISA class actions pursuant to Rule 23(b)(1)(B) in situations where claims on behalf of the Plan are identical to those on behalf of an individual account.

263 F.R.D. at 174.

Defendants argue that the reasoning in Stanford is inapplicable because "the claims of each of the class representatives are potentially very different from those available to the other class representatives and to absent members of the putative class." Defs.' Opp'n at 31 n. 19. As has been discussed, the Court is not convinced that the uncertainty surrounding the scope of the Illinois release will result in "very different" claims for some putative class members. At most, the effect of the release would be to create two groups of putative class members: those whose claims in Counts I-V were released, and those whose claims were not released. Thus, adjudication of the named representatives' claims as to the Plan would impact the individual accounts of those participants who are similarly situated.

Thus, the Court concludes that LaRue did not eliminate the risk that the putative class members' interests and rights in this action will be disposed of if separate litigation on the same subject matter is permitted. Consequently, certification of a mandatory class under Rule 23(b)(1)(B) is appropriate.

2. Rule 23(b)(2)

Finally, as noted above, a class may be certified under Rule 23(b)(2) 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). Thus, Rule 23(b)(2) certification is appropriate for a class seeking primarily equitable relief for a common injury, not a class seeking substantial monetary damages. In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002); see also Fed.R.Civ.P. 23(b)(2), adv. comm. n. (certification under Rule 23(b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages").

While Plaintiffs are seeking injunctive and declaratory relief in this action, their primary goal is, as discussed earlier, to obtain monetary damages for class members. Thus, the Court concludes that certification under Rule 23(b)(2) is inappropriate.

C. Rule 23(g)

Finally, a court that certifies a class must appoint class counsel under Rule 23(g). Plaintiffs request that Ellen M. Doyle and the law firm of Stember Feinstein Doyle Payne Cordes, L.L.C. and J. Brian McTigue and the law firm of McTigue Veis, L.L.P. be appointed as Co-lead Counsel, and Gregory Yann Porter of Bailey Glasser, L.L.P. be appointed as Counsel. Proposed class counsel have extensive experience litigating ERISA class actions, and have demonstrated their commitment to the prosecution of this action. Pls.' Mot. at 26; Attn'y Biographies (Ex. Q to Dkt. No. 249). In addition, Defendants do not oppose certification of Plaintiffs' proposed class counsel. See Defs.' Opp'n. Consequently, the Court

appoints Plaintiffs' requested counsel as class counsel in this case.

CONCLUSION

For the reasons set forth herein, the Court concludes that Plaintiffs have carried their burden to meet the requirements under Rules 23(a), 23(b)(1)(A), 23(b)(1)(B) for certification of the class defined as follows:

All participants (and their beneficiaries) in the Waste Management Retirement Savings Plan and/or its predecessor plans, including the Waste Management Profit Sharing and Savings Plan, for whose accounts the fiduciaries of the plan acquired the following employer securities of Waste Management, Inc.:

A) pre-corporate-merger common stock (NYSE: WMX) on or after January 1, 1990, through and including July 16, 1998.

Plaintiffs have failed to meet their burden, however, to certify the class of participants (and their beneficiaries) for whose accounts the fiduciaries of the plan acquired "B) post-corporate-merger common stock (NYSE: WMI) on or after July 16, 1998, through and including November 9, 1999." In addition, Plaintiffs have failed to meet their burden to prove that certification under Federal Rule of Civil Procedure 23(b)(2) is appropriate. Consequently, Plaintiffs' Amended Motion for Class Certification [Dkt. No. 356] is granted in part, and denied in part.

The Court certifies the following common questions of fact and law for Counts I-IX of the Fifth Amended Complaint:

• Whether the fiduciaries caused the Plan to acquire shares of company stock at inflated prices, and whether this constituted a breach of fiduciary duty under ERISA;

• Whether findings made in other litigation against Defendant James E. Koenig may be used affirmatively for purposes of collateral estoppel in this action;

• Whether the representation of the Plan and its participants by State Street in the Illinois Litigation was adequate and loyal;

• Whether State Street's investigation into the claims of the Plan prior to its agreement to release the claims was adequate;

• Whether the representation of the Plan and its participants by the lead plaintiffs in the Illinois Litigation was adequate when they did not have or assert ERISA claims;

• Whether additional claims for a recovery under ERISA could have been but were not made for the Plan during the Illinois Litigation;

• Whether additional claims for a recovery under ERISA had any value and, if so, what additional value the ERISA claims provided;

• Whether any claims for additional recoveries under ERISA were within the scope of the Illinois Litigation settlement release;

• Whether the release in the Illinois Litigation settlement may be enforced against the Plan and its participants;

• Whether State Street caused the Plan to engage in a prohibited transaction in the settlement of its claims in the Illinois Litigation;

• Whether Defendants Koenig and Tobeckson acted to conceal their breaches of fiduciary duty, thereby subjecting the Plaintiffs' claims to ERISA's six-year statute of limitations; and

• Whether Plaintiffs and Class members were injured by the Old Waste Plan Investment Committee Defendants' alleged failure to conduct an adequate fiduciary review to determine whether it was prudent to continue to acquire Company Stock.

This list is not intended as a final or definitive list of the common questions of fact or law in this case.

In addition, the Court appoints Harris, Howard, and Thornton as class representatives. Ellen M. Doyle and the law firm of Stember Feinstein Doyle Payne Cordes, L.L.C. and J. Brian McTigue and the law firm of McTigue Veis, L.L.P. are appointed as Co-lead Counsel, and Gregory Yann Porter of Bailey Glasser, L.L.P. is appointed as Counsel. An Order will accompany this Memorandum Opinion.

No objection was made as to their appointment.

November 12, 2010 Gladys Kessler