Herndon, District Judge:
On February 7, 2001, the Court entered an Order granting Plaintiffs' motion for class certification (Doc. 88). The Court certified the class as:
All participants in the Xerox Corporation Retirement Income Guaranty Plan ("RIGP") who have received a lump sum distribution of their pension benefits from the RIGP at any time after January 1, 1990.
On February 16, 2001, Defendants filed a motion to reconsider the Court's Order permitting this suit to proceed as a class action (Doc. 93).
Strictly speaking, a motion to reconsider does not exist under the Federal Rules of Civil Procedure. Hope v. United States, 43 F.3d 1140, 1142 (7th Cir. 1994), cert. denied, 515 U.S. 1132 (1995). Despite this fact, such motions are routinely presented, and this Court will consider them if timely-filed. If filed within ten days of the entry of a judgment or order in the case, the motions are construed as motions to alter or amend under Federal Rule of Civil Procedure 59(e). See Britton v. Swift Transportation Co., Inc., 127 F.3d 616, 618 (7th Cir. 1997) ("the key factor in determining whether a `substantive' motion is cognizable under Rule 59 or 60 is its timing"); Mendenhall v. Goldsmith, 59 F.3d 685, 689 (7th Cir.), cert denied, 516 U.S. 1011 (1995) ("any post-judgment substantive motion that is made within ten days of the entry of judgment is deemed a Rule 59(e) motion"). Defendants' motion to reconsider was filed within ten days of the Order they challenge. Thus, the Court will apply Rule 59(e).
Rule 59(e) motions to reconsider serve the limited function of allowing litigants "to direct the district court's attention to newly discovered material evidence or a manifest error of law or fact." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). See also Divane v. Krull Electric Co., Inc., 194 F.3d 845, 850 (7th Cir. 1999). The Seventh Circuit has clarified:
While Rule 59(e) permits parties to bring to the court's attention errors so they can be corrected without the costs associated with appellate procedure, "[t]he rule does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could or should have been presented to the district court prior to judgment."
Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 730 (7th Cir. 1999).
Defendants assert three arguments in support of their motion to reconsider. First, Defendants argue that in certifying the class the Court mistakenly believed that it had ruled upon the effect of the release executed by Berger at the time of his early retirement. Defendants contend that because this issue is still before the Court on the pending motions for summary judgment the Court may still find that Berger's claim is not typical of those putative class member who did not sign such a release. While Defendants are correct that at the time of class certification the Court had not ruled upon the effect of the release, this oversight does not amount to a manifest error of law or fact such that relief under Rule 59(e) is warranted.
As a condition of B erger's participation in the reduction in force p rogram, he signed a release which stated that he released Xerox from "any and all claims or causes of action of any kind, known or unknown, arising out of" his employment by Xerox.
"Where it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper class representative." Koos v. First Nat'l Bank of Peoria, 496 F.2d 1162, 1164 (7th Cir. 1974); J.H. Cohn Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 999 (7th Cir. 1980) (presence of even an arguable defense peculiar to the named plaintiff or a small subset of plaintiffs may destroy the required typicality). Defendants contend that the release Berger signed bars his claim, making Berger's claim non-typical of the other class members.
Under ERISA, "[e]ach pension plan shall provide that benefits provided under the plan may not be alienated or assigned." 29 U.S.C. § 1056(d)(1). "This anti-alienation provision, however, `does not impose a bar on settlement agreements wherein pension claims are knowingly and intentionally resolved by employees.'" Lynn v. CSX Transportation, Inc., 84 F.3d 970, 975 (7th Cir. 1996) (quoting Lumpkin v. Envirodyne Industries, Inc., 933 F.2d 449, 455 (7th Cir. 1991)). In Lynn the Seventh Circuit clarified that "contested claim" is a more accurate phrase. Id. Thus, only where a release is signed in the context of a "contested claim" is the release enforceable. Id. "What matters is whether the claimant knew [or should have known] of the claim and knowingly relinquished it." Id. "In determining whether a retiree knowingly relinquished a claim, the court must look to all of the circumstances to determine what the claimant knew or reasonably should have known." Id. at 976. Finding that Lynn had not released his claim, the Seventh Circuit specifically noted that Lynn did not have a lawyer, he never sat down at the bargaining table, and he did not negotiate the "purchase price" of anything. Id. "He signed a standard form." Id.
Berger signed an agreement similar to the one signed by Lynn. Like Lynn, when Berger signed the release he did not sit down at the bargaining table with a lawyer to negotiate the "purchase price." He signed a standard form. Because the Court finds that the release Berger signed does not bar his claim, it is clear that "a major focus of the litigation" will not be on this defense. Accordingly, the Court's finding that Berger's claim is typical of the putative class members was not in error.
Defendants also assert that the Court should reconsider its Order certifying this case as a class action because "the Court inadvertently but mistakenly believed" that the parties did not dispute that the requirements of numerosity and commonality are satisfied. Although Defendants did argue that the Plaintiffs had failed to demonstrate that the numerosity requirement had been met, this assertion does not evidence a manifest error of law or fact. Further, consideration of Defendants' non-specific argument that "Plaintiffs have failed to establish that the proposed class satisfied the numerosity requirement" would not have changed the Court's ruling on Plaintiffs' motion for class certification.
Finally, Defendants argue that the class certified by the Court is overly broad in that it fails to recognize a change in the applicable law effective January 2000 and because not everyone in the class as defined would have been underpaid. The Court finds that while this change in the law may change the damage calculation as to some class members, it does not require alteration of the class definition. Further, the fact that it is possible that some class members were not underpaid does not change the Court's decision to certify the class as defined. As the Court noted in its Order of February 7, 2001, the monetary relief sought is merely incidental to the equitable relief sought in this case. Each member of the class has standing to bring an action to challenge an allegedly illegal plan provision, 29 U.S.C. § 1132(a)(3), regardless of whether it resulted in actual damages to a particular class member. Again, Defendants have failed to demonstrate a manifest error of law or fact.
Because Defendants have not shown that relief under Rule 59(e) is warranted, the Court DENIES Defendants' "Motion to Reconsider Order Certifying Class" (Doc. 93).
IT IS SO ORDERED.