;i.

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 1 of 15

F' leo

If SEP '- 7 2005

UNITED STATES DISTRICT COURT

_~CHA!L W. oo88lN, FOR THE NORTHERN DISTRICT OF ILLINOIS

- . U.S. DISTRICT COURT

JACK FINLEY,
Plainti ff,
v.
DUN & BRADSTREET CORP. and the DUN & BRADSTREET CORPORAnON RETIREMENT ACCOUNT,
. •Defendants.

No. or;c 5134
JUDGE PLUNKETT
MA$lSTRATE JUDGE KEYS

CLASS ACTION COMPLAINT Plaintiff, by and through his undersigned attorneys, complains against Defendants as follows:
NATURE OF THE COMPLAINT 1. This complaint is about Dun & Bradstreet's cash balance retirement plan. It asserts that in adopting and administering the Dun & Bradstreet Corporation Retirement Account, Dun & Bradstreet violated the Employee Retirement Income Security Aet of 1974 ("ERISA"), as amended, 29 U.S.C. §100 1, et seq. in one or more of the following ways: (1) when it amended its pension plan to a eash balance approach, the company failed to notify plan participants that the amendment was significantly reducing their benefits under the

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 2 of 15
plan; (2) the company failed to provide plan participants with an adequate summary plan description that alerted plan participants that their pension benefits had been reduced, that apparently accruing benefits might never actually be paid, that the rate of benefit accruals decreased with age, and that, in many cases, if they choose to receive cash balance benefits they wi11lose all of the benefits they accrued prior to the cash balance conversion; (3) by conditioning the amount of benefits payable under the plan based upon the form in which the benefit is taken, and; (4) by reducing the rate of benefit accruals on account of age; (5) by failing to inform many retiring plan participants of the correct amount oftheir pensions. Plaintiff seeks appropriate relief to enforce the rights he enjoyed under the plan prior to the cash balance amendment and/or the elimination and/or reformation of unlawful plan provisions.
JURISDICTION, VENUE, AND SERVICE OF PROCESS 2. Plaintiff invokes the jurisdiction of this Court pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.c. § I00 I, et seq. 3. Venue in this Court is proper under ERISA Section 502(e)(2), 29 U.S.c. §1I32(e)(2), in that Dun & Bradstreet may be found in this District and the breach took place in this District.
2

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 3 of 15
4. Service of process is authorized in any district where a defendant resides or may be found. ERISA Section 502(e)(2), 29 U.S.C. § 1132(e)(2).
THE PARTIES 5. Plaintiff Jack Finley ("Finley") lives in Geneva, II1inois. 6. Finley is a participant in the Dun & Bradstreet Corporation Retirement Account as the term "participant" is defined in ERISA Section 3(7), 29 U.S.C. §1002(7). 7. Defendant The Dun & Bradstreet Corporation Retirement Account (the "Cash Balance Plan") is an employee benefit plan as defined in Section 3(3) of ERISA, 29 U.S.C. §1002(3), and an "employee pension benefit plan" as defined in Section 3(2)(A), 29 U.S.C. §I002(2)(A). The Plan may be found in the Northern District of Illinois because Dun & Bradstreet employees earn and receive benefits in the District. 8. Defendant Dun & Bradstreet Corp. ("Dun & Bradstreet") is a business corporation organized and existing under the laws of the State of Delaware. 9. At all relevant times, Dun & Bradstreet has been an employer within the meaning of 29 USCS §1002(5), a "plan sponsor" as defined in Section 3(16)(B) of ERISA, 29 U.S.C. §1002( 16)(B), a "plan administrator" as defined in Section 3(16)(A) of ERISA, 29 U.S.c. §1002(16)(A), and a fiduciary within the meaning of Section 3(21)(A) of ERISA, 29 USCS § 1002(21)(A).
3

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 4 of 15
CLASS ACTION ALLEGATIONS 10. Finley brings this action as a class action in accordance with Federal Rule of Civil Procedure 23 to resolve disputes under the Employee Retirement Income Security Act of 1974. Judicial economy dictates that the issues be resolved in a single action. II. The proposed class is defined as any and all persons who:
(a) Are former or current Dun & Bradstreet employees other than employees who on December 31, 200 I: (i) were at least age 50 with 10 years of vesting service; or (ii) had attained an age which, when added to his or her years of Vesting Service, was equal to or greater than seventy (70); or (iii) had attained age sixty-five (65); and (b) Participated in the Dun & Bradstreet Master Retirement Plan before January 1,2002, and (c) Have participated in the Dun & Bradstreet Corporation Retirement Account at any time since January I, 2002. 12. The proposed class covers all participants in the Cash Balance Plan who have been harmed by the ERISA breaches set forth below. 13. On information and belief the proposed class covers well over 1,000 individuals. The class is so numerous that joining all members is impractical.
4

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 5 of 15
14. There are common questions of law and fact affecting the rights of the members of the class. The claims ofthe named class representative are typical of the claims of the class. The named representative will fairly and adequately protect the interests of the class.
15. This action is maintainable as a class action under Rule 23(b)(2) because Defendant has acted and/or refused to act on grounds generally applicable to the class, thereby making appropriate final relief in favor of the class.
STATEMENT OF FACTS 16. Finley was born on May 29,1947. 17. Finley was hired by Dun & Bradstreet on May 15, 1978. 18. Finley's present job title is National Account Manager. 19. For many years prior to January 1, 2002, Dun & Bradstreet provided its employees with traditional defined pension plan terms under which retiring employees received a percentage of their final average pay for life under the Dun & Bradstreet Master Retirement Plan (the "Traditional Plan Terms"). 20. Under the Traditional Plan Terms, as employees got older, the rate of their benefit accruals increased. The Traditional Plan Tenns rewarded the company's longest serving and presumably most loyal employees by tying their retirement benefit amount to years of service and to salary numbers which are higher in an employee's last years of service. Under the Traditional Plan Terms, as
5

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 6 of 15
employees got closer to retirement and enjoyed a higher salary, the company was obliged to put away increasingly larger sums of money so that funds were available to pay the promised benefit at retirement. Employees with less service and more years until retirement correspondingly cost the company less, especially because, given potential investment earnings over time, the longer the company had before having to pay a dollar, the smaller the amount of money it had to put aside to provide the dollar in the future. For this reason, the Traditional Plan Terms were ''backloaded''-an employee's last years of service under a plan, close to collecting, with a high salary and many years of service-were the most profitable to employees and most expensive to the company.
21. Effective January I, 2002, Dun & Bradstreet converted the Traditional Plan Terms to a "cash balance" benefit.
22. The cash balance retirement benefit provided under the Cash Balance Plan is calculated based upon an annual payment to a hypothetical account of a percentage of an employee's pay (the "pay credit" or "company credit") together with a payment of interest on the annual hypothetical account (the "interest credit").
6

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 7 of 15

Benefit Accrual Rates Decreasing with Age

23. As under many cash balance plans, pay credits under the Cash

Balance Plan are determined by "points" equal to the sum of an employee's age

and vesting service. The pay credits are as follows:

POINTS

CREDIT

age +service

Under 35

3%

35 to 44

4.0%

45-54

5.0%

55-64

7.5%

65-74

9.0%

75-84

10.5%

85 or more

12.5%

24. Interest credits under the Cash Balance Plan are based on 30-Year

Treasury Bonds subject to a minimum rate of3%.

25. If a plan participant's employment tenninates before age 65, the plan

ceases to make hypothetical pay credit payments but continues through age 65 to

make hypothetical interest credits.

26. To determine on any given day the age-65 value of a participant's cash

balance pension, interest credit payments on the cash balance are projected each

7

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 8 of 15
year from the date of determination through the participant's 65th birthday. That balance (and the annuity that can be created from it) is the benefit provided undcr the cash balance terms of the Cash Balance Plan.
27. Unlike the benefits under the Traditional Plan Terms, pension benefits under the Cash Balance Plan accrue in relatively stable percentages throughout an employee's career. The bencfits do not start out accruing in small amounts and then significantly balloon in the final years like benefits do under the Traditional Plan Terms. The net effect of this difference is that younger employees' pensions relatively gain under the Cash Balance Plan terms and older employees' pensions relatively lose. Under the Cash Balance terms, an older worker with the same rate of pay and years of service as a younger worker, receiving the same dollar amount of contribution to her cash balance account, buys an increasingly smaller age-65 pension annuity with that money because the closer the older worker gets to retirement age the less time the money contributed has to earn annual interest credits under the plan. The rate of benefit accrual thus decreases as a direct result of increases in the employee's age. As the employee gets one year older, the amount of the interest credits to be earned through age-65 is reduced. Therefore, the Cash Balance Plan terms accrue benefits that steadily decrease with advancing age, with the effects partialIy mitigated, but not eliminated, by the Plan's "points" approach to pay credits.
8

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 9 of 15
The Wear-Away Effect 28. Like many cash balance plans the Cash Balance Plan terms converted the benefits employees earned under the Traditional Plan Terms into an opening cash balance account. 29. When Dun & Bradstreet eonverted the Traditional Plan Term benefits to cash balance benefits it ignored plan participants' valuable rights to subsidized early retirement benefits and instead the opening account balance was derived by computing the benefit under the Traditional Plan Terms as a single life annuity commencing at age 65. 30. Under the Cash Balance Plan's cash balance terms, Finley and other plan participants can only receive the cash balance benefits that accrue after the plan amendment if she gives up the benefits she accrued prior to the amendment. The Cash Balance Plan specifies that an employee's accrued benefit is the greater of her benefit under the Traditional Plan Terms, frozen as of December 31, 200 I and the value of the cash balance account. Finley and other plan participants cannot take their previously accrued benefits and add the new cash balance benefits to them. 31. Because of this "greater of' benefit formula, an employee's cash balance pension benefit does not grow from the frozen amount until her hypothetical account balance under the cash balance plan equals and then becomes
9

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 10 of 15
greater than the value of the frozen Traditional Plan Terms benefit. This phenomenon is widely known as the "wear-away" effect.
32. The wear-away effect means that for many years following the cash balance amendment, Finley and other plan participants actually accrued no new pension benefits despitc the existence of a hypothetical account showing benefits being added.
33. Upon information and belief, the Cash Balance Plan's calculation of opening balances exacerbates thc wear-away effect: (a) by applying a preretirement mortality discount (providing for the possibility of death prior to normal retirement) but providing no mechanism for crediting this discount back as participants grow older and the risk of pre-retirement mortality steadily shrinks, and (b) by employing a high interest rate but providing no mechanism to adjust the balance when, as they have over the last five years, interest rates fall below the rate used in the conversion.
Dun & Bradstreet's Failure to Explain Benefit Cuts 34. Because benefit accruals decline with age and because of thc wearaway effect, the elimination of thc Traditional Plan Terms and the substitution of the Cash Balance terms, significantly reduced the rate of future benefit accruals for many plan participants, including Finley.
10

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 11 of 15
35. Despite this impact, prior to the effective date of the change, Dun & Bradstreet gave no notice to plan participants, explaining to them the existence and the extent of a significant reduction of their benefits.
36. Despite this impact, Dun & Bradstreet did not explain the full import of the cash balance plan terms in a summary plan description distributed to plan participants, including but not limited to an explanation of the wear-away effect and a disclosure that benefit accruals under the plan are reduced by advancing age.
37. Instead, despite the totally hypothetical character of the cash balance accounts and the wear-away effect's elimination of years of benefit accruals, Dun & Bradstreet falsely promised plan participants that their cash balance benefits would grow steadily throughout the time they worked at the company.
38. Dun & Bradstreet explained that a key reason it was adopting the cash balance benefit was because it would benefit employees. COUNT ONE: Violation of Section 204(b)(1)(H) for Decreasing Benefit
Accrual Rates with Advancing Age 39. The Cash Balance Plan violates the prohibition in ERISA Section 204(b)(I )(H) against an employer establishing or maintaining plan rules that reduce "the rate of an employee's benefit accrual ... because of the attainment of any age."
11

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 12 of 15
40. Accordingly, Finley and the class are entitled to appropriate equitable relief under ERISA §502 (a)(3) and/or additional benefits under ERISA §502 (a)(I)(B). COUNT TWO: Violation of ERISA Section 203(a) for Permitting Benefits
to be Forfeited 41. Because the Cash Balance Plan conditions Finley's receipt of cash balance benefits on his foregoing the early retirement benefits he earned prior to the adoption of the cash balance amendment, the Cash Balance Plan violates, ERISA §203 (a)'s requirement of non-forfeitability which, under ERISA §3 (19), means that all benefits must be "unconditional." 42. Accordingly, Finley and the class are entitled to appropriate equitable relief under ERISA §502 (a)(3) and/or additional benefits under ERISA §502 (a)(l )(B). COUNT THREE: Violation of ERISA Section §204(b)(1)(B) by Benefit
Accruals that Increase More Than 33 1/3% Over a Prior Year 43. Because the wear-away effect causes plan participants, including Finley, to face years where they accrue zero benefits followed by years where they accrue actual benefits, the Cash Balance Plan violates the "anti-backloading" rule in ERISA Section §204(b)(1)(B) that requires that the value of the benefit accrued
in any given year may not exceed the value 0 ra benefit accrued in any previous
year by more than 33 1/3%.
12

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 13 of 15
44. Accordingly, Finley and the class are entitled to appropriate equitable relief under ERISA §502 (a)(3) and/or additional benefits under ERISA §502 (a)(l )(B). COUNT }<"OUR: Violation of ERISA §204 (h): Failure to Supply Advance
Notice of a Significant Benefit Decrease. 45. Dun & Bradstreet's failure to notify Finley and other plan participants of a significant reduction in the rate of future benefit accrual 15 days prior to the January 1,2002 effective date violated the ERISA §204 (h) prohibition on such plan amendments in the absence of such notice. 46. Accordingly, Finley and the class are entitled to appropriate equitable relief under ERISA §502 (a)(3) and/or additional benefits under ERISA §502 (a)(l )(B). COUNT FIVE: Violation of ERISA §102: Failure to Provide an Adequate
Summary Plan Description (SPD). 47. Dun & Bradstreet's failure to explain the full import of the cash balance plan terms in a summary plan description distributed to plan participants, including but not limited to a complete explanation of the wear-away effect and an explicit explanation ofhow benefit accruals under the plan are reduced by advancing age, violates the minimal requirements for SPDs set forth in ERISA § 102 and its implementing regulations found in 29 C.F.R. 2520.102.
13

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 14 of 15
48. Accordingly, Finley and the class are entitled to appropriate equitable relief under ERISA §502 (a)(3) and/or additional benefits under ERISA §502 (a)(l )(B).
Prayer for Relief WHEREFORE, the Plainti ff prays that this Court for thc following: I. A ruling that this matter proceed on a class basis under Rule 23 on behalf of the class as described above; 2. A declaration that the Cash Balance Plan which purportedly took effect on January 1,2002 was ineffective and that the plan in place prior thereto is still in force and effect; 3. A declaration that Finley's benefit accruals under the Cash Balance Plan must be unconditional and not reduced because of age; 4. An injunction prohibiting the application of the Cash Balance Plan's reductions in the rate of benefit accruals because of age and its conditioning of benefits due under the plan; 5. An injunction ordering appropriate equitable relief to detennine plan participant losses caused by Dun & Bradstreet's payment of benefits under the unlawful cash balance tenns and requiring the payment of additional benefits as appropriate under the Court's ruling; 6. Attorney's fees pursuant to ERISA §502 (g);
14

Case 1:05-cv-05134 Document 1 Filed 09/07/2005 Page 15 of 15
7. Interest; 8. Costs; 9. An order for appropriate equitable and remedial relief to ensure that relief granted hereunder is implemented on a class-wide basis; and 10. Such other equitable and remedial relief as the Court deems appropriate.
Respectfully submitted,
One ofthe attorneys for plaintiff Thomas G. Moukawsher CT 08940 (Pro Hac Vice Motion Pending) Moukawsher & Walsh, LLC 21 Oak St., Suite 209 Hartford, CT 06106 860/278-7000 Thomas R. Meites Michael M. Mulder Josie Raimond Meites, Mulder, Burger & Mollica 208 South LaSalle Street, Suite 1410 Chicago, IL 60604 312/263-0272
15

 
 Finley v. Dun & Bradstreet Corp., Not Reported in F.Supp.2d (2006)
2006 WL 861920 United States District Court, N.D. Illinois, Eastern Division.
Jack FINLEY, Plaintiff, v.
DUN & BRADSTREET CORP, and the Dun & Bradstreet Corporation Retirement Account, Defendants. No. 05 C 5134. | March 30, 2006.
Attorneys and Law Firms Paul William Mollica, Michael M. Mulder, Thomas R. Meites, Meites, Mulder, Mollica & Glink, Chicago, IL, Thomas G. Moukawsher, Moukawasher & Walsh, Hartford, CT, for Plaintiff. Michael P. Roche, Adam K. Gusman, Winston & Strawn, Chicago, IL, Patrick W. Shea, Paul, Hastings, Janofsky & Walker, Stamford, CT, for Defendants. Opinion
MEMORANDUM OPINION AND ORDER
PLUNKETT, Senior J. *1 Jack Finley (“Plaintiff”) has filed a lawsuit against Dun & Bradstreet Corp., and The Dun & Bradstreet Corporation Retirement Account (“D & B” or “Defendants”) challenging Defendants’ 1997 pension plan conversion. Plaintiff alleges that Defendants have violated the Employment Retirement Income Security Act of 1974 (“ERISA”) as amended, 29 U.S.C. § 1001 et seq., by converting its pension from a traditional plan to a cash balance plan. Plaintiff seeks relief on behalf of himself and all others who have participated both in the former and current plan. Finley is a resident of Illinois, and Defendants are incorporated in Delaware and have their principal place of business in New Jersey. Before the Court is Defendants’ motion, pursuant to 28 U.S.C. § 1404(a), to transfer the matter to the federal district court of New Jersey. After carefully balancing private and public interest factors, we find that the interests of justice are best served by transferring Plaintiff’s claims to the District of New Jersey.
Facts D & B is a Delaware Corporation with its principal place of business in New Jersey. Plaintiff, a resident of Illinois, began his career with Defendants in 1978 and until his position was “spun off” in 2001, he participated each year in Defendants’ retirement plan. D & B’s traditional pension plan, the Master Retirement Plan or (“MRP”), was converted to a cash balance plan January 1, 1997. (Compl.¶ 21.) There are nearly 5,000 putative class members who reside in Illinois, New Jersey, New York, and Pennsylvania. (Def’s Mot. to Transfer at 2; James Geoghan Affidavit ¶ 6.) Fewer than four percent of the class members are located in Illinois. (Id.) The plan administrator and the plan sponsor for the new plan are located in New Jersey at D & B headquarters. The plan is governed by and construed according to federal law, as well as New York law, but only where such laws are not preempted by federal law. (Id. at Ex. A.)
Discussion The Court may “[f]or the convenience of parties and witnesses [and] in the interest of justice ... transfer any civil action to
1

Finley v. Dun & Bradstreet Corp., Not Reported in F.Supp.2d (2006)
another district or division where it might have been brought.” 28 U.S.C. § (“section”) 1404(a). A district court may transfer a case where: (1) venue is proper in the transferor district; (2) venue is proper in the transferee district; and (3) the transfer will serve the convenience of the parties and the witnesses, and the interests of justice. Schwarz v. Nat’l Van Lines, Inc., 317 F.Supp.2d 829, 833 (N.D.Ill.2004). In a motion for transfer, the defendant bears the burden of overcoming the strong presumption that the plaintiff’s forum of choice is the most convenient. Zelinski v. Columbia 300, Inc., 335 F.3d 633 (7th Cir.2003); Truserv Corp. v. Neff, 6 F.Supp.2d. 790, 793 (N.D.Ill.1998). To meet this burden, a defendant must show that the private interests of the parties and the public interests of the court are best served in an alternative forum. Truserv, 6 F.Supp.2d at 793. Private interest factors to be considered include: (1) the plaintiff’s choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof in each forum, including the courts’ power to compel the appearance of unwilling witnesses and the costs of obtaining the attendance of witnesses; and (4) the convenience to the parties, their residences and their abilities to bear the expense of trial in a particular forum. Id. Public interest factors include: (1) the relationship between the forum community and the subject of the litigation; (2) the court’s familiarity with applicable law; and (3) the congestion of the respective court dockets. Id.
Proper Venue *2 The parties agree that venue is proper both in Illinois and New Jersey. For a corporation, venue is proper in its state of incorporation, in any state which it is licensed to do business, and in any state where it is doing business. 28 U.S.C. § 1391(c). Illinois is proper because Defendants are doing business in Illinois and are subject to personal jurisdiction in Illinois. Likewise, Defendants are subject to personal jurisdiction in New Jersey, as it is D & B’s principal place of business. Specifically under ERISA, venue is proper “in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found.” 29 U.S.C. § 1132(e)(2). The plan is administered in New Jersey, the breach occurred in Illinois, New Jersey, New York, and Pennsylvania, and Defendants’ headquarters are in New Jersey. Thus, under ERISA, venue is also proper in either the Northern District of Illinois or the District of New Jersey.
The only question before us is whether District of New Jersey is significantly more convenient than the Northern District of Illinois for the parties, the witnesses, and the interests of justice. We will weigh each of the private and public interest factors separately to determine whether D & B has met its burden.
Plaintiff’s Choice of Forum The plaintiff’s choice of forum is generally accorded great deference, particularly where, as here, the plaintiff has chosen its home forum. Brandon Apparel Group, Inc. v. Quitman Mfg. Co., 42 F.Supp.2d 821, 833 (N.D.Ill.1999). This factor would usually weigh heavily against transfer. However, the deference shown a plaintiff’s choice of forum is diminished where, as here, Plaintiff is a representative of a class. See e.g. Georgouses v. NaTec Resources, Inc., 963 F.Supp. 728, 730 (N.D.Ill.1997)(stating that because “plaintiff alleges a class action, plaintiff’s home forum is irrelevant.”) Plaintiff’s choice thus becomes “simply one factor among many to be considered.” Tensor Group, Inc. v. All Press Parts & Equip., Inc., 966 F.Supp. 727, 730 (N.D.Ill.1997).
Plaintiff argues that his choice of forum is entitled not to a diminished standard, but to a heightened deference because this is an ERISA case. In the context of an ERISA case, the plaintiff’s choice of forum is sometimes afforded substantial deference. This special consideration is given because Congress intended to protect the integrity of the benefit plans by allowing the plaintiff-fund a more efficient way to collect delinquent contributions. Central States v. Madison Cartage Co., No. 86 C 8705, slip op. at 3 (N.D.Ill. May 4, 1987). The fund’s assets would be compromised “if [they] were forced to prosecute every action in the district where the employer resided,” since “this could cause considerable hardship and expense to the fund (and its ultimate beneficiaries).” Id. In that context, the interests of justice are promoted where the transaction costs of the employee benefit funds are minimized.
*3 Defendants agree that in certain ERISA situations, courts are less likely to disturb a plaintiff’s forum choice. However, Defendants contend that the heightened deference does not apply in the instant matter. We agree. The fund is not the plaintiff as it was in the cases where heightened deference was appropriate, nor is it trying to collect delinquent contributions from employers. The Plaintiff, here, is suing his employer for issues that arose when the employer converted the pension plan from and MRP to a cash balance plan. Moreover, Plaintiff brings his claim on behalf of a putative class, the vast majority of whom are located in New Jersey, New York, and Pennsylvania, and for these reasons, Plaintiff’s choice of forum will be just one factor that is considered in contemplation of a transfer.
2

Finley v. Dun & Bradstreet Corp., Not Reported in F.Supp.2d (2006)
Situs of Material Events The deference given to a plaintiff’s choice of forum is also diminished where the situs of material events occurred in the alternative forum. Pansophic Sys., Inc. v. Graphic Computer Serv., Inc., 736 F.Supp. 878, 880-81 (N.D.Ill.1990). D & B contends that because the decision to convert the plan was in New Jersey and the conversion itself occurred in New York, the situs of material events do not weigh in favor of Illinois. Plaintiff avers that although the decision and conversion did happen in the New Jersey area, Defendants offer no explanation as to why the District of New Jersey is a more appropriate court. Finley opines that unlike in a tort case where the location is important to see, in the instant matter, the parties will merely be exchanging documents and the situs is of no particular consequence.
In his complaint Finley claims that Defendants have violated ERISA because they: (1) did not notify plan participants that their benefits would be reduced; (2) failed to provide participants with a summary plan description about their new benefits; (3) conditioned the amount of benefits payable; (4) reduced the rate of accruals based on a participants age; and (5) failed to correctly inform participants of their pensions. All of the alleged missteps occurred in New Jersey where the plan is administered. The plan change was approved and the decisions and consulting took place in either Connecticut where the plan was based prior to 1996, or in the New Jersey area. Thus, as Plaintiff’s choice of forum is further diminished, this factor weighs in favor of transfer.
Access to Proof D & B argues that transfer is appropriate because most of the records and documents relating to the pension plan change are located in the New Jersey and New York areas. Also, D & B contends that most of the witnesses surrounding the plan’s administration and conversion are located in the New Jersey area and the power to compel such non-party individuals is much stronger by a New Jersey district court. Moreover, the cost to transport these key individuals is substantially more if the matter were to remain in Illinois.
*4 Finley states that this case that is largely based on documents, which can be easily transported to any court. He offers that when the location of documents and records are at issue, the moving party must explain that there is some particular hardship to transfer the documents to the Plaintiff’s forum choice. Bohara v. Backus Hosp. Med. Ben. Plan, 390 F.Supp.2d 957, 963 (D.Cal.2005).
Although Defendants do not highlight the particular difficulty in transporting the documents the proof exists beyond the documents. There are individuals that were apparently integral in the pension plan decisions that may need to appear in court and Defendants have sufficiently asserted that it is more practical to access the witness if the case were in the New Jersey district court. While they undoubtedly could be compelled to come to Illinois, that would be costly and time-consuming. Further, the number of such individuals in all probability is quite large. This factor weighs significantly in favor of transfer.
Convenience for Witnesses Party witnesses are generally assumed to be under the control of the party and thus their voluntary appearance in court is assumed. Spherion Corp. v. Cincinnati Fin. Corp., 183 F.Supp.2d 1052, 1059 (N.D.Ill.2002). As a result, non-party witnesses are more crucial to the question of the convenience of a forum. Id.
D & B has identified former decision-makers at D & B, as well as representatives from the law firm who consulted D & B, as potential witnesses that will need to be present in a courtroom. However, D & B fails to inform us why the individuals’ testimony is material or even that they would be unwilling to submit themselves in the Court of the Northern District of Illinois. Accordingly, this factor does not favor transfer.
Convenience of the Parties Litigating a lawsuit in one’s home forum is naturally more convenient than litigating in a foreign forum, and thus D & B must show that “transfer would do more than merely transform an inconvenience for one party into an inconvenience for the other party.” Brandon Apparel, 42 F.Supp.2d at 834.
3

Finley v. Dun & Bradstreet Corp., Not Reported in F.Supp.2d (2006)
D & B suggests that litigating the claims in Illinois would create a financial hardship for over half of the class members because they do not reside in Illinois. D & B also states that there are several individuals from its corporate headquarters that would need to be available and would be inconvenienced if they were forced to travel to Chicago for the pendency of the trial. Plaintiffs contend that testimony from the putative class members will not be needed, and therefore fifty-seven percent of the class would actually not be inconvenienced as Defendants suggest. On the other hand, Finley will be needed in court and if he was forced to litigate in New Jersey, he would be inconvenienced.
Where financially insecure individuals facing lawsuits from well-funded corporations or a corporation for whom litigation away from home presented unique hardships that would destroy the company, financial hardship will come into play. See Truserv, 6 F.Supp.2d at 794; Law Bulletin Publ’g Co. v. LRP Publ’ns, Inc., 992 F.Supp. 1014, 1019 (N.D.Ill.1998); Courtesy Carribean v. Aquilar, No. 95-C1786, 1995 WL 549127, at *3 (N.D.Ill. Aug.31, 1995). D & B has not apprised the Court of its current financial status and has not argued that litigating the case in Illinois will lead to its ruin. Furthermore, Finley has not proclaimed that he will face any unique hardships beyond inconvenience. In short, D & B has not demonstrated that transfer would do more than exchange D & B’s inconvenience for Finley’s and where both parties are equally inconvenienced, the plaintiff choice is given more regard. In re: National Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir.2003). We find that this factor slightly tips in favor against transfer.
Ability of Court to Apply Law *5 This case is brought under federal statute and therefore subject to federal law. Although in the plan it states that New York law will apply where it is not preempted by federal law, the district court in either Illinois or New Jersey is equally able to apply federal law. The parties agree that this factor does not weigh in favor of either side.
Congestion of Docket D & B argues that, according to the court’s case profiles, the District of New Jersey is less congested than the Northern District of Illinois. (Defs.’ Mot. Trf. Ex. E.) Plaintiff contends that although the caseload is slightly higher in the Northern District of Illinois, it is not enough to justify transfer.
The caseloads are, in fact, higher in Illinois and the time from filing to disposition or trial are also protracted in the Northern District of Illinois. A longer road to disposition or trial will only increase the expenses of both parties, and trying the case in the Northern District of Illinois will further clog an already congested court. Thus, this factor favors transfer.
Interest of States in Outcome of the Litigation Both Illinois and New Jersey have interest in allowing their residents a forum in which to resolve disputes. The pension plan is administered in New Jersey, but affects residents from Illinois, New Jersey, New York, and Pennsylvania. However, the plan itself will be directly affected, as will the vast majority of the beneficiaries, by a court ruling on the propriety of the amendments to the plan. This factor slightly favors a transfer to New Jersey.
After carefully reviewing each of the important factors, we must balance to determine the most appropriate forum in which to resolve this dispute. We believe that D & B has sufficiently established that the interests of justice are best served by transferring this matter to the District of New Jersey.
Conclusion
For the foregoing reasons, Defendants’ Motion to Transfer Plaintiff’s Complaint is granted. This case is hereby transferred to the United States District Court for New Jersey. It is so ordered.
Parallel Citations
4

Finley v. Dun & Bradstreet Corp., Not Reported in F.Supp.2d (2006) 38 Employee Benefits Cas. 2053
5

 
 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...
CLOSED, KEYS, TRANSFER
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:05-cv-05134

Finley v. Dun & Bradstreet Corp et al Assigned to: Honorable Paul E. Plunkett Cause: 29:1001 E.R.I.S.A.: Employee Retirement

Date Filed: 09/07/2005 Date Terminated: 03/30/2006 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Plaintiff Jack Finley

represented by Paul William Mollica Meites, Mulder, Burger & Mollica 208 South LaSalle Street Suite 1410 Chicago, IL 60604 (312) 263-0272 Email: pwmollica@mmbmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johanna J. Raimond Law Offices of Johanna J. Raimond Ltd. 321 S. Plymouth Court Suite 1515 Chicago, IL 60604 (312) 235-6959 Email: jraimond@raimondlaw.com TERMINATED: 03/10/2006

Michael M. Mulder Meites, Mulder, Mollica & Glink 20 South Clark Street Suite 1500 Chicago, IL 60603 (312) 263-0272 Fax: (312) 263-2942 Email: mmmulder@mmbmlaw.com ATTORNEY TO BE NOTICED

Thomas R. Meites Meites, Mulder, Mollica & Glink 20 South Clark Street Suite 1500 Chicago, IL 60603

1 of 6

3/13/2008 10:54 PM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...

(312) 263-0272 Fax: (312) 263-2942 Email: tmeites@mmbmlaw.com ATTORNEY TO BE NOTICED
Thomas G. Moukawsher Moukawasher & Walsh 21 Oak Street Suite 209 Hartford, CT 06106 (860) 278-7000 Email: tmoukawsher@mwlawgroup.com ATTORNEY TO BE NOTICED

V. Defendant Dun & Bradstreet Corp
Defendant Dun & Bradstreet Corporation Retirement Account

represented by Michael P. Roche Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601-9703 (312) 558-5600 Email: mroche@winston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick W. Shea Paul, Hastings, Janofsky & Walker 1055 Washington Boulevard 9th Floor Stamford, CT 06901 (203) 961-7400 Email: patrickshea@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Gusman Winston & Strawn LLP 35 West Wacker Drive Chicago, IL 60601-9703 (312) 558-5600 Email: agusman@winston.com ATTORNEY TO BE NOTICED
represented by Michael P. Roche (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

2 of 6

3/13/2008 10:54 PM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...

Date Filed 09/07/2005 09/07/2005 09/07/2005 09/20/2005 09/20/2005 09/27/2005
11/09/2005
11/09/2005
12/12/2005
12/12/2005
12/12/2005
12/12/2005

Patrick W. Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Gusman (See above for address) ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT filed by Jack Finley (eav, ) (Entered: 09/08/2005)
2 CIVIL Cover Sheet (eav, ) (Entered: 09/08/2005)
3 ATTORNEY Appearance for Plaintiff Jack Finley by Paul William Mollica, Johanna Josie Raimond (eav, ) (Entered: 09/08/2005)
5 ATTORNEY Appearance for Plaintiff Jack Finley by Thomas R. Meites (eav, ) (Entered: 09/23/2005)
6 ATTORNEY Appearance for Plaintiff Jack Finley by Michael M. Mulder (eav, ) (Entered: 09/23/2005)
7 APPLICATION for Leave to Appear Pro Hac Vice on behalf of Jack Finley by Thomas G Moukawsher; Order entered granting leave by Paul E. Plunkett. Filing fee $ 100 paid, receipt number 10330261 (eav, ) (Entered: 09/29/2005)
8 WAIVER OF SERVICE returned executed by Jack Finley. Dun & Bradstreet Corp waiver sent on 10/19/2005, answer due 12/19/2005. (Mulder, Michael) (Entered: 11/09/2005)
9 WAIVER OF SERVICE returned executed by Jack Finley. Dun & Bradstreet Corporation Retirement Account waiver sent on 10/19/2005, answer due 12/19/2005. (Mulder, Michael) (Entered: 11/09/2005)
10 ATTORNEY Appearance for Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account by Michael P. Roche (Roche, Michael) (Entered: 12/12/2005)
11 ATTORNEY Appearance for Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account by Adam K Gusman (Gusman, Adam) (Entered: 12/12/2005)
12 MOTION by Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account for extension of time to file answer regarding complaint1 (Roche, Michael) (Entered: 12/12/2005)
13 NOTICE of Motion by Michael P. Roche for presentment of motion for extension of time to file answer, motion for relief12 before Honorable Paul E. Plunkett on 12/15/2005 at 11:30 AM. (Roche, Michael) (Entered: 12/12/2005)

3 of 6

3/13/2008 10:54 PM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...

12/15/2005 12/15/2005 01/12/2006
01/12/2006 01/13/2006 01/13/2006 01/13/2006 01/18/2006 01/20/2006
01/27/2006 01/27/2006 01/27/2006

14 ATTORNEY Appearance for Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account by Patrick W. Shea (Shea, Patrick) (Entered: 12/15/2005)
15 MINUTE entry before Judge Paul E. Plunkett : Defendants' motion for extension of time to 1/18/2006 to answer or otherwsie plead 12 is granted. Status hearing set for 1/24/2006 at 09:30 AM. (clw, ) (Entered: 12/15/2005)
16 MOTION by Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account for leave to file excess pages in Brief, IN SUPPORT OF MOTION TO TRANSFER VENUE, OR IN THE ALTERNATIVE TO DISMISS (AGREED) (Roche, Michael) (Entered: 01/12/2006)
17 NOTICE of Motion by Michael P. Roche for presentment of motion for leave to file excess pages16 before Honorable Paul E. Plunkett on 1/17/2006 at 10:00 AM. (Roche, Michael) (Entered: 01/12/2006)
18 MINUTE entry before Judge Paul E. Plunkett : Defendants' agreed motion for leave to file excess of 15 pages16 is reset to 1/20/2006 at 10:00 AM. Status hearing set for 1/24/2006 is stricken. (clw, ) (Entered: 01/13/2006)
19 MOTION by Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account for extension of time to file answer regarding complaint1 (Roche, Michael) (Entered: 01/13/2006)
20 NOTICE of Motion by Michael P. Roche for presentment of motion for extension of time to file answer, motion for relief19 before Honorable Paul E. Plunkett on 1/20/2006 at 10:00 AM. (Roche, Michael) (Entered: 01/13/2006)
21 MINUTE entry before Judge Paul E. Plunkett : Defendants' agreed motion for extension of time to 1/27/2006 to answer or otherwise plead 19 is granted. (clw, ) (Entered: 01/18/2006)
22 MINUTE entry before Judge Paul E. Plunkett : Motion hearing held. Defendants' motion for leave to file excess pages 16 is moot. Briefing schedule set as follows: Defendants' motion to transfer is due by 1/27/2006. Response due by 2/17/2006. Reply due by 2/27/2006. Ruling set for 3/28/2006 at 09:30 AM. Defendants time to answer or otherwise plead is stayed until the Court rules on the motion to transfer. (clw, ) (Entered: 01/20/2006)
23 MOTION by Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account to transfer case (Shea, Patrick) (Entered: 01/27/2006)
24 MEMORANDUM by Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account in Support of motion to transfer case23 (Attachments: # 1 Exhibits A-B# 2 Exhibits C-E)(Shea, Patrick) (Entered: 01/27/2006)
25 NOTICE of Motion by Patrick W. Shea for presentment of before Honorable Paul E. Plunkett on 2/3/2006 at 10:00 AM. (Shea, Patrick) (Entered: 01/27/2006)

4 of 6

3/13/2008 10:54 PM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...

02/13/2006 02/17/2006 02/23/2006 02/27/2006
03/03/2006 03/03/2006 03/10/2006 03/27/2006 03/30/2006
03/30/2006 04/17/2006 05/04/2006

26 Corporate Disclosure STATEMENT by Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account (Shea, Patrick) (Entered: 02/13/2006)
27 MEMORANDUM by Jack Finley in Opposition to motion to transfer case23 (Attachments: # 1 Exhibit A: Declaration of Jack Finley# 2 Exhibit B: Judicial Caseload Statistics)(Raimond, Johanna) (Entered: 02/17/2006)
28 NOTICE by Johanna Josie Raimond of Change of Address (Raimond, Johanna) (Entered: 02/23/2006)
29 REPLY by Defendants Dun & Bradstreet Corp, Dun & Bradstreet Corporation Retirement Account to motion to transfer case23, memorandum in opposition to motion27, memorandum in support of motion24 (Attachments: # 1 Exhibits A-C)(Shea, Patrick) (Entered: 02/27/2006)
30 MOTION by Plaintiff Jack Finley to withdraw as attorney (Raimond, Johanna) (Entered: 03/03/2006)
31 NOTICE of Motion by Johanna Josie Raimond for presentment of motion to withdraw as attorney30 before Honorable Paul E. Plunkett on 3/10/2006 at 10:00 AM. (Raimond, Johanna) (Entered: 03/03/2006)
32 MINUTE entry before Judge Paul E. Plunkett : Motion of Johanna J. Raimond for leave to withdraw as one of the attorneys for plaintiff 30 is granted. Mailed notice (rmm, ) (Entered: 03/13/2006)
33 MINUTE entry before Judge Paul E. Plunkett : Ruling date on motion to transfer set for 3/28/2006 is stricken; ruling will be by mail. (clw, ) (Entered: 03/27/2006)
34 MINUTE entry before Judge Paul E. Plunkett : Enter Memorandum Opinion and Order. Defendant's motion to transfer case 23 is granted. The case is transferred to the United States District Court, District of New Jersey, Newark Division. Civil case terminated. (lcw, ) (Entered: 03/31/2006)
35 MEMORANDUM Opinion and Order Signed by Judge Paul E. Plunkett on 3/30/2006.(lcw, ) (Entered: 03/31/2006)
36 TRANSFERRED to the USDC, District of New Jersey, Newark Division with certified copy of transfer order and docket sheet via certified mail number 7004 2510 0001 9721 1990. (lcw, ) (Entered: 04/17/2006)
37 ACKNOWLEDGEMENT Of Tranfer case to New Jersey District Court new case number 2:06cv01838-WJM-RJH. (lcw, ) (Entered: 05/05/2006)

5 of 6

PACER Service Center

Transaction Receipt

03/13/2008 17:18:56

PACER Login: wu0079

Client Code:

3/13/2008 10:54 PM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... file:///C:/Documents%20and%20Settings/Matt/Desktop/Matt's%20Wor...

Description: Docket Report Search Criteria: 1:05-cv-05134

Billable Pages: 3

Cost:

0.24

6 of 6

3/13/2008 10:54 PM