UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Kathi Cooper, Beth Harrington, and Matthew Hillesheim, Individually and on Behalf of All Those Similarly Situated,
Plaintiff,
v.
The IBM Personal Pension Plan, and IBM Corporation,
Defendants.

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) Civil Action No. 99-829 GPM

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CLASS ACTION

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SECOND AMENDED COMPLAINT

Parties, Jurisdiction and Venue

1. PlaintiffKathi Cooper is a citizen ofthe United States who resides in Madison

County, Illinois.

2. Plaintiff Beth Harrington is a citizen of the United States who resides in

Rochester, Minnesota.

3. Plaintiff Matthew Hillesheim is a citizen of the United States who resides in

Rochester, Minnesota.

4. Defendant the IBM Personal Pension Plan (the "Plan") is a "defined benefit plan"

within the meaning of Employment Retirement Income Security Act ("ERISA") § 3(35), 29

U.s.C. § 1002(35).

5. Defendant IBM Corporation ("IBM") is Delaware corporation with its principal

place of business in New York. IBM is the "administrator" and "plan sponsor" ofthe Plan

within the meaning of ERISA §§ 3(16) and (17), 29 U.S.C. § 1002(16) and (17).

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6. This Court has jurisdiction over the subject matter ofthis action pursuant to 28 u.S.C. §§ 1331 and 29U.S.C. § 1132(e)(1).
7. Venue is proper in this Court pursuant to 29 U.S.c. § 1132(e)(2), in that the breach upon which the suit is premised occurred in this judicial district and/or because IBM and/or the Plan may be found in this judicial district.
Allegations of Fact 8. Ms. Cooper commenced full-time employment with IBM on May 21, 1979, and she remains so employed today. 9. Ms. Cooper commenced participation in the Plan effective as of May 21, 1979, and she continues to participate in the Plan as of today. Ms. Cooper is a "participant" in the Plan within the meaning of ERISA § 3(7), 29 U.S.C. § 1002(7) 10. Ms. Cooper has obtained several statements from the Plan which calculate both her current accrued benefit as well as her projected accrued benefit under the terms of the Plan. 11. The benefit statements provided to Ms. Cooper understate the accrued benefit and the projected accrued benefit to which she is legally entitled by ignoring the application ofthe accrual and vesting rules imposed by ERISA on all defined benefit plans. 12. Ms. Cooper has not filed a claim for benefits under the Plan's claims procedures because she seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary. In addition, Ms. Cooper has not attempted to exhaust her administrative remedies because to do so would be futile.
I I Ms. Harrington commenced full-time employment with IBM in approximately
1990, and terminated her employment with IBM in August 2000.
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14. Ms. Harrington commenced participation in the Plan effective as of 1990. Ms. Harrington's benefits under the Plan accrued pursuant to the Cash Balance Retirement Account formula. Ms. Harrington is a "participant" in the Plan within the meaning of ERISA § 3(7), 29 U.S.c. § 1002(7)
12:. Ms. Harrington has obtained statements from the Plan which calculate both her
current accrued benefit as well as her projected accrued benefit under the terms of the Plan. 16. The benefit statements provided to Ms. Harrington understate the accrued benefit
and the projected accrued benefit to which she is legally entitled by ignoring the application of the accrual and vesting rules imposed by ERISA on all defined benefit plans.
17. Ms. Harrington has not filed a claim for benefits under the Plan's claims procedures because she seeks relief from violations of ERISA statutory provisions which do not
require the exercise of discretion by a claims fiduciary. In addition, Ms. Harrington has not
attempted to exhaust her administrative remedies because to do so would be futile. ~ Mr. Hillesheim commenced full-time employment with IBM in approximately
1996. He terminated employment with IBM in March 2000. ~ Mr. Hillesheim worked less than five years for IBM and, therefore, the benefits he
accrued in the Plan did not vest under the Plan's vesting schedule. Mr. Hillesheim is a "participant" in the Plan within the meaning ofERISA § 3(7), 29 U.S.c. § 1002(7)
20. Mr. Hillesheim has not filed a claim for benefits under the Plan's claims procedures because he seeks relief from violations of ERISA statutory provisions which do not
require the exercise of discretion by a claims fiduciary. In addition, Mr. Hillesheim has not
attempted to exhaust his administrative remedies because to do so would be futile.
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Class Action Allegations

21.

Plaintiffs seeks class action certification, in that: (a) the conduct complained of

is widespread, affecting as many as 140,000 active Plan participants, making joinder of all claims

impracticable; (b) Plaintiffs' claims are typical of those of the class; and (c) there are common

questions of law and fact which predominate. The common questions of law and fact include,

among others: (i) whether the benefits earned by the Plan participants have been calculated

correctly as required by ERISA; (ii) whether the benefits provided under the terms of the Plan

accrue at a rate which is reduced because of age; and (iii) whether the adoption ofthe 1999

amendment (effective July 1, 1999) increased the potential that defendant IBM will receive a

reversion on termination of the Plan.

22. Plaintiffs' will fairly and adequately represent the interests of the members of the

class. Their interests are the same as, and not in conflict with, the other members of the class.

Plaintiffs' counsel is experienced in class action and complex litigation involving pension plans.

23. Plaintiffs request that this Court certify the following Class pursuant to Fed. R.

Civ. P. 23(b)(2):

"All individuals who have participated in the IBM Personal Pension Plan at any time after

December 31, 1994."

COUNT I

24. Plaintiffs Cooper and Harrington incorporate by reference the allegations of

paragraphs 1-23 above in this Count.

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25. The Plan's benefit fonnula used to compute plaintiffs' accrued benefit violates the accrual rules contained in ERISA § 204(b), 29 U.S.C. § l054(b), in that:
a. Effective as ofJanuary 1, 1995, and at all times thereafter, benefits accruing under the tenns of the Plan do not satisfy any of the three rules found in subparagraphs (A), (B) or (C) of ERISA § 204(b)(1), 29 U.S.c. § 1054(b)(I);
b. Effective as of January 1, 1995, and at all times thereafter, benefits provided under the tenns of the Plan are reduced on account of increases in age or service, and therefore the Plan does not comply with the accrual rule of subparagraph (0) of ERISA § 204(b)(I), 29 U.S.C. § 1054(b)(1)(0); and
c. Effective as of January 1, 1995, and at all times thereafter, benefits provided under the terms of the Plan accrue at a rate which is reduced because of age or the attainment of any age, and therefore the Plan does not comply with the accrual rules of subparagraph (H) of ERISA § 204(b)(1)(H), 29 U.S.C. § lOS4(b)(J)(H). 26. Pursuant to ERISA § 502(a)(3), 29 U.S.c. § 1132(a)(3), plaintiffs are entitled to a judgment enjoining the Plan and IBM from continuing to violate the foregoing provisions of ERISA and to detennine and calculate their benefits in a manner which is consistent with such provisions. 27. Pursuant to ERISA § S02(a)(3), 29 U.S.c. § 1132(a)(3), plaintiffs are entitled to appropriate equitable relief to redress the Plan's violations of the foregoing provisions of ERISA and to enforce such provisions.
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COUNT II 28. Plaintiffs Cooper and Harrington incorporate by reference the allegations of paragraphs 1-27 in this Count. 29. Pursuant to ERISA § 502(a)(I)(B), 29 U.S.C. § 1132(a)(1)(B), plaintiffs are entitled to a judgment clarifying their right to receive future benefits from the Plan, calculated under the terms of the Plan, to the extent those terms are not inconsistent with the applicable provisions of ERISA.
COUNT III 30. Plaintiffs Cooper. Harrington and Hillesheim inc01:porate by reference the allegations of paragraphs 1-29 in this Count. 31. IBM amended the Plan effective July 1, 1999 (the "1999 Amendment") to reduce the rate of future benefit accruals provided by the Plan. 32. The adoption ofthe 1999 Amendment has increased the potential that IBM will receive a reversion on termination of the Plan, resulting in a partial termination of the Plan. 33. Pursuant to the terms of the Plan, in the event of a partial termination of the Plan, the rights of all affected participants to benefits accrued as of the date of the partial termination shall be non-forfeitable, to the extent those benefits are funded as of such date. 34. Pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), plaintiffs are entitled to a mandatory injunction ordering IBM to comply with the terms of the Plan by declaring a partial termination of the Plan effective as of July 1, 1999, treating the accrued benefits of all affected participants as non-forfeitable.
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WHEREFORE, plaintiffs pray for the following relief: 1. Certification of this action as a class action with the class defined as aforesaid. 2. Judgment for plaintiffs and the Class against defendants on all claims asserted
herein including an amount of money sufficient to satisfy their claims; 3. Pre- and post-judgment interest; 4. Attorneys' fees and costs pursuant to the common fundlbenefit doctrine or any
other applicable law; and 5. Any other and further relief as the Court deems appropriate under the
circumstances. Respectfully submitted,
Douglas R. Sprong Carr, Korein, Tillery, Kunin, Montroy, Cates, Katz & Glass, LLC 10 Executive Woods Court Swansea, Illinois 62226 (618) 277-1180 Fax: (618) 277-4676 Robert F. Hill John H. Evans Hill & Robbins, P.C. 100 Blake Street Building 1441 Eighteenth Street Denver, CO 80202 (303) 296-8100 Fax: (303) 296-2388
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William K. Carr Law Offices of William K. Carr 2222 E. Tennessee Avenue Denver, CO 80209 (303) 296-6383 Fax: (303) 296-6652 Attorneys for Plaintiff Certificate of Service
S- The undersigned hereby certifies that on the I day of September 2000, service of
the foregoing pleading was made by placing a true and correct copy of same in the United States mail, postage prepaid, addressed as follows:
Frederick J. Hess, Esq. Lewis, Rice & Fingersh 325 South High Street Belleville, IL 62220 Michael S. Horne, Esq. Covington & Burling 1201 Pennsylvania Avenue, NW Washington, D.C. 20004-2401
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

KATHI COOPER, BETH HARRINGTON, )

and MATTHEW HILLESHEIM,

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Individually and on Behalf of All Those )

Similarly Situated,

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Plaintiffs,

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vs.

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THE IBM PERSONAL PENSION PLAN )

and IBM CORPORATION,

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Defendants.

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CIVIL NO. 99-829-GPM

MEMORANDUM AND ORDER
MURPHY, Chief District Judge: This matter is before the Court on Class Counsel’s Motion for Award of Attorneys’ Fees,
Costs and Incentive Awards (“Fee Request”) (Doc. 352). Based upon the entire record in this case, including the objections and other comments filed by the Class Members and the arguments presented at the hearing held on August 8, 2005, the Court finds and orders as follows:
This litigation started November 1, 1999, and will continue for at least another year as the parties continue to litigate two of the central issues before the United States Court of Appeals and potentially the United States Supreme Court. IBM’s 1995 implementation of a pension equity formula and its 1999 implementation of a cash balance formula raise six difficult and novel issues. It was clear when this case was filed that it would be hard fought and was likely to be ultimately resolved by the Court of Appeals for the Seventh Circuit or perhaps the United States Supreme Court. In fact, early in the case the Court observed at an oral argument that “I understand . . .
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whatever I do here will be reviewed de novo in the Court of Appeals. And of the cases I have handled here, I believe that this case has the best chance of ending up in the United States Supreme Court. . . .” Transcript of Oral Arg. at 4:23-5:8 (Dec. 17, 2002).
On September 17, 2001, this Court certified the case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of three Subclasses. Subclass 1 consists of Class Members who accrued benefits under the Pension Credit Formula adopted by the Plan effective January 1, 1995, but did not accrue any benefits under the Cash Balance Formula adopted by the Plan effective July 1, 1999. Subclass 2 is comprised of Class Members who accrued a benefit under the Cash Balance Formula adopted by the Plan effective July 1, 1999. There are more than 250,000 members of Subclasses 1 and 2. Subclass 3 consists of approximately 15,000 individuals who were participants in the Plan as of July 1, 1999, but did not complete five years of service such that they did not vest in their Plan benefit. The Subclass 3 claims were settled under the terms of a Settlement Agreement approved by the Court on January 10, 2005 (see Docs. 287, 288). IBM subsequently filed an interlocutory appeal challenging the certification of the case as a class action. This appeal was denied by the United States Court of Appeals for the Seventh Circuit. See Cooper v. IBM, No. 01-8034 (7th Cir. Nov. 19, 2001).
This Court is familiar with the complex and novel issues involved in this case, as well as the work of Class Counsel in prosecuting the claims for more than five years of this hard-fought litigation. This prosecution has included extensive discovery, expert witness depositions, and voluminous briefing on all of the factual and legal issues, as well as numerous court hearings.
On May 18, 2005, the parties entered into a Settlement Agreement (“Settlement”). Following a hearing on August 8, 2005, the Court approved that Settlement as fair and reasonable
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and in the best interests of the Class following the required notice to Class Members. The Settlement requires IBM to amend the Plan to provide additional pension benefits to
eligible members of the Class which, when added to the amount of attorneys’ fees awarded by the Court to Class Counsel, will total in value $314,293,000 as of November 1, 2006. While the Settlement provides that Defendants will appeal the Court’s decision regarding liability on the Cash Balance Claim and the Always Cash Balance Claim, the Settlement resolves the issues regarding the remedies that should be awarded with respect to these claims in the event this Court’s rulings are upheld on appeal. IBM agrees that if the Court’s liability ruling in favor of the Class on the Always Cash Balance Claim is upheld on appeal, the Plan will be amended to provide additional pension benefits. The additional value of those benefits, including the attorneys’ fees awarded by the Court to Class Counsel in connection with that claim, will be $620,000,000 (in addition to the guaranteed amount of $314,293,000). IBM also agrees that if the Court’s liability ruling in favor of the Class on the Cash Balance Claim is upheld on appeal, the Plan will be amended to provide additional pension benefits which, along with the attorneys’ fees awarded by the Court to Class Counsel in connection with that claim, will total $1,714,293,000.
Notably, the Settlement provides that any benefit provided to a participant as a result of the Settlement Agreement is an independent Plan obligation separate, apart from, and in addition to any other benefit accrued by a participant before the Settlement Date under the Cash Balance Formula, the Pension Credit Formula, or any formula under any other employee pension benefit plan sponsored by IBM. In addition, any pension benefit a participant would otherwise accrue under any Plan formula, or any other employee pension benefit plan sponsored by IBM based on service after the Settlement Date, will not be reduced or offset by and will not wear away any participant’s
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Settlement Benefit. Finally, IBM waives any defense or right to assert any precedent or policy that might preclude or prohibit the entry of retroactive relief.
Class Counsel seeks fees on a decreasing percentage as follows: (1) an amount equal to 29% of the amount of any Settlement Benefits recovered up to $250 million; (2) an amount equal to 25% of the amount of any Settlement Benefits recovered in excess of $250 million up to the amount of $750 million; (3) an amount equal to 21% of the amount of any Settlement Benefits recovered in excess of $750 million up to the amount of $1,250 million; and (4) an amount equal to 17% of any Settlement Benefits recovered in excess of $1,250 million. If the Class prevails on all claims, the blended fee produced by the above percentages is 22.25%. Class Counsel also requests incentive awards of $40,000 for Ms. Cooper and $20,000 for Ms. Harrington to be paid out of the attorneys’ fees and costs award. Class Counsel is not requesting any additional recovery to reimburse them for the expenses they already have incurred or will incur in the future but have agreed to reimburse themselves for those costs out of whatever fees are awarded by this Court.
In considering Class Counsel’s Fee Request, this Court is guided by the numerous decisions of the Seventh Circuit requiring the Court to do its “best to award counsel the market price for legal services, in light of the risk of nonpayment and the normal rate of compensation in the market at the time.” In re Synthroid Marketing Litig., 264 F.3d 712, 718 (7th Cir. 2001) (“Synthroid I”); see also Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 565 (7th Cir. 1994) (directing district court to determine fair attorneys’ fees in class action by considering the probability of success at the outset of the litigation); In re Continental Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) (“The object in awarding a reasonable attorney’s fee . . . is to give the lawyer what he would have gotten in the way of a fee in an arm’s length negotiation, had one been feasible.”). Where, as here, it is “impossible
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to know ex post exactly what terms would have resulted from arm’s-length bargaining ex ante, courts must do their best to recreate the market by considering factors such as actual fee contracts that were privately negotiated for similar litigation, information from other cases, and data from class-counsel auctions.” Taubenfeld v. Aon Corp., No. 04-3140, 2005 WL 1560331, at *1 (7th Cir. July 5, 2005).
Based on the evidence before the Court regarding the market for class counsel in cases of this type and a long line of ERISA decisions, it is appropriate to award Class Counsel a percentage of recovery fee in this case. Florin, 34 F.3d at 563; Mark Berlind, Attorney’s Fees under ERISA: When is an Award Appropriate?, 71 Cornell L. Rev. 1037, 1060-61 (1986) (“Applying the common benefit doctrine reflects the statute’s purpose. . . . Nothing in ERISA indicates that Congress intended to preempt the common benefit doctrine.”). As the Ninth Circuit stated in Staton v. Boeing Company, 327 F.3d 938, 967 (9th Cir. 2003), “We conclude, as have the two other circuits that have addressed the issue, that there is no preclusion on recovery of common fund fees where a feeshifting statute applies.” Citing Brytus v. Spang & Co., 203 F.3d 238, 246-247 (3rd Cir. 2000); Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998). This reasoning is appropriate here, where an award of attorneys’ fees under ERISA’s fee-shifting statute is not automatic and depends upon a variety of factors. See, e.g., Quinn v. Blue Cross & Blue Shield Ass’n., 161 F.3d 472, 478 (7th Cir. 1998).
The Seventh Circuit has indicated that “the decision whether to use a percentage method or a lodestar method remains in the discretion of the district court.” Florin, 34 F.3d at 566. In exercising that discretion, the Seventh Circuit has noted that in common fund/benefit cases, “the measure of what is reasonable [as an attorney fee] is what an attorney would receive from a paying client in a similar case.” Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 408 (7th Cir. 2000); see
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also In re Continental Illinois Securities Litig., 985 F.2d 867 (7th Cir. 1992). Thus, “[t]he approach favored in the Seventh Circuit is to compute attorney’s fees as a percentage of the benefit conferred on the class,” particularly where that percentage of the benefit approach replicates the market. Williams v. General Elec. Capital Auto Lease, No. 94-C-7410, 1995 WL 765266, *9 (N.D. Ill. Dec. 26, 1995); see also Long v. Trans World Airlines, Inc., 1993 WL 121824, *1 (N.D. Ill. Apr. 19, 1993). Here, a percentage of the benefit approach clearly best replicates the market.
The uncontested evidence in this case is that Plaintiffs could not afford to retain counsel on any basis other than a contingent fee. Cooper Dec. at ¶ 3. Class representative Kathi Cooper attests that she would not have hired Class Counsel on an hourly basis. Id. There is no reason to believe that any other Class Member would have been willing to pay hourly fees in the hope that the case would be successful and the fees paid ultimately recovered from IBM. Class Counsel, nationally recognized experts in ERISA pension benefit cases, attest that they have not and would not accept a similar case on any basis other than a contingency fee basis. Sprong Aff. at ¶ 6. The record before the Court establishes that no other capable counsel was willing to take the case on any basis. Cooper Dec. at ¶ 5; Carr Dec. at ¶¶ 8-14; Lewis Dec. at ¶¶ 11-14. Thus, the undisputed evidence is that the market for legal services for this litigation is a contingency fee. In fact, even the vast bulk of the objectors do not disagree that a percentage of the recovery approach is appropriate in this case, they merely dispute the appropriate percentage.
In determining what an appropriate percentage should be in the unique circumstances of this case, the Court has considered a number of factors. Class Counsel submitted affidavits and briefs setting forth a large number of other large ERISA class actions in which counsel have been awarded fees similar to or greater than the percentages requested here. In addition, this Court is personally
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familiar with fees in a significant number of relatively similar cases that have been awarded in this District, and the Fee Request in this case is below the amount in many of those cases in spite of the fact that this case involved similar—or in all likelihood far more—risk.
While not dispositive, attorneys’ fees from analogous class action settlements are indicative of what the market is for such representation and, therefore, what an appropriate fee should be here. As this Court noted in awarding Class Counsel 29% of the recovery in connection with the settlement of the claims on behalf of the Subclass 3 members, “we have a pretty substantial body of case law now built up on these complex cases and it seems as if 30 percent is just about the bench mark.” Transcript of Final Approval Hearing, Subclass 3, at 4:9-11 (Jan. 1, 2005). Similarly, the Court notes that the Affidavit of Jeffrey Lewis, a nationally recognized expert in prosecuting complex ERISA litigation, indicates that his firm has regularly been awarded fees in the neighborhood of 25% of the recovery. Lewis Dec. at ¶ 17. Importantly, as Mr. Lewis’s affidavit makes clear, those awards occurred in cases with substantially less risk than here. As Mr. Lewis attests, due to the extreme risk in this case, his firm declined to bring it or any other case raising these issues until after this Court’s July 31, 2003 Order. Lewis Dec. at ¶ 14. The Court has reviewed the Declaration of Stephen Susman, a prominent trial counsel with vast experience in complex litigation, who attests that if he had been asked to undertake this case for an individual client or group of clients on a nonclass basis, he would have done so only if they had agreed to pay his expenses and also his standard 33 1/3 contingent fee. Susman Dec. at ¶ 6.
The Seventh Circuit’s recent decision in Taubenfeld v. Aon indicates that it is also appropriate to consider the “quality of legal services rendered and the contingent nature of the case.” Taubenfeld, No. 04-3140, 2005 WL 1560331, at *3. The quality of the legal work of all counsel in
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this case has been exemplary. The quality of Class Counsel’s legal work both in and out of the courtroom is ably demonstrated by the benefits conferred on the Class as a result of the Settlement. Even if the Class were to lose both of the issues on appeal, the Settlement would be one of the largest pension settlements in the nation’s history. And in the event that the Class prevails on either or both of the issues on appeal, the Settlement is likely to be the largest pension settlement in history.
It is clear that the Settlement represents a solid achievement in terms of the benefits it provides Class Members compared to what they could have achieved by further litigation. For example, as noted by Defendants in their moving papers seeking approval of the Settlement, Class Counsel not only achieved record-breaking additional benefits for the Class but also achieved a “valuable guarantee that plaintiffs could not have obtained in litigation—an assurance from defendants that they will not offset or ‘wear away’ the supplemental benefits provided by the Settlement against pension benefits earned for future service to IBM.” (See Doc. 353 – Defendants’ Memorandum in Support of Joint Motion for Approval of Settlement – at 6.) While it is an extremely valuable benefit to the Class Members, it is not, as a mathematical matter, reflected in the value of the recovery, but it warrants consideration.
The degree of risk of nonpayment in this case was high at the outset. It is undisputed that at the time Class Counsel initiated this action no other qualified counsel in the country would do so. When this case was commenced in 1999, only two courts had considered legal challenges to cash balance plans, and both decisions were summary judgment orders rejecting the plaintiffs’ claims. See Esden v. Retirement Plan of the First National Bank of Boston, 182 F.R.D. 432 (D. Vt. 1999); Lyons v. Georgia-Pacific Corp. Salaried Employees Ret. Plan, 66 F.Supp.2d 1328 (N.D. Ga. 1999).
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Shortly after this case was filed, another district court rejected a claim that cash balance plans violate
ERISA § 411(b)(1)(H). See Eaton v. Onan Corp., 117 F.Supp.2d 812 (S.D. Ind. 2000). To date,
Class Counsel are the only attorneys in the country who have prevailed on the claim that a pension
equity formula or a cash balance plan formula violates ERISA § 411(b)(1)(H).
The Court is also aware from the voluminous briefing in this case that there was not only a
high degree of risk in the litigation context, but there was also considerable additional risk that either
regulatory or legislative action might eliminate any potential for success in the courtroom. In short,
there can be no question that the risk of nonpayment in this case was extraordinarily high, much
higher than in the other large pension cases of which this Court is aware. In addition to facing an
uphill legal and political battle, it was equally clear that anyone representing Plaintiffs would be
required to overcome a well-financed adversary and prominent defense counsel with abundant
financial and legal resources at their disposal.
In determining an appropriate percentage of the recovery to award, this Court is mindful of
the directive in Synthroid I that,
the district court must estimate the terms of the contract that private plaintiffs would have negotiated with their lawyers, had bargaining occurred at the outset of the case (that is, when the risk of loss still existed). The best time to determine this rate is the beginning of the case, not the end (when hindsight alters the perception of the suit’s riskiness, and sunk costs make it impossible for the lawyers to walk away if the fee is too low). This is what happens in actual markets. Individual clients and their lawyers never wait until after recovery is secured to contract for fees.
Synthroid I, 264 F.3d at 718 (emphasis in original).
All of the evidence before the Court indicates that in the event the IBM employees had been
required as a group to negotiate the terms of a fee contract with Class Counsel at the outset of the
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case, the fee percentage contained in the resulting contract would have been equal to—and more likely higher than—the Fee Request before this Court.
This Court has also considered data from so-called class-counsel auctions. The Court notes that in In re: Synthroid Marketing Litig., 325 F.3d 974 (7th Cir. 2003) (“Synthroid II”), the Seventh Circuit indicated that the sophisticated third-party payors (the insurance companies) in that case negotiated a flat 22% rate even after the risk of the litigation had passed and a recovery was assured. 325 F.3d at 976, 978 (explaining the 22% rate was agreed to “after a good deal of the risk had been dissipated” and that the TPPs still “had to offer 22% to sign up lawyers on a contingent fee.”). To apply the rationale of that case to the circumstances of this case, the Court must take into consideration the notable differences between the auctions conducted in the securities field where literally dozens of skilled and experienced law firms battle each other to represent the class and typically base their cases on long established legal precedents and the situation present here.
As nationally known pension lawyer Jeffrey Lewis attests, there are only a handful of lawyers in the country who have the expertise and background to practice in this area (compared to the thousands of attorneys who practice securities litigation), and none of them was willing to undertake the risk of pursuing cases challenging cash balance plans in 1999 or for years thereafter. Lewis Dec. at ¶¶ 12-14. The evidentiary record also demonstrates that several of the best and most prominent employment firms in the country specifically refused to take the case on behalf of the IBM employees on any terms. Carr Dec. at ¶¶ 8-13. Similarly, Mr. Susman attests that “if the Court had held an auction at the beginning of this case for qualified counsel to undertake this litigation, no qualified firm would have proposed a fee structure below what Class Counsel is requesting in this case.” Susman Dec. at ¶ 8; see also Carr Dec. at ¶ 14.
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Based on all the evidence and testimony, the Court concludes that if an “auction” had in fact taken place, Class Counsel would have been the only bidder and, in light of the risk then involved, would have extracted a far higher fee that they are now requesting. Thus, the undisputed evidence before this Court indicates that under the standards enunciated in Synthroid I and Synthroid II, Class Counsel’s Fee Request (inclusive of costs) is at or below what application of an “auction” scenario would have determined.
Class Counsel will be required to continue to litigate the two central issues in this case for an indefinite period of time. Not only will that involve additional time and expense, but it also involves additional risk. This is a unique factor in this case and merely emphasizes the reasonable nature of the Fee Request, as any counsel negotiating a fee contract at the outset of the litigation would certainly have taken the potential for appellate litigation into consideration in setting a fee in light of the very novel issues involved in this case.
In analyzing the appropriate fee to be awarded to Class Counsel, the Court has also given careful consideration to the objections that have been filed with the Court regarding the Fee Request. The most notable aspect of those objections is how few were filed. Although more than 272,000 potential Class Members were notified by first class mailing, only 45 objected to the Fee Request in any fashion. This is particularly remarkable in light of the sophistication of the Class Members and the high degree of interest in this litigation by the Class Members as evidenced by the fact that the website IBM established to provide additional information regarding the Settlement to Class Members received more than 38,000 visits. A significant number of the objections to the Fee Request (33 out of the total of 45) are individuals who have filed letters indicating that they agree with a longer statement of objection filed by Mr. Leas. Apparently Mr. Leas’s statement was widely
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circulated on the internet in an effort to solicit additional objections agreeing with his point of view. Putting aside the mischaracterizations and inaccuracies regarding both the Class claims and
the Settlement in Mr. Leas’s objection, his objection ignores any consideration of the controlling Seventh Circuit authority. Instead, it relies almost totally on information Mr. Leas selectively culls from a law review article reporting on a statistical study of class action fee awards. Putting aside the limitations of that study and the potential for distortion when one tries to apply it to arrive at an appropriate fee in this case under the proper Seventh Circuit standards, when one closely examines the article for cases in the category applicable here (the over $190 million decile), the mean fee percentage was 16.4%, the median was 17.6%, and the standard deviation was 9.6%. Applying those percentages here, a fee award of 26% on a $929 million recovery would be presumptively reasonable, and an award of up to 35.6% potentially could be reasonable, depending on the complexity of the case and the risks involved. The study supports the reasonableness of the Fee Request, considering the risk and complexity of this case.
It is plain to see that Class Counsel greatly benefit from a contingent fee scheme. But this case could have ended differently in which event Counsel would have toiled for years having fronted the costs of the litigation for no reward whatsoever. In that event no one would argue that a contingent fee agreement along the lines approved here was unreasonable.
The Fee Request is unreasonable only if the result was likely from the outset, which is not the case. The motion for attorneys’ fees, costs, and incentive awards (Doc. 352) is GRANTED. The Plan shall pay Class Counsel fees as an administrative cost of the Plan in accordance with the Settlement Agreement and calculated on a decreasing percentage as follows: (1) an amount equal to 29% of the amount of any Settlement Benefits recovered up to $250 million; (2) an amount equal
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to 25% of the amount of any Settlement Benefits recovered in excess of $250 million up to the amount of $750 million; (3) an amount equal to 21% of the amount of any Settlement Benefits recovered in excess of $750 million up to the amount of $1,250 million; and (4) an amount equal to 17% requested of any Settlement Benefits recovered in excess of $1,250 million. Class Counsel shall pay incentive awards of $40,000 to Ms. Cooper and $20,000 to Ms. Harrington out of the attorneys’ fees paid by the Plan and shall also reimburse themselves for any expenses they already have incurred or will incur in the future out the attorneys’ fees awarded by this Court.
Finally, for the reasons set forth on the record at the August 8, 2005 hearing, the final motion for settlement approval (Doc. 351) is GRANTED, and the Clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED. DATED: 08/16/05
s/ G. Patrick Murphy G. PATRICK MURPHY Chief United States District Judge
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 Page 1

9 of 9 DOCUMENTS
KATHI COOPER, BETH HARRINGTON, and MATTHEW HILLESHEIM, Individually and on Behalf of All Those Similarly Situated, Plaintiffs, vs. THE IBM
PERSONAL PENSION PLAN and IBM CORPORATION, Defendants.
CIVIL NO. 99-829-GPM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
274 F. Supp. 2d 1010; 2003 U.S. Dist. LEXIS 13223; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

July 31, 2003, Decided July 31, 2003, Filed

SUBSEQUENT HISTORY: Subsequent appeal at Cooper v. IBM Pers. Pension Plan, 2004 U.S. Dist. LEXIS 2415 (S.D. Ill., Feb. 12, 2004)

DISPOSITION:

[**1] Plaintiffs' motions for

summary judgment granted. Plaintiffs' appeal of

magistrate's order denied as moot with leave to reinstate.

Defendants' motion to dismiss for lack of standing and

motions for summary judgment denied.

COUNSEL: For Kathi Cooper, Individually and on Behalf of All Those Similarly Situated, PLAINTIFF: Steven A Katz, Douglas R Sprong, Carr, Korein Et Al, Swansea, IL USA.
For Kathi Cooper, Individually and on Behalf of All Those Similarly Situated, Beth Harrington, Individually and on Behalf of All Those Similarly Situated, Matthew Hillesheim, Individually and on Behalf of All Those Similarly [**2] Situated, PLAINTIFFS: Robert F Hill, John H Evans, Hill & Robbins, Denver, CO USA.
For Kathi Cooper, Individually and on Behalf of All Those Similarly Situated, PLAINTIFF: William K Carr, Law Offices of William K Carr, Denver, CO USA.

For IBM Personal Pension Plan, The, IBM Corporation, DEFENDANTS: Michael S Horne, Jeffrey G Huvelle, Robert D Wick, Covington & Burling, Washington, DC USA.
For IBM Personal Pension Plan, The, IBM Corporation, DEFENDANTS: Frederick J Hess, Lewis, Rice Et Al, Belleville, IL USA.
JUDGES: G. PATRICK MURPHY, Chief United States District Judge.
OPINION BY: G. PATRICK MURPHY
OPINION
[*1012] MEMORANDUM AND ORDER
MURPHY, Chief District Judge:
The Cooper class challenges IBM's pension plan ("Plan") as violative of the age discrimination prohibitions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461. All pending motions are listed in the appendix to this Memorandum and Order. (See Appendix A.)

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I. Factual Background
Plaintiff Cooper has been a Plan participant since May 21, 1979, the day she began her employment with IBM. Plaintiff Harrington was a Plan participant from 1990 to [**3] August 2000, when she terminated her employment with IBM. Towards the end of Harrington's employment, her pension benefits accrued pursuant to a Plan amendment made effective July 1, 1999. Plaintiff Hillesheim began employment with IBM in 1996 and terminated his employment in March 2000. He is a Plan participant, but because he was employed for fewer than five years, the benefits he accrued under the Plan did not vest.
IBM PLAN AMENDMENTS
The IBM Plan is a defined benefit pension plan 1 that provides benefits for IBM employees. Since 1995, the Plan has been amended twice. The changes created by these amendments are the basis of Plaintiffs' lawsuit.
1 Under a conventional defined benefit plan, an employee is credited with a specific percentage of his or her salary for each year of employment. See Esden v. Bank of Boston, 229 F.3d 154, 158 n.4 (2nd Cir. 2000). This differs from a defined contribution plan in which funds are actually deposited into an employee's account.
A. [**4] The January 1, 1995 Amendment
Before 1995, the IBM Plan provided benefits in the form of a lifetime annuity and a cash balance accumulation. On January 1, 1995, IBM's Board of Directors enacted an amendment to the Plan which adopted a plan design known as a pension equity plan. IBM coined its new design the Pension Credit Formula ("PCF").
PCF participants accrue a normal retirement benefit payable in the form of a life annuity commencing at age 65. Each year, a participant earns a specific number of "base points," which is determined by the employee's age in the year worked. Additionally, a participant can earn "excess points" if his or her five year average earnings are above social security compensation. Under this framework, however, a participant is permitted to accumulate no more than 425 base points and 75 excess points.

A participant's base points and excess points are applied to a five step formula to determine the monthly retirement benefit at age 65. Under this formula, a participant's base points are added, divided by 100, and multiplied by the average of his or her highest consecutive five year earnings. Then, after accounting for the participant's excess points, [**5] that number is divided by a "benefit conversion factor."
The class claims that the PCF violates ERISA because it is age discriminatory. This claim is based on the PCF's benefit conversion factor which increases in direct correlation to an employee's age. According to the class, this increase causes an older employee to receive a lower rate of benefit accrual and to have a smaller accrued benefit at age 65 than a younger employee, despite having worked the same number of years at the same salary as the younger employee.
B. The July 1, 1999 Amendment
Effective July 1, 1999, IBM again amended its Plan to create its Cash Balance [*1013] Formula ("CBF"). Under the CBF, a participant's benefit is determined by reference to a hypothetical account known as a Personal Pension Account ("PPA"). Every month, a participant's PPA accumulates "pay credits" at a rate of 5% of the employee's salary and "interest credits" at a rate one percentage point higher than the rate of return on one year treasury securities. When a participant's employment with IBM ends, he may withdraw his account balance as a lump sum, convert the account balance into an immediate life annuity, or defer the receipt of [**6] a lump sum payment or a life annuity until a later date. While a former employee is unable to earn additional pay credits, he continues to accumulate interest credits until his PPA balance is withdrawn or converted into a life annuity.
The class alleges that the CBF also violates ERISA's laws against age discrimination. This claim is based on how interest credits accrue on a participant's PPA balance until he reaches normal retirement age.
II. Standard of Review
All but one of the motions before the Court are motions for summary judgment. The standard applied to summary judgment motions filed under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:

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Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether a genuine issue of material fact exists, [the court] must view the record in a light most favorable to the nonmoving party. Because the primary purpose of summary judgment [**7] is to isolate and dispose of factually unsupported claims, the nonmovant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial. The evidence must create more than some metaphysical doubt as to the material facts. A mere scintilla of evidence in support of the nonmovant's position is insufficient; a party will be successful in opposing summary judgment only when it presents definite, competent evidence to rebut the motion.
Albiero v. City of Kankakee, 246 F.3d 927, 931-32 (7th Cir. 2001) (internal citations and quotations omitted).
III. Analysis
The Court's analysis will be divided into two sections: (1) all motions related to IBM's 1995 Pension Credit Formula; and (2) all motions related to IBM's 1999 Cash Balance Formula.
1995 PENSION CREDIT FORMULA
The class alleges that the terms of the IBM Plan, as amended January 1, 1995, violate ERISA § 204(b)(1)(G) & (H). Specifically, the class claims that under the PCF, benefits are reduced on account of increases in age or service in violation of § 204(b)(1)(G) and that the benefits [**8] accrue at a rate which is reduced because of age or the attainment of any age in violation of § 204(b)(1)(H). The class seeks to have Plan benefits determined in a manner consistent with these ERISA provisions and to enjoin IBM from continuing these violations.

Defendants move to dismiss the § 204(b)(1)(H) claim on the grounds that the ERISA age discrimination provisions apply only to employees who have reached normal retirement age (age 65), arguing that the younger Plaintiffs lack standing to sue. Defendants are wrong.
[*1014] ERISA § 502(a) provides that "[a] civil action may be brought ... (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a). The plain language of this provision confers statutory standing to plan participants, such as the named Plaintiffs, who seek to protect their employee benefit rights. Because Congress is entitled to enact statutes which create standing [**9] where it would otherwise not exist, see Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990), Defendants' motion to dismiss (Doc. 103) is denied.
A. § 204(b)(1)(G) Claim
Cooper filed a motion for partial summary judgment (Doc. 87) on July 18, 2002, seeking, in part, a determination that the PCF violates the age discrimination provision of ERISA § 204(b)(1)(G) because the amount of an employee's accrued benefit under the Plan decreases on account of the employee's age. Defendants have likewise filed a motion for summary judgment on the § 204(b)(1)(G) claim, arguing that no participant in the IBM Plan has ever experienced a reduction in his or her accrued benefit on account of an increase in age or service and, therefore, the named Plaintiffs lack standing to assert this claim.
Section 204(b)(1)(G) has been part of ERISA since its inception in 1974 and provides that "a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if the participant's accrued benefit is reduced on account of any increase in his age or service." 29 U.S.C. § 1054(b)(1)(G). In the context of a defined benefit [**10] plan, such as the IBM Plan, the term "accrued benefit" means "'the individual's accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age.'" 29 U.S.C. § 1002(23)(A). "Normal retirement age" is 65. See 29 U.S.C. § 1002(24); see also Esden v. Bank of Boston, 229 F.3d 154, 162 (2nd Cir. 2000).

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The PCF adopted by IBM in the January 1, 1995, amendment to its Plan violates ERISA. The following examples illustrate the violation.
A participant's retirement benefit is computed under the PCF by a five step formula: (1) the total number of base points earned at that time, up to a maximum of 425, are added and then divided by 100; (2) the number from the first step is multiplied by the average of the employee's highest consecutive five year earnings to determine what the Plan denominates as the "Base Point Benefit Value at Normal Retirement Age;" (3) if the employee's five year average earnings exceed social security compensation, the excess points earned are similarly added, up to a maximum of 75, divided by 100, and then multiplied by the dollar amount [**11] by which the employee's five year average exceeds social security compensation, to determine the employee's "Excess Point Benefit Value at Normal Retirement Age;" (4) the employee's Base Point Benefit Value at Normal Retirement Age and any Excess Point Benefit Value at Normal Retirement Age are added together to yield the employee's "Pension Credit Value at Normal Retirement Age;" and (5) this Pension Credit Value is then divided by a "Benefit Conversion Factor" specified in the Plan. The result is the dollar amount of the employee's annual annuity commencing at age 65, which can be divided by twelve to determine the monthly annuity.
Suppose an employee begins working for IBM at age 35 and earns an annual salary of $ 60,000.00 until his employment ends at [*1015] age 50. During this fifteen year period, he will accumulate 215 base points. See App. B. After dividing by 100, and multiplying by $ 60,000.00, the employee is assigned a "Base Point Benefit Value at Normal Retirement Age" of $ 129,000.00. Because termination occurs when this employee is 50 years old, his benefit conversion factor (which is divided into his $ 129,000.00 base point value) is 8.537. See App. C. Therefore, his [**12] age 65 accrued benefit is equal to $ 15,110.69 per year or $ 1,259.22 per month.
Now, change only the age -- our hypothetical employee starts his employment with IBM at age 50 instead of age 35. This employee will accumulate more base points than his younger counterpart; a total of 240. See App. B. After dividing by 100, and multiplying by $ 60,000.00, he is assigned a higher "Base Point Benefit Value at Normal Retirement Age" of $ 144,000.00.

However, this 65 year old employee is also assigned a higher benefit conversion factor equal to 10.918. See App. C. After his $ 144,000.00 base point value is reduced by this conversion factor, he is left with an age 65 accrued benefit equal to only $ 13,189.23 per year or $ 1,099.10 per month.
Finally, consider an employee who begins working at age 25 and earns $ 60,000.00 each year until he retires at age 65. By age 58, this employee has 423 base points and a benefit conversion factor of 10.543. See Apps. B & C. Applying the PCF's five step analysis, he has an age 65 accrued benefit of $ 24,072.84 per year or $ 2,006.07 per month. For an additional year of service, this same employee will receive only two (as [**13] opposed to sixteen) base points because he will have reached the 425 point cap. Notwithstanding, the employee's benefit conversion factor continues to rise to 10.596. See App. C. After applying the IBM formula, his age 65 accrued benefit has decreased to $ 24,065.69 or $ 2,005.47 per month. Each additional year he works, this employee will accumulate zero base points because of the cap. Still, as his years of service continue to increase, so does the benefit conversion factor. By age 65, this employee's benefit conversion factor will be 10.918. See App. C. Under the PCF, this will yield an accrued benefit of only $ 23,355.93 or $ 1,946.00 per month.
The benefit conversion factor contained in the PCF reduces a participant's accrued benefit solely on increases in age or service. Accordingly, the 1995 PCF violates ERISA § 204(b)(1)(G). See 29 U.S.C. § 1054(b)(1)(G). Defendants' argument that no specific employee has actually suffered a reduction in his or her accrued benefit is rejected because it relates to damages as opposed to liability and because Congress has conferred statutory standing to all "participants" in an ERISA plan. [**14] See 29 U.S.C. § 1132(a)(3). Plaintiffs' motion for partial summary judgment on Count I (Doc. 87) is granted, and Defendants' motion for partial summary judgment on Count I (Doc. 105) is denied.
B. § 204(b)(1)(H)
Cooper's motion for partial summary judgment on Count I also seeks a determination that the PCF in the 1995 IBM Plan violates ERISA § 204(b)(1)(H) because the rate of an employee's benefit accrual under the Plan decreases on account of the employee's age. Defendants have also filed a motion for summary judgment on the § 204(b)(1)(H) claim.

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Section 204(b)(1)(H) was enacted as part of the Omnibus Budget Reduction Act of 1986 and provides that "a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment [*1016] of any age." 29 U.S.C. § 1054(b)(1)(H).
Under the PCF, the rate of accrual of an employee's immediately-payable benefit steadily increases with age. However, the PCF can result in a decrease in the rate at which an employee's age [**15] 65 annuity accrues. Therefore, it is important whether § 204(b)(1)(H)'s term "rate of benefit accrual" refers to the rate at which an employee accrues a benefit payable in the form of an annuity that commences at age 65, or if an employee's "rate of benefit accrual" may be measured by reference to an immediate annuity.
ERISA does not explicitly answer this question. However, the term "accrued benefit" which appears in § 204(b)(1)(G) refers to an employee's accrued benefit "expressed in the form of an annual benefit commencing at normal retirement age." See 29 U.S.C. § 1002(23)(A); see also Esden, 229 F.3d at 163. Defendants argue that § 204(b)(1)(H)'s phrase "rate of benefit accrual" should not be expressed in the form of an age 65 benefit and that the term benefit accrual means something different than the term accrued benefit.
This argument is based on the actuarial premise "time value of money." According to Defendants, it is economically nonsensical to compare a 25 year old employee's rate of benefit accrual with a 64 year old employee's rate of benefit accrual by reference to the age 65 benefit that each has accumulated, [**16] because the 64 year old employee is set to receive his benefit much sooner. Accordingly, § 204(b)(1)(H)'s phrase "rate of benefit accrual" should be interpreted to refer to benefits payable immediately upon termination of employment.
From an economist's perspective, Defendants have a good argument. A dollar today is worth more than the promise of a dollar a year from now. This does not mean, however, that the PCF is legal.
ERISA creates specific rules relating to defined benefit plans. It is clear that a participant's accrued benefit, as it appears in § 204(b)(1)(G), must be measured by reference to the amount of an employee's annual

benefit at age 65. See 29 U.S.C. § 1002(23)(A); see also Esden, 229 F.3d at 163. The language at issue -- "rate of benefit accrual" -- is found in the very next subchapter, § 204(b)(1)(H). The best interpretation of this phrase is that it also refers to an employee's age 65 annual benefit and the rate at which that age 65 annual benefit accrues.
Defendants question why Congress would use different language in succeeding subparagraphs (accrued benefit and benefit accrual) unless it intended the subparagraphs [**17] to cover different types of benefits. The answer is simple. Congress chose to be grammatically correct. The term accrued benefit in § 204(b)(1)(G) means an employee's age 65 accumulated benefit. If Congress had used the term accumulated benefit in § 204(b)(1)(G), instead of the term accrued benefit, it would not have used the clumsy phrase "rate of accumulated benefit" in § 204(b)(1)(H). Presumably, Congress would have opted for standard English and used the phrase "rate of benefit accumulation," even though it intended to cover the same type of benefit in both subparagraphs. 2
2 For a simpler example, consider the word popcorn. Popcorn is the word used to describe the product created by exposing corn kernels to extreme heat. If asked to draft a phrase related to the speed of this process, one would not say "rate of popcorn." Rather, to be grammatically correct, one would say "the rate corn pops."
Congress intended § 204(b)(1)(H) to cover the rate at which a participant's age 65 benefit accrues under [**18] a defined benefit plan. So, is the rate of a participant's [*1017] benefit accrual under the PCF reduced because of the participant's age? The answer is yes, as illustrated by the previous hypotheticals.
A participant who works at IBM from age 35 to age 50 earning a salary of $ 60,000.00 will accrue an age 65 annual benefit under the PCF of $ 15,110.69. On the other hand, an employee who works for IBM from age 50 to age 65, also earning an annual salary of $ 60,000.00, will accrue an age 65 annual benefit under the PCF of only $ 13,189.23. To determine the "rate of benefit accrual" for these hypothetical employees, their age 65 annuity is divided by the product of their average compensation ($ 60,000.00) and years of service (15). See Doc. 88, App. C, p. 11. Thus, the 50 year old employee accrues an age 65 annual benefit at a rate of 1.68%. 3 In contrast, the 65 year old employee accrues an

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age 65 annual benefit at a rate of only 1.47%. 4
3 $ 15,110.68/($ 60,000.00 x 15). 4 $ 13,189.23/($ 60,000.00 x 15).
[**19] The decrease in rate of age 65 annual benefit accrual is also demonstrated by reference to the sharp yearly reduction in percentage that occurs to employees who have reached the 425 base point cap under the PCF. As previously noted, an employee who begins working for IBM at age 25 will reach the 425 base point maximum between ages 58 and 59. At age 59, after 35 years of service, he has accrued an age 65 annual benefit of $ 24,065.69 5 under the PCF. Therefore, his rate of benefit accrual is 1.15%. 6 At age 60, with an annual benefit of $ 23,945.91, his rate of benefit accrual drops to 1.11%. 7 This employee's rate of benefit accrual continues to decrease each year, leaving him with a rate of 0.95% 8 by age 65.
5 This employee has accumulated 425 base points and has a benefit conversion factor of 10.596. See Apps. B and C. Because his highest five year average salary is $ 60,000.00, the PCF would be applied as follows:
(425/100) = 4.25 4.25 x $ 60,000.00 = $ 255,000.00 $ 255,000.00/10.596 = $ 24,065.69. 6 Again, rate of benefit accrual is calculated by dividing an employee's age 65 annual benefit by (years of service x average compensation):
$ 24,065.69/(35 x $ 60,000.00) or $ 24,065.69/($ 2,100,000.00) = 1.15%. [**20] 7 $ 23,945.91/(36 x $ 60,000.00) or $ 23,945.91/($ 2,160,000.00) = 1.11%. 8 $ 23,355.93/(41 x $ 60,000.00) or $ 23,355.93/(2,460,000.00) = 0.95%.
These examples illustrate that under the PCF, a participant's rate of benefit accrual decreases because of the attainment of a certain age. For this reason, the PCF violates ERISA § 204(b)(1)(H). Plaintiffs' motion for partial summary judgment on Count I (Doc. 87) is granted, and Defendants' motion for partial summary judgment on Count I (Doc. 130) is denied.
C. § 204(b)(1)(A)(B) & (C) (Anti-backloading)
The class also claims that, effective January 1, 1995,

benefits accruing under the terms of the IBM Plan do not satisfy any of the three "anti-backloading" rules found in subparagraphs (A), (B), or (C) of ERISA § 204(b)(1). See 29 U.S.C. § 1054(b)(1). Defendants seek summary judgment on this claim. Defendants cannot comply with either the 3% rule or the 133 1/3% rule and must comply with the anti-backloading rules, if at all, by satisfying the fractional rule of § 204(b)(1)(C).
[*1018] The issue is [**21] whether the Plan's PCF satisfies subparagraph (C) during its "phase-in" period from January 1, 1995 (the date of the PCF's enactment) to December 31, 1999.
ERISA § 204(b)(1)(C) states:
[a] defined benefit plan satisfies the requirements of this paragraph if the accrued benefit to which any participant is entitled upon his separation from the service is not less than a fraction of the annual benefit commencing at normal retirement age to which he would be entitled under the plan as in effect on the date of his separation if he continued to earn annually until normal retirement age the same rate of compensation upon which his normal retirement benefit would be computed under the plan, determined as if he had attained normal retirement age on the date any such determination is made (but taking into account no more than the 10 years of service immediately preceding his separation from service). Such fraction shall be a fraction, not exceeding 1, the numerator of which is the total number of his years of participation in the plan (as of the date of his separation from the service) and the denominator of which is the total number of years he would have participated in the plan [**22] if he separated from the service at the normal retirement age. For purposes of this subparagraph, social security benefits and all other relevant factors used to compute benefits shall be treated as remaining constant as of the current year for all years after such current year.
29 U.S.C. § 1054(b)(1)(C).

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A 40 year old employee starts working for IBM on January 1, 1995, with an annual salary of $ 60,000.00 and quits one year later. His accrued annual benefit is $ 311.80. 9 To satisfy § 204(b)(1)(C), his "fractional rule benefit" (the age 65 annual accrued benefit to which he would be entitled under the PCF if he continued to earn $ 60,000.00 annually until he attained age 65, multiplied by the applicable fraction) must be less than or equal to $ 311.80. His annual accrued benefit is $ 21,707.27 10 if he continues working until age 65. The fraction used to reduce this amount is 1/25. 11 Thus, his fractional rule benefit is $ 868.29, 12 an amount greater than the benefit accrued on the date he stopped working for IBM. This violation continues until [*1019] the fourth year (1998) of the PCF's "phase-in" period. 13
9 Under the terms of the IBM Plan, the PCF uses compensation averaged over a five year period. However, compensation earned before 1995 cannot be used in this average. Therefore, from January 1, 1995, to December 31, 1999, a participant's average compensation is determined by adding together his total compensation and dividing by five. In the hypothetical above, the employee earning $ 60,000.00 per year has an average compensation of only $ 12,000.00 after his first year of service. The employee accumulated 15 base points and has a conversion factor of 5.773. See Apps. B & C. Using these figures, the analysis under the PCF is as follows:
(15/100) = .15 .15 x $ 12,000.00 = $ 1,800.00 $ 1,800.00/5.773 = $ 311.80. [**23] 10 This employee would accumulate 395 base points and would have a conversion factor of 10.918 if he continues working until age 65. See Apps B and C. Because under § 204(b)(1)(C) it is presumed that he continues earning $ 60,000.00 until age 65, the PCF would be applied as follows:
(395/100) = 3.95 3.95 x $ 60,000.00 = $ 237,000.00 $ 237,000.00/10.918 = $ 21,707.27. 11 Total # of years of participation in the plan (as of date of separation from service) / Total # of years he would have participated in the plan if he separated from the service at the normal retirement age. 12 $ 21,707.27 x (1/25) = $ 868.29.

13 1996: Benefit on date of separation = $ 1,187.73 [(30/100 x $ 24,000.00)/6.062]
Fractional rule benefit = $ 1,736.58 ($ 21,707.27 x 2/25)
1997: Benefit on date of separation = $ 2,545.17 [(45/100 x $ 36,000.00)/6.365]
Fractional rule benefit = $ 2,604.87 (21,707.27 x 3/25)
1998: Benefit on date of separation = $ 4,309.44 [(60/100 x $ 48,000.00)/6.683]
Fractional rule benefit = $ 3,473.12 (21,707.27 x 4/25)
[**24] But Defendants argue that § 204(b)(1)(C)'s language "as if he had attained normal retirement age on the date any such determination is made" should be interpreted to mean that the fractional rule benefit should be calculated as though the employee turned age 65 on the date his service ended. This is wrong. 14 Section 204(b)(1)(C) provides that the fractional rule benefit is the "annual benefit commencing at normal retirement age to which [an employee] would be entitled ... if he continued to earn annually until normal retirement age the same rate of compensation upon which his normal retirement benefit would be computed under the plan." (emphasis added). The words continued to earn annually until normal retirement age means that the employee's benefit must be calculated as though he remained employed until age 65.
14 For the reasons that follow in the text of this Order, § 204(b)(1)(C), when read as a whole, does not call for a fractional rule benefit calculated as though an employee turned age 65 on the date his service ended. The Court reads the phrase "as if he had attained normal retirement age on the date any such determination is made" as referring solely to an employee's rate of compensation, and is included to ensure that the salary that an employee is earning when his service ends is used as the employee's salary at age 65 when his fractional rule benefit is determined.
[**25] Moreover, if Defendants' interpretation is correct, § 204(b)(1)(C) is rendered meaningless. The 40 year old hypothetical employee used in the last example

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would have a fractional rule benefit of $ 7.03 15 at the end of his first year of employment as Defendants apply the statute. Congress did not intend § 204(b)(1)(C) to invalidate only those plans that produce less than [*1020] $ 7.03 in pension benefits for a 40 year old employee earning $ 60,000.00.
15 If the employee retired in 1996, after working only one year, he would be treated as having turned age 65 in 1996 for fractional rule purposes if Defendants have correctly interpreted § 204(b)(1)(G). Therefore, he would have accumulated 16 base points during this year of employment and would have a conversion factor of 10.918 under the PCF. See Apps. B and C. Thus, his fractional rule benefit would be calculated as follows:
(16/100) = .16 .16 x $ 12,000.00 = $ 1,920.00 $ 1,920.00/10.918 = $ 175.86
$ 175.86 x 1/25 = $ 7.03
In determining the applicable fraction, the Court uses a denominator that is determined by subtracting the employee's age when participation in the Plan began from age 65. Defendants may assume that based on their theory -- a fractional rule benefit is calculated as though an employee turned age 65 on the date his service ended -- the denominator in the applicable fractions should be determined by counting to age 65 as though the employee reached such age on the date employment was terminated. This assumption is unsupportable. If the applicable fraction used a denominator that counted forward only to the date that an employee's service ended, the fraction would always be one, a result that cannot be supported by § 204(b)(1)(C)'s language. To illustrate that the fraction would always be one (and thus there would be no reason for § 204(b)(1)(C) to instruct the usage of a fraction), again consider the hypothetical forty year old. If his service ends in 1998, the numerator will be three (number of years of participation in the Plan). The denominator would also be three because, by treating the employee as if he turned 65 at termination, there are no more years to add by assuming the employee continued working to normal retirement age.

[**26] Defendants argue that it is unfair to compare a partially phased in benefit with a fully phased in fractional rule benefit. But this is exactly the situation that § 204 is intended to cover. See Jones v. UOP, 16 F.3d 141, 144-45 (7th Cir. 1999). The PCF directs that a first year participant's salary be divided by five and accordingly that participant's benefits are "backloaded," i.e., five years of employment are required before the participant can ratably accrue pension benefits. Defendants' motion for summary judgment on the § 204(b)(1)(C) claim (Doc. 128) is denied.
THE CASH BALANCE PLAN
The 1995 PCF was intended to provide a rapid build up of plan value for young and mid-career hires while reducing generous early retirement subsidies. The PCF worked well, and by 1998 IBM had over 20,000 employees between 35 and 55 years of age who had fewer than five years of service. So, in 1998 IBM faced rising pension costs and diminishing pension income as a result of the benefits the company would be paying to their middle aged employees. But, the Plan was not strapped for cash, as there was a surplus of $ 8 billion at the close of 1997, and the Plan's [**27] assets were generating a return greater than what was required to cover the annual costs of providing benefits. Although IBM had not contributed to the Plan for several years, in 1997, 7% of IBM's total reported net earnings was pension income in the amount of $ 420 million.
In 1999 IBM again amended the Plan and opted for a "cash balance formula" whereby a participant's benefit is determined by reference to a hypothetical account. The Plan's actuaries projected that this CBF would produce annual savings of almost $ 500 million by 2009. These savings would result from reductions of up to 47% in future benefits that would be earned by older IBM employees.
IBM was aware of the age discrimination issues that would come with the new CBF. Indeed, the Plan's actuaries projected the age 65 annuity benefit earned by a younger employee for a year of service exceeded the benefit earned by an older employee for the same service. And, the actuaries calculated that the amount of an age 65 annuity earned each year by an employee under the CBF decreased as the employee aged. Nevertheless, the new CBF went into effect July 1, 1999. Due to negative reaction from employees, the Plan was amended a [**28] second time in September 1999 to permit more

274 F. Supp. 2d 1010, *1020; 2003 U.S. Dist. LEXIS 13223, **28; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

Page 9

employees to choose between being covered by the new formula or the previous formula.
The CBF had its intended effect. Plan income increased from $ 395 million in 1998 to $ 638 million in 1999. Astonishingly, Plan income was over $ 1 billion in 2001, and this accounted for 13% of IBM's overall net income.
The parties agree that the 1999 Plan as amended is a defined benefit plan. Therefore, the Plan must comply with the many and complex statutory strictures that apply to all defined benefit plans. IBM presents startling anomalies and absurdities that result from pushing the logic that Plaintiffs develop in their argument. But these anomalies and absurdities occur only because the CBF doesn't work within the longstanding statutory framework regarding defined benefit plans. The 1999 Plan looks like a defined contribution plan trying to pass for a defined benefit plan. It doesn't make the cut.
Before testing the CBF under ERISA § 204(b)(1)(H), it is helpful to compare the two types of pension plans authorized by ERISA. A defined contribution plan is easy to describe and understand. The sponsoring employer contributes a specified [*1021] amount into [**29] a separate account for each employee. The risks and rewards of the investment are borne by the employee. The employer does not guarantee a particular result and is off the hook. However, there is no opportunity for the employer to earn pension income or reduce the real costs of the contributions specified in the plan. In this type of plan, the sponsoring employer's performance is measured by what it puts into the plan. A defined benefit plan is a different creature. The sponsoring employer promises a certain result based upon a formula specified in the plan. The employer must deliver on the promise irrespective of how the funds set aside for this purpose fare in the financial markets. Here, the employer is literally on the hook but has the opportunity to earn pension income and reduce the real costs of funding a pension for employees. In this type of plan, the sponsoring employer's performance is measured by what comes out of the plan in terms of benefits.
A. Section 204(b)(1)(H)
The CBF adopted by the 1999 amendment to the Plan creates a hypothetical account referred to as a personal pension account ("PPA") for each participant. Benefits accrue by the addition of "pay [**30] credits"

and "interest credits" made to the participant's PPA. Future interest payments are guaranteed by the Plan irrespective of a participant's continued employment with IBM.
It is settled that a cash balance plan such as the IBM Plan is held to the same requirements regarding vesting and accrual of benefits as any defined benefit plan. Esden, 229 F.3d at 162-63. For each year of qualifying service, such a plan must provide for a definitely determinable, non-forfeitable, "accrued benefit." ERISA § 203(a). The accrued benefit must be expressed in the form of an annual benefit commencing at normal retirement age. 29 U.S.C. § 1002(23). Moreover, the interest credits that are projected and valued as an age 65 annuity must also be taken into account in determining whether a cash balance plan complies with the benefit accrual requirements under ERISA § 204(b)(1). Esden, 229 F.3d at 166, n. 18. This is where the CBF runs afoul of ERISA's age discrimination proscriptions.
Interest credits are apart of the accrued benefit specified in IBM's 1999 Plan, and these count in determining whether the benefit accrual requirements of [**31] § 204(b)(1) are met. And, like in any defined plan, the interest credits must be valued as an age 65 annuity. At this point in the analysis, the result is inevitable. In terms of an age 65 annuity, the interest credits will always be more valuable for a younger employee as opposed to an older employee. A noted pension expert summarized matters:
There is no dispute about the underlying arithmetic of cash balance arrangements: each year, as a cash balance participant ages, the same contribution made for her in the previous year declines in value in annuity terms. Moreover, cash balance arrangements are defined benefit plans and, therefore, measure accrued benefits in terms of annuities, not in terms of the contributions themselves.
Edward A. Zelinsky, The Cash Balance Controversy, 19 Virginia Tax Rev. 683, 733 (Spring 2000).
The 1999 CBF violates the literal terms of ERISA § 204(b)(1)(H). IBM's own age discrimination analysis illustrates the problem: a 49 year old employee with 20 years of service accrues an age 65 annuity of $ 8,093 in

274 F. Supp. 2d 1010, *1021; 2003 U.S. Dist. LEXIS 13223, **31; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

Page 10

the year 2000. The following year, he accrues an additional $ 622, and by 2010, his additional annual accrual is only $ 282. This 49 [**32] year old employee's benefit accrual has been reduced for each year he [*1022] has aged, and this reduction violates ERISA § 204(b)(1)(H).
IBM's argument that this example merely illustrates the time value of money at work collapses when the age 65 annuity is included in the analysis. The rate of a participant's benefit accrual diminishes as the participant closes on the age 65 target. And, age 65 is normal retirement age, and Congress did not intend the term "benefit accrual" to mean something different from "accrued benefit." The syntax differs ever so slightly so as to comport with the requirements of good English usage, but the concept is exactly the same.
ERISA does not require an employer to provide a pension plan at all, nor does it favor one type of plan over another. The question is not whether a CBF is a "good" thing. IBM could have accomplished what it has to date by terminating the defined benefit plan and moving to a defined contribution plan According to IBM, this was impractical as the Plan surplus could not have been "tax effectively" withdrawn; but, the point stands. There is nothing in ERISA to prevent IBM from moving to a defined contribution plan that functions like the [**33] CBF. There may be policy reasons why Congress should specifically authorize CBFs in the context of defined benefit plans. But the narrow question here is whether the 1999 Plan comports with the literal and unambiguous provisions of ERISA § 204(b)(1)(H), and it does not.
In short, IBM's argument goes to the wisdom of the statutory requirements that Congress adopted regarding defined benefit plans. These requirements were in effect before IBM considered adopting the CBF. IBM, like many other corporate plan sponsors, proceeded with open eyes and was fully informed of the consequences of the litigation that was sure to come. This Court will not perform legal legerdemain by dodging the detail requirements of ERISA in order to save IBM's 1999 Plan. Plaintiffs' cross motion for summary judgment regarding the CBF adopted by the IBM Plan by an amendment effective July 1, 1999 (Doc. 124) is granted. IBM's cross motion for summary judgment on Plaintiffs' age discrimination claim (Doc. 105) is denied.
B. Partial Termination

Defendants' motion for summary judgment on the issue of partial termination is denied because there is a genuine question of material fact (1) whether the July 1, 1999, amendment [**34] to the Plan resulted in a decrease in future benefit accruals, and (2) whether any such decrease increased the potential for a reversion. The effects of the subsequent amendment to the Plan which was adopted October 1, 1999, as IBM argues, may make the measurement of the effects of the change unreliable, but this itself constitutes a disputed material fact.
IV. Conclusion
Accordingly, Plaintiffs' motion for partial summary judgment on Count I (Doc. 87) is GRANTED. Defendants' motion to dismiss for lack of standing (Doc. 103) is DENIED. Defendants' motion for summary judgment on the age discrimination claim (Doc. 105) is DENIED. Defendants' motion for summary judgment on the § 204(b)(1)(G) claim (Doc. 107) is DENIED. Plaintiffs' motion for summary judgment on the cash balance formula (Doc. 124) is GRANTED. Plaintiffs' motion for summary judgment on the opening account balance under the cash balance formula (Doc. 127) is GRANTED. Defendants' motion for summary judgment on the anti-backloading claim (Doc. 128) is DENIED. Defendants' motion for summary judgment regarding the pension credit formula (Doc. 130) is DENIED. Defendants' [**35] motion for summary judgment regarding partial termination is DENIED. [*1023] Plaintiffs' appeal of the Magistrate's November 1, 2002, Order granting in part and denying in part the motion to compel discovery (Doc. 152) is DENIED as moot with leave to reinstate.
There is a triable issue of fact regarding Plaintiffs' anti-backloading claim as well as the partial termination claim. The parties will promptly proceed to develop the issue of what relief the Court should order.
IT IS SO ORDERED.
ENTERED this 31st day of July, 2003.
G. PATRICK MURPHY
Chief United States District Judge
APPENDIX A
The following motions are before the Court:

274 F. Supp. 2d 1010, *1023; 2003 U.S. Dist. LEXIS 13223, **35; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

Page 11

(1) Plaintiffs' motion for partial summary judgment on Count I (Doc. 87);
(2) Defendants' motion to dismiss Plaintiffs' § 204(b)(1)(H) claim for lack of standing (Doc. 103);
(3) Defendants' motion for partial summary judgment on Plaintiffs' age discrimination claim (Doc. 105);
(4) Defendants' motion for summary judgment on Plaintiffs' § 204(b)(1)(G) claim (Doc. 107);
(5) Plaintiffs' cross motion for partial summary judgment on Plaintiffs' age discrimination claim with respect to Cash Balance Formula [**36] (Doc. 124);
(6) Plaintiffs' motion for partial summary judgment on Count I -comparison formula for opening balances under 1999 cash balance formula (Doc.

127);
(7) Defendants' motion for summary judgment on anti-backloading claim (Doc. 128);
(8) Defendants' motion for summary judgment on Plaintiffs' § 204(b)(1)(H) claim with respect to pension credit formula (Doc. 130);
(9) Defendants' motion for summary judgment on Plaintiffs' horizontal partial termination claim (Doc. 133), and
(10) Plaintiffs' appeal of the Magistrate's November 1, 2002, Order granting in part and denying in part the motion to compel discovery (Doc. 152).
APPENDIX B

Age in Each Year Worked Younger than 30
30-34
35-39
40-44
45 and Older

Base Points Earned Each Year
7
9
12
15
16

Excess Points Earned Each Year
0
1
2
2
3

APPENDIX C
Age at Termination
40

Benefit Conversion Factors
5.498

274 F. Supp. 2d 1010, *1023; 2003 U.S. Dist. LEXIS 13223, **36; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

41

5.773

42

6.062

43

6.365

44

6.683

45

7.017

46

7.298

47

7.590

48

7.893

49

8.209

50

8.537

51

8.879

52

9.234

53

9.603

54

9.987

55

10.387

56

10.439

57

10.491

58

10.543

Page 12

[**37]

274 F. Supp. 2d 1010, *1023; 2003 U.S. Dist. LEXIS 13223, **36; 2003-2 U.S. Tax Cas. (CCH) P50,596; 30 Employee Benefits Cas. (BNA) 2511

59

10.596

60

10.649

61

10.702

62

10.756

63

10.810

64

10.864

65

10.918

Page 13

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

KATHI COOPER, BETH HARRINGTON, )

and MATTHEW HILLESHEIM,

)

Individually and on Behalf of All Those )

Similarly Situated,

)

)

Plaintiffs,

)

)

vs.

)

)

THE IBM PERSONAL PENSION PLAN )

and IBM CORPORATION,

)

)

Defendants.

)

CIVIL NO. 99-829-GPM

MEMORANDUM AND ORDER
Pursuant to this Court’s Order dated July 31, 2003 (see Doc. 193), and the Class Action Settlement Agreement with Respect to Subclasses 1 and 2 (“Settlement Agreement”), the Court finds as follows:
1. This action satisfies the requirements of Rule 23 for the reasons set forth in its prior certification order (see Doc. 70). The members of Subclasses 1 and 2 (“the Class”) have at all times been adequately represented by the Class Representatives and Class Counsel.
2. The Notice approved by the Court was sent by first class mail, postage prepaid, to the last known address of each individual identified as a potential Class Member. In addition, follow-up efforts were made to provide the Notice to individuals whose original Notice was returned as undeliverable, and the Notice was posted on a website. The Notice adequately described the relevant and necessary terms of the proposed Settlement Agreement. In the Matter of VMS Ltd. Partnership Sec. Litig., 26 F.3d 50, 51-52 (7th Cir. 1994); In the Matter of VMS Ltd., Partnership Sec. Litig., No. 89-C-9448, 1992 WL 203832, at *4 (N.D. Ill. Aug. 13, 1992); Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993).
3. The Notice provided to the Class fully complied with Rule 23, was the best notice Page 1 of 3

practicable, satisfied all constitutional due process requirements, and provides the Court with jurisdiction over the Class Members. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177-78 (1974); Phillips Petroleum v. Shutts, 472 U.S. 797 (1985).
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
5. The Court has considered and applied the factors set forth in Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir. 1980), overruled on other grounds, Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998), for evaluating the settlement and has concluded that the settlement is fair, reasonable, and adequate with respect to the members of Subclasses 1 and 2. Armstrong, 616 F.2d at 312.
6. For the reasons stated in the Court’s Order dated July 31, 2003, the Court concludes that the cash balance formula set forth in Article 11 of the Plan Document (“Cash Balance Formula”) violates ERISA § 204(b)(1)(H). Therefore, the Clerk is directed to enter judgment for the members of Subclasses 1 and 2 on their claim that the Cash Balance Formula violates § 204(b)(1)(H) and further enter judgment that these Class Members are entitled to relief for the violation as provided in the Settlement Agreement.
7. For the reasons stated in the Court’s Order dated July 31, 2003, with respect to the Cash Balance Formula, the Court concludes that the alternative formula for calculating an eligible employee’s opening cash balance account set forth in Article 17.5(b)(1)(B) of the Plan Document (“Always Cash Balance Formula”) violated ERISA § 204(b)(1)(H). The Clerk is directed to enter judgment for the members of Subclasses 1 and 2 on their claim that the Always Cash Balance Formula violates § 204(b)(1)(H) and further enter judgment that these Class Members are entitled to relief for the violation as provided in the Settlement Agreement.
8. Apart from the Cash Balance Claim and the Always Cash Balance Claim as defined in the
Page 2 of 3

Settlement Agreement, all other claims asserted by Plaintiffs in this action are DISMISSED with prejudice pursuant to the terms of the Settlement Agreement and in exchange for the consideration provided therein.
9. This Court retains jurisdiction over the interpretation, implementation, and enforcement of the Settlement Agreement, as well as any and all matters arising out of, or related to, the interpretation, implementation, and enforcement of the settlement or the Settlement Agreement. Without regard to the previous sentence, however, any court may dismiss a Released Claim if such a claim is asserted in such a court.
10. By separate Order, the Court has awarded attorneys’ fees and costs. Any attorneys’ fees and costs awarded by the Court will be paid by the Plan as an administrative cost of the Plan in accordance with (and to the extent provided in) the Settlement Agreement. Incentive awards approved by the Court will be paid by Class Counsel from their fees. Any other fees or costs incurred by a party will be paid by such party.
IT IS SO ORDERED. DATED: 08/16/05
s/ G. Patrick Murphy G. PATRICK MURPHY Chief United States District Judge
Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

KATHI COOPER, BETH HARRINGTON, )

and MATTHEW HILLESHEIM,

)

Individually and on Behalf of All Those )

Similarly Situated,

)

)

Plaintiffs,

)

)

vs.

)

)

THE IBM PERSONAL PENSION PLAN )

and IBM CORPORATION,

)

)

Defendants.

)

CIVIL NO. 99-829-GPM

JUDGMENT IN A CIVIL CASE
DECISION BY COURT. This matter came before the Court on cross motions for summary
judgment and a Class Action Settlement Agreement with Respect to Subclasses 1 and 2 (“Settlement Agreement”). The issues having been duly heard and a decision having been duly rendered,
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the members of
Subclasses 1 and 2 on their claim that the Cash Balance Formula violates ERISA § 204(b)(1)(H). These Class Members are entitled to relief for the violation as provided in the Settlement Agreement.
IT IS FURTHER ORDERED AND ADJUDGED that judgment is entered in favor of the
members of Subclasses 1 and 2 on their claim that the Always Cash Balance Formula violates ERISA § 204(b)(1)(H). These Class Members are entitled to relief for the violation as provided in the Settlement Agreement.
IT IS FURTHER ORDERED AND ADJUDGED that the Plan shall pay Class Counsel fees
as an administrative cost of the Plan in accordance with the Settlement Agreement and calculated on a

Page 1 of 2

decreasing percentage as follows: (1) an amount equal to 29% of the amount of any Settlement Benefits recovered up to $250 million; (2) an amount equal to 25% of the amount of any Settlement Benefits recovered in excess of $250 million up to the amount of $750 million; (3) an amount equal to 21% of the amount of any Settlement Benefits recovered in excess of $750 million up to the amount of $1,250 million;

and (4) an amount equal to 17% requested of any Settlement Benefits recovered in excess of $1,250 million. Class Counsel shall pay incentive awards of $40,000 to Ms. Cooper and $20,000 to Ms. Harrington out of the attorneys’ fees paid by the Plan and shall also reimburse themselves for any expenses they already have incurred or will incur in the future out of the attorneys’ fees awarded by this Court.

IT IS FURTHER ORDERED AND ADJUDGED that the claims of Subclass 3 were

dismissed pursuant to a Rule 54(b) judgment entered on January 10, 2005. All other claims asserted by

Plaintiffs in this action are now DISMISSED with prejudice pursuant to the terms of the Settlement

Agreement and in exchange for the consideration provided therein.

DATED: 08/16/2005

NORBERT G. JAWORSKI, CLERK

By: s/ Linda M. Cook Deputy Clerk

APPROVED: s/ G. Patrick Murphy G. PATRICK MURPHY CHIEF U.S. DISTRICT JUDGE

Page 2 of 2

 
 (2005)
KATHI COOPER, et al., Plaintiffs, v.
THE IBM PERSONAL PENSION PLAN, Defendant.
Civil No. 99-829-GPM.
United States District Court, S.D. Illinois.
January 10, 2005.
FINAL ORDER AS TO SUBCLASS 3
G. PATRICK MURPHY, Chief District Judge.
This matter came before the Court on the Class Plaintiff's motion for final approval of class action settlement with respect to Subclass 3, preliminarily approved by this Court on October 28, 2004. Pursuant to the Court's Preliminary Approval Order and the Notice provided to the Class, the Court conducted a fairness hearing under Federal Rule of Civil Procedure 23(e) on January 10, 2005. The Court has reviewed the materials submitted by the parties and heard arguments presented at the hearing. The Court finds and orders as follows:
1. The Court finds that this action satisfies the requirements of Rule 23, for the reasons set forth in its prior certification order, and further finds that Subclass 3 has at all times been adequately represented by the Named Plaintiff and Class counsel.
2. The Notice approved by the Court was provided by first class direct mail notice to the last known address of each individual identified as a potential settlement class member. In addition, follow-up efforts were made to send the Notice to individuals whose original notice was returned as undeliverable. The Notice adequately described all the relevant and necessary parts of the proposed settlement agreement. In the Matter of VMS Ltd. Partnership Sec. Litig., 26 F.3d 50, 51-52 (7th Cir. 1994); In the Matter of VMS Ltd. Partnership Sec. Litig., 1992 WL 203832 at *4 (N.D. Ill. 1992); Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993).
3. The Court finds that the Notice given to the Class fully complied with Rule 23, was the best notice practicable, satisfied all constitutional due process concerns, and provides the Court with jurisdiction over the Class members. Eisen v. Carlisle and Jacqueline, 417 U.S. 156, 177-78 (1974); Phillips Petroleum v. Shutts, 472 U.S. 797 (1985).
4. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
5. The Court has considered and applied the factors set forth in Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305, 312 (7th Cir. 1980), and has concluded that the settlement is fair, reasonable, and adequate. Armstrong, 616 F.2d at 312. Specifically, the Court finds the risk of continued litigation and the delay occasioned thereby strongly supports the proposed settlement.
6. Also supporting the settlement is the favorable response of the Settlement Class members. Out of approximately 16,286 individuals identified as potential Class members who were mailed the Notice, only four of the Class members objected to the proposed settlement on the grounds that it was inadequate.

None of these objectors appeared at this hearing for final approval. Because the Court finds the settlement adequate, the Court overrules the objections.
7. The only other "objections" to the proposed settlement were three requests to be excluded from it. Two of these requests to be excluded were based on the Class member's belief that he had not been wronged by IBM, and one was based on the Class member's belief that a prior release disqualified him from benefitting from the settlement. Because the Settlement Agreement does not provide for opting out of the settlement, and because such an opt-out would be inappropriate under Federal Rule of Civil Procedure 23(b)(2), these requests are also overruled and the requests for exclusion are denied.
8. The motion for settlement approval with respect to Subclass 3 (Doc. 285) is GRANTED, and the settlement is hereby APPROVED in its entirety.
9. A permanent injunction, without the necessity of a bond, is hereby issued against Class members from prosecuting parallel actions.
10. The motion for attorney fees and costs (Doc. 284) is likewise GRANTED. Specifically, the Court finds based on the evidence presented by Class counsel, and the Court's awareness of the market, that the 29% fee and costs award requested is at or below the market rate for this and similar litigation, is fully supported by the Seventh Circuit's decisions in In re Synthroid Marketing Litig., 264 F.3d 712 (7th Cir. 2001) (Synthroid I), and is otherwise appropriate. See also In re Synthroid Marketing Litig., 325 F.3d 974 (7th Cir. 2003) (Synthroid II). The Court is further aware that Class counsel are nationally recognized experts in ERISA pension benefit cases and have testified that they have not and would not accept a similar case on any basis other than a contingency fee basis.
In addition, Class counsel presented evidence and argument, and the Court agrees, that an auction for legal services in this litigation would have produced a percentage at or higher than the 29% fee requested, and that the large claimant criterion here supports the 29% fee requested by Class counsel. The Synthroid II Court noted that the sophisticated third-party payors (the insurance companies) in that litigation negotiated a flat 22% rate even after the risk of the litigation had passed and a recovery was assured. 325 F.3d at 976 and 978 (explaining the 22% rate was agreed to "after a good deal of the risk had been dissipated" and that the TPPs still "had to offer 22% to sign up lawyers on a contingent fee."). Applying this reasoning to this case, the risk attendant with this litigation and the difficulty locating experienced counsel to accept such litigation clearly support a 29% fee.
Thus, the undisputed evidence is that the market for legal services for this litigation is a contingency fee contract and that such contracts typically call for a fee of at least one-third of any recovery. Class counsel is awarded 29% of the aggregate Settlement Fund (as defined in the Settlement Agreement) as and for their fees and costs, to be paid from the Plan as an administrative expense. Defendants are ordered to distribute the fee to Class counsel per the Settlement Agreement.
11. The Named Plaintiff, Matthew Hillesheim, is hereby awarded an incentive fee of $15,000 for his time and effort in pursuing this litigation, to be paid out of the attorney fee award.
12. The IBM Plan is ordered to distribute the settlement proceeds under the terms of the Settlement Agreement.
13. All motions relating to the claims of the members of Subclass 3 are rendered moot.
14. The claims of Subclass 3 are hereby DISMISSED with prejudice, with this Court retaining jurisdiction to enforce the settlement terms.

15. Finally, the Court finds that Subclass 3 involves different claims by different people, and there is no overlap between Subclass 3 and the other Subclasses. The claims of Subclass 3 are unrelated to the claims of Subclass 1 and Subclass 2, and entry of final judgment as to the claims of Subclass 3 would allow prompt payment to the members of Subclass 3 while the parties work to resolve the more complicated issues presented by Subclass 1 and Subclass 2. Accordingly, the Court expressly finds that there is no just reason for delaying the entry of judgment as to these claims, and the Clerk is DIRECTED to enter final judgment as to the claims of Subclass 3.
IT IS SO ORDERED.

 
 Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 1 of 57
CJRA_C, CLOSED, EHB, PROTO
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:99−cv−00829−GPM−PMF

Cooper, et al v. IBM Personal Pension, et al Assigned to: Judge G. Patrick Murphy Referred to: Magistrate Judge Philip M. Frazier Demand: $0 Case in other court: 05−03588
05−03882 06−01260 07−01767 Cause: 29:1132 E.R.I.S.A.−Employee Benefits Objector
Francis Abramovich

Date Filed: 11/01/1999 Date Terminated: 08/16/2005 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question
represented by Jeffrey N. Young McTeague, Higbee et al., P.O. Box 5000 Topsham, ME 04086−5000 207−725−5581 Fax: 207−725−1090 Email: jyoung@me−law.com ATTORNEY TO BE NOTICED

Objector Al Abrams

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Nizamuddin Ahmad

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Charles Balkon

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Dorothy Barewicz

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Louia Bartholomew

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Gerard Benson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector John Bertsch

represented by Jeffrey N. Young (See above for address)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 2 of 57

ATTORNEY TO BE NOTICED

Objector Judy Bettencourt

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Billingsley

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Black

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Henry Boisselle

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Patrick Boone

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Michael Bossi

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Ruth Alice Boyd

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Gloria Bronson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Richard Brooks

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Timothy Bryan

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Dale Cahill

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 3 of 57

Carolyn Callahan

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Peter Callahan

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Joseph Casey

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Clelia Cassel

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector James Catanzaro

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Michael Child

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Moulton Clark

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector John Coffey

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jerry Cogdill

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Don Connors

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Wayne Cooper

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Gary Crompton

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 4 of 57

Objector Gregory Dancker
Objector William Daniels
Objector Joseph Della Pietra
Objector Lee Deshler
Objector Donna Devito
Objector Donna Deweil
Objector Margaret Dickens
Objector Charles Dickison
Objector Allen Dishaw
Objector Alan Donerkiel
Objector Rowan Dordick
Objector Roderic Douglas

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 5 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Charles Drake

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Michael Dykas

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Michael Edsall

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Brian Elliot

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Richard Evans

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector D. Wayne Farris

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector James Fenimore

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Andrew Fitzgerald

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Debra Fleming

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector John Fletcher

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert Flowers

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 6 of 57

Objector Thomas Fontana
Objector Roger fournier
Objector Jack Friedman
Objector Peggy Garrow
Objector Lawrence Gass
Objector Ronald Gelden
Objector Barry Gerard
Objector Tina Gleisner
Objector Ray Gonda
Objector Edwin Goodloe
Objector Kenneth Gresko
Objector Paul Gromkowski

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 7 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert Gruver

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Kathleen Gubula−Winter

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Patricia Guilbert

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Ted Habza

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Halbrook

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Eugene Hannon

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert Harriman

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Harvey Harris

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Eugene Havel

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Toni Heffler

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Michael Heim

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 8 of 57

Objector Mark Helm
Objector Craig Hench
Objector John Henze
Objector Geraldine Hoffman
Objector Patricia Holt
Objector Aline Hong
Objector Steven Hummell
Objector Ronald Husted, Jr.
Objector Daniel Hutchinson
Objector Francis Iaccino
Objector Yvonne Jarvis
Objector Glen Johnson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 9 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Linda Johnson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Sylvia Jones

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Mark Kane

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector William Kane

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert Kenny

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Gary Kocsis

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Bruce Krohn

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Lachtrupp

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Renee Laduke

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jeffrey Lamphere

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Leisha Lancaster

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 10 of 57

Objector John Lange
Objector Dave Leahy
Objector James Leas
Objector Thomas Letourneau
Objector Kenneth Levesque
Objector William Lewis
Objector Brian Lloyd
Objector Dave Lovelace
Objector Aydee Lucas
Objector Richard Luskin
Objector Sharon Machia
Objector Linda Mainville

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 11 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Bernard Malewiacki

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Rolf Marsh

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Kathleen Mart

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Walter Maslak

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Dawn Mastin

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert Mayo

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Mazgaj

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Tom McCarthy

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Robert McGowan

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Samuel McMillon

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Ellen McNulty

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 12 of 57

Objector John Mellon
Objector Gary Messier
Objector Lewis Meyers
Objector Michael Milio
Objector David Miller
Objector Ophelia Mims
Objector Daniel Moczan
Objector Edward Mogilski
Objector Kevin Murphy
Objector Kenneth Murray
Objector William Myre
Objector Paul Nascarella

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 13 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jody Newbold

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Tom Noel

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Christopher Novak

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Rona Nowinski

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Karen Noye

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector John O'Coin

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Kathleen O'Dell

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Dan Oklan

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector James Payne

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Keith Peterson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Sandra Pierce

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 14 of 57

Objector Thomas Pilon
Objector Pat Plominski
Objector Ellen Purifoy
Objector Robert Purvee
Objector Christina Raczyla
Objector Michael Raker
Objector Donald Rakowski
Objector Brian Ramsey
Objector Gerry Raviart
Objector John Raymond
Objector Richard Ritter
Objector Antonio Rivera

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 15 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Victoria Rivera

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Laura Ross

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Donna Marie Royer

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Norman Rudikoff

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Don Salemno

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jon Schapiro

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Peter Schlesiona

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jeffrey Schmitt

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Karen Schmitz

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Denise Seager

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Thomas Sharkey

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 16 of 57

Objector Marvin Sheppard
Objector Joseph Smith
Objector Clinton Snyder
Objector Gary Sockut
Objector Joseph Sottile
Objector Larry Southworth
Objector Randall St. Amand
Objector Ronald St. Amand
Objector Bernard Ste. Marie
Objector Michael Sullivan
Objector Kathy Sylvester
Objector Leslie Symon

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 17 of 57

Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector William Syverson

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Daniel Tafoya

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Carol Teague

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Thomas Tracy

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector David Tzilkowski

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Timotny Vincelette

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Paul Visser

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Britt Vitols

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Rosalie Wabs

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Jeri Wagner

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Objector Nancy Waltz

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 18 of 57

Objector Tijuana Watssen
Objector James Weaver
Objector Ray Wells
Objector Herbert West
Objector Dennis Williams
Objector Enrique Wolf
Objector Carl Wood
Objector David Wortheim
Objector Todd Wyant
Objector Leo Zmuda
Plaintiff Kathi Cooper Individually and on Behalf of All Those Similarly Situated

represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey N. Young (See above for address) ATTORNEY TO BE NOTICED
represented by Douglas R. Sprong Korein Tillery LLC Generally Admitted U.S. Bank Plaza 505 N. 7th Street, Suite 3600 St. Louis, MO 63101 (314) 241−4844

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 19 of 57

Fax: (314) 241−3525 Email: dsprong@koreintillery.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John H. Evans Hill &Robbins Generally Admitted 1441 18th Street Suite 100 Denver, CO 80202 303−296−8100 Email: johnevans@hillandrobbins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert F. Hill Hill &Robbins Generally Admitted 1441 18th Street Suite 100 Denver, CO 80202 303−296−8100 Email: roberthill@hillandrobbins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven A. Katz Korein Tillery, LLC Generally Admitted U.S. Bank Plaza 505 N. 7th Street, Suite 3600 St. Louis, MO 63101 (314) 241−4844 Fax: (314) 241−3525 Email: skatz@koreintillery.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William K. Carr Law Offices of William K. Carr Generally Admitted 2222 East Tennessee Avenue Denver, CO 80209 303−296−6383 Email: firm@pension−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Beth Harrington Individually and on Behalf of All Those Similarly Situated

represented by John H. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert F. Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Matthew Hillesheim Individually and on Behalf of All Those Similarly Situated

represented by John H. Evans (See above for address) LEAD ATTORNEY

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 20 of 57
ATTORNEY TO BE NOTICED
Robert F. Hill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant IBM Personal Pension Plan, The

represented by David H. Remes Covington &Burling 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 202−662−6000 Email: dremes@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald J. Rosenberg IBM Corporation 1133 Westchester Avenue White Plains, NY 10604 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Vetter IBM Corporation 1133 Westchester Avenue White Plains, NY 10604 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric R. Sonnenschein Covington &Burling 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, DC 20004 202−662−6000 Email: esonnenschein@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederick J. Hess Lewis, Rice et al. Generally Admitted 325 South High Street Belleville, IL 62220 618−234−8636 Email: FHess@lewisrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey G. Huvelle Covington &Burling Generally Admitted 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, DC 20004 202−662−6000 Email: jhuvelle@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 21 of 57

Michael S. Horne Covington &Burling 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, DC 20004 202−662−6000 Fax: 202−778−5288 fax TERMINATED: 10/22/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Wick Covington &Burling Generally Admitted 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, DC 20004 202−662−6000 Email: rwick@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant IBM Corporation

represented by David H. Remes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald J. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Vetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric R. Sonnenschein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frederick J. Hess (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey G. Huvelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Horne (See above for address) TERMINATED: 10/22/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D. Wick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 22 of 57

Movant Attorney Rex Carr

represented by Rex Carr Rex Carr Law Firm 412 Missouri Avenue East St. Louis, IL 62201−3016 618−274−0434 Fax: 618−274−8369 Email: rcarr@rexcarr.com ATTORNEY TO BE NOTICED

Claimant Objector Barry Gordon

represented by Barry Gordon 9405 Blackwell Road Apt. #211 Rockville, MD 20850 PRO SE

Claimant Objector Alan L. Berger

represented by Alan L. Berger 5009 Clubhouse Drive New Bern, NC 28562 PRO SE

Claimant Objector Kevin L Jones

represented by Kevin L Jones Post Office Box 270601 Fort Collins, CO 80527 PRO SE

Claimant Objector Willie Young

represented by Willie Young 1605 Sheffield Court Aurora, IL 60504−6042 PRO SE

Claimant Objector John H Collier

represented by John H Collier 38 Glen Hill Road Wilton, CT 06897 PRO SE

Claimant Objector Rolf M Marsh

represented by Rolf M Marsh Post Office Box 507 Nine Miles Falls, WA 99026 PRO SE

Claimant Objector Gary Laski

represented by Gary Laski 4905 Marian Court Lexington, KY 40513−1448 PRO SE

Claimant Objector James M Leas

represented by James M Leas 37 Butler Drive South Burlington, VT 05403 PRO SE

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 23 of 57

Claimant Objector Katie F Jones

represented by Katie F Jones 10543 Ravenscroft Drive Dallas, TX 75230 PRO SE

Claimant Objector Roger L Oedewaldt

represented by Roger L Oedewaldt 304 Elmhurst Drive Washington, IL 61571 PRO SE

Claimant Objector Anthony T Arroyo

represented by Anthony T Arroyo 1402 Grayscroft Drive Waxhaw, NC 28173 PRO SE

Claimant Objector Ronald A Linton

represented by Ronald A Linton 5 North Hinterlands Drive Rhinebeck, NY 12572 PRO SE

Claimant Objector Hudson G Willis

represented by Hudson G Willis 1132 Mossy Rock Road Kennesaw, GA 30152 PRO SE

Claimant Objector Larry Hanke, Jr

represented by Larry Hanke, Jr 122 Jackrabbit Run Round Rock, TX 78664 PRO SE

Claimant Objector William Myre

represented by William Myre 12405 Mercury Lane Austin, TX 78727 PRO SE

Claimant Objector Robert W Brzozowski

represented by Robert W Brzozowski 39 Regent Drive Hopewell Junction, NY 12533 PRO SE

Claimant Objector Gary L Fellman

represented by Gary L Fellman 40 Goble Street Hughes ACT 2605 Australia PRO SE

Claimant Objector David Hauser

represented by David Hauser 6133 Lean Avenue San Jose, CA 95123 PRO SE

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 24 of 57

Claimant Objector David Gowdy
Claimant Objector Karen Travis
Claimant Objector Ronald G Cherveny
Claimant Objector Charles E McKerley
Claimant Objector Rosario J Locascio
Claimant Objector Douglas E Whitehurst
Claimant Objector Charles Balkon
Claimant Objector Daniel C Moore
Claimant Objector Sharon Lewis
Claimant Objector Maurice R Duprey

represented by David Gowdy 1 Amersham Court Potomac Falls, VA 20165 PRO SE
represented by Karen Travis 10602 Barker Vista Cove Austin, TX 78759 PRO SE
represented by Ronald G Cherveny 424 Amelia Avenue Raleigh, NC 27615 PRO SE
represented by Charles E McKerley 12334 Honeywood Trail Houston, TX 77077 PRO SE
represented by Rosario J Locascio 103 Crestwood Drive Safety Harbor, FL 34695 PRO SE
represented by Douglas E Whitehurst 1714 Shinnecock Drive Murrells Inlet, SC 29576 PRO SE
represented by Charles Balkon 9068 Coker Road Prunedale, CA 93907 PRO SE
represented by Daniel C Moore 19122 Roman Way Montgomery Village, MD 20886 PRO SE
represented by Sharon Lewis 12745 Eagle Ridge Dr Zebulon, NC 27597 PRO SE
represented by Maurice R Duprey 456 Mistwood Court Spring Hill, FL 34609

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 25 of 57

PRO SE

Claimant Objector Robert L Cook

represented by Robert L Cook 630 North 600 West Greenfield, IN 46140−9685 PRO SE

Claimant Objector Paul Gromkowski

represented by Paul Gromkowski 15 Wellesley Place Fishkill, NY 12524 PRO SE

Claimant Objector Richard J Gunther

represented by Richard J Gunther 6 Brusk Drive Hopewell Junction, NY 12533 PRO SE

Claimant Objector Louise M Gunther

represented by Louise M Gunther 6 Brusk Drive Hopewell Junction, NY 12533 PRO SE

Claimant Objector George E Beall

represented by George E Beall 1309 Reid Harkey Road Matthews, NC 28105 PRO SE

Claimant Objector Gerald L Vantrease

represented by Gerald L Vantrease 4505 Cove Lane Chattanooga, TN 37415 PRO SE

Claimant Objector Mark Megerian

represented by Mark Megerian PRO SE

Claimant Objector Robert D Breed

represented by Robert D Breed 10044 Old Warden Road Raleigh, NC 27615 PRO SE

Claimant Objector George Klopp

represented by George Klopp 1218 Mineral Springs Rd Charlotte, NC 28262 PRO SE

Claimant Objector Jan T Karels

represented by Jan T Karels 2409 30th Avenue NW Rochester, MN 55901−8000 PRO SE

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 26 of 57

Claimant Objector Lawrence L LeClair
Claimant Objector Donna M LeClair
Claimant Objector David Lovelace
Claimant Objector Orest Bula
Claimant Objector Ronald C Buszko
Claimant Objector Daniel A Roth
Claimant Objector Russell Callaway
Claimant Objector Daniel Oklan
Claimant Objector William J Costine
Claimant Objector Sheila Burch

represented by Lawrence L LeClair 8250 S. Placita Del Parque Tucson, AZ 85747−5244 PRO SE
represented by Donna M LeClair 8250 S. Placita Del Parque Tucson, AZ 85747−5244 PRO SE
represented by David Lovelace 6317 Paso Los Cerritos San Jose, CA 95120 PRO SE
represented by Orest Bula 236 Gardenside Lane Shelburne, VT 05842 PRO SE
represented by Ronald C Buszko 9440 Hunting Court Matthews, NC 28105 PRO SE
represented by Daniel A Roth Post Office Box 104 Port Ewen, NY 12466 PRO SE
represented by Russell Callaway PMB 133 36 George W. Liles PKY NW Concord, NC 28027 PRO SE
represented by Daniel Oklan P.O. Box 827 Enosburg Falls, VT 05450 PRO SE
represented by William J Costine 108 Rombout Avenue Beacon, NY 12508 PRO SE
represented by Sheila Burch 279 Vineyard Dr

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 27 of 57

San Jose, CA 95119−1865 PRO SE

Claimant Objector Carmellena Jane Straley

represented by Carmellena Jane Straley 116 North Main Street Apt. #6 Berlin, MD 21811 PRO SE

Claimant Objector Harry Wayne Montgomery

represented by Harry Wayne Montgomery 4140 Vince Road Nicholasville, KY 40356 PRO SE

Claimant Objector Arthur G Cannon

represented by Arthur G Cannon Post Office Box 974 Decatur, TX 76234 PRO SE

Claimant
Objector Syverson et al., Syverson Collective Objectors − See doc. #301 for List

represented by Jeffrey N. Young (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick N. McTeague McTeague, Higbee et al., P.O. Box 5000 Topsham, ME 04086−5000 207−725−5581 Fax: 207−725−1090 Email: pmcteague@me−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claimant Objector Anton Zanki

represented by Charles E. Hamilton , III Lamothe &Hamilton 601 Poydras Street Suite #2750 New Orleans, LA 70130 Email: chamilton@lamothehamilton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claimant Objector Linda Cunningham

represented by Charles E. Hamilton , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claimant Objector Gurbachan Singh Khalsa

represented by Gurbachan Singh Khalsa 6216 Wynford Drive West Bloomfield, MI 48322 PRO SE

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 28 of 57

Date Filed 11/01/1999 11/01/1999 11/09/1999 12/03/1999 01/03/2000 01/20/2000 01/20/2000 02/17/2000 02/22/2000 03/10/2000 03/14/2000 03/20/2000
03/30/2000 04/03/2000 04/17/2000
05/12/2000
05/12/2000
05/12/2000

# Docket Text
1 COMPLAINT Filing fee pd $ 150.00 receipt # 300 63667 (car) (Entered: 11/02/1999)
Magistrate identification: Mag/Judge Clifford J. Proud (car) (Entered: 11/02/1999)
2 ADMINISTRATIVE ORDER #138 Case reassigned to Judge G. P. Murphy (cc: all counsel) (myz) (Entered: 11/16/1999)
3 AMENDED COMPLAINT [1−1] by plaintiff Kathi Cooper (dmb) (Entered: 12/09/1999)
4 CJRA Track C assigned by Judge G. P. Murphy; trial set for presumptive month of 3/01 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (dmb) (Entered: 01/05/2000)
5 MOTION by plaintiff Kathi Cooper to certify class action (tjh) (Entered: 01/25/2000)
6 MEMORANDUM by plaintiff Kathi Cooper in support of motion to certify class action [5−1] (tjh) (Entered: 01/25/2000)
7 STIPULATION (MOTION) by defendant IBM Corporation, defendant IBM Personal Pension, and plaintiff Kathi Cooper to extend time to answer (tjh) (Entered: 02/22/2000)
8 ORDER by Mag/Judge Clifford J. Proud granting motion to extend time to 3/14/00 to answer [7−1] (cc: all counsel) (dmw) (Entered: 02/24/2000)
10 CONSENT MOTION by Ameritech for extension of time to answer the complaint (fe) (Entered: 03/15/2000)
9 NOTICE of hearing re motion for class certification [5−1] ORAL ARGUMENTS set 1:30 PM on 4/17/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 03/14/2000)
11 ORDER by Judge G. P. Murphy granting motion for extension of time to answer the complaint [10−1]; defendants shall answer the amended complaint on or before 4/03/00 [3−1] ; status conf set for 1:30 PM on 4/17/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL; brief ddl set 4/3/00 . The Court will address the need for a briefing schedule on plaintiff's motion for class certification [5−1] at the status conference (cc: all counsel) (myz) (Entered: 03/23/2000)
12 NOTICE of Telephone Sched/Disc Conf set for 9:00 AM on 5/15/00 before Mag/Judge Clifford J. Proud in the USDC/East St. Louis, IL (cc: all counsel) (dmw) (Entered: 03/31/2000)
13 ANSWER by defendant IBM Corporation, defendant IBM Personal Pension to [3−1] with affirmative defenses (acm) (Entered: 04/05/2000)
14 MINUTES (lc) of hearing on status conference before Judge G. P. Murphy ; Status conference held 4/17/00 motion to class action [5−1] resp due 5/12/00 ; Court will notify Magistrate Judge Clifford J. Proud to cancel conf set for 5/15/00 at 9:00 AM (C/R: Molly Clayton) (dmw) (Entered: 04/25/2000)
15 MOTION by defendant IBM Corporation, defendant IBM Personal Pension to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction (acm) (Entered: 05/15/2000)
16 BRIEF (MEMORANDUM) by defendant IBM Corporation, defendant IBM Personal Pension in support of motion to dismiss Count I of the First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction [15−1] (acm) (Entered: 05/15/2000)
17 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion to certify class action [5−1] (acm) (Entered: 05/15/2000)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 29 of 57

05/12/2000 05/19/2000 05/31/2000 06/07/2000
06/19/2000 06/19/2000 06/19/2000
06/19/2000 06/26/2000 06/27/2000 06/27/2000 06/27/2000
06/29/2000 07/05/2000
07/05/2000
07/18/2000 08/29/2000 08/30/2000

18 AFFIDAVIT of David M. Speier re [17−1] (acm) (Entered: 05/16/2000)
19 NOTICE of hearing re motion to dismiss [15−1],motion for class certification [5−1] ORAL ARGUMENTS set 3:00 PM on 7/31/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 05/19/2000)
20 MOTION by plaintiff Kathi Cooper to extend time to file reply in support of motion for class certification and memo in opposition to defendants' motion to dismiss (acm) (Entered: 06/06/2000)
21 ORDER by Judge G. P. Murphy granting motion to extend time to file reply in support of motion for class certification and memo in opposition to defendants' motion to dismiss [20−1]; motion to certify class action [5−1] reply due 6/19/00 (cc: all counsel) (myz) (Entered: 06/12/2000)
22 NOTICE of change of address as to attorney William K. Carr (myz) (Entered: 06/23/2000)
23 MOTION by plaintiff Kathi Cooper to file reply in support of motion for class certification in excess of page limitation (myz) (Entered: 06/23/2000)
24 MEMORANDUM by plaintiff Kathi Cooper in opposition to motion to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction [15−1] (myz) . (Entered: 06/23/2000)
VOLUME NUMBER 2 created, beginning with document number 24. (myz) (Entered: 07/11/2000)
VOLUME NUMBER 3 created, beginning with document number 25. (myz) (Entered: 07/11/2000)
26 ORDER by Judge G. P. Murphy granting motion to file reply in support of motion for class certification in excess of page limitation [23−1] (cc: all counsel) (myz) (Entered: 06/30/2000)
27 REPLY by plaintiff Kathi Cooper in support to motion to certify class action [5−1] (myz) (Entered: 06/30/2000)
28 CONSENT MOTION by defendant IBM Corporation, defendant IBM Personal Pension to extend time to reply to plaintiff's response in opposition to defendants motion opposing class certification and motion to dismiss (myz) (Entered: 06/30/2000)
25 NOTICE of hearing re motion for class certification [5−1] ORAL ARGUMENTS RESET at 1:30 PM on 8/21/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 06/29/2000)
29 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction [15−1] (myz) (Entered: 07/11/2000)
30 ORDER by Judge G. P. Murphy denying motion to extend time to reply to plaintiff's response in opposition to defendants motion opposing class certification [28−1]. As to the request for additional time to file a reply in support of defendants' motion to dismiss, however, the motion for extension of tim eis granted. Defendants' reply shall be filed no later than 7/06/00 (cc: all counsel) (myz) (Entered: 07/11/2000)
31 NOTICE of hearing re motion for class certification [5−1] ORAL ARGUMENTS set 1:30 PM on 9/5/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 07/18/2000)
32 MOTION by defendants for leave to supplement pending motion papers (four recent cases attached) (acm) Modified on 09/07/2000 (Entered: 08/31/2000)
33 MEMORANDUM by plaintiff Kathi Cooper in opposition to motion for leave to supplement pending motion papers [32−1] (tjh) (Entered: 08/31/2000)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 30 of 57

09/05/2000 09/06/2000 09/12/2000
09/13/2000 09/15/2000 10/04/2000 10/16/2000
10/16/2000 10/31/2000 11/07/2000 11/07/2000 11/13/2000 11/14/2000 11/14/2000 11/15/2000 11/15/2000

34 MINUTES of hearing on Motion for Class Certification (lmc) before Judge G. P. Murphy motion to dismiss [15−1] [15−1]; parties are granted 7 days (response due 9/12/00) to file additional authority ; Status conference held 9/5/00 ( C/R: Molly Clayton) (tjh) (Entered: 09/06/2000)
35 ORDER by Judge G. P. Murphy granting motion for leave to supplement pending motion papers (four recent cases are attached to) [32−1] (cc: all counsel) (acm) Modified on 09/07/2000 (Entered: 09/07/2000)
36 SUPPLEMENTAL MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension on the standing issue re motion to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction [15−1] (tjh) (Entered: 09/13/2000)
37 SUPPLEMENTAL SUBMISSION by plaintiff Kathi Cooper re motion to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction [15−1] (tjh) (Entered: 09/14/2000)
38 MOTION by plaintiff Kathi Cooper for leave to file second amended complaint (tjh) (Entered: 09/20/2000)
39 RESPONSE by defendant IBM Corporation, defendant IBM Personal Pension to motion for leave to file second amended complaint [38−1] (tjh) (Entered: 10/11/2000)
40 ORDER by Chief Judge G. P. Murphy granting motion for leave to file second amended complaint [38−1], denying motion to dismiss Count I of First Amended Complaint insofar as it relates to the 1999 plan amendments and Count II in its entirety for lack of subject matter jurisdiction as moot [15−1], dismissing without prejudice to refiling motion to certify class action [5−1]; directing the clerk to file secind amended complaint instanter ; brief ddl set for 11/15/00 for parties to agree to a schedule including a deadline for discovery related related to the class certification and once the briefing is complete the motion for class certification will be set for hearing (cc: all counsel) (fe) (Entered: 10/18/2000)
41 SECOND AMENDED COMPLAINT [3−1] by plaintiff Kathi Cooper, terminating unknown Ameritech; adding Beth Harrington, Matthew Hillesheim (fe) (Entered: 10/18/2000)
42 MOTION by defendants for extension of time of responsive pleading date from November 1 to November 8, 2000 (fe) (Entered: 11/03/2000)
43 ORDER by Mag/Judge Clifford J. Proud granting motion for extension of time of responsive pleading date from November 1 to November 8, 2000 [42−1] (cc: all counsel) (tjh) (Entered: 11/09/2000)
44 ANSWER by defendant IBM Corporation, defendant IBM Personal Pension to second amended complaint [41−1] (tjh) (Entered: 11/09/2000)
45 ATTORNEY APPEARANCE for plaintiff Kathi Cooper by William K. Carr (fe) (Entered: 11/17/2000)
JOINT REPORT of parties and proposed scheduling and discovery order by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim received and submitted to Mag/Judge Clifford J. Proud (tjh) Modified on 11/14/2000 (Entered: 11/14/2000)
TRANSCRIPT of Motion for Class Certification; held 9/5/00; 1 volume(s) Court Reporter: Molly Clayton (tjh) (Entered: 11/16/2000)
46 ORDER by Mag/Judge Clifford J. Proud adopting joint report of the parties regarding class certification briefing schedule ... see order for specifics ... (cc: all counsel) (tjh) (Entered: 11/21/2000)
47 ORDER by Chief Judge G. P. Murphy of the following: plaintiffs shall file renewed motion for class certification (brief ddl set) on or before 12/20/00; defendants' shall file response on or before 1/22/01; plaintiffs shall file reply on or

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 31 of 57

12/21/2000 12/21/2000 01/19/2001 01/25/2001 01/29/2001 02/05/2001 02/08/2001 02/09/2001
03/26/2001
03/29/2001 04/03/2001 04/05/2001 04/09/2001 04/17/2001 04/27/2001 05/21/2001 06/04/2001

before 1/29/01 motion for class certification [5−1] is set for hearing on 1:30 PM on 2/12/01 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (tjh) (Entered: 11/21/2000)
48 RENEWED MOTION by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim for class certification (myz) (Entered: 12/28/2000)
49 MEMORANDUM by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim in support of motion for class certification [48−1] (myz) (Entered: 12/28/2000)
50 CONSENT MOTION by defendant IBM Corporation for extension of time to file response to motion for class certification (tjh) (Entered: 01/24/2001)
51 ORDER by Chief Judge G. P. Murphy granting motion for extension of time to file response to motion for class certification [50−1], motion for class certification [48−1] resp due 1/29/01 (cc: all counsel) (dmw) (Entered: 01/29/2001)
52 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion for class certification [48−1] (fe) (Entered: 01/30/2001)
53 REPLY by plaintiff Kathi Cooper, plaintiff Beth Harrington, plaintiff Matthew Hillesheim in support of plaintiffs' renewed motion for class certification [48−1] (tjh) (Entered: 02/08/2001)
54 MOTION by defendants to postpone hearing or for alternative relief (fe) (Entered: 02/16/2001)
55 ORDER by Chief Judge G. P. Murphy granting motion to postpone hearing or for alternative relief [54−1] ; the class certification hrg is reset for 9:00 AM on 3/26/01 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (fe) (Entered: 02/16/2001)
56 MINUTES of hearing on Motion for Class Certification (jmf) before Chief Judge G. P. Murphy. The Court grants parties 10 days to file additional briefs re [48−1]. The matter is taken under advisement until review of the supplemental briefs ; In−court hearing held 3/26/01 (C/R: Molly Clayton) (myz) (Entered: 03/29/2001)
TRANSCRIPT OF MOTION FOR CLASS CERTIFICATION; held 3/26/01; 1 volume(s) Court Reporter: Molly Clayton (fe) (Entered: 03/30/2001)
58 ORDER by Chief Judge G. P. Murphy ...see order for specifics... (cc: all counsel) (tjh) (Entered: 04/10/2001)
57 SUPPLEMENTAL BRIEF by defendants IBM Corporation and IBM Personal Pension in opposition to plaintiffs renewed motion for class certification [48−1] (scj) Modified on 04/10/2001 (Entered: 04/10/2001)
59 SUPPLEMENTAL BRIEF by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim regarding renewed motion for class certification [48−1] (tjh) (Entered: 04/12/2001)
60 MOTION by defendant IBM Corporation, defendant IBM Personal Pension to strike plaintiffs' supplemental brief in support of renewed motion for class certification (tjh) (Entered: 04/19/2001)
61 MEMORANDUM by plaintiff in opposition to motion to strike plaintiffs' supplemental brief in support of renewed motion for class certification [60−1] (car) (Entered: 05/03/2001)
62 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for leave to file supplemental authority for pending class certification motion (jmf) (Entered: 05/31/2001)
63 ORDER by Chief Judge G. P. Murphy granting motion for leave to file supplemental authority for pending class certification motion [62−1] ; brief ddl set 6/15/01 (cc: all counsel) (scj) (Entered: 06/08/2001)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 32 of 57

06/06/2001 07/20/2001 07/24/2001 07/24/2001 08/08/2001 08/20/2001 08/20/2001 08/31/2001 09/17/2001
09/20/2001 09/27/2001 10/03/2001
10/09/2001 10/22/2001
11/20/2001 11/29/2001
02/08/2002

64 RESPONSE by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim to motion for leave to file supplemental authority for pending class certification motion [62−1] (scj) (Entered: 06/11/2001)
65 MOTION by defendants for protective order (dmw) (Entered: 07/23/2001)
66 ORDER by Mag/Judge Clifford J. Proud recusing himself as magistrate; Magistrate now becomes Gerald B. Cohn (cc: all counsel) (tjh) (Entered: 07/30/2001)
Magistrate identification: Mag/Judge Gerald B. Cohn (tjh) (Entered: 07/30/2001)
67 MEMORANDUM by plaintiffs Kathi Cooper, Beth Harrington, and Matthew Hillesheim in opposition to motion for protective order [65−1] (scj) (Entered: 08/10/2001)
68 REPLY by defendants IBM Corporation and IBM Personal Pension re motion for protection order [65−1] (scj) (Entered: 08/22/2001)
VOLUME NUMBER 4 created, beginning with document number 68. (tjh) (Entered: 09/25/2001)
69 ORDER by Mag Judge Gerald B. Cohn granting motion for protective order [65−1] (cc: all counsel) (tjh) (Entered: 09/06/2001)
70 ORDER by Chief Judge G. P. Murphy denying motion to strike plaintiffs' supplemental brief in support of renewed motion for class certification [60−1]; granting motion for class certification [48−1] and defining the class and subclasses (see Order for specifics); the Court appoints plaintiffs as class representatives and appoints Steven A. Katz, Douglas R. Sprong, and William K. Carr as counsel for the class and subclasses (cc: all counsel) (car) Modified on 09/18/2001 (Entered: 09/18/2001)
71 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, and Matthew Hillesheim to amend class certification order (tjh) (Entered: 09/24/2001)
72 ATTORNEY APPEARANCE for plaintiff Kathi Cooper by John H. Evans, Robert F. Hill (fe) (Entered: 09/28/2001)
73 ORDER by Chief Judge G. P. Murphy granting motion to amend class certification order [71−1] adding attorney Robert F. Hill and John H. Evans as counsel for the class and subclasses nunc pro tunc 9/17/01 (cc: all counsel) (fe) (Entered: 10/05/2001)
74 JOINT MOTION to withdraw Michael S. Horne as counsel for defendants IBM Corporation and IBM Personal Pension and substituting with Jeffrey G. Huvelle and Robert D. Wick (scj) (Entered: 10/10/2001)
75 ORDER by Mag Judge Gerald B. Cohn granting motion to withdraw Michael S. Horne as counsel for defendants IBM Corporation and IBM Personal Pension and substituting with Jeffrey G. Huvelle and Robert D. Wick [74−1] withdrawing attorney Michael S. Horne for IBM Pension and for IBM Corporation ; adding attorney Jeffrey G Huvelle and Robert D Wick for defendants IBM Corporation and IBM Personal Pension (cc: all counsel) (scj) (Entered: 10/29/2001)
76 JOINT MOTION by plaintiffs &defendants regarding joint report of parties and proposed scheduling and discovery order (to continue) (dmw) (Entered: 11/26/2001)
77 SCHEDULING AND DISCOVERY ORDER by Mag Judge Gerald B. Cohn ; presumptive trial reset for 1/03 and final prtrl conf set 12/9/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL; settlement conf set 9:00 AM on 12/2/02 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL; disp mtn filing ddl 10/15/02; discovery ddl set 9/20/02 (cc: all counsel) (tjh) (Entered: 12/04/2001)
78 ORDER by Mag Judge Gerald B. Cohn resetting settlement conf at 9:00 AM on 12/5/02 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (tjh) (Entered: 02/12/2002)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 33 of 57

02/15/2002 02/21/2002 04/03/2002 04/12/2002 04/18/2002 07/15/2002 07/17/2002 07/18/2002 07/18/2002 07/18/2002
07/25/2002
07/29/2002
08/09/2002 08/09/2002 08/12/2002 08/14/2002 08/14/2002 08/19/2002 08/21/2002

79 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for extension of time to file amended complaint (tjh) (Entered: 02/20/2002)
80 ORDER by Mag Judge Gerald B. Cohn granting motion for extension of time to file amended complaint [79−1] up to and including 3/7/02 (cc: all counsel) (dlr) (Entered: 03/01/2002)
81 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for filing of agreed protective order (tjh) (Entered: 04/09/2002)
82 ORDER by Mag Judge Gerald B. Cohn granting motion for filing of agreed protective order [81−1] (cc: all counsel) (dmw) (Entered: 04/17/2002)
83 ORDER by Chief Judge G. P. Murphy denying motion for filing of agreed protective order [81−1]; vacating Magistrate Judge Cohn's 4/12/02 order [82−1] order (cc: all counsel) (tjh) (Entered: 04/18/2002)
84 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to suspend local rule 7.1(g) and for leave to file brief in excess of ten pages (tjh) (Entered: 07/17/2002)
85 REQUESTS for admission by defendants (dmw) (Entered: 07/19/2002)
86 ORDER by Chief Judge G. P. Murphy granting motion to suspend local rule 7.1(g) [84−1] and for leave to file brief in excess of ten pages [84−2] (cc: all counsel) (tjh) (Entered: 07/24/2002)
87 MOTION by Kathi Cooper, Beth Harrington, Matthew Hillesheim for partial summary judgment on count 1 received on 7/15/02 (tjh) (Entered: 07/24/2002)
88 BRIEF (MEMORANDUM) by plaintiffs' Kathi Cooper, Beth Harrington, and Matthew Hillesheim in support of motion for partial summary judgment on count 1 received on 7/15/02 [87−1] (attachments located in expando folder) (tjh) (Entered: 07/24/2002)
89 MOTION by defendants IBM Corporation, IBM Personal Pension to suspend the packet rule for dispositive motions (order) , and to modify the page limit , and to extend the time for filing for their opposition to plaintiffs' pending motion for partial summary judgment (dlr) (Entered: 07/29/2002)
90 ORDER by Chief Judge G. P. Murphy granting motion to suspend the packet rule for dispositive motions (order) [89−1], to modify the page limit [89−2], and to extend the time for filing for their opposition to plaintiffs' pending motion for partial summary judgment [89−3]; response to motion for partial summary judgment on count 1 received on 7/15/02 [87−1] due 9/20/02 (cc: all counsel) (tjh) (Entered: 08/07/2002)
91 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for extension of time to respond to defendants' requests for admission and third set of interrogatories (tjh) (Entered: 08/13/2002)
92 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to compel discovery (tjh) (Entered: 08/13/2002)
93 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for extension of time to respond to requests for admission (tjh) (Entered: 08/13/2002)
94 ORDER by Mag Judge Gerald B. Cohn granting motion for extension of time to respond to defendants' requests for admission and third set of interrogatories [91−1] (cc: all counsel) (tjh) (Entered: 08/15/2002)
95 ORDER by Mag Judge Gerald B. Cohn granting motion for extension of time to respond to requests for admission [93−1] (cc: all counsel) (tjh) (Entered: 08/15/2002)
FILE checked out by Kwik Kopy consisting of 4 volumes pleadings and 1 appendix to doc 88. Record due back 8/29/02 (trb) (Entered: 08/21/2002)
FILE returned by Kwik Kopy consisting of 4 volumes of pleadings and one appendix to doc 88 (jmp) Modified on 10/29/2002 (Entered: 08/21/2002)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 34 of 57

08/22/2002 08/26/2002 08/27/2002 09/05/2002 09/09/2002 09/10/2002 09/13/2002 09/13/2002 09/13/2002 09/13/2002 09/13/2002 09/13/2002 09/13/2002
09/13/2002
09/13/2002 09/13/2002
09/19/2002 09/23/2002 09/27/2002

96 MOTION by defendants IBM Corporation and IBM Personal Pension to extend time to respond to motion to compel (scj) (Entered: 08/23/2002)
97 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time to respond to motion to compel [96−1], motion to compel discovery [92−1] resp due 9/9/02 (cc: all counsel) (dmw) (Entered: 08/27/2002)
98 UNOPPOSED MOTION by defendants' IBM Corporation and IBM Personal Pension for approval of protective order (tjh) (Entered: 08/29/2002)
99 PROTECTIVE ORDER by Chief Judge G. P. Murphy: granting motion for approval of protective order [98−1] (cc: all counsel) (scj) (Entered: 09/10/2002)
101 MOTION by defendant IBM Corporation, defendant IBM Personal Pension to file memorandum in excess of 10 pages (tjh) (Entered: 09/17/2002)
100 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for extension of time to respond to motion for partial summary judgment on Count 1 (tjh) (Entered: 09/17/2002)
102 MEMORANDUM by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim in opposition to motion for extension of time to respond to motion for partial summary judgment on Count 1 [100−1] (tjh) (Entered: 09/17/2002)
103 MOTION by defendant IBM Corporation, defendant IBM Personal Pension to dismiss section 204(b)(1)(H) claim for lack of standing (tjh) (Entered: 09/17/2002)
104 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in support of motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1] (tjh) (Entered: 09/17/2002)
105 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for partial summary judgment on age discrimination claim received on 9/13/02 (tjh) (Entered: 09/17/2002)
106 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in support of motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1] (tjh) (Entered: 09/17/2002)
107 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 (tjh) (Entered: 09/17/2002)
108 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in connection with the parties' cross motions for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1] (tjh) (Entered: 09/17/2002)
109 STATEMENT OF UNDISPUTED MATERIAL FACTS by defendant IBM Corporation, defendant IBM Personal Pension to motion for partial summary judgment on age discrimination claim with respect to the cash balance formula received on 9/13/02 [105−1] (tjh) (Entered: 09/17/2002)
APPENDIX, 2 VOLUMES (EXHIBITS), in support of summary judgment motions (located in expando folder) (tjh) (Entered: 09/17/2002)
110 STATEMENT OF UNDISPUTED MATERIAL FACTS by defendant IBM Corporation, defendant IBM Personal Pension to motion for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1] (tjh) (Entered: 09/19/2002)
111 ORDER by Mag Judge Gerald B. Cohn granting motion to compel discovery [92−1] (cc: all counsel) (tjh) (Entered: 09/25/2002)
112 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for extension of time (tjh) (Entered: 09/27/2002)
113 ORDER by Chief Judge G. P. Murphy granting motion for extension of time to respond to motion for partial summary judgment on Count 1 [100−1]; response to motion for partial summary judgment on count 1 received on 7/15/02 [87−1] due

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 35 of 57

09/27/2002 09/27/2002 09/30/2002
10/02/2002 10/07/2002 10/08/2002 10/15/2002 10/15/2002 10/23/2002
10/25/2002 10/25/2002 10/25/2002 10/25/2002 10/25/2002 10/25/2002

10/21/02; dispositive mtn ddl extended through and including 10/21/02 (cc: all counsel) (tjh) (Entered: 10/02/2002)
114 ORDER by Chief Judge G. P. Murphy granting motion to file memorandum in excess of 10 pages [101−1] (cc: all counsel) (tjh) (Entered: 10/02/2002)
115 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion to compel discovery [92−1] (tjh) (Entered: 10/02/2002)
116 ORDER by Chief Judge G. P. Murphy granting motion for extension of time [112−1]; responses to motion for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1], motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1], and motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1] due 10/25/02 (cc: all counsel) (tjh) (Entered: 10/04/2002)
119 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for reconsideration , and to strike order compelling discovery (jmf) (Entered: 10/18/2002)
118 RESPONSE by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to motion for reconsideration [119−1], motion to strike order compelling discovery [119−2] (tjh) (Entered: 10/21/2002)
117 NOTICE of hearing re all pending motions [107−1], re [105−1], re [103−1], re [87−1] ORAL ARGUMENTS set 1:30 PM on 12/2/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 10/08/2002)
120 REQUEST (MOTION) by plaintiffs and defendants for extension of dispositive motion deadline and to establish other briefing schedules (dmw) (Entered: 10/19/2002)
121 ORDER by Chief Judge G. P. Murphy granting motion for extension of dispositive motion deadline and to establish other briefing schedules [120−1]; dispositive mtn ddl reset to 10/25/02 (cc: all counsel) (tjh) (Entered: 10/21/2002)
122 ORDER by Chief Judge G. P. Murphy granting motion for reconsideration [119−1] and to strike order compelling discovery [119−2]; vacating 9/19/02 order [111−1]; reinstating motion to compel discovery [92−1] and submitting motion to compel [92−1] to Mag Judge Gerald B. Cohn (cc: all counsel) (tjh) Modified on 10/29/2002 (Entered: 10/29/2002)
123 (MEMORANDUM) by plaintiff Kathi Cooper, plaintiff Beth Harrington in opposition to motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1] (tjh) (Entered: 10/30/2002)
124 CROSS MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 (tjh) (Entered: 10/30/2002)
125 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for leave to file brief in excess of page limit as to cross motion for partial summary judgment (tjh) (Entered: 10/30/2002)
126 (MEMORANDUM) by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim in opposition to motion for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1] (tjh) (Entered: 10/30/2002)
127 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 (tjh) (Entered: 10/30/2002)
128 MOTION by defendants' IBM Corporation, IBM Personal Pension for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 (tjh) (Entered: 10/30/2002)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 36 of 57

10/25/2002 10/25/2002 10/25/2002
10/25/2002
10/25/2002 10/25/2002 10/25/2002
10/25/2002 10/25/2002 10/28/2002
10/31/2002 10/31/2002 11/01/2002 11/01/2002 11/01/2002 11/04/2002 11/04/2002

129 MEMORANDUM OF LAW by defendants' IBM Corporation, IBM Personal Pension in support of motion for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 [128−1] (tjh) (Entered: 10/30/2002)
130 MOTION by defendants' IBM Corporation, IBM Personal Pension for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula received on 10/25/02 (tjh) (Entered: 10/30/2002)
131 MEMORANDUM by defendants' IBM Corporation, IBM Personal Pension in support of motion for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula received on 10/25/02 [130−1] (tjh) (Entered: 10/30/2002)
132 STATEMENT OF UNDISPUTED MATERIAL FACTS by defendants' IBM Corporation, IBM Personal Pension to motion for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula received on 10/25/02 [130−1] and their counterstatement to plaintiffs' statement of undisputed facts (tjh) (Entered: 10/30/2002)
133 MOTION by defendants' IBM Corporation, IBM Personal Pension for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 (tjh) (Entered: 10/30/2002)
134 MEMORANDUM by defendants' IBM Corporation, IBM Personal Pension in support of motion for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 [133−1] (tjh) (Entered: 10/30/2002)
135 STATEMENT OF UNDISPUTED MATERIAL FACTS by defendants' IBM Corporation, IBM Personal Pension to motion for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 [133−1] (tjh) (Entered: 10/30/2002)
CONSOLIDATED APPENDIX (EXHIBITS) in support of summary judgment motions (1 volume anotated as Volume 3) (located in expando folder) (tjh) Modified on 10/30/2002 (Entered: 10/30/2002)
VOLUME NUMBER 5 created, beginning with document number 122. (tjh) (Entered: 11/05/2002)
EXHIBITS (2 volumes) in support of plaintiffs' cross motion for partial summary judgment (doc #124) and in opposition to defendants' motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's cash balance formula (doc #105) (tjh) (Entered: 10/31/2002)
136 MOTION by defendants to strike plaintiffs' two new claims (dmw) (Entered: 11/04/2002)
137 MEMORANDUM by defendants in support of motion to strike plaintiffs' two new claims [136−1] (dmw) (Entered: 11/04/2002)
138 MOTION by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to strike reports of C. Eugene Steuerle and Stewart C. Myers (tjh) (Entered: 11/04/2002)
138 MEMORANDUM by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim in support of motion to strike reports of C. Eugene Steuerle and Stewart C. Myers [138−1] (tjh) (Entered: 11/04/2002)
139 ORDER by Mag Judge Gerald B. Cohn granting in part and denying in part motion to compel discovery [92−1] (cc: all counsel) (tjh) (Entered: 11/04/2002)
141 ORDER by Chief Judge G. P. Murphy granting motion for leave to file brief in excess of page limit as to cross motion for partial summary judgment [125−1] (cc: all counsel) (scj) (Entered: 11/08/2002)
142 MEMORANDUM by plaintiffs Kathi Cooper, Matthew Hillesheim and Beth Harrington in support of motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1] (scj) Modified on 11/08/2002 (Entered: 11/08/2002)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 37 of 57

11/04/2002 11/04/2002 11/05/2002
11/05/2002 11/08/2002 11/12/2002
11/12/2002 11/12/2002 11/12/2002
11/12/2002 11/12/2002
11/12/2002 11/13/2002 11/13/2002

142 MEMORANDUM by Kathi Cooper, Matthew Hillesheim and Beth Harrington in opposition to motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1] (scj) Modified on 11/08/2002 (Entered: 11/08/2002)
143 MEMORANDUM by Kathi Cooper and Beth Harrington in support of motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1]; exhibits in expandable folder (scj) Modified on 11/13/2002 (Entered: 11/08/2002)
140 NOTICE of hearing re ALL PENDING MOTIONS [138−1], re [136−1], re [133−1], re [130−1], re [128−1], re [127−1], re [124−1], re [107−1], re [105−1], re [103−1], re [87−1] Final pretrial conf CANCELLED ORAL ARGUMENTS set 8:00 AM on 12/17/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 11/05/2002)
VOLUME NUMBER 6 created, beginning with document number 143. (myz) (Entered: 03/04/2003)
144 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1] (tjh) (Entered: 11/15/2002)
145 COUNTERSTATEMENT (RESPONSE) by defendant IBM Corporation, defendant IBM Personal Pension plaintiffs' statement of undisputed material facts with respect to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1] (tjh) (Entered: 11/15/2002)
146 REPLY MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension to response in support of motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1] (tjh) (Entered: 11/15/2002)
147 (MEMORANDUM) by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1] (tjh) (Entered: 11/15/2002)
148 UNOPPOSED MOTION by defendant IBM Corporation, defendant IBM Personal Pension for a one−day extension of time to file their opposition/reply to cross motion for partial summary judgment and in opposition to defendants' motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula (tjh) (Entered: 11/15/2002)
149 MEMORANDUM by plaintiff Kathi Cooper, plaintiff Beth Harrington, plaintiff Matthew Hillesheim in opposition to motion for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 [133−1] (attachments located in expando file) (tjh) Modified on 11/15/2002 (Entered: 11/15/2002)
150 MEMORANDUM (REPLY) by plaintiffs' Kathi Cooper, Beth Harrington, and Matthew Hillesheim to response to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1], motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1], and motion for partial summary judgment on count 1 received on 7/15/02 [87−1] (tjh) (Entered: 11/15/2002)
151 (MEMORANDUM) by plaintiff Kathi Cooper, plaintiff Beth Harrington, plaintiff Matthew Hillesheim in opposition to motion for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 [128−1] (tjh) (Entered: 11/15/2002)
152 Appeal from Magistrate's Order by plaintiff Kathi Cooper, plaintiff Beth Harrington, plaintiff Matthew Hillesheim concerning 11/1/02 order granting in part and denying in part motion to compel discovery [139−1] (tjh) (Entered: 11/15/2002)
153 BRIEF (MEMORANDUM) by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 38 of 57

11/13/2002 11/13/2002
11/13/2002 11/15/2002 11/18/2002 11/18/2002
11/18/2002 11/19/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/22/2002

received on 10/25/02 [124−1], motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1] (tjh) (Entered: 11/15/2002)
154 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1] (tjh) (Entered: 11/15/2002)
154 (MEMORANDUM) by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1], motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1] (tjh) (Entered: 11/15/2002)
CONSOLIDATED APPENDIX (EXHIBITS) in support of summary judgment motions (volume IV) (located in expando file) (tjh) Modified on 11/15/2002 (Entered: 11/15/2002)
155 RESPONSE by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to motion to strike plaintiffs' two new claims [136−1] (tjh) (Entered: 11/18/2002)
157 (MEMORANDUM) by defendant IBM Corporation, defendant IBM Personal Pension in opposition to motion to strike reports of C. Eugene Steuerle and Stewart C. Myers [138−1] (tjh) (Entered: 11/21/2002)
162 ORDER by Chief Judge G. P. Murphy granting motion for a one−day extension of time to file their opposition/reply to cross motion for partial summary judgment and in opposition to defendants' motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula [148−1] (cc: all counsel) (tjh) (Entered: 11/22/2002)
VOLUME NUMBER 7 created, beginning with document number 156. (myz) (Entered: 03/04/2003)
156 JOINT CONSENT MOTION by defendant IBM Corporation, defendant IBM Personal Pension, plaintiff Kathi Cooper, plaintiff Beth Harrington, plaintiff Matthew Hillesheim for an extension of time to file reply to motion to strike plaintiffs' two new claims (tjh) (Entered: 11/21/2002)
158 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1] (tjh) (Entered: 11/21/2002)
159 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 [133−1] (tjh) (Entered: 11/21/2002)
160 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 [128−1] (tjh) (Entered: 11/21/2002)
161 CONSOLIDATED APPENDIX (EXHIBITS) in support of summary judgment motions (Volume V) (tjh) (Entered: 11/21/2002)
163 REPLY by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to response to motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1] (tjh) (Entered: 11/22/2002)
164 BRIEF IN REPLY by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to defendants' opposition to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1] (tjh) (Entered: 11/22/2002)
166 ORDER by Chief Judge G. P. Murphy granting motion for an extension of time to file reply to motion to strike plaintiffs' two new claims [156−1] (cc: all counsel) (tjh) (Entered: 11/27/2002)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 39 of 57

11/22/2002 11/26/2002 12/02/2002 12/02/2002 12/03/2002 12/06/2002
12/06/2002 12/11/2002 12/12/2002 12/12/2002 12/13/2002 12/17/2002
01/06/2003

167 REPLY MEMORANDUM by plaintiffs' Kathi Cooper, Beth Harrington, Matthew Hillesheim to response to motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1] (tjh) (Entered: 11/27/2002)
165 REPLY by defendant IBM Corporation, defendant IBM Personal Pension to response to motion to strike plaintiffs' two new claims [136−1] (tjh) (Entered: 11/26/2002)
168 UNOPPOSED MOTION by defendant IBM Corporation, defendant IBM Personal Pension to extend time for responding to plaintiffs' rule 72 objections to Magistrate Cohn's order of 10/31/02 (should be 11/1/02) (tjh) Modified on 12/02/2002 (Entered: 12/02/2002)
170 ORDER by Chief Judge G. P. Murphy granting motion to extend time for responding to plaintiffs' rule 72 objections to Magistrate Cohn's order of 10/31/02 (should be 11/1/02); [168−1]; defendants are granted up to 12/6/02 to file a response (cc: all counsel) (tjh) (Entered: 12/04/2002)
169 NOTICE of hearing settlement conf set 9:00AM 1/30/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 12/03/2002)
171 ORDER by Chief Judge G. P. Murphy that at 12/17/02 hearing only the motions for partial summary judgment [87−1], for summary judgment on section 204(b)(1)(G) claim [107−1], for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula received on 10/25/02 [130−1], motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1], to strike reports of C. Eugene Steuerle and Stewart C. Myers [138−1], on appeal motion Appeal from Magistrate's Order [152−1] will be addressed; other pending motions will be set for a separate hearing [136−1], 133 , 128 , [127−1], [124−1], [105−1] (cc: all counsel) (tjh) (Entered: 12/09/2002)
172 MOTION by defendants IBM Corporation and IBM Personal Pension to exceed page limitation to file memorandum in response to Plaintiffs' Rule 72 objections to Mag Judge Cohn's 11/1/02 Order (scj) (Entered: 12/10/2002)
173 ORDER by Chief Judge G. P. Murphy granting motion to exceed page limitation to file memorandum in response to Plaintiffs' Rule 72 objections to Mag Judge Cohn's 11/1/02 Order [172−1] (cc: all counsel) (tjh) (Entered: 12/13/2002)
174 RESPONSE by defendant IBM Corporation, defendant IBM Personal Pension to plaintiffs' rule 72 objections to 11/1/02 order [152−1] (tjh) (Entered: 12/13/2002)
175 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for order to notify the court of Treasury's notice of proposed rulemaking on age discrimination and to propose an adjustment of the schedule for oral argument at the 12/17 hearing (tjh) (Entered: 12/13/2002)
176 RESPONSE by plaintiffs Kathi Cooper, Beth Harrington, and Matthew Hillesheim to motion for order to notify the court of Treasury's notice of proposed rulemaking on age discrimination and to propose an adjustment of the schedule for oral argument at the 12/17 hearing [175−1] (scj) (Entered: 12/18/2002)
177 MINUTES of hearing on Pending Motions (lmc) before Chief Judge G. P. Murphy taking under advisement on the motion for partial summary judgment on count 1 [87−1], the motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1], the motion for summary judgment on section 204(b)(1)(G) claim [107−1]; and the motion for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula [130−1] ; Status conference held 12/17/02; Oral Arguments set for 8:00 AM on 1/21/03 before Chief Judge G. P. Murphy in the USDC/East Louis, IL (C/R: Jane Northcutt) (scj) (Entered: 12/19/2002)
TRANSCRIPT of hearing on pending motions; held 12/17/02; 1 volume(s) Court Reporter: Jane Northcutt (dlr) (Entered: 01/09/2003)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 40 of 57

01/17/2003 01/21/2003 01/22/2003
01/23/2003 01/30/2003 02/18/2003 03/10/2003 03/10/2003 03/10/2003 03/14/2003 03/24/2003 03/28/2003 04/16/2003 04/28/2003 05/21/2003

179 ORDER by Chief Judge G. P. Murphy denying motion for order to notify the court of Treasury's notice of proposed rulemaking on age discrimination and to propose an adjustment of the schedule for oral argument at the 12/17 hearing [175−1] (cc: all counsel) (amv) (Entered: 01/24/2003)
180 MINUTES (lmc) of hearing on pending motions before Chief Judge G. P. Murphy re [128−1], [127−1], [124−1], [105−1]; hrg is recessed until 1/22/03 at 8:00 AM ( C/R: Pam Schubert (Keefe)) (dlr) (Entered: 01/29/2003)
181 MINUTES (lmc) of hearing on pending motions before Chief Judge G. P. Murphy taking under advisement on the motion for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 [128−1], taking under advisement on the motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1], taking under advisement on the motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1], taking under advisement on the motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1], denying motion to strike plaintiffs' two new claims [136−1]; defendant is granted 60 days to file its expert report; plaintiff shall file its response to said report 30 days after receipt of same; the parties are ordered to file detailed proposed findings of fact and conclusions of law within 45 days on all issues except always cash balance and wearaway; the parties are ordered to file proposed findings of fact and conclusions of law on the always cash balance and wearaway issues 30 days after the filing of the expert report ( C/R: Laura Blatz) (dlr) (Entered: 01/29/2003)
178 NOTICE of hearing settlement conf set 9:00AM 3/31/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 01/23/2003)
TRANSCRIPT of Pending Motions; held 1/21/03; 1 volume(s) Court Reporter: Pamela Simpson−Schubert (Keefe) (tjh) (Entered: 02/04/2003)
TRANSCRIPT of Report of Proceedings; held 1/22/03; 1 volume(s) Court Reporter: Laura Blatz (tjh) (Entered: 02/18/2003)
PROPOSED Findings of Fact and Conclusions of Law submitted by plaintiffs Matthew Hillesheim, Beth Harrington, and Kathi Cooper (scj) (Entered: 03/14/2003)
PROPOSED Finding of Fact and Conclusions of Law submitted by defendant IBM Corporation, defendant IBM Personal Pension (myz) (Entered: 03/14/2003)
PROPOSED Finding of Fact and submitted by defendant IBM Corporation, defendant IBM Personal Pension (js) (Entered: 03/17/2003)
182 MOTION (NOTICE) by defendant IBM Corporation, defendant IBM Personal Pension of filing substitute proposed findings of fact (js) (Entered: 03/18/2003)
183 MOTION by defendant IBM Corporation, defendant IBM Personal Pension for four−day extension of time for service of supplemental expert report (tjh) (Entered: 03/26/2003)
184 ORDER by Mag Judge Gerald B. Cohn granting motion for extension of time to 3/28/03 for service of supplemental expert report [183−1] (cc: all counsel) (dmw) (Entered: 04/01/2003)
185 NOTICE of hearing settlement conf set 9:00AM 5/30/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 04/16/2003)
186 RESPONSE to the Supplemental Report of Lawrence Sher by plaintiffs Matthew Hillesheim, Beth Harrington, Kathi Cooper (with exhibits) (js) Modified on 05/27/2003 (Entered: 04/29/2003)
187 CONSENT MOTION by defendant IBM Corporation, defendant IBM Personal Pension for extension of time for filing proposed findings of fact and conclusions of law on Plaintiffs' always cash balance formula and wearaway claims (js) (Entered: 05/22/2003)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 41 of 57

05/27/2003 05/28/2003 06/09/2003 06/09/2003 06/11/2003 06/13/2003 06/16/2003 06/20/2003 07/31/2003
08/01/2003 08/13/2003 08/29/2003 08/29/2003

189 ORDER by Chief Judge G. P. Murphy granting motion for extension of time for filing proposed findings of fact and conclusions of law on Plaintiffs' always cash balance formula and wearaway claims [187−1] ;brief ddl set 6/9/03 (cc: all counsel) (dmw) (Entered: 05/30/2003)
188 NOTICE of hearing settlement conf set 9:00AM 8/8/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 05/28/2003)
PROPOSED Plaintiffs' Findings of Fact and Conclusions of Law Regarding the IBM Pension Plan 1999 Conversion Formula submitted by Kathi Cooper, Matthew Hillesheim, Beth Harrington (js) (Entered: 06/12/2003)
PROPOSED Defendants' Findings of Fact and Conclusions of Law with Respect to Plaintiffs' "Transition" Age Discrimination Claims and Defendants' Supplemental Expert Submissions, submitted by defendants IBM Corporation and IBM Personal Pension (js) (Entered: 06/12/2003)
PROPOSED Findings of Fact and Conclusions of Law with Respect to Plaintiffs' "Transition" Age Discrimination Claims and Defendants' Supplemental Expert Submissions submitted by defendants IBM Corporation and IBM Personal Pension (scj) (Entered: 06/16/2003)
190 MOTION by the Class, Matthew Hillesheim, Beth Harrington, Kathi Cooper to strike Defendants' 6/10/03 Memorandum of Law and Lawrence Sher's "Comments" (js) (Entered: 06/17/2003)
191 OPPOSITION (RESPONSE) by defendant IBM Corporation, IBM Personal Pension to plaintiffs' motion to strike defendants' 6/10/03 memorandum of law and Lawrence Sher's "Comments" [190−1] (js) (Entered: 06/17/2003)
192 ORDER by Chief Judge G. P. Murphy denying motion to strike reports of C. Eugene Steuerle and Stewart C. Myers [138−1], denying motion to strike Defendants' 6/10/03 Memorandum of Law and Lawrence Sher's "Comments" [190−1], granting motion of filing substitute proposed findings of fact [182−1] (cc: all counsel) (myz) (Entered: 06/26/2003)
193 ORDER by Chief Judge G. P. Murphy denying as moot appeal motion Appeal from Magistrate's Order [152−1], denying motion for summary judgment on plaintiffs' horizontal partial termination claim received on 10/25/02 [133−1], denying motion for summary judgment on plaintiffs' section 204(b)(1)(H) claim with respect to IBM's pension credit formula received on 10/25/02 [130−1], denying motion for summary judgment on plaintiffs' anti−backloading claim received on 10/25/02 [128−1], granting motion for partial summary judgment on Count I − comparison formula for opening account balances under 1999 cash balance formula received on 10/25/02 [127−1], granting motion for partial summary judgment on plaintiffs' age discrimination claim with respect to IBM's Cash Balance Formula received on 10/25/02 [124−1], denying motion for summary judgment on section 204(b)(1)(G) claim received on 9/13/02 [107−1], denying motion for partial summary judgment on age discrimination claim received on 9/13/02 [105−1], denying motion to dismiss section 204(b)(1)(H) claim for lack of standing [103−1], granting motion for partial summary judgment on count 1 received on 7/15/02 [87−1]; see Order for specifics (cc: all counsel) (js) (Entered: 08/01/2003)
194 NOTICE of hearing settlement conf set 9:00AM 8/26/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 08/01/2003)
195 NOTICE of hearing settlement conf set 9:00AM 11/14/03 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 08/13/2003)
196 MOTION by defendants IBM Corporation, IBM Personal Pension to certify an interlocutory appeal (js) (Entered: 09/05/2003)
197 MEMORANDUM by defendants IBM Corporation, IBM Personal Pension in support of motion to certify an interlocutory appeal [196−1] (js) (Entered:

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 42 of 57

09/16/2003 09/18/2003
10/01/2003 10/03/2003 10/15/2003 10/24/2003 10/24/2003 11/07/2003 11/10/2003
11/12/2003 11/12/2003 11/12/2003 11/12/2003 11/12/2003 11/12/2003

09/05/2003)
198 MEMORANDUM IN OPPOSITION by Plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim to defendants' motion to certify an interlocutory appeal [196−1] (js) (Entered: 09/18/2003)
199 ORDER by Chief Judge G. P. Murphy denying motion to certify an interlocutory appeal [196−1]; Both parties are Ordered, within 30 days of receipt of this Memorandum and Order, provide the Court with a proposed schedule to the end that all matters in this Court be promptly concluded; See Order for specifics ;brief ddl set 10/27/03 (cc: all counsel) (js) Modified on 10/23/2003 (Entered: 09/23/2003)
JOINT MOTION (REPORT) of parties and proposed scheduling and discovery order by plaintiffs Kathi Cooper, Matthew Hillesheim, Beth Harrington, and defendants IBM Corporation, IBM Personal Pension received and submitted to Chief Judge G. P. Murphy (js) (Entered: 10/01/2003)
200 ORDER by Mag Judge Gerald B. Cohn re Plaintiffs' Joint Report for Scheduling Order [0−0] setting schedules for submission of motions (cc: all counsel) (scj) (Entered: 10/08/2003)
201 THE CLASS'S SUBMISSION (MOTION) by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim (for order) in re: entry of remedial relief (js) (Entered: 10/23/2003)
202 MOTION by IBM Corporation, IBM Personal Pension to reconsider the denial of defendants' Motion for Summary Judgment on Plaintiffs' Anti−Backloading Claim (js) (Entered: 10/29/2003)
203 MEMORANDUM by defendant IBM Corporation, defendant IBM Personal Pension in support of motion to reconsider the denial of defendants' Motion for Summary Judgment on Plaintiffs' Anti−Backloading Claim [202−1] (js) (Entered: 10/29/2003)
205 MOTION by defendants IBM Corporation, IBM Personal Pension to extend deadline for filing settlement statements , and to to continue settlement conference (myz) (Entered: 11/15/2003)
206 ORDER by Mag Judge Gerald B. Cohn granting motion to extend deadline for filing settlement statements [205−1], granting motion to continue settlement conference [205−2]. Settlement statements are due on 1/19/04 and settlement conf reset for 1:00 PM on 1/26/04 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (myz) (Entered: 11/15/2003)
204 NOTICE of hearing settlement conf set 1:00PM 1/26/04 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 11/12/2003)
207 MOTION by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim for partial summary judgment on plaintiffs' horizontal partial termination claim (js) Modified on 11/18/2003 (Entered: 11/18/2003)
208 MEMORANDUM by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim in support of motion for partial summary judgment on plaintiffs' horizontal partial termination claim [207−1] (js) Modified on 11/18/2003 (Entered: 11/18/2003)
209 MOTION by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim for summary judgment on backloading claim (js) (Entered: 11/18/2003)
210 MEMORANDUM by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim in support of motion for summary judgment on backloading claim [209−1] and opposition to defendants' motion to reconsider (js) (Entered: 11/18/2003)
210 MEMORANDUM by plaintiffs Kathi Cooper, Beth Harrington, Matthew Hillesheim in opposition to motion to reconsider the denial of defendants' Motion for Summary Judgment on Plaintiffs' Anti−Backloading Claim [202−1] (js)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 43 of 57

11/26/2003 11/26/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003 12/05/2003
12/05/2003 12/09/2003 12/09/2003
12/09/2003 12/09/2003
12/13/2003

(Entered: 11/18/2003)
211 UNOPPOSED MOTION by defendants IBM Corporation, IBM Personal Pension for a two−day extension of time (js) (Entered: 11/26/2003)
212 ORDER by Chief Judge G. P. Murphy granting motion for a two−day extension of time up to and including December 5, 2003 [211−1] (cc: all counsel) (js) (Entered: 12/03/2003)
213 UNOPPOSED MOTION by defendants IBM Corporation, IBM Personal Pension for a two−day extension of time for filing papers relating to the horizontal partial plan termination claim (js) (Entered: 12/13/2003)
214 MOTION by defendants IBM Corporation, IBM Personal Pension for partial summary judgment with respect to relief on plaintiffs' Section 204(b)(1)(G) claim (js) (Entered: 12/13/2003)
215 MEMORANDUM by IBM Corporation, IBM Personal Pension in opposition to motion for summary judgment on backloading claim [209−1] and in support of defendants' Motion to Reconsider (js) (Entered: 12/13/2003)
215 MEMORANDUM by IBM Corporation, IBM Personal Pension in support of motion to reconsider the denial of defendants' Motion for Summary Judgment on Plaintiffs' Anti−Backloading Claim [202−1] (js) (Entered: 12/13/2003)
DEFENDANTS' CONSOLIDATED APPENDIX (EXHIBIT) IN SUPPORT OF SUMMARY UDGMENT MOTIONS (js) (Entered: 12/13/2003)
216 MOTION by defendants IBM Corporation, IBM Personal Pension for summary judgment denying retroactive relief on plaintiffs' Section 204(b)(1)(H) claims (js) (Entered: 12/13/2003)
217 STATEMENT OF UNDISPUTED FACTS by defendants IBM Corporation, IBM Personal Pension relating to their motion for summary judgment denying retroactive relief on plaintiffs' Section 204(b)(1)(H) claims [216−1] (js) (Entered: 12/13/2003)
218 MEMORANDUM by IBM Corporation, IBM Personal Pension in opposition to motion (for order) in re: entry of remedial relief [201−1], motion for summary judgment denying retroactive relief on plaintiffs' Section 204(b)(1)(H) claims [216−1] and in support of thier cross−motion for summary judgment denying retroactive relief (js) (Entered: 12/13/2003)
218 MEMORANDUM by defendants IBM Corporation, IBM Personal Pension in support of motion for summary judgment denying retroactive relief on plaintiffs' Section 204(b)(1)(H) claims [216−1] (js) (Entered: 12/13/2003)
227 CROSS MOTION by IBM Corporation, IBM Personal Pension for partial summary judgment on plaintiffs' partial plan termination claim (js) Modified on 01/06/2004 (Entered: 01/06/2004)
228 MEMORANDUM by IBM Corporation, IBM Personal Pension in opposition to motion for partial summary judgment on plaintiffs' horizontal partial termination claim [207−1], and in support of defendants' cross−motion for partial summary judgment on plaintiffs' partial plan termination claim [227−1] (js) (Entered: 01/06/2004)
228 MEMORANDUM by defendants IBM Corporation, IBM Personal Pension in support of motion for partial summary judgment on plaintiffs' partial plan termination claim [227−1] (js) (Entered: 01/06/2004)
229 STATEMENT OF UNDISPUTED MATERIAL FACTS by defendats IBM Corporation and IBM Personal Pension to plaintiffs' partial termination claim and their counterstatment to plaitniffs' statement of undisputed facts [207−1], andmotion for partial summary judgment on plaintiffs' partial plan termination claim [227−1] (js) (Entered: 01/06/2004)
VOLUME NUMBER 8 created, beginning with document number 201. (js) (Entered: 12/13/2003)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 44 of 57

12/15/2003 12/22/2003 12/22/2003 12/22/2003 12/23/2003 12/24/2003
12/24/2003 12/24/2003 12/29/2003
01/05/2004 01/06/2004 01/07/2004 01/08/2004 01/12/2004 01/12/2004 01/15/2004

219 ORDER by Chief Judge G. P. Murphy granting motion for a two−day extension of time for filing papers relating to the horizontal partial plan termination claim [213−1]. See Order for details. (cc: all counsel) (js) (Entered: 12/16/2003)
220 MOTION by Amer Benefits Coun, ERISA Ind Comm for attorney Kent A. Mason to appear pro hac vice (tjh) (Entered: 12/30/2003)
221 ORDER (NGJ/jmp) granting motion for attorney Kent A. Mason to appear pro hac vice [220−1] on behalf of Amer Benefits Coun and ERISA Ind Comm; $100.00 filing fee paid receipt #300 94245 (cc: all counsel) (tjh) (Entered: 12/30/2003)
222 MOTION by Amer Benefits Coun, ERISA Ind Comm for leave to file brief amici curiae and brief of amici curiae in opposition to motion for entry of remedial relief and in support of cross−motion for summary judgment denying retroactive relief (tjh) (Entered: 12/30/2003)
223 MEMORANDUM IN REPLY by plaintiffs to response to motion for summary judgment on backloading claim [209−1] (dmw) (Entered: 12/31/2003)
224 MEMORANDUM by The Class (plaintiffs Matthew Hillesheim, Beth Harrington, Kathi Cooper) in opposition to motion for leave to file brief amici curiae and brief of amici curiae in opposition to motion for entry of remedial relief and in support of cross−motion for summary judgment denying retroactive relief [222−1] (js) (Entered: 12/31/2003)
225 REPLY memorandum in support by plaintiffs Matthew Hillesheim, Beth Harrington, Kathi Cooper to response to motion for partial summary judgment on plaintiffs' horizontal partial termination claim [207−1] (js) Modified on 01/05/2004 (Entered: 01/05/2004)
225 RESPONSE memorandum in opposition by plaintiffs Matthew Hillesheim, Beth Harrington, Kathi Cooper to motion for partial summary judgment with respect to relief on plaintiffs' Section 204(b)(1)(G) claim [214−1] (js) (Entered: 01/05/2004)
226 RESPONSE (REPLY) by Amer Benefits Coun, ERISA Ind Comm to plaintiffs' opposition to the motion of the American Benefits Council and the Erisa Industry Committee for leave response for leave to file brief amici curiae and brief of amici curiae in opposition to motion for entry of remedial relief and in support of cross−motion for summary judgment denying retroactive relief [222−1] (js) (Entered: 01/05/2004)
231 MOTION by Kathi Cooper, Beth Harrington, Matthew Hillesheim to strike defendants' attempt to assert an affirmative defense out of time , or, in the alternative, to compel discovery , and for extension of time (js) (Entered: 01/13/2004)
LETTER to Attorney Eric Sonnenschein for PHV on behalf of both IBM defendants (js) (Entered: 01/06/2004)
232 (RESPONSE) IN OPPOSITION by defendants IBM Corporation, IBM Personal Pension to motion to strike defendants' attempt to assert an affirmative defense out of time [231−1], motion to compel discovery [231−2], motion for extension of time [231−3] (js) (Entered: 01/13/2004)
230 NOTICE by defendant IBM Corporation, defendant IBM Personal Pension (tjh) (Entered: 01/13/2004)
233 REPLY to Response 227 in Support of their Cross−Motion for Partial Summary Judgment agains Plaintiffs' Partial Termination Claim filed by IBM Corporation, The IBM Personal Pension Plan. (Attachments: # 1 (Affidavit) Declaration of David M. Speier)(js, ) (Entered: 01/17/2004)
234 REPLY in Support of Motion to Strike Defendants' Attempt to Assert an Affirmative Defense Out Of Time, Or, In the Alternative, To Compel Discovery and For Extension of Time 231 filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim. (js, ) (Entered: 01/18/2004)
235 MOTION for Expedited Consideration of Plaintiffs' Motion to Strike or to Compel and For an Extension of Time by Defendants' IBM Corporation, IBM Personal

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 45 of 57

01/21/2004 01/21/2004
01/22/2004 01/22/2004 01/23/2004 01/23/2004 01/23/2004
01/28/2004
01/28/2004 01/29/2004 02/03/2004 02/03/2004 02/12/2004
02/13/2004

Pension Plan, The. (js, ) (Entered: 01/19/2004)
236 ORDER denying 222 Motion for leave to file amicus brief . Signed by Judge G. Patrick Murphy on 1/21/04. (lmc, ) (Entered: 01/21/2004)
237 ORDER Setting Hearing on Motion: 231 Motion to Strike/Motion for Extension of Time. Granting 235 MOTION to Expedite filed by IBM Personal Pension Plan, The, IBM Corporation. 231 Motion to Strike/Motion for Extension of Time filed by Kathi Cooper, Beth Harrington, Matthew HillesheimSET for hearing on 1/22/2004 10:00 AM in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 1/16/04. (lmc, ) (Entered: 01/21/2004)
238 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 1/22/2004 re 231 Motion to Strike/Motion for Extension of Time filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim. Additional authority due by 1/28/2004. (Court Reporter Molly Clayton.) (lmc, ) (Entered: 01/22/2004)
245 Motion and Order (NGJ/jmp) to Appear Pro Hac Vice granting appearance of Attorney David H. Remes for IBM Corporation and IBM Personal Pension Plan, The. $100 fee paid,receipt number 30094802 (js, ) (Entered: 02/05/2004)
Minute Entry cancelling the January 26, 2004 Settlement Conference before Judge Gerald B. Cohn in East St. Louis, Illinois . (jms ) (Entered: 01/23/2004)
243 ORDER OF RECUSAL. Judge Gerald B. Cohn recused. Case referral reassigned to Judge Philip M. Frazier for all further full pretrial proceedings. Signed by Judge Gerald B. Cohn on 1/23/04. (jms ) (Entered: 02/03/2004)
244 TRANSCRIPT of Motions to Strike, Compel, Extend held on 01/22/04 before Judge G. Patrick Murphy. Court Reporter: Molly Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (js, ) (Entered: 02/04/2004)
239 MOTION for Partial Summary Judgment Plaintiffs Brief Regarding The Prospectivity Doctrine by Kathi Cooper, Beth Harrington, Matthew Hillesheim. Responses due by 2/27/2004 (Hill, Robert) Additional attachment(s) added on 1/29/2004 (jmf, ). Document was filed in error. Chambers ordered stricken. Attached document was removed. Party directed to re−file proper document. Modified on 1/29/2004 (jmf, ). (Entered: 01/28/2004)
240 SUPPLEMENT by IBM Corporation, IBM Personal Pension Plan, The. Memorandum Addressing the Significance of Harper. (Huvelle, Jeffrey) (Entered: 01/28/2004)
241 (RESPONSE TO Minute Entry at Doc. 238) Plaintiffs' Brief Regarding The Prospectivity Doctrine by Kathi Cooper, Beth Harrington, Matthew Hillesheim. (Hill, Robert) Additional attachment(s) added on 2/3/2004 (js, ). Modified on 2/3/2004 (js, ). (Entered: 01/29/2004)
Motions No Longer Referred: 231 Motion to Strike/Motion for Extension of Time (lmc) (Entered: 02/03/2004)
242 NOTICE OF ERRORS AND/OR DEFICIENCIES re 241 Motion for Partial Summary Judgment filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim. See attached document for specifics (js, ) (Entered: 02/03/2004)
246 ORDER granting 231 Plaintiffs' motion to strike defendants' attempt to assert an affirmative defense out of time, denying as moot alternative motion to compel and motion for extension of time. This matter remains set for hearing on all remaining motions on Monday, February 23, 2004, at 1:30 p.m. Signed by Judge G. Patrick Murphy on 02/12/2004. (njr) (Entered: 02/12/2004)
247 MOTION for Entry of New Schedule on Briefs and all Pending Motions Hearing by Kathi Cooper. (Sprong, Douglas) (Entered: 02/13/2004)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 46 of 57

02/15/2004 02/17/2004 02/19/2004 02/20/2004 02/20/2004 02/24/2004
02/24/2004 03/22/2004 03/23/2004
03/23/2004 04/02/2004 04/07/2004 04/19/2004

248 MEMORANDUM in Opposition re 247 MOTION for Entry of New Schedule on Briefs and all Pending Motions Hearing filed by IBM Corporation, IBM Personal Pension Plan, The. (Wick, Robert) (Entered: 02/15/2004)
249 REPLY to Response to Motion re 247 MOTION for Entry of New Schedule on Briefs and all Pending Motions Hearing filed by Kathi Cooper. (Sprong, Douglas) (Entered: 02/17/2004)
250 ORDER denying 247 motion for entry of new schedule on briefs and all pending motions. Signed by Judge G. Patrick Murphy on 02/19/2004. (njr) (Entered: 02/19/2004)
251 REPLY to Response to Motion re 201 Motion for Order filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim. (Attachments: # 1 Exhibit Reply to Respond to Motion for Remedial Relief)(Sprong, Douglas) Documents received on 2/20/2004 (js, ). (Entered: 02/20/2004)
252 MOTION to Strike Plaintiffs' Supplemental Remedies Brief by IBM Corporation, IBM Personal Pension Plan, The. Responses due by 3/22/2004 (Sonnenschein, Eric) (Entered: 02/20/2004)
253 Minute Entry for proceedings held before Judge G. Patrick Murphy. Motion Hearing held on 2/24/2004. TAKING UNDER ADVISEMENT 227 Motion for Partial Summary Judgment filed by The IBM Personal Pension Plan, IBM Corporation, 207 Motion for Partial Summary Judgment filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim, 201 Motion for Order filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim, 209 Motion for Summary Judgment filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim, 214 Motion for Partial Summary Judgment filed by IBM Personal Pension Plan, The, IBM Corporation, 216 Motion for Summary Judgment filed by IBM Personal Pension Plan, The, IBM Corporation, 202 Motion for Reconsideration filed by The IBM Personal Pension Plan, IBM Corporation. DENYING 252 MOTION to Strike Plaintiffs' Supplemental Remedies Brief filed by The IBM Personal Pension Plan, IBM Corporation. (Court Reporter Molly Clayton.) (lmc) (Entered: 02/24/2004)
Motions Taken Under Advisement: 227 Motion for Partial Summary Judgment, 207 Motion for Partial Summary Judgment, 201 Motion for Order, 209 Motion for Summary Judgment, 214 Motion for Partial Summary Judgment, 216 Motion for Summary Judgment, 202 Motion for Reconsideration (lmc) (Entered: 02/24/2004)
254 Reply Memorandum in Support of Their Cross−motion for Partial Summary Judgment on Plaintiffs? Request for Retroactive Relief by IBM Corporation, IBM Personal Pension Plan, The re 218 Memorandum in Opposition to Motion,, 216 Motion for Summary Judgment (Wick, Robert) Modified on 3/23/2004 (js, ). Additional attachment(s) added on 3/23/2004 (js, ). (Entered: 03/22/2004)
255 ORDER setting deadline of 4/2/2004 for both sides to file proposed findings of fact and conclusions of law on: (i) remedies for the age discrimination claims, (ii) the issues addressed in the cross−motions for partial summary judgment on the partial plan termination claim, and (iii) back−loading. The Court will review the materials submitted by the parties before deciding whether to set the matter for another oral argument. Signed by Judge G. Patrick Murphy on 03/23/2004. (njr) (Entered: 03/23/2004)
256 NOTICE OF ERRORS AND/OR DEFICIENCIES re 254 Notice (Other), Notice (Other) filed by IBM Personal Pension Plan, The, IBM Corporation. See attached document for specifics (js, ) (Entered: 03/23/2004)
257 Remark −− the parties are advised that pursuant to the CM/ECF User's Manual, the proposed findings due today shall be sent via email (in WordPerfect compatible format) to the Court at GPMpd@ilsd.uscourts.gov and shall not technically be "filed" with the Clerk. (njr) (Entered: 04/02/2004)
258 MOTION for Hearing by IBM Corporation, IBM Personal Pension Plan, The. (Sonnenschein, Eric) (Entered: 04/07/2004)
Motion No Longer Referred to Mag Judge Frazier: 258 MOTION for Oral Argument is pending before Chief Judge Murphy. (krm) (Entered: 04/19/2004)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 47 of 57

04/20/2004 04/21/2004 04/21/2004
04/30/2004 05/26/2004 06/08/2004
07/26/2004 07/28/2004 07/28/2004
08/03/2004 08/04/2004 08/04/2004 08/06/2004 08/10/2004

259 Docket entry STRICKEN as ordered by the Court. MOTION for Leave to File Objections to Plaintiffs' Proposed Findings of Fact and Conclusions of Law by IBM Corporation, IBM Personal Pension Plan, The. (Sonnenschein, Eric) Additional attachment(s) added on 4/21/2004 (js, ). (Entered: 04/20/2004)
260 NOTICE OF ERRORS AND/OR DEFICIENCIES re 259 Motion for Leave to File, filed by IBM Personal Pension Plan, The, IBM Corporation. See attached document for specifics (js, ) (Entered: 04/21/2004)
261 MOTION for Leave to File Objections to Plaintiffs' Proposed Findings of Fact and Conclusions of Law by IBM Corporation, IBM Personal Pension Plan, The. (Attachments: # 1 Affidavit Declaration of V. Amoroso)(Sonnenschein, Eric) Copy (no original signature) of Affidavit received via Fed Ex on 4/22/2004 (js, ). (Entered: 04/21/2004)
262 ORDER regarding 261 motion for leave to file objections to Plaintiffs' proposed findings of fact and conclusions of law. The motion is DENIED. The submissions are merely proposals, and additional materials would not be beneficial to the Court. Signed by Judge G. Patrick Murphy on 04/30/2004. (njr) (Entered: 04/30/2004)
263 MOTION for Hearing by IBM Corporation, IBM Personal Pension Plan, The. (Sonnenschein, Eric) (Entered: 05/26/2004)
264 ORDER GRANTING 263 MOTION for Hearing, and 258 MOTION for Hearing, filed by IBM Personal Pension Plan, The IBM Corporation. Hearing set for 7/26/2004 at 08:00 AM in East St. Louis Court House before Chief Judge G. Patrick Murphy. The court will hear arguments on the issues of early termination and backloading. Signed by Judge G. Patrick Murphy on 6/8/04. (lmc) (Entered: 06/08/2004)
265 Minute Entry for proceedings held before Judge G. Patrick Murphy : Evidentiary Hearing held on 7/26/2004 on the issues of early termination and backloading. Written Order to follow. (Court Reporter Molly Clayton.) (lmc) (Entered: 07/26/2004)
266 EXHIBIT by IBM Corporation, IBM Personal Pension Plan, The. Supplemental Exhibits to Defendants' Motion to Reconsider the Denial of Defendants' Motion for Summary Judgment on Plaintiffs' Anti−Backloading Claim. (Sonnenschein, Eric) (Entered: 07/28/2004)
267 TRANSCRIPT − with Errata Sheet − of Motions: Backloading and Early Termination held on 07/26/04 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (js) Modified on 8/3/2004 (myz, ). (Entered: 07/30/2004)
268 RESPONSE to 266 Exhibit, filed by Kathi Cooper. (Sprong, Douglas) (Entered: 08/03/2004)
269 RESPONSE Defendants' Reply to Plaintiffs' Response to Defendants' Supplemental Exhibits filed by IBM Corporation, IBM Personal Pension Plan, The. (Sonnenschein, Eric) Additional attachment(s) added on 8/6/2004 (js, ). (Entered: 08/04/2004)
270 MOTION for Entry of Judgment under Rule 54(b) by IBM Corporation, IBM Personal Pension Plan, The. (Sonnenschein, Eric) Additional attachment(s) added on 8/6/2004 (js, ). (Entered: 08/04/2004)
271 NOTICE OF ERRORS AND/OR DEFICIENCIES re 269 Response filed by IBM Personal Pension Plan, The, IBM Corporation, 270 Motion for Entry of Judgment under Rule 54(b) filed by IBM Personal Pension Plan, The, IBM Corporation. See attached document for specifics (js) (Entered: 08/06/2004)
272 RESPONSE to Motion re 270 MOTION for Entry of Judgment under Rule 54(b) filed by Kathi Cooper, Beth Harrington, Matthew Hillesheim. (Sprong, Douglas) (Entered: 08/10/2004)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 48 of 57

08/12/2004 09/03/2004 09/15/2004 09/17/2004 09/17/2004 09/30/2004
10/18/2004 10/26/2004 10/28/2004
10/28/2004 12/22/2004 01/06/2005 01/06/2005 01/10/2005 01/10/2005 01/10/2005

273 REPLY to Response to Motion re 270 MOTION for Entry of Judgment under Rule 54(b) filed by IBM Corporation, IBM Personal Pension Plan, The. (Huvelle, Jeffrey) (Entered: 08/12/2004)
274 Minute Entry for proceedings held before Judge G. Patrick Murphy : Telephone Conference held on 9/3/2004 re: clarification of parties' positions. (lmc) (Entered: 09/03/2004)
275 NOTICE of Settlement With Respect to the Claims of Sub−Class Three by Kathi Cooper, Beth Harrington, Matthew Hillesheim (Sprong, Douglas) (Entered: 09/15/2004)
276 NOTICE by IBM Corporation, IBM Personal Pension Plan, The Request to Delay Issuance of Remedy Order (Huvelle, Jeffrey) (Entered: 09/17/2004)
277 ORDER re 276 Notice filed by The IBM Personal Pension Plan, IBM Corporation. Signed by Judge G. Patrick Murphy on 9/17/04. (lmc) (Entered: 09/17/2004)
278 ORDER denying but with leave to reinstate if provisional settlement is not effectuated 201 Motion for Order, 202 Motion for Reconsideration, 207 Motion for Partial Summary Judgment, 209 Motion for Summary Judgment, 214 Motion for Partial Summary Judgment, 216 Motion for Summary Judgment, 227 Motion for Partial Summary Judgment, 270 Motion for Entry of Judgment under Rule 54(b). Signed by Chief Judge G. Patrick Murphy on 9/30/2004. (jmh) (Entered: 09/30/2004)
279 NOTICE of Hearing:Preliminary Approval Hearing set for 10/28/2004 at 01:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (lmc) (Entered: 10/18/2004)
280 Joint MOTION for Settlement Preliminary Approval for Sub−Class Three by Kathi Cooper. (Attachments: # 1 # 2 Exhibit Notice of Proposed Class Action Settlement)(Sprong, Douglas) Exhibit 1 rec'd in Clerk's Office on 10/26/04 (jmp) (Entered: 10/26/2004)
281 ORDER: GRANTING 280 Joint MOTION for Settlement−Preliminary Approval for Sub−Class Three−filed by Kathi Cooper.Final Fairness Hearing set for 1/10/2005 at 01:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 10/28/04. (lmc) (Entered: 10/28/2004)
282 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 10/28/2004. GRANTING 280 Joint MOTION for Settlement −Preliminary Approval for Sub−Class Three−filed by Kathi Cooper. Written Order to follow. (Court Reporter Molly Clayton.) (lmc) (Entered: 10/28/2004)
283 RESPONSE to 281 Order, Set Hearings, Terminate Motions Notice of Manual Filing of Spreadsheet filed by Kathi Cooper. (Sprong, Douglas) Rec'd in Clerk's Office on 12/22/2004 (myz ). (Entered: 12/22/2004)
284 MOTION for Attorney Fees and Costs and Incentive Awards by Kathi Cooper. (Attachments: # 1 Affidavit of Douglas Sprong)(Sprong, Douglas) (Entered: 01/06/2005)
285 Final MOTION for Settlement Approval with Respect to Subclass 3 by Kathi Cooper. (Sprong, Douglas) (Entered: 01/06/2005)
286 Minute Entry for proceedings held before Judge G. Patrick Murphy : Hearing held on 1/10/2005. Written Order to follow. (Court Reporter Molly Clayton.) (lmc) (Entered: 01/10/2005)
287 ORDER GRANTING 284 MOTION for Attorney Fees and Costs and Incentive Awards filed by Kathi Cooper, GRANTING 285 Final MOTION for Settlement Approval with Respect to Subclass 3 filed by Kathi Cooper. Signed by Judge G. Patrick Murphy on 1/10/05. (lmc) (Entered: 01/10/2005)
288 JUDGMENT pursuant to Rule 54(b) as to subclass 3. Signed by Judge G. Patrick Murphy on 1/10/05. (lmc) (Entered: 01/10/2005)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 49 of 57

01/18/2005
05/05/2005 05/19/2005
05/19/2005
05/19/2005 07/01/2005 07/01/2005 07/05/2005 07/05/2005 07/05/2005 07/05/2005 07/08/2005 07/08/2005 07/08/2005 07/08/2005 07/08/2005 07/11/2005

289 TRANSCRIPT of Final Approval, Subclass III held on 1/10/05 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (myz ) (Entered: 01/19/2005)
290 RECEIPT FOR CASE FILE. File to be returned on or before 5/16/05. (lmb) File returned in Clerk's Office on 5/10/2005 (lmb). (Entered: 05/06/2005)
291 Joint MOTION for Order to Preliminary Approve Class Action Settlement for Subclasses 1 and 2 by Kathi Cooper. (Attachments: # 1 Exhibit A to Joint Motion: Settlement Agreement (Part I)# 2 Exhibit A to Joint Motion: Settlement Agreement (Part II)# 3 Exhibit A to Joint Motion: Settlement Agreement (Exhibit A−Part III)# 4 Exhibit B to Joint Motion: Notice)(Sprong, Douglas) (Entered: 05/19/2005)
292 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 5/19/2005. GRANTING 291 Joint MOTION for Preliminary Approval of Class Action Settlement for Subclasses 1 and 2 filed by Kathi Cooper. FINAL APPROVAL Hearing SET for 8/8/2005 at 02:00 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (Court Reporter Molly Clayton.) (lmc) (Entered: 05/19/2005)
293 ORDER GRANTING PRELIMINARY APPROVAL to proposed class action settlement for subclasses 1 and 2. Signed by Judge G. Patrick Murphy on 05/19/2005. (njr) (Entered: 05/19/2005)
294 OBJECTION to Proposed Settlement Agreement 293 Order by Barry Gordon.(jmp ) Modified on 7/7/2005 (jmp). (Entered: 07/05/2005)
295 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Jeffrey Neil Young for Matthew Hillesheim; Kathi Cooper and Beth Harrington. $100.00 fee paid, receipt number 300 105854 (jmp) (Entered: 07/05/2005)
296 OBJECTION to Proposed Settlement Agreement 293 Order by Alan L. Berger (jmp) Modified on 7/7/2005 (jmp). (Entered: 07/05/2005)
297 OBJECTION to Proposed Settlement Agreement 293 Order by Kevin L. Jones. (jmp) Modified on 7/7/2005 (jmp ). (Entered: 07/05/2005)
298 OBJECTION to Proposed Settlement Agreement 293 Order by Willie Young.(jmp) Modified on 7/7/2005 (jmp ). (Entered: 07/05/2005)
299 RECEIPT FOR ORIGINAL FILE. File sent to Print Masters for photocopying. (lmb) (Entered: 07/06/2005)
300 OBJECTION to 293 Order by Kathi Cooper, Beth Harrington, Matthew Hillesheim. (Attachments: # 1 Exhibit A−−List of the Syverson Collective Plaintiffs)(Young, Jeffrey) (Entered: 07/08/2005)
302 OBJECTION to Proposed Settlement Agreement 293 Order by John H. Collier. (jmp) (Entered: 07/13/2005)
303 OBJECTION to Proposed Settlement Agreement 293 Order by Rolf M Marsh. (jmp) (Entered: 07/13/2005)
304 OBJECTION to Proposed Settlement Agreement 293 Order by Gary Laski. (jmp ) (Entered: 07/13/2005)
305 OBJECTION to Proposed Settlement Agreement 293 Order by James M Leas. (Attachments: # 1 Exhibits)(jmp ) (Entered: 07/13/2005)
301 NOTICE of Appearance by Jeffrey N. Young on behalf of Francis Abramovich, Al Abrams, Nizamuddin Ahmad, Charles Balkon, Dorothy Barewicz, Louia Bartholomew, Gerard Benson, John Bertsch, Judy Bettencourt, David Billingsley, David Black, Henry Boisselle, Patrick Boone, Michael Bossi, Ruth Alice Boyd, Gloria Bronson, Richard Brooks, Timothy Bryan, Dale Cahill, Carolyn Callahan, Peter Callahan, Joseph Casey, Clelia Cassel, James Catanzaro, Michael Child, Moulton Clark, John Coffey, Jerry Cogdill, Don Connors, Wayne Cooper, Gary Crompton, Gregory Dancker, William Daniels, Joseph Della Pietra, Lee Deshler,

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 50 of 57

07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005
07/11/2005 07/11/2005

Donna Devito, Donna Deweil, Margaret Dickens, Charles Dickison, Allen Dishaw, Alan Donerkiel, Rowan Dordick, Roderic Douglas, Charles Drake, Michael Dykas, Michael Edsall, Brian Elliot, Richard Evans, D. Wayne Farris, James Fenimore, Andrew Fitzgerald, Debra Fleming, John Fletcher, Robert Flowers, Thomas Fontana, Roger fournier, Jack Friedman, Peggy Garrow, Lawrence Gass, Ronald Gelden, Barry Gerard, Tina Gleisner, Ray Gonda, Edwin Goodloe, Kenneth Gresko, Paul Gromkowski, Robert Gruver, Kathleen Gubula−Winter, Patricia Guilbert, Ted Habza, David Halbrook, Eugene Hannon, Robert Harriman, Harvey Harris, Eugene Havel, Toni Heffler, Michael Heim, Mark Helm, Craig Hench, John Henze, Geraldine Hoffman, Patricia Holt, Aline Hong, Steven Hummell, Ronald Husted, Jr, Daniel Hutchinson, Francis Iaccino, Yvonne Jarvis, Glen Johnson, Linda Johnson, Sylvia Jones, Mark Kane, William Kane, Robert Kenny, Gary Kocsis, Bruce Krohn, David Lachtrupp, Renee Laduke, Jeffrey Lamphere, Leisha Lancaster, John Lange, Dave Leahy, James Leas, Thomas Letourneau, Kenneth Levesque, William Lewis, Brian Lloyd, Dave Lovelace, Aydee Lucas, Richard Luskin, Sharon Machia, Linda Mainville, Bernard Malewiacki, Rolf Marsh, Kathleen Mart, Walter Maslak, Dawn Mastin, Robert Mayo, David Mazgaj, Tom McCarthy, Robert McGowan, Samuel McMillon, Ellen McNulty, John Mellon, Gary Messier, Lewis Meyers, Michael Milio, David Miller, Ophelia Mims, Daniel Moczan, Edward Mogilski, Kevin Murphy, Kenneth Murray, William Myre, Paul Nascarella, Jody Newbold, Tom Noel, Christopher Novak, Rona Nowinski, Karen Noye, John O'Coin, Kathleen O'Dell, Dan Oklan, James Payne, Keith Peterson, Sandra Pierce, Thomas Pilon, Pat Plominski, Ellen Purifoy, Robert Purvee, Christina Raczyla, Michael Raker, Donald Rakowski, Brian Ramsey, Gerry Raviart, John Raymond, Richard Ritter, Antonio Rivera, Victoria Rivera, Laura Ross, Donna Marie Royer, Norman Rudikoff, Don Salemno, Jon Schapiro, Peter Schlesiona, Jeffrey Schmitt, Karen Schmitz, Denise Seager, Thomas Sharkey, Marvin Sheppard, Joseph Smith, Clinton Snyder, Gary Sockut, Joseph Sottile, Larry Southworth, Randall St. Amand, Ronald St. Amand, Bernard Ste. Marie, Michael Sullivan, Kathy Sylvester, Leslie Symon, William Syverson, Daniel Tafoya, Carol Teague, Thomas Tracy, David Tzilkowski, Timotny Vincelette, Paul Visser, Britt Vitols, Rosalie Wabs, Jeri Wagner, Nancy Waltz, Tijuana Watssen, James Weaver, Ray Wells, Herbert West, Dennis Williams, Enrique Wolf, Carl Wood, David Wortheim, Todd Wyant, Leo Zmuda (Attachments: # 1 Exhibit A: List of the Syverson Collective Plaintiffs)(Young, Jeffrey) (Entered: 07/11/2005)
306 OBJECTION to Proposed Settlement Agreement 293 Order by Katie F Jones. (jmp ) (Entered: 07/13/2005)
307 OBJECTION to Proposed Settlement Agreement 293 Order by Roger L Oedewaldt. (jmp) (Entered: 07/13/2005)
308 OBJECTION to Proposed Settlement Agreement 293 Order by Anthony T Arroyo. (jmp) (Entered: 07/13/2005)
309 OBJECTION to Proposed Settlement Agreement 293 Order by Ronald A Linton. (jmp) (Entered: 07/13/2005)
310 OBJECTION to Proposed Settlement Agreement 293 Order by Hudson G Willis. (jmp) (Entered: 07/13/2005)
311 OBJECTION to Proposed Settlement Agreement 293 Order by Larry Hanke, Jr. (jmp) (Entered: 07/13/2005)
312 OBJECTION to Proposed Settlement Agreement 293 Order by William Myre. (jmp) (Entered: 07/13/2005)
313 OBJECTION to Proposed Settlement Agreement 293 Order by Robert W Brzozowski. (Attachments: (1) Exhibit A (2) Exhibit B (3) Exhibit C (4) Exhibit D)(jmp) (Entered: 07/13/2005)
314 OBJECTION to Proposed Settlement Agreement 293 Order by Gary L Fellman. (jmp) (Entered: 07/13/2005)
315 OBJECTION to Proposed Settlement Agreement 293 Order by David Hauser. (jmp) (Entered: 07/13/2005)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 51 of 57

07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005 07/12/2005

316 OBJECTION to Proposed Settlement Agreement 293 Order by David Gowdy. (jmp) (Entered: 07/13/2005)
317 OBJECTION to Proposed Settlement Agreement 293 Order by Karen Travis. (jmp) (Entered: 07/13/2005)
318 OBJECTION to Proposed Settlement Agreement 293 Order by Ronald G Cherveny. (jmp) (Entered: 07/13/2005)
319 OBJECTION to Proposed Settlement Agreement 293 Order by Charles E McKerley. (jmp) (Entered: 07/13/2005)
320 OBJECTION to Proposed Settlement Agreement 293 Order by Rosario J Locascio. (jmp ) (Entered: 07/13/2005)
321 OBJECTION to Proposed Settlement Agreement 293 Order by Douglas E Whitehurst. (jmp) (Entered: 07/13/2005)
322 OBJECTION to Proposed Settlement Agreement 293 Order by Charles Balkon. (jmp) (Entered: 07/13/2005)
323 OBJECTION to Proposed Settlement Agreement 293 Order by Daniel C Moore. (jmp ) (Entered: 07/13/2005)
324 OBJECTION to Proposed Settlement Agreement 293 Order by Sharon Lewis. (jmp) (Entered: 07/13/2005)
325 OBJECTION to Proposed Settlement Agreement 293 Order by Maurice R Duprey. (jmp ) (Entered: 07/13/2005)
326 OBJECTION to Proposed Settlement Agreement 293 Order by Robert L Cook. (jmp) (Entered: 07/13/2005)
327 OBJECTION to Proposed Settlement Agreement 293 Order by Paul Gromkowski. (jmp) (Entered: 07/13/2005)
328 OBJECTION to Proposed Settlement Agreement 293 Order by Richard J Gunther. (jmp ) (Entered: 07/13/2005)
329 OBJECTION to Proposed Settlement Agreement 293 Order by Louise M Gunther. (jmp) (Entered: 07/13/2005)
330 OBJECTION to Proposed Settlement Agreement 293 Order by George E Beall. (jmp) (Entered: 07/13/2005)
331 OBJECTION to Proposed Settlement Agreement 293 Order by Gerald L Vantrease. (jmp) (Entered: 07/13/2005)
332 OBJECTION to Proposed Settlement Agreement 293 Order by Mark Megerian. (jmp) (Entered: 07/13/2005)
333 OBJECTION to Proposed Settlement Agreement 293 Order by Robert D Breed. (jmp ) (Entered: 07/13/2005)
334 OBJECTION to Proposed Settlement Agreement 293 Order by George Klopp. (jmp) (Entered: 07/13/2005)
335 OBJECTION to Proposed Settlement Agreement 293 Order by Jan T Karels. (jmp) (Entered: 07/13/2005)
336 OBJECTION to Proposed Settlement Agreement 293 Order by Lawrence L LeClair. (jmp) (Entered: 07/13/2005)
337 OBJECTION to Proposed Settlement Agreement 293 Order by David Lovelace. (jmp ) (Entered: 07/13/2005)
338 OBJECTION to Proposed Settlement Agreement 293 Order by Orest Bula. (jmp) (Entered: 07/13/2005)
339 OBJECTION to Proposed Settlement Agreement 293 Order by Ronald C Buszko. (jmp ) (Entered: 07/13/2005)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 52 of 57

07/12/2005 07/13/2005 07/13/2005 07/18/2005 07/18/2005 07/18/2005 07/20/2005 07/20/2005 07/22/2005 07/22/2005 07/25/2005 08/02/2005 08/02/2005
08/02/2005 08/03/2005 08/08/2005
08/08/2005 08/08/2005
08/16/2005

340 OBJECTION to Proposed Settlement Agreement 293 Order by Daniel A Roth. (jmp) (Entered: 07/13/2005)
341 OBJECTION to Proposed Settlement Agreement 293 Order by Russell Callaway. (jmp) (Entered: 07/13/2005)
342 OBJECTION to Proposed Settlement Agreement 293 Order by Daniel Oklan. (jmp) (Entered: 07/13/2005)
343 OBJECTION to Proposed Settlement Agreement 293 Order by William J Costine. (jmp) (Entered: 07/18/2005)
344 OBJECTION to Proposed Settlement Agreement 293 Order by Sheila Burch. (jmp) (Entered: 07/18/2005)
345 OBJECTION to Proposed Settlement Agreement 293 Order by Carmellena Jane Straley. (jmp) (Entered: 07/18/2005)
346 OBJECTION to Proposed Settlement Agreement 293 Order by Arthur G Cannon. (jmp) (Entered: 07/20/2005)
347 OBJECTION to Proposed Settlement Agreement 293 Order by Harry Wayne Montgomery. (jmp) (Entered: 07/20/2005)
348 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Patrick N. McTeague for Syverson, et al. $100.00 fee paid; receipt number 300 106246 (jmp) Modified on 7/26/2005 (jmp). (Entered: 07/25/2005)
349 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Charles E. Hamilton, III for Anton Zanki and Linda Cunningham. $100.00 fee paid, receipt number 400 58660 (jmp) (Entered: 07/26/2005)
350 OBJECTION to Proposed Settlement Agreement 293 Order by Gurbachan Singh Khalsa. (jmp) (Entered: 07/26/2005)
351 Final MOTION for Settlement Approval by Kathi Cooper. (Attachments: # 1 Exhibit Chart identifying objectors)(Sprong, Douglas) (Entered: 08/02/2005)
352 MOTION for Attorney Fees Costs and Incentive Awards by Kathi Cooper. (Attachments: # 1 Declaration of Kathi Cooper# 2 Declaration of Jeffrey Lewis# 3 Declaration of William K. Carr# 4 Affidavit Douglas R. Sprong# 5 Declaration of Stephen D. Susman)(Sprong, Douglas) (Entered: 08/02/2005)
353 MEMORANDUM in Support re 351 Final MOTION for Settlement Approval filed by IBM Personal Pension Plan, The, IBM Corporation. (Attachments: # 1 Declaration of Monica Scofield)(Huvelle, Jeffrey) (Entered: 08/02/2005)
354 OBJECTION to Proposed Settelement Agreement 293 Order by Willie Young. (jmp) (Entered: 08/05/2005)
355 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 8/8/2005. GRANTING 351 Final MOTION for Settlement Approval filed by Kathi Cooper. GRANTING 352 MOTION for Attorney Fees, Costs, and Incentive Awards filed by Kathi Cooper. Attorney Patrick McTeague appears on behalf of Syverson, et al., and withdraws their objection to the settlement, and files Stipulation filed in the Northern District of CA case. Written Order to follow. (Court Reporter Molly Clayton.) (lmc) (Entered: 08/08/2005)
356 STIPULATION filed in Syverson et al. v. International Business Machines Corporation case pending in the Northern District of CA re 355 Motion for Final Settlement Approval. (lmc) (Entered: 08/08/2005)
357 RESPONSE in Opposition re 291 Joint MOTION for Order to Preliminary Approve Class Action Settlement for Subclasses 1 and 2, 351 Final MOTION for Settlement Approval, 352 MOTION for Attorney Fees Costs and Incentive Awards filed by James Leas. (jmp) (Entered: 08/10/2005)
358 ORDER: GRANTING 351 Final MOTION for Settlement Approval filed by Kathi Cooper. GRANTING 352 MOTION for Attorney Fees, Costs, and Incentive Awards filed by Kathi Cooper. Signed by Judge G. Patrick Murphy on 8/16/05.

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 53 of 57

08/16/2005 08/16/2005 08/17/2005 08/23/2005
08/30/2005 08/30/2005 08/31/2005 08/31/2005
09/01/2005 09/01/2005 09/06/2005
09/07/2005 09/13/2005 09/14/2005 09/16/2005 09/20/2005 09/27/2005 09/27/2005 09/28/2005

(lmc) (Entered: 08/16/2005)
359 ORDER. Signed by Judge G. Patrick Murphy on 8/16/05. (lmc) (Entered: 08/16/2005)
360 JUDGMENT. Signed by Judge G. Patrick Murphy on 8/16/05. (lmc) (Entered: 08/16/2005)
361 OBJECTION to Proposed Settlement Agreement 293 Order by James S. Roberts. (jmp) (Entered: 08/17/2005)
362 TRANSCRIPT of Final Motion for Settlement Approval held on 8/8/05 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (jmp) (Entered: 08/24/2005)
363 NOTICE OF APPEAL as to 359 Order, 193 Order,,,,, 360 Judgment by IBM Personal Pension Plan, The, IBM Corporation. Filing fee $ 255. (Wick, Robert) (Entered: 08/30/2005)
364 DOCKETING STATEMENT by IBM Personal Pension Plan, The, IBM Corporation re 363 Notice of Appeal (Wick, Robert) (Entered: 08/30/2005)
USCA Appeal Fees received from Eric R. Sonnenschein, Covington &Burling: $255, receipt number 300 107075 re 363 Notice of Appeal filed by IBM Personal Pension Plan and The IBM Corporation. (lmb) (Entered: 08/31/2005)
365 Joint MOTION With Regard to Report on Subclass 3 Distributions re 285 Final MOTION for Settlement Approval with Respect to Subclass 3, 287 Order, Terminate Motions,, by Kathi Cooper, IBM Personal Pension Plan, The, IBM Corporation, Beth Harrington, Matthew Hillesheim. (Attachments: # 1 Exhibit A: Report on Subclass 3 Distributions)(Huvelle, Jeffrey) (Entered: 08/31/2005)
Transmission of Short Record to US Court of Appeals re 363 Notice of Appeal.Record on Appeal due to be prepared by 9/13/2005. (jmp) (Entered: 09/01/2005)
366 Circuit Rule 10 Letter (jmp) (Entered: 09/01/2005)
368 TRANSCRIPT of All Pending Motions held on 2/23/04 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (jmp) (Entered: 09/08/2005)
367 ORDER granting 365 Joint Motion with Regard to Report on Subclass 3 Settlement. Signed by Chief Judge G. Patrick Murphy on 9/7/05. (jmh) (Entered: 09/07/2005)
USCA Case Number 05−3588 for 363 Notice of Appeal filed by IBM Personal Pension Plan and IBM Corporation. (jmp) (Entered: 09/13/2005)
369 DESIGNATION of Record on Appeal by IBM Personal Pension Plan, The, IBM Corporation re 363 Notice of Appeal (Wick, Robert) (Entered: 09/14/2005)
370 NOTICE OF APPEAL as to 360 Judgment by James Leas. (jmp) (Entered: 09/16/2005)
371 DESIGNATION of Record on Appeal by Kathi Cooper, Beth Harrington, Matthew Hillesheim re 363 Notice of Appeal (Sprong, Douglas) (Entered: 09/20/2005)
Transmission of Short Record to US Court of Appeals re 370 Notice of AppealAppeal Record due to be prepared by 9/30/2005. (jmp) (Entered: 09/27/2005)
372 Circuit Rule 10 Letter (Leas Appeal) (jmp) (Entered: 09/27/2005)
373 USCA Appeal Fees received $ 255.00 receipt number 300 107599 re 370 Notice of Appeal filed by James Leas, (trb ) (Entered: 09/30/2005)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 54 of 57

10/11/2005 10/11/2005 10/11/2005 10/13/2005
10/13/2005 10/20/2005 10/24/2005 10/24/2005
10/25/2005 10/26/2005
11/03/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/10/2005 11/14/2005 11/14/2005 11/15/2005 11/15/2005

USCA Case Number 05−3882 for 370 Notice of Appeal filed by James Leas. (jmp ) (Entered: 10/13/2005)
374 MOTION for Extension of Time Under Rule 4(5) by James Leas. (jmp ) (Entered: 10/13/2005)
375 Motion to Modify the record construed by the Clerk as a DESIGNATION of Record on Appeal by James Leas re 370 Notice of Appeal (jmp) (Entered: 10/13/2005)
376 MEMORANDUM in Opposition re 374 MOTION for Extension of Time filed by Kathi Cooper. (Attachments: # 1 Exhibit 1: USCA Order of October 4, 2005 (05−3882)# 2 Exhibit 2: Marquez v. Mineta)(Sprong, Douglas) (Entered: 10/13/2005)
377 MOTION for Decisions on Previously Filed Requests by James Leas. (jmp) (Entered: 10/18/2005)
378 REPLY to Response to Motion re 374 MOTION for Extension of Time filed by James Leas. (Attachments: # 1 Exhibit)(jmp) (Entered: 10/21/2005)
379 ORDER denying 374 motion for extension of time filed by James Marc Leas. Signed by Judge G. Patrick Murphy on 10/24/2005. (njr) (Entered: 10/24/2005)
380 ORDER addressing October 20, 2005 letter mailed to the Clerk of Court by James Marc Leas and denying 377 motion for decisions on previously filed requests. See Order for specifics. Signed by Judge G. Patrick Murphy on 10/24/2005. (njr) (Entered: 10/24/2005)
381 SUPPLEMENT Affidavidt [to doc.#374] Concerning Motion to Extend the Time for Filing the Appeal by James Leas. (jmp) (Entered: 10/25/2005)
Record on Appeal Prepared re 363 &370 Notices of Appeal consisting of 11 volumes of pleadings, 10 volumes of transcripts, and 11 volumes of exhibits. Exhibits consist of 1 expando of attachments to doc. #88, 3 expando folders with consolidated appendix in support of docs. #105, 107, 128, 130, and 133; 2 expando folders with exhibits to docs. #124 &105, 1 expando folder with exhibits to doc. #143, 1 expando folder with attachments to doc.#149, 1 expando folder with attachments to doc.#186, 1 expando folder with Defendant's Consolidated Appendix in Support of Summary judgment Motions to Doc.#214 &216, 1 Expando folder containing doc.#251 (jmp) (Entered: 10/26/2005)
382 MOTION for Reconsideration Under Rule 59 by James M Leas. (myz ) (Entered: 11/07/2005)
383 EXHIBITS by James Leas re 382 MOTION for Reconsideration filed by James M Leas. (myz ) (Entered: 11/09/2005)
384 AFFIDAVIT by Robert L Cook regarding final judgment and appeal. (myz ) (Entered: 11/09/2005)
385 AFFIDAVIT by Orest Bula regarding final judgment and appeal. (myz ) (Entered: 11/09/2005)
386 AFFIDAVIT by Rolf M Marsh regarding final judgment and appeal. (myz ) (Entered: 11/09/2005)
387 MOTION Requesting Recusal by James Leas. (jmp) (Entered: 11/10/2005)
388 AFFIDAVIT by Charles Balkon regarding final judgment and appeal. (jmp) (Entered: 11/15/2005)
389 AFFIDAVIT by Paul Gromkowski regarding final judgment and appeal. (jmp) (Entered: 11/15/2005)
390 AFFIDAVIT by Katie F Jones regarding final judgment and appeal. (jmp) (Entered: 11/15/2005)
391 AFFIDAVIT by Douglas E Whitehurst regarding final judgment and appeal. (jmp) (Entered: 11/15/2005)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 55 of 57

11/21/2005
11/28/2005 11/28/2005 11/30/2005 12/01/2005 12/02/2005 12/07/2005 12/20/2005
01/17/2006 01/17/2006 01/17/2006 01/18/2006 01/18/2006 01/18/2006
01/25/2006 01/30/2006 01/30/2006
02/01/2006
02/01/2006 02/01/2006 02/08/2006 02/27/2006

392 MEMORANDUM in Opposition re 382 MOTION for Reconsideration Under Rule 59 of Objector James Marc Leas filed by Kathi Cooper. (Attachments: # 1 Affidavit of Vasilios ("Bill") D. Dossas# 2 Affidavit of George Wheeler)(Sprong, Douglas) (Entered: 11/21/2005)
393 AFFIDAVITS by David Gowdy, Richard J Gunther, and Louise M Gunther regarding final judgment and appeal. (jmp) (Entered: 11/29/2005)
394 MOTION to Register for Electronic Filing by James Leas. (Attachments: # 1 Affidavit in Support)(jmp) (Entered: 11/29/2005)
395 MEMORANDUM in Opposition re 387 MOTION for Recusal of Objector James Leas filed by Kathi Cooper. (Sprong, Douglas) (Entered: 11/30/2005)
396 RESPONSE to 392 Memorandum in Opposition to Motion, filed by James Leas. (jmp) (Entered: 12/01/2005)
397 AFFIDAVITS by James Leas on behalf of Karen Travis, Gerald L Vantrease, and Sheila Burch regarding final judgment and appeal. (jmp ) (Entered: 12/05/2005)
398 REPLY to Response to Motion re 387 MOTION for Recusal filed by James Leas. (Attachments: # 1 Affidavit in Support)(jmp ) (Entered: 12/13/2005)
399 ORDER: DENYING 394 MOTION filed by James Leas, DENYING 382 MOTION for Reconsideration filed by James M Leas, DENYING 387 MOTION for Recusal filed by James Leas. Signed by Judge G. Patrick Murphy on 12/19/05. (lmc) (Entered: 12/20/2005)
400 NOTICE OF APPEAL as to 399 Order filed by James Leas. Filing fee paid in the amount of $255.00 (jmp) (Entered: 01/18/2006)
401 DOCKETING STATEMENT by James Leas re 400 Notice of Appeal (jmp) (Entered: 01/18/2006)
Transmission of Short Record to US Court of Appeals re 400 Notice of Appeal (jmp) (Entered: 01/18/2006)
402 Circuit Rule 10 Letter (jmp) (Entered: 01/18/2006)
403 Letter to USCA sending appeal record. (jmp) Sent via Fed−Ex tracking numbers 8524 5242 9041 and 8524−5242 9030 (Entered: 01/18/2006)
404 Certified and Transmitted Record on Appeal to US Court of Appeals re 370 Notice of Appeal, 363 Notice of Appeal as it relates to USCA Case No.: 05−3882 (jmp) (Entered: 01/18/2006)
405 Acknowledgment of receipt of Record on Appeal by USCA 7 re 363 Notice of Appeal (jmp) (Entered: 01/30/2006)
406 MOTION for Bond on Appeal by Kathi Cooper. (Sprong, Douglas) (Entered: 01/30/2006)
407 MEMORANDUM in Support re 406 MOTION for Bond on Appeal filed by Kathi Cooper. (Attachments: # 1 Exhibit Order# 2 Exhibit Affidavit of Douglas R. Sprong)(Sprong, Douglas) (Entered: 01/30/2006)
408 ORDER finding as moot 406 motion for bond on appeal for the reason that the Court of Appeals dismissed the appeals filed by Mr. Leas on today's date. Signed by Judge G. Patrick Murphy on 02/01/2006. (njr) (Entered: 02/01/2006)
USCA Case Number 06−1260 for 400 Notice of Appeal filed by James Leas. (jmp) (Entered: 02/08/2006)
409 ORDER of USCA as to 370 and 400 Notices of Appeal filed by James Leas are both dismissed for want of jurisdiction. (jmp) (Entered: 02/08/2006)
410 STATUS REPORT on Subclass 3 Distributions by IBM Personal Pension Plan, The, IBM Corporation. (Wick, Robert) (Entered: 02/08/2006)
411 MANDATE of USCA as to 370 and 400 Notices of Appeal filed by James Leas. (jmp) (Entered: 02/28/2006)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 56 of 57

03/27/2006
08/04/2006 09/27/2006
02/06/2007 02/07/2007 02/07/2007 02/20/2007 02/20/2007 02/21/2007 03/02/2007
03/09/2007
03/14/2007 03/20/2007
03/21/2007 03/27/2007
04/03/2007 04/03/2007

412 TRANSCRIPT of Preliminary Approval of Settlement of Subclass 3 held on 10/28/04 before Judge G. Patrick Murphy. Court Reporter: Molly N. Clayton. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (jmp) (Entered: 03/30/2006)
413 STATUS REPORT On Subclass 3 Distributions by IBM Personal Pension Plan, The, IBM Corporation. (Huvelle, Jeffrey) (Entered: 08/04/2006)
414 MANDATE of USCA REVERSING the judgment of the district Court and REMANDED with directions to enter judgment in IBM's favor as to 363 Notice of Appeal filed by IBM Personal Pension Plan, and IBM Corporation. (jmp) (Entered: 09/27/2006)
415 STRICKEN PURSUANT TO DOC. 416 − STATUS REPORT on Subclass 3 Distributions by IBM Personal Pension Plan, The, IBM Corporation. (Wick, Robert) Modified on 2/7/2007 (bkl). (Entered: 02/06/2007)
416 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 415 Status Report filed by IBM Personal Pension Plan, IBM Corporation. See attached document for specifics. (bkl) (Entered: 02/07/2007)
417 STATUS REPORT on Subclass 3 Distributions by IBM Personal Pension Plan, The, IBM Corporation. (Huvelle, Jeffrey) (Entered: 02/07/2007)
418 MOTION for Hearing (Motion to Determine Contractual Lien) by Rex Carr. (Carr, Rex) (Entered: 02/20/2007)
419 MEMORANDUM in Support re 418 MOTION for Hearing (Motion to Determine Contractual Lien) filed by Rex Carr. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Carr, Rex) (Entered: 02/20/2007)
420 NOTICE of Appearance by Rex Carr on behalf of Rex Carr (Carr, Rex) (Entered: 02/21/2007)
421 RESPONSE to Motion re 418 MOTION for Hearing (Motion to Determine Contractual Lien) filed by Kathi Cooper. (Attachments: # 1 Exhibit Rule 23 Order# 2 Exhibit Order of September 26, 2006# 3 Exhibit Notice of Appeal)(Sprong, Douglas) (Entered: 03/02/2007)
422 REPLY to Response to Motion re 418 MOTION for Hearing (Motion to Determine Contractual Lien) filed by Rex Carr. (Attachments: # 1 Exhibit 4# 2 Exhibit 5# 3 Exhibit 6# 4 Fee Calculations to Ex 7, 8, &9# 5 Exhibit 7# 6 Exhibit 8# 7 Exhibit 9)(Carr, Rex) (Entered: 03/09/2007)
423 Joint MOTION to Clarify −− Joint Motion of the Parties for Confirmation of the Award of Fees and Costs by IBM Personal Pension Plan, The, IBM Corporation. (Huvelle, Jeffrey) (Entered: 03/14/2007)
424 ORDER: DENYING 418 MOTION for Hearing (Motion to Determine Contractual Lien) filed by Rex Carr. The Notice of Lien is DISMISSED. GRANTING 423 Joint MOTION to Clarify−−Joint Motion of the Parties for Confirmation of the Award of Fees and Costs filed by IBM Personal Pension Plan, IBM Corporation. Defendants are DIRECTED to pay $88,573,250 to class counsel by March 27, 2007. Signed by Judge G. Patrick Murphy on 3/20/2007. (lmc) (Entered: 03/20/2007)
425 MOTION to Clarify (or Modify) by Rex Carr. (Carr, Rex) (Entered: 03/21/2007)
426 ORDER: Granting in part and Denying in part 425 Motion to Clarify or Modify by Rex Carr. Clarification of the March 20, 2007, order is granted; modification of the March 20, 2007, order is denied. Signed by Chief Judge G. Patrick Murphy on 3/27/07. (jmh) (Entered: 03/27/2007)
427 NOTICE OF APPEAL by Rex Carr. Filing fee $ 455. (Carr, Rex) (Entered: 04/03/2007)
428 USCA Appeal Fees received $ 455 receipt number 300 117905 re 427 Notice of Appeal filed by Rex Carr. (tkm ) (Entered: 04/03/2007)

Case: 3:99-cv-829 As of: 08/12/2010 02:02 PM CDT 57 of 57

04/05/2007 04/09/2007 04/17/2007 05/22/2007 06/28/2007 07/25/2007 08/09/2007 02/11/2008

Transmission of Short Record to US Court of Appeals re 427 Notice of Appeal. Record due to be prepared by 4/19/2007. (jmp) (Entered: 04/05/2007)
429 DESIGNATION of Record on Appeal by Rex Carr re 427 Notice of Appeal (Carr, Rex) (Entered: 04/09/2007)
430 USCA Case Number 07−1767 for 427 Notice of Appeal filed by Rex Carr. (jmp) (Entered: 04/17/2007)
Record on Appeal Prepared re 427 Notice of Appeal (jmp) (Entered: 05/22/2007)
431 ORDER of USCA as to 427 Notice of Appeal filed by Rex Carr (jmp) (Entered: 06/29/2007)
432 MANDATE of USCA as to 427 Notice of Appeal filed by Rex Carr (jmp) (Entered: 07/26/2007)
433 STATUS REPORT on Subclass 3 Distributions by IBM Personal Pension Plan, The, IBM Corporation. (Huvelle, Jeffrey) (Entered: 08/09/2007)
434 STATUS REPORT on Subclass 3 by IBM Personal Pension Plan, The, IBM Corporation. (Huvelle, Jeffrey) (Entered: 02/11/2008)

 
 In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 05-3588 KATHI COOPER, et al., on behalf of a class,
v.

Plaintiffs-Appellees,

IBM PERSONAL PENSION PLAN and IBM CORPORATION,
Defendants-Appellants. ____________
Appeal from the United States District Court for the Southern District of Illinois.
No. 99-829-GPM—G. Patrick Murphy, Chief Judge.
____________
ARGUED FEBRUARY 16, 2006—DECIDED AUGUST 7, 2006 ____________

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge. The IBM Personal Pension Plan is a cash-balance defined-benefit plan. It is almost, but not quite, a defined-contribution plan. Although each employee in a defined-contribution plan has a fully funded individual account, the personal account in a cash-balance plan is not separately funded. Instead IBM imputes value to the account in the form of “credits”: there are pay credits (set at 5% of the employee’s gross taxable income) and interest credits (set at 100 basis points above the rate of interest on one-year Treasury bills). A trust holds assets

2

No. 05-3588

that may (or may not) be enough to fund all of the individual accounts when workers quit or retire. IBM’s plan permits an employee who quits or retires after working long enough for pension benefits to vest (a maximum of five years) to withdraw the balance in cash or roll it over into a fully funded annuity. During the time before cash-out the employee takes the risk that IBM will suffer business reverses and be unable to pay the full stated value of the account (if the amount already in trust for participants as a group turns out to be insufficient); otherwise IBM’s plan is economically identical to a defined-contribution plan funded the same way and invested in a bond fund that returns 1% above the Treasury rate.
Plaintiffs in this class-action litigation contend that IBM’s plan violates a subsection of ERISA (the Employee Retirement Income Security Act) that prohibits age discrimination. The district court ruled in plaintiffs’ favor, see 274 F. Supp. 2d 1010 (S.D. Ill. 2003), and proceedings continued as the parties debated how much IBM owes (and how it must change its plan in future years) as a remedy. That subject has been resolved to mutual satisfaction—contingent on the district judge being right on the merits—so this appeal is limited to the question whether the plan is unlawfully discriminatory.
All terms of IBM’s plan are age-neutral. Every covered employee receives the same 5% pay credit and the same interest credit per annum. The basis of the plaintiffs’ challenge—and the district court’s holding—is that younger employees receive interest credits for more years. The language on which plaintiffs rely was added to ERISA in 1986; Congress also enacted a parallel provision covering defined-contribution plans. Pub. L. 99-509, 100 Stat. 1874, 1975, 1976 (1986). We set these out alongside to facilitate comparison:

No. 05-3588

3

Defined-benefit plans: ERISA §204(b)(1)(H)(i), 29 U.S.C. §1054(b)(1)(H)(i)

Defined-contribution plans: ERISA §204(b)(2)(A), 29 U.S.C. §1054(b)(2)(A)

[A] defined benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee’s benefit accrual is ceased, or the rate of an employee’s benefit accrual is reduced, because of the attainment of any age.

A defined contribution plan satisfies the requirements of this paragraph if, under the plan, allocations to the employee’s account are not ceased, and the rate at which amounts are allocated to the employee’s account is not reduced, because of the attainment of any age.

These appear to say the same thing, except that the rule for defined-benefit plans tells us what is not allowed, while the rule for defined-contribution plans tells us what works. Either way, the employer can’t stop making allocations (or accruals) to the plan or change their rate on account of age. The IBM plan does neither of these things and therefore, one would suppose, complies with the statute. If this were a real, rather than a phantom, defined-contribution plan, that much would be taken for granted. Yet if the 5%-plusinterest formula is non-discriminatory when used in a defined-contribution plan, why should it become unlawful because the account balances are book entries rather than cash?

4

No. 05-3588

Plaintiffs persuaded the district court, however, that the two subsections are radically different. That difference is attributable to the phrase “benefit accrual,” which appears in the subsection for defined-benefit plans but not the one for defined-contribution plans. Neither ERISA nor any regulation defines this phrase, so the district judge went looking for some equivalent elsewhere in the statute. It found the phrase “accrued benefit,” which is defined in §3(23)(A), 29 U.S.C. §1002(23)(A). An “accrued benefit” is an amount “expressed in the form of an annual benefit commencing at normal retirement age.” Plug this back into §204(b)(1)(H)(i), and the rule against discrimination then refers not to what IBM puts into the plan, but what the employee takes out on retirement. Someone who leaves IBM at age 50, after 20 years of service, will have a larger annual benefit at 65 than someone whose 20 years of service conclude with retirement at age 65. The former receives 15 years’ more interest than the latter—and the judge assumed that this is not counterbalanced by the fact that older workers generally draw higher salaries. Under the district court’s analysis, compound interest becomes a scourge, for the younger the employee when any given year’s salary is earned, the greater the payout “expressed in the form of an annual benefit commencing at normal retirement age.”
This approach treats the time value of money as age discrimination. Yet the statute does not require that equation. Interest is not treated as age discrimination for a defined-contribution plan, and the fact that these subsections are so close in both function and expression implies that it should not be treated as discriminatory for a definedbenefit plan either. The phrase “benefit accrual” reads most naturally as a reference to what the employer puts in (either in absolute terms or as a rate of change), while the defined phrase “accrued benefit” refers to outputs after

No. 05-3588

5

compounding. That’s where this litigation went off the rails: a phrase dealing with inputs was misunderstood to refer to outputs. As long as we think of “benefit accrual” as referring to what the employer imputes to the account—an understanding reinforced by the use of the word “allocation” in the subsection addressing defined-contribution plans—there is no statutory difference between the treatment of economically equivalent defined-benefit and defined-contribution plans. For defined-benefit plans, where the account is an accounting entry rather than cash, “benefit accrual” matches the money “allocated” to a defined-contribution plan.
Nothing in the language or background of §204(b)(1)(H)(i) suggests that Congress set out to legislate against the fact that younger workers have (statistically) more time left before retirement, and thus a greater opportunity to earn interest on each year’s retirement savings. Treating the time value of money as a form of discrimination is not sensible. Cf. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (variables correlated with age must be kept “analytically distinct” from age when searching for discrimination). The parallel between the subsections for defined-benefit and defined-contribution plans shows as much. All sorts of things go wrong unless we treat both §204(b)(1)(H)(i) and §204(b)(2)(A) as addressing the rate at which value is added (or imputed) to an account, rather than the annual pension at retirement age. Consider a formula that adds $500 to annual pension benefits for every year worked. This setup economically favors older workers (as does a top-five-yearsalary multiplier) because it ignores the time value of money and treats the last year of work as contributing equally with the first. Yet on the plaintiffs’ understanding it would be a form of discrimination against the old, because the $500 is a smaller “rate of benefit accrual” as time passes. Someone who worked two years would get a “100% rate of increase” in his second year (his annual benefits on

6

No. 05-3588

retirement would jump from $500 to $1,000), while someone who works 20 years receives only a 5% growth (from $19,500 to $20,000) in Year 20.
Our conclusion that “benefit accrual” (for defined-benefit plans) and “allocation” (for defined-contribution plans) both refer to the employer’s contribution rather than the time value of money between contribution and retirement has the support of regulations that the Treasury Department proposed. (Appropriations riders have prevented the Treasury from taking final action on the draft regulations, but they still help to inform our understanding of the statute.) The draft regulations treat the “rate of benefit accrual” as “the increase in the participant’s accrued normal retirement benefit for the year.’’ 67 Fed. Reg. 76123, 76125 (Dec. 11, 2002). For cash-balance plans in particular the phrase would have been defined as “the additions to the participant’s hypothetical account for the plan year.” 67 Fed. Reg. at 76126. The draft specifies that interest credits must accrue “at a reasonable rate of interest that does not decrease because of the attainment of age” and be provided “for all future periods, including after normal retirement age”. Ibid.
Thus the Treasury’s view, like our independent reading, looks at the rate of contribution (what goes into the account) rather than the annual rate of withdrawal at retirement. The Treasury asks: “if this employee were younger, would the hypothetical balance have grown more this year?” For IBM’s plan, the answer is no. When an employee is 20, his account is increased monthly by 5% of his salary plus credits based on the account’s balance multiplied by a prescribed interest rate. The same is true when the employee turns 50, 60, or 70. Neither the contribution rate nor the interest rate changes with age. (No one contests the rate at which interest is credited—though 100 basis points over the Treasury rate looks low compared with

No. 05-3588

7

what investments could earn in the private market and therefore could be understood to disfavor younger employees.)
Plaintiffs proposes a different definition of “benefit accrual”: annual pension (at retirement age) divided by salary. Contributions at age 25 produce an annual pension benefit that equals about 3% of each year’s income in nominal dollars, while contributions at 65 produce annual benefits only 0.4% of the year’s income. Not surprising, and hardly illuminating; this is just another illustration of the power of compound interest. The example depends on (a) allowing the pension to be increased by compounding, while (b) failing to discount the pension to present value. Stated another way, this example compares 1966 dollars (when the 25-year-old earned the salary) with 2006 dollars (when that person turns 65 and starts to draw a pension); of course the return on investment looks good, but much of it is inflation and the rest is real interest rates. The person who earns a salary in 2005 and retires in 2006 is (materially) unaffected by both inflation and compound interest. Nothing depends on age. Someone who earns a salary at age 65 and waits 40 years to start drawing a pension would receive the same 3%-of-salary-per-retirement-year as the illustrative 25-yearold who retires at 65; and someone who earns wages at 25 and retires the next year gets the same 0.4%-of-salary annual pension, if not less (because of discounting).
Much of the plaintiffs’ argument rests on the idea that the account of a 25-year-old worker does not get 5% plus periodic interest, but instead is immediately credited with 5% of salary plus 40 years’ interest. That makes the contributions look discriminatory: the 25-year-old worker’s account receives 40 times as much interest credit in the year the contributions accrue as a 65-year-old worker’s account. Once again, however, this perspective misunderstands both the statute and the time value of money.

8

No. 05-3588

Nothing in either ERISA or the IBM plan requires 40 years of interest to be credited to the account as soon as the young worker earns wages. What plaintiffs have in mind is the rule that, when any beneficiary (young or old) elects to take a cash distribution or roll the account into an annuity before reaching age 65, the plan must distribute a lump sum calculated to be the “actuarial equivalent” of the annuity that would be available at normal retirement age. ERISA §204(c)(3), 29 U.S.C. §1054(c)(3). To derive the “actuarial equivalent” of a pension at age 65, a plan must (a) add all interest that would accrue through age 65, then (b) discount the resulting sum to its present value. Berger v. Xerox Corp. Retirement Income Guarantee Plan, 338 F.3d 755, 762-63 (7th Cir. 2003). Plaintiffs characterize step (a) as extra interest credits for the young, but they ignore step (b). The discount rate may be close to (if it does not exceed) the rate at which interest is imputed, so the amount paid out in cash may be close to if not below the nominal balance in the account. Berger did not consider §204(b)(1)(H)(i) and does not hold that the process of grossing up the balance and then discounting is a form of age discrimination. To the contrary: Berger described this process as the means to avoid age discrimination.
As far as we can see, ours is the first appellate decision to address the status of cash-balance plans under §204(b)(1)(H)(i). The class directs our attention to two decisions from other circuits that it says supply helpful analysis. Miller v. Xerox Corp. Retirement Income Guarantee Plan, 447 F.3d 728 (9th Cir. 2006); Esden v. Bank of Boston, 229 F.3d 154 (2d Cir. 2000). As the class reads them, these opinions stand for two important propositions. First, that an “accrued benefit” in a cash-balance plan is an annuity at normal retirement age. Second, that there is a “fundamental” distinction between defined-contribution and defined-benefit plans. Both of these propositions are correct, and both of them are irrelevant.

No. 05-3588

9

Start with the first proposition. What the true meaning of “accrued benefit” may be is not controlling; §204(b)(1)(H)(i) does not use that phrase, and we have explained why “benefit accrual” means something other than “accrued benefit.” Once we start to calculate accrued benefits for people who quit or retire early, it is necessary to impute extra interest and discount. Berger describes how this is done. But “benefit accrual” refers to the annual addition to the pot, not to the final payout. The holding of Esden, see 229 F.3d at 168, mirrors that of Berger and requires no further comment. Miller extends the framework of Esden and Berger to evaluate reductions in notional account balances caused by previous lump-sum distributions. 447 F.3d at 733-34. See 26 C.F.R. §1.411(a)-7(d)(6) (offset may equal the “accrued benefit attributable to the distribution”).
As for the second proposition, plaintiffs cite language describing the regulatory framework as “rigidly binary” (Esden, 229 F.3d 154, 159 n.6). True enough. A definedcontribution plan entails fully funded individual accounts; everything else is a defined-benefit plan. 29 U.S.C. §1002(25). Miller adds that “interest credits are defined benefit entitlements . . . and are not analogous to the investment growth of a defined contribution plan”. 447 F.3d at 735. Maybe so; that depends on what the court meant by “analogous.” Interest in a defined-contribution plan is real, while interest credits in a defined-benefit plan are bookkeeping entries (effectively debt obligations of the employer to the extent that the pension trust fund does not cover them). But so what? IBM does not contend that its plan is governed by §204(b)(2)(A), just that §204(b)(1)(H)(i) does not whimsically require a court to find age discrimination for a defined-benefit plan when materially identical statutory language allows functionally identical defined-contribution plans to operate without any taint of discrimination. To say that defined-benefit and defined-contribution plans are governed by different subsections of ERISA is not to say that

10

No. 05-3588

what is lawful for one must be forbidden to the other. We conclude that §204(b)(1)(H)(i) and §204(b)(2)(A) indeed provide similar treatment with respect to claims of age discrimination.
Only a brief mention of Arizona v. Norris, 463 U.S. 1073 (1983), another mainstay of the class’s briefs, is called for. In Norris women making the same pension contributions as men, all else held equal, had lower annual pension benefits. Id. at 1082. Under IBM’s plan any differences in pension benefits are a function of differing years of service, salary history, or the years the balance has been allowed to compound; age is not a factor.
Here, as so often, it is essential to separate age discrimination from other characteristics that may be correlated with age. That was the Supreme Court’s point in Hazen Paper: wages rise with seniority (and thus with age) at many employers, but distinctions based on wage levels (in order to reduce a payroll) do not “discriminate” by age. See also, e.g., Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997) (need to show “the effect of age, isolated from other influences”); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997) (expert should correct for “potentially explanatory variables other than age” when determining whether discrimination was because of age). While those decisions involved different statutory regimes, the objective is general: a plaintiff alleging age discrimination must demonstrate that the complained-of effect is actually on account of age. One need only look at IBM’s formula to rule out a violation. It is age-neutral.
Now this may give a clue about why plaintiffs (a class of older workers) have sued. The cash-balance plan replaced a more traditional arrangement under which the annual pension on retirement was a function of closing salary (say, an average of the last five years before retirement) multi-

No. 05-3588

11

plied by the number of years of service. Because wages rise with seniority, such a formula favors older workers. Workers who quit or retire early not only miss out on the rising wages that accompany seniority but also don’t receive credit for the time value of money: years of service at age 30 and at age 70 count equally in the traditional formula. Many employers design such back-loaded systems to give the most-experienced members of the labor force a reason (even beyond rising salary) to stay on the job. Like a definedcontribution plan, a cash-balance plan removes the backloading of the pension formula; older workers (accurately) perceive that they are worse off under a cash-balance approach than under a traditional years-of-service-timesfinal-salary plan. But removing a feature that gave extra benefits to the old differs from discriminating against them. Replacing a plan that discriminates against the young with one that is age-neutral does not discriminate against the old.
There is a transition issue. When IBM moved employees from a more traditional plan to a cash-balance system, it gave them the greater of the present value of their pension entitlements as of the transition date or the account balance that they would have had if IBM had a cashbalance plan in effect since the employee came to work. Plaintiffs complain that this gives the younger workers too much credit for interest (because more time passes between their work and retirement dates), but that rehashes arguments that we’ve already rejected. Every employee with the same salary and service record receives the same opening account balance under the new plan. That the change disappointed expectations is not material. An employer is free to move from one legal plan to another legal plan, provided that it does not diminish vested interests—and this transition did not. Cf. Lockheed Corp. v. Spink, 517 U.S. 882 (1996) (employers are not fiduciaries under ERISA when they create or amend pension plans).

12

No. 05-3588

Litigation cannot compel an employer to make plans more attractive (employers can achieve equality more cheaply by reducing the highest benefits than by increasing the lower ones). It is possible, though, for litigation about pension plans to make everyone worse off. After the district court’s decision IBM eliminated the cash-balance option for new workers and confined them to pure defined-contribution plans. See Ellen E. Schultz & Theo Francis, How Safe Is Your Pension?—Freeze of IBM Plan Leaves Workers Worrying If Their Employer Is Next, Wall St. J., Jan. 12, 2006, at D1; Ellen E. Schultz, IBM to Exclude New Workers From Its Cash-Balance Pension—Move to Only 401(k) Plans Follows Legal Questions, Wall St. J., Dec. 9, 2004, at A2. Whether that is good or bad (for employees or society as a whole) is not for us to say. What we can and do conclude, however, is that the decision may again be made freely, governed by private choice rather than legal constraint.
The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in IBM’s favor.

No. 05-3588 A true Copy:
Teste:

13
________________________________ Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—8-7-06

 
 General Docket

US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 05-3588

Filed: 9/6/05

Nsuit: 3791 Emp Retire Income Secur-Fed Q.

Cooper, Kathi, et al v. IBM Personal Pension, et al

Appeal from: United States District Court

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0754-3 : 99 C 829 Ordering Judge: G. Patrick Murphy, Chief Judge Court Reporter: Molly N. Clayton, Court Reporter Date Filed: 11/1/99 Date order/judgment: 8/16/05 Date NOA filed: 8/30/05 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Prior cases:

None

Current cases:

Lead

Member

Start

End

Related:

05- 3588 05- 3882 9/30/05 8/7/06

05- 3588 06- 1260 1/19/06 8/7/06

05- 3882 06- 1260 8/7/06

Docket as of January 22, 2007 11:00 pm

Page 1

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

KATHI COOPER Plaintiff - Appellee

Lee A. Freeman, Jr. FAX 312/822-0870 312/222-5100 Suite 3200 [COR LD NTC ret] FREEMAN, FREEMAN & SALZMAN 401 N. Michigan Avenue Chicago, IL 60611-4207 USA

BETH HARRINGTON Plaintiff - Appellee

Lee A. Freeman, Jr. (See above) [COR LD NTC ret]

MATTHEW HILLESHEIM Plaintiff - Appellee

Lee A. Freeman, Jr. (See above) [COR LD NTC ret]

v.

IBM PERSONAL PENSION PLAN

Jeffrey G. Huvelle

Defendant - Appellant

FAX 202/778-5526 202/662-5526 [COR LD NTC ret] COVINGTON & BURLING 1201 Pennsylvania Avenue N.W. Washington, DC 20004-2401 USA

IBM CORPORATION Defendant - Appellant

Jeffrey G. Huvelle (See above) [COR LD NTC ret]

-------------------------

AMERICAN BENEFIT COUNCIL Amicus Curiae

Kent A. Mason FAX 202/638-2650 202/347-2230 Suite 1200 [COR LD NTC ret] DAVIS & HARMAN 1455 Pennsylvania Avenue Washington, DC 20004 USA

AT&T CORPORATION Amicus Curiae

Kent A. Mason (See above) [COR LD NTC ret]

BP AMERICA, INCORPORATED Amicus Curiae

Kent A. Mason (See above) [COR LD NTC ret]

Docket as of January 22, 2007 11:00 pm

Page 2

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

ELECTRONIC DATA SYSTEMS CORPORATION
Amicus Curiae

Kent A. Mason (See above) [COR LD NTC ret]

HONEYWELL INTERNATIONAL, INCORPORATED
Amicus Curiae

Kent A. Mason (See above) [COR LD NTC ret]

PHILLIP ENGERS Amicus Curiae

Stephen R. Bruce FAX 202/371-0121 202/371-8013 Suite 210 [COR LD NTC ret] 805 15th Street N.W. Washington, DC 20005

DONALD NOERR Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

WARREN MCFALL Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

GERALD SMIT Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

WAYNE TOMLINSON Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

GARY MUCKELROY Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

ALICE BALLESTROS Amicus Curiae

Stephen R. Bruce (See above) [COR LD NTC ret]

AMERICAN ASSOCIATION OF RETIRED PERSONS
Amicus Curiae

Mary E. Signorille FAX 202/434-6424 202/434-2060 [COR LD NTC ret] AARP FOUNDATION LITIGATION 601 E Street N.W. Washington, DC 20049 USA

Docket as of January 22, 2007 11:00 pm

Page 3

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al
KATHI COOPER, BETH HARRINGTON and MATTHEW HILLESHEIM,
Plaintiffs - Appellees v.
IBM PERSONAL PENSION PLAN and IBM CORPORATION,
Defendants - Appellants

Docket as of January 22, 2007 11:00 pm

Page 4

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

9/6/05

Private civil case docketed. [05-3588] [1899439-1] Transcript information sheet due 9/16/05. Appellant's brief due 10/17/05 for IBM Personal Pension, for IBM Corporation. (amyd) [05-3588]

9/6/05

Filed Appellant IBM Personal Pension, Appellant IBM

Corporation docketing statement. [05-3588] [1899442-1] (amyd) [05-3588]

9/12/05

ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: [1899439-1] SCO [05-3588] Appellants' brief due 10/27/05 for IBM Corporation, for IBM Personal Pension . Appellees' brief due 11/28/05 for Matthew Hillesheim, for Beth Harrington, for Kathi Cooper . Appellants' reply brief due 12/12/05 for IBM Corporation, for IBM Personal Pension . (hard) [05-3588]

9/27/05

Terminated attorney Steven A. Katz for Matthew Hillesheim, attorney Steven A. Katz for Beth Harrington, attorney Steven A. Katz for Kathi Cooper and added attorney Lee A. Freeman, Jr. per disclosure statement. Disclosure statement filed for Appellee Kathi Cooper, Appellee Beth Harrington, Appellee Matthew Hillesheim by Lee A. Freeman. [05-3588] [1899439-1] (kell) [05-3588]

9/27/05

Disclosure Statement filed by Robert D. Wick for Appellant IBM Corporation, Appellant IBM Personal Pension. [05-3588] [1899439-1] (kell) [05-3588]

10/12/05

Filed motion by Appellee Kathi Cooper in 05-3588, Appellee Beth Harrington in 05-3588, Appellee Matthew Hillesheim in 05-3588 to extend time to file appellee's brief. [1912022-1] [05-3588] (kell) [05-3588]

10/13/05

ORDER issued GRANTING agreed motion by appellees for modification of briefing schedule. Briefing shall proceed as follows: [1912022-1] CMD [05-3588] Appellant's brief due 10/27/05 for IBM Corporation, for IBM Personal Pension. Appellee's brief due 12/2/05 for Matthew Hillesheim, for Beth Harrington, for Kathi Cooper. Appellant's reply brief due 12/20/05 for IBM Corporation, for IBM Personal Pension. (kell) [05-3588]

10/28/05

Filed 15c appellant's brief by IBM Personal Pension in 05-3588, IBM Corporation in 05-3588. Disk filed. [05-3588] [0-0] (trot) [05-3588]

10/28/05

Filed 10c vols. I & II appendix by Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588. [05-3588] [1917485-1] (trot) [05-3588]

Docket as of January 22, 2007 11:00 pm

Page 5

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

10/28/05

Terminated attorney Robert D. Wick for IBM Corporation in 05-3588, attorney Robert D. Wick for IBM Personal Pension in 05-3588, attorney David H. Remes for IBM Corporation in 05-3882, attorney David H. Remes for IBM Personal Pension in 05-3882 and added attorney Jeffrey G. Huvelle per disclosure statement. Disclosure statement filed for

Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588, Appellee IBM Personal Pension in 05-3882, Appellee IBM Corporation in 05-3882 by Jeffrey G. Huvelle in 05-3588, Jeffrey G. Huvelle in 05-3882. [05-3588, 05-3882] [1908653-1] (kell) [05-3588 05-3882]

11/2/05

Disclosure Statements filed by Glen D. Nager and Donald J. Rosenberg for Appellant IBM Corporation, Appellant IBM Personal Pension in 05-3588. [05-3588] [1908653-1] (amyd) [05-3588]

11/3/05

Filed motion by Young Women's Christian Association Retirement Fund Inc. to file amicus brief. [1920328-1] 15c amicus brief tendered. [0-0] [05-3588] (hard) [05-3588]

11/4/05

Filed motion by Monsanto Company and the Chamber of Commerce of the United States of America to file amicus brief. [1920346-1] 15c amicus brief tendered. [0-0] [05-3588] (hard) [05-3588]

11/7/05

Filed motion by to file amicus brief on behalf of American Benefits Council, AT&T Corporation, BP America, Inc., Electronic Data Systems Corp., El Paso Corp., Honeywell Int'l. Inc., Mercer Human Resource Consulting, Inc., Erisa Industry Committee, Watson Watt Worldwide and Wells Fargo & Company. [1921175-1] [05-3588] (kell) [05-3588]

11/8/05

ORDER re: (1) Motion for leave to file brief amici curiae on behalf of American Benefit Counsel, AT&T Corporation, BP America Inc., Electronic Data, Honeywell Int'l, Inc., Mercer Human Resource Consulting, Inc., Erisa Industry Committee, Watson Wyatt Worldwide, Wells Fargo & Company in support of appellants Urging Reversal. (2) Motion for leave to file amicus curiae brief on behalf of the Young Women's Christian Association Retirement Fund, Inc. (3) Motion of Monsanto Company and the Chamber of Commerce of the United States of America for leave to file brief amici curiae. #1 is GRANTED. The clerk of this court shall file INSTANTER the tendered amicus brief and distribute to the assigned merits panel. #2 and #3 are DENIED. [1920346-1] [1920328-1] (kell) [05-3588]

Docket as of January 22, 2007 11:00 pm

Page 6

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

11/8/05

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: AMICI CURIAE: El Paso Corp., Mercer Human Resource Consulting, Inc., Erisa Industry Committee, Watson Wyatt Worldwide and Wells Fargo & Company. [05-3588] [1908653-1] (kell) [05-3588]

11/8/05

Filed 15c amicus brief by Amicus Curiae American Benefit Cou, AT&T Corporation, BP America Inc, Electronic Data, Honeywell Int'l Inc in 05-3588, per order. Electronically transmitted. [05-3588] [0-0] (kare) [05-3588]

11/8/05

Disclosure Statement filed by Kent A. Mason for Amicus Curiae Honeywell Int'l Inc, Amicus Curiae Electronic Data, Amicus Curiae BP America Inc, Amicus Curiae AT&T Corporation, Amicus Curiae American Benefit Cou in 05-3588. [05-3588] [1908653-1] (hudk) [05-3588]

12/2/05

Filed 15c appellee's brief by Kathi Cooper in 05-3588, Beth Harrington in 05-3588, Matthew Hillesheim in 05-3588. Disk filed. [05-3588] [0-0] (odea) [05-3588]

12/2/05

Filed 10c appendix by Appellee Kathi Cooper in 05-3588, Appellee Beth Harrington in 05-3588, Appellee Matthew Hillesheim in 05-3588 . [05-3588] [1929510-1] (odea) [05-3588]

12/9/05

Filed motion by Phillip Engers, Donald Noerr, Warren McFall and Gerals Smit, Wayne tomlinson, Gary Muckelroy and Alice Ballesteros to file amicus brief. [1931815-1] 15c amicus brief tendered. [0-0] [05-3588] (hard) [05-3588]

12/13/05

Disclosure Statement filed by attorney Douglas R. Sprong for appellees. [05-3588] [1908653-1] (kell) [05-3588]

12/13/05

Disclosure Statement filed by attorney Robert F. Hill for appellees. [05-3588] [1908653-1] (kell) [05-3588]

12/13/05

Disclosure Statement filed by attorney William K. Carr for appellees. [05-3588] [1908653-1] (kell) [05-3588]

12/14/05

ORDER issued GRANTING motion to file amicus brief. The clerk of this court is directed to file the tendered amici brief. [1931815-1] SCR [05-3588] (kell) [05-3588]

12/14/05

Filed 15c amicus brief by Amicus Curiae Phillip Engers in 05-3588, Amicus Curiae Donald Noerr in 05-3588, Amicus Curiae Warren McFall in 05-3588, Amicus Curiae Gerald Smit in 05-3588, Amicus Curiae Wayne Tomlinson in 05-3588, Amicus Curiae Gary Muckelroy in 05-3588, Amicus Curiae Alice Ballestros in 05-3588, Amicus Curiae AARP in 05-3588,
per order. Disk filed. [05-3588] [0-0] (scze)

Docket as of January 22, 2007 11:00 pm

Page 7

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[05-3588]

12/14/05

Disclosure Statement filed by Mary E. Signorille for Amicus Curiae AARP in 05-3588. [05-3588] [1908653-1] (kell)

[05-3588]

12/21/05

Filed 15c appellant's reply brief by IBM Personal Pension in 05-3588, IBM Corporation in 05-3588. Disk filed. [05-3588] [0-0] (scze) [05-3588]

1/6/06

ORDER: Argument set for Thursday, February 16, 2006 at 10:00 a.m. Each side limited to 20 minutes. [05-3588] [1940204-1] (andb) [05-3588]

1/12/06

Oral argument confirmation card filed by attorney(s) Lee A. Freeman for Appellee Kathi Cooper, Appellee Beth Harrington, Appellee Matthew Hillesheim. [05-3588] [1899439-1] (scze) [05-3588]

1/20/06

Original record on appeal filed. Contents of record: 11 vol. pleadings; 11 vol. transcripts; 11 vol. exhibits. [05-3882] [1945591-1] (cove) [05-3882]

2/8/06

Oral argument confirmation form filed by attorney(s) Jeffrey G. Huvelle in 05-3588 for Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588. [05-3588] [1946470-1] (scze) [05-3588]

2/9/06

Oral argument confirmation card filed by attorney(s) Jeffrey G. Huvelle in 05-3588 for Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588. [05-3588] [1946470-1] (scze) [05-3588]

2/16/06

Case heard and taken under advisement by panel: Circuit Judge William J. Bauer, Circuit Judge Frank H. Easterbrook, Circuit Judge Daniel A. Manion. [05-3588] [1955601-1] (scze) [05-3588]

2/16/06

Case argued by Jeffrey G. Huvelle for Appellant IBM Corporation, Appellant IBM Personal Pension in 05-3588, Lee A. Freeman for Appellee Matthew Hillesheim, Appellee Beth Harrington, Appellee Kathi Cooper in 05-3588. [05-3588] [1946470-1] (scze) [05-3588]

2/23/06

MANDATE ISSUED. Record on appeal to be retained in case no. 05-3588. [05-3882] [1946470-1] (stef) [05-3882]

2/23/06

MANDATE ISSUED. No record to be returned. [06-1260] [1908653-1] (stef)

4/6/06

Filed Appellee Kathi Cooper in 05-3588, Appellee Beth Harrington in 05-3588, Appellee Matthew Hillesheim in 05-3588 Citation of Additional Authority, per CR 28(e). Dist. [05-3588] [1972416-1] (kare) [05-3588]

Docket as of January 22, 2007 11:00 pm

Page 8

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

4/12/06

Filed Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588 response to Citation of Additional Authority, per CR 28(e), filed by appellees on 4/6/06. Dist.[05-3588] [1975165-1] (kare) [05-3588]

5/12/06

Filed Appellee Kathi Cooper in 05-3588, Appellee Beth Harrington in 05-3588, Appellee Matthew Hillesheim in 05-3588 Citation of Additional Authority, per CR 28(e). Dist. [05-3588] [1985362-1] (kare) [05-3588]

5/17/06

Filed Appellant IBM Personal Pension in 05-3588, Appellant IBM Corporation in 05-3588 Citation of Additional Authority, per CR 28(e). Dist.[05-3588] [1986964-1] (kare) [05-3588]

8/7/06

Filed opinion of the court by Judge Easterbrook. The judgment of the district court is REVERSED, and the case is REMANDED with directions to enter judgment in IBM's favor. Circuit Judge William J. Bauer, Circuit Judge Frank H. Easterbrook, Circuit Judge Daniel A. Manion. [05-3588] [1946470-1] (hard) [05-3588]

8/7/06

ORDER: Final judgment filed per opinion. With costs: y. [05-3588] [2012771-1] (hard) [05-3588]

8/21/06

Disclosure Statements filed by Steven A. Katz, James T. Malysiak and John H. Evans for Appellee Matthew Hillesheim, Appellee Beth Harrington, Appellee Kathi Cooper. [05-3588] [1899439-1] (amyd) [05-3588]

8/21/06

Filed 30c Petition for Rehearing and Petition for Rehearing Enbanc by Appellee Kathi Cooper, Appellee Beth Harrington, Appellee Matthew Hillesheim. Dist. [05-3588] [2017707-1] (amyd) [05-3588]

9/1/06

ORDER: Appellee Kathi Cooper, Appellee Beth Harrington, Appellee Matthew Hillesheim Petition for Rehearing and Petition for Rehearing Enbanc is DENIED. [05-3588] [2017707-1] (amyd) [05-3588]

9/11/06

MANDATE ISSUED AND ENTIRE RECORD RETURNED. (Contents returned: 11 vol. pleadings; 11 vol. transcripts; 11 vol. exhibits.) [05-3588] [1899439-1] (cove) [05-3588]

10/10/06

Filed mandate receipt. [05-3588] [2033266-1] (scze) [05-3588]

12/15/06

Filed notice from the Supreme Court of the filing of a Petition for Writ of Certiorari. Supreme Court Case No.: 06-760. [05-3588] [2055729-1] (amyd) [05-3588]

Docket as of January 22, 2007 11:00 pm

Page 9

05-3588 Cooper, Kathi, et al v. IBM Personal Pension, et al

1/22/07

Filed order from the Supreme Court DENYING the Petition for Writ of Certiorari. Supreme Court Case No.: 06-760. Justice Breyer took no part in the consideration or decision of this petition. [05-3588] [2067147-1] (mank) [05-3588]

Docket as of January 22, 2007 11:00 pm

Page 10