Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 1 of 24

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

FRED DONALDSON, ALBERT WALTER III, )

MARY CLAWSON, SANDRA BELLON,

)

AUDREY SOKOLOSKI and CAROL THOMAS, )

individually and on behalf of all those )

similarly situated,

)

Plaintiffs,

go

Case No. 06-03-GPM

PHARMACIA CASH BALANCE PENSION PLAN, PHARMACIA CORPORATION,
PHARMACIA ~ UP JOHN COMPANY and
PFIZER INC.,

and

MONSANTO COMPANY PENSION PLAN and
MONSANTO COMPANY,

Defendants.

FIRST AMENDED COMPLAINT

The Parties

1. Plaintiff Fred Donaldson is a citizen of the United States who resides in this

District in Collinsville in Madison County, Illinois, in this District.

2. Plaintiff Albert Walter III is a citizen of the United States who resides in St.

Ann in St. Louis County, Missouri.

3. Plaintiff Mary Clawson is a citizen of the United States who resides in

Ballwin in St. Louis County, Missouri.

4. Plaintiff Sandra Bellon is a citizen of the United States who resides in

Ballwin in St. Louis County, Missouri.

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 2 of 24
5. Plaintiff Audrey Sokoloski is a citizen of the United States who resides in Kirkwood in St. Louis County, Missouri.
6. Plaintiff Carol Thomas is a citizen of the United States who resides in the City of St. Louis, Missouri.
7. Defendant Pharmacia Cash Balance Pension Plan (the "Pharmacia Plan") is a "defined benefit plan" within the meaning of the Employment Retirement Income Security Act, ("ERISA") § 3(35), 29 U.S.C. § 1002(35). The Pharmacia Plan, in effect from January 1, 2002, through June 30, 2002, is a partial successor to the Monsanto Company Pension Plan.
8. Defendant Pharmacia Corporation ("Pharmacia") is a Delaware corporation with its headquarters in Peapack, New Jersey, registered and doing business in Illinois, and is "administrator" and "plan sponsor" of the Pharmacia Cash Balance Pension Plan within the meaning of ERISA §§ 3(16) and 17, 29 U.S.C. §§ 1002(16) and (17). Pharmacia is a wholly owned subsidiary of Pfizer, Inc.
9. Defendant Pharmacia & Upjohn Company ("P & U Company") is a Delaware corporation with its headquarters in Peapack, New Jersey, registered and doing business in Illinois, and is "administrator" and "plan sponsor" of the Pharmacia Cash Balance Pension Plan within the meaning of ERISA §§ 3(16) and 17, 29 U.S.C. §§ 1002(16) and (17). P & U Company is a wholly owned subsidiary of Pharmacia.
10. Defendant Pfizer, Inc. ("Pfizer") is a Delaware corporation with its headquarters in New York, New York, registered and doing business in Illinois, and is "administrator" and "plan sponsor" of the Pharmacia Cash Balance Pension Plan within
2

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 3 of 24
the meaning of ERISA 88 3(16) and 17, 29 U.S.C. 88 1002(16) and (17). Pfizer is the parent corporation of both Pharmacia and its wholly owned subsidiary P & U Company.
11. Defendant Monsanto Company Pension Plan (the "Monsanto Plan") is a "defined benefit plan" within the meaning of the Employment Retirement Income Security Act, ("ERISA") 8 3(35), 29 U.S.C. 8 1002(35). The Monsanto Plan is the predecessor plan to the Pharmacia Cash Balance Plan.
12. Defendant Monsanto Company ("Monsanto") is a Delaware corporation with its headquarters in Creve Coeur, Missouri, registered and doing business in Illinois, and is "administrator" and "plan sponsor" of the Monsanto Company Pension Plan within the meaning of ERISA 88 3(16) and 17, 29 U.S.C. 88 1002(16) and (17).
Jurisdiction and Venue 13. This is a civil enforcement action brought pursuant to ERISA 8 502(a), 29 U.S.C. 8 1132(a). This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1). 14. Venue is proper in this District pursuant to ERISA 8 502(e)(2), 29 U.S.C. § 1132(e)(2), in that the breach upon which the suit is premised occurred in this judicial district, damages occurred directly to Plaintiffs in this District and/or because the Plan may be found in this judicial district.
Nature of this Action 15. Plaintiffs seek injunctive relief pursuant to ERISA § 502(a)(3), 29 U.S.C. 81132(a)(3), in the form of a declaration that Defendants’ method of computing their pension benefits and the pension benefits of all similarly situated participants was unlawful.
3

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 4 of 24
16. Plaintiffs seek injunctive relief pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), in the form of a court order requiring Defendants to recalculate their pension benefits and the pension benefits of all similarly situated participants in accordance with the requirements of ERISA.
17. Incidental to the injunctive relief sought pursuant to ERISA § 502(a)(3), 29 U.S.C. 81132(a)(3), and mechanically flowing from that injunctive relief, Plaintiffs also seek a court order requiring Defendants to create a common fund from which Defendants are ordered to make a retroactive payment of pension benefits to Plaintiffs and all other similarly situated participants in an amount equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid.
18. Alternatively, Plaintiffs seek a judgment pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. §l132(a)(1)(B), against Defendants for the unlawful computation of their pension benefits in violation of ERISA as set out in Counts I-IV below and seek damages in the form of a common fund to recover pension benefits due them based upon a lawful computation of their pension benefits.
General Allegations of Fact 19. Prior to January 1, 1997, Plaintiffs, along with numerous other participants in this District, were employed by Monsanto Company, headquartered in St. Louis, Missouri.

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 5 of 24
20. Prior to January 1, 1997, Monsanto Company had a "defined benefit plan" within the meaning of ERISA known as the Monsanto Company Pension Plan. ERISA § 3(35), 29 U.S.C. § 1002(35).
21. Prior to January 1, 1997, Plaintiffs were "participants" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s plan.
22. Effective January 1, 1997, Monsanto converted its employees’ pension plan from a conventional defined benefit plan in which the retirement benefit equals a specified percentage of a participant’s salary in the final years of employment to a cash balance plan in which the normal retirement benefit is based upon a hypothetical account balance.
23. From January 1, 1997, through December 31, 2001, Plaintiffs were participants in and accrued benefits under the terms of the Monsanto Plan.
24. In the spring of 2000, the Monsanto Company split into two companies: Pharmacia (Old Monsanto) and Monsanto Ag which later became Monsanto Company (New Monsanto). The Pharmacia employees continued to be participants in and accrue benefits under the terms of the Monsanto Plan.
25. On September 1, 2000, Pharmacia and Monsanto entered into an agreement known as the "Separation Agreement By and Between Pharmacia Corporation and Monsanto Company Dates as of September 1, 2000" (the "Separation Agreement"). The Separation Agreement set forth the terms and conditions under which Monsanto (New Monsanto) would formally separate as an independent company from Pharmacia (Old Monsanto).

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 6 of 24
26. On September 1, 2000, Pharmacia and Monsanto also entered into an agreement known as the "Employee Benefits and Compensation Allocation Agreement between Pharmacia Corporation and Monsanto Company dated as of September 1, 2000" (the "Allocation Agreement").
27. The Allocation Agreement provided that Pharmacia would establish a cash balance pension plan identical to the Monsanto Plan effective as of January 1, 2002, and accept from the Monsanto Plan the transfer of all the assets and the assumption of all the liabilities for current and former participants in the Monsanto Plan from some point in time prior to January 1, 1997, until September 1, 2000, as well as the assets and liabilities for all current participants employed by Pharmacia as of September 1, 2000, going forward.
28. As of January 1, 2002, the Monsanto Pension Plan split into two plans: the Monsanto Plan and the Pharmacia Plan.
29. In spite of the terms and conditions of the Allocation Agreement, the Pharmacia Plan defines a participant in such a manner as to not include former participants in the Monsanto Plan who separated from Monsanto prior to September 1, 2000, and opted to take their accrued benefit in the form of a lump sum, or were not otherwise "active" participants.
30. On or about June 30, 2002, the Pharmacia Plan (the cash balance plan) was frozen and merged into a new plan known as the Pharmacia Pension Plan.
31. On or about April 16, 2003, Pfizer acquired Pharmacia and its wholly owned subsidiary, P & U Company.
6

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 7 of 24
32. At all relevant times Pharmacia and its successor companies had a "defined benefit plan" within the meaning of ERISA known as the "Pharmacia Cash Balance Pension Plan." ERISA 5 3(35), 29 U.S.C. 5 1002(35).
33. At all relevant times, Plaintiffs were "participants" in Pharmacia’s defined benefit pension plan within the meaning of ERISA 53(7), 29 U.S.C. 5 1002(7), and accrued benefits under the terms of Pharmacia’s plan, either by being employed by Pharmacia or by virtue of the terms and conditions of the Separation Agreement and Allocation Agreement between Pharmacia Corporation and Monsanto Company.
General Allegations of Fact Regarding the Plan 34. Defined benefit plans are required to offer vested participants a "normal retirement benefit" in the form of an annual lifetime pension starting at "normal retirement age." ERISA 55 3(22) and (23)(A), 29. U.S.C. 55 1002(22) and (23)(A); ERISA 5 203(a), 29 U.S.C. 5 1053(a). 35. The Pharmacia Plan and the Monsanto Plan (hereafter the "Defendant Plans") define "normal retirement age" as the date on which the participant attains age 65. 36. The Defendant Plans established for each participant including Plaintiffs a Cash Balance Account ("CBA"). 37. Each participant’s CBA is credited with (a) an annual "contribution credit" equal to a specified percentage of that participant’s eligible pay for each year of employment ranging from 3% to 7% depending on the participant’s age; (b) a monthly "interest credit" based on the average interest rate on the 30-year Treasury Bonds for October of the prior calendar year with a minimum rate of interest credit of 5% and a

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 8 of 24
maximum rate of interest credit of 10%; and (c) an annual "transition credit" equal to a specified percentage of that participant’s eligible pay ranging from 2% to 6% depending on that participant’s age and limited to the 10 years from January 1, 1997, through December 3 l, 2006.
38. For participants who had been enrolled in the Monsanto Plan prior to January 1, 1997, before its conversion to a cash balance pension plan, including Plaintiffs, the Defendant Plans also established a Prior Plan Account ("PPA").
39. Each participant’s PPA began with a balance that represented the lump sum value of the accrued benefit earned by that participant under Monsanto’s old plan as of December 31, 1996.
40. Each participant’s PPA was credited with (a) monthly "pay credits" at an annual rate of 4% while the participant maintains employment with Pharmacia; and (b) monthly "interest credits" at an annual rate of 8.5% until the participant attains the age of 55.
41. The Defendant Plans are currently adequately funded in accordance with the requirements of ERISA and the Internal Revenue Code.
Specific Allegations of Fact Regarding Plaintiffs (Fred Donaldson)
42. Plaintiff Fred Donaldson commenced full-time employment with Monsanto prior to December 31, 1996.
43. At all relevant times, Mr. Donaldson was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan.

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 9 of 24
44. Effective on or about March 31, 2000, Mr. Donaldson’s employment was transferred to Pharmacia.
45. At all relevant times, Mr. Donaldson was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan.
46. Mr. Donaldson remains employed by Pharmacia. 47. The retirement benefit accrued by Mr. Donaldson from the Plan is less than the accrued benefit to which he is legally entitled because the Plan fails to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans. 48. Mr. Donaldson has not filed a claim for benefits under the Plan’s claim procedures because he seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Mr. Donaldson has not attempted to exhaust his administrative remedies because to do so would be futile.
(Albert Walter III) 49. Plaintiff Albert Walter III commenced full-time employment with Monsanto prior to December 31, 1996. 50. At all relevant times, Mr. Walter was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan. 51. Effective on or about March 31, 2000, Mr. Walter’s employment was transferred to Pharmacia.
9

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 10 of 24
52. At all relevant times, Mr. Walter was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan.
53. Mr. Walter remains employed by Pharmacia. 54. The retirement benefit accrued by Mr. Walter from the Plan is less than the accrued benefit to which he is legally entitled because the Plan fails to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans. 55. Mr. Walter has not filed a claim for benefits under the Plan’s claim procedures because he seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Mr. Walter has not attempted to exhaust his administrative remedies because to do so would be futile.
(Mary Clawson) 56. Plaintiff Mary Clawson commenced full-time employment with Monsanto prior to December 31, 1996. 57. At all relevant times, Ms. Clawson was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan. 58. Effective on or about March 31, 2000, Ms. Clawson’s employment was transferred to Pharmacia. 59. At all relevant times, Ms. Clawson was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA 83(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan.
10

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 11 of 24
60. Ms. Clawson separated from Pharmacia in April, 2005, and opted to receive her accrued benefit immediately in the form of a lump sum payment.
61. The retirement benefit received by Ms. Clawson was less than the accrued benefit to which she was legally entitled because the Plan failed to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans.
62. Ms. Clawson has not filed a claim for benefits under the Plan’s claim procedures because she seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Ms. Clawson has not attempted to exhaust her administrative remedies because to do so would be futile.
(Sandra Bellon) 63. Plaintiff Sandra Bellon commenced full-time employment with Monsanto prior to December 31, 1996. 64. At all relevant times, Ms. Bellon was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan. 65. At all relevant times, under the terms and conditions set for the in the Separation Agreement and Allocation Agreement Ms Bellon was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan. 66. Ms. Bellon separated from (Old) Monsanto in April, 1999, and opted to receive her accrued benefit immediately in the form of a lump sum payment.
11

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 12 of 24
67. The retirement benefit received by Ms. Bellon was less than the accrued benefit to which she was legally entitled because the Plan failed to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans.
68. Ms. Bellon has not filed a claim for benefits under the Plan’s claim procedures because she seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Ms. Bellon has not attempted to exhaust her administrative remedies because to do so would be futile.
(Audrey Sokoloski) 69. Plaintiff Audrey Sololoski commenced full-time employment with Monsanto prior to December 31, 1996. 70. At all relevant times, Ms. Sokoloski was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan. 71. At all relevant times, under the terms and conditions set for the in the Separation Agreement and Allocation Agreement Ms. Sokoloski was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan. 72. Ms. Sokoloski separated from (Old) Monsanto in May, 1997, and opted to receive her accrued benefit in the form of monthly annuity payments. 73. The retirement benefit received by Ms. Sokoloski was less than the accrued benefit to which she was legally entitled because the Plan failed to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans.
12

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 13 of 24
Ms. Sokoloski has not filed a claim for benefits under the Plan’s claim procedures because she seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Ms. Sokolowski has not attempted to exhaust her administrative remedies because to do so would be futile.
(Carol Thomas) 74. Plaintiff Carol Thomas commenced full-time employment with Monsanto prior to December 31, 1996. 75. At all relevant times, Ms. Thomas was a "participant" in Monsanto’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Monsanto’s old plan and cash balance plan. 76. At all relevant times, under the terms and conditions set for the in the Separation Agreement and Allocation Agreement Ms. Thomas was and is a "participant" in Pharmacia’s defined benefit pension plan within the meaning of ERISA §3(7), 29 U.S.C. § 1002(7), and accrued benefits under the terms of Pharmacia’s plan. 77. Ms. Thomas separated from (Old) Monsanto in January, 2000, and opted to receive her accrued benefit immediately in the form of a lump sum payment. 78. The retirement benefit received by Ms. Thomas was less than the accrued benefit to which she was legally entitled because the Plan failed to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans. 79. Ms. Thomas has not filed a claim for benefits under the Plan’s claim procedures because she seeks relief from violations of ERISA statutory provisions which do not require the exercise of discretion by a claims fiduciary, and, in addition, Ms.
13

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 14 of 24
Thomas has not attempted to exhaust her administrative remedies because to do so would be futile.
Class Action Allegations 80. Plaintiffs request that this Court certify the following class:
"All individuals who participated in the Monsanto Company Pension Plan and who currently participate in or who formerly participated in the Pharmacia Cash Balance Pension Plan or its predecessor plans at any time after December 31, 1996, and their beneficiaries." 81. Certification of this class is appropriate pursuant to Rule 23(b)(1), Fed. R. Civ. P. 23(b)(1), because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Plan regarding the proper method for computing the pension benefits of all similarly situated participants. 82. Certification of this class is also appropriate pursuant to Rule 23(b)(2), Fed. R. Civ. P. 23(b)(2), because the Defendant Plans have miscalculated and continue to miscalculate the pension benefits of all similarly situated participants using the same methodology contested here; and therefore the Defendant Plans have acted or refused to act on grounds generally applicable to the class making appropriate final injunctive relief or declaratory relief with respect to the class as a whole. 83. The conduct complained of is widespread, affecting hundreds of active participants in the Defendant Plans, making joinder of all claims impracticable.
14

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 15 of 24
84. Plaintiffs’ claims are typical of those of the class in that the conduct complained of is the Defendant Plans’ failure to properly apply the accrual and vesting rules imposed by ERISA on all defined benefit plans to all of the Plans’ participants.
85. There are common questions of law and fact which predominate. The common questions of law and fact include, among others:
i. Whether the benefits provided under the terms of the Defendant Plans are reduced as a result of attaining a certain age;
ii. Whether the method of computing pension benefits earned by the Defendant Plans’ participants is unlawful under ERISA; and
iii. Whether the benefits provided under the terms of the Defendant Plans accrue at a rate which is reduced because of age.
86. 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 and competent to handle class actions and complex litigation of this type.
COUNTI (The Defendant Plans, Jointly and Severally, Violate ERISA by Reducing to Zero the Interest Credits Applicable to the Prior Plan Account upon a Participant’s Attaining Age 55.) 87. Plaintiffs incorporate by reference the allegations of paragraphs 1-86 above in this Count. 88. ERISA prohibits the actuarial value of any defined benefit plan participant’s rate of benefit accrual from being reduced because of the attainment of any age. ERISA § 204(b)(1)(H), 29 U.S.C. § 1054(b)(1)(H).
15

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 16 of 24
89. Under the terms of the Defendant Plans, any Plan participant age 55 or older no longer receives the monthly interest credit at an annual rate of 8.5% on his or her Prior Plan Account.
90. The Defendant Plans reduce to zero the rate of benefit accrual on any Plan participant’s PPA when the participant attains the age of 55.
91. The Defendant Plans’ benefit formula used to compute Plaintiffs’ accrued benefit violates the accrual rules contained in ERISA § 204(b), 29 U.S.C. § 1054(b), and Internal Revenue Code Notice 96-8, IRC Notice 96-8 § III.A., in that effective as of January 1, 1997, and at all times thereafter, benefits provided under the terms of the Defendant Plans accrue at a rate which is reduced or forfeited because of age or the attainment of any age, and therefore, the Defendant Plans do not comply with the accrual rules set forth in ERISA § 204(b)(1)(H), 29 U.S.C. §1054(b)(1)(H), and in Internal Revenue Code Notice 96-8, IRC Notice 96-8 § III.A.
92. Pursuant to ERISA § 502(a)(3), 29 U.S.C. §1132(a)(3), Plaintiffs and the class are entitled to appropriate equitable relief from the Defendants, jointly and severally, to redress the Defendant Plans’ violations of the foregoing provisions of ERISA and to enforce such provisions, and incidental monetary relief mechanically flowing from that injunctive relief in the form of a common fund equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid.
16

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 17 of 24
COUNT II (The Defendant Plans, Jointly and Severally, Violate ERISA by Failing to Provide the Actuarial Equivalent of a Participant’s
Accrued Benefit When Providing a Lump Sum Benefit.) 93. Plaintiffs incorporate by reference the allegations of paragraphs 1-86 above in this Count. 94. ERISA requires that any lump sum distribution of a defined benefit plan participant’s accrued pension benefits must be the actuarial equivalent of the defined benefit plan participant’s normal retirement benefit. ERISA § 204(c)(3), 29 U.S.C. § 1054(c)(3); 26 U.S.C. § 411(c)(3); 26 C.F.R. § 1.41 l(c)-l(e); IRC Notice 96-8. 95. Under the terms of the Defendant Plans, any lump sum distribution of a Plan participant’s accrued pension benefit must at least equal the lump sum actuarial equivalent of a participant’s accrued benefit. 96. To determine the lump sum actuarial equivalent of a Defendant Plan participant’s accrued benefit, the Defendant Plans must project the accrued benefit out to normal retirement age and then reduce that benefit to present cash value--a process known as a whipsaw calculation. 97. Rather than performing the whipsaw calculation the Defendant Plans simply pays the Defendant Plan participant a lump sum equal to the sum of the balances in the Prior Plan Account and the Cash Balance Account. 98. Simply paying a Defendant Plan participant a lump sum equal to the sum of the balances in the Prior Plan Account and the Cash Balance Account does not take into account periods of time where the interest rate to project out the accrued benefit to
17

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 18 of 24
normal retirement age has exceeded the discount rate used to reduce the benefit to present cash value.
99. Simply paying a Defendant Plan participant a lump sum equal to the sum of the balances in the Prior Plan Account and the Cash Balance Account does not take into account periods of time where the "annuity conversion factor" employed by the Defendant Plan to determine the accrued benefit at normal retirement age has exceeded the discount rate used to reduce the benefit to present cash value.
100. The Defendant Plans’ benefit formula used to compute Plaintiffs’ accrued benefit commencing at normal retirement age and to convert it into a present value lump sum violates the present value calculation rules set forth in ERISA § 203(e)(2), 29 U.S.C. § 1053(e)(2), in Internal Revenue Code § 417(e)(3), and in Treasury Regulation 1.417(e)l(d).
101. Pursuant to ERISA § 502(a)(3), 29 U.S.C. §1132(a)(3), Plaintiffs and the class are entitled to appropriate equitable relief from the Defendants, jointly and severally, to redress the Defendant Plans’ violations of the foregoing provisions of ERISA and to enforce such provisions, and incidental monetary relief mechanically flowing from that injunctive relief in the form of a common fund equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid.
18

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 19 of 24
COUNT III (The Defendant Plans, Jointly and Severally, Violate the Anti-Backloading Provisions of ERISA.) 102. Plaintiffs incorporate by reference the allegations of paragraphs 1-86 above in this Count. 103. ERISA § 204(b)(1)(A)-(C), 29 U.S.C. § 1054(b)(1)(A)-(C), prohibits a defined benefit plan from "backloading" a participant’s pension benefit by making benefits accrue very slowly over time until the participant nears normal retirement age so that a participant’s vested pension rights have very little value until the participant has completed a very long period of service. 104. ERISA requires that a defined benefit plan must allow a participant to accrue, i.e. earn, benefits no less than ratably over a working career so as to prevent employers from using creative plan designs to avoid the protection afforded by ERISA’s vesting rules. 105. To comply with the anti-backloading provisions, ERISA requires that a plan must satisfy one of three objective tests generally referred to as the "3 percent rule," the "133% pereent rule," and the "fractional rule," set forth in subparagraphs (A), (B) or (C) ofERISA § 204(b)(1), 29 U.S.C. § 1054(b)(1)(A)-(C). 106. The Defendant Plans’ benefit formula used to compute Plaintiffs’ accrued benefit violates the accrual rules contained in ERISA § 204(b), 29 U.S.C. § 1054(b), in that effective as of January 1, 1997, and at all times thereafter, benefits accruing under the terms of the Defendant Plans do not satisfy any of the three rules set forth in subparagraphs (A), (B) or (C) ofERISA § 204(b)(1), 29 U.S.C. § 1054(b)(1)(A)-(C).
19

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 20 of 24
107. Pursuant to ERISA 5 502(a)(3), 29 U.S.C. 51132(a)(3), Plaintiffs and the class are entitled to appropriate equitable relief from the Defendants, jointly and severally, to redress the Defendant Plans’ violations of the foregoing provisions of ERISA and to enforce such provisions, and incidental monetary relief mechanically flowing from that injunctive relief in the form of a common fund equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid.
COUNT IV (The Defendant Plans, Jointly and Severally, Violate ERISA by Reducing Over Time the Actuarial Value of the Annual Credits to the Cash Balance Account.) 108. Plaintiffs incorporate by reference the allegations of paragraphs 1-86 above in this Count. 109. ERISA prohibits the actuarial value of any defined benefit plan participants’ accrued benefit from being reduced by the attainment of any age. ERISA 55 204(b)(1)(G) and 204(b)(1)(H), 29 U.S.C. 5§ 1054(b)(1)(G) and 1054(b)(1)(H). 110. ERISA defines the term "accrued benefit" to mean any defined benefit plan participant’s accrued benefit determined under the plan and expressed in the form of an annual benefit commencing at normal retirement age. ERISA 5 3(23)(A), 29 U.S.C. 51002(23)(A). 111. Normal retirement age is 65. ERISA 5 3(24), 29 U.S.C. 51002(24). 112. Any defined benefit plan participant’s "rate of benefit accrual" must be measured by reference to an annuity that commences at age 65.
20

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 21 of 24
113. Any defined benefit plan participant’s accrued benefit must be measured by reference to the amount of that participant’s annual benefit at age 65.
114. Under the terms of the Defendant Plans, a Defendant Plan participant will experience a decrease in the actuarial value of the annual credits to his or her Cash Balance Account, measured in terms of the present cash value of an annuity commencing at age 65, as the participant ages from year to year.
115. The Defendant Plans’ benefit formula used to compute Plaintiffs’ accrued benefit violates the accrual rules contained in ERISA § 204(b), 29 U.S.C. § 1054(b), in that effective as of January 1, 1997, and at all times thereafter, benefits provided under the terms of the Defendant Plans are reduced by the attainment of any age, and therefore the Defendant Plans do not comply with the accrual rule set forth in ERISA § 204(b)(1)(a), 29 U.S.C. § 1054(b)(1)(6), and in ERISA § 204(b)(1)(H), 29 U.S.C. § 1054(b)(1)(H), and in Internal Revenue Code Notice 96-8, IRC Notice 96-8 § III.A.
116. Pursuant to ERISA § 502(a)(3), 29 U.S.C. §1132(a)(3), Plaintiffs and the class are entitled to appropriate equitable relief from the Defendants, jointly and severally, to redress the Defendant Plans’ violations of the foregoing provisions of ERISA and to enforce such provisions, and incidental monetary relief mechanically flowing from that injunctive relief in the form of a common fund equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid.
21

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 22 of 24
COUNT V (The Defendant Plans, Jointly and Severally, Violate Should Make Retroactive Payment of Pension Benefits to Plaintiffs.) 117. Plaintiffs incorporate by reference the allegations of paragraphs 1-86 above in this Count. 118. Pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. §1132(a)(1)(B), Plaintiffs and the class are entitled to a judgment from the Defendants, jointly and severally, clarifying their right to receive future benefits from the Defendant Plans, calculated under the terms of the Defendant Plans, to the extent those terms are not inconsistent with the applicable provisions of ERISA, and damages paid in the form of a common fund from which retroactive payments of pension benefits may be made to Plaintiffs and members of the class. WHEREFORE, Plaintiffs and the class pray for the following relief: 1. Certification of this action as a class action with the class defined as set
out above; A declaration that the Defendant Plans’ method of computing their pension benefitsand the pension benefits of all similarly situated participants was and is unlawful; Judgment for Plaintiffs and the class against Defendants, jointly and severally, on all claims asserted herein; A permanent injunction preventing the Defendant Plans from calculating pension benefits in violation of ERISA and ordering a recalculation of the pension benefits in accordance with ERISA;
22

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 23 of 24

Creation of a common fund equal to the amount of pension benefits due

Plaintiffs and the class in accordance with ERISA; Pre- and post-judgment interest; Attomeys’ fee and costs pursuant to the common fund/benefit doctrine or any other applicable law; and

Any other and further relief as the Court deems appropriate under the

circumstances. Dated: July 7, 2006

Respectfully submitted,

Schlichter, Bogard & Denton
s/Matthew H. Armstrong Jerome J. Schlichter Matthew H. Armstrong 2661 North Illinois, Suite 187 Swansea IL 62226 Tel: 314-621-6115 Fax: 314-621-7151 marmstrong@uselaws.com

23

Case 3:06-cv-00003-GPM-DGW Document 47 Filed 07/07/2006 Page 24 of 24

CERTIFICATE OF SERVICE

I hereby certify that on July 7, 2006, I served this First Amended Complaint with

the Clerk of the Court using the CM/ECF system which will send notification of such

filing(s) to the following:

Dawn A. Sallerson dsallerson@hinshawlaw.com

Priscilla E. Ryan pryan@sidley.com

Mark. B. Blocker mblocker@sidley.com

Anne E. Rea area@sidlev.com

William F. Conlon wconlon@sidley.com

Neil H. Wyland nwvland@sidley.com

Ryan M. Sandrock rsandrock@sidle¥.com

Erin E. Kelly ekellv@sidle¥.com

Chris K. Meyer cmeyer@sidley.com

SCHLICHTER, BOGARD & DENTON
s/Matthew H. Armstrong Matthew H. Armstrong

24

 
 435 F.Supp.2d 853 (2006)
Fred DONALDSON, Albert Walter, III, and Mary Clawson, Individually and on behalf of all those similarly situated, Plaintiffs, v.
PHARMACIA PENSION PLAN, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, And Pfizer, Inc., Defendants.
Civil No. 06-003-GPM.
United States District Court, S.D. Illinois.
June 14, 2006.
85456 *854 *855 *856 Jerome J. Schlichter, Schlichter, Bogard, Swansea, IL, Matthew H. Armstrong, Schlichter, Bogard et al., St. Louis, MO, for Plaintiffs.
MEMORANDUM AND ORDER
MURPHY, Chief Judge.
This action is before the Court on the Motion to Dismiss Plaintiffs' Complaint brought by Defendants Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc. (Doc. 25). [1] For the following reasons, Defendants' motion to dismiss is DENIED.
INTRODUCTION
Plaintiffs Fred Donaldson, Albert Walter, III, and Mary Clawson bring this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 ("ERISA") on behalf of themselves and a proposed class of participants in the Pharmacia Cash Balance Pension Plan ("the Plan"), Defendant herein. Defendants Pharmacia Corporation ("Pharmacia"), Pharmacia & Upjohn Company, and Pfizer, Inc., are the administrators and sponsors of the Plan.
To set out Plaintiffs' claims properly, some discussion of the substantive law of ERISA is necessary. A "defined benefit plan" under ERISA is a pension plan other than an individual account plan. See 29 U.S.C. § 1002(35). In a typical defined benefit plan, benefits are furnished based on a formula established by a plan document, independent of the level of funding. See In re Defoe Shipbuilding Co., 639 F.2d 311, 313 (6th Cir.1981). "A defined benefit plan . . . consists of a general pool of assets rather than individual dedicated accounts. Such a plan, `as its name implies, is one where the employee, upon retirement, is entitled to a fixed periodic payment.'" Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 439, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (quoting Commissioner v. Keystone Consol. Indus., Inc., 508 U.S. 152, 154, 113 S.Ct. 2006, 124 L.Ed.2d 71 (1993)). This is in contrast, of course, to a "defined contribution plan," in which an employer allocates an amount to an account created for an employee, so that the employee's pension entitlement is the value of his or her account, consisting of the employer's annual contributions and any earnings derived from the employee's investment of those 857 deposits. See 29 *857 U.S.C. § 1002(34); Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 758 (7th Cir.2003).
In a defined benefit plan, an employer provide's employees with a guaranteed benefit at "normal retirement age," which the plan selects but which cannot be later than age 65. See 29 U.S.C. § 1002(24); Berger, 338 F.3d at 758. This benefit is typically calculated as a percentage of an employee's compensation multiplied by his or her years of service. See Berger, 338 F.3d at 757-58. The pension entitlement provided by the plan is an employee's "accrued benefit" at normal retirement age. ERISA explains, "The term `accrued benefit' means . . . in the case of a defined benefit plan, 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). See also Berger, 338 F.3d at 759. The statute requires that the accrued benefit be provided in the form of an annuity at normal retirement age. See 29 U.S.C. § 1054(c)(3). A plan may offer optional benefit forms, such as a lump sum, but they cannot be less than the actuarial equivalent of the annuity at normal retirement age. See Berger, 338 F.3d at 759; Esden v. Bank of Boston, 229 F.3d 154, 162-64 (2d Cir.2000).
A typical cash balance pension plan purports to compute an employee's accrued benefit as a hypothetical account balance, to which putative "pay credits" and "interest credits" are added each year. In truth, "the employee has no actual account, the employer makes no contributions to an employee account, and so there is no account balance to which interest might be added." Berger, 338 F.3d at 758. Instead, the employee's pension entitlement under such a plan remains the accrued benefit earned each year, which equals the amount of both that year's pay credit and the value of the future "interest credits" on that amount through the date of the employee's normal retirement age, divided by an annuity factor specified in the plan. See id. at 758-59; Esden, 229 F.3d at 158-59. Importantly, although a cash balance plan has superficial similarities to an individual account plan or defined contribution plan, legally it is a defined benefit plan for ERISA purposes. See Berger, 338 F.3d at 757-58; Esden, 229 F.3d at 158; Lyons v. Georgia-Pacific Corp., 221 F.3d 1235, 1237-38 (11th Cir. 2000).
Plaintiffs allege that, under the terms of the Plan, a Cash Balance Account ("CBA") is established on behalf of each Plan participant. See Complaint ¶ 30. Each participant's CBA is credited with an annual "contribution credit" equal to a specified percentage of that participant's eligible pay for each year of employment ranging from 3% to 7% depending upon the participant's age. See id. ¶ 31. Also, each participant's CBA is credited with a monthly "interest credit" based on the average interest rate on thirty-year Treasury bonds for October of the prior calendar year, with a minimum rate of interest credit of 5% and a maximum rate of interest credit of 10%. See id. Finally, each participant's CBA is credited with an annual "transition credit" equal to a specified percentage of the participant's eligible pay ranging from 2% to 6% depending upon the participant's age and limited to the ten years between January 1, 1997, and December 31, 2006. See id. Additionally, the Plan establishes on behalf of participants in predecessor plans a Prior Plan Account ("PPA"), which begins with a balance representing the lump-sum value of the participant's accrued benefit under predecessor plans as of December 31, 1996. See id. ¶¶ 32-33. Such a PPA is credited with monthly "pay credits" at an annual rate of 4% while the participant 858 maintains employment with Pharmacia, *858 and with monthly "interest credits" at an annual rate of 8.5% until the participant attains age 55. See id. ¶ 34.
Plaintiffs' complaint asserts five counts. Count I alleges that, because under the Plan any participant who reaches the age of 55 no longer receives monthly interest credits at a rate of 8.5% on his or her PPA and instead the rate of benefit accrual on the PPA is reduced to zero, the Plan violates ERISA age-discrimination rules applicable to defined benefit plans prohibiting any cessation or reduction in the rate at which an employee accrues benefits on account of age. See 29 U.S.C. § 1054(b)(1)(H)(i); Wells v. Gannett Ret. Plan, 385 F.Supp.2d 1101, 1102 (D.Colo. 2005); Cooper v. IBM Personal Pension Plan, 274 F.Supp.2d 1010, 1015-17 (S.D.Ill. 2003). Count II alleges that the Plan violates ERISA by failing to pay lump sum benefits that are the actuarial equivalent of a participant's accrued benefit projected to normal retirement age, then reduced to present value. See Berger, 338 F.3d at 759; Esden, 229 F.3d at 162-64; West v. AK Steel Corp. Ret. Accumulation Pension Plan, 318 F.Supp.2d 579, 583 (S.D.Ohio 2004); I.R.S. Notice 96-8, 1996-1 C.B. 359. Count III alleges that the Plan violates ERISA's antibackloading provisions, which prohibit defined benefit plans from establishing minimum accrual rates that cause a participant's benefits to accrue very slowly until the participant is near retirement age. See 26 U.S.C. § 411(a), (b)(1); 29 U.S.C. § 1054(b)(1)(B); 26 C.F.R. § 1.411(b)-1(b); Jones v. UOP, 16 F.3d 141, 143 (7th Cir.1994). Count IV alleges that, because under the Plan participants experience a reduction in the actuarial value of annual credits to their CBAs based upon their age, the Plan violates ERISA age-discrimination rules applicable to defined benefit plans. Finally, Count V asserts a demand to recover benefits due Plan participants under the terms of the Plan, to enforce their rights under the terms of the Plan, and to clarify their rights to future benefits under the terms of the Plan. Count I through Count IV of Plaintiffs' complaint are brought pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3); Count V of the complaint is brought pursuant to ERISA § 502(a)(1) (B), 29 U.S.C. § 1132(a)(1)(B).
Defendants have moved to dismiss Plaintiffs' claims on two grounds. First, Defendants assert that Plaintiffs have failed to exhaust their administrative remedies. Second, Defendants argue that Count I through Count IV of

Plaintiffs' complaint assert claims for legal relief, not equitable relief, and therefore cannot be brought pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). Having reviewed carefully the parties' submissions regarding these issues, together with all exhibits thereto, and having conducted a hearing on Defendants' motion to dismiss, the Court now addresses Defendants' arguments in support of dismissal.
DISCUSSION
A. Legal Standard
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the legal sufficiency of a plaintiff's complaint to state a claim upon which relief may be granted. See FED. R. CIV. P. 12(b)(6); Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). "The essence of a defendant's Rule 12(b)(6) motion is not that the plaintiff has pleaded insufficient facts, it is that even assuming all of his facts are accurate, he has no legal claim." Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999) (citing Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1059 (7th Cir.1999)). In evaluating a Rule 12(b)(6) motion, a court must take a plaintiff's factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See 859 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 *859 S.Ct. 992, 152 L.Ed.2d 1 (2002); Strasburger v. Board of Educ., Hardin County Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 359 (7th Cir.1998). A complaint should be dismissed for failure to state a claim for relief only if "no relief could be granted `under any set of facts that could be proved consistent with the allegations.'" Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir.1998) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). See also Scott a. City of Chicago, 195 F.3d 950, 951 (7th Cir.1999).
B. Defendants' Motion to Dismiss
1. Exhaustion of Administrative Remedies
"The text of 29 U.S.C. § 1132, providing for civil actions to redress violations of ERISA, does not address whether a claimant must exhaust her administrative remedies before Ming suit in federal court." Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803, 807 (7th Cir.2000). However, in light of ERISA § 503, 29 U.S.C. § 1133, directing employee benefit plans to provide adequate written notice of the reasons for denials of claims by plan participants and to create procedures for the review of such denials of claims, this Circuit interprets ERISA as requiring exhaustion of administrative remedies as a prerequisite to bringing suit under the statute. See Powell v. A.T. & T. Communications, Inc., 938 F.2d 823, 826 (7th Cir. 1991). Importantly, although some circuits hold that exhaustion of administrative remedies is not a requirement in suits alleging violations of ERISA, as opposed to violations of the terms of an ERISA plan, see, e.g., Zipf v. American Tel. & Tel. Co., 799 F.2d 889, 891-92 (3d Cir.1986), this Circuit holds that the exhaustion doctrine is applicable in cases alleging statutory violations of ERISA. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996) (holding that an ERISA action alleging wrongful discharge by an employer to avoid paying plan benefits was subject to dismissal for failure to exhaust administrative remedies); Kross v. Western Elec. Co., 701 F.2d 1238, 1243-45 (7th Cir.1983) (same).
"[T]he decision to require exhaustion as a prerequisite to bringing suit is a matter within the discretion of the trial court. . . . [T]his determination will only be disturbed on appeal if the lower court has clearly abused its discretion 0907 in other words, if the lower court's decision `is obviously in error.'" Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 138 (7th Cir.1997) (quoting Lindemann, 79 F.3d at 650). See also Zhou v. Guardian Life Ins. Co. of Am., 295 F.3d 677, 679 (7th Cir.2002) ("[W]e review a district court's decision to dismiss a complaint on exhaustion grounds for an abuse of discretion."). An ERISA plaintiff's failure to exhaust administrative remedies may be excused where there is a lack of meaningful access to review procedures, or where pursuing internal plan remedies would be futile. See Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th Cir.1997) ; Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 402 (7th Cir.1996).
In exercising its discretion regarding dismissal of this action for failure to exhaust administrative remedies, the Court considers the policies underlying the exhaustion requirement. First, exhaustion of administrative remedies encourages informal, non-judicial resolution of disputes about employee benefits. "[T]he institution of . . . administrative claim-resolution procedures was apparently intended by Congress to help reduce the number of

frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a 860 nonadversarial method of claims settlement; and to minimize the cost of claims settlement for all *860
concerned." Kross, 701 F.2d at 1244-45. Second, exhaustion protects the autonomy of plan administrators, by shielding the exercise of their discretion from excessive judicial interference. "Congress intended fund trustees to have primary responsibility for claim processing, as evidenced by the specific requirement in [ERISA] § 503, 29 U.S.C. § 1133, of a claim and appeal procedure for every employee benefit plan. To make every claim dispute into a federal case would undermine the claim procedure contemplated by the Act." Robyns, 130 F.3d at 1235. "[T]he trustees of covered benefit plans are granted broad fiduciary rights and responsibilities under ERISA . . . and implementation of the exhaustion requirement . . . enhance[s] their ability to expertly and efficiently manage their funds by preventing premature judicial intervention in their decision-making processes." Kross, 701 F.2d at 1245.
Third, the requirement of exhaustion of administrative remedies helps to prepare the ground for litigation in case administrative dispute resolution proves unavailing. "[A] primary reason for the exhaustion requirement . . . is that prior fully considered actions by pension plan trustees interpreting their plans and perhaps also further refining and defining the problem in given cases, may well assist the courts when they are called upon to resolve the controversies." Kross, 701 F.2d at 1245. See also Ames v. American Nat'l Can Co., 170 F.3d 751, 756 (7th Cir.1999) (noting that, through internal plan procedures, "the facts and the administrator's interpretation of the plan may be clarified for the purposes of subsequent judicial review"). Compelling parties to exhaust administrative remedies can help a court by requiring parties pre-suit "to develop a full factual record" and by enabling the court to "take advantage of agency expertise." Janowski v. International Bhd. of Teamsters Local No. 710 Pension Fund, 673 F.2d 931, 935 (7th Cir.1982), vacated on other grounds, 463 U.S. 1222, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983). See also Eaton v. Onan Corp., 117 F.Supp.2d 812, 838 (S.D.Ind.2000).
This case is a poor candidate for exhaustion of administrative remedies. Defendants concede that, under the terms of the Plan document, see Doc. 26, Ex. A, Plaintiffs and the members of the putative class have received all of the benefits to which they are entitled. See Costantino v. TRW, Inc., 773 F.Supp. 34, 44 (N.D.Ohio 1991) (in an ERISA class action challenging the legality of a plan's method of computing benefits, declining to order exhaustion where, following dismissal, the plan administrators "would simply re-calculate [the class members'] benefits as provided for in the [plan] and reach the same result").[2] Although Defendants hint that they might amend the Plan should Plaintiffs persuade them in the course of administrative procedures that various Plan provisions are illegal, on the face of the Plan document the Court fails to see what administrative remedy Plaintiffs have under the Plan's terms. This lawsuit is not frivolous, and the fact that the Plan practices at issue have been the subject of a series of high-profile ERISA class actions in recent years, see, e.g., Berger, 338 F.3d 861 at 759; Esden, 229 F.3d at 162-64; Cooper, 274 *861 F.Supp.2d at 1015-17, apparently without influencing the behavior of the Plan administrators, makes the Court skeptical that administrative procedures will yield a nonjudicial resolution of the claims of Plaintiffs and the putative class. Considerations of cost and efficiency favor resolving the claims raised in this case in this Court, rather than piecemeal through scores of separate administrative proceedings by Plaintiffs and members of the putative class, see Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 420-21 (6th Cir.1998), just as the public interest weighs in favor of judicial resolution of the questions of statutory interpretation presented by this case. See Zipf 799 F.2d at 893.
Similarly, this case is not one in which the development of an administrative record is likely to be helpful to the Court. The issues presented by this case concern matters of statutory interpretation that the Court will consider de novo, without deference to the opinions of the Plan's administrators. See Berger v. Xerox Ret. Income Guar. Plan, 21 F.Supp.2d 804, 809 (S.D.Ill.2002) ("[A] court reviews questions of law de novo, regardless of whether the plan vests the plan administrator with discretion. . . . The issues presented in this case involve questions of law and not plan interpretation. This Court's review of those issues is de novo and not under an arbitrary and capricious standard."). See also Huppeler v. Oscar Mayer Foods Corp., No. 93-C-370-S, 1993 WL 730699, at *2 (W.D.Wis. Oct. 28, 1993) (declining to order exhaustion so that an ERISA plaintiff could debate the correct interpretation of legal precedent with plan administrators).[3] For much the same reason, the Court concludes that this case does not implicate the autonomy of the Plan's administrators, given that compliance with ERISA is not a matter of a plan administrator's discretion. See Hickey v. Chicago Truck Drivers, Helpers & Warehouse Workers Union, 980 F.2d 465, 468 (7th Cir.1992) (holding that a cost-of-living adjustment ("COLA") was an

accrued benefit for ERISA purposes because "[t]he term `accrued benefit' has a statutory meaning, and the parties cannot change that meaning by simply labeling certain benefits as `accrued benefits' and others, such as the COLA, as `supplementary benefits.'").
At the hearing the Court conducted regarding Defendants' motion to dismiss, Defendants' counsel largely conceded that the question of the validity of Count I, Count III, and Count IV of Plaintiffs' complaint alleging age discrimination in violation of ERISA is controlled by this Court's decision in Cooper v. IBM Personal Pension Plan, 862 rendering exhaustion unnecessary as to those claims. See Doc. 45 at 7.[4]*862 Thus, Defendants' counsel staked his argument for exhaustion on Count II of Plaintiffs' complaint, which, as noted, alleges that the Plan violates ERISA by failing to pay lump sum benefits that are the actuarial equivalent of a participant's accrued benefit projected to normal retirement age, then reduced to present value. See id. at 7-10. The Court sees little benefit in dismissing this case so that Plaintiffs and members of the putative class can exhaust their administrative remedies (if any) solely as to Count II. Dismissal seems particularly inappropriate given that a proper calculation of lump-sum benefits for numerous class members doubtless hinges on a successful outcome to Plaintiffs' claims that the Plan's strictures on benefit accrual are age-discriminatory. Moreover, the Court's review of the Plan document shows that exhaustion as to Count II is unnecessary. The portion of the Plan document defining the "Actuarial Equivalent" of optional benefits under the Plan provides, "[U]nder . . . Option 4 under Section 7.3(d) [governing lump-sum distributions] the following . . . interest rate shall be used: . . . the applicable interest rate under [Internal Revenue] Code Section 417(e)(3) for October of the year prior to the year containing the Participant's Annuity Starting Date." Doc. 26, Ex. A at 5, 6. The use of the interest rate provided under 26 U.S.C. § 417(e)(3) rather than the normal crediting rate under a plan both to project lump-sum benefits to normal retirement age, then to discount them to present value, was precisely the issue at the heart of the Berger case.
In Berger the defendant plan computed the value of a benefit distributed before normal retirement by applying the interest rate under 26 U.S.C. § 417(e)(3) instead of the normal crediting rate under the plan, then applying the same section 417(e)(3) rate to reduce the benefit to present value. See 338 F.3d at 759-60. The Berger court concluded that under Internal Revenue Service Notice 96-8 the crediting rate under the plan must be applied up to normal retirement age, then reduced pursuant to section 417(e)(3). See id. at 761-62. The court explained that, because the plan used the same rate to project the value of a lump sum to normal retirement age, then discount it to present value, the projection was, in effect, a wash: "The two rates, the interest rate and the discount rate, being identical, canceled, with the result that the lump sum that the departing employee received was his cash balance on the date of his departure." Id. at 760. The court explained further:
To be tax-qualified, a cash balance plan must be "frontloaded," that is, must include interest on the money in the employee's hypothetical account for the period between his leaving the employer and his reaching age 65. Otherwise, because of discounting, the cash balance pension benefit would be worth very little if the employee left the company's employ many years before he reached 65, and the Internal Revenue Code denies tax benefits to, and ERISA outright forbids, pension-plan terms that tend to lock an employee into his current employment by "backloading" his pension entitlement excessively, that is, by configuring it so that it is worth very little unless the employee stays with the company until normal retirement age.
Id. at 762 (citations omitted). The court concluded that, under the plan terms, participants "are, in short, being 863 invited to sell *863 their pension entitlement back to the company cheap, and that is a sale that ERISA prohibits."
Id.
In this case, under the Plan terms what Plan participants who elect to take a lump-sum distribution of their Plan benefits before normal retirement age receive is the amount in their CBA as of the date they left employment with the Plan sponsors. The Court is not required to decide this issue at this time. However, in light of the plain language of the Plan document, the Court is of the view that an administrative record regarding Count II of Plaintiffs' complaint would not be of any assistance in deciding this case. See Call v. Ameritech Mgmt. Pension Plan, Civil No. 01-717-GPM, at *1-2 (S.D.Ill. July 9, 2004) (order denying motion for reconsideration) (rejecting a plan administrator's "ex cathedra pronouncement that the term `accrued benefit'" as used in a plan document did not carry the meaning it has under ERISA: "Defendant's argument is akin to insisting that a cat is a dog because

`I am a veterinarian and say it is so.'"). The Court concludes in its discretion that exhaustion of administrative remedies would be futile in this case.
2. Whether Counts I-IV of Plaintiffs' Complaint Seek Equitable Relief under ERISA
As discussed, Count I through Count IV of Plaintiffs' complaint are brought pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), which provides, "(a) 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 provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3). Defendants contend that Count I through Count IV must be dismissed because they seek not equitable relief but legal relief, specifically, compensatory damages, that are not available under the statute. The Court disagrees. Under controlling precedent of this Circuit and of the Supreme Court of the United States, most recently Sereboff v. Mid Atlantic Medical Services, Inc., ___ U.S. ___, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006), Plaintiffs have properly asserted claims for equitable relief under ERISA.
It is settled law in this Circuit that awards of money damages are available as a component of equitable relief. In May Department Stores Co. v. Federal Ins. Co., 305 F.3d 597 (7th Cir.2002), the court stated expressly that it is not the case "that money can never be recovered in a suit in equity." Id. at 602. The court noted that money damages traditionally have been available as an element of an equitable remedy under "the equity cleanup doctrine, which allows an equitable suitor to obtain incidental damages relief in his equity suit so as to spare himself, the defendant, and the judiciary the burden of two suits on the same claim." Id. at 603. See also In re Allstate Ins. Co., 400 F.3d 505, 507 (7th Cir.2005); Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 576 (7th Cir.2004). This is consistent of course with historic equity practice. See Greene v. Louisville & Interurban R.R. Co., 244 U.S. 499, 520, 37 S.Ct. 673, 61 L.Ed. 1280 (1917) (stating that once equity "properly acquire[s] jurisdiction of a cause for any purpose, it should dispose of the entire controversy and its incidents, and not remit any part of it to a court of law."). See also A. Leo Levin, Equitable Clean-up and the Jury: A Suggested Orientation, 100 U. Pa. L.Rev. 320 (1951); John E. Sanchez, Jury Trials in Hybrid and Non-Hybrid Actions: The Equitable Clean-Up Doctrine in the Guise of Inseparability and Other Analytical Problems, 38 DePaul L.Rev. 627, 864 641-48 (1989). Also, the May *864 court noted, "wrongful withholding of benefits due can entitle the beneficiary to impose a constructive trust on interest on the withheld benefits, an equitable remedy that results in a money payment to the plaintiff." 305 F.3d at 603.
In Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), the Court held that the term "equitable relief" for purposes of ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), refers only to "those categories of relief that were typically available in equity." 534 U.S. at 210, 122 S.Ct. 708 (quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)) (emphasis omitted). The Court stated further that "not all relief falling under the rubric of restitution is available in equity." Id. at 212, 122 S.Ct. 708. The Court went on to say that "whether [the relief] is legal or equitable depends on the basis for [the plaintiffs] claim' and the nature of the underlying remedies sought." Id. at 213, 122 S.Ct. 708 (quoting Reich v. Continental Cas. Co., 33 F.3d 754, 756 (7th Cir.1994)). The Court noted:
In cases in which the plaintiff . . . could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him, . . . the plaintiff had a right to restitution at law through an action derived from the common-law writ of assumpsit. In such cases, the plaintiff's claim was considered legal because he sought . . . to obtain a judgment imposing a merely personal liability upon the defendant to pay a sum of money. . . . Such claims were viewed essentially as actions at law for breach of contract (whether the contract was actual or implied).
Id. at 213, 122 S.Ct. 708 (citations and emphasis omitted). The Court went on to say:
In contrast, a plaintiff could seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession. A court of equity could then order a defendant to transfer title (in the case of the constructive trust)

or to give a security interest (in the case of the equitable lien) to a plaintiff who was, in the eyes of equity, the true owner. But where . . . the property [sought to be recovered] or its proceeds have been dissipated so that no product remains, [the plaintiff's] claim is only that of a general creditor, . . . and the plaintiff . . . cannot enforce a constructive trust of or an equitable lien upon other property of the [defendant]. . . . Thus, for restitution to lie in equity, the action generally must seek . . . not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant's possession.
Id. at 213-14, 122 S.Ct. 708 (citations and emphasis omitted).
In Knudson the petitioners had paid medical expenses for one of the respondents, a beneficiary under a health plan covered by ERISA. See 534 U.S. at 207, 122 S.Ct. 708. The health plan provided the plan a right to recover from the beneficiary any payments paid by the plan and recovered from a third party. See id. The petitioners sought to enforce this reimbursement provision. See id. But the funds to which the petitioners claimed entitlement were not in the respondents' possession. See id. at 214, 122 S.Ct. 708. The Court found that "[t]he basis for 865 petitioners' *865 claim is not that respondents hold particular funds that, in good conscience, belong to petitioners, but that petitioners are contractually entitled to some funds for benefits that they conferred." Id. (emphasis omitted). This kind of restitution 0907 the extension of personal liability rather than the imposition of a constructive trust on particular property 0907 was a legal, and not equitable, remedy. See id. Consequently, the Court held that ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), did not authorize the petitioners' claim for restitution. See 534 U.S. at 218, 122 S.Ct. 708.
In Administrative Committee of Wal-Mart Stores, Inc. Associates' Health & Welfare Plan v. Varco, 338 F.3d 680 (7th Cir.2003), the court, applying Knudson, held that a claim by a plan fiduciary against a plan beneficiary to recover funds advanced to the beneficiary for medical expenses was proper under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). The beneficiary, who had been injured in a car accident, later entered a settlement with the driver responsible for the accident, and the plan asserted subrogation rights as to the settlement funds. The court distinguished the case from Knudson, because the beneficiary in Knudson had no control or possession of specifically identifiable funds claimed by the petitioners' plan:
The Committee, as a fiduciary, was seeking to impose a constructive trust on the funds held in Varco's reserve bank account. Unlike the legal action addressed in Great-West Life, the funds at issue here are identifiable, have not been dissipated, and are still in the control of a Plan participant due to the fact that [Varco's attorney] placed them in a reserve account in Varco's name when they were disbursed. Finally those funds, . . . in good conscience, . . . belong to the Committee. The Plan clearly states that Varco's rights to recover benefits may be subrogated when there is a settlement and that "[t]he Plan has first priority with respect to its right to reduction, reimbursement and subrogation." Under similar facts, we have held that a suit to impose a constructive trust "nestles comfortably" within ERISA's concept of equity.
338 F.3d at 687 (quoting Wal-Mart Stores, Inc. Assocs.' Health & Welfare Plan v. Wells, 213 F.3d 398, 401 (7th Cir.2000)). The court held that the plan's action was one for equitable relief under ERISA because the plan sought restitution of funds due that were specifically identifiable and within the possession or control of the beneficiary:
. . . Varco argues that this is essentially a legal claim asserted by the Committee in order to enforce its contract rights under the Plan because . . . a claim for money due and owing under a contract is . . . quintessentially an action at law. . . . Varco would have a valid argument under traditional principles of equity if an identifiable res did not exist to which the Committee could claim a legally recognized right. . . . Similarly, an argument would exist if the Committee could not trace its property to a specific fund of money. . . . Neither of those situations, however, is presented here. Thus, under Great-West Life, the reimbursement action by the Committee in this unique case is equitable because the funds the Committee seeks to recover are identifiable, are in the control of a defendant, and the Committee is rightfully entitled to the monies under the terms of the Plan. Because those elements are met here, the Committee's claim is equitable under § 502 (a)(3)(B) of ERISA[.]

338 F.3d at 687-88. See also Forsling v. J.J. Keller & Assocs., Inc., 241 F.Supp.2d 915, 919 (E.D.Wis.2003) 866 (applying Knudson and allowing equitable relief where the funds at issue were identifiable, had not *866 been
dissipated, were still in the control of an insurer, and in good conscience belonged to a plan sponsor pursuant to the subrogation provisions of its plan).
The test of whether relief sought under ERISA is equitable or legal set out in. Varco is sometimes called the "possession" test. "Under this theory, Knudson . . . prohibit[s] actions by ERISA plans to seek reimbursement only . . . if the insured is not in the possession of clearly identifiable proceeds." Roger M. Baron, Public Policy Considerations Warranting the Denial of Reimbursement to ERISA Plans: It's Time to Recognize the Elephant in the Courtroom, 55 Mercer L.Rev. 595, 612 (2004). In addition to this Circuit, after Knudson three sister circuits adopted the possession standard. See Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212, 218-19 (4th Cir.2005) ; Administrative Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1124-25 (10th Cir.2004); Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348, 356 (5th Cir.2003). See also Great-West Life & Annuity Ins. Co. v. Brown, 192 F.Supp.2d 1376, 1380-81 (M.D.Ga.2002). Two other circuits rejected the possession standard, insisting that the correct test of whether relief sought under ERISA is equitable or legal is the nature of the remedy sought. See Providence Health Plan v. McDowell, 385 F.3d 1168, 1174 (9th Cir.2004); Qualchoice, Inc. v. Rowland, 367 F.3d 638, 648-50 (6th Cir.2004). For example, in Westaff (USA) Inc. v. Arce, 298 F.3d 1164 (9th Cir.2002), an action by a plan fiduciary seeking a declaratory judgment that funds in escrow belonged to the plan administrator together with specific performance of a reimbursement obligation, the court held that the plan sought "to enforce a contractual obligation for the payment of money, a classic action at law and not an equitable claim," although the funds at issue were specifically identifiable. Id at 1166.
In Sereboff v. Mid Atlantic Medical Services, Inc., the Supreme Court recently resolved the split in the circuits in favor of the possession standard. Sereboff was a lawsuit by Mid Atlantic Medical Services, Inc. ("Mid Atlantic"), the fiduciary of certain ERISA group health insurance plans sponsored by Marlene Sereboff's employer that provided coverage for Mrs. Sereboff and her husband. See 126 S.Ct. at 1872. After the Sereboffs were injured in an automobile accident, the plan advanced payments for their medical expenses. See id. The plan contained an "Acts of Third Parties" subrogation provision, which accorded Mid Atlantic, as the plan's fiduciary, the right to recover any payments made to beneficiaries by third parties for costs associated with an injury resulting from the acts of another person or party. See id. The Sereboffs brought suit in state court against the party allegedly responsible for their injuries. See id. During the pendency of the state-court litigation, Mid Atlantic repeatedly informed the Sereboffs and their attorney that it had paid medical benefits on behalf of the Sereboffs and that, according to the plan, Mid Atlantic was entitled to reimbursement for those expenditures should the state-court litigation be successful. See id at 1872-73. The Sereboffs subsequently settled the state-court litigation. See id. at 1873. Upon receipt of the settlement funds, however, they refused to recognize Mid Atlantic's subrogation claim and to reimburse it for the benefits it had paid on their behalf. See id. Their attorney then disbursed the funds to the Sereboffs and his law firm, according to their representation agreement in the state-court litigation, whereupon the Sereboffs placed the funds into their investment accounts. See id.
867 *867 Mid Atlantic sued the Sereboffs in the United States District Court for the District of Maryland, pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). See 126 S.Ct. at 1873. The district court found for Mid Atlantic, and the judgment was affirmed. See id. The Supreme Court granted certiorari to resolve the circuit split regarding the proper test for whether relief is equitable or legal under ERISA. See id. The Court, per Chief Justice Roberts, held unanimously that the relief sought by Mid Atlantic was equitable within the meaning of ERISA. In ruling that the relief sought by Mid Atlantic was equitable, the Court noted the factual similarity between the Sereboff case and Knudson. The Court distinguished Knudson because in that case the plan couched its claim for relief in terms of affixing personal liability on the plan beneficiary for a contractual obligation to pay money, rather than seeking to levy on an identifiable fund held by the individual against whom recovery was sought, as its requested relief amounted only to a claim for a legal remedy not otherwise provided under ERISA. See 126 S.Ct. at 1873-74. The Court explained that in Knudson the plan could not establish a claim for equitable relief under ERISA because the funds at issue were not in the respondents' possession:

To decide whether the restitutionary relief sought by Great-West was equitable or legal, we examined cases and secondary legal materials to determine if the relief would have been equitable . . . [i]n the days of the divided bench. . . . We explained that one feature of equitable restitution was that it sought to impose a constructive trust or equitable lien on . . . particular funds or property in the defendant's possession. . . . That requirement was not met in Knudson, because . . . the funds to which petitioners claim[ed] an entitlement . . . were not in Knudson's possession, but had instead been placed in a . . . Special Needs Trust . . . under California law. . . . The kind of relief Great-West sought, therefore, was . . . not equitable 0907 the imposition of a constructive trust or equitable lien on particular property 0907 but legal 0907 the imposition of personal liability for the benefits that [Great-West] conferred upon [Knudson]. . . . We accordingly determined that the suit could not proceed under § 502(a)(3).

126 S.Ct. at 1874.

However, the Court continued, though in Knudson the plan's claim for equitable relief was doomed by the fact that there were no identifiable funds against which an equitable lien could be placed,

That impediment to characterizing the relief in Knudson as equitable is not present here. . . . [I]n

this case Mid Atlantic sought . . . specifically identifiable . . . funds that were . . . within the

possession and control of the Sereboffs[, namely,] that portion of the tort settlement due Mid

Atlantic under the terms of the ERISA plan, set aside and . . . preserved [in the Sereboffs']

investment accounts. . . . Unlike Great-West, Mid Atlantic did not simply seek "to impose personal

liability . . . for a contractual obligation to pay money." It alleged breach of contract and sought

money, to be sure, but it sought its recovery through a constructive trust or equitable lien on a

specifically identified fund, not from the Sereboffs' assets generally, as would be the case with a

contract action at law. ERISA provides for equitable remedies to enforce plan, terms, so the fact

that the action involves a breach of contract can hardly be enough to prove relief is not equitable;

that would make § 502(a)(3)(B)(ii) an empty promise. This Court in Knudson did not reject Great-

West's suit out of hand because it alleged a breach of contract and sought money, but because

868

Great-West did not *868 seek to recover a particular fund from the defendant. Mid Atlantic does.

126 S.Ct. at 1874 (quoting Knudson, 534 U.S. at 210, 122 S.Ct. 708) (emphasis in original). The Court explained that Mid Atlantic was not seeking to obtain a money judgment against the Sereboffs, but instead was demanding imposition of a constructive trust on the settlement funds held by the Sereboffs to the extent of the plan's reimbursement rights. See id. In contrast to Knudson, Mid Atlantic identified a specific fund, separate from the Sereboff's other assets, on which a constructive trust should be placed: the plan provided that the plan's interest extended to all recoveries froth a third party, whether by lawsuit or settlement, and fixed the share to which the plan was entitled. See id. According to traditional equitable principles, the Court concluded, the Sereboffs became equitable trustees of the funds to which the plan was entitled once the settlement came into their possession. See id. at 1875.

In Sereboff the Court rejected the plan beneficiaries' contention that the relief sought by the plan was not equitable because the plan could not trace its property or monetary interest to particular funds or assets held by the beneficiaries. The Court held that strict tracing rules do not apply to cases of equitable restitution when an equitable lien is imposed by agreement. See 126 S.Ct. at 1875. The Court reasoned that the "Acts of Third Parties" provision of the plan triggered the "familiar rul[e] of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing." Id. (quoting Barnes v. Alexander, 232 U.S. 117, 121, 34 S.Ct. 276, 58 L.Ed. 530 (1914)). Thus the Court found that the Sereboffs' undertaking pursuant to the "Acts of Third Parties" provision of the plan created a lien on the portion of the settlement from the Sereboffs' state-court litigation due to Mid Atlantic that the plan could follow into the Sereboffs' hands as soon as the fund was identified. See id. Also, the Court rejected the Sereboffs' argument that, if the plan's claim were equitable, it was subject to certain defenses available in actions for equitable subrogation. The Court held that Mid Atlantic's claim was not equitable merely because it was a subrogation claim. See id. at 1877. Rather, the Court explained, Mid Atlantic's action was brought to enforce the "Acts of Third

Parties" provision, which thus qualified it as an equitable remedy because it was indistinguishable from an action to enforce an equitable lien established by agreement. See id.
In the instant case, construing Plaintiffs' allegations in the light most favorable to them and assuming the truth of Plaintiffs' factual allegations, as the Court must at this juncture, Plaintiffs have properly asserted a claim for equitable relief under ERISA. Plaintiffs point to specifically identifiable funds that are within the possession and control of Defendants and which Plaintiffs assert in equity and good conscience belong to them. See Sereboff, 126 S.Ct. at 1874; Knudson, 534 U.S. at 213-14, 122 S.Ct. 708; Varco, 338 F.3d at 687. Plaintiffs have identified a fixed share of the fund assets to which they are equitably entitled, that is, the difference between what they have been paid and what they would be paid had Plan benefits been computed properly under ERISA. Plaintiffs' allegations are sufficient to assert an equitable duty on Defendants' part to convey to them the funds at issue. In May the Seventh Circuit instructed that the substantive provisions of ERISA are a term of any pension plan governed by the statute. "[L]ike many other contracts, pension plans governed by ERISA contain provisions 869 implied by law." 305 F.3d at 601 (citing A.E.I. Music Network, Inc. v. *869 Business Computers, Inc., 290 F.3d 952, 955-56 (7th Cir.2002)). Therefore, Defendants have voluntarily undertaken to convey to Plaintiffs all of the benefits to which they are legally entitled under ERISA. See Sereboff 126 S.Ct. at 1875. The Court concludes that Count I through Count IV of Plaintiffs' complaint are properly brought pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). See Berger v. Nazametz, No. 00-CV-0584-DRH, 2002 WL 1774744, at *3 (S.D.Ill. July 22, 2002) (in an ERISA class action alleging that the defendant plan miscalculated lump-sum benefits, applying Knudson and holding that the plaintiffs properly asserted claims for equitable relief: "The sum of money that was withheld from the Plaintiffs, and in good conscience belongs to the Plaintiffs, remains in the Defendants' possession. The kind of restitution Plaintiffs seek is equitable and equitable restitution may be recovered under [ERISA]."). Cf. Godshall v. Franklin Mint Co., 285 F.Supp.2d 628, 634 (E.D.Pa.2003) (holding that freelanceworker plaintiffs wrongfully excluded from plan participation could seek money damages in the form of equitable restitution and other remedies against the defendants, where the funds sought "could clearly be traced to property or funds in" the defendants' possession); Wellmark. Inc. v. Deguara, 257 F.Supp.2d 1209, 1216 (S.D.Iowa 2003) (allowing equitable relief under Knudson where a defendant had control of identifiable funds).[5]
CONCLUSION
The Motion to Dismiss Plaintiffs' Complaint brought by Defendants Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc. (Doe. 25) is DENIED.
IT IS SO ORDERED.
[1] Defendant Pharmacia Pension Plan was voluntarily dismissed from this action by notice of Plaintiffs on March 14, 2006. See FED. R. CIV. P. 41(a)(1)(i); Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 888-89 (7th Cir.1972).
[2] The Plan document was submitted to the Court in support of Defendants' motion to dismiss. In ruling on a Rule 12(b)(6) motion, the Court can treat as part of the pleadings documents that are "referred to in the plaintiff's complaint and are central to [the plaintiff's] claim." 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir.2002) (quoting Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir.1994)). See also Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir.2002); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); SEC v. Park, 99 F.Supp.2d 889, 893 (N.D.Ill.2000); Marks v. CDW Computer Ctrs., Inc., 901 F.Supp. 1302, 1309 (N.D.Ill.1995).
[3] This is not to say, of course, that in every case alleging a statutory violation of ERISA an administrative record would not be helpful. However, the Court notes that the cases in which the United States Court of Appeals for the Seventh Circuit has applied the exhaustion doctrine to claims for statutory violations of ERISA, the particular statutory violation at issue has been the alleged wrongful discharge of a plan participant to avoid paying vested plan benefits. See Lindemann, 79 F.3d at 648-50; Kross, 701 F.2d at 1246. A case involving alleged wrongful discharge under ERISA is one that presents disputed, individualized facts that can be determined in the administrative process to resolve a plan beneficiary's claim. Also, such a case does not implicate issues about

the overall illegality of a plan under the statute. In this case, by contrast, the claims of Plaintiffs and the putative class present no individualized questions as to which administrative factfinding might be helpful, and the legality of the structure of the Plan is squarely at issue.
[4] As discussed, Count V of Plaintiffs' complaint merely sets forth under ERISA 502(a)(1)(B), 29 U.S.C. § 1132 (a)(1)(B), an alternative statement of Counts I-IV, which are brought under ERISA 502(a)(3), 29 U.S.C. § 1132(a) (3). At the hearing, the Court expressed some skepticism about the viability of Count III, which asserts that certain allegedly age-discriminatory provisions of the Plan constitute illegal "backloading" of benefits, a skepticism that seems to be borne out by a decision from a sister court submitted to this Court by Plaintiffs, see Richards v. FleetBoston Fin. Corp., 427 F.Supp.2d 150, 170-71 (D.Conn.2006), although of course the Court need not decide the issue at this time.
[5] To the extent Defendants challenge Plaintiffs' complaint on the grounds that Plaintiffs simultaneously assert claims under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), and ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), the Court rejects this contention. Rule 8 of the Federal Rules of Civil Procedure specifically provides that "[a] party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. . . . A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds." FED. R. CIV. P. 8(e)(2). Under Rule 8(e)(2), a plaintiff is not required to elect one remedy over another prior to final judgment. "Although plaintiffs may not obtain a duplicative recovery, there is no requirement that they elect one remedy over another prior to final judgment." Weft, Inc. v. G.C. Inv. Assocs., 630 F.Supp. 1138, 1144 (E.D.N.C.1986). See also Anderson v. W.R. Grace & Co., 628 F.Supp. 1219, 1234 (D.Mass.1986) ("[P]laintiffs are entitled to present alternative theories of liability to the [factfinder]," provided appropriate measures are taken at trial "to prevent double recovery for any element of damage."). Plaintiffs are entitled to assert claims under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), and ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), in the same complaint, and are not required to elect a remedy before entry of final judgment.
Save trees - read court opinions online on Google Scholar.

 
 Donaldson v. Pharmacia Pension Plan, Not Reported in F.Supp.2d (2006)
2006 WL 1308582 Only the Westlaw citation is currently available.
United States District Court, S.D. Illinois.
Fred DONALDSON, Albert Walter, III, and Mary Clawson, Individually and on behalf of all those similarly situated, Plaintiffs, v.
PHARMACIA PENSION PLAN, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc., Defendants.
Civil No. 06-3-GPM. | May 10, 2006.
Attorneys and Law Firms
Jerome J. Schlichter, Schlichter, Bogard, Swansea, IL, Matthew H. Armstrong, Schlichter, Bogard et al., St. Louis, MO, for Plaintiffs.
Opinion
MEMORANDUM AND ORDER
MURPHY, Chief District Judge.
*1 This action is before the Court on the Motion to Appoint Interim Class Counsel brought by Schlichter, Bogard & Denton (“the SBD firm”), the attorneys for the named Plaintiffs in this case, Fred Donaldson, Albert Walter, III, and Mary Clawson (Doc. 36). For the following reasons, the motion is DENIED.
Rule 23 of the Federal Rules of Civil Procedure provides that a court “may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.” FED.R.CIV.P. 23(g)(2)(A). See also In re Cardinal Health, Inc. ERISA Litig., 225 F.R.D. 552, 554 (S.D.Ohio 2005) (order appointing lead counsel in which the court considered the needs of a certified class although, at the time of the order, the class was only a putative one). The commentary to Rule 23 explains that the rule “authorizes [a] court to designate interim counsel during the pre-certification period if necessary to protect the interests of the putative class.” FED.R.CIV.P. 23 advisory committee’s note.
The type of situation in which interim class counsel is appointed is one in which overlapping, duplicative, or competing class suits are pending before a court, so that appointment of interim counsel is necessary to protect the interests of class members. For example, the commentary to Rule 23 explains that interim counsel may be necessary so that there will be one attorney responsible for “tak[ing] action to prepare for the certification decision.” FED.R.CIV.P. 23 advisory committee’s note. Also, interim counsel may be necessary to “make or respond to motions before certification.” Id. Third, interim counsel may be necessary so that “[s]ettlement may be discussed before certification.” Id. Finally, the commentary to Rule 23 notes that “[i]n some cases ... there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate.” Id. The Manual for Complex Litigation (Fourth) says,
If ... there are a number of overlapping, duplicative, or competing suits pending in other courts, and some or all of those suits may be consolidated, a number of lawyers may compete for class counsel appointment. In such cases, designation of interim counsel clarifies responsibility for protecting the interests of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement.
Manual for Complex Litigation (Fourth) § 21.11 (2004).
Importantly, both the commentary to Rule 23 and the Manual for Complex Litigation (Fourth) indicate that appointment of
1

Donaldson v. Pharmacia Pension Plan, Not Reported in F.Supp.2d (2006) interim counsel is not appropriate where, as here, a single law firm has brought a class action and seeks appointment as class counsel. The Manual explains, “[i]f the lawyer who filed the suit is likely to be the only lawyer seeking appointment as class counsel, appointing interim class counsel may be unnecessary.” Manual for Complex Litigation (Fourth) § 21.11. Similarly, the commentary to Rule 23 states that “[o]rdinarily, such work” as interim counsel is appointed to do “is handled by the lawyer who filed the action.” FED.R.CIV.P. 23 advisory committee’s note. Consistent with the commentary to Rule 23 and the Manual, the Court’s research indicates that the kind of matter in which interim counsel is appointed is one where a large number of putative class actions have been consolidated or otherwise are pending in a single court. See, e.g., Smith v. Aon Corp., No. 04 C 6875, 2006 WL 1006052, at *2 (N.D.Ill. Apr. 12, 2006); Turner v. Murphy Oil USA, Inc., Civ.A. No. 05-4206, 2006 WL 267333, at *1, * 12 (E.D.La. Jan. 30, 2006); Hill v. The Tribune Co., No. 05 C 2602, 05 C 2640, 05 C 2684, 05 C 2927, 05 C 3374, 05 C 3377, 05 C 3390, 05 C 3928, 2005 WL 3299144, at * *3-5 (N.D.Ill. Oct. 13, 2005); In re Delphi ERISA Litig., 230 F.R.D. 496, 497-99 (E.D.Mich.2005). Cf. In re Issuer Plaintiff Initial Pub. Offering Antitrust Litig., 234 F.R.D. 67, 69-70 (S.D.N.Y.2006). *2 In this instance there is only a single putative class action before the Court in which only a single law firm seeks appointment as class counsel. The SBD firm’s submissions to the Court in support of their request for appointment as interim class counsel suggest that the firm is well qualified to represent the proposed class. However, absent special circumstances requiring appointment of interim counsel, the Court prefers to take up the matter of adequacy of representation and appointment of class counsel at such time as Plaintiffs may seek class certification. Accordingly, the Motion to Appoint Interim Class Counsel is DENIED (Doc. 36). IT IS SO ORDERED.
2

 
 Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 1 of 11
CJRA_D, CLOSED, CONSCS, FILE_CREATED, SEG
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:06−cv−00003−JPG−PMF

Donaldson et al v. Pharmacia Pension Plan et al Assigned to: Judge J. Phil Gilbert Referred to: Magistrate Judge Philip M. Frazier Related Case: 3:04−cv−00436−JPG−PMF Cause: 29:1002 E.R.I.S.A.: Employee Retirement
Plaintiff

Date Filed: 01/03/2006 Date Terminated: 09/29/2009 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Fred Donaldson

represented by Jerome J. Schlichter Schlichter, Bogard et al. − St. Louis Generally Admitted 100 S. Fourth St. Suite 900 St. Louis, MO 63102 314−621−6115 Fax: 314−621−7151 Email: jschlichter@uselaws.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong Armstrong Law Firm LLC 8816 Manchester Road, No. 109 St. Louis, MO 63144 314−258−0212 Email: matt@mattarmstronglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Albert Walter, III

represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Mary Clawson Individually and on behalf of all those similarly situated

represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sandra Bellon

represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 2 of 11

Plaintiff Audrey Sokoloski

represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Carol Thomas

represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Jeffrey Scharringhausen
Intervenor Plaintiff Doug Strahm

represented by Christopher F. Cueto Law Office of Christopher Cueto , LTD Generally Admitted 7110 West Main Street Belleville, IL 62223 618−277−1554 Email: ccueto@cuetolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher F. Cueto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Pharmacia Pension Plan TERMINATED: 03/14/2006

represented by Anne E. Rea Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: area@sidley.com TERMINATED: 03/14/2006
Chris K. Meyer Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: cmeyer@sidley.com TERMINATED: 03/14/2006
Dawn A. Sallerson Hinshaw &Culbertson − Belleville 521 West Main Street Suite 300, P.O. Box 509 Belleville, IL 62222 618−277−2400 Email: dsallerson@hinshawlaw.com TERMINATED: 03/14/2006

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 3 of 11

Erin E. Kelly Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: ekelly@sidley.com TERMINATED: 03/14/2006

Mark B. Blocker Sidley Austin LLP Generally Admitted One S. Dearborn Chicago, IL 60603 312−853−6097 Email: mblocker@sidley.com TERMINATED: 03/14/2006

Neil H. Wyland Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: nwyland@sidley.com ATTORNEY TO BE NOTICED

Priscilla E. Ryan Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: pryan@sidley.com TERMINATED: 03/14/2006

Ryan M. Sandrock Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: rsandrock@sidley.com TERMINATED: 03/14/2006

William F. Conlon Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Email: wconlon@sidley.com TERMINATED: 03/14/2006

Defendant Pharmacia Cash Balance Pension Plan

represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 4 of 11

Dawn A. Sallerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker (See above for address) ATTORNEY TO BE NOTICED

Defendant Pharmacia Corporation

represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn A. Sallerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 5 of 11

Defendant Pharmacia &Upjohn Company
Defendant Pfizer Inc

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark B. Blocker (See above for address) ATTORNEY TO BE NOTICED
represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dawn A. Sallerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark B. Blocker (See above for address) ATTORNEY TO BE NOTICED
represented by Anne E. Rea (See above for address) LEAD ATTORNEY

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 6 of 11

ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dawn A. Sallerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker (See above for address) ATTORNEY TO BE NOTICED

Defendant Monsanto Company Pension Plan, The

represented by Carol Connor Cohen Arent Fox PLLC 1050 Connecticut Avenue N.W. Washington, DC 20036 202−857−6000 Email: flowe.carol@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Nester Donovan, Rose et al. Generally Admitted 8 East Washington Street Belleville, IL 62220 618−235−2020 Email: mnester@ilmoattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Monsanto Company

represented by Carol Connor Cohen (See above for address)

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 7 of 11
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Nester (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/03/2006 01/03/2006 01/04/2006 01/27/2006 01/27/2006 01/27/2006 01/31/2006 01/31/2006 02/06/2006 02/06/2006
02/08/2006
02/08/2006
02/08/2006

# Docket Text
1 COMPLAINT against all defendants (Filing fee $ 250.00, receipt # 300 109310.) , filed by Fred Donaldson, Albert Walter, III, Mary Clawson. (Attachments: # 1 Civil Cover Sheet)(trb ) (Entered: 01/04/2006)
2 Summons Issued as to Pharmacia Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (trb) (Entered: 01/04/2006)
3 Summons Issued as to Pharmacia Cash Balance Pension Plan. (trb) (Entered: 01/09/2006)
4 SUMMONS Returned Executed by Fred Donaldson, Albert Walter, III, Mary Clawson. Pharmacia Corporation served on 1/17/2006, answer due 2/6/2006. (Armstrong, Matthew) (Entered: 01/27/2006)
5 SUMMONS Returned Executed by Fred Donaldson, Albert Walter, III, Mary Clawson. Pfizer Inc served on 1/17/2006, answer due 2/6/2006. (Armstrong, Matthew) (Entered: 01/27/2006)
6 SUMMONS Returned Executed by Fred Donaldson, Albert Walter, III, Mary Clawson. Pharmacia &Upjohn Company served on 1/17/2006, answer due 2/6/2006. (Armstrong, Matthew) (Entered: 01/27/2006)
7 SUMMONS Returned Executed by Fred Donaldson, Albert Walter, III, Mary Clawson. Pharmacia Cash Balance Pension Plan served on 1/25/2006, answer due 2/14/2006. (Armstrong, Matthew) (Entered: 01/31/2006)
8 SUMMONS Returned Executed by Fred Donaldson, Albert Walter, III, Mary Clawson. Pharmacia Pension Plan served on 1/25/2006, answer due 2/14/2006. (Armstrong, Matthew) (Entered: 01/31/2006)
9 NOTICE of Appearance by Dawn A. Sallerson on behalf of Pharmacia Pension Plan, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc (Sallerson, Dawn) (Entered: 02/06/2006)
10 MOTION for Extension of Time to File Answer re 1 Complaint by Pharmacia Pension Plan, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (Sallerson, Dawn) (Entered: 02/06/2006)
11 ORDER GRANTING 10 MOTION for Extension of Time to File Answer re 1 Complaint filed by Pfizer Inc, Pharmacia Corporation, Pharmacia &Upjohn Company, Pharmacia Pension Plan, Pharmacia Cash Balance Pension Plan. Pharmacia Pension Plan answer due 3/16/2006; Pharmacia Cash Balance Pension Plan answer due 3/16/2006; Pharmacia Corporation answer due 3/16/2006; Pharmacia &Upjohn Company answer due 3/16/2006; Pfizer Inc answer due 3/16/2006. Signed by Judge Donald G. Wilkerson on 2/8/06. (sgp) (Entered: 02/08/2006)
16 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney William F. Conlon for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid, receipt number 300 100149. (lmb) (Entered: 02/10/2006)
17 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Erin E. Kelly for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid, receipt number 300 110052. (lmb) (Entered: 02/10/2006)

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 8 of 11

02/09/2006 02/09/2006 02/09/2006 02/10/2006 02/13/2006 02/15/2006 02/17/2006 02/27/2006 03/03/2006 03/07/2006 03/14/2006 03/16/2006 03/16/2006
03/21/2006
03/31/2006
04/11/2006

12 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Chris K. Meyer for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid,receipt number 300 11080. (trb ) (Entered: 02/09/2006)
13 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Anne E. Rea for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid,receipt number 30011080. (trb) (Entered: 02/09/2006)
14 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Ryan M. Sandrock for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid,receipt number 300 11080. (trb) (Entered: 02/09/2006)
15 NOTICE of Appearance by Mark B. Blocker on behalf of all defendants (Blocker, Mark) (Entered: 02/10/2006)
18 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Priscilla E. Ryan for Pharmacia Pension Plan and Pharmacia Cash Balance Pension Plan. $100.00 fee paid, receipt number 300 110186. (lmb) (Entered: 02/15/2006)
19 NOTICE of Appearance by Erin E. Kelly on behalf of Pharmacia Pension Plan, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc (Kelly, Erin) (Entered: 02/15/2006)
20 NOTICE of Appearance by Anne E. Rea on behalf of Pharmacia Pension Plan, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc (Rea, Anne) (Entered: 02/17/2006)
21 NOTICE of Appearance by Ryan M. Sandrock on behalf of all defendants (Sandrock, Ryan) (Entered: 02/27/2006)
22 NOTICE of Appearance by Chris K. Meyer on behalf of all defendants (Meyer, Chris) (Entered: 03/03/2006)
23 CJRA TRACK D assigned: Bench Trial set for presumptive month of 10/2007 in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 3/7/06. (lmc) (Entered: 03/07/2006)
24 STIPULATION of Dismissal of Defendant Pharmacia Pension Plan by Fred Donaldson, Albert Walter, III, Mary Clawson. (Armstrong, Matthew) (Entered: 03/14/2006)
25 MOTION to Dismiss Plaintiffs' Complaint by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. Responses due by 4/18/2006 (Sallerson, Dawn) (Entered: 03/16/2006)
26 MEMORANDUM in Support re 25 MOTION to Dismiss Plaintiffs' Complaint filed by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (Attachments: # 1 Exhibit Exhibit A to Defs' Memo in Support# 2 Exhibit Group Exhibit B to Defs' Memo in Support)(Sallerson, Dawn) (Entered: 03/16/2006)
27 NOTICE of Hearing on 25 MOTION to Dismiss Plaintiffs' Complaint: Motion Hearing set for 5/1/2006 at 02:00 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/21/2006)
28 ORDER: Due to a scheduling conflict on the court's calendar, 25 MOTION to Dismiss Plaintiffs' Complaint Hearing RESET for 5/8/2006 at 02:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 3/31/06. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/31/2006)
29 MOTION to Intervene For Purposes of Filing a Motion to Consolidate by Jeffrey Scharringhausen, Doug Strahm. (Attachments: # 1 Exhibit A − Motion to Consolidate Cases)(Cueto, Christopher) (Entered: 04/11/2006)

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 9 of 11

04/18/2006
04/18/2006 04/18/2006 04/24/2006 04/24/2006 04/25/2006 04/25/2006 04/25/2006
04/28/2006 04/28/2006
05/01/2006 05/08/2006
05/10/2006 05/24/2006

30 NOTICE of Hearing on 29 MOTION to Intervene: Motion Hearing set for 5/8/2006 at 02:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy, along with the previously scheduled motion to dismiss.(lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/18/2006)
31 RESPONSE to Motion re 29 MOTION to Intervene For Purposes of Filing a Motion to Consolidate filed by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (Sallerson, Dawn) (Entered: 04/18/2006)
32 MEMORANDUM in Opposition re 25 MOTION to Dismiss Plaintiffs' Complaint filed by Fred Donaldson, Albert Walter, III, Mary Clawson. (Attachments: # 1 Exhibit A− Richards v FleetBoston Opinion)(Armstrong, Matthew) (Entered: 04/18/2006)
33 RESPONSE in Opposition re 29 MOTION to Intervene For Purposes of Filing a Motion to Consolidate filed by Fred Donaldson, Albert Walter, III, Mary Clawson. (Armstrong, Matthew) (Entered: 04/24/2006)
34 NOTICE by Jeffrey Scharringhausen, Doug Strahm re 29 MOTION to Intervene For Purposes of Filing a Motion to Consolidate Withdrawal of Petitioners' Motion to Intervene (Cueto, Christopher) (Entered: 04/24/2006)
35 MOTION to Withdraw 29 MOTION to Intervene For Purposes of Filing a Motion to Consolidate by Jeffrey Scharringhausen, Doug Strahm. (Cueto, Christopher) (Entered: 04/25/2006)
36 MOTION to Appoint Counsel (Interim Class Counsel) by Fred Donaldson, Albert Walter, III, Mary Clawson. (Armstrong, Matthew) (Entered: 04/25/2006)
37 MEMORANDUM in Support re 36 MOTION to Appoint Counsel (Interim Class Counsel) filed by Fred Donaldson, Albert Walter, III, Mary Clawson. (Attachments: # 1 Exhibit A − Delcaration of Jerry Schlichter# 2 Exhibit B − Declaration of Matthew Armstrong# 3 Exhibit C − Wilfong Order# 4 Exhibit D − Mister Order)(Armstrong, Matthew) (Entered: 04/25/2006)
38 ORDER: GRANTING 35 MOTION to Withdraw 29 MOTION to Intervene filed by Jeffrey Scharringhausen, Doug Strahm. Signed by Judge G. Patrick Murphy on 4/28/06. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/28/2006)
39 NOTICE of Hearing on 36 MOTION to Appoint Counsel (Interim Class Counsel): Motion Hearing set for 5/8/2006 at 02:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy, along with the previously scheduled hearing on the motion to dismiss. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/28/2006)
40 REPLY to Response to Motion re 25 MOTION to Dismiss Plaintiffs' Complaint filed by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (Attachments: # 1 Exhibit Defendants' Group Exhibit A)(Sallerson, Dawn) (Entered: 05/01/2006)
41 Minute Entry for proceedings held before Judge G. Patrick Murphy : Motion Hearing held on 5/8/2006. Motions Taken Under Advisement: 36 MOTION to Appoint Counsel (Interim Class Counsel), 25 MOTION to Dismiss Plaintiffs' Complaint. (Court Reporter Molly Clayton.) (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/08/2006)
42 ORDER: DENYING 36 MOTION to Appoint Interim Class Counsel filed by Fred Donaldson, Albert Walter III, Mary Clawson. Signed by Judge G. Patrick Murphy on 5/10/06. (lmc) (Entered: 05/10/2006)
43 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Neil H. Wyland for Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, and Pfizer, Inc. $100.00 fee paid, receipt number 300 112161. (lmb) (Entered: 05/25/2006)

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 10 of 11

06/01/2006 06/06/2006
06/14/2006 07/07/2006 07/07/2006 07/20/2006 07/20/2006
07/24/2006 07/24/2006 07/25/2006 07/25/2006 07/31/2006 08/03/2006 08/03/2006 08/04/2006
08/07/2006

44 NOTICE of Appearance by Neil H. Wyland on behalf of all defendants (Wyland, Neil) (Entered: 06/01/2006)
45 TRANSCRIPT of All Pending Motions held on 5/08/2006 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: 06/07/2006)
46 ORDER: DENYING 25 MOTION to Dismiss Plaintiffs' Complaint filed by Pfizer Inc, Pharmacia Corporation, Pharmacia &Upjohn Company, Pharmacia Cash Balance Pension Plan. Signed by Judge G. Patrick Murphy on 6/14/06. (lmc) (Entered: 06/14/2006)
47 AMENDED COMPLAINT against all defendants, filed by Sandra Bellon, Audrey Sokoloski, Carol Thomas, Fred Donaldson, Albert Walter, III, Mary Clawson.(Armstrong, Matthew) (Entered: 07/07/2006)
48 Summons issued as to Monsanto Company Pension Plan, and Monsanto Company. (lmb) (Entered: 07/07/2006)
49 MOTION to Consolidate Cases by Monsanto Company Pension Plan, The, Monsanto Company. (Flowe, Carol) (Entered: 07/20/2006)
50 MEMORANDUM in Support re 49 MOTION to Consolidate Cases filed by Monsanto Company Pension Plan, The, Monsanto Company. (Attachments: # 1 Exhibit A − Schopp Declaration# 2 Exhibit B − Consolidation Chart# 3 Exhibit C − Marker Letter# 4 Exhibit D − Reimann Depostion# 5 Exhibit E − Schopp Depostion)(Flowe, Carol) (Entered: 07/20/2006)
51 ANSWER to Amended Complaint by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc.(Sallerson, Dawn) (Entered: 07/24/2006)
52 Affirmative Defenses to 47 Amended Complaint by Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia &Upjohn Company, Pfizer Inc. (Sallerson, Dawn) (Entered: 07/24/2006)
53 SUMMONS Returned Executed by Doug Strahm, Sandra Bellon, Audrey Sokoloski, Carol Thomas, Fred Donaldson, Albert Walter, III, Mary Clawson. Monsanto Company served on 7/11/2006, answer due 7/31/2006. (Armstrong, Matthew) (Entered: 07/25/2006)
54 SUMMONS Returned Executed by Sandra Bellon, Audrey Sokoloski, Carol Thomas, Fred Donaldson, Albert Walter, III, Mary Clawson. Monsanto Company Pension Plan, The served on 7/11/2006, answer due 7/31/2006. (Armstrong, Matthew) (Entered: 07/25/2006)
55 MOTION for Extension of Time to File Answer re 47 Amended Complaint Stipulated by Monsanto Company Pension Plan, The, Monsanto Company. (Flowe, Carol) (Entered: 07/31/2006)
56 Joint MOTION for Extension of Time to File Response/Reply as to 49 MOTION to Consolidate Cases by Sandra Bellon, Audrey Sokoloski, Carol Thomas, Fred Donaldson, Albert Walter, III, Mary Clawson. (Armstrong, Matthew) (Entered: 08/03/2006)
57 NOTICE of Appearance by Michael J. Nester on behalf of Monsanto Company Pension Plan, The, Monsanto Company (Nester, Michael) (Entered: 08/03/2006)
58 ORDER granting 56 Joint Motion for Extension of Time for Plaintiffs and Pharmacia Defendants to Respond to 49 Monsanto Defendants' Motion to Consolidate Cases. Responses due by 8/14/2006. Replies, if any, due by 8/21/2006. Signed by Judge G. Patrick Murphy on 08/04/2006. (njr)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/04/2006)
59 ORDER GRANTING 55 MOTION for Extension of Time to File Answer re 47 Amended Complaint Stipulated filed by Monsanto Company, Monsanto Company

Case: 3:06-cv-3 As of: 08/01/2010 03:23 PM CDT 11 of 11

08/14/2006 08/18/2006 08/22/2006
08/31/2006
09/01/2006 05/03/2007 05/08/2007 05/23/2007 06/01/2007 09/29/2009

Pension Plan, The. Monsanto Company Pension Plan, The answer due 8/18/2006; Monsanto Company answer due 8/18/2006. Signed by Judge Donald G. Wilkerson on 8/7/06. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/07/2006)
60 RESPONSE to Motion re 49 MOTION to Consolidate Cases filed by Sandra Bellon, Audrey Sokoloski, Carol Thomas, Fred Donaldson, Albert Walter, III, Mary Clawson. (Armstrong, Matthew) (Entered: 08/14/2006)
61 MOTION for Extension of Time to File Answer re 47 Amended Complaint Stipulated by Sandra Bellon, Audrey Sokoloski, Carol Thomas, Monsanto Company Pension Plan, The, Monsanto Company, Fred Donaldson, Albert Walter, III, Mary Clawson. (Flowe, Carol) (Entered: 08/18/2006)
62 ORDER GRANTING IN PART 61 MOTION for Extension of Time to File Answer re 47 Amended Complaint Stipulated filed by Monsanto Company, Monsanto Company Pension Plan, The, Fred Donaldson, Albert Walter, III, Mary Clawson, Sandra Bellon, Audrey Sokoloski, Carol Thomas. Monsanto Company Pension Plan, The answer due 9/8/2006; Monsanto Company answer due 9/8/2006. No further extensions will be granted. Signed by Judge Donald G. Wilkerson on 8/22/06. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/22/2006)
63 ORDER REASSIGNING CASE. Case reassigned to Judge David R Herndon for all further proceedings. Judge G. Patrick Murphy no longer assigned to case. DENYING 49 MOTION to Consolidate Cases filed by Monsanto Company, Monsanto Company Pension Plan. Signed by Judge G. Patrick Murphy on 8/31/06. (lmc) (Entered: 08/31/2006)
64 ORDER CONSOLIDATING Cases. See text of Order for specific instructions and briefing schedule. Signed by Judge David R Herndon on 9/1/2006. (seg) (Entered: 09/01/2006)
65 ORDER OF RECUSAL. Judge David R Herndon recused. Case reassigned to Judge William D. Stiehl for all further proceedings. Signed by Judge David R Herndon on 5/3/07. (pab ) (Entered: 05/03/2007)
66 ORDER OF RECUSAL. Judge William D. Stiehl recused. Case reassigned to Judge J. Phil Gilbert for all further proceedings. Signed by Judge William D. Stiehl on 05/08/07. (jkb) (Entered: 05/08/2007)
67 ORDER that Magistrate referral is reassigned from Judge Donald G. Wilkerson to Judge Philip M. Frazier for all further proceedings.Signed by Judge J. Phil Gilbert on 5/23/07. (bkl) (Entered: 05/23/2007)
Set/Reset Hearings: Bench Trial set for 11/19/2007 at 09:00 AM in Benton Court House before Judge J. Phil Gilbert.,Final Pretrial Conference set for 11/2/2007 at 09:30 AM in Benton Court House before Judge J. Phil Gilbert. (by:kjr) (Entered: 06/01/2007)
68 CLERK'S JUDGMENT (JF/djs) on Counts I, II, &III entered in favor of defendants and against plaintiffs; Counts IV, V &VI are dismissed without prejudice; Counts VII, VIII &IX are dismissed with prejudice; that Settlement in Count X defendants Monsanto Company Pension Plan and Monsanto Company shall pay compensation to Monsanto Defendants' Late Lump Sum Class &attorney's fees; Count X dismissed with prejudice. Approved by Judge J. Phil Gilbert on 9/29/09. (djs) (Entered: 09/29/2009)