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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

SCOTT D. DALESANDRO, et al., 

 On behalf of themselves and 

 all others similarly situated, 

 Plaintiffs, 

 v. 

THE INTERNATIONAL PAPER 

COMPANY, 

 Defendant. 

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Case No.: C-1-01-109 

Judge Sandra S. Beckwith 

 

PLAINTIFFS’ MEMORANDUM REGARDING 

 FLEX SIX PENSION ENHANCEMENT BENEFITS 

I. Introduction 

In the January 13, 2005 conference with the parties, the Court shared several points and 

requested further briefing on certain questions relating to the benefits found in Section 3 of 

Policy #828, referred to as the Flex Six Pension Enhancement Benefits. This name reflects the 

benefit that is provided: an enhancement to the amount of pension benefits an employee will 

receive from a credit of an additional six years of age and/or service. 

The Court has already ruled that the Class members are entitled to the severance benefits 

provided in Section 2 of Policy #828 because they were terminated on February 9, 2001. Twenty 

class members also meet the requirements set forth in Section 3 for the Flex Six pension 

enhancement: they had attained age 49 as of the date of termination (February 9, 2001) and their 

age plus years of service equaled at least 59. 1 

 

1

 Plaintiffs believe the parties are in agreement as to who is eligible for the Section 3 pension 

enhancement benefit of Policy #828. 

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II. Overview and Context 

A brief overview of the procedural history and the context of how the Flex Six issues 

developed in this case will be helpful. Plaintiffs also offer this context to respond to the 

timeliness issues raised by Defendant. 

A. Defendant’s Calculations Related to Flex Six Benefits 

The Court will recall that Notice of this Court’s March 21, 2003 decision was sent to all 

class members in September 2003; and that each Notice included an Exhibit A which was 

prepared by Defendant and explained the amount of benefits due to the employee if the Court’s 

ruling was not altered on appeal.2 All class members received an Exhibit A which showed the 

years of service and salary figures Defendant used to calculate that employee’s benefits pursuant 

to Section 2 of Policy #828. The Exhibit A’s for some of those class members also showed how 

Defendant calculated the Flex Six enhancement to that employee’s pension pursuant to Section 3 

of Policy #828. 

All class members were given the opportunity to review and challenge or correct 

Defendant’s figures and calculations – for both the severance benefits and the Flex Six pension 

enhancement benefit. As explained in Plaintiffs’ Report and Reply in Support (Doc. #s 68 & 

83), the employees followed the Court-ordered procedure and many sent letters within the 30 day 

period to notify Defendant of mistakes in start dates, years of service totals, salary levels, etc. 

relating to the calculations.3 Class Counsel also reviewed Defendant’s calculations to ensure that 

Defendant did not omit any class member who was qualified for the Flex Six pension 

enhancement. 

 

2 See Plaintiffs’ Report and exhibits thereto (Doc. # 68).

3

 Id. 

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However, Defendant did not comply with the Notice procedure and, despite repeated 

demands by Class Counsel, did not respond to the employees within the 20 day period proscribed 

by the Notice procedure but, instead, took up to 7 to eleven months to respond (and as late as 

September 2004, one year after its responses were due).4

 Some of these corrections resulted in 

adding class members who had been erroneously omitted from Flex Six consideration. 

During the time the Notice was being sent and the class members were seeking 

corrections, the parties were briefing Plaintiffs’ initial application for attorney fees (between 

August and October 2003). Plaintiffs then supplemented that initial fee application briefing in 

August 2004 to update the hours and fees and costs incurred in the year while the original motion 

was pending.5

 So, at the same time as Defendant is finally providing corrected information on 

the Flex Six benefits (information that was in the sole possession of Defendant) in mid to late 

2004, Plaintiffs were filing their supplemental fee application; Plaintiffs were also then able to 

file a Report intended to assist the Court in fashioning a final judgment entry and used the 

information Defendant had recently provided to estimate the value of the enhancement those 

certain class members would realize as a direct result of this lawsuit. Therefore, any objections 

Defendant has related to the timeliness and manner of presentation of these Flex Six issues are 

 

4

 Id. 

5

 Defendant has accused Class Counsel of “increasing the costs of attorneys’ fees incurred in this action 

by their continuing unnecessary and duplicative filings and requests” and claims that Class Counsel is 

“penalizing” the Class “as their potential recovery continues to be affected and reduced by the claims 

of the attorneys against the common fund.” Defendant’s Response to Plaintiffs’ Motion for Hearing 

(Doc. # 84 at pp.1-2) (filed in response to Plaintiffs’ motion for a hearing which was filed after the 

case was transferred and Plaintiffs believed a hearing might assist a judge new to the case). All of the 

substantial work Class Counsel has performed and continues to perform, including the supplemental 

fee motion, has been on behalf of the Class. As this Court is well aware, that time may be factored 

into a lodestar payment, but that would only increase the recovery to the Class since that amount is 

paid by Defendant to the Class; the amount of work Class Counsel performs does not penalize the 

class or reduce the amount of their potential recovery – Defendant’s accusations only highlight the 

purpose of the fee shift statute and support the basis for Plaintiffs’ Motion that the Court order a 

shifting of the fee to Defendant. 

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the result of its own flagrant disregard of the Court-ordered Notice procedure and of Class 

Counsel’s attempts to obtain the necessary information. 

Plaintiffs believed this estimation would assist the Court in its consideration of their fee 

application and in entering a final judgment. Significantly, Plaintiffs attempted to value the 

enhancement to assist the Court in considering the payment of attorney fees from the Class out of 

the common fund, and did not seek to increase the fee that would shift to Defendant to pay into

the common fund (which is strictly a lodestar amount with modest multiplier and not tied to the 

amount of the Class’ recovery). 

B. The Class’ Entitlement to Flex Six Benefits has Always Been a Part of the Merits 

and Attorney Fees Applications in this Case 

There is no dispute, nor has there ever been a dispute, that the Flex Six benefit is a part of 

Policy #828. Defendant has acknowledged that fact throughout this case, most notably in the 

Notice sent to the Class, in its representations to the Court in conferences, and in its most recent 

brief. The only Flex Six “issues” that arose in the later phase of this litigation came to light in 

Plaintiffs’ attempts to value the Flex Six benefits and to obtain a final judgment entry. 

Moreover, the recovery of Flex Six benefits, by the few employees who qualify, has always been 

considered a part of the damages recovered by the Class and, as such, a part of the common fund 

which has always been a basis for Class Counsel’s fee application. 

It is unclear from Defendant’s memorandum whether its position is that Flex Six benefits 

have not been at issue at all in the case, or whether certain Flex Six issues should be reserved for 

another time. Defendant simply states that, “There has been no need for adjudication of this 

issue.”6

 It is also unclear if Defendant is taking the position that the Court should not make any 

 

6

 Defendant’s Brief Regarding Flex Six Benefits (Doc. #91) at p. 4. 

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ruling whatsoever relating to Flex Six benefits, or only that the Court should not make a 

valuation ruling on those benefits. 

Plaintiffs’ position is that Flex Six benefits have been at issue from the outset of this 

case, just as Policy #828 has been at issue; and that Flex Six benefits have been an issue since 

the Court’s March 21, 2003 decision only to the extent the parties have not agreed on when and 

how those benefits should be paid and valuated.7 However, Plaintiffs are withdrawing their 

request that the Court order any past due or future payment of pension benefits, and withdraw 

their request that the value of Flex Six be considered as part of the common fund in the context 

of Plaintiffs’ fee applications (see Section III below). Accordingly, Plaintiffs submit that the 

Court need not and should not make any determination or ruling as to a valuation of the Flex Six 

benefits or as to whom and how those benefits should be paid. 

It is also Plaintiffs’ position that the Court should make a determination that the Flex Six 

pension enhancement benefits are included as a part of the recovery in this case. Plaintiffs 

maintain that but for this litigation, approximately twenty employees would not have received 

the credit of six additional years of age and/or service (provided in Section 3 of Policy #828) to 

use for early or normal retirement. Contrary to Defendant’s argument that there has been no 

need for adjudication of this issue and that it was not an issue in the merits stage of this case, it is 

undisputed that if the Class’ entitlement to Policy #828 benefits was not adjudicated to a 

conclusion in their favor, then the Flex Six pension enhancement provision contained therein 

would not be applied to any member of the Class. Those additional six years have substantial 

value which is of record; Defendant itself supplied the dollar figures in the Notices that were sent 

to the qualifying employees. Defendant has represented to Plaintiffs and to the Court that it will 

 

7

 Another issue that corresponds to when the Flex Six benefits are paid is how pre- or post judgment 

interest should attach to any payment. Based upon Plaintiffs’ withdrawal of that relief as explained in 

Section III of this Memorandum, that issue has been rendered moot. 

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honor this enhancement “unless the Court’s ruling on the merits is altered on appeal”8 and, 

therefore, it always has been and remains a valuable part of the recovery in this case. 

Plaintiffs further contend that it is inequitable for Defendant to withhold all Policy #828 

benefits, as it has done for four years now, thereby making it a financial hardship (if not 

impossibility) for these employees to leave their Smart Papers jobs and to, at the same time, 

require them to quit their jobs in order to receive benefits. That inequity is only magnified by the 

fact that, from the beginning and now for more than four years, Defendant has refused to pay any 

Policy #828 benefits, meaning that these employees must quit jobs before they are eligible for 

the chance to receive benefits that Defendant has waged a full scale battle against paying. We 

now know that certain of these employees could have satisfied that prerequisite had they been 

paid their Policy #828 Section 2 severance benefits when they were terminated by Defendant in 

February 2001 by choosing either: 1) to retire instead of taking a job with Smart Papers or, 2) to 

leave Smart Papers at any time during these past four years. But the reality is that Defendant 

denied them the first choice in February 2001 by requiring they take jobs with Smart Papers, and 

has denied them the second choice by withholding payment of any Policy #828 benefits. 

III. Plaintiffs Withdraw Requests 

Notwithstanding the inequities described above, and based upon Defendant’s 

representation that it will not deny qualifying class members the pension enhancement provided 

by Section 3 of Policy #828, Plaintiffs recognize the impracticalities and evidentiary problems 

with trying to value an enhancement to a benefit that is tied to future and various payments 

pursuant to a separate benefits plan (the Retirement Plan). Therefore, Plaintiffs withdraw their 

request that the Court include the value of the Section 3 Flex Six pension enhancement in any 

calculation of attorney fees. Plaintiffs also recognize that this Court should not order any 

 

8

 Defendant’s Brief Regarding Flex Six Benefits (Doc. #91) at pp. 4 & 6. 

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payment of past due pension benefits to any employee currently working for Smart Papers, and 

should not order any future payment of benefits governed by a separate retirement plan. 

Therefore, Plaintiffs withdraw their requests for such an order to the extent those requests relate 

to pension payments, including their requests for pre- and/or post-judgment interest on the 

payment of any pension benefits to any class member. 

While the Flex Six enhancement to pension benefits is a significant and valuable element 

of the damages won in this case, the fluid and contingent nature of its payment require 

assumptions in its valuation. The Court was correct in identifying the problems in valuating a 

benefits (pension) payment that has not been made to any class member, and will not be made 

even when the Court’s ruling is affirmed on appeal. For the same reason, although the pension 

enhancement will be a benefit realized by certain class members in the future, no matter how 

close or far, Class Counsel withdraw their request that the value of Flex Six pension 

enhancement benefit be a factor in any determination of attorney fees to be paid out of the 

common fund. 

IV. Plaintiffs Maintain Their Request for Determination of Eligibility 

Plaintiffs do maintain, however, that their entitlement to the Flex Six enhanced pension 

benefit should be included in the final judgment entry, and respectfully request the Court to find 

that the additional six (6) years of age and/or service credit given in Section 3 of Policy #828 

should be applied and factored into any later determination of eligibility for pension benefits 

under the Retirement Plan. Such a finding, without a valuation, would not interfere with the 

retirement plan’s administrative claims procedure; instead it would clarify for and aid that 

administrator and the class members in this case (who may later be claimants in that 

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administrative procedure) by specifying that the additional six years of credit were part of the 

recovery in this case. 

Moreover, this request is consistent with Defendant’s representation that, “unless the 

Court’s ruling on eligibility for severance benefits is altered on appeal, the International Paper 

Retirement Plan will not contest eligibility of class members who met the age and service 

requirement for Flex Six benefits, subject to the provisions of the Pension Plan.”9 Therefore, 

Defendant should not dispute the inclusion of this finding in the final judgment entry.

V. Conclusion 

In conclusion, Plaintiffs and Class Counsel withdraw their requests that the Court: 

• make or adopt any valuation of the Flex Six pension enhancement 

benefits found in Section 3 of Policy #828; and 

• order any payment of pension benefits to the Class; and 

• impose any pre- or post judgment interest on any payments of pension 

benefits to the Class; and 

• consider any or all of the above to be a part of the common fund of 

damages in ruling on their applications for attorney fees. 

Plaintiffs maintain their request that the Court include a finding that Class members are 

entitled to the Flex Six pension enhancement and to the additional six years of age and/or service 

credit as set forth in Section 3 of Policy #828 when they make a claim for their pension benefits. 

Based upon the foregoing, Plaintiffs and Class Counsel respectfully request the Court to 

enter Final Judgment incorporating its March 21, 2003 decision (Doc. #40) and finding, 

 

9

 Id. 

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concluding and ordering the items below as amended to reflect the exclusion of Flex Six pension 

enhancement benefits: 

1) The Class is defined as all persons employed by International Paper Company 

at the Hamilton B Street Mill who were terminated without cause on February 9, 

2001 and who were denied benefits under Champion International Paper 

Corporation Reorganization Severance Policy #828. 

2) The form and manner of Notice to the class members, and Plaintiffs’ 

dissemination of the same, was the best notice practicable under the 

circumstances and complies in all respects with Rule 23. 

3) Defendant wrongfully denied Plaintiffs and each class member the severance 

benefits provided by Section 2 and Section 3 of the Champion International Paper 

Corporation Reorganization Severance Policy #828. 

4) Defendant shall pay as damages the full amount of each class member’s 

severance benefits under Section 2 of the Champion International Paper 

Corporation Reorganization Severance Policy #828 in the amounts as calculated 

by Defendant and corrected by the employees (set forth in Doc. # 68 at sealed 

Exhibit 2 at Attachment D). 

5) The Class is entitled to the additional six (6) years of age and/or service credit 

provided by Section 3 of the Champion International Paper Corporation 

Reorganization Severance Policy #828 for the purpose of determining eligibility 

for pension benefits; the Court specifically makes no decision as to the value the 

Flex Six benefit and has not considered the value of this benefit in its ruling on 

attorney fees. 

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6) The payment of prejudgment interest to the Class is appropriate and shall be 

paid by Defendant to the Class as damages at the rate of 4.72%10 from February 

17, 200111 to the date of the Final Judgment Entry on the full amount of severance 

benefits under Section 2 of Policy #828 which were wrongfully withheld. 

7) The payment of post-judgment interest12 to the Class is appropriate and shall 

be paid by Defendant to the Class as damages according to 28 U.S.C. 

§1961(a) from the date of the Final Judgment Entry to the date of full payment of 

all severance benefits under Section 2 of Policy #828 to all class members. 

8) The shifting of the payment of attorney fees to the Defendant pursuant to 29 

U.S.C. § 1132(g)(1) is appropriate; Defendant shall pay to the Class the lodestar 

amount plus a 1.5 multiplier for a total of $902,481.38 through August 18, 2004; 

this payment is fair, reasonable and warranted; this amount of attorney fees shall 

be considered a part of the damages recovered by the Class; and the Class is 

permitted to make a supplemental submission for attorney fees, calculated 

according to the same lodestar rate with enhancement formula, for work 

performed in this case after August 18, 2004. 

 

10 Calculated according to 28 U.S.C. §1961(a). 

11 The prejudgment interest on the full amount of Section 2 benefits accrues on February 17, 2001 

pursuant to the Severance Plan which states that the entire sum will be paid eight days after termination 

(Doc. # 68, Exh. 4 at Section 8(b)). The interest rate should be based upon the average Treasury yield for 

the calendar week preceding that payment due date since that is the interest rate at which those benefits 

could have been invested by the employee but for the wrongful withholding of that money by Defendant. 

This accrual date and this method of calculating the rate mirror the purpose and language of the postjudgment interest statute as adjusted to apply to pre-judgment interest. See also, Plaintiffs’ Supplemental 

Motion for Attorney Fees and Expenses (Doc. # 67 at pp. 5-7). 

12 The parties agree on the accrual date (date of the Final Judgment Entry) and method of calculating the 

rate of post-judgment interest since the statute is clear and controls. 

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9) The shifting of the payment of expenses to the Defendant pursuant to 29 

U.S.C. § 1132(g)(1) is appropriate; Defendant shall pay to the Class the litigation 

related expenses requested by Plaintiffs which total 12,874.79 for expenses 

incurred through August 18, 2004; this payment is fair, reasonable and warranted; 

this amount of expenses shall be considered a part of the damages recovered by 

the Class; and the Class is permitted to make a supplemental submission for 

expenses incurred in this case after August 18, 2004. 

10) Class counsel shall be paid their attorney fees and expenses from the Class 

pursuant to their contingency fee contracts with the class representatives and the 

common fund doctrine; a payment of 25% of the aggregate value of the common 

fund, which consists of the Section 2 benefits wrongfully withheld, the courtordered attorney fees with lodestar multiplier and expenses paid to the Class by 

Defendant, pre- and post-judgment interest on the Section 2 Severance Benefits 

wrongfully withheld, and court costs; and this payment fairly compensates 

counsel for their work and results, and protects the interests of the Class to the 

greatest extent possible. 

11) Incentive awards to the two class representatives are appropriate; and the 

amount of Ten Thousand ($10,000) to each is fair, reasonable, and warranted and 

shall be paid to Scott Dalesandro and Diane Noonan from the common fund of 

damages recovered by the Class. 

12) Accordingly, payments shall be made as follows: Defendant shall pay into the 

common fund the attorney fees, expenses and interest as set forth herein; then 

Plaintiffs’ counsel shall be paid 25% of the aggregate value of the common fund; 

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next, Plaintiffs’ counsel shall be reimbursed from the common fund for the 

expenses they advanced; then the Class shall pay from the common fund the two 

incentive awards to the class representatives; last, the common fund shall be 

distributed to each class member according to his or her pro rata share of the 

common fund as established by the amount of Section 2 severance benefits 

wrongfully withheld. 

13) The court costs of this litigation shall be paid by Defendant. 

14) There is no just reason for delay in the entry of judgment pursuant to Rule 

54(b) of the Federal Rules of Civil Procedure. 

Respectfully submitted, 

 s/Theresa L. Groh_________________ 

 Theresa L. Groh, Esq. (0029806) 

 John C. Murdock, Esq. (0063749) 

 Murdock Goldenberg Schneider & Groh, L.P.A. 

 35 E.7th Street, Suite 600 

 Cincinnati, Ohio 45202 

 Telephone: (513) 345-8291 

 Facsimile: (513) 345-8294 

 Trial Attorneys for Plaintiffs 

 

 CERTIFICATE OF SERVICE

 I hereby certify that on February 21, 2005 I electronically filed the foregoing with the 

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

following: Grant Spencer Cowan, Esq., Frost Brown Todd, LLC, 2200 PNC Center, 201 East 

Fifth Street, Cincinnati, Ohio 45202-5715 and Mildred Bennett Wells, Esq., McGuire Woods, 

LLP, One James Center, 901 East Cary Street, Richmond, VA 23219-4030, and I hereby certify 

that I have mailed the document by United States Postal Service to the following non CM/ECF 

participants: W. Carter Younger, Esq. and James P. McElligott, Esq., McGuire Woods, LLP, 

One James Center, 901 East Cary Street, Richmond, VA 23219-4030. 

 

 s/Theresa L. Groh 

 Theresa L. Groh 

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