IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SCOTT D. DALESANDRO and DIANE :

NOONAN, on behalf of themselves and :

others, :

:

Plaintiffs, :

: Case No. C-1-01 109

vs. :

: Judge Sandra S. Beckwith

INTERNATIONAL PAPER COMPANY, :

:

Defendant. :

DEFENDANT’S RESPONSE TO PLAINTIFFS’ REPORT ON THE RESULTS OF 

THE NOTICE TO THE CLASS FOR ENTRY OF FINAL JUDGMENT 1

Defendant International Paper Company submits its response to Plaintiffs’ Report 

on the Notice to the Class for Entry of Final Judgment and shows this Court the 

following:

I. Class Members’ Corrections and IP’s Responses

Plaintiff asserts that fourteen employees submitted objections to the amount of 

severance pay contained in their individual Exhibit A notice based upon the weekly 

salary or credited years of service utilized in this calculation. Plaintiff further asserts that 

Defendant did not respond to any of these objections as provided by the Court’s Order. 

According to IP’s records, it received twenty-one letters from employees objecting to 

either the weekly pay or the credited years of service for their severance calculation. 

Two of these twenty-one letters also claimed entitlement to enhanced pension benefits 

based on the claimed years of service. IP had responded in writing to nineteen of these 

 

1 Counsel for International Paper attempted to file this document on September 16, 2004 over 

several hours, but there were technical difficulties with the Court's website. Therefore, the 

document is being filed today, and opposing counsel has no objection.

Case 1:01-cv-00109-SSB Document 73 Filed 09/17/2004 Page 1 of 7
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twenty-one letters at the time of the filing of Plaintiffs’ report, and has of this date issued 

the final two letters to the remaining employees, Raleigh Bruce and Hocutt Phillips. Both 

Mr. Bruce and Mr. Phillips had claims regarding additional years of service which took 

significant time to research and verify. Copies of each of the letters received and IP’s 

responses are attached in alphabetical order as Exhibit A hereto.2 In addition, in its 

review of these letters in preparation of this response, IP identified three letters in which 

it overlooked and therefore failed to specifically respond to Class Member objections to 

weekly pay or years of service: Rick Bernard, Kenneth Kaup, and Mary Louden. As a 

result IP issued amended responses to these three individuals which are included in the 

attached responses.

IP also received numerous letters from Class Members claiming vacation pay and 

reimbursement for COBRA premiums, but who had no dispute with the weekly salary or 

years of service utilized to calculate their severance payment. Copies of all letters 

received and IP’s responses are attached in alphabetical order as Exhibit B.

3

 The Court 

has ruled that the employees are not entitled to vacation pay. As stated in IP’s responses, 

it is also IP’s position, which Plaintiffs have not disputed, that Class Members are not 

eligible for claimed COBRA benefits. 

Defendant is willing to discuss any remaining disputes which may exist as to any 

of the attached individual responses or corrections. 

II. Eligibility for “Flex Six” Pension Enhancement

Plaintiffs assert in addition to the employees identified by IP in Exhibit A to the 

Class Notices sent to Class Members, that three additional employees should qualify for 

 

2

 Exhibit A is broken up into three parts due to the volume.

3 Exhibit B is broken up into seven parts due to the volume of these letters and responses. 

Case 1:01-cv-00109-SSB Document 73 Filed 09/17/2004 Page 2 of 7
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the Flex Six pension enhancement based on their age and years of service. These 

employees include: Raleigh Bruce, Michael Meyer, and Timothy Thompson. IP agrees 

that Mr. Bruce and Mr. Meyer are eligible for Flex Six benefits with additional credited 

years of service, and has advised each of their eligibility in writing, with attached 

amended “Exhibit As” and updated pension information. In addition, IP has determined 

that Hocutt Phillips, with his additional credited years of service, is also eligible for Flex 

Six benefits. Mr. Thompson, however, is not eligible for Flex Six benefits, and was 

advised of this in response to his letter. 

III. Estimated Future Flex Six Benefits

IP objects to Plaintiffs’ request to include estimated future pension benefits in the 

common fund for the purpose of determining attorneys’ fees, and requests the Court to 

exclude these benefits. While Plaintiffs’ counsel has submitted a lengthy analysis by 

economists opining on the enhanced value of pensions for a group of twenty Class 

Members, these amounts are speculative and the submitted report is unsupported and 

self-serving. These pension amounts will necessarily vary over the years and cannot be 

determined with any reasonable amount of certainty because they are dependent upon 

numerous factors, including when each of the individual Class Members retires. 

Defendant should not be held to the unsubstantiated “guesstimates” of potential future 

pension benefits made in the Plaintiffs’ report. Defendant should also not be held to the 

results of this post-judgment report which it has not had an opportunity or time to review, 

analyze, or refute, or to depose the economists regarding their basis and method for 

calculation. 

Case 1:01-cv-00109-SSB Document 73 Filed 09/17/2004 Page 3 of 7
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In addition, this report is clearly insufficient under the requirements of the Federal 

Rules, as it fails to meet the requirements of Fed. R. Civ. P. 26(a)(2)(B). Plaintiffs have 

failed to submit any qualifications or background for these “experts,” and the report fails 

to identify the information or documents on which the economists relied, or to explain the 

basis for their opinions or calculations. The report should accordingly be rejected as 

without foundation or relevance in this action, and the estimated future pension benefits 

stated therein should not be included in the common fund. 

IV. Prejudgment Interest

Defendant incorporates by reference and reasserts its objections to Plaintiff’s

proposed calculation for prejudgment interest on severance payments from February 17, 

2001 and on pension benefits from March 1, 2001 for the reasons set forth in its response 

to Plaintiff’s Motion for Attorneys’ Fees, Expenses, Interest, and Incentive Awards still 

pending before the Court. (See Def.’s Resp. at pgs. 27-28.) 

Defendant further objects to the Plaintiffs’ request for prejudgment interest on the 

payment of pension benefits on two additional grounds: 1) the estimated prejudgment 

interest by the economists hired by Plaintiffs is speculative, unsupported, and deficient 

and inadmissible under the Federal Rules as set forth above; and 2) because these benefits 

are not currently owing or due, and interest may not begin to run until Defendant has 

breached any obligation to pay such benefits. Defendant has at all times taken the 

position based on the terms of its Retirement Plan that eligible Class Members cannot 

start retirement benefits until after the end of his or her employment with Smart Papers. 

This position is clearly stated in the Class Notice issued in this action. Since no payment 

is currently due to the Class Members, no breach has occurred to date, and therefore no 

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interest or damages have accrued. Defendant has agreed that should the judgment in this 

action be upheld on appeal, that it will recalculate and pay any and all pensions due under 

the Flex Six pension enhancement policy following the individual’s retirement from 

employment and pursuant to this policy. Since the purpose of prejudgment interest is to 

provide compensation to the winning party for the delay in obtaining his or her funds, no 

interest should be charged on funds that the Plaintiffs will only become entitled to in the 

future, and that cannot be determined with any reasonable amount of certainty until the 

actual retirement date of each eligible individual. 

V. Attorneys’ Fees

Defendant incorporates by reference and reasserts its objections to Plaintiff’s 

request for a multiplier and to Plaintiff’s requested fees and expenses for the reasons set 

forth in its response to Plaintiff’s Motion for Attorneys’ Fees, Expenses, Interest, and 

Incentive Awards still pending before the Court. (See Def.’s Resp. at pgs. 21-24.) These 

objections include, but are not limited to: the excessiveness/unreasonableness of the 

hourly rates of Plaintiffs’ counsel; the underutilization of associates/lower hourly rate 

attorneys for research and routine work; duplication of work by attorneys; vagueness; and 

block-billing. Defendant’s objections to Plaintiffs’ Supplemental Motion for Attorneys’

Fees and Expenses are set forth in its separate response thereto, filed with the Court on 

the same date as the instant response.

VI. Class Representative Incentive Awards

Defendant incorporates by reference and reasserts its objections to Plaintiff’s 

request for incentive awards for the class representatives, Scott Dalesandro and Diane 

Noonan, for the reasons set forth in its response to Plaintiff’s Motion for Attorneys’ Fees, 

Case 1:01-cv-00109-SSB Document 73 Filed 09/17/2004 Page 5 of 7
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Expenses, Interest, and Incentive Awards still pending before the Court. (See Def.’s 

Resp. at pgs. 29-30.)

Respectfully submitted,

INTERNATIONAL PAPER CO.

By: s / Michael Roberts__________

 

COUNSEL FOR DEFENDANT

INTERNATIONAL PAPER CO.

Michael A. Roberts (OH Bar No. 0047129)

 Graydon Head & Ritchey, LLP

1900 5th 3rd Center

511 Walnut Street

Cincinnati, Ohio 45202

(513) 629-2799

W. Carter Younger (VSB 01147)

(Admitted Pro Hac Vice)

James P. McElligott, Jr. (VSB 014109)

(Admitted Pro Hac Vice)

McGuireWoods LLP

One James Center

Richmond, VA 23219

(804) 775-4363

Case 1:01-cv-00109-SSB Document 73 Filed 09/17/2004 Page 6 of 7
CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of September 2004, a true and complete copy 

of this document was delivered via electronic filing to Counsel for Plaintiff, Theresa L. 

Groh, Esq., and John C. Murdock at Murdock, Goldenberg, Schneider & Groh, L.P.A., 

700 Walnut Street, Suite 400, Cincinnati, Ohio, 45202.

s/ Michael A. Roberts

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