United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 4, 2011

*

Decided March 15, 2011

Before

WILLIAM J. BAUER, Circuit Judge

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09-8019

IN RE:

LOCKHEED MARTIN

CORPORATION, et al.,

Defendants-Petitioners,

No. 09-8022

IN RE:

ANTHONY ABBOTT, et al.,

Plaintiffs-Cross-Petitioners,

Petition for Permission to Appeal from the

Southern District of Illinois.

No. 06-C-701-MJR

Michael J. Reagan, Judge.

Petition for Permission to Appeal from the

Southern District of Illinois.

No. 06-C-701-MJR

Michael J. Reagan, Judge.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

 After examining the briefs and the record, we have concluded that oral *

argument is unnecessary. Thus, the petitions are submitted on the briefs and the record.

See FED. R. APP. P. 34(a)(2).
Nos. 09-8019 & 09-8022 Page 2

O R D E R

Anthony Abbott, Eric Fankhauser, Lloyd DeMartini, Jack Jordan, and Dennis

Tombaugh (the “plaintiffs”) all participated in retirement plans offered by Lockheed

Martin Corporation and Lockheed Martin Investment Management Company

(“Lockheed”). The plaintiffs sued Lockheed on behalf of themselves and a purported class

of plan participants, alleging that they were entitled to relief under the Employee

Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., for breaches of fiduciary

duty committed by Lockheed. The district court granted partial summary judgment for

Lockheed, leaving for trial three of the plaintiffs’ fiduciary breach theories. A short time

later, the court concluded that only two of the plaintiffs’ three remaining theories were

appropriate for class treatment. It certified two plaintiff classes under Federal Rule of Civil

Procedure 23(b)(1) – one representing those who had participated in Lockheed’s Salaried

Savings Plan, and the other composed of people who had been part of Lockheed’s Hourly

Savings Plan. Each class advanced both of the fiduciary breach theories that the district

court had deemed proper for class treatment. The district court denied the plaintiffs’

request for class certification with respect to the third of its theories that had survived

summary judgment.

Invoking Federal Rule of Civil Procedure 23(f), Lockheed asks this court to accept an

appeal from the district court’s decision granting class certification, and the plaintiffs

similarly cross-petition for review of the decision to deny class treatment as far as their

third theory of fiduciary breach was concerned. We suspended proceedings on both

petitions until we had resolved the cases consolidated as Spano, et al. v. The Boeing Co., et

al.v, Nos. 09-3001 & 09-3018, 2011 WL 183974 (7th Cir. Jan. 21, 2011), and Howell v. Motorola,

Inc, et al., Nos. 07-3837 & 09-2796, 2011 WL 183966 (7th Cir. Jan. 21, 2011). With those

decisions now issued, we can turn to the parties’ pending petitions.

Because the district court’s class certification determinations in this case raise issues

substantially similar to those resolved in Spano and Howell, we conclude that additional

proceedings in the district court are necessary on the question of class certification. We

therefore GRANT the defendants’ petition, VACATE the district court’s class certification

order, and REMAND for further proceedings. The plaintiffs’ cross-petition is DENIED. On

remand, both sides will have the opportunity to present additional arguments on issues

related to class certification in light of our decisions in Spano and Howell, and the district

court should resolve any dispute in a manner consistent with those cases.