IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

In Re: 

MOTOROLA SECURITIES LITIGATION No.: 03 C 00287 

Judge Rebecca R. Pallmeyer 

MEMORANDUM IN OPPOSITION TO LEAD PLAINTIFF’S 

MOTION FOR DISTRIBUTION OF THE SETTLEMENT FUND

Approximately 76,954 participants in the Motorola, Inc. 401(k) Profit Sharing Plan (the 

“Plan”) purchased 21,113,303 shares of Motorola, Inc. (“Motorola”) common stock from 

February 3, 2000 through May 14, 2001 (the “Class Period”) as an investment option in their 

individual retirement accounts. These active and retired Motorola employees suffered the same

damages as did other Class Members due to the allegedly false and misleading statements made 

by Motorola and several of its officers and directors during the Class Period. Accordingly, the 

Plan brings this Claim on behalf of all damaged participants, opposing Lead Plaintiff’s Motion 

for Distribution of the Settlement Fund, and requesting that the Court enter an order allowing the 

Plan participants to share in the Settlement Fund. 

I. PROCEDURAL BACKGROUND

This litigation is the result of 18 separate class action claims that were either filed in or 

transferred to this Court and consolidated under the caption above. The consolidated Class 

Action Complaint (the “Complaint”) filed on October 10, 2003 alleges that Defendants issued 

materially false and misleading press releases concerning Motorola’s business with Turkish 

wireless provider Telsim, overstated Motorola’s business results for five quarters, and failed to 

disclose certain material information concerning Motorola’s business with and financing to 

 

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Telsim during the Class Period – February 3, 2000 through and including May 14, 2001 – all in a 

scheme to artificially inflate the value of Motorola securities. The Complaint further alleges that 

Class Members purchased Motorola securities during the Class Period at artificially inflated

prices due to Defendants’ dissemination of materially false and misleading statements and 

omissions of material facts regarding Motorola in violation of Sections 10(b) and 20(a) of the 

Securities and Exchange Act of 1934, as amended (the “Securities and Exchange Act”), and Rule 

10b-5 promulgated thereunder. (Stipulation Of Settlement ¶¶ A-D).1

On March 21, 2005, this Action was certified on behalf of a class consisting of: 

[A]ll persons who purchased publicly traded Motorola, Inc. 

common stock or certain registered debt securities during the 

period from February 3, 2000 through May 14, 2001 and who 

allegedly were damaged thereby. Excluded from the Class are 

Defendants herein, members of the Individual Defendants’ 

immediate families, any subsidiary, affiliate, or control person of 

any such person or entity, the officers of Motorola and the legal 

representatives, heirs, successors or assigns of any such excluded 

party. 

(Docket Entry 113). 

After over four years of litigation, the parties agreed to settle the dispute for 

$190,000,000.00 in cash. On May 30, 2007, the Parties filed a Stipulation of Settlement and the 

Court approved the settlement and entered judgment on September 7, 2007. See (Docket Entries 

530-532). 

Pursuant to Paragraph 8(b) of the Stipulation of Settlement, the Plan submitted a Proof of 

Claim to the Claims Administrator on November 6, 2007. (LP Memo. in Supp., Ex. 1).2

 Lead

Plaintiff responded on April 9, 2008 stating that it would advise the Claims Administrator to 

deny the claim because: (1) the Plan is an “affiliate” and is therefore excluded from the Class; 

 

1

 The Parties previously filed the Stipulation of Settlement on May 30, 2008. (Docket Entry 530). 

2

 Lead Plaintiff’s Memorandum in Support of Its Motion for Distribution of the Settlement Fund (Docket

Entry No. 536) shall be cited as (LP Memo. in Supp. at p. __). 

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(2) Plan participants did not purchase Motorola common stock; (3) the Plan’s damages claim was

imbalanced; and (4) the Plan’s damages claim failed to capture consistent transaction 

information throughout the Class Period. (LP Memo. In Supp. pp. 5-12). The Plan submitted a 

timely response on April 29, 2008 addressing the issues raised in Lead Plaintiff’s letter, and the 

Administrator again rejected the claim on June 30, 2008. (LP Memo. in Supp., Ex. 3-4). 

On July 21, 2008, the Plan’s counsel, Vedder Price P.C., sent a notice of contest of the 

Claims Administrator’s June 30, 2008 rejection of the Claim and requested review by the Court 

pursuant to Paragraph 8(f) of the Stipulation of Settlement. (LP Memo. in Supp., Ex. 5). On 

September 2, 2008, Lead Plaintiff filed its Motion for Distribution of the Settlement Fund and 

submitted the Claim to the Court for review as part of its Motion, arguing that the Court should 

reject the claim. (LP Mem. in Supp. at p. 5). By Order dated September 11, 2008, the Court 

ordered the Plan to submit its opposition to Lead Plaintiff’s Motion by October 10, 2008.

(Docket Entry 543). 

II. THE PLAN

The Plan is an individual account plan designed to comply with Section 404(c) of 

ERISA. As such, the Plan grants participants sole control over the funds in their individual 

accounts, and allows participants the opportunity to choose, from a broad range of investment

alternatives, the manner in which assets in their accounts are invested. (Forsberg Aff. ¶ 7, Plan § 

4.5).3

 The Motorola, Inc. 401(k) Profit Sharing Trust (the “Trust”) was established to receive, 

 

3

 The Affidavit of Sheila A. Forsberg (with attached Exhibits) is attached as Attachment 1 to this

Memorandum and shall be cited as (Forsberg Aff. ¶___). The Plan document was previously filed in the

ERISA Action with several redactions apparently made pursuant to this Court’s Protective Order entered

in that case. Accordingly, the Plan document is attached as Exhibit A to the Forsberg Affidavit and 

includes these same redactions. It shall be cited as (Plan § ___). The applicable Trust document for the 

Class Period is attached as Exhibit B of the Forsberg Affidavit and shall be cited as (Trust § ___). 

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hold, invest and dispose of Plan assets through its Trustee (“Northern Trust” or the “Trustee”), 

including contributions made by plan participants to the Plan. (Plan § 1.40; Trust Art. II, § 1). 

During the Class Period, Plan participants could choose from several investment

alternatives, including the Motorola Stock Fund (the “Fund”), which is a unitized employer stock 

fund that allows participants to acquire Motorola common stock. (Forsberg Aff. ¶¶ 8-9). The 

Fund aggregates and nets daily trades made by participants before purchasing or selling 

Motorola common stock and allocating to participant accounts. Approximately 99% of the 

Fund’s assets are held in Motorola common stock. The other 1% is invested in short-term cash 

reserves to provide liquidity for daily trading by participants, participant loans, and distributions. 

Participants purchase “units” of the Fund and acquire a pro rata interest in the Motorola common 

stock held by the Fund.4

 Participants have investment control and voting rights over the amount 

of Motorola common stock allocated to their accounts. (Forsberg Aff. ¶¶ 11-13). The Plan 

document provides that: 

Each Participant shall be entitled to direct the manner in which the 

shares (including fractional shares) of Motorola, Inc. common 

stock in his account in the Motorola Stock Fund are to be voted. 

The Trustee shall vote such shares in accordance with the 

directions of the Participants....The Corporation will distribute

proxy materials to all Participants who have an account balance in

the Motorola Stock Fund prior to each stockholders’ meeting at the 

same time it distributes such materials to all other stockholders. 

(Plan § 4.1).5

 

4

 When a Plan participant elects to receive a distribution from the Motorola Stock Fund, for example, 

upon retirement, the participant can elect to receive cash equal to the value of his account or the 

equivalent whole number of shares of Motorola common stock plus cash for any fractional shares,

determined based on the share price in effect on the distribution date. (Forsberg Aff. ¶ 13). 

5

 Motorola has no control over the voting of shares allocated to participant accounts for which the 

participants have supplied no voting directions. For all such shares, the Trustee votes “proportionally in

the same manner as the Trustee votes shares as to which the Trustee has received voting instructions.” 

(Plan § 4.1). The Trustee also votes all fractional shares owned by participants to the extent possible to

reflect the voting direction of the participants. (Plan § 4.1). 

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The Profit Sharing Committee (the “Committee”) administers the Plan. The Committee 

is required to carry out its duties under the Plan and the Trust “solely in the interests of the [Plan] 

[p]articipants.” (Plan § 7.2). Although the Committee has the authority and discretion to 

“control and manage the operation and administration of the Plan,” the participants retain sole

control over the investment of the funds in their accounts, including any investment in the 

Motorola Stock Fund. The Plan delegates responsibility to the Manager of Retirement Benefits 

Administration to act as the party responsible for ensuring that the investment instructions of 

individual participants are followed. (Plan § 7.11). Motorola’s Board of Directors (the “Board”)

does not control the day-to-day administration of the Plan or the investment of participant funds. 

The Board’s role is limited to the appointment and removal of the members of the Committee. 

(Plan § 7.1). 

III. ARGUMENT 

The Court should deny Lead Plaintiff’s Motion and allow the over 76,000 affected Plan 

participants to participate in the Settlement Fund. Contrary to Lead Plaintiff’s position: (1) the 

Plan and (more importantly) its participants are not “affiliates” excluded from the Class; (2) Plan 

participants purchased publicly traded Motorola common stock; (3) the Plan submitted data 

demonstrating the purchases made by Plan participants in a manner such that a fair and equitable

distribution can be made; and (4) Howell v. Motorola, Case No. 03 C 5044 (the “ERISA 

Action”) does not preclude participants from being Class Members in this case or from sharing 

in the Settlement Fund. Plan participants suffered the same losses in the same manner as did any 

other Class Member, and to deprive them of their pro rata share of the Settlement Fund would be 

inequitable and discriminatory in favor of other Class Members. 

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A. The Plan and Its Participants Are Not Affiliates 

The Plan brings the Claim on behalf of Plan participants who purchased Motorola 

common stock by selecting the Motorola Stock Fund as an investment option in their individual 

retirement accounts during the Class Period. Lead Plaintiff rejected the Claim, arguing that the 

Plan is an “affiliate” of Motorola and therefore its participants are excluded from the Class.

Although the term “affiliate” is not used or defined in the Stipulation of Settlement, Lead 

Plaintiff applies a definition of this term found in Securities and Exchange Act Rule 12b-2, and a 

related definition of the term “control” found in the same Rule. See (LP Memo. in Supp. at pp.

5-8). In conclusory fashion, Lead Plaintiff claims that because the Plan gives the Board 

authority to appoint and remove members of the Committee, plan participants are excluded from 

the Class because the Plan is “controlled” by Motorola. (LP Memo. In Supp. at pp. 6-7). 

Lead Plaintiff’s argument fails. The Complaint alleges violations of the anti-fraud 

provisions of the Securities and Exchange Act and seeks to compensate individuals who 

purchased Motorola stock at allegedly inflated prices. Therefore, the issue in this case is not 

whether the selection of Committee members is “controlled” by Motorola, or whether the Plan is 

an affiliate of Motorola for that purpose. Instead, the issue is whether Motorola exercises control

over the investment of the assets held in participant accounts such that the Plan can be 

considered an affiliate of Motorola for purposes of buying and selling Motorola common stock. 

Although the Board has the power to appoint and remove the members of the Committee, neither 

the Committee nor the Plan controls the acquisition and disposition of Motorola common stock. 

To the contrary, the Plan’s structure allows participants to direct the investment of the funds in 

their accounts from a variety of investment options, and the Plan and its Trustee must follow the 

participants’ directions. Thus, particularly in this case, where the core claim concerns the

decision to purchase or sell Motorola common stock, Motorola cannot be said to control the 

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Plan; and the Plan cannot be said to be an affiliate of or be controlled by Motorola for purposes 

of purchasing or selling Motorola common stock. 

The Securities and Exchange Commission’s (“SEC”) guidance on the issue of “affiliate”

status in the employee benefit plan context supports the Plan’s position. When considering selfdirected individual account plans holding employer stock, the SEC has been consistently willing 

to look through the employee benefit plan and determine the application of the definition of 

affiliate based on the status of the participants, rather than the status of the plan or trustee. 

Conextant Systems, Inc., 1998 WL 823726, at *9 (SEC Ltr. Nov. 27, 1998); accord Charles 

Schwab Corp., 1993 WL 214828, at *6 (SEC Ltr. March 1, 1993); Rockwell Int. Corp., 1996 

WL 700547, at *7 (SEC Ltr. Dec. 6, 1996); Terminal Data Corp., 1992 WL 217852, at *2 (SEC 

Ltr. Sept. 3, 1992). Following the SEC’s reasoning, where the claims relate to the acquisition 

and disposition of Motorola common stock, as they do here, the relevant inquiry is whether the 

Plan participants are “affiliates” that control or are controlled by Motorola. 

Here, the participants who invested in Motorola common stock are not affiliates of

Motorola, and in fact Lead Plaintiff does not even attempt to argue that they are. The Court 

should not exclude the participants from the Class simply because their claims have been brought 

by the Plan as their representative.6

 The Plan can best represent participants because it has

access to the data and transaction information to prove participants’ claims. See Kurzweil v. 

Philip Morris Companies, Inc., 2001 WL 25700, at *4 (S.D.N.Y. 2001) (noting that there is no 

valid objection to having claims of participants brought by “[f]und trustees who have the 

documentation to prove them”). 

 

6

 To the extent that any of the Plan participants are considered affiliates, such as Motorola’s officers and

directors, the Court can exclude the officers and directors from participation in the Settlement Fund. 

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Moreover, the purpose and public policy behind the Securities and Exchange Act

supports the Plan’s position. See Santa Fe Industries, Inc. v. Green 430 U.S. 462, 477 (1977) 

(explaining that the “fundamental purpose” of the Securities and Exchange Act is “full 

disclosure” to investors). Lead Plaintiff brought this action under the anti-fraud provisions of the 

Act seeking to compensate individuals who purchased Motorola stock at inflated prices due to

Defendants’ allegedly illegal conduct. The exclusion of “affiliates” from the Class was no doubt 

intended to exclude any related company, director, officer, or other key employee from sharing 

in any recovery because these persons and entities allegedly had access to the material, nonpublic information at issue, or had knowledge of the allegedly misleading nature of the 

information disseminated by Motorola. However, the Plan participants, who are active and 

retired employees of Motorola, were in the same position as the average investor on the street 

with regard to their purchase of Motorola common stock and thus should not be precluded from 

sharing in the Settlement Fund. 

Furthermore, the Court’s rulings in the ERISA Action do not have anything to do with 

this case. The definition of affiliate under the Securities and Exchange Act and the definition of

fiduciary under ERISA are parts of two entirely separate statutory regimes that regulate two 

different types of relationships. The fact that the Court held that the individual defendants (at the 

pleading stage) had a fiduciary duty to appoint or monitor members of the Committee does not 

rationally relate to Plaintiff’s argument that the Plan is an affiliate of Motorola for purposes of

purchasing Motorola common stock. 

B. Plan Participants Purchased Publicly Traded Motorola Common Stock 

During the Class Period

Plan participants purchased Motorola common stock during the Class Period. In addition 

to claiming that the Plan is an affiliate, Lead Plaintiff seeks to exclude Plan participants from the 

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Class by claiming that they did not purchase “publicly traded” Motorola common stock. In 

support of its position, Lead Plaintiff claims that Plan participants only purchased ownership 

interests in the Fund (not Motorola common stock), and that “the Plan was the beneficial 

purchaser of this Common Stock.” (LP Memo. in Supp. at pp. 8-9). Lead Plaintiff is wrong on 

both counts. 

First, participants who elected to participate in the Motorola Stock Fund purchased 

publicly traded Motorola common stock for purposes of this case. When a participant selected

the Fund as an investment alternative, they purchased “units” of the Fund, and therefore owned a 

pro rata share of the amount of the Motorola common stock shares held by the Fund. When the

value of Motorola common stock went down or up, Plan participants’ accounts went down or up 

in an amount approximately equal to the change in share price times the number of shares 

allocated to their account. (Forsberg Aff. ¶¶ 11-12). Thus, they were harmed in the same

manner as other Class Members who did not purchase shares through a unitized fund. 

Second, the Plan participants (not the Plan) were the “beneficial owners” of the Motorola 

common stock. Rule 13d-3 of the Securities and Exchange Act defines “beneficial owner” as 

“any person who, directly or indirectly, through any contract, arrangement, understanding, 

relationship, or otherwise has or shares: [(1)] voting power which includes the power to vote, or 

to direct the voting of, such security; and/or, [2] investment power which includes the power to 

dispose, or to direct the disposition of, such security.” Plan participants, as purchasers of units of 

the Motorola Stock Fund, owned a pro rata amount of the Motorola common stock held by the

Fund. Participants retained investment control (including the power to direct the Trustee to buy, 

sell, or hold their shares) and full voting rights over the shares allocated to their individual 

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accounts. At all relevant times, the participants remained the “beneficial owners” of the 

Motorola common stock. 

As the Plan explained in its Claim submissions, the Southern District of New York

addressed this exact issue and held that a participant’s beneficial ownership of securities through 

a unitized employer stock fund makes the participant a “purchaser” of the security held by the 

fund. See Kurzweil, 2001 WL 25700. In Kurzweil, plan participants purchased units of a similar 

unitized employer stock fund. The plan trustees objected to the exclusion of the participants 

from the class, claiming that they purchased employer stock through the fund; retained beneficial 

ownership, including voting rights; and suffered the same damages that direct purchasers did. 

The court held in relevant part: 

If the would-be claimants suffered damage that is just as real and

measurable, and arises from the same source, as the damage 

suffered by Class Members, they would seem to have every right 

to be included in that group, even if their inclusion diminishes the 

share of the settlement fund available to open market purchasers 

and sellers. Nor does it seem material that not every instruction to 

buy or sell by a Fund investor necessarily resulted in an open 

market transaction. Once again, the damage that was suffered by 

those to whom or from whom shares were simply reallocated

within the Fund was identical to the damage to those who bought 

and sold in the open market, and arose from the same source. 

Those who invested through the Fund bought and sold, whether the 

PM stock that underlay their units came from or went to another 

Fund investor, or whether that stock was bought from or sold to 

outsiders. 

Id at *3; see Great Neck Appreciation Investment Partnership v. Pricewaterhouse Coopers, 212 

F.R.D. 400, 414 (E.D. Wis. 2002) (following the reasoning in Kurzweil and stating that 

beneficial owners of publicly traded stock had a “substantial stake in the settlement”). 

Lead Plaintiff attempts to distinguish Kurzweil, arguing that the class definition did not

refer to “publicly traded” stock and the plaintiffs did not file a separate ERISA claim. These

arguments are specious. There is no indication from the Kurzweil opinion or any related 

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document that the class definition was not limited to publicly-traded stock, nor does it make a

difference. Just as in Kurzweil, Lead Plaintiff argues that a Plan participant’s ownership in a 

unitized employer stock fund does not make them a purchaser of securities for purposes of class 

membership. However, as explained above, the Plan participants were the beneficial owners of

the Motorola common stock with voting and investment power, and were thus subject to the 

same risk of loss as the other Class Members. Moreover, it makes no difference that the

participants in Kurzweil did not file a separate ERISA action. As discussed in Section III.D, the 

legal theories under the Securities and Exchange Act and ERISA are not mutually exclusive and 

this Court should not preclude Plan participants from recovering by forcing them to pursue only 

a potential remedy under ERISA. 

C. The Plan’s Damages Claim Is Not Deficient and a Distribution Can Be Made 

to Affected Participants 

The Plan has provided participant-level data detailing each purchase and sale of Motorola

common stock made by plan participants respecting their Plan accounts from July 1, 2000 

through May 14, 2001. Lead Plaintiff’s attempt to argue that the Plan’s calculations are 

“inconsistent” and “imbalanced” ignores that the Plan has provided data specifically describing

the identifiable trades at the participant-level for approximately ten and one half months of the 

Class Period. (Forsberg Aff. ¶¶ 23-24; LP Memo. in Supp., Ex. 1). Lead Plaintiff and the 

Claims Administrator have yet to explain what is wrong with this data or why it fails to prove the 

participants’ claims for the relevant time period. 

With regard to Lead Plaintiff’s claim that the Plan’s data is inconsistent, the Plan

submitted Plan-level data for the period covering February 3, 2000 through June 30, 2000

because participant-level data is not available for this period due to unavoidable data limitations. 

From February 3, 2000 through May 17, 2000, participant-level data was maintained in an 

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outdated SunGard system and cannot be accessed in a cost-effective manner. (Forsberg Aff. ¶

16). 

Effective May 18, 2000, the Plan transferred its participant-level recordkeeping to 

Northern Trust Retirement Consulting, L.L.C., and is now administered by Hewitt Associates.7 

(Forsberg Aff. ¶ 15). To effectuate the transition from the SunGard software to the Northern

Trust system, the Plan imposed a “blackout” period from May 17, 2000 through June 30, 2000. 

(Forsberg Aff. ¶ 18). Although participants could not change their investment elections during

this period, participants continued to make contributions and purchased units of the Motorola 

Stock Fund according to their pre-existing elections put into place prior to the blackout period.

The Trustee continued to make open-market purchases on behalf of Plan participants during this 

period, but no data exists to show the specific shares allocated to participant accounts during the 

blackout dates. Thus, the Plan submitted only the aggregate purchases and sales made by the 

Trustee during this period to approximate the amount of shares actually allotted to participant 

accounts. (Forsberg Aff. ¶ 19). 

The consequence of these unavoidable data limitations certainly should not be to exclude 

Plan participants entirely from the Class, or even to preclude them from recovering for this time 

period. It is undisputed that participants were in the market during the Class Period and 

purchased shares of Motorola common stock through the Motorola Stock Fund while the price of 

that stock was allegedly inflated. Even though data is not available for a portion of this period, 

the participants were no less damaged, and the Plan can allocate a portion of the Settlement Fund 

to participant accounts in a fair and adequate manner. For example, the Plan submitted Planlevel data for the aggregate amount of shares purchased during this period as of July 1, 2000 and 

 

7

 Northern Trust Retirement Consulting L.L.C. was subsequently purchased by and merged with Hewitt 

Associates. 

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can allocate a portion of the Settlement Fund on a proportionate basis according to relative 

participant ownership as of that date. 

Furthermore, Lead Plaintiff seeks to exclude the participants because of an alleged 

“imbalance” in the data submitted by the Plan. (LP Memo. in Supp. at pp. 9-10). Lead Plaintiff 

does not advance a consistent explanation or any backup data to explain the split-adjusted basis 

that caused the “imbalance.” Any “imbalance” between the Plan-level data and Lead Plaintiff’s 

calculation is the result of Lead Plaintiff’s attempt to compare and manipulate participant-level 

and Plan-level data. Lead Plaintiff combined these two data sets, but failed to take into account 

two factors: transaction aggregation and transaction delay. First, participant-level data and the

Plan-level data may not “balance” on a given day due to the aggregation of participant sales and 

purchases of Motorola common stock. The Trustee does not purchase shares in the open market

each time a participant purchases a unit of the Fund. Instead, the Trustee aggregates and nets 

purchases and sales to allow for daily trading and faster distributions, and only purchases or sells 

shares in the open market when the absolute number of the daily trades requires the Trustee to do 

so. (Forsberg Aff. ¶ 26). Nonetheless, the open-market purchases made by the Trustee during

the Class Period are directly related to the volume of participant trades during that same period. 

And, as explained above, the Plan can allocate these amounts to participants in a fair and 

reasonable manner. 

Second, Lead Participant also failed to account for the one-day delay between 

participant-level transactions and Plan-level transactions. When a participant directs the Plan to 

invest funds in the Motorola Stock Fund, the participant-level recordkeeping system reflects the 

transaction on the day it was submitted. However, the Plan-level data recordkeeping system will 

not reflect the transaction until the following day. Therefore, the amount of Motorola common

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stock held at the Plan-level will not balance with the amount of Motorola common stock 

allocated to participants on a given day due to this one-day delay. (Forsberg Aff. ¶ 27). 

Accordingly, the “imbalance” calculated by the Lead Plaintiff is at least partially explained by

these two factors not taken into account in the Lead Plaintiff’s split-adjusted calculation. 

Even assuming that there is an imbalance, Lead Plaintiff claims that the Plan submitted a

claim based on a number of shares that was 1,379,753.60 less than its own split-adjusted 

calculation. Thus, the Plan’s calculation is lower than Lead Plaintiff’s calculation. See (LP 

Memo. In Supp. at p. 10, note 6). The remaining Class Members would not be harmed, but 

would in fact receive a greater portion of the Settlement Fund due to the Plan’s lower

calculation. 

D. The ERISA Action Does Not Preclude Plan Participants From Sharing in the 

Settlement Fund 

Lead Plaintiff cites no authority for the proposition that this Court can preclude Plan 

participants from recovering in this action simply because they may be able to recover in the 

ERISA Action. The ERISA case is not an “alternative” to participation in the Settlement. The

ERISA Action has been brought under a legal theory and statutory regime that is distinct from 

the securities context here. Because these claims are brought under a distinct legal theory, there 

is no guarantee that the class members in that action will recover anything. It is inequitable for 

the Plan participants to be denied participation in the securities settlement simply because of the 

possibility of prevailing in a class action brought under a separate statutory regime with distinct 

causes of action and remedies. 

Furthermore, there is no evidence that the ERISA Action was the “intended” method of 

recovery for the Plan participants. (LP’s Mem. In Supp. p. 7). If the Parties had so intended, the 

Stipulation of Settlement would have simply provided that no Plan participants would be eligible 

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to share in the recovery with regard to the shares purchased for their individual Plan accounts. 

Of course, the documents do not so provide. The carve-out of the ERISA claims from the 

release in this case expressly acknowledges the possibility that class members who were also

Plan participants could also recover in the ERISA Action. There is no reason to believe that 

language was intended potentially to leave them with no recovery at all, and indeed is properly 

read to allow participants to share in the securities settlement and in any additional legal 

recovery under ERISA. 

It may be that the Plan participants’ recovery in the ERISA Action (if any) is limited to

some degree by the damages they receive as settlement proceeds in this case. But, this is not a 

question for the Court to address at this time and in this case. If this question is ever reached, it 

is one for the Court to address in the ERISA Action at the appropriate time. 

IV. CONCLUSION

For the foregoing reasons, the Court should deny Lead Plaintiff’s Motion for Distribution 

of the Settlement Fund and should Order the Claims Administrator to grant the Plan’s Claim.

Respectfully submitted,

MOTOROLA, INC. 401(k) PROFIT SHARING 

PLAN 

By: s/ Patrick W. Spangler 

One of Its Attorneys 

Michael G. Cleveland 

Charles B. Wolf 

Patrick W. Spangler 

Vedder Price P.C. 

222 North LaSalle Street, Suite 2600 

Chicago, Illinois 60601-1003 

(312) 609-7500 

Dated: October 10, 2008 

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CERTIFICATE OF SERVICE

The undersigned certifies that true and correct copies of the foregoing MEMORANDUM

IN OPPOSITION TO LEAD PLAINTIFF’S MOTION FOR DISTRIBUTION OF THE

SETTLEMENT FUND were served via electronic means through the Court’s electronic filing

system on October 10, 2008 to persons on the following service list: 

Lester L. Levy 

Wolf Popper LLP 

845 Third Avenue 

New York, New York 10022 

Allyn Z. Lite 

Lite DePalma Greenberg & Rivas, LLC 

Two Gateway Center, 12th Floor 

Newark, New Jersey 07102 

Attorneys for State of New Jersey and Co-Lead 

Counsel for Plaintiff Class 

John C. Massaro 

Arnold & Porter LLP 

555 Twelfth Street, N.W. 

Washington, DC 

Timothy F. Haley 

Seyfarth Shaw LLP 

131 S. Dearborn Street, Suite 2400 

Chicago, Illinois 60603 

Attorneys for Defendants 

Mark A. Stang 

Chuhak & Tecson 

30 S. Wacker Drive, Suite 2600 

Chicago, Illinois 60606 

Attorney for Edward A. Cox, Jr. 

Fay Clayton 

Robinson Curley & Clayron, P.C. 

300 South Wacker Drive, Suite 1700 

Chicago, Illinois 60606 

Liaison Counsel for Plaintiff Class 

By: s/ Patrick W. Spangler 

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