A. Rule 23(a)

1. Numerosity

Rule 23(a)(1) permits class certification only when “the class is so numerous that joinder of
all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no mystical number that satisfies
the numerosity requirement. Lengle v. Attorneys’ Title Guaranty Fund, Inc., 2002 WL 31163672,
*3 (ND. Ill. 2002); Markham v. White, 171 F.R.D. 217, 221 (N.D. Ill. 1997). The court is entitled
to make common sense assumptions when determining whether the class is so numerous that joinder
is impracticable. Rivera v. Grossinger Autoplex, Inc., 2000 WL 1280904, *3 (N.D. Ii. 2000).

To establish the numerosity of their proposed class, plaintiffs argue that the class contains
371,000 members, including 171,000 active fund participants and 200,000 retirees. But plaintiffs
fail to submit any evidence to support this claim. While Rule 23 does not require plaintiffs to
produce precise numbers, some evidence of the number of class members must be shown. Allen v.
City of Chicago, 828 F.Supp. 543, 550 (N.D. Ill. 1993). Mere speculation does not suffice. Kohn
vy. Mucia, 776 F.Supp. 348, 352 (N.D. Ill. 1991).

In addition, plaintiffs’ proposed class cannot be ascertained by reference to objective criteria.
NOW v. Scheidler, 172 F.R.D. 351, 357 (N.D. Ill. 1997). In other words, the class definition is too
vague. Elliott v. Chicago Housing Authority, 2000 WL 263730, *4 (N.D. Ill. 2000), citing Alliance
to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977). Plaintiffs’ class definition does
not contain a time limitation to exclude members from the class by reason of the statute of
limitations. Nor does the class definition limit or distinguish the age of putative class members,
considering that the age of a participant determines whether prohibited reemployment rules apply.

Def. Res., Ex. 1 to Ex. A, at Art. IV, § 4.13(a)(2) & (3).


On January 28, 2003, the trustees announced that the amendments would be suspended
pending further study. The suspension was limited to changes relating to the definition of
“prohibited reemployment.” Trustees have continued to enforce all other amendments.

Il. Class Definition

Plaintiffs seek to certify a class consisting of:

employees or former employees of companies who are or were participating in

defendant Central States Funds and who have been or will be prevented from

working post retirement on the ground that they are violating the Funds so-called

Prohibited Reemployment rule.

Pl. Amend. Compl., { 13.
DISCUSSION
I. Class Certification Standard

Plaintiffs bear the burden of establishing the requirements for class certification. Retired
Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). Pursuant to Fed. R. Civ.
P. 23(a), plaintiffs must establish: “(i) the class is so numerous that joinder of all members is
impracticable; (ii) there are questions of law or fact common to the class; (iii) the claims or defenses
of the representative parties are typical of the claims or defenses of the class; and (iv) the
representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a). If plaintiffs establish all four elements of Rule 23(a), they must then satisfy one of the
subsections of Rule 23(b). Fed. R. Civ. P. 23(b). The court may look beyond the pleadings to
determine whether the requirements of Rule 23 have been met. Szabo v. Bridgeport Machines, Inc.,
249 F.3d 672, 677 (7th Cir. 2001). Failure to meet any one of the requirements of Rule 23(a) or (b)

precludes certification of the class. Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir.

1980).



Although the court may make common sense assumptions when determining numerosity,
plaintiffs provide no evidence to support their claim that there are 371,000 total fund participants.
Nor do they provide reason to assume that any putative class members were subject to an improper
application of the prohibited reemployment rules.

CONCLUSION

Because plaintiffs fail to establish numerosity, class certification must be denied. Harriston

v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993); Patterson v. General Motors Corp., 631

F.2d 476, 480 (7th Cir. 1980). The court need not consider the other criteria for certification.

July 16, 2003 ENTER:

SuZann@B. Conlon

United States District Judge


‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Nenagentns[SwanneB.Conton | Sei
CASE NUMBER 03 C 1010 DATE 7/16/2003

CASE HERMAN, et al. vs. CENTRAL STATES PENSION FUND, et al.

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
q@) a Filed motion of ( use listing in “Motion” box above.]
(2) o Brief in support of motion due __.
[€)) a Answer brief to motion due__. Reply to answer briefdue__-
(4) o Ruling/Hearingon__setfor__at
(5) a Status hearing[held/continued to] [set for/re-set for]on__setfor___—at__-
©) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—_setfor__—at___.
(7) o Trial[set for/re-set for]on__at
gg) O [Bench/Jury trial] [Hearing] held/continuedto__at
(9) im] This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCPA(m) OlLocal Rule 41.1 COFRCP41(a)(1) CMFRCP41(a)(2).

ao =f [Other docket entry] Plaintiffs’ motion for class certification [24-1] is denied. ENTER

MEMORANDUM OPINION AND ORDER.

ST

(ii) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required. number of notices
V | Notices mailed by judge’s staff.
Notified counsel by telephone, Ww Ld 7 2003
Docketing to mail notices. /
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Copy to judge/magistrate judge. mag n ‘enon
courtroom 00:$ He 91 nr eu nt
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initials ——= aS
ietig reat es



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RICHARD HERMAN, et al, ) D0Cke ren
) JUL
Plaintiffs, ) No.03C 1010 17 am
)
v. ) Suzanne B. Conlon, Judge
)
CENTRAL STATES SOUTHEAST & )
SOUTHWEST AREAS PENSION FUND, et al, )
)
Defendants. )
MEMO OPINION AND ORD:

Richard Herman, Daniel Paule, Larry Arwood, Dennis Helvey, William Rose, Michael
Krucker, Larry Whitmyer, and William Bohan (collectively, “plaintiffs”) bring this purported class
action against Central States Southeast & Southwest Areas Pension Fund (“Central States” or the
“fand”) and Fund Trustees/Plan Administrators Fred Gegare, Jerry Younger, Charles Whobrey, Ray
Cash, George Westley, Howard McDougall, Arthur Bunte, Jr., Tome Ventura, Gary Caldwell, and
Danie! Brutto (collectively, “trustees”) (Central States and trustees, collectively, “defendants”).
Plaintiffs claim violations of the Employment Retirement Income Security Act, 29 U.S.C. §§ 1001
ef seq. Plaintiffs move for class certification pursuant to Fed. R. Civ. P. 23.

BACKGROUND
I. Allegations in the Complaint

In considering a motion for class certification, the court does not consider the merits of the
case, but must accept all allegations in the complaint as true. Eiseny. Carlisle & Jacquelin, 417 US.
156, 177 (1974); Ries v. Humana Health Plan, Inc., 1997 WL 158337 (N.D. Til. 1997). Plaintiffs

are current or former employees covered by the defendant retirement fund. The fund is a multi-


employer pension created under an agreement and declaration of trust established in 1955. Pursuant
to collective bargaining agreements between plaintiffs’ employers, all plaintiffs are members and
participants in the fund, under which they accrue vested retirement benefits.

In 1985, the fund began offering enhanced early retirement benefits. All plaintiffs accrued
substantial early retirement benefits under the fund. In March 2002, the trustees implemented
amendments to the trust agreement, effective June 30, 2002. The amendments retracted applications
to retire and declined to authorize jobs that were previously permissible. In addition, the trustees
amended the fund to include more restrictive definitions and interpretations of language in the
preexisting prohibited reemployment rules. The meaning of the terms “industry,” “trade,” “craft,”
and “classification” became increasingly subjective.

The amendments required beneficiaries wishing to work after retirement to obtain job
approval in advance. The complaint alleges the approval procedure is unduly lengthy and responses
are not received in time to accept job offers. Further, the amendments offer no guidelines by which
participants or retirees can identify jobs that are acceptable under the plan. This creates a default
assumption that all jobs are prohibited, even though the plan does not actually prohibit all post-
retirement employment.

Under the prior rules, a retiree who was engaged in prohibited reemployment, according to
the fund, could avoid overpayments and suspension of pension and continue employment while
seeking a review of the reemployment determination. The amendments in issue eliminated this safe
harbor. Further, the amendments subjected the reemployment rules to the fund’s claims procedures.
The claims procedures may take a year or more to exhaust and fail to provide reemployment advice

and consent within a reasonable time.