UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

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BRUCE G. HOWELL, on Behalf of Himself

and a Class of Persons Similarly Situated,

Plaintiff,

v.

MOTOROLA, INC., ET AL.,

Defendants.

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No. 03 C 5044

Judge Rebecca R. Pallmeyer

MOTION OF STEPHEN G. LINGIS, DONALD L. SMITH AND PETER D. WHITE

TO INTERVENE AS PLAINTIFFS AND AS ADDITIONAL PROPOSED CLASS

REPRESENTATIVES AND FOR LEAVE TO FILE COMPLAINT IN INTERVENTION

Stephen G. Lingis, Donald L. Smith and Peter D. White (hereinafter “Intervenors”) hereby

move to intervene in this action as plaintiffs and as additional proposed class representatives under

Fed. R. Civ. P. 24(a)(2), (b)(2) and 23(d)(2), for leave to file their Complaint in Intervention, a copy

of which is annexed hereto as Exhibit A, pursuant to Fed. R. Civ. P. 24(c), and for other relief

described herein. In support of this Motion, Intervenors state as follows:

Introduction

1. Bruce G. Howell brought this action as the sole plaintiff in an ERISA class action

against Motorola, Inc. and other alleged fiduciaries of Motorola’s defined contribution retirement

plan, the Motorola, Inc. 401(k) Profit Sharing Plan (hereinafter the “Plan”). The current pleading

in the action, the Second Amended ERISA Complaint, filed October 15, 2004 (“Docket No. 8,

hereinafter referred to as the “Complaint”), alleges that Motorola and the other fiduciaries failed to

properly administer the Plan by concealing from participantsthe risks attendant to Motorola’s multibillion dollar loans to Turkish telephone company “Telsim” and by allowing participants to continue

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to invest their retirement monies in Motorola common stock when Motorola’s enormous exposure

and indebtedness relating to the Telsim loans rendered Motorola stock an imprudent retirement

investment. 

2. On September 30, 2005, the Court entered Judgment dismissing the Complaint, based

upon the Court’s Memorandum Opinion and Order of the same date (Docket Nos. 93-95). The Court

ruled that Plaintiff Howell released the claims asserted in the Complaint when he signed a certain

release form and accepted certain severance benefits upon termination of his employment with

Motorola. The Court further directed that Plaintiff Howell’s pending motion for class certification

“is stricken without prejudice.” Memorandum Opinion and Order at 14.

3. Howell appealed the dismissal of his Complaint. That appeal (No. 05-4141) is

pending, with briefing therein suspended pursuant Circuit Rule 33.

4. On October 19, 2005, after Howell noticed his appeal, a former participant in the

Plan, John W. Endsley, moved to intervene as a plaintiff and an additional class representative and

for leave to file a complaint in intervention (Docket No. 97).

5. By Memorandum Opinion and Order dated August 11, 2006 (Docket No. 168), this

Court denied Endsley’s motion to intervene on the ground that, as former participant in the Plan,

Endsley lacked standing to sue for breaches of fiduciary duty under Sections 502(a)(2) and 502(a)(3)

of ERISA, 29 U.S.C. §1132(a)(2) and (a)(3). Howell appealed from the denial of intervention. That

appeal was recently dismissed.

6. Intervenors are individuals who (1) were participants in the Plan during the period

of the breaches of fiduciary duty alleged in the Complaint, (2) who held Motorola common stock in

the form of the Motorola Stock Fund in their individual Plan accounts during the period of the

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breaches of fiduciary duty alleged in the Complaint, (3) who are current participants in the Plan,and

hold Motorola common stock, in the form of the Motorola Stock Fund in their individual Plan

accounts, and (4) who have not signed releases of the claims asserted in the Complaint. As current

participants, Intervenors have standing to sue, and the rationale for this Court’s denial of the

Endsley’s intervention motion has no application to Intervenors or the present motion. Similarly,

since Intervenors did not sign releases of the claims asserted in the Complaint when they left

Motorola’s employ, their claims are not subject to dismissal based on this Court’s ruling (Docket

Nos. 93-95) which dismissed Howell’s Complaint.

7. Intervenors’ retirement savings were diminished when Motorola and the other

defendants, in violation of their duties of prudence, permitted Intervenors’ individual accounts under

the Plan to hold Motorola common stock when Motorola stock was not a prudent investment for

retirement accounts, and when they failed to disclose to Intervenors and similarly situated Plan

participants adequate and accurate information concerning Motorola’s exposure because of its loans

to and dealings with Telsim. Intervenors thus have standing to assert the claims which have already

been asserted in the Complaint and in the proposed Complaint in Intervention (which is annexed

hereto in Exhibit A) on their own behalves and on behalf of a class of persons similarly situated. 

The Motion to Intervene Should Be Granted

8. Intervenors’ Motion to intervene as plaintiffs should be granted. First, this Court

retains jurisdiction to grant the relief requested by the Motion notwithstanding the Judgment

dismissing the Complaint which was entered on September 30, 2005. The district court retains

jurisdiction over a case even after a judgment of dismissal, e.g., Lorenzen v. Employees Ret. Plan

of Sperry & Hutchinson, 896 F.2d 228, 231 (7 Cir. 1990); Vollmer v. Publisher’s Clearing House, th

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 Rule 23(d)(2) provides in relevant part that “. . . the court may make appropriate orders

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. . . (2) requiring, for the protection of the members of the class or otherwise for the fair conduct

of the action, that notice be given . . . of the opportunity of members . . . to intervene and present

claims or defenses, or otherwise to come into the action. . . .”

The Advisory Committee Notes for the 1996 Amendments to Rule 24 specifically

mention the situation where a class member considers the current representation in the class

action to maybe inadequate. In such a situation, the Advisory Committee Notes concludes, that

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248 F.3d 698, 707 and note 7 (district court retains jurisdiction to decide motion to intervene), and

the Supreme Court has specifically held that a district court retains jurisdiction to grant a motion to

intervene filed by an absent class member after a judgment of dismissal. United Airlines, Inc. v.

McDonald, 432 U.S. 385, 394-95 (1977). See also 6 Moore’s Federal Practice § 24.21[2] (Matthew

Bender 3d ed.) (collecting cases permitting post-judgment intervention); Wright, Miller & Kane,

Federal Practice and Procedure: Civil 2d § 1916 and note 20 (same). This Court also retains

jurisdiction to decide the present motion notwithstanding the pendency of Howell’s appeal, as this

Court implicitly recognized when it denied Endsley’s motion during the pendency of the Howell

appeal. 

9. In its Memorandum Opinion and Order of September 30, 2005 (Docket Nos. 93-95),

the Court also ordered that Plaintiff Howell’s pending motion for class certification is stricken

without prejudice. As a result of the Judgment dismissing the Complaint, there is no representative

plaintiff at all, let alone an adequate plaintiff, to represent the interests of the absent class members.

“Intervention is liberally allowed after a denial of class status for the protection of absent class

members’ interests or after final judgment to appeal a class certification denial.” Newberg on Class

Actions, § 24:98 (Fourth Edition 2002). Intervenors’ Motion to be added as class representatives for

the proposed class of similarly situated Plan participants represents a classic example of an

appropriate intervention under Rule 23(d)(2), as well as under Rule 24(a) and (b). 1

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the class member “should, as a general rule, be entitled to intervene in the action.”

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10. Intervenors’ Motion should also be granted because Intervenors have satisfied the

requirements of both intervention of right under Rule 24(a)(2) and permissive intervention under

Rule 24(b)(2). Fed. R. Civ. P. 24(a)(2) provides in relevant part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to

intervene in an action: . . . (2) when the applicant claims an interest relating to the

property or transaction which is the subject of the action and the applicant is so

situated that the disposition of the action may as a practical matter impair or impede

the applicant’s ability to protect that interest, unless the applicant’s interest is

adequately represented by existing parties.

11. Intervenors’ Motion to intervene of right under Rule 24(a)(2) should be granted. As

individuals who held Motorola stock in their 401(k) accounts at the time of the breaches of fiduciary

duty alleged, and whose retirement savings were allegedly diminished by those fiduciary breaches,

and as current plan participants, Intervenors have an interest in the transactions which are the subject

of this action – Motorola’s dealings with Telsim – and they are situated in a way that the disposition

of the action may well impair or impede their ability to protect their interests. It is, moreover,

especially true that Intervenors’ interests may not be adequately represented by existing parties, since

the Court has entered Judgment dismissing the Complaint brought by original plaintiff Howell and

the Endsley intervention motion was denied, and Howell’s appeal has not been decided.

12. The requirements for permissive intervention under Rule 24(b)(2) have also been

clearly satisfied. Rule 24 (b)(2) provides in relevant part that:

Upon timely application anyone may be permitted to intervene in an action: . . . (2)

when an applicant’s claim and defense and the main action have a question of law

or fact in common.”

13. Intervenors have claims for alleged violations of ERISA by Motorola and others, set

forth in Exhibit A, which not only have questions of law and fact in common with the claims which

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have been asserted in the Complaint, but the proposed Complaint and Intervention is virtually

identical to the Complaint. Indeed, the proposed Complaint and Intervention tracks the Complaint

paragraph by paragraph, with the only changes being those which identify Intervenors and add

Intervenors as additional Plaintiffs (paragraph 8(a)-(c)). Intervenors have, in particular, refrained

from pleading in the Complaint and Intervention additional facts, circumstances and detail emanating

from the advanced state of merits discovery in this case, thereby facilitating Defendants’ answers

to the Complaint and Intervention. Because Intervenors’ claims have questions of law and fact in

common with the claims of Plaintiff Howell asserted in the Complaint, the motion to intervene

should be granted.

14. Both parts of Rule 24 require that the motion to intervene be “timely.” Intervenors’

Motion is clearly timely. Until the Court entered Judgment dismissing the Complaint on September

30, 2005, there was no need for a second plaintiff in this case and there was no need for additional

plaintiff representation for the proposed class with respect to the pending motion for class

certification. When the need for an additional plaintiff and proposed class representative arose as

a result of the September 30, 2005 Judgment, Endsley acted promptly and filed his motion to

intervene, and Intervenors are filing this motion within weeks of the dismissal of Endsley’s appeal.

Finally, as to Intervenors Lingis and Smith, the motion to intervene is especially timely in that their

employment by Motorola only recently ceased when Motorola sold the auto electronic group where

they had been employed by Motorola.

15. This Motion is also timely in that Defendants have known since December of 2004

(Docket No. 76-79) that at least one person would seek to intervene in substitution for Howell if

Howell’s claims were dismissed. It has thus been clear to all parties in this litigation for two years

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that if the Court were to determine that original Plaintiff Howell or proposed Intervenor Endsley

were not proper plaintiffs and/or class representatives in this class action that others were likely

substitute themselves for Howell and/or Endsley and represent the participants and the class. The

Motion to intervene is thus clearly timely.

16. Defendants will also not be prejudiced by grant of this Motion. As noted above,

Defendants have known for two years that one person definitely would, and others were likely to,

step into the case if any void in class representation were to occur. The continued participation by

proposed class counsel in this case in the extensive coordinated merits discovery in this case and the

related securities fraud class action, with Defendants’ explicit consent, is further evidence that

Defendants have no reason to be surprised, and will be in no way prejudiced, by grant of the present

Motion and the addition of Intervenors as Plaintiffs.

17. As the Supreme Court noted in United Airlines, Inc. v. McDonald, on the issue of the

timeliness of an absent class member’s motion to intervene in a case after the entry of final

judgment:

The critical fact here is that once the entry of final judgment made the adverse class

determination appealable, the respondent quickly sought to enter the litigation. In

short, as soon as it became clear to the respondent that the interests of the unnamed

class members would no longer be protected by the named class representatives, she

promptly moved to intervene to protect those interests.

* * *

[Defendant] United was put on notice by the filing of the Romasanta complaint of

the possibility of classwide liability, and there is no reason why Mrs. McDonald’s

[the intervenor’s] pursuit of that claim should not be considered timely under the

circumstances here presented.

United Airlines, Inc. v. McDonald, 432 U.S. at 394-95 (footnote omitted).

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18. Intervenors’ Motion is timely and Defendants will suffer no prejudice from its

allowance.

The Motion for Leave to File the Complaint in Intervention Should Be Granted

19. Rule 24(c) requires that a motion to intervene “be accompanied by a pleading setting

forth the claim or defense for which intervention is sought.” If Intervenors are allowed to intervene

as party plaintiffs and proposed class representatives, they should be further granted leave to file the

Complaint in Intervention which is annexed hereto as Exhibit A. The Complaint in Intervention is

identical to the Complaint except that it adds Intervenors as additional plaintiffs and proposed class

representatives. Defendants will not be prejudiced or burdened by the filing of the Complaint in

Intervention. To the enormous extent that the Complaint and Complaint in Intervention are the

same, Defendants will be able to file their answers to the Complaint in Intervention consistent with

their earlier answers to the Complaint, or the parties may be able to stipulate that defendants’

answers to the Complaint shall also be deemed their answers to the Complaint in Intervention.

WHEREFORE, Intervenors move for leave to intervene as plaintiffs and additional class

representatives and for leave to file their Complaint in Intervention, a copy of which is annexed

hereto as Exhibit A.

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DATED: December 20, 2006

STULL, STULL & BRODY

S/Edwin J. Mills 

Edwin J. Mills

6 East 45 Street th

New York, New York 10017

Telephone: (212) 687-7230

Fax: (212) 490-2022

ROBERT D. ALLISON & ASSOCIATES

Robert D. Allison

122 South Michigan Avenue

Suite 1850

Chicago, IL 60603

(312) 427-7600

Firm I.D. No. 36749 Attorneys for Plaintiffs-Intervenors

Stephen G. Lingis, Donald L. Smith

and Peter D. White

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