No. 01 C2963 Page 4

of $19,390.31, and that Blankenship and Sparks are jointly and severally liable to the Amsted

defendants in the amount of $954.86 ~ their share of the Bradley costs. The judgment is,

however, stayed pending appeal.

JAMES B. MORAN

: Senor Judge, U. S. District Court
Nov. a , 2004.


No. 01 C 2963 Page 3

pay his or her pro rata share, as none claims an inability to pay a share, even if paying the whole
amount is not feasible.

That we cannot deny costs, however, does not compel the defendants to pursue them.
We ultimately ruled against the non-retiree plaintiffs, but we recognize that they, through no
fault of their own, have endured a precipitous decline in the value of their ESOP shares. They
are, or until recently were, employees of the company. But whether or not costs are further
pursued is not a decision for the court.

This case, as we have noted, involved the class action of non-retirees, the Armstrong
class, and claims of nine retirees, the Bradley plaintiffs, against Amsted defendants. Seven of
the Bradley plaintiffs settled and, although they failed to file a stipulation of dismissal, their
claims ended in early 2004, and Amsted defendants do not seek to recover costs from them. The
other two Bradley plaintiffs were Blankenship and Sparks. It was ultimately determined that
they were members of the Armstrong class. That has two consequences. One is that some of
the costs incurred by the Amsted defendants are attributable to the claims of the Bradley
plaintiffs’ claims. The Armstrong class plaintiffs represent those to be $4,296.89, and the
Amsted defendants have not disputed that amount. The great majority of the costs are
attributable to the Armstrong class claims. Blankenship and Sparks were not class
representatives in pursuing those claims. They were, it was ultimately determined, merely
members ofa large mandatory class. They are not responsible for costs attributable to the class
claims, their claims were never against the LaSalle Bank, and most of the costs from the claims
by the retiree plaintiffs have been waived.

We conclude that the class representatives are jointly and severally liable to the Amsted

defendants for costs in the amount of $36,170.17, and to LaSalle Bank for costs in the amount


* Minute Ofder Form (06/97)

United States District Court, Northern District of Dlinois

Mavor Megltate Jude James B. Moran “than Asgned Judge

CASE NUMBER 01 C 2963 DATE 11/2/2004

CASE JUAN ARMSTRONG, et al vs. AMSTED INDUSTRIES, INC., et al

TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature.
MOTION: of the motion being presented.
MEMORANDUM OPINION AND ORDER

DOCKET ENTRY:

qd) im) Filed motion of [ use listing in “Motion” box above.]

ma)

(2) Q Brief in support of motion due__—-
@) im Answer brief to motion due . Reply to answer briefdue__.
im} Ruling/Hearing on setfor_____at
6°: O Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__—_aat
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—sssetfor___—sat__— ts
(7) a Trial[set for/re-set for]on__—_at
(8) © _ [Bench/Jury trial] [Hearing] held/continuedto___at ;
(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to} \
COFRCP4(m) (C)Local Rule 41.1 OFRCP41(aX1) (CI) FRCP41(a)(2).
ao [Other docket entry] | Enter Memorandum Opinion And Order. We conclude that the class

representatives are jointly and severally liable to the Amsted defendants for costs in the amount of
$36,170.17, and to LaSalle Bank for costs in the amount of $19,390.31, and that Blakenship and Sparks
are jointly and severally liable to the Amsted defendants in the amount of $954.86 - their share of the

Bradley costs. The judgment is, however, stayed pending appeal.

(il) [For further detail see order attached to the original minute order.)

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff. wn

Notified counsel by telephone.

of | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notion

courtroom
Le deputy's
initials

i, Date/time receivedin 7
central Clerk's Office aiing deputy ins



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

EASTERN DIVISION
JUAN ARMSTRONG, et al., )
Plaintiffs, }
vs. } ” No. 01 C2963
AMSTED INDUSTRIES, INC, et al, ; . mena DOCKETED
Defendants. NOV ~8 zo04
MEMORANDUM OPINION AND ORDER

The Amsted Industries, Inc. defendants (Amsted defendants) seeks to recover $40,467.06
in costs and defendant LaSalle Bank, N.A. seeks to recover $19,390.31 in costs. They seek that
recovery from the fifteen class representatives in the non-retiree complaint and the plaintiffs
in the retiree case. The class representatives and the retiree plaintiffs oppose the awarding of
costs, but for different reasons.

The class representatives argue that costs in this ERISA action are governed by the
ERISA statute, 29 U.S.C. §1132(g)(1): “In any action under this subchapter ... by a participant,
beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and
costs to either party.” They contend that costs should not be awarded because their position
was substantially justified and taken in good faith, Stark v. PPM America, Inc., 354 F.3d 666,
673 (7" Cir. 2004). But Stark, as well as other cases cited by class plaintiffs, do not involve
costs, they involve fees. Defendants do not seek fees, and we would not award them if they had.
Are, then, costs excepted from the normal operation of Federal Rule of Civil Procedure 54,
when fees are not sought, because they are within the “express provision” of a federal statute,

namely 29 U.S.C. §1132(g)(1)? We think not.


No. Of C2963 Page 2

The cases cited by the parties provide little support for the notion that ERISA trumps
Rule 54 in those circumstances. In White y. Sundstrand Corp., 256 F.3d 580 (7" Cir. 2001),
costs were awarded in an ERISA action under Rule 54, without any reference to §1132. In
Quinn v. Blue Cross and Blue Shield Association, 161 F.3d 472 (7" Cir. 1998),the court affirmed
the award of costs without discussion, with the analysis focusing on the appropriateness of fees
under §1132, Costs were governed by Rule 54 and fees by §1132 in Spellman y. Aetna Plywood,
Inc., 1991 WL 86066 (N.D.IIL). Costs were not contested on that ground in Herman v. Central

States, Southeast and Southwest Areas Pension Fund, 2003 WL 22955996 (N.D.IIL). Only in

Teumer vy, General Motors Corp., 1994 WL 48581 (N.D.LL), did a court review costs under a
§1132 standard, and then virtually without discussion.

We do not find that surprising. Rule 54 costs are the norm, and we are not referred to
any legislative history that suggests that Congress intended to single out costs for special
treatment under ERISA. Further, §1132 looks both ways, and it seems unlikely that Congress
intended to deny costs to a prevailing plaintiff solely because the defendants’ position was
substantially justified and in good faith. Finally, we note that costs are generally a very small
tail on a far larger fees dog.

But the awarding of costs in a class action can have a chilling effect, as was noted in
White v, Sundstrand Corp., supra, at 586, and the suggestion there — that plaintiffs’ contract
with their attorneys for the attorneys to pay the costs if they lose — is not much solace to
plaintiffs who were never informed of that option. That chilling effect is, however, equally
present in a civil rights action, and §1132 is equally applicable to a single plaintiff case. We do
not understand §1132 to be intended to address the effect noted in White. We cannot deny costs

on that ground. Neither can we deny costs on the ground that any class representative cannot