UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

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BRUCE G. HOWELL, STEPHEN G. 

LINGIS, DONALD L. SMITH and PETER 

D. WHITE, on Behalf of Themselves and a 

Class of Persons Similarly Situated, 

Plaintiffs, 

v. 

MOTOROLA, INC., THE PROFIT 

SHARING COMMITTEE OF MOTOROLA, 

INC., RICK DORAZIL, CHRISTOPHER B. 

GALVIN, ROBERT L. GROWNEY, H. 

LAURANCE FULLER, ANNE P. JONES, 

JUDY C. LEWENT, WALTER E. 

MASSEY, NICHOLAS NEGROPONTE, 

JOHN E. PEPPER, JR., SAMUEL C. 

SCOTT III, GARY L. TOOKER, JOHN A. 

WHITE and CARL F. KOENEMANN, 

Defendants. 

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No. 03 C 5044 

Judge Rebecca R. Pallmeyer 

PLAINTIFFS’ MEMORANDUM IN OPPOSTION 

TO DEFENDANTS’ MOTION TO STAY PENDING APPEAL

Plaintiffs, by their undersigned counsel, oppose Defendants’ motion to stay this 

case pending the decision by the Court of Appeals on Defendants’ appeal from this Court’s order 

granting class certification. Plaintiffs oppose a stay for two reasons. 

First, this case should not be stayed because the appeal will not dispose of this 

case. Even if the Court of Appeals should disagree with this Court’s order granting certification, 

and even if the Court of Appeals were to order that no class be certified, this case would still 

proceed to judgment on the merits because the individual Plaintiffs are asserting claims under 

ERISA Section 502 (a)(2), 29 U.S.C. Section 1132 (a)(2). Under that provision, a participant in 

an employee benefit plan (i.e., the individual Plaintiffs) may attempt to recover for the plan

Case 1:03-cv-05044 Document 341 Filed 02/27/2008 Page 1 of 3
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losses suffered by the plan. See LaRue v. DeWolff, Boberg & Assoc., Inc.,- - - S.Ct. - - - , 2008 

WL 440748 *4(U.S. February 20, 2008). Under this statutory provision, the Court will have to 

decide the merits of this case- - - in particular, whether any fiduciary of the Motorola Profit 

Sharing and Investment Plan breached the duties of prudence and/or loyalty to the Plan, and what 

losses were suffered by the Plan as a result- - - no matter how the Court of Appeals rules on class 

certification issues.1

 Under these circumstances, a stay is not warranted. 

The second reason Plaintiffs oppose the Motion is that a stay will increase the costs of 

litigation to Plaintiffs and will unnecessary protract this 2003 case. As the Motion correctly 

states, the parties are presently heavily immersed in the extensive evidentiary record which has 

been generated by this case, including conflicting expert proof, as each side has moved for 

summary judgment and each side is preparing its opposition and reply papers on the summary 

judgment motions. Plaintiffs have several attorneys working on this large project now, under the 

existing deadlines. To “put down the file now” and restart the summary judgment work months 

down the road after the Court of Appeals rules will undoubtedly require significant start-up time 

and increased litigation costs. If the appeal was, or even might, be dispositive of the case, there 

might be some merit to a stay notwithstanding the increased costs. But because the 502(a)(2) 

claim will proceed to judgment anyway, this case should not be stayed. 

 

1 Since a claim under Section 502(a)(2) may affect the rights of participants and beneficiaries of an employee 

benefit plan it is appropriate for class certification to be sought for such claims. E.g., Coan v. Kaufman, 457 F. 3d

250, 262 (2d Cir. 2006). While it is appropriate to seek Rule 23 class certification of an action asserting 502 (a)(2) 

claims, it is not essential, as many courts have indicated. E.g., Montgomery v. Aetna Plywood Inc., 1996 WL 

189347, at *3 (N.D. Ill. Apr. 16, 1996); Thompson Avondale Indus., 2001 WK 1543497, at *2 (E.D. La. 2001);

Kayes v. Pacific Lumber Co., 51 F. 3d 1449, 1462 (9th Cir. 1995)(under ERISA, a breach of fiduciary duty claim is 

automatically a representative claim); Specialty Cabinets Fixtures, Inc. v. Am. Equitable Life Ins. Co., 140 F.R.D. 

474, 479 (S.D. Ga. 1991) (noting that “[t]he right to recovery, after all, belongs to the plan”). 

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Date: February 27, 2008 STULL, STULL & BRODY

/s/Edwin J. Mills 

Edwin J. Mills 

6 East 45th Street 

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 

Case 1:03-cv-05044 Document 341 Filed 02/27/2008 Page 3 of 3