Free Motion to Certify Class - District Court of Colorado - Colorado

Case 1:03-cv-02671-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2671-RPM-OES JOHNNY WELLS, DONALD J. BROOKINS, and RILEY ANDREW SCHAEFFER, on behalf of themselves and all others similarly situated, Plaintiffs, vs. GANNETT RETIREMENT PLAN and GANNETT CO., INC. Defendants. ____________________________________________________________________________ AFFIDAVIT OF ROBERT F. HILL _____________________________________________________________________________ ROBERT F. HILL, being first duly sworn, deposes and states that: 1. I am a member of the Bar of the State of Colorado and a director of and

shareholder in the law firm of Hill & Robbins, P.C., with offices located at 1441 Eighteenth Street, Suite 100, Denver, Colorado 80202. I am one of the counsel for Plaintiffs in the Amended Class Action Complaint filed in this action. 2. This Affidavit is being filed in support of Plaintiffs' Motion for Class

Certification, which seeks an Order determining that this action be maintained as a class action pursuant to C.R.C.P. 23(b)(2) on behalf of a class consisting of: All individuals whose Accrued Benefit has been determined pursuant to the Pension Equity Provisions contained in Article VI.A of the Gannett Retirement Plan, as amended

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effective January 1, 1998, excluding all individuals who first became participants in the Plan after January 1, 2003. Plaintiffs are also seeking an order appointing Plaintiffs to serve as Class Representatives on behalf of the certified Class, and the undersigned Counsel as Class Counsel for the Class. 3. Plaintiffs' two Claims for Relief allege that the Plan violates the accrual rule set

forth in §204(b)(1)(H) of ERISA, 29 U.S.C. §1054(b)(1)(H). First, Plaintiffs allege that the Plan, as amended effective January 1, 1998, violates this statute because under the Pension Equity Formula the participants' rates of benefit accrual are reduced because of the participants' age. Second, Plaintiffs allege that the "Transition Provisions" used to calculate the accrued benefits of employees who had been participants in the Plan prior to the 1998 amendment caused many of those participants' benefit accruals to cease because of the participants' age. 4. Plaintiffs respectfully submit that this action meets all of the prerequisites of

C.R.C.P. 23 (b)(2), and is ideally suited for class action treatment as set forth in Plaintiffs' Motion for Class Certification. 5. Attached hereto as Exhibit A is the Form 5500 filed by Gannett with the

Department Labor for 2002 indicating that there were 54,573 participants in the Plan at the beginning of the plan year. 6. Plaintiffs' counsel are highly experienced in handling class actions generally as

well as class actions brought under ERISA, and previously have been appointed as class counsel by numerous federal and state courts in both ERISA and a wide variety of other cases. 7. I graduated first in my class at the University of Colorado School of Law in 1970

where I was Co-Editor-In-Chief of the University of Colorado Law Review. Upon graduation from law school, I served as a law clerk to the Honorable Warren J. Ferguson of the United

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States District Court for the Central District of California. I subsequently acquired experience in complex litigation as an associate with the law firm of Covington & Burling in Washington, D.C. I taught courses in civil procedure and antitrust law as a Visiting Associate Professor of Law at the University of Colorado School of Law, Boulder, Colorado, during the 1974-1975 academic year. I served as First Assistant Attorney General of the State of Colorado from 1975-1978, founded the Antitrust Section of the Attorney General's Office, and represented the State of Colorado as class counsel in numerous class actions. 8. Since founding the law firm of Hill & Robbins, P.C. in 1978, I have

been appointed class counsel in numerous actions in state and federal courts including Brewer v. Southern Union Company, Civil Action No. 83-F-1173 (M.D.L. 403); Tri-State Bank of East Dubuque v. Dain Bosworth Incorporated, Civil Action No. CV-81-0-109 (D.Neb.); Feivel Gottlieb, et al. v. Q.T. Wiles, et al., Civil Action No. 89-M-963 (D.Colo.); Alert Income Partners Securities Litigation, Civil Action No. 9-Z-9150 (D.Colo.); The Kidder Peabody Cases, 93-CV1569, (District Court, City and County of Denver); Aull v. Cavalcade Pension Plan, Civil Action No. 96-D-628 (U.S. District Court, District of Colorado)(ERISA class action); Eaton v. Onan Corp., Cause No. I P97 814 C-H/G (U.S. District Court, Southern District of Illinois) (ERISA class action); In re Ribozyme Pharmaceuticals Inc. Sec. Lit., Civil Case No. 99-B-2235 (U.S. District Court, District of Colorado); Vastano v. AT&T Wireless, 99-CV-8267 (District Court, City and County of Denver); and Cooper v. IBM, 99-829-GPM (U.S. District Court, S.D. Ill.)(ERISA class action). 9. John H. Evans, a shareholder in the firm of Hill & Robbins, P.C., graduated first

in his class at the University of Denver College of Law in 1976 where he was Managing Editor of the University of Denver Law Review. Upon graduation from law school, he served as a staff

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attorney with the United States Federal Trade Commission. Mr. Evans has been in private practice since 1980, practicing in the area of complex litigation. He joined the law firm of Hill & Robbins, P.C. in 1991, and as a member of the firm has participated in numerous sizable class actions, including Alert Income Partners Securities Litigation, Civil Action No. 9-Z-9150 (D.Colo.); Feivel Gottlieb, et al. v. Q.T. Wiles, et al., Civil Action No. 89-M-963 (D.Colo.); The Kidder Peabody Cases, 93-CV-1569 (District Court, City and County of Denver); Aull v. Cavalcade Pension Plan, Civil Action No. 96-D-628 (U.S. District Court, District of Colorado)(ERISA class action); Eaton v. Onan Corp., Case No. I P97 814 C-H/G (U.S. District Court, S.D.Ill.)(ERISA class action); and Cooper v. IBM, Civil Action No. 99-829-PER (U. S. District Court, S.D. Ill.) (ERISA class action). 10. John F. Walsh, a shareholder at Hill & Robbins, P.C., graduated with honors and

Order of the Coif in 1986 from Stanford Law School, where he was Senior Notes Editor of the Stanford Law Review. After graduation, he served as a judicial law clerk to the Hon. J. Skelly Wright of the United States Court of Appeals for the District of Columbia Circuit. In 1987, Mr. Walsh joined the U.S. Attorney's Office in Los Angeles, California as an Assistant U.S. Attorney. From 1993 to 1995, he served as Chief of the Major Frauds section of the U.S. Attorney's Office, where he supervised 35 Assistant U.S. Attorneys prosecuting white-collar offenses. Upon his return to Denver in 1995, Mr. Walsh joined Holland & Hart, LLP, where his practice focused on complex civil litigation, and the defense of federal white-collar criminal offenses. He became a partner at Holland & Hart, LLP in 1997. Since joining Hill & Robbins in 1999, Mr. Walsh has served as class counsel in many actions, including In re Ribozyme Pharmaceuticals Securities Litigation, (D.Colo.); City Partnership, et al. v. TCI, Inc., et al. (D.

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Colo.), as well as shareholder derivative actions, including Sins, et al. v. Janus Capital Management, LLC (D. Colo.). 11. Douglas Sprong is a partner at the law firm of Korien Tillery, LLC in St. Louis, Missouri. Mr. Sprong specializes in ERISA pension litigation and has been appointed class counsel in numerous such suits. See Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755 (7`h Cir. 2003); Esden v. Bank of Boston Retirement Plan, 229 F.3d 154 (2nd Cir. 2001); Laurenzano v. Blue Cross & Blue Shield of Massachusetts, Inc. Retirement Income Trust, 134 F.Supp.2d 189 (D. Mass. 2001); Tullock v. K-Mart Corporation Employee Retirement Plan, No. 99-289-DRH (S.D. Ill. July 2002); Richardson v. Retirement Plan for Employees of Fairchild Space & Defense Corporation, No. 1:CV 99-1867 (M.D. Pa. May 1, 2001); Malloy v. Ameritech Pension Plan, CV No. 98-488-GPM (S.D. Illinois, September 29, 1999); Seifert v. May Department Stores Company Retirement Plan, CV No. 96-1028-GPM (S.D. Illinois, March 20, 1998); Asbury v. May Department Stores Company Retirement Plan, Civil No. 97-667-GPM (S.D. Illinois, September 17, 1998); Medeika v. SNET Pension Plan, (D. Conn., January 28, 1998); Kohl v. Ass 'n of Trial Lawyers of America, 183 F.R.D. 475 (D. Md. 1998); Pierce v. Goldkist, Civil No. 97-P-0748 (N.D. Ala. 1997). 12. The experience of Class Counsel in the case of Cooper v. IBM, Civil Action No.

99-829-GPM, is particularly relevant in the context of the present motion. In that case, Messrs. Hill, Evans and Sprong were appointed class counsel to represent a class of approximately 275,000 past and present pension plan participants pursuing ERISA claims for age discrimination in connection with pension plan changes made by IBM in 1995 and 1999. As in the present case, the amendment implemented by IBM in 1995 involved a change to a pension equity formula. Following entry of an order certifying the case as a class action by Chief Judge

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Murphy, Defendant IBM sought interlocutory appeal of the class certification, which was denied by the United States Court of Appeals for the Seventh Circuit. Subsequently, Chief Judge Murphy entered summary judgment on liability in favor of the Class on July 31, 2003, which, among other things, held that the pension equity formula implemented by IBM in 1995 violated ERISA. Before Judge Murphy ruled on the issue of remedies, a settlement was entered into between the parties which settled the Class claims relating to the pension equity formula and three other relatively minor claims, but permitted IBM to appeal the adverse liability holding on two issues. On August 15, 2005, Chief Judge Murphy approved the partial settlement and entered an order requiring IBM to amend its pension plan to provide additional pension benefits to the class members adversely impacted by the pension equity formula. The additional benefits to the class resulting from the settled claims, when added to the attorneys' fees awarded by the Court, total $314 million. Thus, although IBM is appealing two other issues in that case, it settled the pension equity claim and the District Court's ruling on that claim will not be affected by the pending appeal to the Seventh Circuit on the two unresolved issues. 13. Plaintiffs and their counsel are committed to the vigorous prosecution of this

action and will fairly and adequately protect the interests of the members of the Class. s/ Robert F. Hill_________________________ ROBERT F. HILL, Affiant STATE OF COLORADO CITY AND COUNTY OF DENVER ) ) ss. )

Subscribed and sworn to before me this 28th day of February, 2006. Witness my hand and official seal. s/ Amy C. Shaffner Notary Public

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