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

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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.

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND MEMORANDUM BRIEF IN SUPPORT

Plaintiffs, Johnny Wells, Donald J. Brookins, and Riley Andrew Schaeffer, by their attorneys, respectfully move for certification of the class defined below pursuant to Fed.R.Civ.P. 23 and submit the following memorandum brief in support of their motion. I. INTRODUCTION Plaintiffs filed this case on December 31, 2003, asserting two claims against the Gannett Retirement Plan ("Plan") and Gannett Co., Inc. ("Gannett") under the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq., ("ERISA").1 The Plan is an employee benefit plan, and therefore, as provided in ERISA § 4(a), is subject to the requirements and prohibitions that Congress has created in ERISA for such plans. See Esden v. Bank of Boston, 229 F.3d 154,
By Order dated March 22, 2005, the Court denied the Defendants' motion to dismiss Plaintiffs' First and Second Claims for Relief and dismissed the Plaintiffs' Third Claim for Relief.
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172 (2nd Cir. 2000)("ERISA was enacted to restrict employers' and employees' freedom of contract when bargaining over pensions. Employers do not have to provide pension plans, but when they do, those plans must comply with Title I of ERISA."). ERISA requires employers to make a choice between two fundamentally different plan designs in order to take advantage of the tax incentives Congress provided for "qualified" pension plans. One option is to create a defined contribution plan, in which the employer allocates an amount each year to an account created for each employee. The employee's pension entitlement is the value of his account, comprised of the employer's annual contributions plus any earnings flowing from the investment of those deposits. Berger v. Xerox Corp. Retirement Income Guarantee Plan, 338 F.3d 755, 758 (7th Cir. 2003). Because an employer's obligation under such a plan extends only to the annual allocation to the employee's account, ERISA's benefit accrual rules for defined contribution plans focus on this annual allocation. Accordingly, ERISA's age discrimination prohibition for defined contribution plans merely requires that an employer allocate an equal amount to each employee's account each year, regardless of the employee's age. ERISA Section 204(b)(2)(A); 29 U.S.C. §1054(b)(2)(A). An employer's second option is to create a defined benefit plan in which the employer provides an employee with a guaranteed benefit at "normal retirement age." This benefit is typically calculated as a percentage of the employee's compensation times his qualifying years of service. Berger, 338 F.3d at 757-758. The pension entitlement provided by the plan is the "accrued benefit" at normal retirement age (which the plan selects but cannot be later than age 65). Id. at 759. ERISA requires that this accrued benefit be provided in the form of an annuity at normal retirement age. ERISA Section 204(c)(3); 29 U.S.C. § 1054(c)(3). A plan may offer

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optional benefit forms, such as a lump sum, but they cannot be less than the actuarial equivalent of the annuity at normal retirement age. Berger, 338 F.3d at 759; see also Esde, 229 F.3d at162164. Consistent with the requirement that an employee's pension entitlement under a defined benefit plan is this accrued benefit, ERISA's benefit accrual rules for defined benefit plans focus upon the accrued benefit payable at normal retirement age. ERISA Sec. 204, 29 U.S.C. § 1054. Thus, the age discrimination rule applicable to defined benefit plans prohibits any cessation or reduction in the rate at which an employee accrues this benefit on account of age. ERISA Section 204(b)(1)(H)(i); 29 U.S.C. § 1054(b)(1)(H)(i). The Gannett Plan was amended effective January 1, 1998, to adopt a new type of "hybrid" defined benefit formula, referred to as a Pension Equity Formula ("PEF"). Despite this amendment, the Plan continues to be, and at all times relevant hereto has been, a defined benefit plan as a matter of law. As such, it is subject to all of the ERISA vesting and accrual rules that apply to all other defined benefit plans. See Esden, 229 F.3d at 163-64. Thus, the Plan must provide qualified participants with a non-forfeitable accrued benefit for each year of their credited service. ERISA § 203(a)(2). And the Plan's formula for the accrual of this benefit, which ERISA § 3(23) requires be "expressed in the form of an annual benefit [i.e., an annuity] commencing at normal retirement age," must satisfy a carefully constructed set of vesting and accrual rules set forth in ERISA §§ 203 and 204. Plaintiffs' two Claims for Relief allege that the Plan violates one of these accrual rules, ERISA §204(b)(1)(H) of ERISA, 29 U.S.C. §1054(b)(1)(H) ("204(b)(1)(H)"). That subsection of the statute provides that:

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a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age. First, Plaintiffs allege that the Plan, as amended effective January 1, 1998, violates 204(b)(1)(H) because under the Pension Equity Formula participants' rates of benefit accrual are reduced because of the participants' age. Second, Plaintiffs allege that the methodology used to calculate the PEF accrued benefits of employees who had been participants in the Plan prior to the 1998 amendment (referred to herein as the "Transition Provisions") caused many of those participants' benefit accruals to cease for varying periods of time because of the participants' age. Plaintiffs bring this action under ERISA Section 502(a), which provides that: A civil action may be brought -... (3) by a participant, beneficiary or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan. Plaintiffs allege that the Plan's ERISA violations arise from the terms of the Plan itself and involve grounds generally applicable to all Plan participants. Therefore, Plaintiffs ask this Court to enter a judgment that 1) declares that the Plan does not comply with the accrual rules of 204(b)(1)(H) and 2) provides other appropriate declaratory or injunctive relief to redress the Plan's violations of 204(b)(1)(H), so as to ensure that benefits are determined and paid to Plaintiffs and all other Plan participants pursuant to a formula that complies with the ERISA accrual rules.

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By this Motion Plaintiffs request that, pursuant to Fed.R.Civ.P 23(b)(2), the Court certify a class consisting of "[a]ll 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 effective January 1, 1998, excluding all individuals who first became participants in the Plan after January 1, 2003." Plaintiffs also request that the Court appoint Plaintiffs to serve as Class Representatives on behalf of the certified Class, and appoint the undersigned Counsel for Plaintiffs to serve as Class Counsel for the Class. II. THIS MATTER IS APPROPRIATE FOR CLASS CERTIFICATION. Rule 23 was intended to promote the efficient resolution of claims in cases involving multiple parties with similar claims, to eliminate repetitious litigation, to avoid inconsistent judgments, and to enable parties with small claims to assert them collectively when litigation costs would otherwise outweigh any potential individual recovery. Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 338n. 9 (1980); Gottlieb v. Q. T. Wiles, 11 F.3d 1004, 1007 (10th Cir. 1993); Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 359 (D. Colo. 1999). In considering whether to certify a class, the allegations of the plaintiffs' complaint are to be accepted as true. Blackie v. Barrack, 524 F.2d. 891, 901n.17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976); In re Intelcom Group, Inc. Sec. Litig., 169 F.R.D. 142, 145 (D. Colo. 1996). Although the Court may analyze the substantive claims of the parties and the elements of those claims in determining whether the requirements of Rule 23 have been met, the Court should not consider the merits of the claims at issue. Colorado Cross-Disability, 184 F.R.D. at 356; Schwartz v. Celestial Seasonings, Inc., 178 F.R.D. 545, 550 (D. Colo. 1998).

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Courts have considerable discretion in deciding whether to certify a class. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). Because class certification is subject to later modification, "the court should err in favor of, and not against, the maintenance of the class action." Joseph v. General Motors Corp., 109 F.R.D. 635, 638 (D. Colo. 1986)(citing Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968)); see also Colorado Cross-Disability, 184 F.R.D. at 356. The initial inquiry for the Court is whether the claims satisfy the requirements of Fed.R.Civ.P. 23(a) that 1) the class is so numerous that joinder of all members is impracticable, 2) there are questions of law or fact common to the class, 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and 4) the representative parties will fairly and adequately protect the interests of the class. Paton v. New Mexico Highlands University, 275 F.3d 1274, 1278 (10th Cir. 2002); Adamson v. Bowen, 855 F.2d 668, 675n.10 (10th Cir. 1988). These requirements are often referred to as numerosity, commonality, typicality and adequacy of representation. See Schwartz, 178 F.R.D. at 550. Second, the Court must determine whether the case fits within one or more of the subcategories of Fed.R.Civ.P. 23(b). Adamson, 855 F.2d at 675. Plaintiffs seek certification under Fed.R.Civ.P. 23(b)(2), which authorizes class certification in cases where a defendant is alleged to have "acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." According to the Advisory Committee notes to the 1966 amendments adding the provisions of Rule 23(b)(2): "Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the

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class, provided it is based on grounds which have general application to the class" Because the notice provision of Fed.R.Civ.P. 23(c)(2) is not mandatory with respect to certification under Rule 23(b)(2), "the district court has even greater freedom in both the timing and specificity of its class definition." Battle v. Commonwealth of Pennsylvania, 629 F.2d 269, 271 n.1 (3rd Cir. 1980). III. FACTUAL BACKGROUND As noted above, the Plan is a defined benefit pension plan as defined by ERISA §3(35). Prior to 1998, participants in the Plan in general accrued their normal retirement benefit under a traditional defined benefit formula A participant's Accrued Benefit, in the form of an annuity commencing at normal retirement age, was determined as a multiple of final average earnings, multiplied by years of credited service, multiplied by a stated percentage multiplier for each year of credited service. A. The Pension Equity Formula Effective January 1, 1998, Gannett amended the Plan to implement what is referred to as a Pension Equity Formula ("PEF").2 After that date, with certain exceptions, the PEF has controlled the accrued benefits earned each year by Gannett employees who had been participants in the Plan prior to January 1, 1998, and by all employees who became participants

The term "Pension Equity" plan is used to describe a category of so called "hybrid" pension plan formulas that have been promoted by pension plan design consulting firms during the past two decades. Hybrid plans, such as pension equity and cash balance plans, attempt to incorporate some aspects of defined contribution pension plan terminology into the defined benefit plan framework. In Cooper v IBM, 274 F. Supp.2d 1010, 1014-17 (S.D.Ill. 2003), the court described and analyzed the operation of the pension equity formula adopted by IBM in 1995 and concluded that the formula violates ERISA §204(b)(1)(H). Although IBM is appealing several other issues in that case, it settled the claims regarding the pension equity formula and the District Court's ruling on the illegality of IBM's pension equity formula will not be impacted by the pending appeal.

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between that date and January 1, 2003.3 The PEF adopted a new methodology for the calculation of the accrued benefit a participant earned for each year of service, along with new terminology to describe the benefits being earned. In their First Claim for Relief, plaintiffs allege that under this PEF methodology the rate of benefit accrual for participants is reduced because of age in violation of 204(b)(1)(H). Under the PEF a participant's Accrued Benefit purportedly is determined by reference to a participant's Basic Retirement Amount, an amount that grows each year as an employee accumulates percentage "points" for each year of credited service. [Art. 2.01(i)]. 4 The total number of points an employee can earn is entirely dependent upon the age at which the employee became a participant in the Plan. The Plan then determines a participant's Accrued Benefit at any point in time using a formula that is driven by this age-dependent point system. The formula involves multiplying the total number of points a participant could accumulate if he worked to age 65 by the ratio between the participant's actual years of credited service at the time of the calculation and the participant's total potential credited service from the date they began participation in the Plan to the date they would reach normal retirement age. [Id.] Thus, under the PEF the amount of the Accrued Benefit a participant can earn each year depends upon the number of years between the date they began participation in the Plan and the date they will reach age 65. By definition, that number depends upon what their age was when they began participation. Under the formula, an employee who began participation at 21 years of

Existing Plan participants over 55 with at least 5 years of service, participants whose age plus service totaled at least 70, employees who were members of some collective bargaining units, and some employees who had been participants in plans maintained by companies acquired by Gannet continued to earn accrued benefits under the pre1998 Plan provisions. Such employees are not included in the proposed Class definition. 4 References in this Motion for Class Certification to "Art. __" are to sections of the Gannett Pension Plan, a copy of which was attached as Exhibit A to the Declaration of Roxanne Horning filed with Defendants' Motion to Dismiss.

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age will have 7.64 percentage points per year used to compute the Accrued Benefit he earns for the year. For employees who began participation at older ages, that annual amount of points "earned" decreases steadily, reaching a low of 5 percentage points per year that will be used to compute the Accrued Benefit earned each year by employees who began participation at age 55 or older. Plaintiffs allege that this formulaic, age-based decrease in percentage points, and the resulting decrease in the rate of benefit accrual earned each year by participants, violates 204(b)(1)(H). B. The Transition Provisions The 1998 Plan amendment also included provisions regarding the computation of the initial Accrued Benefits under the PEF for employees who had been participants in the Plan prior to January 1, 1998 (the "Transition Provisions"). In their Second Claim for Relief, Plaintiffs allege that many employees who had been participants in the Plan prior to January 1, 1998 and who then automatically became participants in the amended Plan under the Plan's Transition Provisions, suffered a cessation in the accrual of any additional benefits for varying periods of time after January 1, 1998, the length of which depended upon the employee's age. The PEF amendment had to comply with ERISA's requirement that the Plan provide employees who were participants as of January 1, 1998 a continuing right to an accrued benefit equal to the benefit they had accrued as of December 31, 1997.5 However, rather than merely adding benefits accrued after the amendment to this protected existing accrued benefit, the amended Plan's PEF formula included a mechanism for incorporating the "present value" of this
ERISA §204(g), 29 U.S.C. §1054(g), provides that "[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan."
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protected benefit into a participant's total hypothetical Basic Retirement Amount used to compute benefits under the PEF. As a result of the Transition Provisions used by the Defendants, only a portion of the employee's protected benefit was included in the accrued benefit computed under the PEF for pre-amendment participants as of January 1, 1998. The remaining portion had to be "earned back" as part of the new Accrued Benefit accumulated for each year of service after 1998. [Art. 6A.02(a)(i) and 6A.03(c) and (d)]. Thus many Plan participants did not accrue any additional benefit under the PEF after January 1, 1998 until such time as the amount of their Accrued Benefit, as determined under the PEF, exceeded the amount of their protected benefit as of December 31, 1997. For employees with equivalent years of service and equivalent salaries as of December 31, 1997, the present value of an older employee's protected benefit was higher than that of a younger employee. Therefore the period of time needed for the older employee's accrued benefit under the PEF to exceed their protected benefit was longer than the period of time for a younger employee. Plaintiffs allege that because this period of time during which a participant's accrual of additional benefits ceased is directly related to the participant's age the transition formula violates 204(b)(1)(H). IV. THIS ACTION SATISFIES THE REQUIREMENTS OF FED.R.CIV.P. 23 FOR CLASS ACTION CERTIFICATION. Numerous courts have concluded that in actions such as this under ERISA, or similar actions involving government benefits programs, where plaintiffs challenge the legality of the basic methodology used to determine benefits, a Rule 23(b)(2) class action provides an appropriate and effective mechanism to determine the legality of the benefit methodology and

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redress any violations of ERISA or other applicable law. Berger, 338 F.3d at 763-64; Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir.1998); Church v. Consolidated Freightways, Inc., 1991 WL 284083, at *14 (N.D. Cal. 1991); Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 681 (N.D. Cal. 1979); Jansen v. Greyhound Corp., 692 F. Supp. 1022, 1028 (N.D. Iowa 1986). In Adamson v. Bowen, 855 F.2d 688 (10th Cir. 1988), the Tenth Circuit Court of Appeals expressly recognized this principle: In the instant case, the remedies the class seeks--declaratory relief and an injunction directing the Secretary to follow the proper law of this circuit--do not depend on the individual facts of each case, but apply equally to all cases pending within the class. That the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.

Id. at 676. That very basic principle set forth in Adamson is equally applicable in this case. A. THIS ACTION MEETS THE REQUIREMENTS OF FED.R.CIV.P. 23(a). Fed.R.Civ.P. 23(a) imposes four prerequisites to class certification: numerosity, commonality, typicality, and adequacy of representation. Each is satisfied in this case. 1. Numerosity

The Rule 23(a) numerosity factor merely requires that the potential class is "so numerous that joinder of all members is impracticable." The proper focus of this inquiry is on whether some evidence exists regarding things such as the size of the class, its geographic dispersal, or the feasibility of potential class members bringing individual claims showing the impracticability of joinder of all potential class members. Rex v. Owens ex rel. State of Okl., 585 F.2d 432, 436 (10th Cir. 1978); Colorado Cross-Disability, 184 F.R.D. at 356-57. In the present case, the Form 5500 filed by Gannett with the Department Labor for 2002 states that there were 54,573

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participants in the Plan at the beginning of the plan year. [A copy of the Gannett 2002 Form 5500 is attached as Exhibit A to the Affidavit of Robert F. Hill filed simultaneously with this motion.] Clearly joinder would be at the very least impracticable, if not impossible, with such a large number of potential class members. In addition, Gannett has facilities with Plan participants located in numerous states, making their joinder in any one proceeding highly impracticable. Finally, any increases in benefits that could inure to individual class members from this proceeding are likely to be small in comparison to the cost of litigation that would be involved in the pursuit of individual claims. As a result, class members would have no economic incentive and little ability to pursue claims individually. Colorado Cross-Disability, 184 F.R.D. at 359. 2. Commonality

Fed.R.Civ.P. 23(a)(2) does not establish any quantitative or qualitative test of commonality. Schwartz, 178 F.R.D. at 550-51. Nor does it require that all questions of law or fact at issue be common; it only requires that some common issues of law or fact exist. Queen Uno Ltd., 183 F.R.D. at 691; Schwartz, 178 F.R.D. at 551. "Commonality requires only a single issue common to the class . . . ." Lopez v. City of Santa Fe, 206 F.R.D. 285, 289 (D. N.M. 2002). It is enough that the claims of the class "are based on the same legal or remedial theory," Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir. 1975); Colorado Cross-Disability, 184 F.R.D. at 359, or on the same operative facts, Queen Uno Ltd., 183 F.R.D. at 691. A common nucleus of operative fact is typically found in cases alleging discrimination arising from a defendant's application of a uniform policy or procedure or standardized conduct toward members of the class. General Telephone Co. v. Falcon, 457 U.S. 147, 157 (1982)

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(quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.Ed.2d 453 (1977)) (" `suits alleging ... discrimination are often by their very nature class suits, involving classwide wrongs,' and ... `(c)ommon questions of law or fact are typically present.' "); Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998). ("It is sufficient if class members complain of a pattern or practice that is generally applicable to the class as a whole. Even if some class members have not been injured by the challenged practice, a class may nevertheless be appropriate.") In the present case, each of the Plaintiffs has been a participant in the Plan both prior to and after the January 1, 1998 implementation of the PEF. Each has been affected by the reduction in the rate of benefit accrual under the PEF that is the subject of the First Claim for Relief and each has been affected by the cessation of benefit accrual under the Transition Provisions that are the subject of the Second Claim for Relief. Their claims involve numerous questions of law or fact that are common to the proposed class as a whole, including: a. b. c. Whether an employee's benefit accrual is reduced under the PEF on account of the Participants' age; Whether the Transition Provisions caused certain employees benefit accrual to cease on account of the Participants' age; What remedies are appropriate to redress Defendants' violations of 204(b)(1)(H).

The presence of these class-wide common issues satisfies the commonality requirement of Fed.R.Civ.P. 23(a)(2). Although some Plan participants at some point may have been participants in a preexisting plan maintained by a Gannet affiliate, and therefore may have been impacted differently by the Transition Provisions, their inclusion as class members does not affect the commonality of 13

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the class-wide claims. At most, some aspect of the PEF or the Transition Provisions might apply differently in their accrued benefit calculations. Such differences might effect a determination regarding the extent or dollar amount of the remedies for such participants, but they have no bearing on the question of commonality with respect to Plaintiffs' claims regarding the fundamental unlawfulness of the PEF or the Transition Provisions. Rule 23 merely requires the existence of some common factual or legal questions, not that the factual situation of every class member be identical. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982); Rich v. Martin Marietta Corp., 522 F.2d 333, 339 (10th Cir. 1975)("not every member of the class need be in an identical situation as the named plaintiffs.) Indeed, even in instances in which named plaintiffs are participants in only one of several pension plans maintained by an employer, class certification as to all those pension plans has been upheld "[w]here, as here, the crux of an ERISA plaintiff's complaint concerns the methodology used to determine benefits, courts have recognized that the standing-related provisions of ERISA were not intended to limit a claimant's right to proceed under Rule 23 on behalf of all individuals affected by the challenged conduct, regardless of the representative's lack of participation in all the ERISA-governed plans involved." Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.1998). See also Forbush v J.C. Penney Co, Inc., 994 F.2d 1101, 1106 (5th Cir. 1993)( "It is true that much of the putative class is covered by plans other than the one applicable to Forbush, but Forbush has framed her challenge in terms of Penney's general practice of overestimating social security benefits. Her claim is therefore typical and thus provides no basis for suspecting that she will not adequately represent the interests of the class.")

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3.

Typicality

The rationale behind the requirement that class representatives' claims be typical of the class claims is to ensure that in advancing or defending their own interests in the litigation, the class representatives will also be advancing or defending the interests of the class. In re Intelcom, 169 F.R.D. at 149. Under Rule 23(a), the threshold for typicality is low, and the claims asserted by the class representatives need only be typical of, not identical to, those of other class members. Cook v. Rockwell Int'l Corp., 181 F.R.D. 473, 481 (D. Colo. 1998); Schwartz, 178 F.R.D. at 551. The typicality requirement is satisfied "[s]o long as there is a nexus between the class representatives' claims or defenses and the common questions of fact or law which unite the class . . . ." Schwartz, 178 F.R.D. at 551; Joseph, 109 F.R.D. at 640. Such a nexus exists when the claims of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory. Penn, 528 F.2d at 1189; Joseph, 109 F.R.D. at 640. In this case, plaintiffs each were participants in the Plan both prior to and after January 1, 1998. Each plaintiff has had his Accrued Benefit computed under the Plan's Pension Equity Formula and was impacted by the Plan's 1998 Transition Provisions. Their claims therefore are typical of the class claims. 4. Adequacy of Representation

The criteria for determining whether the representative plaintiffs will fairly and adequately protect the interests of the class is whether the plaintiffs have common interests with the class members and will vigorously protect the interests of the class through qualified counsel. Colorado Cross-Disability, 184 F.R.D. at 361; Vaszlavik, 183 F.R.D. at 271; Cook v. Rockwell

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Int'l Corp., 151 F.R.D. 378, 386 (D. Colo. 1993). There generally is a presumption that this requirement is met, and any doubt regarding adequacy of representation should be resolved in favor of upholding the class, subject to later possible reconsideration. Schwartz, 178 F.R.D. at 552. Here, no conflicts exist between the interests of the class representatives and the interests of other participants in the Plan. As demonstrated above in the discussion of typicality, the class representatives here have the same common interest in seeking that benefits under the Plan accrue in compliance with ERISA. In addition, as demonstrated by the accompanying affidavit of Robert F. Hill, Plaintiffs' counsel have extensive experience in representing classes in a variety of complex litigation matters in general and, in particular, in cases involving the accrual and determination of benefits under ERISA. . Therefore, the class representatives will fairly and adequately protect the interests of the class. B. THIS ACTION ALSO MEETS THE REQUIREMENTS OF FED.R.CIV.P. 23(b)(2). In addition to the requirements of Fed.R.Civ.P. 23(a), class certification requires that one or more subcategories of Fed.R.Civ.P. 23(b) be satisfied as well. In this case, Plaintiffs seek certification under Fed.R.Civ.P. 23(b)(2). Certification under Fed.R.Civ.P. 23(b)(2) is proper where the defendant has acted on grounds generally applicable to the class, therefore making final injunctive relief or corresponding declaratory relief with respect to the class as a whole appropriate. As a general matter, Rule 23(b)(2) certification is proper whenever injunctive or declaratory relief would be appropriate for the class. Moore's Federal Practice ¶ 23.43[1][a]; see also Federal Practice and Procedure § 1775; DeBoer v. Mellon Mortgage Co.¸ 64 F.3d 1171,

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1175 (8th Cir. 1995), cert. denied, 517 U.S. 1156 (1996). Numerous cases have held that certification of an ERISA claim or similar benefits claim is proper under Rule 23(b)(2) where declaratory or injunctive relief is sought. Adamson ,855 F.2d at 676; Breedlove v. Tele-Trip Co., 1993 W.L. 284327, at *11 (N.D. Ill. 1993); Church v. Consolidated Freightways, Inc., 1991 WL 284083, at *14 (N.D. Cal. 1991); Morgan v. Laborers Pension Trust Fund, 81 F.R.D. 669, 681 (N.D. Cal. 1979); Jansen v. Greyhound Corp., 692 F. Supp. 1022, 1028 (N.D. Iowa 1986). In addition, in a Rule 23(b)(2) action: the precise definition of the class is relatively unimportant. If relief is granted to the plaintiff class, the defendants are legally obligated to comply, and it is usually unnecessary to define with precision the persons entitled to enforce compliance, since presumably at least the representative plaintiffs would be available to seek, and interested in obtaining, follow-up relief if necessary Rice v. City of Philadelphia, 66 F.R.D. 17, 19 (E.D.Pa. 1974); Yaffe v. Powers, 454 F.2d 1362, 1365 (1st Cir. 1972)(Rule 23(b)(2) certification is " uniquely suited to civil rights actions in which the members of the class are often incapable of specific enumeration.") As is true in such benefits cases, this action is appropriate for certification under Rule 23(b)(2). Plaintiffs seek a declaration that by its terms the Plan violates 204(b)(1)(H) because the accrual of benefits ceased and/or the rate of benefit accruals is decreased for participants because of their age. To remedy this, Plaintiffs seek injunctive relief requiring Defendants to compute and pay participants' benefits in compliance with the statute. The fact that the Pension Credit Formula and the Transition Provisions may not have created a cessation of accruals or a decrease in the rate of benefit accrual for some individual potential class members because of their individual circumstances, or that the impact of any such cessation or reduction may vary as to individual class members, does not preclude Rule 23(b)(2) certification of plaintiffs' claims

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seeking to have the benefits for all participants computed under a formula that complies with the law. WHEREFORE, Plaintiffs respectfully request that pursuant to Fed.R.Civ.P. 23 the Court certify 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 effective January 1, 1998, excluding all individuals who first became participants in the Plan after January 1, 2002. Plaintiffs further request that they be designated as Representatives for the certified class and that their Counsel be appointed Class Counsel. CERTIFICATION OF COMPLIANCE WITH D.C.COLO.LCivR 7.1 The undersigned counsel for Plaintiffs certify pursuant to D.C.COLO.LCivR 7.1 that he conferred in good faith with Gregory Eurich, local counsel for Defendants, about this motion, and Mr. Eurich indicated that his clients oppose certification of the case as a class action. Dated: February 28, 2006. s/ Robert F. Hill_________________ Robert F. Hill John H. Evans John F. Walsh Hill & Robbins, P.C. 100 Blake Street Building 1441 Eighteenth Street Denver, CO 80202 Telephone: (303) 296-8100 Fax: (303) 296-2388 Email: [email protected] [email protected] [email protected] Douglas R. Sprong, Esq. Korein Tillery 701 Market Street, Suite 300 St. Louis, MO 63101 Telephone: (314) 241-4844

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Case 1:03-cv-02671-RPM

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Fax: (314) 588-7036 Email: [email protected] Attorneys for Plaintiffs Johnny Wells et.al.

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Case 1:03-cv-02671-RPM

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CERTIFICATE OF SERVICE I hereby certify that on February 28, 2006 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael S. Beaver Greg Eurich Parker W. Dragovich Kerri J. Atencio Holland & Hart LLP 8390 East Crescent Parkway Suite 400 Greenwood Village CO 80111 [email protected] [email protected] [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the non-participant's name: Margaret A. Clemens Nixon Peabody LLP Clinton Square, P.O. Box 31051 1300 Clinton Square Rochester, NY 14603-1051 s/Robert F. Hill_______________________ Hill & Robbins, P.C. 100 Blake Street Building 1441 Eighteenth Street Denver, CO 80202 Telephone: (303) 296-8100 FAX: (303) 296-2388 Email: [email protected] [email protected] [email protected]

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