Jump to content

  • Log in with Facebook Log in with Twitter Log in with Windows Live Log In with Google      Sign In   
  • Create Account

- - - - -

Teamsters Sue The Central States Pension Fund


This topic has been archived. This means that you cannot reply to this topic.
No replies to this topic

#1

  • Guests
  • 0 posts

Posted February 15 2003 - 01:51 PM

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD HERMAN, DANIEL PAULE, LARRY ARWOOD,
DENNIS HELVEY, WILLIAM ROSE, MICHAEL
KRUCKER, LARRY WHITMEYER, and WILLILAM
BOHAN, Individually and as representatives of a Class of
similarly-situated Individuals,
Plaintiffs,
vs.
CENTRAL STATES SOUTHEAST & SOUTHWEST
AREAS PENSION FUND; CENTRAL STATES
SOUTHEAST & SOUTHWEST AREAS HEALTH &
WELFARE FUND; EXECUTIVE DIRECTOR THOMAS
NYHAN, plans administrator; and, FUNDS TRUSTEES
FRED GREGARE, JERRY YOUNGER, CHARLES
WHOBREY, RAY CASH, GEORGE WESTLEY, HOWARD
MCDOUGALL, ARTHUR H. BUNTE, JR., TOM J.
VENTURA, GARY F. CALDWELL and DANIEL J.
BRUTTO, Individually and Severally,
Defendants.
Case No.
HON.
/
Ann Curry Thompson (P 27242)
KELMAN, LORIA, WILL,
HARVEY & THOMPSON
Attorneys for Plaintiffs and the Class
2300 First National Building
660 Woodward Avenue
Detroit, MI 48226-3588
(313) 961-7363
Thomas H. Geoghegan
Law offices of LEON M. DEPRES
Co-Counsel for Plaintiffs and the Class
77 W. Washington Street
Chicago, IL 60602-2985
(312) 372-2511
/
COMPLAINT AND DEMAND FOR TRIAL BY JURY
There is no other civil action arising out
of the same transaction or occurrence
alleged in this complaint against these
defendants pending in this Court.
_______________________________________
Ann Curry Thompson, Attorney for
Plaintiffs and the Class
2
NOW COME plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN [plaintiffs], by and through their
attorneys, KELMAN, LORIA, WILL, HARVEY & THOMPSON, and complaining
against defendants CENTRAL STATES SOUTHEAST & SOUTHWEST AREAS
PENSION FUND [Central States Pension Fund]; THE CENTRAL STATES
SOUTHEAST & SOUTHWEST AREAS HEALTH & WELFARE FUND [Central
States Health Fund]; the PLANS ADMINISTRATOR and the FUNDS
TRUSTEES [Trustees], state as follows:
NATURE OF THE ACTION
This is a complaint for equitable and declaratory relief to correct
violations of the Employment Retirement Income Security Act [ERISA] Sections
1 et seq; 29 U.S.C. §§1001 et seq.; et seq.; and, of the Labor Management
Relations Act [LMRA] Sections 302 et seq.; 29 U.S.C. §§186 et seq., and to
recover rights and benefits under defendant Central States Funds for plaintiffs
and other similarly-situated members of the represented class who have been
aggrieved by the unlawful practices of defendant Central States Funds, its
defendant Plans Administrator and its defendant Trustees.
JURISDICTION AND VENUE
1. This case presents federal questions under 28 U.S.C. §1331. This
Court has jurisdiction over this action under ERISA Section 502(e)(2); 29 U.S.C.
§1132(e); and, under Section 302©(5); 29 U.S.C. §186©(5) of the LMRA.
3
2. Venue is proper in this Court because all defendants have their
principal place of business within this judicial district, the pension plan is
administered in this judicial district and the practices alleged to be unlawful
were committed within this judicial district.
THE PARTIES
3. Plaintiff Herman brings this case on behalf of himself and others
similarly situated to clarify rights under the plan to reemployment as future
retirees, to enjoin the unlawful practices alleged herein, to enjoin future such
practices, and to correct the structural defects of the plan as alleged herein.
4. Plaintiffs Paule, Arwood, Helvey, Rose, Krucker, Whitmeyer and
Bohan bring this case on behalf of themselves and other similarly situated to
clarify rights under the plan to reemployment as retirees, to enjoin the
unlawful practices alleged herein, to enjoin future such practices, to correct
the structural defects of the plan as alleged herein, to recover rights and
benefits abrogated or lost due to the arbitrary and capricious conduct alleged
herein.
5. Richard Herman resides in Monroe, Michigan, and is currently
employed by Yellow Freight as a truck driver. He has accumulated 30 years
of contributory service with the Central States Fund. He planned on retiring
in September 2001 on a monthly pension of $3,000 per month at age 56. For
personal and financial reasons he would need to work post-retirement, and
had planned on working for the U.S. Postal Service as a driver, a position
that was not prohibited under the Fund´s so-called "Reemployment Rules"
4
prior to June 30, 2002. He was told by Fund representatives that he could
not engage in such employment or any other employment that was
"potentially organizable by the Teamsters". When Mr. Herman stated that, in
that case, he would have to go to work on the family farm, he was told he
could not do that either because the Teamsters Union organizes farm
workers. In consequence, Mr. Herman has had to postpone his retirement
plans indefinitely.
6. Daniel Paule resides in Ballwin, Missouri and had retired on
September 1, 2000 at age 53. He receives a monthly pension of $2,000. He
retired under the 30 and Out provision of the Central States Fund. His entire
career as a Teamster driver delivering plumbing supplies for an employer who
was in the wholesale trade industry. He was forced into retirement by ill
health caused by a serious blood disorder and a heart attack at age 48. He
obtained post-retirement employment with a company in the construction
industry that supplied plumbing supplies, but the work he performed did not
involve driving or handling plumbing supplies. He did a variety of tasks,
including cleaning and repairing the premises; doing inventory of tools and
office supplies; giving computer data assistance; checking building security
and a number of other miscellaneous duties as required by the employer on
an ad hoc basis. He set his own schedule and worked when he pleased,
usually 26 to 32 hours a week for $10 per hour. When he received a letter
from the Fund inquiring if he were working, he answered truthfully.
Specifically he informed the Fund that his job entailed 18 different
5
responsibilities. He was notified in March 2002 that he was engaged in
Prohibited Reemployment. When ordered to do so, he quit his job
immediately and instituted his internal appeal remedies. Prior to exhausting
his internal remedies, he was notified in September 2002, that the Hardship
Committee had determined that he had to repay the entire amount of the
pension he received during concurrent periods of working in prohibited
reemployment. His pension was suspended 100% for three months beginning
in November 2002 through January 2003; benefits would be resumed in
February 2003, less 25% for that month and every month thereafter until the
entire sum of $40,000 was repaid. His final internal appeal was rejected on
December 2002. He was deemed to have been in Teamster Industry
Reemployment because the jobs of building maintenance, custodial/janitorial
work and inventory control were "classifications" covered in area collective
bargaining agreements. Each of the collective bargaining agreements
produced in support of this contention covered each as a "unique and
separate job classification", none of which singly or in the aggregate covered a
classification of work involving multi-tasked employment in which only a
small percentage of the total job fell within any one of numerous such
classifications.
7. Plaintiff Larry Arwood retired from ABF at age 57 on a 30 & Out
Pension in April 2000. His pension benefit was $3,000 a month. He lives in
Lamar, Mississippi. He took a job hauling U.S. mail for Mail Contractors of
America. He honestly believed that he was working for the U.S. Postal
6
Service because the Postal Service processed and approved his application.
There were numerous other retired Teamsters working with him; he was
informed that there were numerous other retired Teamsters performing the
same work in other areas covered by the Central States Fund; he was aware
of at least one retired Teamster who had been approved for the job by the
Fund. When he received a questionnaire from the Central States Fund in
July 2002 about his post-retirement employment, he answered truthfully.
His pension and the health care for himself and his wife was suspended on in
September 2002. During the time his appeal was pending he continued to
work, confident that he was working within the rules and that his appeal
would be granted. He appeared before the Board of Trustees in January
2003, and quit his job that same day. His final appeal was denied. He has
been notified that his pension will remain suspended for three full months
following the month he ceased his employment, and that every check
thereafter will be reduced by 25% until such time as the full amount of the
alleged overpayment of $75,000 has been repaid. He has no other income
outside of his pension; he has not had a check since August 2002; his wife is
laid off; they have no health care and they are facing bankruptcy and other
hardships.
8. Plaintiff Dennis Helvey resides in Farmington, Missouri and
retired at age 48 after 30 years at Yellow Freight. His monthly pension of
$3,000 was effective November 1999. In March 2000, he called the Fund
regarding reemployment at Farmington Building Supply as a "yard boss". He
7
was asked if the job were in the same field as the job he retired from and if it
were a union job. He answered "No" to both questions, and was told "go for
it". Thereafter he received 2 forms inquiring about his employment. He
responded to both of them. On September 6, 2002, he received a letter
informing him that he was engaged in "Teamster Industry Employment" and
that his pension would be suspended effective November 2002 if he did not
quit. He quit and appealed. On November 1, 2002, he was informed that he
owed the Fund $96,000 in overpaid pension benefits. On November 8, 2002
he was told that he could work at Farmington Building Supply, but only as a
cashier or a general cleaner. His final appeal was denied on January 21,
2003. His benefits have been suspended for January 2003 through March
2003, during which time he must self-pay his health care. His pension will
be reduced by 25% until the entire overpayment has been recouped.
9. Plaintiff William M. Rose from Cuyahoga Falls, Ohio, was forced
into retirement after Central Cartage went out of business. He began
receiving a monthly pension of $2,300, effective October 1999. He got
approval from the Fund on November 17, 2000 to work at Trusco, a company
that built house tresses, in building maintenance. He continued to work at
Trusco without any reason to believe he did not have every right to do so. He
received a letter from the Fund, dated May 1, 2002, however, informing him
he was working in violation of the reemployment rules. Although he obeyed
the ultimatum to quit the job, his benefits were suspended beginning July
8
2002. He lost his final appeal, but the Hardship Committee waived the
overpayment.
10. Plaintiff Michael Krucker lives in Roseville, Michigan. He retired
after his company, Consolidated Freightways, went out of business. Mr.
Krucker has put in his pension papers in May 2002. He was not notified of
the impending change in the reemployment rules to become effective July
2002. Had he been notified, he would have retired before that date, because
he had planned to go to work for the Postal Service post-retirement. After CF
closed he named a retirement date of September 1, 2002. Simultaneously,
he applied to the Postal Service and received a job offer at the beginning of
November 2002. He was told this was prohibited employment. In contacts
with the Fund he inquired into what jobs he might be able to take. He was
told there was basically nothing; they don´t want you to retire because of the
condition of the Fund. Although a job with the Postal Service would not have
violated the pre-July 2002 rules, the application of the 2002 amendments to
him has caused the loss of a job opportunity of $1,950 per month.
11. Plaintiff Larry Whitmeyer was a participant in the Central States
Funds up to April 2001. He had accrued 32 years of contributory credit. In
October 2000, he and other owner-operators driving for Landstar Ranger,
Inc. were notified by defendant Pension Fund that their participation in the
Funds was to be terminated immediately because their employer had
allegedly engaged in “adverse selection” for the past 20 years. He was
notified that he must retire from Landstar on or before April 2001 in order to
9
preserve his right to retiree health are. Mr. Whitmeyer complied immediately.
At age 59 on a 30 & Out Pension at Benefit Class 17b, he receives a pension
in the amount of $2,700 per month. Because defendant Pension Fund
terminated his participation in the Fund and forced his retirement, he lost
the opportunity to retire at the Class 18 Benefit level that would have netted
a pension between $3,200 - $3,500 per month with 32 to 35 years of
contributory service. While Mr. Whitmeyer was earning credit with the Fund
in covered employment he simultaneously maintained a small side salvage
business. Because his business required some loading or unloading of a
truck, he was told that he would also have to give it up before he would be
eligible to start his pension. Since retiring, Mr. Whitmeyer has consulted the
Fund about several specific job opportunities – cashier at a supplier store or
at Home Depot; security guard at a construction company and a janitorial job
at a school. In each case it took several months to get an answer. All but the
last request was denied; finally he got permission to be a janitor at the
school. The job was no longer available.
12. William J. Bohan resides in West Columbia, South Carolina. He
retired from UPS in February 2000 on a monthly pension of $3,300 with
health care. In May 2002 he took a job delivering medicine to seriously ill
homebound patients in either his own or the company´s automobile. He was
notified in June 2002 that the Fund had been "recently informed" that he
was working. Mr. Bohan´s was notified in July 2003 that if he did not provide
documentation by September 1, 2002 that he had terminated his job, his
10
pension would be suspended. He quit the job immediately. He had earned
the sum total of $2,177.17 in reemployment. While appealing the adverse
determination, he was notified that he owed $13,200.00 that would be
recouped by suspending his checks for the months of September, October
and November. If he wanted to continue his health care, he would have to
continue it through COBRA. At the final appeal level in January 2003, it was
determined that he had not been engaged in prohibited employment. By that
time, however, he had not only suffered the loss of $13,200 in pension
benefits, held without interest, and he had been made to pay over $400 in
COBRA payments, but he had also lost six months of income from the job he
had been forced to terminate and that is no longer available to him.
13. The represented class is composed of similarly situated
employees or former employees of companies who are or were participating in
defendant Central States Funds and who have been or will be prevented from
working post retirement on the ground that they are violating the Funds socalled
Prohibited Reemployment rule.
14. Defendant Central States Fund is multi-employer pension created
under an Agreement and Declaration of Trust established on March 16, 1955
and amended from time to time, by the IBT and several employer associations
that employed Teamsters under a series of collective bargaining agreements
requiring contributions into the Central States Fund on their behalf. Similarly,
defendant Central States Health & Welfare Fund is a multi-employer health &
welfare fund. Both Funds are managed by Defendant Trustees and the
11
defendant Plan Administrator. They are charged with the fiduciary
responsibilities of administering the Funds pursuant to their plan terms in
accordance with the law. The Funds are Taft-Hartley trust funds operating in
accordance with the LMRA Section 302©(5); 29 U.S.C. §186©(5); and ERISA
Section 3(37); 29 U.S.C. §1002(37).
15. The five union trustees are Ray Cash, Jerry Younger, George J.
Westley, Philip E. Young, Charles Whobrey and Fred Gregare. The employer
trustees are Howard McDougall, Arthur H. Bunte, Jr., Tom J. Ventura, Gary F.
Caldwell and Daniel J. Brutto.
17. Defendant Plan Administrator is the acting Executive Director,
Thomas Nyhan.
FACTUAL BACKGROUND
18. Plaintiffs and the represented class are or were represented by
various Locals of the International Brotherhood of Teamsters [IBT] that
served as their exclusive bargaining representatives and in that capacity
negotiated collective bargaining agreements providing for employer
contributions on their behalf to be made into defendant Funds.
19. Pursuant to the collective bargaining agreements between their
employers and the IBT all named plaintiffs and all members of the
represented class became participants in the Central States Funds under
which they accrued vested early retirement benefits and the right to retiree
health care and other collateral benefits.
12
20. In 1985 the Fund began offering enhanced early retirement
benefits for those Teamsters employed by employers contributing into the
Fund on their behalf at the highest contribution levels. For example, by the
year 2000, a participant with 25 years of contributory credit, and who was in
Benefit Class 18 [highest rate of employer contribution under the UPS and
Freight Master Agreements], could retire at any age on a pension of $2,000
per month; a participant with 30 contributory years in Benefit Class 18 could
retire at any age on $3,000 per month. A Teamster with 35 contributory years
and in Benefit Class 18, could retire at any age on $3,500 per month.
21. All named plaintiffs and all members of the represented class
have accrued substantial early retirement benefits under defendant Pension
Fund; all named plaintiffs and a significant but unknown number of the
represented class are or were also participants in the defendant Health Fund.
These accrued benefits earned range from under $200 per month to a
maximum of $3,500.
22. Plaintiff Herman and an unknown number of the represented
active members of the class were adversely affected by the implementation of
the amendments to the Prohibited Reemployment Rules adopted in March
2002, to be effective for retirements after June 30, 2002. They retracted
applications to retire, or declined jobs that were theretofore permissible;
and/or, with adequate notice that the contemplated amendments were under
serious consideration by the Fund, would have retired before June 30, 2002.
13
23. Plaintiffs Paule, Arwood, Helvey, Rose, Krucker, Whitmeyer and
Bohan, and an unknown number of the represented retired members of the
class, were forced to take early retirement due to a variety of circumstances
that prevented them from working to normal retirement age 65, such as
company closings, illness or other consequences of working for years in highly
physically and emotionally stressful employment.
24. All named plaintiffs and all members of the represented class need
or will need to work after retirement because their pensions are not large
enough to sustain their obligations.
25. The Central States Pension Plan has contained a reemployment
prohibition since its inception and that has been amended significantly and
with increasing restrictions in recent years. At some unknown point in time the
Central States Health Fund added a reemployment rule that mirrored the
corresponding provision in the pension plan.
26. The plan document as of February 1964 provided simply that a
pensioner who became reemployed "in the industry" forfeited rights to his
pension until he again "retired". There were no enforcement mechanisms
specified and overpayments occurred only under a catch-all
"misrepresentation" provision that provided for "recovery of benefit payments
made in reliance thereon". [See Tab 1].
27. The 1967 Plan added several restrictions, inter alia, supervisory
and self-employment, as well as "any classification that is covered by a
14
Teamster agreement, either in the area in which he retired or … in which he
becomes reemployed". [See Tab 2].
28. The 1976 ERISA plan document contained a significantly more
detailed provision, and added the "same trade or craft in the Teamster
Industry" language. The enforcement mechanism remained limited to the
catch-all "misrepresentation" provision in Article VI, Section 5. [See Tab 3].
There was an exact parallel, however, between the prohibited post-retirement
reemployment in Article IV, Section 14, and the so-called "covered employment"
in Article III, Section 2 for which members would be granted past credited
service before they became participants in the Fund.
29. The 1980 Plan added to the definition of "covered employment"
employment that required the "usual Teamster skills in the traditional
Teamster industry at the time of such employment". [See Tab 4]. Since the
parallel between the reemployment and covered service rules was maintained,
the amendment had the effect of both further restricting permissible
reemployment, but also increasing the ability of members to gain past credited
service. Overpayments occurred pursuant to the customary
"misrepresentation" provision.
30. Significant changes to the rules with added enforcement
procedures were announced by the Executive Director in the Fund´s 1984 –
SPECIAL BULLETIN - 84-1 were initiated in 1984. [See Tab 5]. The announced
enforcement procedure involved mailing an inquiry letter to "randomly selected"
retired Teamsters. The rationale expressed for the changes was to prohibit work
15
"which is in any way associated with the Teamster Industry", as defined in
Section (a)(1) of the attached Rule.
31. The 1985 Plan eliminated the parallel between prohibited
reemployment and covered employment. It also excepted "any public and
private work in a job classification of gas station attendant, school bus driver or
janitor". [See Tab 6]. A provision captioned "Recovery of Overpayments" was
added in Article VII, Section 7.05, but by its terms its operation remained
limited to reliance upon participant misrepresentations.
32. Further changes were announced in a letter dated April 1987 to
"Dear Pensioner" and signed by the Executive Director. [See Tab 7]. Prohibited
Reemployment was now defined inter alia as: "Work… as a driver (regardless of
the vehicle driven), driver helper, warehouseman, dock worker, mechanic or
clerical office employee", and "Work requiring you to use job skills similar to
those you used or learned while doing any job for which you earned
Contributory Credit… "
33. The practice regarding suspensions in 1987 is revealed in a
response by the Department of Labor to a personal Congressional inquiry. [See
Tab 8]. Upon information provided by the Fund, a retired Teamster working in
prohibited reemployment would be given 30 days to quit in order to avoid a
suspension, and that no suspensions would occur during the period when the
retiree pursued internal appeals.
34. In January 1989, a Plan Statement [see Tab 9] contained this
rationale for the restrictive reemployment rules:
16
… To permit pensioners to take jobs with non-union employers
that are competing with union employers undermines the very
purpose of your Pension Fund.
If we were to sit by and allow this to happen, the benefits of your
Pension Fund would become nothing more than a supplementary
source of income to subsidize the sub-standard wages most nonunion
employers pay.
We believe the Teamster Industry is beginning to recover from the
tremendous losses it sustained because of deregulation and the
economic downturn of the early 1980’s. The last thing the
industry needs at this time is to have its path to full recovery
blocked by pensioners who receive its benefit while working for
non-union employers.
As Trustees, we have no intention of making it easy for non-union
employers doing Teamster Industry work to undercut the business
cost of their union competitors by hiring pensioners who benefits
make it possible for them to work for a lesser wage.
35. At some point between 1987 and 1992, most probably in 1990, the
provision was amended again. [See undated "Roadguide to Your Pension Plan,
but believed to be the 1991 SPD at Tab 10]. The 1987 definition of prohibited
reemployment was dropped in favor of broader language. The terms "same
industry"; and, " in any other industry in the same job classification as… other
Participants then employed… in the same geographical area" were introduced.
The amendments also permitted working in so-called “prohibited employment”,
such as truck driving, provided that it was with a “governmental agency” that
was not currently making and had never made contributions into the Fund. A
provision for suspension of benefits was added. At the same time, the 1991
SPD also haled the significantly enhanced benefits for early retirees that were
first introduced in 1985; it promised that those benefits would "go higher and
higher in the years to come". Overpayment requirements as described in the
17
1991 SPD appear to remain discretionary in cases of giving inaccurate
information.
36. The Restated Plan effective January 1, 1985 as amended through
July 1, 1992, indicates that an overpayment provision was added to the
reemployment section in Subsection (m) in the case where a pensioner had
failed to notify the Fund of his reemployment. [See Tab 11].
37. From 1992 through June 30, 2002, the “prohibited
reemployment” definition and the prevailing enforcement, suspension,
overpayment provisions remained unchanged. The controlling definition was
found in the Restated Plan Effective January 1, 1985 as Amended Through
December 31, 1995. [See Tab 12].
38. In a letter to a retired participant in February 1996, the Fund was
excepting the classifications of Gas Station Attendant, Public School Bus
Driver, Janitor and Security Guard from the reeemployment rule. [See Tab 13].
39. The 2000 SPD states that suspensions will occur only until the
retiree quits working. Overpayments are described in discretionary language,
"… your future benefits may be reduced to reimburse the Plan… " [See Tab 14].
40. In the Spring 2002 edition of its magazine TeamWork, the Trustees
announced an amendment to the reemployment rules for anyone who retired
after June 30, 2002. [See Tab 15]. Although the amendments were adopted in
March 2002, the Spring edition of TeamWork was the first announcement. .
41. Upon information and belief, the publication TeamWork is
provided to only a small percentage of the participants of the Fund.
18
42. These changes were both substantive and procedural. There were
two major substantive changes: 1) The exception for employment with
governmental agencies was eliminated; 2) the language in Section 4.13(f)(3) that
protected a retiree working in an industry unrelated to the industry where he
had earned credited service provided that he was not in the same job
classification as other participants of a contributing employer "located within
the same standard metropolitan statistical area" was eliminated. The
corresponding rule, Subsection (g)(3)©(ii), in the amendment now included in
the definition of prohibited reemployment: "in any other industry if the Pension
is in the same job classification in which any other Participant of the Pension
Fund is then employed by any Contributing Employer." [See Tab 16]. Thus, the
rule broadened what would be considered prohibited reemployment and
eliminated a significant exception.
43. The March 2002 amendments contained sweeping enforcement
procedures for suspensions, overpayments etc. [See Tab 16 – Section 4.13 (a)-
(f)]. Inter alia - suspensions became mandatory; failure to respond to disclosure
requests creates a rebuttable "presumption" that a retiree is engaged in
prohibited reemployment and a basis for permanent suspensions, unless
rebutted by "clear and convincing" evidence; suspensions apply to spouses
receiving benefits under a QDRO; resumption of benefits is on a prospective
basis only, subject to offset; requires signed authorizations for broad access to
personal information failure to comply promptly with which results in a
suspension of benefits; reemployment suspension and status determination
19
become subject to the Plan´s Benefit Claims and Appeal Procedures; offset
provisions permit 100% forfeiture of the first three pension checks and 25% of
every check thereafter.
44. In TeamWork, the stated rationale for the existence of the
reemployment rules is considerably different from the ones previously offered:
The Pension Fund has always maintained rules concerning
“Prohibited Reemployment” after retirement. These rules are
intended to protect the assets of the Fund.
With the poor investment performance of the Fund the last two
years and with individuals retiring earlier at higher benefits than
in the past… the Prohibited Reemployment rules become even more
important for the Fund’s future financial security. With this in
mind, the Prohibited Reemployment Rules have been modified… .
45. This edition of TeamWork contains an “interview” with the Fund’s
actuary in support of the changes:
TeamWork:
Have there been any changes in the retiree population that affect the
Fund?
Wagner:
Yes. First, the new benefits are higher than they have been in the
past. Second, individuals are retiring earlier, drawing benefits
longer and it appears many are taking other jobs and continuing to
work while they are drawing benefits.
We are gratified that significant benefit increases are showing up
in retirees’ checks, but we are concerned about participants who
retire early and then take other jobs. This trend is an expensive
cost to the Pension Fund, which was designed to provide a
retirement income, not supplemental income. The Fund’s
reemployment rules can reduce the cost of this trend.
46. Although the 2002 amendment to the reemployment rules was
under serious consideration by the Trustees well before March 2002, no formal
20
notice was given to the participants at any time between the time that the
amendment came under serious consideration, through the date the
substantive changes became effective in July 2002.
47. The articulated purpose of the March 2002 amendments - to use
the reemployment rules as a device to “fix” the financial problems of the Fund –
was accompanied by the immediate implementation of the amendments to the
enforcement procedures. Although these changes for heightened enforcement
and broaden application of the substantive terms of the reemployment rule
were clearly in operation by early 2002.
48. Prior enforcement involved periodic spot checks requesting
randomly selected retirees to sign an affidavit regarding post-retirement
employment. This was suddenly replaced with blanket letters to a significant
portion of the retiree population, without regard to whether there was any
reason to believe the selectee was engaged in “prohibited reemployment”.
These letters demand a signature on a Social Security Authorization to be
returned within 30 days on penalty of cutting off the pension. As a
consequence of sending these notices through the general mail without any
way to know whether the demand for an authorization in fact reached its
intended recipient, numerous such letters have gone astray, resulting in the
termination of pension and health & welfare benefits, causing great hardship
due to the lengthy period of time to prove a negative that the intended recipient
was not and never had been engaged in “prohibited reemployment”.
21
49. In addition, defendants developed increasingly more restrictive
interpretations of the definitional language of the Prohibited Reemployment
Rule, such that the terms “industry”, "trade", "craft" and “classification” have
become increasingly elastic with much broader meaning that formerly. In
consequence, employment that once would not have been deemed “prohibited”
now is; reemployment of a type once approved will no longer be; a pensioner
who had been approved for certain employment is subject to review and a
different outcome.
50. The Fund requires anyone wishing to take a job post-retirement,
to get advance approval. The approval process, however, takes too long to
provide an answer in time to accept a job offer. The Fund has no known
guidelines that would assist a participant or retiree to reasonably evaluate
the options before assuming the risk of either taking the job or losing the job
opportunity.
51. Under the procedures in effect under prior rules, a retiree whom
the Fund claimed was engaged in prohibited reemployment could avoid a
suspension of his pension and could continue his employment while seeking
a review of the adverse determination.
52. The current rules have no safe harbor. Moreover, the rules are
subject to the Fund´s Claims procedures. [See Tab 17]. There are 4 levels to
this process. A member makes the request and receives a determination
from the administrative committee established for this purpose, the so-called
“Reemployment Committee”. The next appeal level is directed to the Benefits
22
Claim Review Committee; then, the Benefit Claim Appeals Committee; and
finally, to the full Board of Trustees. A fourth level of review for those who
have had adverse determinations is to the "Hardship Committee". The time
permitted for a response at each step is 60 days, with a 60 day extension for
special circumstances. The Fund’s claims procedures may take a year or
more to exhaust and, as applied to the Prohibited Reemployment Rule, a rule
that itself lacks any guidelines, has caused severe hardship on thousands of
retired or soon to be retired Teamsters who are faced with the Hobson’s
Choice of foregoing their pensions and the critically important attached
health care benefits or, struggling to live on a pension that even at the top
level, available to only certain elite retirees, is not sufficient for a 50+ year old
retiree who still has a family to support, children still in school, a mortgage
and other pressing financial obligations; or, who at such an age, simply does
not want to or cannot remain an idle and unproductive member of society for
the remaining years of his life.
53. As word of the Fund’s new approach to reemployment began to
spread among participants and retirees, and as the effects were felt by a greater
and greater number, resistance started to mount. Hundreds spontaneously
gathered, held meetings, signed petitions, passed resolutions at local meetings,
and placed pressure on their local and international officers to approach the
Trustees.
54. In response, the Trustees announced on January 28, 2003, that
the July 2002 amendment would be “suspended” “in order to study the issue
23
further”. [See Tab 18]. In explanation, the Trustees stated in its 2002-
SPECIAL BULLETIN – 03-01, that they were responding to the “legitimate
concerns expressed by Local Union Representatives and participants” that
“encouraged the Trustees to take a new look at the rules” because the
“Trustees are sensitive to the need to balance the potential and unintended
inequities the modifications may cause in some situations with the need to
implement crucial reforms to preserve the integrity of the Funds”. The
Bulletin specifically contemplates that future such “reforms”.
55. Upon information and belief the Trustees only suspended the
substantive portion of the 2003 amendments found in Section 4.13(g) have
been suspended. The Trustees have continued to enforce the procedural
enforcement provisions found in Section 4.13(a) through (f).
CLASS ALLEGATIONS
56. Plaintiffs hereby incorporate the allegations in ¶¶1-55 above as
though fully reiterated herein.
57. Plaintiffs may properly maintain this action as a class action under
Fed. R. Civ. P. 23(b)(1) or (b)(2).
58. The class is composed of both active and retired participants in
Defendant Funds who seek to clarify rights under the plan to reemployment
as retirees, to enjoin the unlawful practices alleged herein, to enjoin future
such practices, and to correct the structural defects of the plan as alleged
herein, and to recover rights and benefits abrogated or lost due to the
arbitrary and capricious conduct alleged herein.
24
59. Upon information and belief, the class includes an unknown
number of individual participants widely dispersed throughout the United
States, believed to be so numerous that joinder of all members as individuals
will be impractical.
60. This action presents fundamental legal questions common to all
members of the class as more fully specified below.
61. Plaintiffs, as representatives of the class, will fairly and adequately
protect the interests of the class; plaintiffs have selected experienced,
competent counsel as their legal representatives who have successfully
represented individual claimants to various employee benefits, who have
successfully maintained other class actions for employee benefits, and who are
attorneys in the law firm of KELMAN, LORIA, WILL, HARVEY & THOMPSON,
and the LAW OFFICES OF LEON DESPRES, well-staffed offices with the
resources and expertise to pursue class actions of this magnitude.
62. The prosecution of separate actions by individual class members
would create a risk of inconsistent or varying adjudications with respect to
individual class members and would establish incompatible standards of
conduct for the trustees; adjudications with respect to individual class
members would, alternatively, be dispositive as a practical matter of the
interests of other class members, or would substantially impair or impede their
ability to protect their interests.
63. The questions of law and fact common to the members of the class
predominate over any question affecting only individual members.
25
64. As alleged herein, defendants have acted on grounds applicable to
the class as a whole making final adjudicative relief or corresponding
declarative relief with respect to the class as a whole appropriate.
65. Upon information and belief, the class members have no interest
in individually controlling separate actions because the predominant and
controlling material issues are the legal questions set forth in the complaint.
66. No appreciable difficulties will be encountered in managing this
action as a class action, and the class action device is superior to all other
available methods for the fair and efficient adjudication of this controversy.
COUNT I
[ERISA – Breaches of Fiduciary Duties]
67. Plaintiffs hereby incorporate by reference all of the allegations in
¶¶1-55 above as though fully reiterated herein.
68. Defendant Trustees have a fiduciary duty pursuant to ERISA
Section 404(a)(1)(A)(i)(D); 29 U.S.C. §1104(a)(1)(A)(i)(D) to refrain from acting in
an arbitrary and capricious manner, from conducting the affairs of the Funds
for any reason other than for the exclusive benefit of the participants.
69. Defendant Trustees in derogation of their duties under the
referenced statutory authority have promulgated and enforced a policy of
prohibited reemployment that and, violates pertinent provisions of ERISA as
specified hereinafter.
70. Defendant Trustees in derogation of their duties under the
referenced statutory authority have violated the “prudent man” rule of ERISA
Section 404 that requires pension fund trustees and administrators to act as a
26
“prudent man acting in a like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with like aims… ” A
comparison of other multi-employer funds indicates that few if any have such
restrictive restrictions on post-retirement employment.
71. Defendant Trustees, in derogation of their duties under the
referenced statutory authority, have required or will require plaintiffs and other
members similarly situated to forego post-retirement employment that does not
adversely implicate legitimate interests of the Fund and/or does not fall within
any reasonable interpretation of the language of the Prohibited Reemployment
Rules.
72. In further derogation of their fiduciary duties defendants have
terminated and will continue to terminate accrued early retirement pensions
earned by plaintiffs and other members of the represented class under the
Prohibited Reemployment Rule without reasonable basis and without relevant
actuarial analysis, all to plaintiffs´ and other members´ of the class detriment.
73. Defendant Trustees, in derogation of their duties under the
referenced statutory authority, have failed to give adequate notice to plan
participants of proposed plan amendments under serious consideration.
74. Defendant Trustees, in derogation of their duties under the
referenced statutory authority as well as under C.F.R. §2530.203-3(6) and
under C.F.R. §2530.503-1(b), failed to provide a claims review process that
processes the claims of participants and/or retirees for a determination of the
27
status with respect to proposed or actual post-retirement Section 203(a)(3)(B)
service in a reasonably prompt manner in accordance with Section 503.
75. The protracted procedure under defendants´ Benefit Claim
Review and Appeals fails to comply with the “reasonable amount of time”
requirement in the statute and regulations, and deprives the members of due
process rights to full and fair consideration of "status" issues. These
procedures are, moreover, arbitrary and capricious when applied to status
determinations in light of the hardships that the reemployment rules
inevitably cause – the loss of remunerative employment, the loss of pension
benefits and pension subsidies such as health care, or all of the foregoing.
76. In breach of their fiduciary duties, defendants have amended the
Plan, effective March 2002, to provide for an offset of benefits allegedly
overpaid due to "prohibited reemployment" that violates the applicable
regulations set forth in C.F.R. §2530.203-3(b)(2) and (3). Defendants´ recent
amendment providing for 100% offset of the first three months of pension
benefits does not distinguish between the "offset" provision in Subsection
3(b)(3) and the "resumption of payments" provision in Subsection 3(b)(2).
C.F.R. §2530.203-3(b)(3) limits the offset to 25% of that month’s total benefit
payment that would have been due but for the offset (excluding the initial
payment described in paragraph (b)(2) of this section, which may be subject
to offset without limitation). Subsection (b)(2), however, applies only when
payments are resumed. In numerous known cases, the offset provision in
the 2002 amendment has been applied before any benefits have been
28
suspended. Thus the first offset payment is not a payment made to resume
benefits, but a payment in which the offset begins, and therefore, it cannot be
subject to an offset greater than that permitted by Subsection (b)(3).
77. Defendant Trustees, in derogation of their duties under the
referenced statutory authority, have failed to promulgate guidelines for
implementation of the Prohibited Reemployment Rules that reasonably informs
participants and retired members of employment that will or will not violated
the rules.
78. Defendants have repeatedly, without adequate notice and without
compelling reasonable basis, changed the definition of Prohibited Employment,
without reasonable basis, on occasion alternatively approving and then
forbidding employment of the same or similar types, such that lay people of
average intelligence who have spent their lives in arduous and heavy manual
labor cannot reasonably be expected to know how to conform their conduct to
the ever changing rules.
79. Defendant Trustees, in derogation of their duties under the
referenced statutory authority, have failed to apply the Prohibited
Reemployment Rules consistently and fairly to all participants and retirees.
80. Defendant Trustees, in derogation of their duties under the
referenced statutory authority, in the name of improving the Fund´s financial
condition, have launched a costly administrative program to find and terminate
retirees working post-retirement in order to deter active participants from
applying for and receiving the early retirement benefits they have accrued.
29
81. Defendant Trustees in derogation of their duties under the
referenced statutory authority have failed to consider, pursue and/or enforce
alternative remedies to cure the alleged problems of the Fund.
82. By promulgating, maintaining and implementing the policy on
Prohibited Reemployment as described above, defendant Trustees have violated
their fiduciary duties to administer the Plan for the sole and exclusive benefit of
the participants and retirees.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare defendant
Trustees´ actions as specified above in breach of their fiduciary duties to
plaintiffs and to the represented class; declare said actions null and void;
and, enjoin further breaches of a similar nature and kind. Plaintiffs further
demand judgment against defendants on behalf of themselves and the
represented class in whatever amount they are found to be entitled, with
interest, costs and attorney fees, all as provided by the pertinent provisions of
ERISA.
COUNT II
[ERISA – Wrongful Denial of Benefits]
83. Plaintiffs incorporate herein by reference all of the allegations of
¶¶1-55 of this complaint as if reiterated in full herein.
84. ERISA Section 502(a)(1)(B) and (3); 29 U.S.C. §1132(a)(1)(B) and
(3), provides that plaintiffs may bring this action to seek recover benefits due
30
them under the terms of a plan, to enforce rights under the plan, or to clarify
rights to future benefits under a plan; to enjoin any act or practice which
violates any provision of ERISA or the terms of the plan, to obtain other
appropriate equitable relief to redress such violation or to enforce any provision
of ERISA or term of the plan.
85. Under the terms of the Fund documents, plaintiffs and others
similarly situated have accrued early retirement benefits and associated health
care.
86. Defendants have denied those accrued benefits to plaintiffs and
others similarly situated in violation of the terms of the Plan by promulgating a
rule and amending it in a contradictory and inconsistent manner supported by
changing supporting rationales; by expanding the definition of the terms of the
Prohibited Reemployment rules beyond their reasonable and customary
meaning and have applied the language inconsistently; by implementing costly
enforcement procedures and by imposing reporting and disclosure obligations
upon participants more appropriate to criminals and understandable only by
lawyers, without notice - all in a manner that is not for the exclusive benefit of
the participants and is arbitrary and capricious.
87. As a direct and proximate result of defendant Trustees´ fiduciary
breaches as set forth above, plaintiffs and other members of the represented
class have suffered damage and have lost some or all of the following rights in
Defendant Pension Fund and in its Health & Welfare Fund, including but not
limited to:
31
a. loss of employment;
b. loss of past and future earnings;
c. loss of pensions;
d. loss of health care;
e. loss of other rights and privileges; and,
e. legal expenses, all of which damages continue into the
future.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare that defendants´
conduct is arbitrary and capricious and that it has wrongfully denied accrued
benefits and other rights provided by the Plan to plaintiffs and other
members of the represented class; to declare said actions null and void;
enjoin further arbitrary and capricious denial or withholding of benefits of a
similar nature and kind; and, to order defendants to restore any and all
rights and benefits wrongfully withheld or denied. Plaintiffs further demand
judgment against defendants on behalf of themselves and the represented
class in whatever amount they are found to be entitled, with interest, costs
and attorney fees, all as provided by the pertinent provisions of ERISA.
COUNT III
[ERISA – Violation of Anti-Cut Back Rule]
88. Plaintiffs incorporate herein by reference all of the allegations of
¶¶1-55 of this complaint as if fully reiterated herein.
32
89. ERISA Section 204(g)(1); 29 U.S.C. §1054(g)(1) provides that the
accrued benefit of a participant shall not be reduced by any plan amendment.
Subsection (2) provides further that the elimination or reduction in an early
retirement benefit or retirement subsidy or the elimination of an optional
benefit with respect to benefits attributable to service before the amendment
shall be treated as reducing an accrued benefit.
90. The amendments to the Prohibited Reemployment rule effective
June 30, 2002 was a plan amendment that has the effect of eliminating or
reducing retirement benefits and/or optional benefits attributable to past
service and thereby reduces accrued benefits.
91. Although defendant Trustees have temporarily suspended the
operation of the substantive provisions of 2002 amendments, for the limited
purpose of further consideration, the rule has not been revoked or rescinded
and the Trustees reserve the right to reinstate it or develop a similar rule at any
time. Upon information and belief the procedural portions of the amendment
relating to enforcement, suspensions and overpayment recoupment have not
been suspended, but are continuing to be enforced.
92. As a direct and proximate result of defendants´ amendments to the
Prohibited Reemployment Rules as described the rights of plaintiffs and others
similarly situated to retirement benefits and/or optional benefits attributable to
past service have been reduced and/or eliminated causing, including but not
limited to:
a. loss of pensions;
33
b. loss of health care;
c. loss of other rights and privileges; and,
d. legal expenses, all of which damages continue into the
future.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare that defendants´
amendments to the Prohibited Reemployment Rules violates ERISA´s anticutback
rule; declare such amendments null and void; enjoin further
amendments that violate ERISA´s anti-cutback rules; and, order defendants
to restore any and all rights and benefits wrongfully lost or denied because of
amendments that violate ERISA´s anti-cutback rule. Plaintiffs further demand
judgment against defendants on behalf of themselves and the represented
class in whatever amount they are found to be entitled, with interest, costs
and attorney fees, all as provided by the pertinent provisions of ERISA.
COUNT IV
[Structural Defect of the Plan]
93. Plaintiffs hereby incorporate all of the allegations in ¶¶1-55 above
as though fully reiterated herein.
94. Under the LMRA Section 302©(5); 29 U.S.C. §§186©(5) an
employer may contribute funds to employee association only if it is an employee
pension or benefit fund provided further that it is for the “sole and exclusive
benefit of the employees of such employer… .”
34
95. The arbitrary and capricious conduct as described in ¶¶1-55
above creates a structural defect in the plan within the meaning of Section 302
that this Court may restrain.
96. As a direct and proximate result of defendants´ wrongful denial of
plaintiffs´ rights and benefits under the terms of the Plan provisions, plaintiffs
have suffered damages and have lost some or all of the following rights,
including but not limited to:
a. loss of employment;
b. loss of past and future earnings;
c. loss of pensions;
d. loss of health care;
e. loss of other rights and privileges; and,
f. legal expenses, all of which damages continue into the
future.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare defendants´
conduct has created a structural defect in the Fund as a result of which
plaintiffs and others similarly situated have been wrongfully denied accrued
benefits and other rights provided by the Plan; declare said actions null and
void; enjoin further arbitrary and capricious denial or withholding of benefits
of a similar nature and kind; and, to order defendants to restore any and all
rights and benefits wrongfully withheld or denied. Plaintiffs further demand
35
judgment against defendants on behalf of themselves and the represented
class in whatever amount they are found to be entitled, with interest, costs
and attorney fees, all as provided by the pertinent provisions of ERISA.
COUNT V
[ERISA - Unlawful Forfeiture of an Accrued Benefit]
97. Plaintiffs incorporate herein by reference all of the allegations of
¶¶1–55 of this complaint as if fully reiterated herein.
98. ERISA Section 203(a); 29 U.S.C. §1053(a) requires that each
pension plan provide that an employee´s right to his "accrued benefit" be "nonforfeitable".
99. Defendant Pension Fund has a duty to pay such pensions as are
provided by the contribution levels set forth in the relevant collective bargaining
agreements.
100. When Fund participants such as plaintiffs and members of the
represented class are covered by a collective bargaining agreement requiring
contributions at a level dictated by the Fund to secure rights to a pension of a
certain amount, and when the participants perform services under that
contract, the participants accrue a non-forfeitable right to payment of the
pension purchased by those contributions.
101. Defendants´ policy on reemployment that is not reasonably
related to any legitimate interest of the Fund, is not supported by actuarial
studies, and is applied to situations broader than those reasonably
contemplated by the language of the rules has resulted and will continue to
36
cause an unlawful forfeitures of accrued benefits purchased by past
contributions and requisite years of service.
102. As a direct and proximate result of defendants´ policies as
described above causing unlawful forfeitures of rights and benefits accrued
under the terms of the Plan, plaintiffs have suffered damages and have lost
some or all of the following rights, including but not limited to:
a. loss of pensions;
b. loss of health care;
c. loss of other rights and privileges; and,
d. legal expenses, all of which damages continue into the
future.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare defendants´
Prohibited Reemployment Rules as promulgated and applied has caused and
will continue to cause forfeitures of accrued benefits in violation of ERISA´s
anti-forfeiture provisions; declare such rules and policies null and void; enjoin
further enforcement of the same or similar rules and policies; and, order
defendants to restore any and all rights and benefits wrongfully forfeited.
Plaintiffs further demand judgment against defendants on behalf of
themselves and the represented class in whatever amount they are found to
be entitled, with interest, costs and attorney fees, all as provided by the
pertinent provisions of ERISA.
37
COUNT VI
[ERISA Section 510]
[Interference with Protected Rights]
103. Plaintiffs hereby incorporate all of the allegations in ¶¶1-55 above
as though fully reiterated herein.
104. ERISA Section 510; 29 U.S.C. §1140 forbids anyone, including a
pension or benefit fund from discriminating against a participant for the
purposes of interfering with the participant’s attainment of any benefit under
the provisions of an employee benefit plan.
105. The Central States Fund has promoted the Fund by providing
high pensions upon early retirement, but through implementation of its
reemployment rules, penalizes members for accepting the early retirement
that they have accrued.
106. Defendants´ purpose in maintaining and enforcing its Prohibited
Reemployment Rules, as announced in its magazine and bulletins, is for the
sole purpose of improving the financial condition of the Fund. Inasmuch as
the reemployment rules achieve the stated goal, only if 1) their application to
both active and retired members has the effect of deterring significant
numbers of now active under-age-65 participants from exercising
“prematurely” the rights promised in the plan; and, 2) their application is
targeted to and/or differentially enforced against those retirees with the
highest pensions, defendants’ application of its reemployment rules
discriminates against, and interferes with the rights of plaintiffs and other
represented members of the class to attain accrued benefits under the Plan.
38
107. As a direct and proximate result of defendants´ wrongful denial of
plaintiffs´ rights and benefits under the terms of the Plan provisions, plaintiffs
have suffered damages and have lost some or all of the following rights,
including but not limited to:
a. loss of employment;
b. loss of past and future earnings;
c. loss of pensions;
d. loss of health care;
e. loss of other rights and privileges; and,
f. legal expenses, all of which damages continue into the
future.
WHEREFORE, plaintiffs RICHARD HERMAN, DANIEL PAULE, LARRY
ARWOOD, DENNIS HELVEY, WILLIAM ROSE, MICHAEL KRUCKER, LARRY
WHITMEYER, and WILLILAM BOHAN, on behalf of themselves and other
individuals similarly situated request that this Court declare defendants´
conduct violates Section 510 and has caused or will cause plaintiffs and
others similarly situated from attaining rights granted by the Plan; declare
such conduct null and void; enjoin further conduct of a similar nature and
kind; and, order defendants to restore any and all rights and benefits
wrongfully withheld or denied. Plaintiffs further demand judgment against
defendants on behalf of themselves and the represented class in whatever
amount they are found to be entitled, with interest, costs and attorney fees,
all as provided by the pertinent provisions of ERISA.
39
Respectfully submitted,
KELMAN, LORIA, WILL,
HARVEY & THOMPSON
By: ________________________________
ANN CURRY THOMPSON
Attorney for Plaintiff
2300 First National Building
660 Woodward Avenue
Detroit, Michigan 48226-3521
(313) 961-7363
LAW OFFICES OF LEON M. DEPRES
By: _______________________________________
THOMAS H. GEOGHEGAN
Co-Counsel for Plaintiffs and the Class
77 W. Washington Street
Chicago, IL 60602-2985
(312) 372-2511
Dated: February 7, 2003