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FIRESTONE TIRE & RUBBER CO. v. PENSION BEN. GUAR.

September 13, 1988

FIRESTONE TIRE & RUBBER CO., Plaintiff,
v.
PENSION BENEFIT GUARANTY CORP., et al., Defendants



The opinion of the court was delivered by: GASCH

 MEMORANDUM

 This case concerns the proper disposition of the residual assets of a terminated pension plan. Plaintiff Firestone Tire & Rubber Company (Firestone) challenges the Pension Benefit Guaranty Corporation's (PBGC) rejection of Firestone's proposed alternative method for calculating how much, if any, of the nine million dollars left in Firestone's terminated pension fund is "attributable to employee contributions." The issue presently before the Court, however, is proposed amicus curiae 's motion for appointment to advise the Court on the need for appointment of counsel to represent plan participants and beneficiaries.

 The proposed amicus argues that the participants have significant interests at stake in this litigation, yet neither plaintiff Firestone nor defendant PBGC represents the participants. The movants, attorneys from two law firms, were approached by several participants seeking representation. The proposed amicus claims that the participants "face obvious and insurmountable obstacles in organizing themselves and have been unable to marshall the necessary resources to secure counsel on their own." Proposed Amicus Curiae's Brief at 6. Appointment of an amicus is sought to prepare a report for the Court on the need to appoint an independent representative for the participants; the cross-motions for summary judgment currently pending are to be stayed until the report is finished. The Court is urged to authorize the payment of fees and expenses for both the amicus curiae and the independent representative, if one were to be appointed, out of the nine million dollars remaining in the fund. The movants also question the propriety and lawfulness of the Plan's termination, suggest that Firestone may have violated its fiduciary duty as Plan Administrator, and declare that the rights of the participants cannot be ascertained from the Administrative Record "because Firestone has not produced all of the governing plan documents and instruments." Proposed Amicus Curiae's Brief at 6-9.

 The motion and the concomitant delay are vigorously opposed by plaintiff Firestone. Defendant PBGC has remained neutral on the motion.

 I. Discussion

 It is well-established that the decision to appoint an amicus rests within the broad discretion of the trial court. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982). The true issue presented by this motion, however, is not whether to appoint an amicus, but whether to appoint an independent representative. It appears inevitable that the amicus seeking appointment in this case will conclude that appointment of an independent representative is warranted. See Proposed Amicus Curiae's Reply at 9. Even if the proposed amicus were not predisposed in this manner, it is no better equipped than the Court to determine the need for an appointed representative in this case. The voluminous Administrative Record at hand is adequate to evaluate the arguments put forth by Firestone and PBGC regarding the proper disposition of the nine million dollars of residual assets, a point conceded by the proposed amicus at oral argument. Consequently, the Court will look beyond the amicus issue and consider the propriety of appointing an independent representative for the participants.

 A. The Court's Appointment Power

 The parameters of the Court's power to appoint a representative are ill-defined due to the dearth of case law on the subject. The amicus cites to only two cases in which counsel was appointed for parties not represented in the litigation. In Friends For All Children, Inc. v. Lockheed Aircraft Corp., 567 F. Supp. 790 (D.D.C. 1983), Judge Oberdorfer of this Court appointed an amicus to advise the court about the propriety of a communication from the firm representing Friends for all Children (personal representative of 150 infants killed in a plane crash) to the infants' parents. The firm had advised the parents to substitute themselves as personal representatives and explained its fee arrangement. The court appointed an amicus as guardian ad litem with the responsibility, inter alia, to communicate with the parents about participating in the suit and being represented by the original law firm. Id. at 795-96. Although the court's reasons for the appointment were not entirely clear, apparently it felt the appointment was necessary because communication between the parents and the original law firm raised ethical questions. The propriety of the court's appointment of the guardian ad litem was not challenged (although the payment of fees was challenged on appeal). See Schneider v. Lockheed Aircraft, 212 U.S. App. D.C. 87, 658 F.2d 835 (D.C. Cir. 1981).

 Thus, unlike the instant case, counsel was appointed in Friends For All Children to facilitate communication between the foreign parents and the United States law firm and to help resolve the airline disaster claims in as few suits as possible. See id. at 796. The original law firm, not the guardian ad litem, represented the plaintiffs at the subsequent trials in Friends For All Children. Inadequate representation did not appear to be a factor in the decision to appoint the guardian ad litem.

 In Delgrosso v. Spang & Co., 769 F.2d 928 (3d Cir. 1985), the plaintiffs, pension plan participants, challenged the Plan Administrator's attempt to recover the surplus assets of an amended fund. The district court granted summary judgment in favor of the employer. The third circuit reversed much of the district court's decision, finding that the pension plan specifically precluded reversion of the funds to the employer and that the employer violated its fiduciary duty as Plan Administrator. The Third Circuit's decision called for appointment of an independent administrator to determine how the residual assets of the fund should be distributed. Because the suit was brought by non-vested participants, the Third Circuit directed the district court to appoint a representative for the vested participants to represent them before the district court when it selected an independent plan administrator.

 These two cases suggest that the Court has the power to appoint a representative, but provide little guidance as to what standards the Court should employ in evaluating this appointment request. In other contexts, parties are added if they have interests at stake that are not adequately represented. See Fed. R. Civ. P. 19 & 24. The infrequent use by courts of their power to appoint counsel suggests that some additional factor should be present, such as the inability of the parties to secure representation on their own or as a class, or a unique opportunity to expeditiously and fairly resolve related claims. See Friends For All Children, 567 F. Supp. at 795-96 (appointing guardian ad litem where ...


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