but were unable to raise the $ 15,000 retainer required. Proposed Amicus Curiae's Reply Brief at 5. Precisely when this contact took place is not clear. Apart from this example, the proposed amicus offers no evidence or rationale in support of its contention that an appointment is necessary because retention of counsel in the ordinary course is impossible.
Firestone argues that the participants have known since August, 1984 of its intent to terminate the Plan and recover the assets, a point not contested by the proposed amicus. Moreover, the record reflects numerous communications between the PBGC and participants during the course of this litigation and the PBGC's decisionmaking process. A.R. at 799, 842, 689-842. The complaint giving rise to this action was filed in 1986. Thus, the participants have not been precluded from hiring counsel by a shortage of time in which to organize.
Firestone notes that some participants are "Firestone's most senior current and former corporate officers," including individuals who held positions in the employee benefits department. Plaintiff's Brief at 11. Firestone also points to an instance in which Firestone's retirees organized themselves and retained counsel to challenge Firestone's attempted reduction of retiree health benefits in an unrelated matter. Id. at 12.
It is unclear what "insurmountable obstacles" prevent participants, either individually or collectively, from retaining counsel in this action. It is never a simple matter for a large number of persons to organize themselves and prosecute their claims, a fact recognized in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 23. Nonetheless, prospective plaintiffs often surmount these obstacles, either individually or as a class. The proposed amicus has not shown that there are any extraordinary circumstances in this case preventing the participants from organizing or otherwise retaining counsel.
E. Principles of Judicial Economy and Fairness
The proposed amicus suggests that if a representative is appointed, the participants will join additional claims relating to termination of the Plan, Firestone's fiduciary duty, and the earlier distribution of millions in residual assets to Firestone. See Proposed Amicus Curiae's Reply Brief at 9. The potential resolution of all claims among the PBGC, the participants, and Firestone in one suit supports the appointment of an independent representative. But closer analysis reveals that principles of efficiency and fairness mitigate against appointment of a representative.
The present dispute between Firestone and the PBGC has been before the Court for nearly two years. Cross-motions for summary judgment are ripe at this time. Appointing an amicus, waiting for its report, and then appointing a representative would obviously delay resolution of the present dispute. The proposed amicus makes clear that an appointed representative would go beyond the Administrative Record compiled by the PBGC to conduct discovery and compile an actuarial report. Proposed Amicus Curiae's Brief at 9-10. Such discovery and investigation would be a time-consuming process. But, as noted earlier, resolving the question now before the Court would not impinge on the participants' ability to bring their aforementioned claims in another suit and does not require further discovery. Thus, appointing an independent representative would indeterminably delay the present action with little or no offsetting benefit.
An additional equitable issue militating against appointment is the payment of the amicus and the independent representative from the Plan's remaining assets. Because an appointment is not warranted, the Court need not consider the questions presented concerning the propriety of payment to the amicus and the representative. But it should be noted that an appointment would entail significant costs in light of the proposed amicus's stated intention to undertake discovery and an actuarial investigation. The Court is hesitant to authorize the payment of these costs out of Plan funds without the imprimatur of participant approval inherent in a class action. Moreover, the participants' interest in receiving whatever residual assets are rightfully theirs seems better served by avoiding the expense of representation in the instant case since the PBGC has made a preliminary determination in their favor and will ably defend that decision before the Court.
The Motion for Appointment is denied. Although the participants' interest in the nine million dollars is at stake in a narrow sense, the PBGC is making the same argument that the proposed amicus would make. There is little to be gained by halting this proceeding for lengthy discovery intended to bolster other claims. Moreover, there are no compelling circumstances directing the Court to appoint counsel for the participants. Denying the motion will not prejudice other claims the participants might make. Finally, there is the additional benefit of not spending the retirement fund's surplus assets on legal fees in an action in which the retirees are already ably represented by a governmental entity.
Upon consideration of proposed amicus curiae's motion for appointment of amicus curiae, plaintiff's opposition thereto, the oral arguments of counsel in open court, and the entire record herein, it is by the Court this 13th day of September, 1988,
ORDERED that proposed amicus curiae's motion be, and hereby is, denied in its entirety.
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