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March 27, 2003


The opinion of the court was delivered by: Nan R. Nolan, United States Magistrate Judge


Plaintiff William Henry Barrett filed suit against defendant Fox & Grove, Chartered ("Fox & Grove") to recover monies allegedly owed him under an ERISA deferred compensation plan (Count 1) and unpaid wages and compensation (Count 2). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c). This matter is now before the Court on the motions of nine former equity partners of Fox & Grove for leave to intervene in this lawsuit. For the reasons set forth below, the motions are granted.


Barrett is a licensed Illinois attorney who worked at the law firm of Fox & Grove until he resigned in December 2000. After his resignation, Barrett started receiving benefits under Fox & Grove's Deferred Compensation Plan (the "Plan"), an ERISA top hat plan maintained "primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees." 29 U.S.C. § 1051(2), 1081(3), 1101(a); Garratt v. Knowles, 245 F.3d 941, 946 n. 4 (7th Cir. 2001). On March 31, 2001, Fox & Grove ceased its operations, terminated the employment of all of its attorneys, commenced liquidation, and stopped making payments to Barrett under the Plan. As of that date, Barrett was one of eleven Plan participants entitled to benefits.

On August 1, 2001, Barrett filed suit in federal court alleging a state law contract claim for unpaid wages and an ERISA claim based on the firm's (1) failure to pay him any installments of deferred compensation after March 31, 2001, and (2) erroneous calculation of the total value of his deferred compensation account. On May 21, 2002, the directors of Fox & Grove amended the Plan, retroactive to March 31, 2001, to provide that no participant would receive any payment of deferred compensation "until such time as the [Plan] Committee, in its reasonable judgment, decides that all debts of the [firm] other than obligations under the plan have been paid or settled." The directors amended the Plan due to uncertainty about the firm's ability to pay all Plan participants the entirety of their deferred compensation accounts after repaying all outstanding debts, and their determination that no individual participant should receive any payments unless all other participants received a proportionate share.

On or about July 17, 2002, Fox & Grove filed a Motion to Dismiss Barrett's lawsuit, claiming that the retroactive amendment to the Plan defeated his claim for any further payment until the liquidation process was complete. This Court denied that motion on December 2, 2002, finding that (1) the Plan's language permitting amendment "at any time" is ambiguous to the extent that it would allow Fox & Grove to take away vested benefits despite language in the Plan that each participant "shall be entitled" to benefits which "shall be paid" when the participant leaves the firm, Plan §§ 3.1, 5.1, and (2) it is for a factfinder to resolve this ambiguity. Barren, 2002 WL 31761410, at *4-5. As a result, nine other former equity partners who were participants in the Plan (the "petitioners") now seek leave to intervene in this lawsuit.


Intervention is the proper mechanism for nonparties to protect interests that may be adversely affected by a trial court's judgment. Feizen v. Andreas, 134 F.3d 873, 874 (7th Cir. 1998). Fed.R. Civ. P.24 contemplates two types of intervention: intervention as of right and permissive intervention. A petitioner may intervene as a matter of right by satisfying the following four criteria: "(1) timely application; (2) an interest relating to the subject matter of the action; (3) potential impairment, as a practical matter, of that interest by the disposition of the action; and (4) lack of adequate representation of the interest by the existing parties to the action." Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995) (quoting Shea v. Angulo, 19 F.3d 343, 344 (7th Cir. 1994)); Fed.R.Civ.P. 24(a). A motion to intervene as of right "should not be dismissed unless it appears to a certainty that the intervenor is not entitled to relief under any set of facts which could be proved under the complaint." Reich, 64 F.3d at 321 (quoting Lake Investors Development Group, Inc. v. Egidi Development Group, 715 F.2d 1256, 1258 (7th Cir. 1983)). Because rightful intervention cases are highly fact specific they tend to resist comparison to prior cases. Reich, 64 F.3d at 321.

Permissive intervention under Rule 24(b) requires a petitioner to show that (1) a common question of law or fact exists; (2) the petition was timely made; and (3) the court has independent jurisdiction over the claims. Security Insurance Co. of Hanford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995). The decision to grant or deny a motion for permissive intervention is "wholly discretionary with the district court." Taco Bell Corp. v. Continental Casualty Co., No. 01 C 0438, 2003 WL 124454, at *7 (N.D. Ill. Jan. 13, 2003) (quoting Keith v. Daley, 764 F.2d 1265, 1271 (7th Cir. 1985)). In exercising this discretion, the court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Heartwood, Inc. v. U.S. Forest Service, Inc., 316 F.3d 694, 701 (7th Cir. 2003) (quoting Fed. R Civ. P. 24(b)).

In this case, the petitioners claim that they are entitled to intervene in Barrett's lawsuit under both standards. Only Barrett opposes their motions.

A. Intervention as of Right

The petitioners argue that they can intervene as of right because "both the Plaintiff and the Defendant herein are asserting rights in money to which [they] each have an equal right, and the disposition of the instant action may as a practical matter impede [their] ability to protect [their] respective interests." Motions ¶ 13/15. Barrett's primary objection is that the petitioners do not have any interest in the subject matter of the action.

The "interest" required by Rule 24(a) "has never been defined with particular precision." In re Discovery Zone Securities Litigation, 181 F.R.D. 582, 593 (N.D. Ill. 1998) (quoting Security Insurance Co. of Hartford, 69 F.3d at 1380). A potential intervener's interest must be a "direct, significant, legally protectable one . . . It is something more than a mere `betting' interest, but less than a property right." In re Discovery Zone, 181 F.R.D. at 593; Reich, 64 F.3d at 322. "In ascertaining a potential intervenor's interest in a case, our cases focus on the issues to be resolved by the litigation and whether the potential intervenor has an interest in those issues." Reich, 64 F.3d at 322.

Barrett argues that the petitioners do not have any interest in his personal deferred compensation account because they are shareholders of the firm. According to Barrett, the petitioner-shareholders are trying to "reinvent themselves" as creditors to avoid "the corporate law maxim that makes shareholders inferior to creditors when a business dissolves." Barrett says that only he is a true creditor so he has a superior claim to the Plan benefits. Pl. Mem., pp. 4-5. However, nothing in the language of the Plan suggests that shareholder status has any bearing on a participant's eligibility for benefits. To the contrary, the Plan states that any participant who "leaves the employ" of the firm will be paid benefits. Plan § 5.1. The Plan also states that participants entitled to receive payments are to be treated as general unsecured creditors of the firm. Plan § 9.2. Like Barrett, the petitioners have left the employ of Fox & Grove, are eligible for benefits under ...

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