Donovan v. Estate of Fitzsimmons

BAUER, Circuit Judge.

The Secretary of Labor appeals the district court’s approval of a comprehensive settlement of actions brought by participants in the Central States Southeast and Southwest Areas Pension Fund (CSPF) alleging that the benefit structure and investment management of the CSPF were illegal and that past investment mismanagement gave rise to a derivative action on behalf of the CSPF against other defendants. We affirm.

I. FACTS

The Central States Southeast and Southwest Areas Pension Fund is a multi-employer pension trust created in 1955 under the provisions of Section 302 of the TaftHartley Act, 29 U.S.C. § 186. As required by that section, the CSPF has an equal number of trustees appointed by labor organizations and by employer organizations. All trustees serve without compensation, and no compensation of trustees by the CSPF is permitted under the statute. Since January 1975 the CSPF has been subject to the requirements of the Employee Retirement Income Security Act (ERI-SA). 29 U.S.C. ch. 18.

*300The Dutchak complaint, filed in late 1976, was instituted by eleven plaintiffs and contained eight counts alleging that forty-five separate defendants violated various federal and state laws. The complaint alleged that the Teamsters conspired with the other defendants to establish pension funds with long and arbitrary benefits provisions. Additionally, a substantial portion of the complaint contained allegations that the defendants breached their fiduciary duties through improprieties with regard to fund investments. The asset management claims spanned the entire history of the CSPF and challenged the conduct of the defendants as imprudent both generally and as to numerous specific loan transactions.

In 1978, the Secretary of Labor filed Donovan against various former trustees of the CSPF, alleging that the acts and omissions of these trustees with regard to CSPF investments were negligent and imprudent and hence in violation of ERISA. While the Secretary’s complaint challenged various specific loans approved by the trustees of the CSPF, it did not contain the broad and general allegations of investment improprieties alleged in Dutchak. Moreover, the complaint sought relief only with regard to post-ERISA conduct, unlike Dutchak, which addressed both pre- and post-ERISA investments.

The Sullivan complaint was filed in 1979 on behalf of a class of CSPF participants and alleges that present and former trustees and other fiduciaries of the CSPF breached their fiduciary duties to the CSPF in numerous asset management transactions occurring between the inception of the CSPF in 1955 and the date of the filing of the complaint. The Sullivan complaint also alleged that the benefit rules of the CSPF were arbitrary and capricious and operated to deny retirement benefits to many participants on whose behalf substantial contributions had been made to the CSPF, and that the CSPF, the International Brotherhood of Teamsters, other Teamster-related entities, and the individual defendants defrauded the participants by making false and misleading statements about the benefits provided by the CSPF.

The three cases were consolidated for discovery purposes by order of the district court entered on November 27, 1979. On October 16, 1981, a settlement memorandum of understanding resolving the benefit claims, negotiated only by the private plaintiffs and the CSPF, was presented to the court. The proposed settlement was conditioned upon the resolution of the asset mismanagement claims and dismissal by the court of the Donovan complaint. The former trustees of the CSPF thereafter requested a stay of all substantive discovery in the three cases pending review of the settlement. This request was granted and subsequently extended over the Secretary’s objections.

In response to the filing of the proposed settlement, the Secretary moved to intervene as a plaintiff in Sullivan and Dutchak, relying on his statutory right to intervene in private ERISA cases. 19 U.S.C. § 1182(h). The court granted the Secretary leave to intervene for the purpose of participating in the consideration of the settlement, and to object to the settlement. There followed an extended period of negotiation among the Secretary, the CSPF, the participants, and the insurance companies (but not between DOL and the insurance companies), accompanied by frequent pretrial conferences with reports to the court on the progress of the negotiations.

A final revised benefit settlement agreement was filed with the court on July 22, 1982. The court ruled that a settlement class should be certified, that the settlement should be preliminarily approved and notice sent to the class. The CSPF sent notice of the settlement to nearly 500,000 persons whom its records showed to be members of the class, and placed advertisements in major newspapers within the states where the CSPF has had significant numbers of participants; more than 2100 persons responded.

The district court held the final settlement hearing on June 14, 1984. Each of the major participants in the settlement *301addressed the court. The court rendered an oral opinion, which was later incorporated in and supplemented by the court’s Findings of Fact and Conclusions of Law, and in which the court certified the class, approved the settlement, and dismissed the complaint in Donovan with prejudice. The Secretary’s appeal to this court followed.

II. DISMISSAL OF DONOVAN

The first basis on which the Secretary challenges the settlement is the dismissal of its complaint in Donovan as an essential element of the overall settlement. The Secretary’s argument is essentially that in dismissing the Secretary’s complaint “[t]he court relied exclusively on the doctrine of res judicata, yet because the Secretary and private plaintiffs represent different interests, they are not in privity for res judicata purposes.” Secretary’s br. at 13.

Under res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Beard v. O’Neal, 728 F.2d 894, 896 (7th Cir.1984). Strict identity of the parties is not necessary to achieve privity. Privity applies to successive parties who adequately represent the same legal interests. Southwest Airlines Co. v. Texas Internat'l Airlines, Inc., 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977); Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963); see generally TRW, Inc. v. Ellipse Corp., 495 F.2d 314, 317-18 (7th Cir.1974).

The district court found privity between the Secretary and the Sullivan plaintiffs for several reasons:

(1) there is a “congruence of legal interests” between the Secretary and the private plaintiffs, (2) the private plaintiffs have adequately represented the Secretary’s interests, and (3) the relationship between the private plaintiffs and the Secretary is “sufficiently close” due to the identity of their interests under ERI-SA.

Although the Secretary takes exception to each of these findings, these findings and the ultimate finding of privity are questions of fact, and thus will be upheld unless clearly erroneous. Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106, 1109 (6th Cir.1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1752, 72 L.Ed.2d 162 (1982); Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 960-61 (5th Cir.1968).

We have little difficulty in this case upholding the district court’s privity findings. There can be no dispute that the Donovan claims are the “same claims” at issue in Dutchak and Sullivan. The language of the Donovan complaint parallels the language of Dutchak and Sullivan. The complaints allege the same wrongful investments, seek the same relief, and are predicated upon the same provisions of ER-ISA. Indeed, in paragraph 3 of his “Motion for Leave to Intervene” in Sullivan, the Secretary acknowledges that the Sullivan language is “virtually identical to the claims set forth in Donovan.” Similarly, on page 9 of the “Memorandum of the Secretary of Labor in Opposition to the Motion of Certain Defendants for Reconsideration of this Court’s Order of March 3,. 1980,” he describes the Donovan claims as “substantially identical” to those in Sullivan. Therefore, the Donovan complaint, being predicated upon the same facts and statutory provisions as the complaints in Dutchak and Sullivan, is based upon the “same claims” as Dutchak and Sullivan for purposes of the doctrine of res judicata.

Moreover, there can be little doubt that the Secretary’s claims were adequately represented in Sullivan. The Secretary participated actively in Dutchak and Sullivan, initially because Donovan was consolidated with Dutchak and Sullivan for purposes of discovery, and later through his involvement in every detail of the settlement process as a plaintiff-intervenor. Also, the Secretary was a “full participant in the settlement process.”

*302In October 1981 the Secretary moved for leave to intervene in Dutchak and Sullivan for the purpose of objecting to the settlement and arguing that any settlement should not affect Donovan. From November 1981, when the Secretary’s motion to intervene was granted, until the settlement received final approval in August 1984, the Secretary was a full participant in the settlement process. During that three-year period the Secretary attended and participated in thirty-one pretrial or other conferences before the court relating to the settlement. The Secretary filed motions relating to the settlement on numerous subjects. During this period, the Secretary also filed memoranda and position statements on at least eighteen different matters. We therefore conclude that the Secretary’s interest has been represented adequately.

The final issue is whether the Secretary represents the same legal interests that are involved in Dutchak and Sullivan. Congress enacted ERISA in 1974 to promote the well-being and security of employees and their dependents by protecting their interests in employee benefit plans. 29 U.S.C. § 1001(a); Leigh v. Engle, 727 F.2d 113, 139 (7th Cir.1984). This congressional purpose is effectuated “by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U.S.C. § 1001(b). To this end, Congress required that “all assets of an employee benefit plan be held in trust by one or more trustees.” 29 U.S.C. § 1103(a). Every such trustee is a “fiduciary,” 29 U.S.C. § 1002(21)(A), subject to comprehensive standards of conduct. 29 U.S.C. §§ 1104-1113. ERISA prescribes, for example, that every plan fiduciary shall discharge his duties with respect to a plan “solely in the interest of the participants and beneficiaries” and with the “care, skill, prudence and diligence” that a prudent person “familiar with such matters” would employ if acting under similar circumstances. 29 U.S.C. § 1104(a)(1).

ERISA expressly authorizes participants, beneficiaries, and the Secretary of Labor to enforce the Act’s fiduciary standards. 29 U.S.C. § 1132(a)(2), (3) and (5). Specifically, participants, beneficiaries, and the Secretary may bring suit in federal court and hold fiduciaries “personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary....” 29 U.S.C. § 1109(a), 1132(a)(2). A breaching fiduciary is also subject to other appropriate “equitable or remedial relief,” including removal from his or her position as a fiduciary. Id.

The enforcement provisions of ERI-SA are intended to provide the Secretary, as well as participants and beneficiaries, with broad, flexible remedies to redress or prevent statutory violations. See, e.g., S.Rep. No. 383, 93d Cong., 1st Sess. 8, 105 (1973), reprinted in Legislative History Of The Employee Retirement Income Security Act Of 1974, 94th Cong., 2d Sess. 1076, 1173 (1976) (hereinafter cited as Legislative History); H.Rep. No. 533, 93d Cong., 1st Sess. 17, 26 (1973), reprinted in Legislative History at 2364, 2373. Leigh v. Engle, supra, 727 F.2d at 139; Donovan v. Mazzola, 716 F.2d 1226, 1235, 1239-40 n. 9 (9th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). The fiduciary standards “must be enforced with ‘uncompromising rigidity.’ ” NLRB v. Amax Coal Co., 453 U.S. 322, 329-34, 101 S.Ct. 2789, 2794-96, 69 L.Ed.2d 672 (1981), quoting from Meinhard v. Salmon, 249 N.Y. 488, 164 N.E. 545, 546 (1928); see also Eaves v. Penn, 587 F.2d 453, 462 (10th Cir.1978); Marshall v. Snyder, 572 F.2d 894, 901-902 (2d Cir.1978).

The Secretary argues that Congress intended the Secretary of Labor to bear the primary responsibility for enforcing ERI-SA, both to protect the rights of plan participants and beneficiaries and to further the broader public policy goals set forth in the statute. The Secretary contends that this preeminent role is evident from an *303examination of ERISA and its predecessor legislation, the Welfare and Pension Plan Disclosure Act, Pub.L. 85-836, 72 Stat. 997 (repealed 1976)..

Contrary to the Secretary’s assertions, however, we think that the legislative history of ERISA demonstrates that section 502(a)(2) of ERISA, 29 U.S.C. § 1132(a)(2), was intended to grant both private parties and the Secretary equal standing to bring an action on behalf of fund beneficiaries. Repeatedly, Congress expressed its belief that the chief weakness of the Welfare and Pension Plans Disclosure Act, the predecessor act governing pension funds, was its sole reliance upon “the initiative of the individual employee to police the management of his plan.” S.Rep. No. 127, 93d Cong., 1st Sess. 4 (1973), reprinted in Legislative History at 613; H.Rep. No. 533, 93d Cong., 1st Sess. 4 (1973), reprinted in Legislative History at 2351; 120 Cong. Rec. 3978 (1974) (“Employee Benefit Security Act of 1974: Material Explaining H.R. 12906 Together With Supplemental Views,” introduced by Representative Perkins), reprinted in Legislative History at 3295; 120 Cong.Rec. 4281 (1974) (remarks of Representative Gaydos), reprinted in Legislative History at 3377; 119 Cong.Rec. 147 (1973) (remarks of Senator Ribicoff), reprinted in Legislative History at 207; 120 Cong.Rec. 19957 (1974) (remarks of Senator Ribicoff), reprinted in Legislative History at 4811. It was this concern which led Congress to grant the Secretary enforcement powers under section 502(a)(2) of ER-ISA coextensive with those accorded private litigants. The “Civil Enforcement” provision of ERISA provides that “[a] civil action may be brought (1) ... by a participant or beneficiary ... [or] (2) by the Secretary....” 29 U.S.C. § 1132. We find nothing in the statutory language which grants any more preeminent right of action to the Secretary than to private litigants.

The legislative hearings, reports, and debates variously refer to the Secretary’s role as one of “watchdog,” “guardian,” or “protector]” of the private beneficiaries. S.Rep. No. 634, 92d Cong., 2d Sess. 109 (1972); Welfare and Pension Plan Legislation: Hearings on H.R. 2 and H.R. 62 Before the General Subcommittee on Labor of the House Committee on Education and Labor, 93d Cong., 1st Sess. 373 (1973) (statement of Bernard E. Nash, National Retired Teachers Association an American Association of Retired Persons); 119 Cong.Rec. 30011 (1973) (remarks of Senator Beall), reprinted in Legislative History at 1620. But the legislative record clearly reflects that Congress intended the Secretary to act as a representative of fund beneficiaries. Plan participants, beneficiaries, or the Secretary of Labor on behalf of the participants and beneficiaries are allowed to bring civil actions to redress breaches of a fiduciary’s responsibility or to remove a fiduciary who has failed to carry out his duties. H.R. Rep. No. 533, 93d Cong., 1st Sess. 20 (1973), reprinted in Legislative History at 2367; 120 Cong. Rec. 3979 (1974) (“Employee Benefit Security Act of 1974: Material Explaining H.R. 12906 Together With Supplemental Views,” introduced by Representative Perkins), reprinted in Legislative History at 3299.

We thus believe that in granting the Secretary enforcement powers in Section 1132 Congress intended that the Secretary’s interest be the same as that of the participants and beneficiaries who also had enforcement powers under Section 1132. The Secretary’s only public interest enforceable under Section 1132 is that the rights of the participants and beneficiaries of a given plan are protected.

Recent statements by the Supreme Court in Massachusetts Mutual Life Insurance Co. v. Russell, — U.S. -, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), apply with particular force here. In Massachusetts Mutual the Court was asked to interpret the civil enforcement provisions of 29 U.S.C. § 1132. In holding that Congress did not intend to authorize remedies not expressly incorporated in ERISA, the Court stated:

Inclusion of the Secretary of Labor is indicative of Congress’s intent that actions for breach of fiduciary duty be brought in a representative capacity on *304behalf of the plan as a whole. Indeed, the common interest shared by all four classes is in the financial integrity of the plan.

105 S.Ct. at 3090-91 n. 9.

While Congress provided the Secretary with far-reaching authority to monitor plan activities, we do not find this authority an indicium of Congress’s intent that the Secretary’s enforcement authority under Section 1132 be broader than the participants and beneficiaries’ authority. We cannot read these powers in isolation from the rest of ERISA, but must construe them in the context of the entire statute. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962).

The Act requires extensive disclosure to the Secretary by plan administrators of financial data and other information relating to a plan. 29 U.S.C. §§ 1021(b), 1024(a). ERISA also provides the Secretary with broad investigatory powers to monitor plans, including the authority to conduct “spot” audits on the premises of the plan and to subpoena witnesses, id. § 1134, and provides for cooperation between the Secretary and other government agencies in carrying out the Secretary’s responsibilities. Id. § 1136. Rather than indicating an intent that the Secretary act independent of the interests of plan participants and beneficiaries, we think that these provisions are fully consistent with the Congressional intent that the Secretary act on behalf of the participants and beneficiaries. These investigatory powers are necessary so that the Secretary is fully informed about the plan and can monitor its implementation consistent with the interests of the participants and beneficiaries — and nothing more.

And finally the Secretary relies on Donovan v. Cunningham, 716 F.2d 1455 (5th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984), to support his argument that when bringing suits under Section 1132, the Secretary is suing to safeguard “the broader public interest” as well as to seek relief for plan participants and beneficiaries. Cunningham involved an ERISA suit by the Secretary, followed ten months later by a private class suit upon the same grounds in a different jurisdiction. The Secretary lost at the trial level and, while that case was on appeal, the private action was settled. The Secretary was not a party to the private action and in no way participated in the settlement.

The Secretary’s reliance on Cunningham is misplaced. On the issue of whether the doctrine of res judicata or collateral estoppel barred the Secretary’s appeal, the Cunningham court relied upon “the general principle of law that the United States will not be barred from independent litigation by the failure of a private plaintiff.” 716 F.2d at 1462 (citing United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5th Cir.1979)). The Fifth Circuit specifically noted, however, that it was “not considering]” the issue whether “a prior private settlement may limit the scope of the relief that the government may seek on behalf of settling parties,” id. at 1462 n. 10, and remanded the case for the express purpose of determining whether the private action had such a preclusive effect.

The Fifth Circuit also noted two aspects of the Cunningham case which are clearly distinguishable from this case. First, the court in Cunningham noted that the private plaintiffs’ interests were in the recoupment of only their own economic losses, whereas the Secretary sought in Cunningham to determine the legality of specific conduct and to guard against future losses to the plan. This is clearly distinguishable from the CSPF settlement in this case wherein the legality of the trustees’ conduct, recoupment of past losses, and the future integrity of the plan were clearly at issue and negotiated extensively in the course of the settlement. Second, the Fifth Circuit noted that “[ajlthough the record ... indicates that the Secretary consulted and cooperated with counsel for the [private] plaintiffs to a limited extent, the government did not have a ‘sufficient “laboring oar” in the conduct of the [private] *305litigation to actuate the principles of estoppel.’ ” 716 F.2d at 1463 n. 11. In this case, quite the contrary clearly occurred. The Secretary’s action was tried before the same court, the Secretary intervened in the private actions, the cases were consolidated for discovery purposes, and the Secretary played a major role in the discovery and in the negotiation of the settlement. This case clearly is unlike Cunningham because here the Secretary utilized his statutory right of intervention and became a full participant in a settlement process spanning several years. After taking such an active role in the settlement process, the Secretary cannot declare himself beyond the power of the district court once the court, contrary to his wishes, concluded that the settlement was fair and reasonable.

In light of the legislative history, we find unpersuasive the Secretary’s arguments to the contrary. The fact that ERISA was enacted in reaction to the ineffective policing of the management of pension'plans by participants and beneficiaries under the predecessor legislation, and that the Secretary was given a role under ERISA, it clearly does not follow that Congress intended the Secretary’s role to be pre-eminent to that which plan participants and beneficiaries had under previous statutes or are to have under ERISA. Indeed, we believe their interests are precisely the same.

We therefore conclude that the district court correctly applied res judicata principles when it approved the dismissal of Donovan as part of the settlement.

III. CLASS CERTIFICATION

The Secretary next argues that the district court improperly certified as one class two groups of plaintiffs with antagonistic interests. Rule 23(a) of the Federal Rules of Civil Procedure sets forth four factors which must be met before a district court can certify a cause of action as a class action. The rule provides:

(a) PREREQUISITES TO CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions pf law or fact common to the class, (3) jhe 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.

The Secretary challenges the class certification only with regard to the fourth requirement of Rule 23(a). Essentially, the Secretary argues that the private plaintiffs are inadequate because they seek to represent a class within which there are substantial conflicting economic interests. This conflict arises, according to the Secretary, from the fact that the class, estimated at over 400,000 members, is comprised of both those pursuing benefit claims presently, estimated at around 20,000, and the remainder of the class whose benefit claims will arise in the future. The Secretary also claims that an additional conflict exists because to the extent that both benefit claims and asset mismanagement claims were successful, the asset mismanagement group would be deprived of the full enjoyment of its recovery.

The district court certified the class in this case as “consisting of all persons on whose behalf a contribution has been made or was required to be made to the Central States Southeast and Southwest Areas Pension Fund.” The court recited the following facts in its order to support its conclusion that this was a proper class under Rule 23.

a. The class is in excess of 400,000 and is so numerous that joinder of all members is impracticable.
b. The complaint alleges common questions of law and fact. These include:
1. Whether the benefit rules of the CSPF are arbitrary and capricious.
2. Whether fiduciaries of the CSPF breached their fiduciary duties in con*306nection with asset management transactions of the Fund.
3. Whether the CSPF, the [Teamsters], other [Teamster]-related entities and the individual defendants conspired to disseminate false information about Fund benefit rules to limit Fund benefits, and to use Fund assets for purposes other than the best interests of the participants.
c. The claims of the numerous representative plaintiffs enumerated in the Sullivan and Dutchak complaints are typical of the benefit complaints of the class: that participants with many years of service and substantial contributions on their behalf to the Fund have been denied benefits through the arbitrary and capricious provisions of Fund benefit rules.
d. All participants benefit from the recovery by the CSPF of losses caused by breaches of fiduciary duty.
e. The representative parties are able to adequately represent the interests of the class. Their counsel, Lawrence Walner and Edmund W. Kitch, have extensive experience; they have demonstrated to the court through their negotiation of the settlement, briefing of these matters and appearances and various filings before the court, that they are able to effectively advance the interests of the class. They have done so in this litigation.
f. The settlement agreement was negotiated between counsel for the plaintiff class and the trustees of the Fund in a manner that was not collusive and which fairly and adequately represented the interests of all members of the class. No potential conflict of interest was such that counsel of any representative party was rendered unable to adequately represent the settlement class. Prior to the successful outcome of the settlement negotiations each party vigorously contested the positions of the others and nothing was done without massive fights, lots of briefs, vigorous arguments, and several different positions.
g. The Department of Labor in this case has vigorously represented the interests of those class members interested in a larger asset management recovery.
h. The present trustees of the Fund have vigorously represented the interests of those class members who desire that there be but limited expansion of benefit eligibility.
i. The investigation and discovery of the matters underlying this litigation have been under way for more than seven years. The investigation by the Department of Labor of the CSPF is believed to be its most extensive ERISA investigation. Prior to the filing of Donovan the Department of Labor conducted an extensive administrative investigation. The Donovan complaint was on file for three and one-half years before this court granted a stay of discovery in light of the then prospects for a settlement agreement. Counsel for the participants have extensively investigated matters relating to the CSPF. All parties have had sufficient information to evaluate the settlement and have provided the court with sufficient information to evaluate the reasonableness of the settlement.
j. The settlement class is reasonable.

The certification of a class is within the sound discretion of the trial court, reversible on appeal only for an “abuse of discretion.” Liberles v. County of Cook, 709 F.2d 1121, 1126 (7th Cir.1983); Simer v. Rios, 661 F.2d 655, 668 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). The Secretary claims that the district court abused its discretion in this case because the existence of the asset mismanagement claims and the benefit claims rendered the plaintiff class an inadequate representative under Rule 23(a)(4). “Whether a party would adequately protect the interests of the class is a question of fact depending on the circumstances of each case.” Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir. 1977) (citing Schy v. Susquehanna Corp., 419 F.2d 1112, 1116 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 *307(1970)). This adequacy determination is itself a matter of discretion and will not be disturbed unless an abuse of discretion is shown. Susman, 561 F.2d at 90. We disagree with the Secretary’s assertions that the district court abused its discretion in finding that the plaintiffs in this ease adequately represent the class as certified.

Under Rule 23, class plaintiffs cannot fairly and adequately protect the interests of the class they seek to represent if they present a claim about which members of the class have antagonistic or conflicting interests. Hansberry v. Lee, 311 U.S. 32, 44-45, 61 S.Ct. 115, 119, 85 L.Ed. 22 (1940); Swain v. Brinegar, 517 F.2d 766, 780 (7th Cir.1975). While a conflict of interest is theoretically possible in this case because of the existence of two potentially conflicting claims, no such conflict affected this settlement. See In re Transocean Tender Offer Securities Litigation, 455 F.Supp. 999, 1014 (N.D.Ill.1978). The multiplicity of parties already before the court assured that diverse positions would be argued vigorously to the court. The representative plaintiffs include a participant already receiving a maximum pension, who approves of the settlement. The benefits and asset mismanagement aspects of the settlement were thoroughly discussed during the negotiations. The ultimate settlement was a compromise of these different positions, drawing for much of its structure upon compromises embodied in ERISA itself. The district court thus was provided with a range of views on the merits of the positions of each of the parties, and on the merits of the settlement from diverse perspectives. The district court was keenly aware of the potential for conflict in this case and guarded against that potential affecting the fairness of the settlement.

Moreover, the joinder of the benefit and asset mismanagement claims was justified by the interrelationship between the two. Investment recovery could improve the financial position of the CSPF and reduce the need for benefit denials based upon limited funds. Proof of a systematic practice of investment negligence would provide corroborative circumstantial evidence that the trustees attended to issues of benefit entitlement in a similarly inattentive fashion. Only the CSPF could agree to remedy the benefit claims. Only the individual defendants and the insurance carriers could agree to settle the investment claims. Each negotiation proceeded separately, at separate times, with full information to the court. The district court had ample reason to conclude that “on a settlement, the question is not whether the class will be represented adequately but whether it, in fact has been adequately represented. Most assuredly here, those interests have been adequately represented.” The two aspects of the complaint were closely related, but they were complementary, not in conflict.

IV. FAIRNESS OF SETTLEMENT

The final issue on appeal is the settlement agreement itself. The Secretary challenges the settlement in several respects. First, the Secretary argues that based on both the merits of the underlying case and ERISA’s public objectives, the settlement amount is inadequate. Second, the Secretary challenges the failure of the settlement to include any personal contribution to the settlement amount by the offending trustees and former trustees. And finally, the Secretary contends that the settlement should have restricted the future fiduciary activities of the former trustees and asset managers.

We begin our analysis of the settlement with the recognition that “there is an overriding public interest in favor of settlement” of class action suits. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). This is true even when the substantive issues of the case “reflect a broad public interest in the rights to be vindicated or the social or economic policies to be established.” Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980).

A class action settlement can be implemented only with the approval of the district court. Fed.R.Civ.Proc. 23(e). Before agreeing to the settlement the district *308court must satisfy itself that the decree is reasonable. Donovan v. Robbins, 752 F.2d 1170, 1176-77 (7th Cir.1985). A district court’s determination that a settlement is reasonable will be reversed by this court only on a clear showing that the court abused its discretion. Air Line Stewards & Stewardesses Ass’n, Local 550 v. Trans World Airlines, Inc., 630 F.2d 1164, 1167 (7th Cir.1980); Armstrong, 616 F.2d at 313.

The factors which a district judge should consider are well established: the strength of the plaintiff’s case on the merits measured against the terms of the settlement; the complexity, length, and expense of continued litigation; the degree of opposition to the settlement; the presence of collusion in gaining a settlement; the opinion of competent counsel as to the reasonableness of the settlement; and the stage of the proceedings and the amount of discovery completed. Armstrong v. Board of School Directors, 616 F.2d at 315. The district court considered all of these factors and made findings of fact thereon. Given those findings, which we will set aside only if clearly erroneous, Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106, 1109 (6th Cir. 1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1752, 72 L.Ed.2d 162 (1982), we reject each of the Secretary’s challenges to the settlement.

A. Adequacy

The settlement approved by the district court provides for resolution of all the asset mismanagement claims in return for payment of $2 million to the CSPF from the fiduciary liability insurers of the CSPF’s former trustees. The settlement also contained a number of other substantive features which related to the management and dispersion of the fund assets, including:

a. Liberalization of the Fund’s benefits rules to provide a benefit to each participant who ever had ten or more years of contributions made or required to be made to the Fund. In effect, this aspect of the settlement “rolls back” the provisions of ERISA 20 years to the inception of the Fund;
b. Liberalization of the Fund’s break-in-service rules;
c. Liberalization of the Fund’s disability benefits rules;
d. Provision for increased reciprocity between the Fund and other Teamster-affiliated funds;
e. Establishment of a. Special Hardship Appeal Committee for the purpose of allowing the payment of benefits where substantial justice requires deviation from the Fund’s rules and certain other specified conditions are met;
f. Provision for increased information to Fund participants, including establishment of a toll free 24-hour telephone number and an annual report with detailed information;
g. Payment of two million dollars to the Fund by the insurance carriers in exchange for a release of liability for defense or indemnity of the former trustees on the investments claims; [and]
h. Payment of the costs of notice by the [Teamsters].

Finding of Fact 11.

These settlement provisions were not presented by the various parties to the court for a “rubber-stamp” approval. This litigation had been pending before Judge Moran since September 7, 1979. Before approving the settlement he participated in countless hours of pretrial conferences, reviewed massive submissions and ruled on a great number of legal and factual questions. In his final order on the settlement, the district judge expressly addressed the parties’ concerns about the adequacy of the settlement. He stated:

22. The aspects of the settlement relating to benefits are fair, adequate and reasonable. The use of the vesting and benefit standards of ERISA as a substantive guide to equity in this situation has the benefit of providing a uniform standard applicable to both post-ERISA and pre-ERISA years of service. The requirement of a standing offer of reciprocity will tend to work to correct this *309longstanding difficulty between the CSPF and the hundreds of other [Teamsters]-related pension funds and will not jeopardize the funding status of the Fund. The information reforms will improve communication between the CSPF and participants, and heighten awareness of the need for prudent and fair management of the CSPF within the [Teamsters] membership. The benefits aspect of the settlement is within the power of the trustees of the Fund to adopt and will not impose unmanageable costs upon the Fund or adversely affect the ability of the Fund to make benefit payments to others.
23. The asset management settlement is fair, adequate and reasonable. Taking into account the risks of litigation, the costs of litigation and collection, and the time value of money, it is a reasonable compromise of the asset management claims.
24. The settlement as a whole is fair, adequate and reasonable. A resolution of all the claims of these cases has the benefit of ending years of litigation over the past history of the Fund and freeing the current trustees and personnel to attend to the task of managing the Fund.

Findings of Fact 22-24.

One of the principal factors which a district court should consider in determining the reasonableness of the settlement is the strength of the plaintiff’s case on the merits balanced against the settlement offer. Armstrong, 616 F.2d at 314. The Secretary points out that the district judge stated that he “assume[d] for purposes of evaluating the Settlement that ... the government could show a substantial liability ... [because] [i]t has to merely show imprudence.” Tr. of June 14, 1984, at 80. Sole reliance on this statement to argue the imprudence of the settlement is misplaced. This statement shows that the district court was considering the value of continuing litigation in its best light.

What the Secretary’s analysis seems to fail to realize, however, is that an integral part of the strength of a case on the merits is a consideration of the various risks and costs that accompany continuation of the litigation. Grunin v. International House of Pancakes, 513 F.2d 114, 124 (8th Cir.1975). The court identified three such costs and risks: the cost of continued litigation to the CSPF;1 the risk that the insurance carriers would prevail on their policy defenses;2 and the time value of money.3 Findings of Fact 25-27. These considerations were proper and we find no abuse of discretion in the district court’s conclusion that the current two million dollar settlement, combined with the other substantive aspects of the settlement, was reasonable.

B. Contributions by Trustees

The Secretary next claims that the settlement is inadequate because it does not provide for any personal monetary contribution from the former trustees of the CSPF. ERISA specifically provides that any fiduciary “shall be personally liable to make good” for breaches of his fiduciary *310responsibilities. 29 U.S.C. § 1109. The Secretary argues that “[a]bsent such personal liability, therefore, the settlement does nothing to achieve the Act’s crucial prophylactic purposes.” Secretary’s br. at 51.

This argument fails in two respects. First, the overriding purpose of ERISA is to protect the interests of participants and beneficiaries of employee retirement plans. Donovan v. Bryans, 566 F.Supp. 1258, 1264 (E.D.Pa.1983); Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 643 (W.D.Wis.1979). We have already thoroughly discussed that we are satisfied that the district court did not abuse its discretion in finding this settlement to be in the best interests of the plan participants. To the extent that retribution and deterrence are goals of ERISA, the district court found little to be gained in that respect in this case. The court found that the recovery of any substantial judgment from the individual trustees personally was impossible and that none of these trustees had served in a fiduciary capacity since 1979.4 Similarly, to the extent that “sending a message” is part of the deterrence sought, the district court believed that “[t]hat objective has been largely served by the Department seeking and obtaining a far-reaching consent order.” Finding of Fact 31(b).

Second, it does not necessarily follow that a remedial provision of the Act that would apply if this case were fully litigated must also be included in every settlement agreement under ERISA. A major consideration of settlements is that “litigants have reasonable latitude in negotiating a settlement without undercutting important national policies on their way to reaching agreement.” Armstrong, 616 F.2d at 320. The district court found no such undercutting in this case. We find no abuse of discretion in this determination.

C. Injunctive Relief

The final challenge which the Secretary makes to the settlement agreement is the lack of injunctive relief. We also reject this challenge. Undoubtedly, injunctive relief is an essential element of the Secretary’s enforcement responsibility. See 29 U.S.C. §§ 1109, 1132(a)(2) and (5); Donovan v. Cunningham, supra, 716 F.2d at 1462. Congress clearly intended to provide the Secretary, as well as participants and beneficiaries, with the “full range of legal and equitable remedies,” including injunctions to prevent future violations and removal of fiduciaries for “repeated or substantial” violations. H.R.Rep. No. 93-533, supra, at 17, reprinted in [1974] U.S.Code Cong. & Ad.News 4655; S.Rep. No. 93-383, 93d Cong., 1st Sess. 105-106 (1973), reprinted in [1974] U.S.Code Cong. & Ad. News 4890, 4989.

Although trial courts typically grant injunctions against future fiduciary activity upon proof of past ERISA violations, see, e.g., Donovan v. Bryans, 566 F.Supp. at 1268, the district court found an injunction unnecessary in this case. The purpose of such injunctions is to protect the interests of participants and beneficiaries and to further ERISA’s goal of restoring public confidence in pension plans. Donovan v. Bryans, supra, 566 F.Supp. at 1268. But the district court found that the provisions of the settlement already were reasonable to protect the interests of participants and beneficiaries. Also, the defendant trustees in Donovan had resigned their positions more than seven years before the settle*311ment. Three of the defendants in Donovan are now dead and four more have been convicted of crimes that bar or barred their service under ERISA. 29 U.S.C. § 1111; Findings of Fact 32 & 33.

The district court also found correctly that injunctive relief would have no effect on the future management of the CSPF, since none of the current trustees were parties to the action. Finding of Fact 32. Moreover, nothing in the settlement prevents either the Secretary or plan participants or beneficiaries from seeking injunctive relief in the future for the actual or planned service of any former trustee. Finding of Fact 34. We thus agree with the district court that the failure to provide injunctive relief in the settlement does not make the settlement unreasonable.

For the many reasons set forth in this opinion, we affirm the district court’s approval of the settlement agreement in these cases, including the dismissal of the Secretary’s complaint in Donovan.

Affirmed.

. The district court found that:

Continued litigation would be costly for the parties and the CSPF. The CSPF would bear those costs in at least three ways. First, ERI-SA provides for the payment of plaintiffs’ attorneys’ fees by the Fund should they prevail. Second, continuing discovery requires the time of Fund personnel and attorneys. Third, clauses in the insurance policies might operate to cause an offset of the attorneys’ fees of the individual defendants against the face amount of the policies. An advantage of this settlement over continued litigation is the saving of these costs for the Fund.

Finding of Fact 26.

. The court stated:

The insurance carriers have contested the continuing enforceability of the insurance policies, and asserted defenses to their policy obligations that create substantial risks that no recovery from insurance would be available after further litigation.

Finding of Fact 27.

. The $2 million settlement sum today is worth the same as a $3.6 million recovery five years from now, at a prime interest rate of 12.5%. In the judgment of the district court, the difference of $1.6 million would not be recoverable from the former Trustees and would not be available through additional insurance contributions from Aetna. Findings of Fact 27-29.

. In its findings, the court stated:

28. To the extent that the defendants were themselves forced to incur defense costs, those costs would further deplete the assets available to satisfy any judgment.
29. The gross assets of the defendants in Donovan, other than Alvin Baron and Jackie Presser, do not exceed $5,000,000 and many of those assets, if not virtually all, would be or might be unavailable to satisfy a final judgment.
30. The principal claim against Alvin Baron is proceeding, and will continue to proceed, in a separate litigation. The principal claim against Jackie Presser is of dubious merit. The oral findings are amended to note that the loss to the Health and Welfare Fund was some $42,000,000 in toto, rather than annually.

Findings of Fact 28-30.