COFFEY, Circuit Judge.
In Donovan v. Fitzsimmons, 778 F.2d 298 (7th Cir.1985), a panel of this court affirmed an order of the district court approving the settlement of actions brought by participants in the Central States Southeast and Southwest Areas Pension Fund (CSPF) against the various named defendants alleging that the benefit eligibility rules for pension payments were arbitrary, unreasonably restrictive and further, that the trustees had mismanaged the Funds' assets. We granted the Secretary of Labor’s petition for rehearing en banc to consider whether the district court properly dismissed the Secretary’s action on the grounds that his claim was barred by the doctrine of res judicata. We vacate the order of the district court and remand this case for further consideration in light of our holding herein.
I. BACKGROUND
This case has a complex history dating back to the middle 1970’s when aggrieved members of the International Brotherhood of Teamsters Union initially filed various actions against their pension fund known as the Central States Pension Fund, the CSPF’s former trustees and the IBT. The initial suit was a class action, Dutchak, et al. v. International Brotherhood of Teamsters, et al. (“Dutchak"), filed on behalf of individual Teamster members against the IBT and the CSPF in 1976 alleging that the benefit eligibility rules for pension payments were arbitrary and unreasonably restrictive and further that the trustees had mismanaged the Fund’s assets. In the aftermath of the Department of Labor investigation concerning the alleged mismanagement of the Central States Pension Fund, the DOL filed a separate action against the former trustees of the CSPF, Donovan v. Fitzsimmons, et al., in 1975 and alleged that the former trustees had mismanaged the pension fund, in violation of 29 U.S.C. § 1104.1 The DOL claimed the alleged mis[685]*685management caused losses of between $50 to $70 million due to imprudent loans and improper investments in various real estate syndicates, hotels, including gambling casinos in Las Vegas, and other businesses.2 After the DOL filed the Donovan action, the named plaintiffs in Dutchak requested leave to file an amended complaint with the court essentially incorporating most of the claimed fiduciary duty violations under ERISA set forth in the Donovan complaint; however, the district court did not rule on this motion. Thereafter, in 1979 the attorneys representing the plaintiffs in Dutchak filed a class action, Sullivan, et al. v. Fitzsimmons, et al., incorporating all of the allegations set forth in the previous Donovan and Dutchak complaints. In 1979, the court ordered the three cases consolidated for purposes of discovery.
On October 16, 1981, a proposed settlement was reached between the private plaintiffs in the Dutchak and Sullivan actions and the Central States Pension Fund and Teamsters Union resolving the benefit claims. According to the terms of the proposed settlement the CSPF agreed to substantially liberalize the rules governing the eligibility for pension benefits. The plaintiffs and the CSPF projected that the liberalized rules governing eligibility for pension benefits would require approximately $140 million be set aside for the additional participants who might now qualify for pension benefits under the proposed settlement. The proposed settlement between the private plaintiffs and the Central States Pension Fund also conditioned the final settlement upon the resolution of the asset mismanagement claims and the dismissal of the DOL’s Donovan action. During the period of these settlement negotiations between the named plaintiffs and the CSPF and IBT, the Department of Labor was not informed that these parties were discussing settlement of the Secretary’s action in Donovan, and thus the Secretary had no knowledge of, and was not a party to, any of these negotiations. In fact, as counsel for the named plaintiffs disclosed during the October 21, 1981 hearing, the CSPF directed the plaintiffs not to discuss the settlement negotiations with the Secretary of Labor: “Now as a condition of the negotiations, we were required [by the CSPF] not to communicate with the Department of Labor about this activity or the contents_”3 (Emphasis added). Subsequently, in November 1981, after the Secretary of Labor became aware of this highly unusual secrecy requirement as pertaining to him, the DOL moved to intervene as a plaintiff in the Sullivan and Dutchak class actions, pursuant to its right of inter[686]*686vention under 29 U.S.C. § 1132(h).4 The Court granted the Secretary’s motion to intervene for the limited purpose of objecting to the proposed settlement and participating in any settlement hearings.
On June 13, 1984 the final settlement agreement between the plaintiffs and the defendants was filed with the court, incorporating an Insurance Settlement Agreement providing that the CSPF’s former trustee’s insurance companies, Aetna and Lloyds of London, would pay $2 million to the CSPF in settlement of the asset mismanagement claims against the former trustees. The insurance companies agreed to pay the $2 million only if the former trustees agreed to release the respective insurance companies from any further liability 5 (Department of Labor’s Appendix at 189-90), and settlement was also conditioned on the discharge from liability of the defendants in each action.
Between the time that the DOL intervened in the Sullivan and Dutchak action and the filing of the settlement agreement between the private plaintiffs and the defendants in June 1984, the Secretary did participate in the class actions in a very limited manner only as to the filing of memoranda with the court urging that the class not be certified since the named plaintiffs could not properly and adequately represent the asset mismanagement group’s interests. In conjunction therewith and at the suggestion of the court, the Secretary of Labor filed a memorandum with the court addressing the nature and scope of the notice to be provided to the proposed class. In the spring of 1984, a notice was sent to all proposed class members (the benefit group and the asset mismanagement group) disclosing the terms of the settlement. The district court also permitted the Secretary of Labor to send an accompanying letter to the class urging rejection of the settlement.
On June 13, 1984, the district court held a hearing to review the terms of the settlement. During this hearing, the Secretary of Labor objected to the settlement of the asset mismanagement claims, contending that the anticipated recovery was wholly inadequate in light of the number and dollar amount of the claims against the former trustees and also that the settlement agreement failed to allow recovery from the personal assets of the former trustees. Some two and one-half months later, on August 27, 1984, the court issued its written findings and certified as one class “all persons on whose behalf a contribution has been made or required to be made” for purposes of approval of the settlement. This class consisted of all the benefit and asset mismanagement unnamed plaintiffs. The Department of Labor has continually contested the ability, authority and propriety of the named plaintiffs to represent both the benefit and asset mismanagement unnamed plaintiffs; however, the court disagreed and found that the unnamed plaintiffs were adequately represented under Fed.R.Civ.P. 23(a)(4) which requires that “the representative parties ... fairly and adequately protect the interests of the class.” In reaching its conclusion that Fed. R.Civ.P. 23(a)(4) was satisfied, the court determined that the DOL had adequately represented the interest of those members of the class who sought a larger recovery for the asset mismanagement claims, and also that the defendant CSPF had adequately represented the interests of those members of the class who sought to limit the liberalization of eligibility rules governing benefits.
The court further determined that since the settlement had been presented to the [687]*687court as a package, the entire settlement “must stand or fall as a package.” The court after reviewing the settlement concluded that the settlement was fair and reasonable. To support its decision the court found that all parties had an opportunity to litigate the contested issues and that the $2 million to be received from the insurance companies was the largest amount attainable under the circumstances,6 and that the cost of further litigation in this case outweighed the benefits to be gained. In approving the settlement, the court also ruled that there was no reason to believe that any of the former trustees were likely to commit ERISA violations in the future since they were not now serving on the CSPF board and a consent decree had been entered providing for special counsel to overlook future management of the Fund.7 The court next addressed the issue of the continued viability of the Secretary’s action in Donovan and determined that since there was a “congruence of legal interests” between the DOL and the private plaintiffs, privity existed between the parties for purposes of applying the doctrine of res judicata to bar the Secretary’s action in Donovan, finding that the Secretary of Labor was bound by the settlement agreement since he had intervened in the class action. The court dismissed the Sullivan, Dutchak and Donovan actions.
On appeal, a split panel of this court affirmed the trial court’s approval of the settlement agreement. With the granting of the Secretary of Labor’s petition for rehearing en banc, we vacated the decision of the original panel. We now reverse the decision of the district court, and remand for further proceedings in light of our holding.
II. RES JUDICATA AND LIMITED INTERVENTION
On appeal, the DOL’s primary contention is that the district court misapplied the doctrine of res judicata in finding that the DOL was in privity with the private plaintiffs in this action. The defendants argued to this court that the DOL acts merely as a representative of the interests of the beneficiaries of the fund. The DOL, however, contends that its interest in this litigation is much broader, encompassing its obligation to protect the interests of the general public, including the reinforcement of public confidence in a private pension system that involves billions of dollars in assets and investments that affect not only the entire United States economy but also the United States Tresury, as well as supervising the enforcement of the ERISA statute. Thus, the basic issue in this case is whether the DOL has an “interest” separate and distinct from that of the private plaintiffs or any private plaintiff for purposes of determining whether privity exists between the DOL and the private plaintiffs in Dutchak and Sullivan, and whether the Secretary’s very limited intervention in this case precludes the Secretary from avoiding the effects of res judicata.
The Dutchak and Sullivan cases are private class actions joining all beneficiaries and potential beneficiaries of the pension fund. The district court certified this case as a class action, after proper notice had been given to all potential class members, as “consisting of all persons on whose behalf a contribution has been made or was required to be made ...” to the CSPF. The trial court also determined that the Secretary was in privity with the private [688]*688class action plaintiffs for purposes of res judicata.8
“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). In order for the doctrine of res judicata to apply there must be (1) a final judgment on the merits, (2) an identity of the cause of action between the two actions, and (3) an identity of parties or their privies in the two actions. Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982); Church of the New Song v. Establishment of Religion, 620 F.2d 648, 652 (7th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). See also 1B Moore’s Federal Practice ¶ 0.410[1] and 0.411[1], Privity between parties is established where those parties’ interests are so closely aligned that they represent the same legal interests. See Southwest Airlines Co. v. Texas Int’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).9
In this case, the trial court found that there was an identity of the cause of action between the Secretary of Labor in Donovan and the private plaintiffs in Sullivan and Dutchak since their respective claims were based upon the same operative facts (trustees’ violations of their fiduciary duties to the funds in asset management transactions) and alleged statutory violations (§ 302 of the National Labor Relations Act, 29 U.S.C. § 186 and § 404 of ERISA, 29 U.S.C. § 1104). The DOL does not contest this finding before this court. The district court also found that privity was established between the Secretary of Labor and the private parties since:
“(1) there is a ‘congruence of legal interest’ 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 ERISA. Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 102 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977).”
The court, having determined that Sullivan and Donovan involved the same claims and that the DOL and private plaintiffs shared similar interests, and thus were in privity, found that the doctrine of res judi-cata barred further litigation in the Donovan action. Further, the court concluded that, although the DOL originally intervened in the Sullivan action “for the limited purpose of: (1) expressing the Secretary’s views regarding the appropriateness and adequacy of the proposed settlement; and (2) participating in the contemplated settlement hearings ...,”10 the Secretary of Labor had been a “full participant in the settlement process” and thus was “bound to the extent of his own intervention.” District court’s Findings of Fact and Conclusions of Law at 22-25 (August 27, 1984).
A. The Parties’ Interests
Whether or not the doctrine of res judicata applies in this case depends upon the statutory role of the DOL in bringing an ERISA action. Thus, the question of [689]*689whether or not privity exists between the DOL and the private plaintiffs is a question of law subject to a review de novo on appeal. See Southwest Airlines Co., 546 F.2d at 95 (“the term privity ... represents a legal conclusion that the relationship between the one who is a party ... and the non-party is sufficiently close to afford application of the principle of preclusion”) (quoting Vestal, Preelusion/Res Judicata Variables: Parties, 50 Iowa L.Rev. 27 (1964)). Initially we turn to the legislative history of ERISA to determine the primary interest and obligation of the Secretary of Labor in enforcing the ERISA laws.
History recounts that prior to the enactment of ERISA, federal involvement in the monitoring of pension funds in this country was minimal. Because of the growth of private pension plans and the problems concurrent therewith, Congress in 1958 expanded the government’s role in supervising and monitoring pension plans with the enactment of the Welfare and Pension Claim Disclosure Act; however, this Act provided only limited disclosure of information and filing of reports for the pension funds. See Hutchinson and Ifshin, Federal Preemption Under The Employee Retirement Income Security Act of 1974, 46 U.Chi.L.Rev. 23, 28 (1978). Under this monitoring system, the primary responsibility for supervising the pension funds was left to the beneficiaries, “reserving to the states the detailed regulations relating to insurance and trusts_” Id. citing H.R. Rep. No. 2283 reprinted in [1958] U.S. Code Cong. & Ad.News 4137, 4181, at 4187. ERISA was enacted by Congress in 1974 after determining that the then present system of regulation was ineffective in monitoring and preventing fraud and other pension fund abuses.
“Experience ... has demonstrated the inadequacy of the Welfare and Pension Plans Disclosure Act in regulating the private pension system. It is weak in its limited disclosure requirements and wholly lacking in substantive fiduciary standards. Its chief procedural weakness can be found in its reliance upon the initiative of the individual employee to police the management of his plan.”
S.Rep. No. 1150, 92d Cong., 2d Sess. 5 (1972), cited in Hutchinson, supra. See also H.R.Rep. No. 93-533, 93d Cong., 1st Sess. 17 (1973), reprinted in [1974] U.S. Code Cong. & Ad.News 4639, 4655. Congress determined this problem to be national in scope warranting the federal government’s intervention in order that they might safeguard the national interest in the private pension fund system and the beneficiary’s interest in a retirement income.
Ҥ 1001. Congressional findings and declaration of policy
(a) The Congress finds that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; that the operational scope and economic impact of such plans is increasingly interstate; that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; that they are affected with a national public interest; that they have become an important factor affecting the stability of employment and the successful development of industrial relations; that they have become an important factor in commerce because of the interstate character of their activities, and of the activities of their participants, and the employers, employee information and adequate safeguards concerning their operation, it is desirable in the interests of employees and their beneficiaries, and to provide for the general welfare and the free flow of commerce, that disclosure be made and safeguards be provided with respect to the establishment, operation, and administration of such plans; that they substantially affect the revenues of the United States became they are afforded preferential Federal tax treatment; that despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that [690]*690owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable in the interests of employees and their beneficiaries, for the protection of the revenue of the United States, and to provide for the free flow of commerce, that minimum standards be provided assuring the equitable character of such plans and their financial soundness.”
29 U.S.C. § 1001(a) (emphasis added). ERISA’s statement of purpose makes it clear that Congress was aware of the public’s proper concern that these pension plans receive adequate supervision and monitoring, and was also concerned with the potential effect these plans might have on interstate commerce and the public treasury. Specifically, Congress recognized that the economic impact of private plans was interstate, that the plans affected the national public interest in employment stability and industrial relations, and that because they substantially affect the very revenues of the United States and affect the free flow of commerce to the general welfare, private plans are afforded preferential tax treatment.
To accomplish the desired remedial and protective purposes of ERISA, Congress required that all assets of the employee benefit plans “be held in trust by one or more trustees,” 29 U.S.C. 1103(a), subject to comprehensive standards of conduct wherein a fiduciary or trustee must discharge his duties solely in the interests of the participants “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters were to use_” 29 U.S.C. § 1104(a). The Congressional enactment further directed that the fiduciary might very well be held to be “personally liable to make good to such plan any losses to the plan resulting from each such breach ...” of his fiduciary duty, 29 U.S.C. 1109(a), and the civil action to recover the losses caused by the fiduciary’s breach of duty could be brought by the “Secretary, or by a participant [in a pension plan]_” 29 U.S.C: § 1132(a)(2). Moreover, Congress provided that “a copy of the complaint in any action under this subchapter by a participant, beneficiary, or fiduciary ... shall be served upon the Secretary ...” and that the Secretary “shall have the right in his discretion to intervene in any action [brought by a participant, beneficiary or fiduciary]....” 29 U.S.C. § 1132(h). But nothing in the statute or its legislative history equates the Secretary’s interests with those of private litigants so as to justify the application of res judicata to bar the Secretary from bringing a separate claim where private litigation has begun or been concluded.
The defendants argue that the Secretary of Labor is in privity with the private litigants and therefore the doctrine of res judicata applies. The defendants contend that in including this right to intervene in the ERISA statutory scheme, Congress intended that the Secretary could exercise his option to intervene in the private litigation once he determined that intervention was in the best interests of the participants. Thus the defendants sum up their argument by stating the Secretary’s only interest in this litigation is to represent the interests of the beneficiaries and plan participants alone. We disagree with the defendants’ restrictive interpretation of the Secretary’s role which is in direct contradiction of the legislative history and statutory scheme of ERISA. The congressional findings and declaration of policy recited above clearly indicate that Congress was not only concerned about the welfare of individual beneficiaries but was equally concerned with the impact of employee benefit plans on the stability of employment, the successful development of industrial relations, the revenues of the United States, the free flow of commerce, and the [691]*691general welfare of the nation.11 29 U.S.C. § 1001. An examination of the statutory scheme makes it eminently clear that the Secretary and the Secretary alone may bring a suit to collect a civil penalty for violations of § 1106 (prohibited transactions). Indeed, the Secretary of Labor is responsible for detecting, investigating, and monitoring civil and criminal violations of ERISA and referring those cases to the Attorney General for prosecution where he believes violations exist.
Although Congress gave the Secretary of Labor the responsibility and authority to investigate and monitor employee benefit plans, it never mandated that the Secretary must intervene in each and every piece of litigation or forever be barred by the doctrine of res judicata. Congress in giving the Secretary of Labor the authority to intervene in private actions of this nature furthered its original intent to aid the DOL in promoting uniformity of law, and further, in order that it might protect beneficiaries in general, who all too often suffer as a result of ill-advised decisions that arise from the mishandling of a case by a private litigant. See H.R.Rep. No. 95-533 reprinted in 1974 U.S.Code Cong. and Ad.News 4639, 4650. Cf. United States v. Mendoza, 464 U.S. 568, 104 S.Ct. 568, 572-73, 78 L.Ed.2d 379 (1984); United States v. East Baton Rouge Sch. Bd., 594 F.2d 56, 58 (5th Cir.1979) (Voting Rights Act). Thus, Congress facilitated the Secretary’s ability to monitor ERISA compliance in mandating service of all complaints on the Secretary in actions brought under ERISA, and in allowing the Secretary to intervene in private actions. But the requirement that notice be given to the Secretary does not establish that Congress intended the Secretary’s interest to be identical to that of a private litigant so as to bar the Secretary under the doctrine of res judicata from litigating his own claim independently of a private litigant. To hold that res judicata bars the Secretary from independently pursuing enforcement of ERISA would effectively limit the authority of the Secretary under ERISA. In the absence of an explicit legislative directive that the Secretary’s authority should be so limited, this Court will not presume that Congress intended res judi-cata to bar independent action by the Secretary.12
[692]*692B. The Secretary is Not Barred by Private Litigation
The Government is not barred by the doctrine of res judicata from maintaining independent actions asking courts to enforce federal statutes implicating both public and private interests merely because independent private litigation has also been commenced or concluded. For example, the Voting Rights Act protects the public interest in the “due observance of all constitutional guarantees” and the individual’s right to vote. See East Baton Rouge, 594 F.2d at 58, quoting United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). The Supreme Court has held that the Attorney General “is not bound by the resolution of § 5 [Voting Rights Act] issues in cases to which he was not a party.” Hathorn v. Lovorn, 457 U.S. 255, 268 n. 28, 102 S.Ct. 2421, 2429, 72 L.Ed.2d 824 (1983); City of Richmond v. United States, 422 U.S. 358, 373-74 n. 6, 95 S.Ct. 2296, 2305, 45 L.Ed.2d 245 (1975) (“whatever the merits of the District Court’s position on this collateral estoppel issue, we find controlling the nonparticipation of the United States ... in the Holt I case”). See also United States v. East Baton Rouge Parish School Board, 594 F.2d 56, 58 (5th Cir.1979) (Voting Rights Act). Similarly, in Title VII actions the government is not bound by previous litigation involving private parties. New Orleans S.S. Ass’n v. E.E.O.C., 680 F.2d 23, 25 (5th Cir.1982) (“EEOC may challenge a transaction which was the subject of prior judicial scrutiny in a private suit, if the subsequent challenge seeks different relief”); E.E.O.C. v. North Hill Passavant Hosp., 544 F.2d 664, 672 (3d Cir.1976) (Title VII); E.E.O.C. v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir.), cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975) (“EEOC [Title VII action] sues to vindicate the public interest, which is broader than the interests of the charging parties.... [T]he EEOC is not barred by the doctrine of res judicata from basing its complaint on the charges of discrimination which it never agreed to settle”). Cf. General Telephone Co. v. EEOC, 446 U.S. 318, 333, 100 S.Ct. 1698, 1707, 64 L.Ed.2d 319 (1980) (Addressing the issue of whether the EEOC could seek classwide relief without being certified as a class under Fed.R.Civ.P. 23, the Supreme Court held that the EEOC did not have to comply with Rule 23 since it sues to further the public interest and there are “differences between public and private interests involved”). Moreover, the government’s special status in enforcing the public interest extends beyond those statutes that implicate underlying constitutional concerns as in the Voting Rights Act and Title VII. For example, the government enjoys this special status in antitrust cases in order that it might ensure proper freedom in the market. In Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961) the Court noted that under the Sherman Act:
“ ‘private and public actions were designed to be cumulative, not mutually exclusive’_ ‘[T]he scheme of the statute is sharply to distinguish between government suits ... and private suits- Different policy considerations govern each of these.... [Thus] it is clear that just as the Government is not bound by private antitrust litigation to which it is a stranger, so private parties similarly situated, are not bound by government litigation.”
Id. 366 U.S. at 689-90, 81 S.Ct. at 1312-13. Similarly, the government’s interest in bringing an ERISA action is to enforce fiduciary standards and ensure the financial stability of billions of dollars of assets which in turn have a monumental effect on not only the Treasury of the United States, but on the national economy and commerce as well. Thus, aside from its duty of protecting the individual beneficiaries of these pension [693]*693programs, the government in this case clearly has an even stronger and paramount obligation to protect the very integrity, heart and lifeline of the program itself. In an ERISA action the Government participates as a party in order that it might sustain the very public confidence so necessary to the vitality of the enormous private pension fund system that provides billions of dollars of capital for investments affecting interstate commerce, and that substantially influences the revenues of the United States; further, the Secretary sues to enforce the fiduciary obligations undertaken by trustees of these pension funds and to assure the very uniformity of enforcement of the law under the ERISA statutes. A private litigant certainly is in no position to assume, much less argue, that the Secretary’s responsibility is limited to ensuring the uniform enforcement of the ERISA statutes since his only interest in bringing an action is to seek recovery of his own losses.
The rule that Government actions asking courts to enforce federal statutes that implicate both public and private interests are not precluded by separate, private litigation was applied to ERISA in the Fifth Circuit’s decision in Donovan v. Cunningham, 716 F.2d 1455 (5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3633, 82 L.Ed.2d 839 (1984).13
“ ‘This principle is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens_ Also, any contrary rule would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention.’
******
“The cases that have developed this principle have often involved statutory schemes like ERISA that provide for private enforcement of individual rights as well as suits by the government to vindicate the public interest in compliance with the law. For example, in suits to enforce Section 5 of the Voting Rights Act, the Attorney General of the United States is not bound by the results of prior litigation of the same issues by private parties. Hathorn v. Lovorn, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 2430 n. 23, 72 L.Ed.2d 824 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6, 95 S.Ct. 2296, 2305 n. 6, 45 L.Ed.2d 245 (1975); East Baton Rouge Parish, supra. Similarly, the Equal Employment Opportunity Commission may bring discrimination charges against an employer even after its employees have settled their private claims. New Orleans Steamship Ass’n v. EEOC, 680 F.2d 23, 25 (5th Cir.1982); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir.), cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975).”
Cunningham, 716 F.2d at 1462 (emphasis added). Thus, Cunningham observed:
“As in those cases, [Title VII and Voting Rights Act] the Secretary in the present case seeks to vindicate a public interest that is broader than the interests in the Alabama lawsuit. Those plaintiffs were interested in recouping only their own economic losses; the Secretary seeks to determine the legality of the specific conduct and to prevent those who have engaged in illegal activity from causing loss to any future ERISA plan par[694]*694ticipant. Thus, although the monetary settlement in the prior litigation may have achieved the goals of the private plaintiffs, it is clearly inadequate to vindicate the broader interest of the Government.”
Id. (emphasis added).
As recognized in the Cunningham decision, the Secretary in an ERISA action has an interest entirely separate and distinct from that of a private litigant since he seeks “to determine the legality of the specific conduct and to prevent those who have engaged in illegal activity from causing loss to any future ERISA plan participant.” 14 In this case, as in all ERISA actions, the Secretary brought the action in order to protect the beneficiaries’ retirement incomes, to assure uniform enforcement of the ERISA fiduciary obligations and to maintain and reinforce public confidence in the integrity and the financial well-being of the private pension system that provides billions of dollars for capital investments in public as well as private enterprises. The Secretary of Labor’s interest in an ERISA action is thus clearly separate and distinct from the private plaintiffs’ interests and thus cannot be barred by the doctrine of res judicata.
C. Intervention
The appellees argue that Cunningham does not control the outcome of this case because in Cunningham the Secretary did not intervene in the private class action, while the Secretary did intervene in the Sullivan and Dutchak actions pursuant to its automatic right of intervention under 29 U.S.C. § 1132(h) to object to the terms of the settlement. The fact that the Secretary intervened in the Sullivan and Dutchak actions, however, does not, should not, and will not preclude him from litigating his separate claims since the Secretary was forced to intervene after he learned that the private litigants had entered into backroom negotiations, without the Secretary’s knowledge or participation, culminating in a complete and binding settlement agreement conditioning the entire settlement of the case upon the dismissal of the Secretary’s action, without the Secretary’s knowledge, participation or consent. Thus, on October 16, 1981, the private named plaintiffs in Dutchak and Sullivan and the CSPF published a memorandum of understanding disclosing the terms of a potential settlement encompassing the entire action (the asset mismanagement and benefit claims). This memorandum provided for settlement of the contested eligibility rules, and conditioned their agreement on the settlement of the asset mismanagement claims against the former trustees and dismissal of the DOL’s action in Donovan. As noted by the plaintiffs’ attorney at the October 21, 1981 status hearing, as a condition of the negotiations, the plaintiffs were required by the CSPF not to communicate with the Department of Labor concerning the potential settlement.15 Once [695]*695the Secretary learned of the settlement terms he was alarmed and surprised that the parties would even attempt to condition the settlement of a private plaintiffs action on the basis of dismissal of this public interest action. Thus, the Secretary intervened only for the limited purpose of objecting to the terms of the settlement, including the highly questionable requirement that the DOL “not be advised” of the settlement negotiations, as the parties surely knew that he could not possibly agree to such a settlement due to his sworn public duty of enforcing the ERISA statutes for the nation’s benefit. We fail to understand how the district court would allow and approve a settlement where the parties have excluded the Secretary of Labor, a crucial participant who protects the national interest in enforcement of the laws governing pension and benefit plans, from the negotiations leading to a settlement based upon the dismissal of the Secretary’s ERISA action. Nevertheless, the record reveals that the Secretary intervened for the very limited purpose of participating in the settlement hearings to the extent only of litigating class certification issues and the proper notice to be given to the class, as well as requesting discovery of financial information from the former trustees. The Secretary, however, did not negotiate with the insurance companies or their insureds, the former trustees, concerning the amount of money to be recovered by the fund as the former trustees refused to negotiate with the Secretary at any time during the course of this litigation. Certainly, it is obvious that these defendants would have no interest in negotiating with the Secretary since the proposed settlement limited the trustees’ liability and thus it was to their benefit to argue that the Secretary’s action was barred under the doctrine of res judicata. As demonstrated by the facts in this case, the Secretary had no choice but to intervene in the private class action to protect the interest of the public in general (understandably so because the terms of the settlement anticipated the dismissal of the Secretary’s action), and thus his limited participation must not preclude him from fulfilling his statutory duty and obligation in pursuing a separate enforcement action.16
Further, the general rule is that the original parties to a suit may not stipulate away the rights of the intervenor:
“parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting inter-venors; if properly raised, these claims [696]*696remain and may be litigated by the intervenes. ... And, of course, a court may not enter a consent decree that imposes obligations on the party that did not consent to the decree.”
Firefighters Local 93 v. City of Cleveland, — U.S. -, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986) (citations omitted). See also, United States v. Borden, 347 U.S. 514, 74 S.Ct. 703, 98 L.Ed. 903 (1954) (prior consent decree entered between the parties to a private antitrust suit does not preclude the government from obtaining injunctive relief against the parties in a subsequent action). Raylite Electric Corp. v. Noma Electric Corp., 170 F.2d 914, 915 (2d Cir.1948). "... a stipulation signed after an intervener has entered cannot affect his [the intervener] rights.... The right to intervene ... presupposes that the inter-venor has a right to protect which is not subject to the disposition of the parties already in the case.” For example, in Wheeler v. American Home Products, 563 F.2d 1233, 1237-38 (5th Cir.1977), the Fifth Circuit held that the district court erred in approving a settlement between the original plaintiffs and defendants and dismissed the entire action with prejudice without considering the rights of the intervenor. See also Harris v. Amoco Production Co., 768 F.2d 669 (5th Cir.1985) (The EEOC, which represents the public interest, should not be dismissed from a case in which it intervened after the private litigants settled their claims). The precise issue herein is whether the Government really has a separate and distinct right or interest from that of the private plaintiffs in enforcing the provisions of ERISA. As previously established, it is clear that the Secretary does have a unique, distinct, and separate public interest, duty and responsibility in bringing this ERISA action to enforce the trustees’ fiduciary obligations and duties, to ensure public confidence in the private pension system that provides billions of dollars of capital for investments affecting federal tax revenues and interstate commerce, and most importantly, to protect the income of the retired workers and beneficiaries. Further, the Secretary of Labor has a separate interest when he intervenes so as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws. Moreover, in his amended complaint the Secretary petitioned for injunctive relief, separate from his requested relief for recovery of monies lost through the trustees’ mismanagement of the Fund’s assets. Although the district court did state that the Secretary could prove the substantial liability of the Trustees for the making of imprudent loans, the settlement failed to provide the necessary injunctive relief, requested by the Secretary, in order that he might prevent former trustees from holding similar positions of trusts in the future.17 The appellees argue that the failure to provide for injunctive relief is inconsequential since the former trustees have not served on the board of CSPF for seven years and most are not now serving on any other pension trust board. Thus, the appellees argue that any potential threat is at best minimal since the trustees were no longer in any supervisory position. But the fact that these Trustees are not now serving does not prevent them from serving in the future, which the Secretary contends would be contrary to the best interests of the funds. The Secretary protects the public interest in “preventing] those who have engaged in illegal activity from causing loss to any future ERISA plan participants.” Cunningham, 716 F.2d at 1462. We venture to state that private parties can never be representatives of this clear, specific, and unambiguous national interest of the Secretary. Id. at 1462-63. Thus, the Secretary has a separate and distinct interest in seeking injunctive relief and his intervention does not preclude him from seeking to protect this separate interest apart from the inter[697]*697ests the plaintiffs seek to protect themselves.18
III. CLASS CERTIFICATION
The district court certified “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,” as a class for purposes of this action. This class included the entire membership of the Teamsters Union, consisting of approximately 20,000 benefit claimants and over 400,000 asset mismanagement claimants. Although the certification of a class is within the sound discretion of the trial court and is reversible only if the court abuses its discretion, see, e.g., Liberles v. County of Cook, 709 F.2d 1122, 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), we are concerned that because of the conflict of interest between the benefit group and the asset mismanagement group, the named plaintiffs would not properly represent the putative class.
Fed.R.Civ.P. 23(a) sets forth the requirements for certification of a class action and provides, in part, that:
“One or more members of a class may sue or be sued as representatives on behalf of all only if ... (4) the representative parties would fairly and adequately protect the interests of the class.”
(Emphasis added). Whether the named plaintiffs properly represent the class’ interest depends upon a number of factors including: the adequacy of the named plaintiffs counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest of the absentee members. See, e.g., Horton v. Goose Creek, Ind. School Dist., 690 F.2d 470, 484 (5th Cir.1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983); Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th Cir.1977). In this case the Secretary of Labor does not challenge the adequacy of plaintiffs’ counsel. As to the second factor, the law is clear that a single class cannot be fairly and adequately represented by the entirely different and separate named plaintiffs if the members of that 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, 779-80 (7th Cir.1975); Phillips v. Klassen, 502 F.2d 362, 366-67 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1768 at 638-39 (1972).
In the case before the court, there is a clear conflict of interest between the benefit group and the asset mismanagement group. The asset mismanagement group’s interests19 are adverse to the benefit group’s interests20 since the settlement [698]*698provides for liberalization of the pension benefit rules that would result in a greater number of members becoming eligible for pension benefits. Thus, for every dollar that is expended or paid out from the Teamster’s pension fund on benefits for the eligible members of the benefit group, there will be one less dollar available to provide benefits for the asset mismanagement group, which is an obvious conflict of interest. In fact, $140 million of the CSPF’s assets were set aside under the terms of the settlement to cover claims made by members who are now eligible for pension under the new rules.
As to the conflict between those members of the class who favor liberalization of the pension benefit rules (the benefit claimants) and those members who may be opposed to any liberalization of the rules (the asset mismanagement claimants), the district court found that the named plaintiffs and the CSPF negotiated at arms length and that they vigorously contested each other’s position such that: “The present trustees of the Fund [the defendant CSPF] have vigorously represented the interests of those class members who desire that there be but limited expansion of benefit eligibility.” Courts have held, on rare occasions, that the unnamed class plaintiffs, whose interests were antagonistic to other members of the class, were adequately represented by defendants in a class action. See Horton, 690 F.2d at 487 (noting, however, that “[i]n many cases, we would hesitate to rely on the opponent of the class to represent the views of dissenting class members”); Dierks v. Thompson, 414 F.2d 453, 457 (1st Cir.1969). However, the record clearly evidences that in Dierks and Horton the courts were convinced that the defendants vigorously represented the interests of any possible dissenting class members and thus they held that the defendants had adequately represented the views of the dissenting class members. A critical distinction between the Dierks and Horton cases and this case is that the plaintiffs and defendants in this case agreed to settle the litigation while in Dierks and Horton there was no settlement. Since there was no settlement between the plaintiffs and defendants in the Dierks and Horton cases, the courts were assured that those unnamed class plaintiffs, whose interests conflicted with the rest of the class, would be adequately represented throughout the entire adversary process. We question whether, on the basis of the record before us, the defendants adequately represented the unnamed class plaintiffs. The unnamed plaintiffs and the CSPF settled this action, and the district court approved the settlement, despite the fact that the defendant-CSPF is not the typical defendant that would in this case necessarily represent the asset mismanagement group in resisting the liberalization of the pension benefit eligibility rules. The CSPF is represented by trustees (a new board that has replaced the defendant former trustees) who owe a fiduciary duty to represent the interests of the fund. In this case, the trustees had to assess whether the fund rules were in fact unduly restrictive and arbitrary in determining whether the CSPF had in the past denied pension benefits to deserving members of the union. The trustees certainly do not dispute the fact that more members of the union should qualify for pensions since they agreed to settle the action allowing for liberalization of the pension benefit rules. In contrast, the interests of the asset mismanagement group could not be more antithetical for that group has absolutely no interest in adding new participants to the pension plan since any payment to these new participants would decrease the amount of pension assets available for future pension disbursements. Therefore, we question the soundness of the district court’s reasoning that the interests of the asset mismanagement group may be adequately represented by the defendant-CSPF.
Further, the trial court stated, as if it were not entirely convinced that the [699]*699named plaintiffs21 sought the greatest possible recovery under the circumstances for the asset mismanagement claims, that “[t]he Department of Labor in this case has vigorously represented the interests of those class members interested in a larger asset management recovery.” It is difficult to understand how the Secretary could be an effective advocate, in the contexts of the Dutchak and Sullivan settlement, for a lárger asset mismanagement recovery considering that the Secretary took no part in the negotiations concerning the asset mismanagement recovery. As stated in the district court’s decision, there were no negotiations “between the DOL and the insurance companies....” District Court Opinion, August 27, 1984, slip op. at 7-8. Further, as noted throughout this opinion, the Secretary has a broad public role in enforcing the ERISA statutes that transcends the interests of any one group of participants or beneficiaries.
IV. CONCLUSION
As the facts and circumstances in this case demonstrate, the Secretary of Labor of the United States is clearly entrusted with the duty, obligation and responsibility of representing the public interest in the enforcement of the ERISA statutes and thus is not in privity with the private litigants for purposes of the application of the doctrine of res judicata. The dire consequences the appellees forecast concerning the cost of litigating this case if it is remanded back to the district court are, at best, a red herring and greatly overstated.22 The plaintiffs (excluding the Secretary of Labor) and defendants structured the settlement to include both the benefit and asset mismanagement claims; however, on remand no obstacle exists to prevent the parties from settling only the benefit claims apart from the asset mismanagement claims of the private litigants as the Secretary’s interest in pursuing and resolving the asset mismanagement claims in hopes that he might facilitate and aid the recovery of losses with the collecting of damages from the personal assets of the former trustees. But we also note that our decision is not a determination that the Secretary is entitled to any specific type of relief on this particular claim. Rather, we remand this case to the district court to determine, with reasonable haste, whether the Secretary can establish his claim that the funds available to satisfy the asset mismanagement claim, including the personal assets of the former trustees, exceed the amount provided in the settlement.23 If the Secretary is unable within a reasonable amount of time to present convincing evidence concerning his claim that the settlement is inadequate in that sufficient funds are available, the district court after proper and reasonable discovery should approve the settlement previously presented and dismiss the Secretary’s claim for failure to state a claim or to establish the existence of a genuine issue of material fact, but not on grounds of res judicata. Accordingly, we reverse the district court’s approval of the settlement agreement and remand for further consideration consistent with our holding herein.