Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 1 of 32

Stephen R. Bruce Suite 210 805 15th St., NW Washington, DC 20005 (202) 371-8013 SB-1240

Attorney for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY (NEWARK)

_______________________________________

:

PHILLIP C. ENGERS, WARREN J. MCFALL :

DONALD G. NOERR, and GERALD SMIT :

individually and on behalf of all others

:

similarly situated,

:

:

Plaintiffs,

:

:

v.

:

: 98-CV-3660 (SRC/CCC)

AT&T INC., AT&T PENSION BENEFIT

: SUPPLEMENTED FOURTH

PLAN, and AT&T PUERTO RICAN

: AMENDED CLASS ACTION

PENSION BENEFIT PLAN,

: COMPLAINT with

: DEMAND FOR JURY TRIAL

Defendants.

:

_______________________________________ :

SUPPLEMENTED FOURTH AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiffs, complaining of the Defendants, aver:

ADDRESSES OF NAMED PARTIES

1. The Plaintiffs’ addresses are:

Phillip C. Engers 3607 My Ladys View Ct. Monkton, MD 21111-1920

Warren J. McFall

Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 2 of 32
12 Wilshire Run Scotch Plains, NJ 07076-2841
Donald G. Noerr 718 Coleman Place Westfield, NJ 07090-4315
Gerald Smit 14 Sarah Court Bridgewater, NJ 08807
2. The Defendants’ addresses are:
AT&T Inc. 175 East Houston St., Room 8-Q-6 San Antonio, TX 78205-0000
AT&T Pension Benefit Plan 175 East Houston St., Room 8-Q-6 San Antonio, TX 78205-0000
AT&T Puerto Rican Pension Benefit Plan 175 East Houston St., Room 8-Q-6 San Antonio, TX 78205-0000
JURISDICTION AND VENUE
3. Plaintiffs invoke the jurisdiction of this Court pursuant to the Employee
Retirement Income Security Act of 1974 as amended, and the Age Discrimination in
Employment Act of 1967 as amended.
4. Venue is proper in this Court in that three of the Plaintiffs reside in this
District and the Defendants may be found in this District. Until sometime in 2006, one of
the corporate predecessors to AT&T Inc. was headquartered in this District and the
relevant programs under the Defendant Pension Plans were also administered from this
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District. JURY TRIAL
5. Plaintiffs demand a trial by jury under the United States Constitution, Fed.R.Civ.P. 38(a), the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(c), and the New Jersey Law Against Discrimination.
THE PARTIES 6. Plaintiffs are management employees of AT&T who were participants in the AT&T Management Pension Plan as of December 31, 1996. The Plaintiffs reside at the addresses given above. Plaintiff Phillip Engers was born in October 1948. Warren McFall was born in August 1938. Donald Noerr was born in March 1942. Gerald Smit was born in June 1950. The members of the proposed class reside throughout the United States and in foreign countries and on information and belief number in the tens of thousands. 7. On information and belief, Defendant AT&T Inc. is a business corporation organized and existing under the laws of the Delaware. AT&T Inc. is the product of a 2005 merger between AT&T Corp. and SBC Communications Inc. AT&T Corp. was a business corporation organized under the laws of New York which was headquartered in New Jersey. AT&T Inc. (hereafter “AT&T”) is also qualified to do business in New Jersey and does business in New Jersey. 8. Defendant AT&T is and was an “employer” within the meaning of the Age
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Discrimination in Employment Act of 1967 as amended and the Employee Retirement Income Security Act of 1974 as amended.
9. Defendants AT&T Pension Benefit Plan and AT&T Puerto Rican Pension Benefit Plan are employee benefit plans, as defined at Section 3(3) of ERISA, 29 U.S.C. § 1002(3), and, more particularly, are, in pertinent part, “employee pension benefit plans”, as defined at ERISA Section 3(2)(A), 29 U.S.C. § 1002(2)(A). The administrative offices of the Defendant Plans are located in San Antonio, TX.
9A. The Defendant Plans are successors to the AT&T Management Pension Plan. As of December 31, 2006, the assets and liabilities of AT&T Management Pension Plan (with the exception of assets and liabilities related to certain residents of Puerto Rico described below) were transferred and merged with the AT&T Pension Benefit Plan. The AT&T Pension Benefit Plan formerly was known as the SBC Pension Benefit Plan. It includes participants who formerly worked not only for SBC Communications, but also for the Pacific Telesis Group, Southern New England Telecommunications Corp., and Ameritech Corp. Pension plans associated with those companies were merged into SBC’s Plan in 1999, 2000, and 2004, respectively, after SBC acquired those companies. As of December 31, 2006, the AT&T Management Pension Plan became a program under the AT&T Pension Benefit Plan called the “AT&T Pension Benefit Plan–AT&T Legacy Management Program.”
9B. As of December 31, 2006, a new pension plan was also established for
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certain residents of Puerto Rico entitled the “AT&T Puerto Rican Pension Benefit Plan.” This Plan covers (1) employees who were residents of Puerto Rico on December 31, 2006, (2) non-employee participants whose last residence while an employee was in Puerto Rico, and (3) alternate payees or beneficiaries of participants described in (1) and (2). The persons described above who formerly were covered by the AT&T Management Pension Plan were placed in a program under this new Plan called the “AT&T Puerto Rican Pension Benefit Plan–AT&T Legacy Management Plan.”
10. Defendant AT&T has functioned and continues to function as the “plan administrator” for the Defendant Plans within the meaning of ERISA. Through the AT&T Employees’ Benefit Committee, Defendant AT&T functions as a fiduciary for the Defendant Plans within the meaning of ERISA.
10A. Because the Defendant Plans were the AT&T Management Pension Plan during all times pertinent to this lawsuit prior to December 31, 2006, they shall continue to be referred to under that name in this Complaint.
CLASS ACTION ALLEGATIONS 11. Plaintiffs bring this action as a class action in accordance with Federal Rule of Civil Procedure 23 to resolve disputes under the Employee Retirement Income Security Act of 1974 as amended and under the Age Discrimination in Employment Act of 1967 as amended. Judicial economy dictates resolving all issues as a single action in accordance with Federal Rule of Civil Procedure 23(b).
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12. Plaintiffs bring this action as a class action on behalf of AT&T management employees who have participated in the AT&T Management Pension Plan. The proposed class is defined as any and all persons who:
1. Are former or current AT&T management employees, 2. Are currently over age 40, 3. Participated in the AT&T Management Pension Plan on December 31, 1996
and on or after the January 1, 1998 date on which the Pension Plan was converted to a cash balance design. The proposed class covers all participants in the AT&T Management Pension Plan who have not earned or will not earn any additional pension benefits from one or more years of employment under AT&T’s new cash balance pension plan. 13. On information and belief, the proposed class numbers in the tens of thousands and is so numerous that joinder of all members is impracticable. 14. There are common questions of law and fact affecting the rights of Plaintiffs as employees of Defendant. The claims of the named class representatives are typical of the claims of the class. The named class representatives are all members of the class and will fairly and adequately protect the interests of the class. This action is best maintainable as a class action because Defendant has acted and/or refused to act on grounds generally applicable to the class the Plaintiffs represent, thereby making appropriate final injunctive and other equitable relief in favor of Plaintiffs and the class. In addition, the prosecution of separate actions by individual members of the class would
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create a risk of inconsistent or varying adjudication that would establish incompatible standards of conduct for Defendant.
15. With respect to the classwide claims for monetary relief under the Age Discrimination in Employment Act, the ADEA requires that members of the proposed class affirmatively opt into the suit after notice is given. 29 U.S.C. § 626(b) (incorporating by reference 29 U.S.C. § 216(b) of the Fair Labor Standards Act); see Lusardi v. Xerox Corp., 99 F.R.D. 89, 91-93 (D.N.J. 1983)
STATEMENT OF FACTS 16. AT&T established the AT&T Management Pension Plan in October 1980 as a system-wide defined benefit plan for AT&T employees (up to the end of 1983 the plan’s name was the “Bell System Management Pension Plan”). Before 1980, AT&T and the former Bell Operating Companies had each sponsored separate pension plans. The establishment of the AT&T Management Pension Plan consolidated and unified those pension plans. Since its establishment, the AT&T Management Pension Plan has offered participants annuities at retirement determined under a formula based on years of participation in the plan, times a percentage of compensation in a specified pay base averaging period (the “old” formula). 17. On information and belief, AT&T stopped accruing benefits under the previous Plan formula effective December 31, 1996, for certain purposes and effective July 31, 1997, for other purposes.
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18. On November 10, 1997, AT&T distributed a brochure to Plan participants announcing a change in its benefit formula to a new formula known as a “cash balance” formula (the “cash balance formula” or features).
19. Pursuant to the “cash balance” formula, participants were assigned initial Cash Balance Accounts. The initial Cash Balance Accounts set up for participants were far less than the value of the accumulated annuities earned under the “old” formula. The Cash Balance Accounts are hypothetical accounts, that is, separate individual accounts have not actually been set up for each participant as with a 401(k) or other defined contribution plan that are equal in total to the plan’s assets.
20. AT&T nominally credits the hypothetical Cash Balance Account of each participant with two components on an annual basis. The first is a percentage of a participant’s salary referred to as the “pay credit.” The second component is interest on the participant’s hypothetical Account Balance which, after a short-term introductory rate of 7%, will compound at the rate of 4% until payment of pension benefits, whether a participant continues in AT&T’s employment or not.
21. The new formula effects two changes that may not be obvious on its face. The first is that retirement benefits are now based on year-by-year compensation rather than average compensation in a final pay base averaging period. A second change is that undiscounted retirement benefits at age 55 are eliminated. These changes significantly reduced the rate of future accruals.
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22. The brochure that AT&T distributed on November 10, 1997, announcing the “new” formula did not disclose that the “new” formula masks a reduction in future benefit accruals.
23. Transition provisions for the cash balance plan provide that participants are not unconditionally entitled to their hypothetical Cash Balance Accounts, but will receive the “greater of” the accumulated pension benefits to which they were already eligible or the amount hypothetically calculated for the new Cash Balance Account. As a result of how the initial Cash Balance Account was calculated and this transition provision, older employees earn no additional retirement benefits for a number of years beyond those to which they are already eligible under the defined benefit plan’s retirement provisions.
24. When AT&T adopted a resolution about the cash balance formula on April 16, 1997, AT&T knew that employees within 7 years of retirement eligibility would not earn any additional benefits from the cash balance formula because of the transition features that AT&T was implementing. AT&T knew that for some older workers, their cash balance accounts would not “move ahead of the old plan” for 13 years.
25. The cash balance formula and transition features were designed for AT&T by Actuarial Sciences Associates (“ASA”). ASA is a benefits consulting firm that was wholly owned by AT&T until July 1998, at which time AT&T sold it to ASA’s management and employees. In a November 1998 article in the publication Compensation and Benefits Review, Michael J. Gulotta, president of ASA, and Harold W. Burlingame,
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AT&T’s executive vice-president for Human Resources, explained the benefit calculations for older AT&T employees under the cash balance feature and transition provisions:
“When 47-year-old mid career employees projected the value of their annuities - if they were to retire at age 55 - they found they were coming up short [that is, the benefits under the old plan were greater than the cash balance account]. They hadn’t miscalculated - this was a feature of the cash balance plan.
“. . . . AT&T encouraged employees to examine the figures beginning at about age 60 - when cash balance moves ahead of the old plan.” 26. On information and belief, AT&T adopted a resolution in a closed-door meeting on April 16, 1997, that contained some concepts of the “new” cash balance feature and transition provisions, but AT&T did not adopt Plan amendments on that date. 27. As late as February 17, 1999, AT&T stated in a letter to an attorney that the documentation of the “new” cash balance feature and transition provisions was not available and that the Plan Document reflecting the “new” cash balance amendments was still in the process of being prepared. FIRST CLAIM FOR RELIEF: Age Discrimination in Pension Benefit Freeze 28. The statements of the previous counts are hereby included as if set forth at length. 29. The Plaintiffs and the members of the proposed Plaintiff class are over 40 years of age. The Plaintiffs and the members of the proposed Plaintiff class are in the protected class under the federal Age Discrimination in Employment Act of 1967 as
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amended and the New Jersey Law Against Discrimination. 30. The Age Discrimination in Employment Act (“ADEA”) prohibits
discrimination against any individual with respect to compensation, including compensation in the form of pension benefits, because of the individual’s age. The ADEA does not permit age-based pay differences; “a lower pension for an older worker is equivalent to a lower salary for the same work.” Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir. 1995).
31. Age discrimination is tested on the basis of the individual’s current compensation. An employer cannot avoid a finding of age discrimination in current compensation on the basis that an older worker’s accumulated compensation or benefits are higher than that of a younger worker.
32. The ADEA’s “bona fide employee benefit plan” exception exempts certain bona fide employee benefit plans from scrutiny for age discrimination.
33. The “bona fide employee benefit plan” exception only applies where the actual cost incurred or actual amount of payment made on behalf of an older worker is not less than that incurred on behalf of a younger person when the tests in 29 C.F.R. 1625.10 are applied.
34. On or about November 1997, AT&T implemented the above-described cash balance features and transition provisions and informed Plaintiffs that changes had been made to the pension plan in which they participated. AT&T’s previous defined benefit
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plan offered valuable retirement benefits, including undiscounted early retirement benefits, for eligible employees. Older employees who were eligible for early retirement had valuable accumulated retirement benefits.
35. In making the transition to the cash balance plan, Defendant AT&T made changes that freeze the amount of the retirement benefits that Plaintiffs will receive for many years at the previously accumulated levels.
36. Defendant used a transition formula or design based on age to effectuate this freeze. No younger, recently hired employee experiences a benefit freeze. All recently hired, younger employees experience annual increases in their pensions.
37. The transition provisions of the cash balance plan effect the freeze of older workers’ pensions by providing that participants will receive the “greater of” the accumulated defined benefits to which the employees were already eligible or the amount computed under the new cash balance feature.
38. As a result of this transition provision and the low level at which AT&T set the initial Cash Balance Accounts, older employees earn no additional benefits for a number of years beyond the benefits to which they were already entitled under the defined benefit plan’s retirement provisions.
39. Plaintiffs will realize no increase in the amount of their pensions for seven or more years. During those years the value of Plaintiffs’ pensions will actually decrease due to the effects of inflation.
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40. The “greater of” formulation in the transition provisions discriminates on the basis of age by providing that older workers who are eligible for early retirement earn no additional benefits under the cash balance plan in the current year, the near-term and the long-term. The “greater of” provision in the transition provisions is a subterfuge for providing much lower cash balance benefits for older workers than those provided to younger workers.
41. The transition provisions of AT&T’s cash balance plan can be contrasted with provisions in which the amounts due under a new cash balance plan start at zero and add to the accumulated benefits which employees had already earned under the previous defined benefit plan. AT&T could have avoided discrimination on the basis of age by providing that older workers would earn additional benefits under the cash balance plan on the same basis as younger employees and that those benefits would be added to the accumulated benefits to which they were already eligible.
42. AT&T’s transition provisions are like those involved in cases in which older employees who were retirement eligible have been denied severance benefits. The courts have declared this discriminatory practice to be unlawful. In this case, employees who are retirement eligible have been denied additional current compensation in the form of additional cash balance benefits because of the “greater of” formulation in the cash balance plan’s transition rules.
43. During the years in which the amount of the older workers’ pensions does
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not increase, Defendant incurs no cost for Plaintiffs’ pensions while at the same time Defendant incurs the cost of younger employees’ pensions.
44. Following AT&T’s implementation of the cash balance plan with its transition provisions, the actual costs incurred on behalf of older workers are less than those incurred on behalf of younger persons when the test in 29 C.F.R. 1625.10 is applied. The actual payments made to older workers under the new cash balance plan are also less than those incurred on behalf of younger persons.
45. In designing the transition provisions from the old pension plan to the new cash balance plan, Defendant deliberately treated Plaintiffs differently because of age.
46. Defendant’s actions discriminate against Plaintiffs because of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) and 29 U.S.C. § 626(b). Defendant’s actions also discriminate against Plaintiffs in violation of the New Jersey Law Against Discrimination.
47. As required by 29 U.S.C. § 626(d), a representative of the class filed a timely charge of age discrimination on February 9, 1998, on behalf of himself and other workers in the protected age group with the Equal Employment Opportunity Commission more than 60 days prior to commencement of this action. The EEOC was not able to resolve the controversy and issued a letter to the Plaintiff dated May 18, 1998 and received May 20, 1998, advising that it was unable to resolve the controversy as described and that a lawsuit may be filed against the respondent within 90 days from receipt of the
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notice. Plaintiffs filed this action on a timely basis on August 5, 1998. SECOND CLAIM FOR RELIEF: Age Discrimination in Contingent Payment of New Cash Balance Benefits Based on Previously Accumulated Pensions
48. The statements of the previous counts are hereby included as if set forth at length.
49. As previously stated, on or about November 10, 1997 Defendant informed Plaintiffs that changes had been made to the pension plan. Among the changes Defendant purported to make was to set up Cash Balance Accounts for each employee.
50. The Cash Balance Account was set at an amount far less than the actuarial equivalent of the previous accumulated pension.
51. Defendant purport to make periodic additions to the cash balance account, but receipt of those additions is contingent on the amount of the participant’s accumulated pension benefits under the prior defined benefit plan being less than the Cash Balance Account.
52. Defendant froze benefits under the previous benefit formula as of December 31, 1996, for certain purposes and effective July 31, 1997, for other purposes. According to the transition provisions of the cash balance pension plan, Plaintiffs can take the greater of the accumulated frozen benefits or the Cash Balance Account on retirement, but not both.
53. Because AT&T has set the initial Cash Balance Accounts at a low value, it takes many years for the cash balance to move ahead of the value of the Plaintiffs’
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accumulated pension benefits before the changes. Because of the contingency in the “greater of” formulation, Plaintiffs are entitled to no cash balance benefits for seven or more years.
54. Younger, newly hired employees are entitled to receive benefits from the new cash balance pension plan without contingency.
55. Defendant has deliberately treated Plaintiffs differently because of age. 56. During the years in which cash balance benefits are contingent on the “greater of” formulation, Defendant incurs no cost for Plaintiffs’ pensions while at the same time Defendant incurs costs for the younger employees’ pensions. 57. Defendant’s actions discriminate against Plaintiffs due to age under the Age Discrimination in Employment Act of 1967 as amended and the New Jersey Law Against Discrimination. THIRD CLAIM FOR RELIEF: Improper, Untimely and Inadequate ERISA Section 204(h) Notice 58. As alleged above, AT&T had not adopted actual Plan amendments containing the cash balance feature and transition provisions before November 10, 1997, or even before February 17, 1999. AT&T implemented the “new” cash balance feature and transition provisions effective January 1, 1997. AT&T has to date not notified Plan participants of a significant reduction in the rate of future accruals. 59. By implementing the reduction before adoption of the actual amendments and without providing notice of a significant reduction in the future rate of accruals at
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least 15 days before the amendments’ effective date, AT&T violates ERISA Section 204(h), 29 U.S.C. § 1054(h), which requires that adoption of the amendments precede notice and that notice of the reduction precede implementation by at least 15 days.
60. Under Third Circuit precedent, exhaustion of claims procedures is not required for statutory ERISA claims. Exhaustion is, moreover, futile in this case because correspondence with the Plaintiffs and AT&T’s Answer maintains that its cash balance plan does not violate the law. A May 29, 1998 letter from Brian M. Byrnes, the AT&T official responsible for “pension matters,” states “there is nothing further to discuss .... [T]his letter concludes the Company’s contact with you on this subject outside of any legal process you may determine to undertake.” Thus, even if Plaintiffs’ claim was not a statutory ERISA claim, it would be futile to file an internal claim with company officers whose position is already staked out. FOURTH CLAIM FOR RELIEF: Failure to Maintain Plan Pursuant to Written Instrument
61. By implementing the “new” cash balance formula without a written Plan Document, AT&T violated ERISA Section 402, 29 U.S.C. § 1102 (“Establishment of plan”), which requires that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” FIFTH CLAIM FOR RELIEF: Breach of Fiduciary Duty
62. By implementing the “new” cash balance formula without a written Plan Document, AT&T violated ERISA Section 404, 29 U.S.C. § 1104 (“Fiduciary duties”),
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which requires, in pertinent part, that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and ... (D) in accordance with the documents and instruments governing the plan ....” SIXTH CLAIM FOR RELIEF: Misleading Summary Plan Description
63. On information and belief, AT&T distributed a Summary Plan Description (“SPD”) of the Plan, as amended by the “new” cash balance feature and transition provisions, in 1998 to some employees. The SPD, however, does not disclose that the “new” features:
(a) significantly reduce the rate of future benefit accruals; (b) cause older participants to earn no additional benefits beyond those already
earned; (c) use conversion factors to compute the initial Cash Balance that are not
based on the most valuable annuity offered under the “old” formula; (d) base benefits on year-by-year salary, whereas the “old” formula based them
on compensation in a final pay base averaging period; and (e) do not offer undiscounted retirement benefits at age 55. In addition, illustrative examples in the SPD intentionally omit comparisons of benefits under the “old” and the “new” formulas. 64. AT&T’s SPD is not “written in a manner calculated to be understood by the average plan participant,” and is not “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan,” in violation of Section 102 of ERISA, 29 U.S.C. § 1022.
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65. AT&T’s SPD was also not distributed to employees in a manner reasonably calculated to ensure actual receipt by the employees. The Plaintiffs did not receive the aforementioned SPD until AT&T filed the same as an exhibit in this action in December 1998. SEVENTH CLAIM FOR RELIEF: Breach of Fiduciary Duty to Keep Beneficiaries Informed
66. AT&T’s failure to disclose and its deceptive or uninformative disclosures to Plan participants and beneficiaries of the disadvantages of the “new” cash balance features and transition provisions, compared to the “old” defined benefit plan, do not comply with its fiduciary duties to keep trust beneficiaries fully informed, in violation of ERISA Section 404, 29 U.S.C. § 1104. EIGHTH CLAIM FOR RELIEF: Intentional Interference with Attainment of Benefits
67. Defendant intentionally designed the comparison of the participant’s Cash Balance Account with his or her previously accumulated retirement benefits and the contingent payment of only the “greater of” the two benefits to avoid payment of additional retirement benefits to older workers for many years of employment.
68. Defendant intentionally designed conversion factors for establishing participants’ hypothetical initial Cash Balance Accounts that have a discriminatory effect on the attainment of additional retirement benefits by older workers.
69. Defendant’s transition provisions for contingent payment of the Cash
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Balance Accounts are part of a scheme to avoid the payment of benefits to older workers for many years of employment.
70. Defendant violated ERISA Section 510, 29 U.S.C. § 1140, by intentionally interfering with the attainment of benefits by older workers under the Cash Balance pension plan. NINTH CLAIM FOR RELIEF: Decreases in Accrual Rates Based on Age
71. Accumulated interest credits under a cash balance pension plan are greater for younger participants due to the effect of compound interest until retirement. Unless the pay credit in a cash balance plan is commensurately age-weighted, the rate of accrual decreases with age. ERISA Section 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), prohibits reductions in the rate of accrual “because of the attainment of any age.” The same prohibition is contained in ADEA Section 4(i)(1)(A), 29 U.S.C. § 623(i)(1)(A).
72. AT&T’s Cash Balance formula increases the pay credit at five-year intervals, from a minimum of 3% of salary for participants under age 30, to a maximum of 10% of salary for participants 55 years of age and older.
73. While the age-weighted pay credits in the “new” formula somewhat mitigate age discrimination in the rate of accrual, they do not eliminate it. Although the pay credit increases with age, it increases only at five-year intervals from age 30 to age 55, and not at all after age 55. Thus, participants over 55 years of age experience decreases in their rate of benefits accrual every year until they retire. Similarly, because
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the pay credit increases only at five-year intervals between ages 40 and 55, plaintiffs and other class members experience yearly reductions in their rates of accrual at ages 41-44, 46-49, and 51-54.
74. Such reductions in the rate of accrual because of age violate ERISA and the ADEA. AT&T’s reductions in the rate of accrual because of age were knowing and intentional. STATEMENT OF ADDITIONAL FACTS
75. On October 16, 2000, AT&T amended and restated the AT&T Management Pension Plan document to include Cash Balance Accounts and related provisions. Hereafter, the amended and restated Plan document is referred to as the “amended Plan document.”
76. The amended Plan document contains rules that were not in the preceding Plan document or any amendment adopted by the AT&T Board of Directors or a duly-authorized delegate before October 16, 2000. For example, the rules contained in Section 4.06(a)(ii) on “Payment of Pensions” were not in the preceding Plan document or any amendment adopted by the AT&T Board of Directors or a duly authorized delegate prior to October 16, 2000.
77. Under both the preceding Plan document and the amended Plan document, the normal retirement age for the AT&T Management Pension Plan is generally defined as age 65. Upon information and belief, over 90% of AT&T’s management employees are
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retired before age 65. 78. In a section entitled “Cash Balance Accounts,” Section 4.04(e)(i) of the
amended Plan document provides that the Accrued Benefit derived from the Cash Balance Account for a participant who has attained normal retirement age will equal “the participant’s Cash Balance Account (as of the last day of the month . . . preceding the date on which the Accrued Benefit is being determined), divided by the appropriate factor in [Appendix] Section B.02, based on the participant’s attained age.”
79. For participants who have not attained the normal retirement age, Section 4.04(e)(ii) of the amended Plan document provides that the Accrued Benefit derived from the Cash Balance Account “shall be determined by projecting the Participant’s Cash Balance Account .. . to the Participant’s Normal Retirement Age, and dividing . . . by the appropriate factor in [Appendix] Section B.02, based on the Participant’s attained age.”
80. Pursuant to ERISA section 204(g), 29 U.S.C. § 1054(g), the AT&T Management Pension Plan may not be amended to reduce benefits earned under the Plan’s pre-existing pay base formulas. Under the title “Pay Base Formulas,” Section 4.05 of the amended Plan document preserves the pay base formulas that were applicable under the preceding Plan document, including the Special Update to the pay base formulas that was effective August 1, 1997.
81. However, in Section 4.06(a)(ii) on “Payment of Pensions,” the amended Plan document provides that when a benefit is payable “before normal retirement age” the
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“Participant’s pension benefit, payable monthly, for his or her life, equals the greater of: (1) the Accrued Benefit derived from his or her Cash Balance Account under Section 4.04, multiplied by the early commencement factor set forth in Section B.03 or (2) the Accrued Benefit determined under the Pay Base Formulas under Section 4.05, reduced by one half percent for each calendar month or part thereof by which the Participant’s age at the Pension Commencement Date is less than fifty-five years . . .” 82. Pursuant to Section 4.06(a)(ii), payment of the greater of “(1)” or “(2)”
satisfies the Plan’s obligation to pay both the Accrued Benefit determined under the pre-existing Pay Base Formulas in Section 4.05 for service through August 1, 1997, and any Accrued Benefits derived from the Cash Balance Account under Section 4.04.
82A. On March 30, 2006, the United States District Court for the District of New Jersey dismissed Plaintiffs’ Fourth and Fifth Claims “without prejudice to be re-filed once Plaintiffs have exhausted their administrative remedies.” On May 8, 2006, Plaintiffs transmitted a letter of appeal to the AT&T Employees’ Benefit Committee. AT&T’s Plan administrator treated the letter as an initial claim and denied it on September 8, 2006. Plaintiffs transmitted a second letter of appeal on September 27, 2006. The AT&T Employees’ Benefit Committee denied that appeal on January 11, 2007, and stated that “You have exhausted the internal administrative review process.” The Committee’s denial also occurred beyond the time frame permitted by the claims procedure regulations in 29 C.F.R. 2560.503-1(i)(1). By the Committee’s own statement and by operation of law, Plaintiffs have therefore fully exhausted their administrative remedies under the Plan with
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respect to the Fourth and Fifth Claims. TENTH CLAIM FOR RELIEF: Conditioning payment of vested accrued benefits on forbearance violates ERISA sections 203(a) and 204(b)(1)(B)
83. To conform with AT&T’s Applications for Determination to the IRS and the holding in Esden v. Bank of Boston, 229 F.3d 154, 169 (2d Cir. 2000), both the preceding and the amended AT&T Plan documents must comply with the 133% benefit accrual method in ERISA section 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B). The 133% accrual method requires that defined benefit pension plans, including cash balance plans, offer “annual rates” of benefit accrual. The annual rates of benefit accruals in later years of participation can be no more than 133% of the annual rates in earlier years. See, e.g., Esden, supra, 229 F.3d at 169.
84. Under Section 4.04 of the amended Plan document, the named plaintiffs have “annual rates” of benefit accrual for 1998, 1999, 2000, etc. In exhibits attached to an affidavit AT&T submitted to this Court on November 13, 2000, AT&T computed the accrued benefits for the named plaintiffs at the end of each year. For example, according to AT&T’s computations, named plaintiff Donald Noerr’s accrued benefits expressed in the form of an annual annuity will increase by $1,218 as a result of his employment in 1999, $1,080 in 2000, and $1,039 in 2001.
85. Section 4.06(a)(ii) of AT&T’s amended Plan document provides, however, that a plan participant only receives the annual rates of benefit accrual from his or her Cash Balance Account for 1998, 1999, 2000, and succeeding years if the participant does
24

Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 25 of 32

not retire before the normal retirement age and receive the ERISA “protected” pay base formula benefits. This places a condition on payment of the accrued benefits derived from the Cash Balance Accounts for 1998, 1999, 2000, etc.
86. For example, under section 4.06(a)(ii) of the amended Plan document, the AT&T Management Pension Plan will not pay, and Donald Noerr will not receive, any of the accrued benefits that he earned in 1998, 1999, and 2000 if he retires before age 60. Unless Mr. Noerr retires at or after age 65, he will not receive either the full amount or the actuarially equivalent value of the accrued benefits that he earns in the years after January 1, 1998. Mr. Noerr’s annual rates of benefit accruals in the years 1999-2001 are set out in the table below along with the payments that the AT&T Plan will make pursuant to section 4.06(a)(ii) if Mr. Noerr retires before age 60:

Year

Age

1999

57

2000

58

2001

59

Annual benefit accrual
$1,218
$1,080
$1,039

Accrual as % of salary
1.62% 1.43% 1.38%

Payment on retirement before 60
$0.00
$0.00
$0.00

87. A right to benefit accruals must be unconditional to satisfy the nonforfeitability requirements of ERISA Section 203(a), 29 U.S.C. § 1053(a). Pursuant to the regulations at 26 C.F.R. 1.411(a)-4: “[A] right which, at a particular time, is conditioned under the plan upon . . . subsequent forbearance which will cause loss of such right is a forfeitable right at that time.” IRS Notice 96-8, 1996-1 C.B. 359, explains:
25

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“If benefits . . . have accrued [but] those benefits are disregarded when benefits commence before normal retirement age, the plan has effectively conditioned entitlement to the benefits . . . on the employee not taking a distribution prior to normal retirement age.” Accord Esden v. Bank of Boston, supra, 229 F.3d at 157 and 168 (“because Plaintiff received less than she would have had she not elected to take her [cash balance] benefit in the form of a lump sum, part of her pension benefit was made conditional on the option chosen, in violation of the anti-forfeiture provisions of ERISA §203(a), I.R.C. §411(a)(2) and Treas. Reg. 1.411(a)(4)”). 88. The amended Plan document conditions entitlement to the accrued benefits derived from the participant’s Cash Balance Account on the participant not retiring before the normal retirement age and receiving a distribution of his or her ERISA protected benefits. Under the amended Plan document, the right to the cash balance benefit accruals is not unconditional as required by ERISA Section 203(a), 29 U.S.C. § 1053(a). 88A. Alternatively, the amended Plan document violates the 133 1/3% rule in ERISA Section 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B) because (1) the annual rates of accrual for 1998, 1999, and succeeding years are in many circumstances only nominal bookkeeping accruals that are not actually payable, (2) the annual rates of accrual in “later plan years” exceed 133% of the accruals in the current and subsequent plan years, and (3) the annual rates of accrual for younger employees and new hires are always payable whereas the annual rates for older employees are only nominal entries.
26

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ELEVENTH CLAIM FOR RELIEF: Conditioning receipt of the actuarial value of vested accrued benefits violates ERISA Section 204(c)(3)
89. ERISA section 204(c)(3), 29 U.S.C. § 1054(c)(3), provides that “if an employee’s accrued benefit is to be determined as an amount other than an annual benefit commencing at normal retirement age, . . . the employee’s accrued benefit . . . shall be the actuarial equivalent of such benefit.”
90. Section 4.04(e) of AT&T’s amended Plan document provides a method for determining the accrued benefits derived from plan participants’ Cash Balance Accounts at both normal and early retirement ages. In conjunction with the early commencement factors set forth in Appendix Section B.03, this section offers “annual rates” of benefit accrual as required by ERISA’s 133% rule and potentially satisfies the actuarially equivalent value requirement in ERISA section 204(c)(3).
91. However, Section 4.06(a)(ii) on “Payment of Pensions” adds a restriction on the payment of accrued benefits that negates the potential for compliance. Section 4.06(a)(ii) provides that participants who retire before the normal retirement age and receive ERISA-protected benefits will not receive the actuarial value of the annual retirement benefits that they accrued in their Cash Balance Accounts in 1998, 1999, 2000, etc. Section 4.06(a)(ii) violates ERISA Section 204(c)(3) because it deprives participants who retire before the normal retirement age of the actuarial value of their cash balance benefit accruals in 1998, 1999, 2000, and succeeding years.
27

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TWELFTH CLAIM FOR RELIEF: Reducing “protected” benefits by 6% per year for commencement before age 55 violates ERISA section 204(g) and ERISA sections 203(e) and 205(g)
92. Section 4.06(a)(ii) of the amended Plan document provides that ERISA-protected early retirement benefits will be reduced by “one half percent” per month, or 6% per year, for commencement before age 55— unless the participant has over 30 years of service (in which case the reduction is one quarter percent per month).
93. The reduction of a protected age 55 annuity by 6% per year for commencement prior to age 55 is in excess of a reasonable actuarial reduction. By comparison, the reduction factors set forth in Sections 4.06(a)(ii) and B.03 of the amended Plan document for annuities derived from the Cash Balance Accounts are 3.8% per year for the 10 years before age 55, and 2.65% per year for the next 10 years. A 6% reduction per year of an age 55 annuity means that the “protected” annuity is reduced to nothing if the participant is age 38 (16.6 years x 6% = 100%). At age 40, the ERISA-protected annuity is reduced to 10% of the protected amount — when a reasonable actuarial reduction would be about 50%.
94. Through the 6% per annum reduction to the protected annuity amounts, AT&T has adopted a plan provision under which participants lose or forfeit their ERISA-protected annuities. This violates ERISA Section 204(g), 29 U.S.C. § 1054(g). An amendment to a plan violates the statutory protection if it creates a new circumstance in which the value of the protected benefits is lost or forfeited. 26 C.F.R. 1.411(d)-4, Q&A
28

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7; Esden v. Bank of Boston, supra, 229 F.3d at 168 (“because Plaintiff received less than she would have had she not elected to take her benefit in the form of a lump sum, part of her pension benefit was made conditional on the option chosen”; finding it “similarly unpersuasive” that the participant “elected” a forfeiture).
94A. Alternatively, the 6% per year reductions to the undiscounted age 55 annuity violate Treasury Regulation 1.411(a)-11(a)(2), which was issued under Code Section 411(a)(11), 26 U.S.C. § 411(a)(11), and ERISA Sections 203(e) and 205(g), 29 U.S.C. §§ 1053(e) and 1055(g). Treasury Regulation 1.411(a)-11(a)(2) expressly provides that a distribution option to a “subsidized early retirement benefit” must offer at least the actuarial equivalent of the subsidized benefit. See also Costantino v. TRW, 13 F.3d 969, 978-80 (6th Cir. 1994). AT&T’s 6% per year reduction to the undiscounted age 55 benefit violates this rule because it exceeds a reasonable actuarial reduction.
PRAYER FOR RELIEF ON ADEA CLAIMS WHEREAS, the Plaintiffs pray that this Court: A. Find and conclude that Defendant AT&T has violated the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination by using age-based transition rules for the computation and payment of cash balance benefits. B. Order Defendant to pay cash balance pay credits and interest with no contingency on receipt based on the pension benefits the Plaintiffs and other older
29

Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 30 of 32
workers previously accumulated. C. Order Defendants to pay the Plaintiffs additional amounts equal to the
shortfall in benefits produced by the contingent transition provisions in the cash balance plan as liquidated damages under the Age Discrimination in Employment Act.
D. Order Defendant to pay the Plaintiffs interest, attorneys’ fees and expenses. PRAYER FOR RELIEF ON ERISA CLAIMS
WHEREAS, the Plaintiffs pray that this Court: A. Declare that AT&T’s implementation of the “new” formula violates the 15-day advance notice rule in ERISA Section 204(h), 29 U.S.C. § 1054(h); the Plan document requirement in ERISA Section 402, 29 U.S.C. § 1102; the fiduciary duties to act in accordance with the Plan document and keep beneficiaries informed in ERISA Section 404, 29 U.S.C. § 1104, and the Summary Plan Description rules in ERISA Sections 102 and 104(b)(1), 29 U.S.C. §§ 1022 and 1024(b)(1). B. Declare that due to AT&T’s failure to provide the required ERISA Plan documents and notices, the reduction in the rate of future accruals under the “cash balance” features has not become effective to date, and will not become effective until AT&T complies with the ERISA Section 204(h) notice requirements. C. Declare that the terms of the Defendant Pension Plan, as amended by the “new” cash balance features, violate the minimum accrual standards in ERISA Section 204(b)(1), 29 U.S.C. § 1054(b)(1), because they create periods of years in which
30

Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 31 of 32
participants have no annual rate of accrual that is actually payable. D. Declare that the terms of the Defendant Pension Plan which provide for a
6% per annum reduction for commencement of benefits before age 55 violates 26 C.F.R. 1.411(a)-11(a)(2), which requires that any distribution options to a subsidized early retirement benefit must offer at least the present value of the subsidized benefit.
E. Order that if and when AT&T takes the lawful steps to make cash balance features effective, there must be no reductions in protected accrued benefits, no age-based decreases in rates of accruals, and receipt of the cash balance plan’s annual pay credits and interest may not be contingent on the participant’s previous accumulated benefits.
F. Order that AT&T’s SPD fully disclose all features of the cash balance plan described above that are not reformed by the Court’s Order.
G. Order the Defendants to pay interest, attorneys’ fees and expenses. H. Award such other equitable and remedial relief as the Court may deem appropriate.
Respectfully submitted, Stephen R. Bruce Suite 210 805 15th St., NW Washington, D.C. 20005 (202) 371-8013 SB-1240 Edgar Pauk Suite 600 144 E. 44th St. New York, NY 10017
31

Case 2:98-cv-03660-SRC-CCC Document 355 Filed 10/17/2007 Page 32 of 32 (212) 983-4000 s/ Jonathan I. Nirenberg__ Jonathan I. Nirenberg Resnick Nirenberg & Siegler 100 Eagle Rock Ave., Suite 301 East Hanover, NJ 07936 (973) 781-1204
32

 
 Case 2:98-cv-03660-SRC-CCC Document 336 Filed 05/24/2007 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

____________________________________

:

PHILLIP C. ENGERS, WARREN J.

:

MCFALL, DONALD G. NOERR,

:

and GERALD SMIT, individually and on :

behalf of all others similarly situated,

:

:

Plaintiffs,

:

:

v.

:

:

AT&T and AT&T MANAGEMENT

:

PENSION PLAN,

:

:

Defendants.

:

____________________________________:

Civil Action No. 98-3660 (SRC) ORDER

CHESLER, U.S.D.J.

This matter having come before the Court on the motion for conditional approval of

ADEA collective action and authorization of notice to the class (Docket Entry No. 301) by

Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively,

“Plaintiffs”); and this Court having considered the parties’ submissions; and for the reasons set

forth in the accompanying Opinion, and good cause appearing,

IT IS THEREFORE on this 24th day of May, 2007,

ORDERED that Plaintiffs’ motion for conditional approval of ADEA collective action

and authorization of notice to the class (Docket Entry No. 301) is GRANTED, subject to the

modifications and conditions specified in the body of the accompanying Opinion.

s/ Stanley R. Chesler Stanley R. Chesler, U.S.D.J.

 
 Page 1

4 of 20 DOCUMENTS

Analysis As of: Apr 04, 2008
PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, and GERALD SMIT, individually and on behalf of all others similarly situated, Plaintiffs, v. AT&T and AT&T MANAGEMENT PENSION PLAN, Defendants.
Civil Action No. 98-3660 (SRC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
2007 U.S. Dist. LEXIS 47

January 3, 2007, Decided

NOTICE: [*1] NOT FOR PUBLICATION

SUBSEQUENT HISTORY: Motion denied by Engers v. AT&T, 2007 U.S. Dist. LEXIS 23021 (D.N.J., Mar. 29, 2007)

PRIOR HISTORY: Engers v. AT&T, 2006 U.S. Dist. LEXIS 93724 (D.N.J., Dec. 12, 2006)

COUNSEL: For GERALD SMIT, Plaintiff: JONATHAN I. NIRENBERG, RESNICK NIRENBERG & SIEGLER, ROSELAND NJ.

For AT&T, AT&T MANAGEMENT PENSION PLAN, Defendants: CHRISTOPHER H. MILLS, LEAD ATTORNEY, FISHER & PHILLIPS, LLP, SOMERSET, NJ.

For PHILLIP C. ENGERS, Plaintiff: GERALD SMIT, LEAD ATTORNEY, BRIDGEWATER, NJ; JONATHAN I. NIRENBERG, RESNICK NIRENBERG & SIEGLER, ROSELAND NJ.

For WARREN J. MCFALL, DONALD G.

INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED, Plaintiffs:

GERALD

SMIT,

LEAD

ATTORNEY,

BRIDGEWATER, NJ; NEIL H. DEUTSCH, LEAD

ATTORNEY, DEUTSCH ATKINS, PC,

HACKENSACK, NJ; JONATHAN I. NIRENBERG, RESNICK NIRENBERG & SIEGLER, ROSELAND NJ.
JUDGES: Stanley R. Chesler, U.S.D.J.
OPINION BY: Stanley R. Chesler
OPINION
CHESLER, U.S.D.J.
This matter comes before the Court on two motions. Defendants AT&T and AT&T Management Pension Plan (collectively, "Defendants" or "AT&T") move for judgment on the pleadings, pursuant to FED. R. CIV. P. 12(c). Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively, "Plaintiffs") move for partial summary judgment, pursuant to FED. R. CIV. P. 56 [*2] . For the reasons set forth below, both motions will be DENIED.
BACKGROUND
This case arises out of disputes over an AT&T Pension Plan (the "Plan"). The background to this case has been stated in previous Opinions in this case -- most recently, the Opinion of March 30, 2006 -- and will not be repeated here.

2007 U.S. Dist. LEXIS 47, *2

Page 2

The instant motions concern two paragraphs in the Fourth Amended Class Action Complaint ("FAC"), P 88A in the Tenth Claim and P 94A in the Twelfth Claim. Defendants have moved for judgment on the pleadings, asking that these paragraphs of these claims be dismissed. Plaintiffs have cross-moved for partial summary judgment on these paragraphs.
ANALYSIS
I. Legal Standards
A. Rule 56 Motion for Summary Judgment
Summary judgment is appropriate under FED. R. CIV. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, [*3] and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by [*4] 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent.

Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. CIV. P. 56(e) (requiring nonmoving party to "set forth specific facts showing that there is a genuine issue for trial"). "A nonmoving party has created a genuine issue of material fact if [*5] it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).
B. Rule 12(c) Motion for Judgment of the Pleadings
The standard for a motion for judgment on the pleadings under FED. R. CIV. P. 12(c) is the same as that for a motion to dismiss under FED. R. CIV. P. 12(b). See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) ("There is no material difference in the applicable legal standards").
On a motion to dismiss for failure to state a claim, pursuant [*6] to FED. R. CIV. P. 12(b)(6), the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L.

2007 U.S. Dist. LEXIS 47, *6

Page 3

Ed. 2d 59 (1984). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept unsupported conclusions, [*7] unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Morse v. Lower Merion School District, 132 F.3d 902, 906 n.8 (3d Cir. 1997). All reasonable inferences, however, must be drawn in the plaintiff's favor. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). Moreover, the claimant must set forth sufficient information to outline the elements of his or her claims or to permit inferences to be drawn that the elements exist. See FED. R. CIV. P. 8(a)(2); Conley, 355 U.S. at 45-46. "The defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
II. The Rule 12(c) and Rule 56 motions as to P 88A
A. Defendants' 12(c) motion
Defendants' primary argument in support of their motion is that it is impossible for Plan § 4.06(a)(ii) to violate 29 U.S.C. § 1054(b)(1)(B) (the "133 1/3 % rule"). This, even if true, cannot justify granting their motion, because it relies on an unjustified, restrictive reading of the text of P 88A. [*8] AT&T construes P 88A in a way that rewrites it with a major limitation: AT&T reads P 88A as if "the amended Plan document" means "Plan § 4.06(a)(ii) of the amended Plan document." AT&T does not justify or even acknowledge its insertion of this limitation, nor does this Court perceive a basis for it. The plain language of P 88A includes the entire amended Plan document within its scope and does not limit it to any particular provision. Having misconstrued the scope of P 88A, Defendants' 12(c) motion on this paragraph cannot succeed.
AT&T attempts to use Judge Bassler's October 17, 2002 Opinion to limit P 88A. It does appear from that Opinion, which ruled on Defendants' motion to dismiss the Third Amended Complaint, that Plaintiffs' arguments and the Court's decision to dismiss Count Ten concerned Plan § 4.06(a)(ii). (October 17, 2002 Opinion at *6-*10.)

This does not, however, constrain the interpretation of P 88A. Magistrate Judge Hedges, in his Order of November 17, 2004, ordered that "Plaintiffs may plead the following new legal theories as set forth in Paragraphs 88A and 94A of the proposed Fourth Amended Class Action Complaint." (Order of November 17, 2004 P 1.) [*9] This language clearly expresses the understanding of the Court that P 88A presented a new legal theory and, as such, was not limited by arguments already presented.
Moreover, to the extent that Defendants seek to constrain P 88A by relying on any of the Court's prior rulings on the Tenth Claim in the Third Amended Complaint, 1 this runs contrary both to their previous statement and to this Court's previous decision. Defendants appealed the November 17, 2004 Order by the Magistrate Judge to the district court. In their brief, Defendants argued that "new paragraph 88A adds an entirely different claim." (Defs.' Appeal Br., Docket Entry No. 233, at 14.) Defendants now appear to take the opposite position, that the scope of P 88A is restricted by the old claim.
1 See, e.g., Defs.' Reply Br. 15-20.
Moreover, in deciding the appeal, the Court considered Defendants' argument and found the distinction between claims and new legal theories to be "both illusory and irrelevant." (Opinion of Sept. 13, 2005 at 3.) The [*10] Court affirmed the Magistrate Judge's Order. It is quite clear that the Court allowed Plaintiffs to amend their Complaint to plead new matters.
In this context, it appears that Defendants are now attempting to limit the impact of the leave to amend granted two years ago by reading P 88A to restrict it to old matters. This is contrary to the Court's previous decision. As such, this Court reads P 88A as a new legal theory and does not find that its scope is limited to Plan § 4.06(a)(ii).
In support of their Rule 12(c) motion, Defendants first argue that P 88A fails to state a claim because Plan § 4.06(a)(ii) cannot violate the 133 1/3 % rule, as § 4.06(a)(ii) sets forth the formula for calculating early retirement benefits, and ERISA § 204(b)(1)(B) addresses only normal retirement benefits. This Court need not reach the merits of this argument because, even if true, it is insufficient to show that the entire amended Plan document cannot violate the 133 1/3 % rule.

2007 U.S. Dist. LEXIS 47, *10

Page 4

Next, Defendants argue that the Plan does comply with the 133 1/3 % rule, as shown in exhibits cited in FAC P 84. Again, this Court need not reach the merits of this argument because, even if true, the fact that four [*11] exhibits show no violation is insufficient to demonstrate that it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. As to P 88A, Plaintiffs' motion for judgment on the pleadings will be denied.
B. Plaintiffs' motion for partial summary judgment
Plaintiffs' brief in support of its motion for partial summary judgment on P 88A suffers from many defects. Most significant among them is that it never gets down to the business of applying the 133 1/3 % rule to the benefit accrual methods specified in the amended Plan document -- the subject of P 88A. Rather, Plaintiffs focus on other issues, particularly payment.
Plaintiffs begin their argument by contending that Plaintiff Noerr has not been paid the benefits that he accrued. (Pls.' P.S.J. Br. 3-5.) This raises three questions that the parties have not examined. First, what does "payable" in the context of 29 U.S.C. § 1054(b)(1)(B) mean? Second, what does "payable" in the context of P 88A mean? Third, do Plaintiffs' arguments about payment come within the scope of the statute and the Complaint? [*12] None of these necessary questions has been addressed by the parties.
While the title of § 1054 is "Benefit accrual requirements," payment is implicated in provision (b)(1)(B):
A defined benefit plan satisfies the requirements of this paragraph of a particular plan year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year.

This provision states two conditions that must both be met. 2 Both sub-rules refer to the benefit "payable at [the] normal retirement age." Whether or how this covers Plaintiffs' complaints that their benefits have not been paid depends on interpretation of the word "payable," both in P 88A and 29 U.S.C. § 1054(b)(1)(B). Again, the parties have not briefed this issue, and this Court will not analyze [*13] it sua sponte. Before this Court can rule on Plaintiffs' payment arguments, however, the parties will likely need to address these questions.
2 This is also reflected in the relevant Treasury Regulation on the 133 1/3 % rule, 26 C.F.R. 1.411(b)-1(b)(2)(i), which distinguishes the two sub-rules and labels them "A" and "B."
Plaintiffs point to the example of Plaintiff Noerr and compare an early retirement benefit with the actuarial equivalent of the normal retirement benefit. (Pls.' P.S.J. Br. 3-5.) Plaintiffs do not explain how this issue is within the scope of 29 U.S.C. § 1054(b)(1)(B). Plaintiffs later return to this issue, but relate it to 29 U.S.C. § 1054(c)(3), which does contain an actuarial equivalence requirement. (Pls.' P.S.J. Br. 12.) Plaintiffs were not, however, granted leave to amend their Fourth Amended Complaint to include a claim for violation of 29 U.S.C. § 1054(c)(3), and P 88A does not refer [*14] to this provision. Plaintiffs do not explain the link between their argument and 29 U.S.C. § 1054(b)(1)(B).
As Defendants observe, Plaintiffs next attempt to turn the plain meaning of § 1054(b)(1)(B) on its head. Plaintiffs point to subsection § 1054(b)(1)(B)(iii), which provides that, for purposes of this paragraph, "the fact that benefits under the plan may be payable to certain employees before normal retirement age shall be disregarded." Although this plainly instructs the reader to disregard the payment of early retirement benefits, Plaintiffs attempt to use this as a rule limiting the accrual of early retirement benefits. (Pls.' P.S.J. Br. 14.) This is manifestly contrary to the provision's plain meaning. Moreover, 26 C.F.R. 1.411 (b)1-(b)(2)(ii)(C) clearly states that the 133 1/3 % rule does not apply to early retirement benefits.
Plaintiffs next point to § 1054(b)(1)(B)(i), which provides that "any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years." Plaintiffs then misapply this provision in their "effective accrual" argument. (Pls.'

2007 U.S. Dist. LEXIS 47, *14

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P.S.J. Br. 18-20.) The effective accrual argument [*15] holds that, if you look at Plaintiff Noerr's annual accruals before the conversion, under the terms of the old Plan, and then look at his annual accruals after the conversion, under the terms of the new Plan, you see that the new Plan has the effect of causing zero accrual rates for some plan years, followed by a resumption of non-zero accrual rates. The theory is that these non-zero accrual rates exceed 133 1/3 % of the zero accrual rates, thus violating the 133 1/3 % rule.
This position is fatally flawed, and is undermined specifically by § 1054(b)(1)(B)(i). In making the "effective accrual" argument, Plaintiffs apply the 133 1/3 % rule to a hybrid plan that does not comport with § 1054(b)(1)(B)(i). This provision requires that, in applying the 133 1/3 % rule, one must look only at the provisions in force during the current year and apply them as if they had been in effect for all other plan years. This precludes the use of hybrid models in which the benefit accruals for some years are calculated according to one plan, while for other years the benefit accruals are calculated by another plan. To show that the accruals under the amended Plan violate § 1054(b)(1)(B), Plaintiffs [*16] must calculate the entire accrual history as if the amended Plan had been in effect for every year, as required by § 1054(b)(1)(B)(i). In making the "effective accrual" argument, Plaintiffs have overlooked this.
As to their motion for partial summary judgment on P 88A, Plaintiffs have failed to carry their burden under Rule 56. Plaintiffs would bear the burden of proof on the issues in P 88A at trial. Under the law of the Third Circuit, then, to prevail on a motion for partial summary judgment, Plaintiffs "must show affirmatively the absence of a genuine issue of material fact" and "must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." Bressman, 327 F.3d at 238. Plaintiffs have not even argued that they have met this burden, no less done so. Plaintiffs' motion for partial summary judgment on P 88A will be denied.
III. The Rule 12(c) and Rule 56 motions as to P 94A
In contrast to P 88A, P 94A does appear to be limited in scope to Plan § 4.06(a)(ii)(A)(2), which provides for a 6% benefit reduction for commencement before age 55. The FAC alleges [*17] that this provision violates 26 C.F.R. § 1.411(a)-11(a)(2). This regulation states:

Accrued benefit. For purposes of this section, an accrued benefit is valued taking into consideration the particular optional form in which the benefit is to be distributed. The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan. For example, a plan that provides a subsidized early retirement annuity benefit may specify that the optional single sum distribution form of benefit available at early retirement age is the present value of the subsidized early retirement annuity benefit. In this case, the subsidized early retirement annuity benefit must be used to apply the valuation requirements of this section and the resulting amount of the single sum distribution. However, if a plan that provides a subsidized early retirement annuity benefit specifies that the single sum distribution benefit available at early retirement age is the present value of the normal retirement annuity benefit, then the normal retirement annuity benefit is used to apply the valuation requirements of this section and the resulting [*18] amount of the single sum distribution available at early retirement age.
26 C.F.R. § 1.411(a)-11(a)(2). This paragraph of the regulation provides a general definition for the section ("The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan"), followed by two examples. The two examples deal with single sum forms of distribution and have no application to Plan § 4.06(a)(ii), which does not provide for a single sum distribution. 3
3 Plan § 4.06(a)(ii)(A) states that "the Participant's pension benefit, payable monthly, for his or her life, equals the greater of . . ." Pension benefits that are payable monthly for life cannot be single sum distributions.
In their motion for judgment on the pleadings, Defendants offer a confused attempt to argue that, in view of the language of this regulation, P 94A fails to state a valid claim. Defendants first point to the examples

2007 U.S. Dist. LEXIS 47, *18

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and argue that they say the opposite of what [*19] Plaintiffs claim. Because Plan § 4.06(a)(ii) does not entail a single sum distribution, the examples have no application to it. Whether they say one thing or its opposite about single sum distributions is irrelevant to an analysis of the monthly-for-life benefits specified in § 4.06(a)(ii). Defendants ignore the relevant and operative part of the regulation, the initial definition.
It is true that P 94A mischaracterizes the meaning of (A)-11 26 C.F.R. § 1.411 (a)-11(a)(2): the regulation does not, as P 94A implies, require that every distribution option for a subsidized early retirement benefit must be the actuarial equivalent of the subsidized benefit. Similarly, this Court notes that the case cited in p 94A, Costantino v. TRW, Inc., 13 F.3d 969, 980 (6th Cir. 1994), deals with lump sum distributions, rather than monthly payments for life. These observations by themselves, however, while raising doubt about the merit of the claim, are insufficient to demonstrate that there is no doubt that Plaintiffs can prove no set of facts which would entitle them to relief. The gist of P 94A is that the 6% reductions violate 26 C.F.R. § 1.411(a)-11(a)(2) [*20] . Defendants' argument misses the mark and does not demonstrate that the 6% reductions cannot violate this regulation.
In response, Plaintiffs assert as truth what they wished the regulation said: "When a plan provides that an

optional form of benefit is based on a subsidized early retirement benefit, the plan is required to offer at least the value of that benefit." (Pls.' Opp. Br. 31.) No authority -statutes, cases, regulations -- is provided to support this assertion. Plaintiffs have not explained how their actuarial equivalence contentions have a basis in 26 C.F.R. § 1.411(a)-11(a)(2).
Plaintiffs' other arguments are all meritless and bring them no closer to showing that they are entitled to judgment as a matter of law on P 94A. Neither side has shown this Court what impact 26 C.F.R. § 1.411(a)-11(a)(2) has or does not have on the 6% reduction provision in Plan § 4.06(a)(ii)(A)(2). As to P 94A, both Defendants' motion for judgment on the pleadings and Plaintiffs' motion for partial summary judgment will be denied.
CONCLUSION
For the reasons stated above, Defendants' motion for judgment on the pleadings, [*21] pursuant to FED. R. CIV. P. 12(c), is DENIED. Plaintiffs' motion for partial summary judgment, pursuant to FED. R. CIV. P. 56, is DENIED.
s/ Stanley R. Chesler, U.S.D.J.
Dated: January 3, 2007

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 Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
2002 WL 32159586 Only the Westlaw citation is currently available.
United States District Court, D. New Jersey.
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr, and Gerald Smit, individually and on behalf
of all others similarly situated, Plaintiffs, v.
AT & T and AT & T Management Pension Plan, Defendants.
No. 98–CV–3660 (WGB). |
Oct. 17, 2002.
Attorneys and Law Firms
Stephen R. Bruce, Washington, DC, Edgar Pauk, New York, New York, Jonathan I. Nirenberg, Deutsch & Resnick, Hackensack, New Jersey, for Plaintiffs.
Christopher H. Mills, Collier, Jacob & Mills, P.C., Somerset, New Jersey, for Defendants.
OPINION
BASSLER, J.
*1 The certified class action presently before the Court challenges the terms of AT & T’s management pension plan. Plaintiffs commenced this action on August 5, 1998. Now before the Court is Defendants’ third motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Before turning to the merits of the pending motion, mindful that this action is now in its fifth year and is before its second District Court Judge, the Court will endeavor to briefly recount how much (or, depending on one’s point of view, how little) has already occurred in the dispute.
In February, 1999, Defendants AT & T and the AT & T Maragement Pension Plan (collectively “AT & T” or

“Defendants”) filed their first motion for partial dismissal. In April, 1999, Judge Nicholas Politan granted Defendants’ motion. A number of Counts were dismissed with prejudice, and the remainder of the Complaint was dismissed without prejudice, so that Plaintiffs could re-file an appropriate Amended class action Complaint. Plaintiffs filed their First Amended Complaint on June 7, 1999.
In October, 1999, Defendants filed their second motion for partial dismissal, seeking to dismiss portions of the First Amended Complaint. Before the Court issued its ruling on the second motion for partial dismissal, Plaintiffs moved for leave to file a Second Amended Complaint. The Court took both motions under advisement in December, 1999.
On June 29, 2000, Judge Politan granted Plaintiffs leave to file their Second Amended Complaint. Judge Politan also granted in part and denied in part Defendants’ second motion for partial dismissal, and dismissed the First, Second, and Eighth Counts of Plaintiffs’ Second Amended Complaint with prejudice. On July 28, 2000, Plaintiffs moved for reargument of the Court’s dismissal of Counts One and Two. The Court denied Plaintiffs’ motion for reargument on October 4, 2000.
On October 20, 2000, Plaintiffs moved for class certification. Before ruling on the motion, the Court ordered Plaintiffs to submit additional materials in support of their application for class certification. On June 7, 2001, Judge Politan granted Plaintiffs’ motion for class certification with regard to the remaining claims in the Second Amended Complaint, dismissed the Ninth claim for relief, and directed plaintiffs to submit additional evidence in relation to the class’s claims.
On June 25, 2001, Defendants moved for reconsideration of the Court’s June 7, 2001 decision. On July 6, 2001, Plaintiffs moved for leave to file a Third Amended Complaint.1 On November 20, 2001, in his last action in this case before retiring from the bench, Judge Politan granted Plaintiffs’ motion to file a Third Amended Complaint, denied Defendants’ motion for reconsideration, and clarified his June 7, 2001 class certification ruling. Plaintiffs filed their Third Amended Complaint on November 29, 2001. On January 11, 2002, the case was reassigned from Judge Politan to this Judge.
As previously mentioned, now before the Court is
1

Engers v. AT&T, Not Reported in F.Supp.2d (2002)
2002 WL 32159586
Defendants’ third motion for partial dismissal, which is directed to Plaintiffs’ Third Amended Complaint. Pursuant to Fed.R.Civ.P. 12(b)(6) Defendants seek to dismiss Counts Ten, Eleven, and Twelve from the Third Amended Complaint. Defendants also seek to strike Counts One, Two, Eight, and Nine from the Third Amended Complaint, on the grounds that these Counts were previously dismissed from the Second Amended Complaint by Judge Politan.
*2 Having reviewed the extensive submissions of the parties, and having reviewed Judge Politan’s earlier decisions, for the following reasons, Defendants’ motion to dismiss counts One, Two, Eight, Nine, Ten, Eleven, and Twelve is granted.
I. STANDARD Under Fed.R.Civ.P. 12(b)(6), a complaint will be dismissed on the pleadings if it appears beyond doubt that a plaintiff can prove no set of facts consistent with the allegations of the claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 48 (1957); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 919 (3d Cir.1999). In deciding a motion to dismiss for failure to state a claim, all allegations in the pleadings must be accepted as true and the plaintiff must be given the benefit of every favorable inference that can be drawn from those allegations. Id.; See also Conley, 355 U.S. at 48; Oran v. Stafford, 226 F.3d 275, 279 (3d Cir.2000); Jama v. U.S.I.N.S, 22 F.Supp.2d 353, 361 (D.N.J.1988). The complaint should not be dismissed unless it appears that “the facts alleged in the complaint, even if true fail to support the claim.” Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988).
When evaluating a motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), “[a]lthough a district court may not consider matters extraneous to the pleadings, ‘a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.” ’ U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002), quoting See Burlington Coat Factory Sec. Lit., 114 F.3d 1410, 1426 (3d Cir.1997) (additional citations omitted). Accordingly, in ruling on Defendants’ motion, the Court can and will consider the terms of the Plan document itself, as well as the terms of other documents referenced by Plaintiffs in their Complaint.

II. DISCUSSION Pursuant to Fed.R.Civ.P. 12(b)(6) Defendants seek to dismiss Counts Ten, Eleven, and Twelve from the Third Amended Complaint. These three claims for relief, which were not present in either the First or Second Amended Complaint, were brought by Plaintiffs as a result of a purported October 16, 2000 amendment to the AT & T Management Pension Plan.2
Plaintiffs claim that the amendment to the Plan violates the rights of Plan members as protected by the Employee Retirement Income Security Act of 1974 (ERISA). While Plaintiffs challenge only one provision of the amended Plan (§ 4.06(a)(ii)), they claim it violates three separate ERISA sections. Plaintiffs allege in Count Ten of the Third Amended Complaint that § 4.06(a)(ii) impermissibly conditions payment of vested accrued benefits, which results in a forfeiture of benefits in violation of ERISA § 203(a), 29 U.S.C. § 1053(a). Relatedly, Plaintiffs claim in Count Eleven that by conditioning receipt of benefits, § 4.06(a)(ii) deprives Plaintiffs of the actuarial value of their vested benefits, in violation of ERISA § 204(c)(3), 29 U.S.C. § 1054(c)(3). Finally, count Twelve claims that § 4.06(a)(ii) impermissibly reduces previously protected benefits in violation of ERISA § 204(g), 29 U.S.C. § 1054(g).
*3 By way of general background, The AT & T Management Pension Plan was established in October 1980 as a defined benefit plan for AT & T employees. Initially, the Plan offered participants annuities at retirement determined by a formula which was based on years of participation in the Plan and on average pay over defined periods (the “old formula”).
In 1997, AT & T took steps to convert the Plan from the old formula to a “Cash Balance” formula.3 Contemporaneous with the conversion to a Cash Balance Plan, AT & T increased and froze retirement benefits that had already accrued through December 31, 1996. These benefits were calculated and then fixed via a mechanism referred to by the parties as the “Special Update Formula.”
The Special Update Formula was used to compute a fixed benefit amount for each employee (the “Special Update Benefit”). Each employee’s Special Update Benefit
2

Engers v. AT&T, Not Reported in F.Supp.2d (2002)
2002 WL 32159586
amount represented the entire retirement benefit accrued by the employee between the start of their employment and December 31, 1996. The Special Update Benefit amount provided each employee with a projection of the fixed annuity value of their retirement benefit as of normal retirement age (65), or as of an earlier time in the event they became eligible for early retirement.4
The Special Update Benefit amount was also used as a benchmark to calculate the starting value of each Employee’s Cash Balance Account. (For this formula, See Appendix in Support of Defendants’ Motion For Partial Dismissal of the Third Amended Complaint, (“Da”), at 180–81.) Although pre–1997 accrued benefits were fixed via the Special Update Benefit, employees continued to receive increases in their retirement benefits via contributions to their new Cash Balance Accounts. These new contributions were comprised of a nominal percentage of the employee’s annual salary and some quantity of interest for each preceding year.5
Plaintiffs do not dispute the manner in which the Special Update Formula was used to compute and fix pre–1997 accrued benefits, or the manner in which annual credits were subsequently made to the individual Cash Balance Accounts. Plaintiffs instead claim that if they retire before age 65, in general they will receive only the value of the fixed Special Update Benefit, and will not receive any of the amounts subsequently credited to their Cash Balance Accounts in 1997, 1998, 1999, 2000, etc.
Plaintiffs claim that § 4.06(a)(ii) has created this impermissible curtailment of their retirement benefits. The disputed provision states in relevant part that:
(A) For a Pension Commencement Date before the Normal Retirement Age of a Participant who is eligible for the Special Update Formula ... the Participant’s pension benefit, payable monthly, for his or her life, equals the greater of:
(1) the Accrued Benefit derived from his or her Cash Balance Account under Section 4.04, multiplied by the early commencement factor set forth [elsewhere] or
*4 (2) the Accrued Benefit determined under the [Special Update Formula] reduced by one-half percent for each calendar month or part thereof by which the Participant’s age at the Pension Commencement Date is less than fifty-five years, except that each Participant with a Term of

Employment of thirty or more years shall receive a monthly pension benefit reduced by one fourth percent for each calendar month or part thereof by which such Participant’s age at the Pension Commencement Date is less than fifty-five years.
Amended Plan § 4.06(a)(ii) (Da 40.)
Translated into English, § 4.06(a)(ii) sets forth the manner in which retirement benefits are to be computed for those AT & T management employees (hired before 1997) who elect to retire before age 65. The section provides that such an employee who retires early will receive the greater of either 1) the actuarial value (at the time of retirement) of their Cash Balance Account, or 2) the value6 of their Special Update Benefit.
Plaintiffs have attempted to demonstrate the operation of § 4.06(a)(ii) by using representative Plaintiff Donald Noerr as an example. (See Third Amended Complaint, ¶¶ 84–86; Noerr Benefits Table, attached to Defendants’ Support Brief, Ex. G.) Plaintiff Donald Noerr’s fixed Special Update Benefit amount was computed to be an annuity with an annual value at normal retirement age of $18,276. (Defendants’ Support Brief, Ex. G.) In 1998, the year in which Noerr turned 55, the contents of his Cash Balance Account had an accrued annual value at normal retirement of $20,082.7 In 1999, annual pay and interest credits raised the retirement annuity value of Noerr’s Cash Balance Account to $21,300. In 2000, it increased to $22,380. At all times, the Special Update Benefit amount remained fixed at $18,276.
Because Noerr had been employed by AT & T for at least five years, his rights under the plan had vested. This meant that under the amended Plan, he could retire at any time and collect the present actuarial value of the contents of his Cash Falance Account. Additionally, because Noerr turned 55 in 1998, under the amended Plan he became eligible to collect the entire fixed amount of the Special Update Benefit without discount or penalty, pursuant to § 4.06(a)(ii)(A)(2). Although the amended Plan provided for both methods of calculating early retirement benefits, had Noerr elected to retire early in 1998, § 4.06(a)(ii) would have required him to collect the greater value of either the fixed Special Update Benefit, or the 1998 actuarial value of his Cash Balance Account’s age 65 annuity value.
Although the accrued value of the annuity in Noerr’s Cash Balance Account had increased to a projected $20,082 at retirement age (65), if he had collected it ten
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Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
years early (at age 55) the actuarial value would have been $11,293. Because the Special Update Benefit amount ($ 18,276) available to Noerr was greater than the actuarial value of the Cash Balance Account annuity, pursuant to § 4.06(a)(ii) Noerr would receive the Special Update Benefit amount.
*5 The same result would have been repeated had Noerr elected to take early retirement in 1999 (when the updated Cash Balance Account actuarial value would have been $12,988), in 2000 (actuarial value of $14,814), or in 2001 (actuarial value of $16,374). Not until 2003, when the actuarial value of Noerr’s Cash Balance Account was predicted to reach $19,834, would Noerr have collected the actuarial value of his Cash Balance Account instead of the Special Update Benefit amount.
The crux of Plaintiffs’ claims in Counts Ten and Eleven stem from the preceding facts. Plaintiffs contend that, because benefits continued to accrue annually in Noerr’s Cash Balance Account, Noerr’s early retirement benefit impermissibly remained fixed at $18,276 each year from 1998 until 2002. Plaintiffs claim that in practice, the amended AT & T Plan requires many older participants to either accept the Special Update Benefit and forfeit any retirement benefits accrued after the Special Update was set (as pled in Count Eleven—violation of ERISA § 204(c)(3)), or impermissibly conditions employees’ receipt of accrued benefits by forcing them to delay receiving their pensions until the actuarial value of the Cash Balance Account surpasses the fixed Special Update Benefit amount (as pled in Count Ten—violation of ERISA § 203(a)).
In response to Plaintiffs’ claims, Defendants have moved to dismiss Counts Ten, Eleven, and Twelve. Defendants assert that Plaintiffs have fundamentally misread the terms of the amended Plan, and have mis-applied the cited ERISA provisions. According to AT & T, there is nothing improper about the manner in which § 4.06(a)(ii) calculates early retirement benefits. In fact, AT & T’s contends that the amended Plan has actually enhanced pension benefits, expanded distribution rights, and implemented a new guaranteed minimum benefit for older employees.
A. Plaintiffs’ “law of the case” Argument Before considering the substance of Defendants’ motion,

the Court must address a threshold argument raised by Plaintiffs, namely that an earlier decision of Judge Politan renders the merits of Defendants’ third motion for partial dismissal barred by the “law of the case” doctrine. Given Judge Politan’s prior ruling, Plaintiffs theorize that the Court should now decline to reach the merits of Defendants’ motion to dismiss.
As initially noted, On July 6, 2001, Plaintiffs moved before Judge Politan for leave to file a Third Amended Complaint. Defendants opposed Plaintiffs’ motion, and argued that allowing another amendment of the complaint would be futile. Defendants claimed that Plaintiffs’ proposed Counts Ten, Eleven, and Twelve were destined to fail as a matter of law, and attempted to convince Judge Politan that the complaint should not be amended to include the three new counts.
In his November 19, 2001 Letter Opinion, Judge Politan granted Plaintiffs leave to file their Third Amended Complaint. Judge Politan gave only a passing mention to Defendants’ argument, and stated that “in opposition, the Defendants merely attempt to argue the merits of the new allegations, which is inappropriate for purposes of deciding a motion to amend.” (Nov. 19, 2001 Letter Op. at 4.)
*6 Based on Judge Politan’s foregoing conclusion, Plaintiffs now assert that Defendants should be barred from raising the same arguments they previously raised before Judge Politan. Plaintiffs point out that Defendants have merely attempted to recycle their failed arguments, and therefore ask the Court to ignore the arguments that Judge Politan already considered and “rejected.”
Having reviewed Judge Politan’s November 19, 2001 decision, the Court finds that Plaintiffs’ request lacks merit. Judge Politan did not rule on whether Plaintiffs’ claims could succeed as a matter of law. Quite to the contrary, Judge Politan expressly noted that Defendants’ attempt to argue the merits of the new allegation was “inappropriate for purposes of deciding a motion to amend.”
Judge Politan declined to consider Defendants’ arguments because they were raised at the wrong time. Because Defendants’ allegations are properly raised in their Rule 12(b)(6) motion to dismiss, however, the Court will turn its attention to the alleged deficiencies in Plaintiffs’ Third Amended Complaint.
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Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
B. Defendants’ Motion to Dismiss Counts Ten and Eleven of the Third Amended Complaint When considering the merits of Defendants’ motion to dismiss, it bears repeating that “[n]othing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. ERISA does, however, seek to ensure that employees will not be left empty-handed once employers have guaranteed them certain benefits ... [W]hen Congress enacted ERISA it ‘wanted to ... make sure that if a worker has been promised a defined pension benefit upon retirement—and if he has fulfilled whatever conditions are required to obtain a vested benefit—he actually will receive it.” ’ Lockheed Corp. V. Spink, 517 U.S. 882, 887 (1996) (internal citations omitted).
As one appellate court has noted, “ ‘The central problem to which ERISA is addressed is the loss of benefits previously promised.’ ERISA does not concern itself with the amount of benefits promised ... but whatever the size, once those benefits have ‘vested,’ ERISA does not allow the benefits to be ‘forfeited.” ’ Huppeler v. Oscar Mayer Foods Corp., 32 F.3d 245, 246 (7th Cir.1994) (internal citations omitted.)
In keeping with the preceding, ERISA Section 203(a), 29 U.S.C. § 1053(a) (ERISA’s nonforfeitability requirement), guides that:
Each pension plan shall provide that an employee’s right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age ... A plan satisfies the requirements of this subparagraph if an employee who has completed at least 5 years of service has a nonforfeitable right to 100 percent of the employee’s accrued benefit derived from employer contributions.
(emphasis added.) Although § 203(a) directs that a vested employee must be provided with 100% of their accrued retirement benefit upon attainment of normal retirement

age, it says nothing of employer reductions of retirement benefits paid before normal retirement age. Such reductions are contemplated by ERISA Section 204(c)(3), 29 U.S.C. § 1054(c)(3), which directs in relevant part that:
*7 if an employee’s accrued benefit is to be determined as an amount other than an annual benefit commencing at normal retirement age ... the employee’s accrued benefit ... shall be the actuarial equivalent of such benefit.
Plaintiffs claim that § 4.06(a)(ii) of AT & T’s amended Plan runs afoul of both provisions. In Count Ten, Plaintiffs allege that “the Amended Plan document conditions entitlement to the accrued benefits derived from the participant’s Cash Balance Account on the participant not retiring before the normal retirement age and receiving a distribution of his or her ERISA protected benefits.8 Under the amended Plan documents, the right to the cash balance benefit accruals is not unconditional as required by ERISA Section 203(a), 29 U.S.C. § 1053(a).” (Third Amended Complaint. ¶ 88.)9
Relatedly, Count Eleven of Plaintiffs’ Third Amended Complaint alleges that “[s]ection 4.06(a)(ii) provides that participants who retire before normal retirement age and receive ERISA-protected benefits10 will not receive the actuarial value of the annual retirement benefits that they accrued in their Cash Balance Accounts in 1998, 1999, 2000, etc. Section 4.06(a)(ii) violates ERISA section 204(c)(3) because it deprives participants who retire before the normal retirement age of the actuarial value of their cash balance benefit accruals in 1998, 1999, 2000, and succeeding years.” (Third Amended Complaint, ¶ 91.)
At first glace, Plaintiffs’ allegations appear to state valid claims under both ERISA § 203(a) and § 204(c)(3). As alleged in Count Ten, it appears that employees (such as Plaintiff Noerr) who wish to receive their Cash Balance Account accruals after 1997 must agree to wait to retire and thereby give up receipt of their Special Update Benefit. Conditioning receipt of the one benefit (post–1997 Cash Balance accruals) on giving up receipt of the other benefit (the non-actuarially adjusted Special Update amount), would certainly appear to violate §
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Engers v. AT&T, Not Reported in F.Supp.2d (2002)
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203(a)’s requirement that a vested employee be provided 100% of their accrued benefit, without forcing them to first give up one benefit in exchange for receiving another.
The alleged violation pled in Count Eleven initially appears even clearer. In order to obtain the value of the Special Update Benefit, which reflects all work performed before 1997, an employee must agree to collect a flat amount, regardless of what benefits are credited in 1997, 1998, 1999, etc. If the Special Benefit Amount is fixed in 1997 and remains constant, the actuarial value received by the employee for work performed in the ensuring years seemingly must be zero.
Although Plaintiffs’ claims initially appear viable, closer inspection reveals that they are fatally flawed. For both Counts Ten and Eleven, an insurmountable obstacle in Plaintiffs’ path is their assumption that the Special Update Benefit amount represents an accrued benefit that is payable without actuarial reduction before normal retirement age. If that were the case, both Counts Ten and Eleven would state a claim upon which relief can be granted. Unfortunately for Plaintiffs, upon careful examination of the terms of the amended Plan, the Court must conclude that the actuarially unreduced Special Update Benefit amount as paid by § 4.06(a)(ii)(A)(2) is not an accrued retirement benefit, but is instead a type of early retirement subsidy.
*8 Other courts, and even ERISA itself, have noted that “an accrued benefit is not the amount of pension payment a recipient receives by retiring early, it is the amount of pension payment a recipient achieves at normal retirement age.” Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1201 (8th Cir.1992), citing 29 U.S.C. § 1002(23)(A) (defining the term “accrued benefit”). “Section 1053(a) prohibits forfeiture after ‘the attainment of normal retirement age.’ It grants no right to early retirement benefits before reaching that age.” Hansen v. Western Greyhound Retirement Plan, 859 F.3d 779, 782 (9th Cir.1988) (citation omitted).
An employer is under no obligation to allow an employee to collect early retirement benefits. In fact, if an employer elects to provide early retirement benefits, federal law does not forbid the employer from discounting the early retirement benefits provided to an employee. While an employer’s right to discount benefits is limited by ERISA § 204(c)(3), the provision was enacted only to ensure that employers who provide discounted early retirement benefits provide at least the present actuarial value of the

employee’s future normal retirement age benefits.
Stated another way, when an employee elects to retire early and is offered an early retirement benefit, ERISA § 204(c)(3) is satisfied (and the employee receives their total nonforfeitable benefit pursuant to ERISA § 203(a)) so long as the employee receives at least the actuarial value of their normal retirement age benefit. Any positive difference between what the employee is offered and the present actuarial value of the employee’s accrued normal retirement benefit is properly considered a subsidy. The Third Circuit has looked to the Internal Revenue Code for a definition of a “benefit subsidy,” and has commented that a “benefit subsidy is there defined as the excess in value of a benefit over the actuarial equivalent of the normal retirement benefit.” Ashenbaugh, et al. v. Crucible, Inc., 854 F.2d 1516, 1521 n. 6 (3d Cir.1988).
In Ashenbaugh, a plan required a considerable actuarial reduction for early receipt of normal retirement benefits. For employees with thirty years service, however, the actuarial reduction was waived. Based on the previously quoted definition, the Third Circuit found that “the value in excess of the amount that would be available to a retiring employee under the comparable actuarially-reduced normal retirement provisions” was properly considered a subsidy. Id It is the distinction between nonforfeitable retirement benefits and optional early retirement subsidies upon which Counts Ten and Eleven turn, and upon which they must ultimately fail.
When claiming amended Plan § 4.06(a)(ii) violates ERISA, Plaintiffs correctly cite the principle that “a right which, at a particular time, is conditioned under the plan upon a subsequent event, subsequent performance, or subsequent forbearance which will cause loss of such right is a forfeitable right at that time.” 26 C .F.R. 1.411(a)–4. Further, Plaintiffs have correctly reminded the Court that “if benefits ... have accrued [but] those benefits are disregarded when benefits commence before normal retirement age, the plan has effectively conditioned entitlement to the benefits ... on the employee not taking a distribution prior to retirement age.” IRS Notice 96–8, 1996–1 C.B. 359 (emphasis added).
*9 The accuracy of the preceding provisions aside, Plaintiffs’ reliance upon them is misplaced. Although the preceding provisions address the impermissible conditioning of accrued rights (i.e., nonforfeitable benefits payable at normal retirement), they neither address nor prevent the implementation of limited early retirement subsidies that decrease from one year to the
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Engers v. AT&T, Not Reported in F.Supp.2d (2002)
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next. Therefore, because the actuarially unreduced Special Update Benefit is tantamount to an early retirement subsidy, Plaintiffs’ attempt to apply the preceding provisions to § 4.06(a)(ii) is unavailing.
While the Special Update Benefit may be a “benefit” in layman’s terms, and while vested employees have a “nonforfeitable accrued right” to collect the total sum of the Special Update Benefit upon reaching normal retirement age, the right to collect the entire amount early and without actuarial reduction is not a benefit of the type contemplated by 26 C.F.R. 1.411(a)–4 and IRS Notice 96–8. Therefore, even though Plaintiffs rightly argue that “payment of benefits earned after a Plan amendment [cannot] be made conditional on whether a participant forgoes early retirement benefits earned before 1997.” (Opposition Brief, p. 7.), the Court finds that AT & T’s amended Plan does not have the effect of conditioning accrued rights in the manner Plaintiffs allege. Although AT & T’s amended Plan places limits and conditions on receipt of an early retirement subsidy, it never places limits or conditions on the receipt of at least the full actuarial value of an employee’s nonforfeitable accrued benefits.
The distinction between the limited early retirement subsidy and the protected nonforfeitable benefits can be seen by looking to the effect of the amended AT & T Plan on Plaintiff Noerr. Noerr, who turned 55 in 1997, had an accrued Special Update Benefit amount of $18,276. As the Special Update Benefit amount equates to the value of all benefits accrued before 1997, it must follow that as of 1997, the full value of Noerr’s normal retirement benefit at age 65 was guaranteed to be $18,276.
Pursuant to ERISA § 203(a), Noerr was unconditionally entitled to receive $18,276 upon reaching normal retirement. Had Noerr retired in 1997, his benefit could not have been less than the actuarial equivalent of $18,276, pursuant to ERISA § 204(c)(3). Nothing in the prior plan gave Noerr the right to collect the entire Special Update Benefit amount without actuarial reduction upon reaching age 55.11
As an incentive to promote early retirement, AT & T amended its Plan to include § 4.06(a)(ii). For the first time, although ERISA did not require it to do so, AT & T allowed Noerr to collect the entire $18,276 Special Update Benefit amount at age 55, without the otherwise required actuarial reduction. Although ERISA only obligated AT & T to provide Noerr with the 1997 actuarial value of the $18,276 (which would have been

something less than $11,000), AT & T elected to provide a subsidy and increase the early retirement annuity immediately available to Noerr from the nonforfeitable actuarial value (less than $11,000) to the full value at normal retirement age ($18,276).
*10 It is the subsequent reduction of this initial annual subsidy of approximately $7,200 (i.e., the difference in value between Noerr’s nonforfeitable actuarially reduced benefit (less than $11,000) and the non-reduced Special Update Benefit amount ($18,276)) that is ultimately at issue here.
In 1998, at age 56, Noerr’s nonforfeitable accrued benefit at normal retirement age increased to $20,082 (as demonstrated by the new balance of his Cash Balance Account). Although the value of the accrued benefit that Noerr would realize at normal retirement had increased in 1998, pursuant to § 4.06(a)(ii), Plaintiff did not have the option to collect any additional increase over the amount available to him in 1997. Instead, AT & T continued to offer him an annual annuity equal to the actuarially unreduced Special Update Benefit amount ($18,276).
Contrary to Plaintiffs’ assertions, even though § 4.06(a)(ii) only provided Noerr the same fixed $18,276 annuity that had been available to him in 1997, AT & T neither decreased Noerr’s compensation for his previously accrued benefits nor failed to provide him credit for additional normal retirement benefits accrued in 1998. Instead, the fixed $18,276 annuity offered to Noerr in 1998 can conceptually be thought of as the combination of two sums: 1) an actuarial value component increased to reflect the 1998 credit to Noerr’s Cash Balance Account (i.e., to reflect the actuarial value of the $1,806 normal retirement benefit added to Noerr’s account in 1998), and 2) a decreased subsidy amount, having less value than the $7,200 subsidy previously offered in 1997.
A similar increase in accrued actuarial value and decrease in subsidy amount would occur in 1999, 2000, and 2001. Eventually, at some notional point in 2002 or 2003, the annual increases to the Cash Balance Account’s normal retirement benefit would cause the present actuarial value of the benefit to surpass the fixed subsidized early retirement benefit. From that point forward, Noerr would be entitled to recover the actuarial value of his accrued benefit at normal retirement, but would not be entitled to a subsidy. Noerr’s benefit amount would continue to increase each year, as annual credits continued to be made to his Cash Balance Account. At age 65, the actuarial value of Noerr’s normal retirement benefit ultimately
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Engers v. AT&T, Not Reported in F.Supp.2d (2002)
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would equal the unadjusted value of his Cash Balance Account.
By setting the Cash Balance Account’s initial annuity value at normal retirement equal to the fixed annuity value of the Special Update Benefit at normal retirement, AT & T was able to retain and carry forward the actuarial value of each employee’s pre–1997 accrued benefits. The amended Plan neither forfeits subsequent increases in these accrued benefits’ actuarial value or conditions their receipt. The only thing eligible employees incrementally lose is their access to AT & T’s gratuitous subsidy; a subsidy which allows them to collect more than the actuarial value of their guaranteed normal retirement benefits for a defined period of time. The implementation of such a subsidy with a built in gradual reduction does not run contrary to either ERISA §§ 203(a) or 204(c)(3).
*11 The operation of AT & T’s amended Plan, as demonstrated in the preceding example, is readily distinguishable from the plan in the primary case cited by Plaintiffs, Esden v. Bank of Boston, 229 F .3d 154 (2d Cir.2000). In Esden, a Plan’s lump-sum early pay-out option was found to violate ERISA § 203(a). When setting an employee’s normal retirement benefit, the Plan provided for annual contributions to a Cash Balance Account, and included a minimum annual credit for interest. In computing the lump sum payout amounts, the Plan projected current cash balances forward at a fixed rate of interest, and then discounted them back to present value at a different statutory rate.
Plaintiff Esden sued because the interest rate used in projecting the current cash balance forward was less than the minimum interest rate guaranteed to actually accrue under the terms of the Cash Balance Plan. Esden theorized that this process resulted in a lump sum payout amount that was less than the actuarial value of the minimum amount she was guaranteed to have received had she deferred collection until normal retirement.
The Second Circuit agreed with Esden. The court noted that “the rules governing distributions from defined benefit plans are framed in terms of the normal retirement benefit—typically a single-life annuity payable at retirement age. Any distribution in optional form (such as a lump sum) must be no less than the actuarial equivalent of such a benefit.” The Second Circuit thus found that “because Plaintiff received less than she would have had she not elected to take her benefit in the form of a lump sum, part of her pension benefit was made conditional on the distribution option chosen, in violation of the

anti-forfeiture provisions of ERISA § 203(a); I.R.C. § 411(a)(2) and Treas. Reg. § 1.411(a)–4.” Esden, 229 F.3d at 157–58.
The case at hand is distinguishable from Esden because under AT & T’s amended Plan, employees can never opt to take their retirement benefit at a time or in a form that is less than the actuarial value of the amount they are entitled to receive at normal retirement. As Defendants rightly note, the amended Plan provides that the early retirement benefit is never less than the normal retirement benefit, reduced to reflect the fact that the participant is receiving the benefit before normal retirement age. Because Plaintiffs are always guaranteed to receive at least as much as the present value of the annuity promised to them at normal retirement age, Counts Ten and Eleven fail to state valid claims under ERISA.
Although the alleged reduction of benefits complained of by Plaintiffs fails to support the claims in either Count Ten or Eleven, it seems to the Court that the same alleged benefits reduction could potentially amount to a violation of ERISA § 204(g), 29 U.S.C. § 1054(g).12 It is conceivable that by offering employees a decreasing early retirement subsidy each year, instead of a fixed subsidy and increasing actuarial contributions, § 4.06(a)(ii) could violate § 1054(g)’s “anti-cutback” provision.
*12 Under the terms of AT & T’s pre-amendment Plan, employees who met specific age and service requirements became eligible at age 55 to receive their entire normal retirement benefit without reduction. For eligible employees who happened to turn 55 in 1997, that unreduced pension amount would coincidentally have been identical to the pension amount calculated by the Special Update Formula. These individuals would thus theoretically have been able to collect their entire unreduced pension benefit upon reaching age 55, under either the old or the new Plan.
Under the amended Plan, however, the previously promised benefit (the right to collect the entire unreduced pension amount upon reaching 55) would slowly be eroded, because each year § 4.06(a)(ii) would effectively replace a portion of the previously unreduced amount with the actuarial value of newly accruing benefits. The eligible employees would thus no longer be able to collect both the entire benefit previously promised them and collect the guaranteed actuarial value of new benefits as they accrue. Mindful that under ERISA § 204(g), a plan amendment may not serve to reduce or eliminate a pre-existing accrued early retirement benefit, forcing
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these employees to collect new benefits in lieu of some portion of what had previously been promised them would necessarily seem to violate ERISA.
Based on the preceding possibility, the Court would theoretically be inclined to find that the amendment could violate ERISA. The Court will not do so, however, because Congress has clearly directed that amendments of the type implemented by AT & T are permissible.
When enacting ERISA, Congress considered the operation of a plan amendment virtually identical to § 4.06(a)(ii), and expressly directed that previously promised unreduced benefits may be converted into equal or larger actuarially reduced benefits without running afoul of ERISA. A Senate Report accompanying the Retirement Equity Act of 1984 (“REA”)13 described the relevant plan amendment, and concluded that it would not violate the ERISA § 204(g):
consider a plan that provides an annual benefit of 1 percent of average pay per year of service at normal retirement age under the plan (age 65). The plan provides an early retirement benefit to a participant who has attained age 55. This early retirement benefit is reduced to 50 percent of the benefit payable to the participant at age 65. In the case of the participant who attains age 55 and who has completed 30 years of service, the amount of the annual benefit payable beginning at age 55 is not actuarially reduced under the plan.
Under the bill, if the plan is amended on January 1, 1985 (effective on that date), to require a full actuarial reduction of early retirement benefits in all cases, then the full actuarial reduction could be made for any participant who severs employment before attaining age 55 and completing 30 years of service. Under the bill, however, if a participant met the age and service requirements for the unreduced early retirement benefit on January 1, 1985, then the plan amendment could not reduce that benefit below the level to which the participant would have been entitled if retirement had occurred immediately before the plan amendment was effective.
*13 Under this plan, if a participant did not meet the plan’s requirements for unreduced early retirement benefits on January 1, 1985, but the participant later satisfied those requirements, then the participant’s accrued benefit under the plan would be the greater

of (1) the accrued benefit as of the date of the plan amendment, without taking the actuarial reduction into account, or (2) the accrued benefit provided by the plan when the benefit becomes payable, after the full actuarial reduction. Accordingly, the participant’s accrued benefit will not be reduced by the plan amendment, but it will not be increased by subsequent service or pay raises until the subsequent increase brings the participant’s accrued benefit to a level in excess of the accrued benefit as of January 1, 1985.
S.Rep. No. 98–575, at 29 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2574–75 (emphasis added), partially quoted in Corcoran, 1997 WL 602859, *4. As clarified in Corcoran,
under the terms of the Senate Report, therefore, § 204(g) guarantees that the plan participant will be entitled to the greater of (I) the benefit that had accrued as of the date of the amendment, taking account of any pre-amendment subsidies that the participant was eligible to receive based on his or her age and service as of the date of separation (under the terms of the pre-amendment plan), or (ii) the benefit under the post-amendment benefit formula which is in place when the employee stops working ... [the report] does not, however, assure that post-amendment years of service will be included in calculating benefits under the pre-amendment plan.
1997 WL 602859, *4. Nor does the report prevent an employer from fixing an employee’s benefits under the old plan until such time as their benefits as calculated by the new plan surpass the previously guaranteed benefit level. Thus, while Plaintiffs’ allegations as described in Counts Ten and Eleven may at first glance appear to make out an additional claim under ERISA § 204(g), Congress has expressly directed that they do not. Accordingly, Counts Ten and Eleven of the Third Amended Complaint will be dismissed with prejudice.
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Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
C. Plaintiffs’ Twelfth Claim for Relief Plaintiffs’ Twelfth Claim for relief alleges that Section 4.06(a)(ii) of the Amended Plan violates ERISA section 204(g) on slightly different factual grounds. In general terms, Plaintiffs claim that by reducing benefits by “one half percent” per month (6% per year) for commencement before age 55, or by “one quarter percent” per month (3% per year) for participants with over 30 years of service, § 4.06(a)(ii) causes participants to impermissibly lose or forfeit their ERISA-protected annuities.
ERISA § 204(g), codified at 29 U.S.C. § 1054(g), reads in relevant part:
(1) The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan ...
(2) For purposes of paragraph (1), a plan amendment which has the effect of -
*14 (A) eliminating or reducing an early retirement benefit ..., or
(B) eliminating an optional form of benefit,
with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits.
(emphasis added.) Thus, in order for the Plan amendment embodied in § 4.06(a)(ii) to violate ERISA § 204(g), it must either eliminate or reduce a previously available pre-amendment benefit.
As Defendants rightly claim, § 4.06(a)(ii) does not have such an effect. Under the terms of the pre-amendment Plan, those eligible to collect a “service pension”14 had the option to retire early, but had to contend with the same “Early Retirement Discount” that now appears in § 4.06(a)(ii). (See Pre–Amendment Plan, § 4.1(a) (Eligibility), Da p. 350; § 4.2(1) (Early Retirement Discount), Da p. 363.)
Under the terms of the pre-amendment Early Retirement Discount, eligible employees could opt to collect their service pensions early, albeit at a reduced amount. According to Pre–Amendment Plan § 4.2(1), eligible employees’ monthly pension allowance:

shall be reduced by .5% for each calendar month or part thereof by which the Employee’s age at time of retirement is less than 55 years, except that each Employee retired with a term of Employment of 30 or more years shall receive a monthly pension allowance reduced by 0.25% for each calendar month or part thereof by which such Employee’s age at the time of retirement is less than 55 years.
Pursuant to Pre–Amendment Plan § 4.1(a), an employee eligible for a service pension was anyone 65 years of age with at least 10 years service, 55 years of age with 20 years service, 50 years of age with 25 years service, or any age with 30 years service. Employees who did not fall into one of the preceding age and service categories were not eligible to collect early retirement benefits.
Through the Plan amendment embodied in § 4.06(a)(ii), the .5% and .25% monthly Early Retirement Discounts were retained. Notably absent, however, were the age and service restrictions contained in the Pre–Amendment Plan. Under § 4.06(a)(ii), any employee who qualified for the Special Update Formula became eligible to receive an early retirement benefit, regardless of age.
By way of example, under the old plan an employee who was 48 years of age with 28 years service would not have been immediately eligible for early retirement benefits, falling 2 years shy of the age requirement for those with at least 25 years of service, and 2 years shy of the service requirement for those under 50 years of age. Therefore, the employee would have had no alternative but to wait until age 50 to collect benefits discounted 6% annually, or age 55 to collect full benefits.
Under § 4.06(a)(ii) of the Amended Plan, the same employee would be immediately eligible for benefits, albeit at the .5% per month (6% per year) discounted rate. The employee could also wait until age 55 to collect full benefits. Therefore, the result of the amendment is to allow a greater number of employees to obtain early retirement benefits, albeit at a rate less than what they would have received when they ultimately became eligible under the pre-amendment plan.
*15 The crux of Plaintiffs’ argument is that:
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Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
AT & T’s restated Plan document modified the Plan to apply the 6% per year reduction factor to retirements at any age without regard to whether participants could have grown into eligibility under the prior plan rules. This means that a 6% reduction is now applied to retirements before age 50 and is applied to circumstances in which the participant could otherwise have grown into eligibility for unreduced benefits or benefits subject to the 3% reduction factor.
(Plaintiffs’ Opposition Brief, p. 13.) Based on the modification extending the early retirement option to retirees younger than 50, Plaintiffs theorize that:
A 6% per year reduction for retirements before the age of 50 is illegal in the absence of full disclosure to employees because it excessively reduces the benefit amounts [that would be] available [without discount] at age 55. A 6% factor is also illegal for retirements before and after age 50 when participants could have grown into eligibility for the 3% reduction.
(Id.)
In plain language, Plaintiffs’ argument is that the Plan Amendment, without adequate notice, provides employees with the option to take substantially reduced benefits at an earlier age than what they previously could have opted for only at a later age. Contrary to Plaintiffs’ assertions, nothing in § 4.06(a)(ii) of the Amended Plan prevents employees from “growing into” the benefits that were once available to them; it merely presents them with the option to receive less money per year at an earlier age, thus providing them with retirement benefits over a greater number of years.
Given the fact that § 4.06(a)(ii) of the Amended Plan only

increases the number of employees eligible for early retirement benefits, and maintains the same Early Retirement Discount Rate previously provided for in the Plan, it escapes the Court how the Plan Amendment could violate ERISA § 204(g) in the manner Plaintiffs allege. Mindful that ERISA § 204(g) prohibits plan amendments that serve to reduce or eliminate previously available benefits, Plaintiffs can not make out a violation of ERISA § 204(g) as a matter of law. Defendants motion to dismiss Count 12 of the Third Amended Complaint is accordingly granted.15
D. Defendants’ Motion to Dismiss Counts One, Two, Eight, and Nine Counts One, Two, Eight, and Nine of the Third Amended Complaint are identical to counts previously dismissed by Judge Politan.16 Defendants argue that these Counts should not be included in the Third Amended Complaint, as Plaintiffs have failed to articulate any unusual circumstances that would justify revisiting issues previously considered and dismissed by the Court on their merits. Therefore, Pursuant to the law of the case doctrine, Defendants seek to have Counts One, Two, Eight, and Nine dismissed from the Third Amended Complaint.
Plaintiffs have provided only limited opposition to Defendants’ motion. Plaintiffs claim (without legal support) that it was appropriate for them to re-plead the Counts in the Third Amended Complaint because the dismissals of the claims are subject to appeal. Plaintiffs also contend that Judge Politan considered and rejected Defendants’ arguments when he ruled on Plaintiffs’ motion for leave to file the Third Amended Complaint.
*16 Having reviewed Judge Politan’s November 2001 ruling, there is no evidence he rejected, or even considered, Defendants’ request to again dismiss Counts One, Two, Eight, and Nine. Absent such evidence, the Court is free to examine Defendants’ allegations that the Counts should again be dismissed. Having reviewed the relevant case law, the Court is convinced that they should be.
The Third Circuit has stated that “under the ‘merger rule,’ prior interlocutory orders merge with the final judgment in a case, and the interlocutory orders (to the extent that they affect the final judgment) may be reviewed on appeal
11

Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
from the final order.” In re Westinghouse Securities Lit., 90 F.3d 696, 706 (3d Cir.1996). In Westinghouse, a district court’s two prior partial dismissal orders merged with a final order dismissing all remaining claims with prejudice, and thus were subject to review by the Third Circuit on appeal.
Based on Westinghouse, Plaintiffs should rest assured that they need not (and in the interests of efficiency, should not) re-plead dismissed claims in an amended complaint solely to preserve those claims for appeal. Instead, they should focus on the claims that have survived, and should attempt to make the remaining components of their action as clear and concise as possible. When the remainder of the action is finally addressed on the merits, Plaintiffs will be free to then appeal all of the Court’s prior dismissals of their claims. Until that time, however, Counts One, Two, Eight, and Nine should not be included in the Complaint. Accordingly, they are dismissed.
III. CONCLUSION For the foregoing reasons, Defendants’ motion for partial dismissal of Counts One, Two, Eight, Nine, Ten, Eleven, and Twelve of the Third Amended Complaint is granted.
An appropriate Order follows.

ORDER
This matter having come before the Court on Defendants’ third motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(6); and
The Court having considered the submissions of the parties; and
The Court having considered the prior decisions of Judge Politan issued in this matter; and
The Court having decided this matter without oral argument pursuant to Fed.R.Civ.P. 78; and
For the reasons set forth in the Court’s Opinion issued this day; and
For good cause shown;
It is on this 17 day of October, 2002 ORDERED that Defendants’ motion is granted; Counts One, Two, Eight, Nine, Ten, Eleven, and Twelve of the Third Amended Complaint are hereby dismissed.
All Citations
Not Reported in F.Supp.2d, 2002 WL 32159586

Footnotes

1

While these motions were pending, the first of several discovery disputes began. These disputes first saw motions

for reconsideration filed with Magistrate Judge Hedges, and then saw appeals of Judge Hedges’ rulings filed with this

Court.

2

The parties dispute various facts surrounding the amendment of the Plan. None of those facts are relevant to the

motion to dismiss. For purposes of this Motion only, the Court will take as true the allegations of the Third Amended

Complaint.

3

Cash Balance Plans have become increasingly popular. They provide each employee with a notional benefits

“account” that allows the employee to track the accrual of retirement benefits on a yearly basis over the term of

their employment. Typically, the balance of the account at a given moment in time represents the value of the

benefit the employee will receive upon reaching normal retirement age. For an in-depth analysis of the history and

operation of Cash Balance Plans, see Eaton v. Onan Corp., 117 F.Supp.2d 812, 816–18 (S.D.Ind.2000.)

12

Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586

4

By way of simplified example, if a hypothetical 45–year–old employee’s Special Update Benefit value was set at

$10,000, that employee would be guaranteed to receive $10,000 a year beginning at age 65. If the employee had

sufficient years of service, under the terms of the Plan they could elect to retire early and receive their full pension

at age 55 without penalty or reduction. That full pension amount at early retirement would be the same $10,000.

5

In the case of the hypothetical 45–year–old employee, the Cash Balance Account’s value would be computed as

follows. The employee’s “account” would be “opened” with an amount sufficient for that employee to collect an

annuity at retirement equal to their Special Update Benefit amount (i.e., $10,000). At the conclusion of 1997, the

employee’s account would be credited with an amount equal to a defined percentage of the participant’s pay for

1997, and credited with a set amount of interest on the participant’s account balance. Each year thereafter, the

employee would receive similar credits, and the account balance would steadily increase. Therefore, at any moment

in time, the employee’s Cash Balance Account value reflects the minimum future value at retirement age of their

retirement annuity.

6

Reduced value if they are younger than 55, full value if they are 55 or older. As will be discussed, this reduction

forms the alleged basis of Count Twelve. The reduction formula has no significant bearing on Counts Ten or Eleven.

7

This annuity value represented the value of the Special Update Benefit (comprising all benefits earned before 1997),

and annual pay and interest credits for 1997 and 1998.

8

The Court presumes that this reference to “ERISA protected benefits” is to a potential distribution of the Special

Update Benefit amount pursuant to § 4.06(a)(ii)(A)(2). (Footnote added.)

9

In their brief in opposition to Defendants’ motion to dismiss, Plaintiffs imply for the first time that the Plan

amendment also violates ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B) (133% annual accrual method). Although

the 133% method is mentioned in Plaintiffs’ Third Amended Complaint (¶ 83), Plaintiffs do not claim in their

Complaint that AT & T’s amended Plan violates the 133% accrual method. The Court will not consider allegations

which are not pled in the Complaint, and which are raised for the first time in opposition to a motion to dismiss.

10 Again, the Court presumes that this is a reference to receipt of the Special Update Benefit amount. (Footnote added.)

11 The pre-amendment Plan did allow for collection of full un-reduced benefits at Age 55 with sufficient years of service. The relevance of that early retirement provision will be discussed later in this section, and in the Court’s discussion of Count Twelve.

12 While Plaintiffs allege in Count Twelve that § 4.06(a)(ii) violates ERISA § 204(g), Plaintiffs’ claim is distinct from the one discussed here by the Court sua sponte. Plaintiffs’ separate § 204(g) claim as contained in Count Twelve is discussed in the next section of this Opinion.

13 The REA amended ERISA § 204(g) to protect early retirement benefits and retirement-type subsidies. See Corcoran v. Bell Atlantic Corp., 1997 WL 602859, *4 n. 6 (E.D.Pa. Sept. 23, 1997).

14 To the best of the Court’s understanding, a “service pension” operated in a similar fashion to the Plan’s present early retirement benefits, by allowing eligible employees to retire before normal retirement age.

15 Plaintiffs’ tangential allegations surrounding the excessive nature of the .5% per month (6% per year) reduction of benefits do not fit within the framework of an ERISA § 204(g) violation, absent evidence that the Plan had previously calculated the Early Retirement Discount in a more favorable manner. To the extent that identical reduction rates
13

Engers v. AT&T, Not Reported in F.Supp.2d (2002) 2002 WL 32159586
were contained in the pre-amendment Plan. Plaintiffs should have challenged them directly. Similarly, Plaintiffs’ claim that Defendants failed to provide adequate notice of the substantial impact of the amendment, and thereby induced employees to take an earlier pension for a lesser amount of money than they otherwise would have absent the amendment, does not constitute an ERISA § 204(g) violation. As Defendants note, such an allegation is more in keeping with the notice and fiduciary duty claims contained elsewhere in the viable portions of Plaintiffs’ Third Amended Complaint. 16 Counts One, Two, and Eight were dismissed with prejudice on 12(b)(6) grounds. Count Nine was dismissed on subject matter jurisdiction grounds, after Judge Politan found that Plaintiffs lacked standing to pursue the claim. While Plaintiffs could ultimately attempt to show that they have gained standing to pursue Count Nine and ask for its reinstatement, as of yet Plaintiffs have not made such a showing or request.
14

 
 428 F.Supp.2d 213 (2006)
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr & Gerald Smit, individually and on behalf of all others similarly situated, Plaintiffs,
v. AT & T and the AT & T Management Pension Plan, Defendants.
No. Civ.A.98-3660(JLL).
United States District Court, D. New Jersey.
March 31, 2006.
214*214 215*215 216*216 217*217 Stephen R. Bruce, Law Offices of Stephen R. Bruce, Washington, DC, Edgar Pauk, New York City, Jonathan I. Nirenberg, Resnick, Nirenberg &. Siegler, Roseland, NJ, for Plaintiffs.
Christopher H. Mills, Patricia S. Robinson, Patricia A. Cullen, David J. Treibman, Fisher & Phillips, LLP, Somerset, NJ, for Defendant.
OPINION[1]
LINARES, District Judge.
This matter comes before the Court on the motions for partial summary judgment[2] of Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr & Gerald Smit ("Plaintiffs") and Defendants AT & T and the AT & T Management Pension Plan (collectively "Defendants"). The Court has considered all submissions in support and in opposition to these motions. No oral argument was heard. Fed. R.Civ.P. 78. For the reasons stated herein, the motion of Plaintiffs is denied and the motion of Defendants is denied in part and granted in part.
BACKGROUND
A. Procedural Background
Plaintiffs instituted this action in August, 1998 seeking to challenge various provisions of the AT & T Management Pension Plan ("AT & TMPP" or the "Plan"). After multiple motions to dismiss and motions for leave to amend, Plaintiffs filed their Fourth Amended Complaint (the "Complaint") on November 23, 2004. The present Complaint contains seven claims which have not been dismissed: Claims Three, Four, Five, Six, Seven, Ten and Eleven. Plaintiffs filed a motion for summary judgment in October, 2004 requesting this Court to enter judgment as a matter of law with respect to all claims currently existing in the Complaint. Defendants subsequently filed a motion for summary judgment with respect to Claims Three, Four, Five, Six and Seven and requested this Court to dismiss all claims. Notably, Defendants did not move for summary judgment on Claims Ten or Twelve nor

submit opposition to this portion of Plaintiffs' motion. Defendants argue that since Counts Ten and Twelve had been previously dismissed by the Court, they were not properly pleaded and could not be raised on summary judgment. Plaintiffs however argue that since Magistrate Judge Hedges allowed an amendment of the Complaint to plead Count Ten by way of ¶ 88A and Count Twelve by way 218*218 of ¶ 94A, these claims were proper for summary judgment.
The Court agrees with Defendants. Plaintiffs moved the Court for leave to amend the Complaint and add two new legal theories, proposed Claims 88A and 94A on September 14, 2004. Before such leave was granted, however, Plaintiffs filed their motion for summary judgment on October 7, 2004 and moved on these notyet-added claims, apparently anticipating their addition to the case. Magistrate Judge Hedges granted Plaintiffs leave to amend on November 17, 2004, a decision which Defendants appealed and this Court affirmed on September 13, 2005. However, the Court does not determine that Claims 88A and 94A were a part of the Complaint until this Court ultimately affirmed Judge Hedges' order on September 13, 2005. Thus, it was not proper for Plaintiffs to move for summary judgment on these claims before they were an actual part of the case. As such, by way of preliminary matter, the Court will deny Plaintiffs' motion with respect to Claims 88A and 94A without prejudice to be raised by way of later motion. The Court will now address the crossmotions for summary judgment with respect to the remaining claims.
B. Factual Background[3]
AT & T is a business corporation organized and existing under New York law, but is qualified to, and does business in New Jersey. (Compl. ¶ 7). The AT & TMPP is a "defined benefit plan" subject to the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001, et seq. The Plan was established in October 1980 as a benefit plan available to AT & T management employees. AT & T is the "plan administrator" as that term is defined by ERISA. Since the Plan is a defined benefit plan, only AT & T makes contributions, not the employees. As set forth in the Plan, authority to amend the Plan lies with the AT & T Board of Directors (the "Board") or its delegate.[4]
A detailed factual background of the Plan's provisions prior to and after its transition to the cash balance formula was set forth in the Honorable William J. Bassler's, United States District Judge, Opinion of October 17, 2002 and will not be recounted here, except where necessary to provide context for the pending motions for summary judgment.
Prior to its amendment, the Plan provided for the calculation of pension benefits using a four-factor formula. The calculation was based upon: (1) the participant's years of service; (2) the participant's average compensation during a certain period; (3) the participant's annual compensation each year following the relevant period; and (4) a specific percentage multiplier. (the "old formula"). This type of formula is referred to as a "pay base averaging formula." Benefits under the Plan were paid out upon the participant reaching the normal retirement age under the Plan— sixty-five, and were paid in terms of an annual annuity. If the participant was married on the day his or her pension begun, the participant typically received a reduced pension with a survivor annuity payable to his or her eligible spouse after the participant's death.

219*219 Commencing in 1997, AT & T took steps to convert the Plan to utilize a "cash balance" formula. Unlike a traditional defined benefit plan, cash balance calculations depend upon a participant's years of participation in the Plan, the participant's salary, the, number of years a participant has until reaching normal retirement age, and the interest rate. Register v. PNC Financial Services Corp., 2005 WL 3120268, *1 (E.D.Pa.2005). The benefit in a cash balance plan is usually expressed as a lump-sum payout rather than an annuity. According to the amended AT & TMPP, each participant would be assigned a hypothetical cash balance account that would annually accrue "interest" and "pay" credits. The cash balance formula was to be effective January 1, 1998 and AT & T expected to significantly decrease its pension administration expenses following its institution.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) provides for summary judgment when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996). Alternately, summary judgment will be granted when the evidence on the record "is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.1985). The nonmoving party cannot rest on mere allegations and must instead present actual evidence that establishes a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.1995); Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.1976), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976).
In considering a motion for summary judgment, all evidence submitted must be viewed in the light most favorable to the party opposing the motion. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir,1995). However, even if the facts are undisputed, "summary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts." Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir.1996) (quoting Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3d Cir.1991)).
The Court's present task is to determine whether genuine issues of material fact exist and whether any party is entitled to judgment as a matter of law.
DISCUSSION
In the Complaint, Plaintiffs claim that AT & T violated various provisions of ERISA requiring certain notice and disclosures as well as breached its fiduciary duties under ERISA by failing to have a written plan document and for failure to keep Plan beneficiaries informed. Each of these allegations will be analyzed separately within the relevant legal framework established by this Circuit.

A. Count Three: Improper, Untimely & Inadequate Notice
Plaintiff moves for summary judgment on Count Three of the Fourth Amended Complaint. Count Three alleges that AT & T, as plan sponsor, did not 220*220 comply with the notice requirements set forth in ERISA § 204(h), 29 U.S.C. § 1054(h). Plaintiffs contend that the cash balance conversions resulted in a "significant reduction in the rate of future accruals" "without providing notice . . . at least 15 days before the amendments' effective date." (Compl. ¶¶ 58-59). Further, Plaintiffs contend that any notice to participants, if provided, was not "understandable" as ERISA requires. (Pl. Br. Summ. J. at 12).
Defendants move for summary judgment on the same claim, arguing that Plaintiffs fail to prove both that § 204 notice was required and that Defendants's written communications with participants failed to comply with the applicable statutory requirements. Thus, Defendants assert that Count Three must be dismissed with prejudice.
Section 204(h) provides[5] in relevant part that a defined benefit plan like the Plan at issue:
may not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless, after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice, setting forth the plan amendment and its effective date, to—(A) each participant in the plan . . .
29 U.S.C. § 1054(h)(emphasis added). Thus, to establish a violation of § 204(h), Plaintiffs must demonstrate that Defendants were required to provide notice, that notice was untimely and that the notice was deficient.
Since this test is inclusive, a plaintiff must first establish that the amendment[6] in question provided for a significant reduction in the rate of benefit accrual. 29 U.S.C. § 1054(h)(1). If a plaintiff is unable to prove that the amendment in question would provide for such a reduction, § 204(h) would not require the provision of any notice. A court would then have no need to reach any allegation that notice was untimely or otherwise deficient. In short, there could be no claim.
The Temporary Regulations explicitly state that § 204(h) of ERISA "does not apply to an amendment that does not affect the rate of future benefit accrual." Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed.Reg. 64,321 (December 15, 1995).[7] Further, the 221*221 regulations clarify that "an amendment to a defined benefit plan that does not affect the annual benefit commencing at normal retirement age does not affect the rate of future benefit accrual for purposes of section 204(h)." (Id.) (emphasis added). This proposition is elaborated upon in the Questions & Answers section ("Q & A") contained at the end of the regulations. Q & A 5 states that "an amendment to a defined benefit plan affects the rate of future benefit accrual only if it is reasonably expected to change the amount of the future annual benefit commencing at normal retirement age." Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed.Reg. 64,322 (December 15, 1995) (emphasis added).

Here, the parties do not dispute that age 65 constitutes the "normal retirement age" under the Plan. However, the parties disagree on the interpretation of § 204(h)'s language and the accompanying requirements of the regulations. Plaintiffs interpret the statute and regulations literally. Plaintiffs argue that since the cash balance formula reduced the rate of future benefit accruals for participants, AT & T was required to provide notice to participants 15 days in advance of the provisions' effective date. In support of this proposition, Plaintiffs offer the expert report of actuary, Claude Poulin.[8] ("Poulin"). Plaintiffs assert that Poulin's analysis, utilizing the Treasury Department guidelines for determining rates of accrual, demonstrates a substantial reduction in these benefits following the implementation of cash balance which triggered the notice requirements of § 204(h). (Pl. Br. Summ. J. at 14).
Defendants argue however that the correct analysis is one which compares the (1) projected annual benefit at age 65 under the pre-Amendment plan and (2) such projected benefit under the post-amendment Plan. (Def. Br. Summ. J. at 27). If this comparison does not reflect a significant reduction in the amount of accrued benefit available under the amended Plan, Defendants argue no notice was thus required.[9] In support, Defendants also direct the Court to the report drafted by the Plaintiffs' expert, Poulin.[10] Exhibits C-1 through C-4 of the Affidavit of Claude Poulin includes a "Comparison of Projected Benefits" for each named Plaintiff: Gerald J. Smit, Phillip C. Engers, Warren J. McFall and Donald G. Noerr. (Poulin Aff.; Def.App. at 523-26). These charts contain Poulin's calculated figures for each Plaintiff's "Accrued Benefit at Age 65" under the Cash Balance Formula as well as 222*222 figures which reflect each Plaintiff's "Accrued Benefit at Age 65" under the "Prior Plan Formula." (Id.).
After reviewing the statutory language contained in § 204(h) and the temporary regulations in effect at all relevant times, this Court determines that Plaintiffs erroneously interpret the language of § 204(h). Although § 204(h) contains the language "rate of future benefit accrual," the accompanying regulations provide further context and specificity. (Id.) (emphasis added). As a matter of law, to determine whether § 204(h) notice is required, the Court must examine the effect of any amendments on the amount of future benefits, not the rate at which they accrue. This view may appear counter-intuitive since § 204(h) explicitly refers to "rate," but the regulations leave no question that the proper inquiry must focus on the amount of benefit, not rate.[11]
After careful review of Poulin's expert report and charts which display the benefits for each named Plaintiff, the Court determines that as a matter of law, no named Plaintiff will suffer a reduction in his accrued benefit as of age 65, as a result of the cash balance transition, let alone a significant reduction. Poulin's report concludes that participants will suffer a reduction in the rate of benefit accruals but does not demonstrate a reduction in accrued benefits. (Poulin Aff.; Def.App. at 523-26). Rather, the actuarial analyses show each Plaintiff's post-amendment accrued benefits, as calculated by the Plaintiffs' own actuarial expert, as higher than the projections of accrued benefits under the pre-amendment plan. (Poulin Aff.; Def. App. at 523-26). Without demonstrating a reduction of benefits, let alone a significant reduction, Plaintiffs' claim under § 204(h) must fail. As set forth in the Temporary Regulations, § 204(h) "does not apply to an amendment that does not affect the rate of future benefit accrual." Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed.Reg. 64,321 (December 15, 1995). Plaintiffs have not provided the Court with additional evidence beyond Poulin's calculations for the named Plaintiffs to prove that any

Plan participant's accrued benefits as of age 65 would be lower post-amendment than they were projected pre-amendment. Plaintiffs' emphasis on participants' allegedly lower rates of accrual to demonstrate a § 204(h) notice violation is insufficient as a matter of law. Accordingly, for the foregoing reasons, the Court determines, as a matter of law, that Plaintiffs are unable to establish a claim under § 204(h). Plaintiffs' motion for summary judgment is denied and Defendants's motion for summary judgment is granted. Plaintiffs' § 204(h) claim against Defendants is hereby dismissed with prejudice.
B. Counts Four and Five: Failure to Have a Written Plan Document and Consequent Breach of Fiduciary Duty
Plaintiffs move for summary judgment on Counts Four and Five of the Complaint. Plaintiffs' Fourth Claim asserts that AT & T failed to implement two cash balance provisions without a written document in violation of § 402 of ERISA, 29 U.S.C. § 1102. The Fifth Claim alleges that AT & T's failure to have a written plan document 223*223 constituted a breach of its fiduciary duties as set forth in § 404 of ERISA, 29 U.S.C. § 1104.[12] Specifically, Plaintiffs allege that two provisions later added to the amended Plan document "(1) were not adopted by the Board or contained in an earlier Plan amendment, [and] (2) cannot reasonably be characterized as reflecting the manifest intention of the Board in April, 1997." (Pl. Br. Summ. J. at 4). These two provisions are what Plaintiffs term the "wear-away rule" contained in Section 4.06(a)(ii) of the October 2000 Plan document and a provision of Section 4.06(b) which calculates a participant's residual annuity based on the cash balance annuity. (Pl. Br. Summ. J. at 6).
Plaintiffs argue that the resolutions adopted by the Board in April, 1997 ("4/97 Resolutions") are substantively different than two amendments later approved on October 16, 2000 and thus the resolutions constitute an informal amendment in violation of ERISA. (Pl. Br. Summ. J. at 3, 6). Plaintiffs urge that these provisions were never part of a written plan document and may not have a retroactive effect. Accordingly, Plaintiffs urge the Court to "invalidate the application of the provisions until they are properly adopted and made available to participants for inspection." (Pl. Br. Summ. J. at 10). If the Court were to post-date the effective date of these provisions it seems that this would alter, and in some cases, increase the amount of benefits due to certain Plaintiffs. (Id.).
Defendants cross-move for summary judgment on Claims Four and Five. Defendants argue that there was only one Plan amendment—that embodied by means of the written 4/97 Resolutions. Defendants assert that any later resolutions merely elaborated upon the one amendment and did not constitute separate amendments.[13] Defendants thus argue that as a matter of law, Plaintiffs are unable to establish a violation of § 402 or § 404 because a written plan document existed at all relevant times containing the provisions at issue. Defendants alternately argue that the Court should grant summary judgment and dismiss these claims because Plaintiffs "are, in essence, claiming additional benefits without having exhausted their administrative remedies" and these claims are thus barred. (Def. Br. Summ. J. at 13).
1. Failure to Exhaust Remedies

Defendants move for summary judgment on the basis that Plaintiffs have not properly exhausted their administrative remedies with respect to the allegations contained in Claims Four and Five. Since this issue is dispositive of the claims, the Court will address it first. The Court shall examine whether Plaintiffs are subject to the exhaustion requirement recognized by the Third Circuit for claims arising under ERISA § 502(a)(1)(B), 29 U.S.C. § 1052(a)(1)(B), and if subject to exhaustion, whether Plaintiffs have complied with such a requirement, or were excused.
a. Applicability of Exhaustion Requirement
Section 502(a)(1)(B) allows a participant or beneficiary to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify 224*224 his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). However, before bringing a civil action, a plaintiff must first exhaust his remedies available under the Plan. Harrow v. Prudential Insurance Co. of America, 279 F.3d 244, 249 (3d Cir.2002) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir.1990) (citations omitted)). Without first exhausting available remedies, a plaintiff may not bring a civil action pursuant to § 502. However, "a plaintiff is excused from exhausting administrative procedures under `ERISA if it would be futile to do so." Harrow, 279 F.3d at 249 (citing Berger v. Edgewater Steel Co., 911 F.2d 911, 916 (3d Cir.1990)). Before addressing futility, the Court must first examine Plaintiffs' claims to determine whether they are subject to the exhaustion requirement.
Defendants argue that although Plaintiffs cast Claims Four and Five as mere assertions of statutory rights and fiduciary duties under ERISA, these claims are really ones for benefits, more accurately arising under § 502(a)(1)(B). Thus, since § 502(a)(1)(B) claims are undisputedly subject to exhaustion, Defendants argue that Plaintiffs failed to exhaust their remedies available under the Plan and are thus barred from bringing such claims now. Defendants urge the Court to "reject [Plaintiffs'] attempt to dress up their benefit claims as `statutory' or `fiduciary duty' claims to avoid the exhaustion requirement." (Def. Br. Summ. J. at 16). In response, Plaintiffs argue that Claims Four and Five are purely claims of statutory rights and fiduciary duties provided by ERISA, are not claims that arise more properly under § 502(a)(1)(B) and thus are not subject to exhaustion. Further, Plaintiffs argue that even if exhaustion had been required, Plaintiffs exhausted their remedies and alternately, argue that they are excused from this requirement because exhaustion would be futile.
Claim Four alleges a statutory violation of § 102(a)(1), 29 U.S.C. § 1102(a)(1), which stipulates that "[e]very employee benefit plan shall be established and maintained pursuant to a written instrument." Id. Claim Five alleges a statutory violation of § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D), which provides that a "fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries, and— . . . (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this title and title IV." (Id.) As a remedy for Defendants' alleged violations of these sections, Plaintiffs request that the Court invalidate the current provisions of the Plan which Plaintiffs allege were not present in the written Plan document until October 16, 2000. (Pl. Br. Summ. J. at 10). The effect of such invalidation would require AT & T to retroactively apply a formula for calculating benefits that is more favorable to Plaintiffs[14] and would require AT & T to re-compute the

benefits of any participant who chose cash payment options prior to October 16, 2000 and provide participants with the option to have their benefits based upon the Special Update annuity.[15] (Id.).
225*225 When determining whether a claim raised under ERISA actually arises under §. 502, the Third Circuit has adopted the reasoning set forth in a Fourth Circuit case, Smith v. Sydnor, 184 F.3d 356 (4th Cir.1999). Harrow, 279 F.3d at 254 (adopting the analysis set forth in Smith). In Smith, the Court analyzed a series of cases relating to the issue of whether a claim arises under § 502 and concluded that "a claim for breach of fiduciary duty is actually a claim for benefits where the resolution of the claim rests upon an interpretation and application of an ERISA-regulated plan rather than upon an interpretation and application of ERISA." 184 F.3d at 362. (emphasis original). In Harrow, the Court concluded that the plaintiff's purported fiduciary duty claim was actually a claim challenging a denial of welfare benefits under the defendants's plan re-cast as a statutory violation claim. 279 F.3d at 254. Accordingly, the Harrow Court affirmed the district court's conclusion that the plaintiff's claim was subject to the requirement that she first exhaust her remedies under the plan and determined that dismissal of plaintiff's claim was proper for failure to exhaust. Id.
It is undisputed that the AT & TMPP provided for an appeals process for participants who wished to challenge their benefits under the Plan. These provisions are set forth, in detail, in the 1998 Summary Plan Description within the section titled, "Claim and Appeal Procedures." (1998 SPD at 28-29; Def.App. at 1148-1149). This section contains procedures for participants to utilize when making a claim regarding a pension benefit, and if such a claim is denied, for appealing the determination. (Id.). This section identifies the AT & T Employees' Benefit Committee as the final review committee under the Plan. (Id. at 29; Def.App. at 1149). The committee:
shall have sole and complete discretionary authority to determine conclusively for all parties, and in accordance with the terms of the documents or instruments governing the Plan, any and all questions arising from administration of the Plan and interpretation of all Plan provisions, determination of all questions relating to participation of eligible employees and eligibility for benefits, determination of all facts, the amount and type of benefits payable to any participant, and construction of all terms of the Plan.
(Id.). This portion of the SPD also contains language telling participants that "the Plan's provisions require that you pursue all your claim and appeal rights described above before seeking any other legal recourse regarding claims for pension benefits." (Id.) (emphasis added). The Court notes that wholly similar language is also found in Article 3 of the 1998 Restatement of the Plan. (Def.App. at 581-82).
Although Plaintiffs urge the Court to conclude that the Fourth and Fifth Claims seek to address statutory violations, and thus do not arise under § 502, the language of their own moving brief demonstrates otherwise to the Court. The crux of Plaintiffs' arguments with respect to these claims is that the Plan did not contain the "wear-away" or annuity provisions until October 16, 2000 and thus, Plaintiffs are entitled to have their benefits calculated using language contained in the Plan prior to this date. (Pl. Br. Summ. J. at 9, 10). It appears clear to the Court that Plaintiffs are asking the Court to interpret the Plan to determine whether it contained certain provisions as of specific dates, not merely asking the

Court to interpret and apply ERISA. Harrow, 279 F.3d at 254 (citation omitted). Plaintiffs urge the Court to find that the Fourth and 226*226 Fifth Claims do not relate to the terms of the Plan, but rather relate to when that provision was validly adopted under ERISA. (Pl. Br. Opp. Summ. J. at 3). Although the timing and effective date of any amendments to the Plan is relevant to Plaintiffs' claims, what Plaintiffs truly ask the Court to do is examine the Plan's language prior to and after October 16, 2000 and make comparisons to determine whether certain provisions existed. Even Plaintiffs' requested remedy, as set forth in their moving brief, asks the Court to recalculate Plaintiffs'. benefits according to Plaintiffs' interpretation of the Plan language. (Pl. Br. Summ. J. at 10).
Policy considerations also support this interpretation of Plaintiffs' claims. In Zipf v. Am. Tel. & Tel. Co., 799 F.2d 889 (3d Cir.1986), the Third Circuit set forth certain policy considerations that support the exhaustion doctrine. In relevant part, the Court stated that:
when a plan participant claims that he or she has unjustly been denied benefits, it is appropriate to require participants first to address their complaints to the fiduciaries to whom Congress, in Section 503, assigned the primary responsibility for evaluating claims for benefits . . .
Zipf 799 F.2d at 892; Accord Harrow, 279 F.3d at 253. The Zipf Court also considered an additional justification for exhaustion: deference to the plan administrator's expertise. Id. at 893. Here, it is undisputed that AT & T is the plan administrator and that the Plan contained a claims and appeals section as required by § 503. Since AT & T administered the Plan and had extensive knowledge of the Plan's provisions, policy considerations provide further support for holding the Plaintiffs subject to ERISA's exhaustion requirement.
Following Zipf, a "vast majority of cases waiving the exhaustion requirement have fallen into two categories: (1) discrimination claims under section 510 of ERISA, or (2) failure to provide plaintiffs with Summary Plan Descriptions, as required by ERISA." D'Amico v. CBS Corporation, 297 F.3d 287, 291 (3d Cir.2002) (citing Harrow, 279 F.3d 244, 253). Since Plaintiffs have failed to demonstrate that the allegations in Claims Four or Five fall in either of these two categories nor that these claims only involve an interpretation of ERISA, the Court concludes that Plaintiffs' Fourth and Fifth Claims actually arise under § 502(a)(1)(B) and Plaintiffs are subject to the exhaustion requirement that pertains to claims brought for benefits. Harrow, 279 F.3d at 249.
b. Have Plaintiffs Exhausted their Administrative Remedies?
Since the Court has determined that Plaintiffs' Fourth and Fifth Claims are subject to the exhaustion doctrine, the Court must next determine whether Plaintiffs have properly exhausted their remedies under the Plan. In opposition to Defendants' motion, Plaintiffs assert that Defendants have waived its exhaustion defense and may not raise it now, but even without such a waiver, that Plaintiffs have exhausted their administrative remedies before raising these claims. (Pl. Br. Opp. Summ. J. at 2).
Plaintiffs assert that since Defendants did not raise failure to exhaust as an affirmative defense in any of its earlier motions to dismiss under Federal Rule of Civil Procedure 12, Defendants have waived the opportunity to raise exhaustion as an affirmative defense. (Pl.

Br. Opp. Summ. J. at 2). Plaintiffs argue that since Fed. R.Civ.P. 12(g) prohibits a party who makes a Fed.R.Civ.P. 12 motion without raising a certain defense from raising an omitted defense in a later motion, Defendants are barred from raising exhaustion at summary judgment. (Id. at 2-3). Plaintiffs assert that since Defendants' third motion 227*227 to dismiss requested that the Court dismiss Claims Four and Five but made no mention of exhaustion, Defendants have effectively waived this defense.
Defendants argue that they have not waived this defense since it was raised by way of the Fourth and Fifth Affirmative Defenses[16] in all relevant Answers to Plaintiffs' Complaints. With respect to Plaintiffs' argument concerning Defendants' failure to raise the defense in an earlier motion to dismiss, Defendants argue that there was, no need to raise the defense at that juncture. Defendants assert that an analysis of whether a plaintiff has sufficiently exhausted his administrative remedies requires a Court to look outside the pleadings, and is thus a determination inappropriate for a motion on the pleadings alone.
Federal Rule of Civil Procedure 12(g) states that a party who "makes a motion under this rule but omits therefrom any defense or objection then available to the party . . . shall not thereafter make a motion based on the defense or objection so omitted." Fed.R.Civ.P. 12(g). "Failure to raise an affirmative defense by responsive pleading or by appropriate motion generally results in the waiver of that defense." Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir.1991) (citations omitted). However, the Third Circuit also notes that failure to raise an affirmative defense by appropriate motion "does not always result in waiver." Id. Courts have held that an exception to waiver exists in situations where the defendant raises the defense at a "pragmatically sufficient time and the plaintiff was not prejudiced in his ability to respond." Id. at 864. (quoting Lucas v. United States, 807 F.2d 414, 418 (5th Cir. 1986) (citation omitted)).
Here, Plaintiffs do not argue in their briefs that they have been prejudiced by Defendants' decision to raise this defense at the summary judgment stage, rather than by way of motion to dismiss. Defendants argue that their decision to raise the defense at summary judgment was essentially equivalent to raising it at a "pragmatically sufficient time," Charpentier, 937 F.2d at 864, since analysis of exhaustion requires a court to go outside the pleadings.
Although this case has involved an immense amount of time and financial resources, the preservation of which is a significant policy consideration behind the exhaustion requirement itself, this Court nevertheless determines that Defendants have not waived this defense. While the Court certainly hesitates to reach such a seemingly inefficient result, it is the result which best serves the purposes and policy underlying the exhaustion requirement. Ultimately, the plan administrator, AT & T, is in the best position to evaluate Plaintiffs' claims for re-calculation of benefits, not the federal courts. As articulated by the Zipf Court, "[w]hen a plan participant claims that he or she has unjustly been denied benefits, it is appropriate to require participants to first address their complaints to the fiduciaries to whom Congress, in Section 503, assigned the primary responsibility for evaluating claims for benefits." 799 F.2d at 892. The Court's determination that the exhaustion requirement applies to Plaintiffs comports with the purpose and policies underlying the requirement. Accordingly, the Court finds 228*228 that Defendants have not waived the right to assert failure to exhaust as an affirmative defense.

Next, the Court must determine whether Plaintiffs have exhausted their remedies available under the Plan. These remedies are contained in the "Claims-and Appeals" section of the 1998 SPD and the "Administration" portion of the restated Plan and are set forth supra in this Opinion. Plaintiffs allege that they have met the exhaustion requirement since Plaintiff Smit received a letter from Brian M. Byrnes which includes the language that "there is nothing further to discuss." (Compl. ¶ 60). However, upon viewing the letter within its original context, this Court determines that Smit's actions do not amount to exhaustion of his claim on behalf of himself, let alone on behalf of any other plaintiff.
It is undisputed that on February 9, 1998 Plaintiff Smit filed a charge with the EEOC alleging that the Plan violated the Age Discrimination in Employment Act of 1967. (Pl. Stmt. Facts Opp. ¶ 146; EEOC Charge No. XXXXXXXXX; Def.App. at 1043). On May 18, 1998, the EEOC issued a Dismissal and Notice of Rights with respect to Smit's charge. (Pl. Stmt. Facts Opp. ¶ 149). On or about May 21, 1998, Smit sent Howard Burlingame[17] ("Burlingame") an e-mail stating that the EEOC had issued him a "right to sue" letter regarding his allegations of age discrimination. (Pl. Stmt. Facts Opp. ¶ 149; Def. App. at 1335). By letter dated May 29, 1998, Brian M. Byrnes[18] responded to Smit on behalf of Burlingame. (Def.App. at 1336). In the letter, Byrnes states that AT & T, in light of the EEOC's determination, "sees no reason for the Company to alter its position that the AT & TMPP is in compliance with all applicable laws, including the Age Discrimination in Employment Act." (Def.App. at 1336). Further, Byrnes states that inasmuch as Smit may disagree with the company's position "there is nothing further to discuss" and that "this letter concludes the Company's contact with you on this subject outside of any legal process you may determine to undertake. . . ." (Id.) (emphasis added). Plaintiffs allege that this letter from Byrnes constitutes evidence that Plaintiffs have exhausted their remedies. The Court disagrees.
Smit's EEOC charge alleged only that the Plan violated provisions of the ADEA. It contained no mention of the claims and appeals procedures set forth within the Plan at the time the charge was filed, of any specific dispute regarding pension calculation, nor did it address Defendants's alleged failure to provide a written plan document on the two provisions contested in Claims Four and Five. Further, AT & T's response to Smit's correspondence regarding his "right to sue" letter specifically states that the letter concluded the Company's contact with Smit only on the subject of alleged age discrimination. The letter does not contain any language which Plaintiffs could reasonably interpret to mean that AT & T had reviewed any claims other than ones pertaining to alleged age discrimination. Further, Plaintiffs introduce no other evidence that they have exhausted their remedies. Accordingly, the Court concludes that the letter Byrnes wrote to Smit is insufficient evidence to demonstrate that Plaintiffs exhausted their available remedies. Next, the Court must determine whether Plaintiffs meet one of the exceptions to exhaustion.
229*229 c. Was Exhaustion Excused?
Before bringing a civil action pursuant to § 502, a plaintiff must first exhaust his or her remedies available under the Plan. Harrow, 279 F.3d at 249 (citing Weldon, 896 F.2d at 800 (citations omitted)). However, this requirement is excused if a plaintiff provides a "clear and positive showing" that exhaustion is futile. Harrow, 279 F.3d at 249 (quoting Brown v. Cont'l Baking Co., 891 F.Supp. 238, 241 (E.D.Pa.1995)); accord D'Amico, 297 F.3d at 293.

Conclusory statements that amount to nothing more than "bare allegation[s] of futility" do not excuse the exhaustion requirement. Menendez v. United Food & Commercial Workers Local 450T, AFL-CIO, 2005 WL 1925787, *1-2 (D.N.J.2005). The Third Circuit also recognizes an additional exception to exhaustion for a claim that alleges a violation of a substantive ERISA provision, like § 404. Harrow, 279 F.3d at 253 (extending the Zipf, 799 F.2d at 891, exception to claims brought under ERISA § 404).
To determine whether a plaintiff is entitled to the futility exception, a court must weigh several factors, "including (1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate review under the circumstances; (3) existence of a fixed policy denying benefits; (4) failure of the [ company to comply with its own internal administrative procedures; and (5) testimony of plan administrators that any administrative appeal was futile." Harrow, 279 F.3d at 250. It is clear that "Plaintiffs who fail to make known their desire for benefits to a responsible party are precluded from seeking judicial relief." D'Amico, 297 F.3d at 293 (citing Berger, 911 F.2d at 917).
Plaintiffs argue that exhaustion is excused since pursuing their administrative remedies would be futile. Plaintiffs rely on an allegation contained in their Third Claim for Relief in support of this proposition. In Paragraph 60 of the Complaint, Plaintiffs argue that with respect to the Third Claim, exhaustion was futile "because [AT & T's] correspondence with the Plaintiffs and AT & T's Answer maintains that its cash balance plan does not violate the law." (Compl. ¶ 60). Plaintiffs argue that "it would be futile to file an internal claim with company officers whose position is already staked out." (Id.). Second, in a footnote contained in their opposition brief, Plaintiffs argue that "further `exhaustion' would be futile because Defendants already [sic] taken a `fixed' position as stated in pp. 18-23 of their Brief." (Pl. Br. Opp. Summ. J. at 2). It appears to the Court that Plaintiffs interpret Defendants' arguments for summary judgment to comprise a "fixed policy denying benefits," one of the factors set forth by the Harrow Court.
If the Court were to apply the language contained in Paragraph 60 of the Complaint to the Fourth and Fifth Claims, it is still unable to determine that Plaintiffs have successfully demonstrated an entitlement to the futility exception. Plaintiffs have not alleged that they diligently pursued administrative relief, nor that immediate judicial review was necessary. Nor do Plaintiffs assert that AT & T failed to comply with its own internal administrative procedures nor that a plan administrator testified that any administrative appeal would be futile. Rather, the Plaintiffs focus on the third factor articulated in Harrow: that Defendants have a "fixed policy denying benefits," allegedly evidenced by Byrnes' letter to Plaintiff Smit on May 29, 1998 and Defendants' legal position on Claims Four and Five in the moving brief. Id. at 250.
As discussed, supra, the letter which Byrnes wrote to Plaintiff Smit did not reference any allegation present in Claim Four or Five. (Def.App. at 1336). Rather, 230*230 the language was directed towards Smit's EEOC charge based on age discrimination under the ADEA and made no reference to the "wear away" or annuity provisions. Plaintiffs however, allege that this letter, in conjunction with AT & T's Answer, demonstrate AT & T's commitment to the position that its cash balance plan does not violate the law. (Compl. ¶ 60). In its appropriate context, Byrnes' letter states that "we see no reason for the Company to alter its position that the AT & TMPP is in compliance with all applicable laws, including the Age

Discrimination in Employment Act." (Def.App. at 1336). However, the Court will not interpret this statement to operate as a "fixed position" regarding Plaintiffs' potential claims regarding the "wear away" and annuity provisions.
Plaintiffs' attempt to rely on the Defendants' moving brief as evidence that Defendants have adopted a fixed position finds no support in the law. The case which Plaintiffs cite to in support of this proposition, Berger, 911 F.2d 911 (3d Cir. 1990), does not provide support to Plaintiffs' argument. Rather, in Berger, it was clear that the company had adopted a fixed practice of denying certain claims brought by participants, which was enough for the district court to excuse exhaustion. Id. at 916-17. Here, however, Plaintiffs have not demonstrated that the legal arguments set forth in Defendants' brief do more than provide a litigation stance. The Court is not willing to construe a legal position taken in response to a civil action as sufficient evidence that resort to administrative remedies would be futile, especially where Plaintiffs have failed to offer any reason for the Court to do so.
Plaintiffs also allege that exhaustion is excused for Claim Five since this claim alleges that AT & T breached its fiduciary duty to maintain a written plan in violation of § 404. If the Court were to accept Plaintiffs' characterization of Claim Five, this claim could fall into the exhaustion exception for violations of substantive ERISA provisions discussed supra. The rationale behind this exception is that a claim involving a breach of fiduciary duty involves no administrative expertise and thus exhaustion serves no real purpose. Zipf 799 F.2d at 892-93. However, the Court reiterates that "Plaintiffs cannot circumvent the exhaustion requirement by artfully pleading benefit claims as breach of fiduciary duty claims." Harrow, 279 F.3d at 253 (citation omitted). The Third Circuit has adopted the standard set forth in Smith, 184 F.3d at 362, for determining when a claim for breach of fiduciary duty is actually a claim for benefits. Harrow, 279 F.3d at 254. The test is whether the resolution of the claim will rest "upon an interpretation and application of an ERISAregulated plan rather than upon an interpretation and application of ERISA." Id. (quoting Smith, 184 F.3d at 362) (emphasis original). If a plaintiff cannot allege facts that, if proven, would establish a breach of fiduciary duty independent of a claim for benefits, exhaustion cannot be excused. Harrow, 279 F.3d at 254.
Here, the Court is unable to discern a true distinction between the remedies which Plaintiffs seek for Claims Four and Five. If the Court were to grant Plaintiffs' requested remedy, AT & T would have to re-calculate the benefits of any participant who chose cash payment options before October 16, 2000 based upon the Special Update annuity if that were the participant's highest benefit. (Pl. Br. Summ. J. at 10). Although Claim Five addresses an alleged breach of AT & T's fiduciary duty owed to Plaintiffs, the Court determines that this claim still asks the Court to interpret terms of the Plan to analyze whether certain language was included as of certain time periods, rather than interpret and apply ERISA. The Court concludes that Claim Five, although structured as a fiduciary 231*231 duty claim, is best treated as a claim for benefits subject to the exhaustion doctrine because it asks the Court to interpret the contents of and terminology used in the Plan. Since the parties dispute the characterization of the Plan language, the Court's analysis must necessarily turn on an interpretation of the Plan language. The Court thus determines that Plaintiffs are not entitled to an exception to exhaustion based on their § 404 claim.

It is undisputed that proper administrative procedures existed within the Plan that Plaintiffs could have pursued before bringing Claims Four and Five. Plaintiffs have failed to demonstrate that exhaustion was unnecessary, that they have exhausted their remedies or that exhaustion would be futile. For the foregoing reasons, the Court will grant Defendants' motion for summary judgment and denies the motion of Plaintiffs with respect to Claims Four and Five. These claims are dismissed without prejudice to be re-filed once Plaintiffs have exhausted their administrative remedies.[19]
2. Remaining Arguments
Since the Court has determined that Plaintiffs have failed to exhaust their administrative remedies for Claims Four and Five, these claims are summarily dismissed without prejudice for Plaintiffs to pursue their administrative remedies. Accordingly, the Court does not deem it necessary to reach the merits of the parties' remaining arguments. As such, dismissal of Claims Four and Five shall not operate as a determination on the merits of these claims.
C. Counts Six and Seven: Misleading Plan Description and Resulting Breach of Fiduciary Duty
Plaintiffs move for summary judgment on the Sixth and Seventh Claims of the Complaint.[20] In the Sixth Claim, Plaintiffs allege that the Summary Plan Description ("SPD") provided to employees in 1998 was "not `written in a manner calculated to be understood by the average plan participant,' and was not `sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan,'" in violation of § 102, 29 U.S.C. § 1022. (Compl.¶ 64). Specifically, Plaintiffs allege that the SPD does not disclose that:
the `new' features: (a) significantly reduce the rate of future benefit accruals; (b) cause older participants to earn no additional benefits beyond those already earned; (c) use conversion factors to compute the initial Cash Balance that are not based on the most valuable annuity offered under the `old' formula; (d) base benefits on year-by-year salary, whereas the `old' formula based them on compensation in a final pay base averaging period; and (e) do not offer undiscounted retirement benefits at age 55. In addition, illustrative examples in the SPD intentionally omit comparisons of benefits under the `old' and the `new' formulas.
(Compl.¶ 63).[21] Further, Plaintiffs allege 232*232 that the SPD was not "distributed to employees in a manner, reasonably calculated to ensure actual receipt by the employees." (Compl.¶ 65). As evidence of this, it is alleged that certain Plaintiffs did not receive the SPD until AT & T added it as an exhibit in this action in December, 1998. Plaintiffs' Seventh Claim alleges that Defendants violated the fiduciary duty to keep beneficiaries fully informed as set forth in § 404, 29 U.S.C. § 1104. Specifically, Plaintiffs allege that Defendants failed to disclose, or alternatively made deceptive or uninformative disclosures, regarding "the disadvantages of the `new' cash balance features and transition provisions, compared to the `old' defined benefit plan." (Compl.¶ 66). This claim alleges both a non-disclosure and misrepresentation-based breach of fiduciary duty.
Defendants cross-move for summary judgment on both claims. With respect to Claim Six, AT & T argues that ERISA does not require the SPD to contain the information which

Plaintiffs allege is lacking. Defendants also assert that Plaintiffs are unable to demonstrate that the SPD was not written in an understandable manner nor that it was inaccurate or less than comprehensive. Further, Defendants argue that the SPD was properly distributed by third-class mail to participants such that its distribution did not violate § 102 nor the applicable regulations. Finally, Defendants argue that since Plaintiffs cannot demonstrate the existence of "extraordinary circumstances," ERISA cannot provide their requested remedy. Defendants request that Plaintiffs' Sixth Claim be dismissed with prejudice.
In Claim Seven, Defendants assert that there is no general fiduciary duty to keep beneficiaries informed as Plaintiffs allege. Specifically, to the extent that Plaintiffs' claim relates to an actionable breach based on failure to disclose, Defendants argue that Plaintiffs fail to state such a claim. AT & T claims that it was unnecessary to disclose purported "disadvantages" of the new Plan as compared to the old Plan because Defendants did not give participants the option of choosing between them. To the extent that Plaintiffs' claim is one based on misrepresentation, Defendants allege that this claim must fail since Plaintiffs have not alleged and proven the requisite elements. Defendants also move for summary judgment on the basis that Plaintiffs may not sustain a fiduciary duty-based claim since any alleged SPD-related violations are specifically and exclusively addressed by other ERISA provisions.
1. Legal Standards
ERISA has "an elaborate scheme in place for enabling beneficiaries to learn their rights and obligations at any time, a scheme that is built around reliance on the face of written plan documents." Curtiss-Wright Corp. v. Schoonejongen, 51.4 U.S. 73, 83, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995).
a. Section 102 of ERISA
Section 102 of ERISA requires plan administrator to furnish a summary plan description of any employee benefit plan to participants and beneficiaries. 29 U.S.C. § 1022(a). A plan administrator must furnish an SPD to each participant and beneficiary every fifth year or within 210 days of any material modification to the plan. 29 U.S.C. § 1024(b)(1)(B). The SPD "shall be written in a manner calculated to be understood by the average plan participant, 233*233 and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." (Id.). The applicable labor regulations stipulate that the format of the SPD "must not have the effect to [sic] misleading, misinforming or failing to inform participants and beneficiaries." 29 C.F.R. 2520.102-2(b). Further, the SPD must not minimize or obscure "any description of exception, limitations, reductions, and other restrictions of plan benefits." (Id.). The plan's advantages and disadvantages "shall be presented without either exaggerating the benefits or minimizing the limitations." (Id.).
Section 102(b) of ERISA sets forth specific, requirements regarding the content of every conforming SPD. 29 U.S.C. § 1022(b). In relevant part, the statute requires every SPD to contain:

[t]he name and type of administration of the plan . . . the plan's requirements respecting eligibility for participation and benefits; a description of the provisions providing for nonforfeitable pension benefits; circumstances which may result in disqualification, ineligibility, or denial or loss of benefits . . .
29 U.S.0 § 1022(b). The SPD must be distributed by use of "measures reasonably calculated to ensure actual receipt of the material by plan participants and beneficiaries" and "must be sent by a method or methods of delivery likely to result in full distribution." 29 C.F.R. 2520.104b-1(b)(1). Materials which are distributed by the mails may be sent first, second or third-class mail, but use of second or third-class mail is only acceptable if "return and forwarding postage is guaranteed and address correction required." (Id.). Any such material that is returned with a corrected address must be re-sent by first-class mail or personally delivered to the participant at his or her work-site. (Id.).
b. Section 404 of ERISA
Under ERISA, an employer that also serves as a plan administrator, like Defendants in this case, is a fiduciary that is required to "discharge its duties solely in the interests of the participants and beneficiaries." 29 U.S.C. § 1104(a)(1); Fischer v. Phila. Elec. Co., 994 F.2d 130, 133 (3d Cir.1993) ("Fischer I"). Therefore, when a plan administrator explains plan benefits to its employees, it acts in this fiduciary capacity. Int'l Union, United Auto., Aerospace & Agr. Implement Workers v. Skinner Engine Comp., 188 F.3d 130, 148 (3d Cir.1999). Section 404(a) of ERISA, 29 U.S.C. § 1104, is the touchstone for understanding the scope and object of an ERISA fiduciary's duties. Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1299 (3d Cir.1993). The section establishes that a fiduciary shall act exclusively for the benefit of participants and "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 would use in the conduct of an enterprise of a like character and with like aims." 29 U.S.C. § 1104(a)(1)(B).
The Third Circuit has repeatedly held that a fiduciary in this context may not materially mislead those to whom these statutory duties of loyalty and prudence are owed. In re Unisys Say. Plan Litig., 74 F.3d 420 (3d Cir.1996); Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 238 (3d Cir.1994); Bixler, 12 F.3d at 1300; Fischer I, 994 F.2d at 135. Thus, a plan administrator breaches its fiduciary duty under ERISA if it makes material misrepresentations to plan participants concerning employee benefits. "Put simply, when a plan administrator speaks, it must speak truthfully." Fischer I, 994 F.2d at 135. The breadth of the fiduciary 234*234 duty is not limited to a prohibition of affirmative misrepresentations, as the duty "entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful." Bixler, 12 F.3d at 1300. Therefore, the failure to give certain relevant information regarding benefits to beneficiaries might lead to liability if the administrator fails to communicate "those material facts, known to the fiduciary but unknown to the beneficiary, which the beneficiary must know for its own protection." Glaziers & Glassworkers Union Local No. 252 Annuity Fund v. New-bridge Sec., Inc., 93 F.3d 1171, 1182 (3d Cir.1996). The knowledge of the fiduciary may give rise to such a duty to disclose even in the absence of a specific request by the beneficiary because "absent such information, the beneficiary may have no reason to suspect that it

should make inquiry into what may appear to be a routine matter." Glaziers, 93 F.3d at 1181.
Overall, a successful claim for breach of fiduciary duty under ERISA for a misrepresentation requires a plaintiff to demonstrate that: (1) defendant company was acting as a fiduciary; (2) defendant made affirmative misrepresentations or failed to adequately inform plan participants and beneficiaries; (3) the information misrepresented or not disclosed was material; and (4) plaintiffs relied on the misrepresentation to their detriment. See Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450, 459 (3d Cir.2003); Daniels v. Thomas & Betts Corp., 263 F.3d 66, 73 (3d Cir.2001); International Union, United Auto., 188 F.3d at 148; In re Unisys Corp. Retiree Med. Benefits "ERISA" Litig., 57 F.3d 1255, 1264-1265 (3d Cir. 1995) ("Unisys I"). A misleading statement or omission is material if there is a "substantial likelihood" that the misrepresentation would "mislead a reasonable employee in making an adequately informed decision about if and when to retire." Unisys I, 57 F.3d at 1264.
2. Analysis
Although Claims Six and Seven contain similar allegations based upon the action and inaction of Defendants, each arises under a different statutory provision. By way of preliminary matter, the Court notes that despite Plaintiffs' attempt to structure these claims as arising under § 102 and § 404, ERISA does not provide an automatic cause of action for the violation of every provision. Rather, ERISA provides specific enforcement provisions. In this case, it appears that Plaintiffs should have pursued their § 102 and § 404 claims by way of § 502 since this section provides a specific cause of action for statutory violations of ERISA. As such, the Court will address these claims within the context of this statutory provision.
a. Claim Seven: Section 404 and 502(a)(3) of ERISA
The Court will now address Plaintiffs' claim for equitable relief under section 502 based upon Defendants' alleged breach of fiduciary duty in connection with the issuance of the SPD. It is first necessary to determine whether Plaintiffs may properly raise a claim for equitable relief under § 502 for AT & T's alleged violation of § 404 despite their available remedies under § 502(a)(1)(B). Section 502(a)(1)(B) states that a "(a) . . . civil action may be brought—(1) by a participant or beneficiary— . . . (B) . . . to enforce his rights under the terms of the plan." Id. This section allows an individual participant or beneficiary of a plan to enforce his rights, and to bring an action for violation of an ERISA provision, such as § 102. Section 502(a)(3) provides that "(a) . . . [a] civil action may be brought— . . . (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or 235*235 practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan."
Courts have construed this "catchall" section to allow individual beneficiaries to recover equitable relief for breaches of fiduciary duties by plan fiduciaries. See Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); Ream v. Frey, 107 F.3d 147, 153 (3d Cir. 1997). The Third Circuit has adopted Justice Brennan's concurrence in the

Supreme Court case, Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), holding that Section 502(a)(3) authorizes a court to award "appropriate equitable relief' directly to a participant to "`redress any act or practice which violates any provision of this title' including a breach of the statutorily created fiduciary duty of an administrator." Bixler, 12 F.3d at 1298 (quoting Massachusetts Mutual, 473 U.S. at 153, 105 S.Ct. 3085) (emphasis in original).
It thus appears initially that § 502(a)(3) may afford Plaintiffs an equitable remedy[22] for Defendants' alleged breach of the fiduciary duty to keep beneficiaries informed as raised in Claim Seven. Specifically, Plaintiffs allege that Defendants' failure to fully explain and disclose the relative values of the different options offered to Plaintiffs at the time of the cash balance transition breached Defendants' fiduciary duty to keep the Plaintiffs, as beneficiaries, informed. (Pl. Br. Summ. J. at 35-37). Plaintiffs' Complaint does not appear to request monetary damages based on the alleged breach, and thus, the Court will construe this claim as one which seeks an equitable remedy.
The Supreme Court and the Third Circuit, however, have limited the availability of an action seeking equitable relief under § 502(a)(3) for breach of fiduciary duty to situations where ERISA does not provide a plaintiff with an alternate remedy. Varity, 516 U.S. at 515, 116 S.Ct. 1065; Ream, 107 F.3d at 152. In Varity, plaintiffs sued their employer, the plan administrator, claiming that the employer violated its fiduciary obligations when it tricked employees into withdrawing from its welfare benefit plan established under ERISA. 516 U.S. at 492, 116 S.Ct. 1065. Plaintiffs sought an order from the court which would reinstate each plaintiff as a participant in the plan. Id. The district court entered summary judgment for the employees and defendants appealed. Id. On appeal, the Supreme Court determined that plaintiffs who were no longer plan members were authorized to bring an action under the catchall provision, § 502(a)(3), for appropriate equitable relief based on defendants's breach of fiduciary duty. Varity, 516 U.S. at 515, 116 S.Ct. 1065. The Court based its reasoning in that case on the fact that Plaintiffs had no other available remedy under ERISA for the alleged misrepresentations other than § 502(a)(3). Id.
In Varity, plaintiffs were no longer members of the plan at issue and thus could not bring an action under § 502(a)(1)(B) to enforce their right to information, nor could plaintiffs proceed under § 502(a)(2) because that provision does not provide a remedy to individual beneficiaries. Id. The Varity Court reasoned that § 502(a)(3) should be available to 236*236 plaintiffs "for injuries caused by violations that § 502 does not elsewhere adequately remedy." Id. at 512, 116 S.Ct. 1065. However, as stated by the Third Circuit, "[w]here Congress otherwise has provided for appropriate relief for the injury suffered by a beneficiary, further equitable relief ought not be provided." Ream, 107 F.3d at 152.
Here, to the best of this Court's knowledge, Plaintiffs are currently members of the AT & TMPP and thus, have the ability to proceed under § 502(a)(1)(B) for Defendants' alleged violation of § 102. The Varity decision is thus inapplicable since Plaintiffs possess an alternative means to recover for Defendants' alleged failure to disclose certain information in the SPD. The Court does not thus determine that they may also sustain a claim under § 502(a)(3) for an alleged breach of fiduciary duty based upon a violation of § 102 or other ERISA section relating to SPD's. Summary judgment is hereby granted to Defendants and denied as to Plaintiffs. The Court does not thus deem it necessary to reach any remaining

arguments of the parties with respect to this claim. Claim Seven is hereby dismissed with prejudice.
b. Claim Six: Section 102 of ERISA
Plaintiffs allege that through the SPD, "AT & T informed its employees that the `best features' of the existing plan were being preserved and that their benefits `will grow steadily' under cash balance."[23] (Pl. Br. Summ. J. at 30). Plaintiffs assert that comparative information relating to the old and new plans was suppressed and that "restrictions on the actual payment of the cash balance plan's pay and interest credits were `minimized, rendered obscure or otherwise made to appear unimportant"' within the SPD in violation of 29 C.F.R. 2520.102-2(b). Plaintiffs repeatedly allege that the SPD failed to disclose "benefit reductions" which occurred as a result of the transition to cash balance. In their submissions to the Court, Plaintiffs allege that the SPD distributed in 1998 was "not written in a manner calculated to be understood by the average plan participant" and was not "sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan" in violation of § 102. 29 U.S.C. § 1022(a). Further, Plaintiffs allege that the summary plan description was not distributed in a manner that ensured "actual receipt" by each participant. See 29 C.F.R. 2520.104b-1(b). Plaintiffs also base their allegation that Defendants violated § 102 and its applicable regulations on their claim that AT & T did not distribute the SPD in a manner which ensured "actual receipt" nor did Defendants keep records of the mailings.
Claim Six asserts various content-based and distribution-based objections to the SPD. Plaintiffs rely on the report of their actuarial expert, Poulin, for their argument that the SPD does not disclose that the cash balance conversion reduces benefits and how those reductions occur in violation of § 102(a)(1). (Pl. Br. Summ. J. at 25). Poulin identified four features of the Plan which allegedly cause participants to "lose benefits they might otherwise reasonably expect to receive" after conversion, including his observations that: "(a) the rate of future benefit accruals is significantly lower, with further drops after age 55; (b) the initial cash balance accounts often represent less than one-half of the value of the participant's previously accrued benefits at age 55; (c) the conversion factors used to establish those initial 237*237 account balances favored younger employees over older employees; and (d) by establishing the initial account balances at as low as one-half of the value of previously-earned benefits and then providing that participants can receive future cash balance accruals only in conjunction with those initial account balances, AT & T created up to 13 year wear-aways during which participants earned no additional benefits." (Pl. Br. Summ. J. at 25). These allegations are presented in detail in ¶¶ 173-184 of the Plaintiffs' Statement of Material Facts.
Plaintiffs also enlisted their communications expert, James Stratman[24] ("Stratman"), to analyze the SPD in an effort to determine whether Poulin's identified changes were disclosed in the document. (Pl. Br. Summ. J. at 26). Stratman concluded that the SPD failed to adequately explain changes AT & T made to the early retirement schedule and determined that the plan description and accompanying brochures "actually misled participants as to some of them." (Pl. Br. Summ. J. at 26).

As a remedy for Defendants' alleged violations, Plaintiffs request the Court to grant equitable relief. (Pl. Br. Summ. J. at 32-35). Plaintiffs state that the "appropriate equitable relief for AT & T's deliberately inadequate disclosures is to continue the features of the prior formula whose elimination or modification was not disclosed," (Pl. Br. Summ. J. at 35), seemingly a claim under § 502(a)(3) for "other appropriate equitable relief' since Plaintiffs make no claim for money, damages. 29 U.S.C. § 1132(a)(3). Since Plaintiffs request equitable relief for Defendants' alleged violations of § 102, this Court must first determine whether Plaintiffs may properly state a claim for appropriate equitable relief based upon a violation of section 102 of ERISA before reaching the merits of such claims.
Claim Six alleges that AT & T committed various reporting and disclosure violations in conjunction with the issuance of the SPD. Courts in this Circuit construe such violations to constitute "procedural violations" of ERISA. See Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1168 (3d Cir.1990). The Third Circuit recognizes only two causes of action that apply to remedy procedural violations. Id. at 1167. The first, § 502(a)(4), allows a plan participant to sue "for appropriate relief" in the case of violations of § 105(c) of ERISA, a section not raised at any point in the Complaint before this Court. For all other reporting and disclosure violations, an aggrieved plan participant must bring an action under § 502(a)(1)(A) "for the relief provided in [section 502(c) ]." 29 U.S.C. § 1132(a)(1)(A). In relevant part, § 502(c) holds an administrator personally liable to the participant for an amount not to exceed $100 per day for each day the administrator refuses to turn over requested information, or for "such other relief as [the court] deems proper." 29 U.S.C. § 1132(c)(1)—(3). Significantly, however, § 502(c) does not appear to provide a specific remedy for an administrator's failure to comply with the requirements of § 102.[25]
238*238 After reviewing the Complaint and subsequent submissions to the Court, it does not appear that Plaintiffs allege claims which arise under either § 502(a)(4) or § 502(a)(1)(A), the only provisions available to remedy procedural violations of ERISA. Rather, it appears to the Court that Plaintiffs structure Defendants' alleged reporting and disclosure and distribution violations into claims arising under § 502(a)(1)(B) to recover pension benefits "due to [them] under the terms of [their] plan," 29 U.S.C. § 1132(a)(1)(B) and for appropriate equitable relief under § 502(a)(3), 29 U.S.C. § 1132(a)(3), a claim of equitable estoppel.
In Hozier, the Third Circuit rejected the Ninth Circuit's holding in Blau v. Del Monte Corp., 748 F.2d 1348 (9th Cir.1984), cert denied 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985), and held that "[t]he injury produced by reporting and disclosure violations as such is remediable under ERISA, of course, just not remediable under section 502(a)(1)(B)." Hozier, 908 F.2d at 1169. The Hozier Court analyzed the detailed remedial scheme of ERISA and concluded that if Congress had meant to offer section 502(a)(1)(B) as a remedy for procedural violations, it would have done so. Id. Instead, the Court determined that "a participant aggrieved by any reporting and disclosure violation has an available, though limited, remedy under section 502(a)(1)(A)." Id. The Hozier Court declined to employ section 502(a)(1)(B) "as a device to undercut the limitations built into section 502(a)(1)(A)" and affirmed the district court's grant of summary judgment to defendants with respect to this claim. Id. at 1170.
The Third Circuit has "repeatedly held that under ordinary circumstances defects in fulfilling the reporting and disclosure requirements of ERISA do not give rise to a substantive

remedy other than that provided for in section 502(a)(1)(A) of that Act." Ackerman v. Warnaco, Inc., 55 F.3d 117, 124 (3d Cir.1995) (citations omitted). In Jordan v. Federal Express Corp., 116 F.3d 1005, 1011 (3d Cir.1997), the Third Circuit determined that the district court had properly dismissed the plaintiff's § 502(a)(3) claim based upon defendants' alleged statutory reporting and disclosure violations. The Court noted that the Circuit had "previously held that `substantive remedies are generally not available for violations of ERISA's reporting and disclosure requirements'" and thus, dismissal of the plaintiffs' § 502(a)(3) claim for equitable remedies was appropriate. Id. (quoting Ackerman, 55 F.3d at 124).
Defendants here, oppose and move for summary judgment on the basis that Plaintiffs request substantive, equitable relief that is unavailable to remedy violations of ERISA's reporting and disclosure requirements. (Def. Br. Summ. J. at 41-42). Plaintiffs, however, assert that the Third Circuit's decision in Burstein v. Ret. Account Plan for Employees of Allegheny Health Educ. & Research, 334 F.3d 365 (3d Cir.2003), is the controlling precedent, and allows substantive relief for inadequate disclosures in an SPD. (Pl. Br. Opp. Summ. J. at 30). Defendants argue in response that Burstein does not support this proposition since the case did not involve a claim like Plaintiffs', that is, one based upon disclosure and reporting violations. (Def. Br. Reply at 15). This Court agrees.
The plaintiffs in Burstein raised an equitable estoppel claim, a claim for benefits 239*239 based on a conflict between the language of the plan and of the SPD, and a claim for the administrator's alleged breach of fiduciary duty. Burstein, 334 F.3d 365. Although Burstein involved a cash balance plan, it shows no further similarity to the case presently before this Court and thus is inapplicable to Plaintiffs' contention that Plaintiffs are able to recover substantive relief for AT & T's alleged violations of ERISA's reporting and disclosure provisions. In Burstein, the plaintiff raised an equitable estoppel claim which the Court analyzed under § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3). Id. at 383. The court of appeals affirmed the district court's dismissal of this claim, invoking the holding in another Third Circuit case, Kurz v. Philadelphia Elec. Co., 96 F.3d 1544, 1553 (3d Cir.1996). Burstein, 334 F.3d at 383. In Kurz, the Court noted that "we [the Third Circuit] have consistently rejected estoppel claims based on simple ERISA reporting errors or disclosure violations, such as a variation between a plan summary and the plan itself, or an omission in the disclosure documents." 96 F.3d at 1553 (citation omitted).
Thus, to the extent that Plaintiffs attempt to assert an independent right of action under section 102 of ERISA against AT & T for its alleged violations of the reporting and disclosure requirements, this Court is inclined to dismiss this separate cause of action since Plaintiffs are unable to bring a claim under either § 502(a)(1)(B) or § 502(a)(3) of ERISA.
However, despite the fact that substantive remedies are generally unavailable for violations of ERISA's reporting and disclosure requirements, the Third Circuit recognizes an exception for situations "where the plaintiff can demonstrate the presence of `extraordinary circumstances.'" Ackerman, 55 F.3d at 124-25 (citing Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir.1991)). This situation is akin to that of an equitable estoppel claim under § 502(a)(3)(B) of ERISA. To successfully make a case for equitable estoppel under ERISA, a plaintiff must establish (1) the existence of a material

representation; (2) reasonable and detrimental reliance on the misrepresentation, and (3) extraordinary circumstances. Int'l Union, United Automobile, 188 F.3d at 151.
"A material representation is defined as `any provision of a plan subject to ERISA that establishes a benefit.'" Gashlin v. Prudential Ins. Co. of America Retirement System for U.S. Employees and Special Agents, 286 F.Supp.2d 407, 419 (D.N.J.2003) (quoting Curcio v. John Hancock Mutual Life Insurance Co., 33 F.3d 226, 237 (3d Cir.1994)). "Reasonable and detrimental reliance is established when a claimant suffers an injury because he reasonably relied upon a material representation." Gashlin, 286 F.Supp.2d at 420 (citing Curcio, 33 F.3d at 237). In this Circuit, courts have interpreted the requirement of "extraordinary circumstances" to include "[s]uch circumstances . . . where the employer has acted in bad faith, or has actively concealed a change in the benefit plan, and the covered employees have been substantively harmed by virtue of the employer's actions." Ackerman, 55 F.3d at 125 (citations omitted).
The Third Circuit to date has not provided a clear definition of what circumstances rise to the level of "extraordinary." Rather, it has been noted that the Third Circuit has "rel[ied] upon case law to establish its parameters." Kurz, 96 F.3d at 1553. In order to successfully demonstrate extraordinary circumstances, this Circuit has required plaintiffs to show affirmative acts of fraud or inequitable conduct by an employer, continuing misrepresentations over a course of dealing, or plaintiffs' particular vulnerability. Kurz, 240*240 96 F.3d at 1553. Most relevant here, the Third Circuit has held that extraordinary circumstances may exist where a plaintiff repeatedly and diligently makes inquiries regarding benefits and the defendant repeatedly misrepresents the scope of offered benefits to the plaintiff. Smith, 6 F.3d at 142.
The Third Circuit has "acknowledged that reporting and disclosure violations can `wreak especially substantial harm' in the context of a dispute over the validity of a plan alteration." Ackerman, 55 F.3d at 125 (quoting Hozier, 908 F.2d at 1168-69 n. 15). However, the instances of extraordinary circumstances cited supra "demonstrate that a plaintiff must do more than merely make out the `ordinary elements' of equitable estoppel to establish a claim for equitable estoppel under ERISA." Kurz, 96 F.3d at 1553. (citations omitted). "Because of these heightened requirements, [the Circuit] ha[s] consistently rejected estoppel claims based on simple ERISA reporting errors or disclosure violations, such as a variation between a plan summary and the plan itself, or an omission in the disclosure documents." Kurz, 96 F.3d at 1553 (citing Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1142 (3d Cir.1993); Gridley, 924 F.2d at 1319).
In Ackerman, the Court reversed the district court's grant of summary judgment for the defendants on plaintiffs' claim that defendants acted in bad faith and actively concealed the rescission of a portion of a welfare benefits plan. 55 F.3d at 125. The Third Circuit determined that genuine issues of material fact existed with respect to defendants' behavior in disclosing or concealing certain changes to the benefits plan which were not appropriate for summary judgment. Id. In Ackerman, the plaintiffs alleged that explanatory meetings were scheduled but never held, a plan handbook was never distributed to employees explaining the change, and a letter from a company executive only referred to "changes" to the severance plan, not the total elimination thereof. Id. at 124. In response, defendants explained that these allegations were the product of "mere bureaucratic `bungling.'" Id. at

125. The district court accepted this explanation, but the Third Circuit instead reversed and remanded for further findings relating to these allegations. Id.
Here, Defendants move for summary judgment on the basis that Plaintiffs have not, and cannot, prove the existence of extraordinary circumstances as needed to proceed with Claim Six. Plaintiffs respond that they have sufficiently demonstrated that AT & T actively concealed less favorable parts of the SPD from participants which satisfies the Third Circuit interpretation of extraordinary circumstances. (Pl. Br. Opp. Summ. J. at 32). In support of their contention that Defendants engaged in active concealment, Plaintiffs cite to minutes of communications meetings discussing the cash balance transition, opinions of AT & T managers garnered during focus groups, deposition testimony, a videotape and various other documents. (Pl. Br. Opp. Summ. J. at 32). Plaintiffs allege that "[i]n this case, active concealment permeates the record." (Pl. Br. Opp. Summ. J. at 32).
The Court will now evaluate Plaintiffs' arguments and citations to the record to determine whether, as a matter of law, Plaintiffs successfully demonstrate the presence of active concealment. The Court will limit its analysis of this element to allegations concerning the contents of the SPD, rather than distribution methods since Plaintiffs do not allege extraordinary circumstances in conjunction with distribution of the SPD. Significantly, the Court notes that Plaintiffs bear the burden of proof on all elements of an equitable estoppel claim, including extraordinary circumstances. 241*241 See Gillis, 4 F.3d 1137, 1142 (3d Cir.1993).
First, Plaintiffs allege that "minutes of communications meetings specifically talk about not disclosing the `bad parts' of cash balance and ask `Why would we want to tell people that the special update is higher than Cash Balance?'" (Pl. Br. Opp. Summ. J. at 32). Assuming arguendo that Defendants do not object to the admissibility of these meeting minutes, the Court nevertheless determines that these documents do not demonstrate active concealment. The record contains language set forth in various "Meeting Notes" which reflects AT & T's desire to "sell Cash Balance" to participants by refraining from telling "the bad parts upfront." (Meeting Notes, 9/12/97 Meeting,; Pl. Exh. 73 at 1). However, statements like these, and others cited to by Plaintiffs, do not demonstrate that AT & T attempted to withhold, or withheld, the "bad parts" of cash balance altogether. Rather, it appears to the Court that AT & T was cognizant of the possibility that the implementation of cash balance was likely to receive negative feedback from employees and wished to reduce this type of occurrence.[26] The record does not reflect, nor do Plaintiffs demonstrate to this Court, that AT & T did anything more than "spin" the Plan transition to make it more palatable for employees. This Court does not find that this rises to the level of active concealment present in Ackerman.
Next, Plaintiffs assert that focus groups of AT & T managers "repeatedly asked AT & T, with no success, for disclosures about whether cash balance `reduces benefits.'" (Pl. Br. Opp. Summ. J. at 32). In support of this statement, Plaintiffs refer the Court to statements summarizing comments made during manager-comprised focus groups assembled in June and September, 1997. (Pl. Stmt. Facts ¶¶ 104; 105). Plaintiffs rely on a power-point slide presentation created in 1997 by the Boston Research Group for AT & T which included a summary of the focus group findings, and provided in relevant part:

Managers want to see:
— More detail on "Cash Balance." — Comparison of old vs. new. — An explanation of `why' Pension Plan is being changed. — More precision in language ("retirement-related").
(Exh. 8 to Bosley Report at 20; Pl.App. at 006272) (emphasis original). Significantly, this language was written by the Boston Research Group and does not reflect a direct quotation from an employee of AT & T. Further, this portion of the record does not appear to establish that AT & T actively concealed any benefits or change in benefits from participants. Plaintiffs have provided no legal support for their proposition that a participant's interpretation of the Plan's language as confusing, or needing further clarification, constitutes active concealment. Nor does the Court conclude that asking for information during a focus group equates to Plaintiffs' characterization of employees as having "repeatedly asked AT & T, with no success, for disclosures." (Pl. Br. Opp. Summ. J. at 32).
Next, Plaintiffs assert that "[d]eposition testimony and a videotape show that AT & T purposefully avoided comparisons of the plan's old and new benefits because it did not want employees to see the reductions." (Pl. Br. Opp. Summ. J. at 32). After examination of the relevant portions of Plaintiffs' Statement of Material Facts and portions 242*242 of the record referred to therein, the Court does not conclude that the record establishes that AT & T purposefully avoided the provision of benefit comparisons "because it did not want employees to see the reductions." (Pl. Br. Opp. Summ. J. at 32). Rather, from the record, it appears to the Court that the primary reason why AT & T did not provide benefit comparisons was because of the fluidity of its pension benefit plan calculations. In fact, the videotape which Plaintiffs rely upon to prove their point instead proves that of Defendants'.[27] In the transcript of a videotaped training session led by Ken Willetts ("Willetts"), an employee of AYCO, a company who was to lead cash balance seminars for employees, Willetts explains why it makes little sense to provide comparisons to employees. (Transcript of Videotape; Def.App. at 1903, 43:13-45:14). Willetts states that since each employee will undoubtedly calculate his or her pension benefit under the old formula based on existing assumptions regarding the pay base averaging period, they will likely reach the conclusion that his or her benefit will decrease as a result of the transition to cash balance. (Id.). However, since this calculation will be based on assumptions which will vary for each participant, Willetts advises that it does not make sense to provide a general comparison of benefits for employees. (Id.). This Court does not construe Willett's rationale as evidence that AT & T actively concealed benefit changes from Plaintiffs. Further, Plaintiffs have not provided this Court with legal authority for their claim that AT & T was even required to provide such a comparison.
Finally, Plaintiffs claim that "[o]ther documents reveal intentional withholding of information about conversion factors, the difference between opening balances and the value of previously-earned benefits, and the relative values of benefit options." (Pl. Br. Opp. Summ. J. at 32). This Court has examined the entire record, paying special attention to each portion of the record cited by Plaintiffs, and is unable to determine that the record contains evidence which shows that AT & T intentionally withheld information from the Plaintiffs. To

be sure, not every facet of the Plan was described in painstaking detail within the SPD, but such disclosures are not mandated by ERISA nor by the Third Circuit. In fact, Plaintiffs again, do not point to legal authority that supports their claim that AT & T was required to disclose the cash balance conversion factors or differences in the relative values of participants' benefits.
Defendants assert that there is no support for Plaintiffs' allegations of active concealment within the record and that "[t]he SPD fully complied with ERISA and the regulations, containing everything it had to." (Def. Br. Reply at 16). Defendants assert that the alleged omissions from the SPD which form the basis for Claim Six merely evidence Plaintiffs' dissatisfaction with the statutorily-permitted changes which AT & T implemented to the Plan. (Def. Br. Summ. J. at 43). Defendants state that "the omissions or deficiencies to which plaintiffs object could only have affected benefits that they wished AT & T would have continued offering, and not benefits to which they might have been legally entitled." (Def. Br., Summ. J. at 43).
The Third Circuit has not expressly ruled out the possibility of voiding a plan amendment that is the subject of a reporting and disclosure violation, Hozier, 908 243*243 F.2d at 116869 n. 15. Further, this "remedy is appropriate in situations of active concealment." Ackerman, 55 F.3d at 125 n. 8. But the Ackerman Court also cautioned "that an inference of bad faith or active concealment does not arise simply from a failure to comply with ERISA's reporting or disclosure requirements" and requires analysis of the factual context of the particular case. Id. Here, the Court does not determine that any evidence in the record or offered by the Plaintiffs demonstrates that AT & T actively concealed any change in benefits available under the Plan. Even if Plaintiffs were able to prove a reporting or disclosure-based violation, Plaintiffs are still required to demonstrate extraordinary circumstances in the form of active concealment in order to recover equitable relief. The Court has reviewed the SPD, paying particular attention to the portions relating to the cash balance transition, and finds no indicia that the Defendants intentionally withheld information from the Plaintiffs. Further, Plaintiffs have not shown affirmative acts of fraud, particular vulnerability, or inequitable conduct by Defendants. Kurz, 96 F.3d at 1553. As such, this Court determines that, as a matter of law, Plaintiffs fail to demonstrate the existence of extraordinary circumstances.
Since Plaintiffs are unable to demonstrate the existence of extraordinary circumstances, Plaintiffs' claim for equitable relief based on procedural violations of ERISA must fail. Plaintiffs' motion for summary judgment with respect to Claim Six is hereby denied and the motion of Defendants is granted. Claim Six is hereby dismissed.
CONCLUSION
For the reasons set forth above, Plaintiffs' motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED in part and DENIED in part.
An appropriate order follows.

[1] Although Plaintiffs' and Defendants' Appendices filed in conjunction with the summary judgment motions were originally filed under seal, all necessary parties ultimately consented to unseal all documents. As such, this opinion will not be filed under seal.
[2] As explained herein, the Court will not consider the motions for summary judgment with respect to Claims Ten and Twelve. Thus, the Court treats the motions as partial.
[3] The Court refers only to undisputed facts unless otherwise noted.
[4] As set forth in Section 10.01 of both the 1996 and 1998 restated Plan, titled "Power to Amend," "[t]he board of directors of AT & T or its delegate, may from time to time make changes in the Plan as set forth in this document, or terminate such Plan, but such changes or termination shall not affect the rights of any individual, without his or her consent, to any benefit or pension to which he or she may have previously become entitled hereunder."
[5] § 204(h) has since been amended to require that the notice be sufficient to enable participants to understand the amendment's effect. 29 U.S.C. § 1054(h)(2), as amended by Pub.L. No. 107-16 § 659(b), effective Jan. 1, 2002.
[6] Plaintiffs assert that Defendants made more than one amendment to the Plan. Plaintiffs allege that the 4/97 Resolutions did not constitute the only amendment to the Plan. Plaintiffs argue that later Resolutions constituted subsequent, separate amendments, and thus, Defendants' notice is deficient since it was provided after the effective date of these purported amendments. (Pl. Br. Opp. Summ. J. at 14). The Court does not determine that this is a necessary analysis to undertake within the context of § 204(h) notice. Even if, for the sake of argument, Defendants made several rather than one amendment to the Plan, if none of these resulted in a "significant reduction in the rate of benefit accrual," no notice would be necessary. 29 U.S.C. § 1054(h)(1). Thus, it is worthwhile first to examine whether any such reduction exists before addressing the arguments of Plaintiffs relating to the provision of or sufficiency of notice with regard to these alleged post hoc amendments.
[7] The aforementioned regulation was issued by the Internal Revenue Service on December 15, 1995 as a temporary regulation governing the operation of § 204(h). By their terms, these temporary regulations governed plan amendments "adopted on or after December 15, 1995, and amendments effective by the terms on or after January 2, 1996." Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed.Reg. 64,324 (Q & A-15(b)).
[8] The Court notes that Defendants vehemently challenges Poulin's qualifications and determinations. However, for the purposes of this motion, the Court will address such challenges only when specifically relevant to the Court's analysis. An opinion on Defendants' pending appeal of the Magistrate Judge's opinion is forthcoming.
[9] Here, Plaintiffs argue that Defendants' arguments are merely an attempt to re-litigate standing, an issue previously decided by Judge Politan. However, even assuming that Plaintiffs have standing, they must still prove the substance of § 204(h). Judge Politan's determination that Plaintiffs "proffered sufficient evidence which tended to counter the Defendants' contention that none of the named Plaintiffs will suffer a reduction in annual benefits commencing at age sixty-five by virtue of the Plan amendment," does not indicate that such evidence is controlling or persuasive at this juncture. (Slip Op. Dated Nov. 19, 2001, 12-13).
[10] Plaintiffs challenge Defendants' reliance on a Certification prepared by Kevin Armant. (Pl. Br. Opp. Summ. J. at 10). However, the Court determines that it need not reach the merits of this particular argument. There is enough evidence in the record, including that which has been offered by the Plaintiffs' expert, Poulin, to support the Court's determinations. The Court does not need to rely upon the Armant documents to reach its conclusions with respect to Plaintiffs' § 204(h) claim.
[11] Significantly, regulations subsequently adopted in 1998 confirm this interpretation. In the regulations' introduction, it is stated that "the final regulations retain the rule of the proposed and temporary regulations that, for purposes of section 204(h), an amendment to a defined benefit plan affects the rate of future benefit accrual only if it is reasonably expected to change the amount of the future annual benefit commencing at normal retirement age." Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed.Reg. 68,680 (December 14, 1998) (emphasis added).
[12] The Court notes that Plaintiff also alleges that Defendants violated ERISA §§ 104(b)(2) and (b)(4), 29 U.S.C. §§ 1024(b)(2) and (b)(4), because Defendants failed to make certain Plan documents available for inspection by Plan

participants. (Pl. Br. Summ. J. at 10). However, this claim does not appear anywhere in Complaint, nor have Plaintiffs requested leave to add such a claim. Inasmuch as the claim has been improperly pleaded by way of Plaintiffs' brief, it will not be addressed by the Court.
[13] The subsequent resolutions occurred in November, 1997 ("11/97 Resolutions") and December, 1997 ("12/97 Resolutions").
[14] As Plaintiffs term it, the calculation would be based on the "cumulative `plus' provision." (Pl. Br. Summ. J. at 10).
[15] Plaintiffs state that "[p]articipants who chose cash payment options before October 16, 2000 must have their benefits computed without any retroactively-adopted restriction, i.e., their benefit options should be based on the Special Update annuity if this was their higher benefit." (Pl. Br. Summ. J. at 10). As described in the Honorable William G. Bassler's opinion dated October 17, 2002, the "Special Update" was a mechanism and formula used to compute each participant's benefit amounts following the transition to cash balance and to provide the opening amount for each cash balance account.
[16] The Fourth Affirmative Defense alleges that "Plaintiffs' claims are barred by their failure to exhaust remedies provided by the AT & T Management Pension Plan." (Answer, p. 13). The Fifth Affirmative Defense alleges that "Plaintiffs' claims are barred by their failure to exhaust administrative remedies." (Id.). This language clearly raises failure to exhaust as a defense.
[17] Burlingame held the position of head of AT & T's Human Resources organization.
[18] Byrnes held the position of Secretary of the Compensation and Employee Benefits Committee.
[19] Since this does not constitute a ruling on the merits of Plaintiffs' claims, the Court will dismiss these claims without prejudice. D'Amico, 297 F.3d at 293-94.
[20] Since the Sixth and Seventh Claim both pertain to alleged deficiencies in the 1998 SPD, and Plaintiffs repeatedly refer to Defendants' alleged violation of § 102 in terms of "fiduciary duty," the Court has determined that these two claims are best addressed within the same portion of this Court's Opinion. See Pl. Br. Summ. J. at 28, 30 (referencing § 102 duties and fiduciary duties); Pl. Br. Summ. J. at 32-33 (discussing proof of detrimental reliance within the context of a fiduciary duty claim).
[21] In moving and opposition briefing, Plaintiffs also invoke language which refers to Defendants's fiduciary responsibilities in conjunction with issuance of the SPD, section 204(h) notice rules, and rules governing the issuance of a summary of material modification ("SMM"). However, since these claims have not been properly pled in the Complaint within the context of Plaintiffs' Sixth Claim, the Court will disregard any arguments relating to them for the purposes of this motion.
[22] The Court notes that on Page 35 of the Plaintiffs' Brief for Summary Judgment, the Plaintiffs assert that "the appropriate equitable relief for AT & T's deliberately inadequate disclosures is to continue the features of the prior formula whose elimination or modification was not disclosed." (Pl. Br. Summ. J. at 35).
[23] However, the Court notes that the preceding statement of the Plaintiffs relies upon conclusions contained within the expert reports of both Stratman and Poulin, not the language of the SPD itself as it appears from the text of Plaintiffs' brief.
[24] The Court notes that the parties presently dispute the qualifications of Stratman and the relevancy of his testimony and conclusions. However, for the purposes of the instant analysis, these challenges are irrelevant.
[25] In the view of this Court, the language of § 502(c) which may provide equitable relief to Plaintiffs can be found in § 502(c)(3). This provision states that "[a]ny employer maintaining a plan who fails to meet the notice requirement of § 101(d) . . . or who fails to meet the requirements of § 101(e)(2) . . . or who fails to meet the requirements of § 302(d)(12)(E) . . . may in the court's discretion be liable to such participant or beneficiary or to such person in the amount of $100 a day from the date of such failure, and the court may in its discretion order such other relief as it deems proper." 29 U.S.C. § 1132(c)(3) (emphasis added). However, Plaintiffs make no reference to this provision in any submission to the Court. Accordingly, the Court will not proceed with a substantive analysis of § 502(c)(3).

[26] AT & T does not deny that the transition to cash balance saved them a significant amount of money in administration of its pension plan. This Court, however, is unwilling to construe these savings as evidence of active concealment.
[27] For the purposes of the instant analysis, the Court assumes arguendo, that the tape and transcript thereof are admissible.

 
 Engers v. AT&T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 3359722

2006 WL 3359722 Only the Westlaw citation is currently available.
NOT FOR PUBLICATION United States District Court, D. New Jersey.
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr & Gerald Smit, individually and on behalf of
all others similarly situated, Plaintiffs, v.
AT & T CORPORATION and the AT & T Management Pension Plan, Defendants.
Civil Action No.: 98–3660 (JLL). |
Nov. 20, 2006.
Attorneys and Law Firms
Jonathan I. Nirenberg, Resnick Nirenberg & Siegler, Roseland, NJ, Neil H. Deutsch, Deutsch Atkins, PC, Hackensack, NJ, for Plaintiffs.
Christopher H. Mills, Fisher & Phillips, LLP, Somerset, NJ, for Defendants.
OPINION
LINARES, District Judge.
*1 This matter comes before the Court on the motion of Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr & Gerald Smit (“Plaintiffs”) for reconsideration of this Court’s Opinion and Order dated March 31, 2006 (the “Opinion and Order”) and the motion of Defendants AT & T Corporation and the AT & T Management Pension Plan (collectively “Defendants”) for clarification of the Opinion and Order. The Court has considered all submissions in support and in opposition to these motions. No oral argument was heard. Fed.R.Civ.P. 78. For the reasons set forth in this Opinion, Plaintiffs’ motion is denied and Defendants’ motion is granted.

BACKGROUND
This Court’s Opinion and Order addressed motions for summary judgment filed by Plaintiffs and Defendants, respectively. Plaintiffs had moved for summary judgment as to Counts Three, Four, Five, Six, Seven, Ten and Twelve of the Fourth Amended Complaint. Defendants moved for summary judgment as to Counts Three, Four, Five, Six, and Seven. The Court denied Plaintiffs’ motion without prejudice to the extent that it related to Counts Ten and Twelve since the Court determined that these claims were not properly part of the Fourth Amended Complaint at the time the motion was filed.
Turning to the remaining counts, the Court denied Plaintiffs’ motion and granted Defendants’ motion as to Count Three and dismissed such claim with prejudice. (Op. at 11). The Court also denied Plaintiffs’ motion and granted Defendants’ motion as to Count Four and Five and dismissed these claims without prejudice to be re-filed after exhaustion of administrative remedies. (Op. at 27). Finally, the Court denied summary judgment to Plaintiffs and granted same to Defendants with respect to Counts Six and Seven. The Court dismissed Count Seven with prejudice and dismissed Count Six without stating whether such dismissal was with, or without, prejudice. (Op. at 50). The Opinion, at page 2, and the accompanying Order both stated however, that Defendants’ motion was granted in part and denied in part.
LEGAL STANDARD
Motions for reconsideration are governed by Local Civil Rule 7.1(i). This Rule provides, in relevant part:
A motion for reconsideration shall be served and filed within 10 business days after the entry of the order or judgment on the original
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Engers v. AT&T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 3359722
motion by the Judge or Magistrate Judge. A brief setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked shall be filed with the Notice of Motion.

DISCUSSION

L. Civ. R. 7.1(i). Prior to reaching the merits of a motion for reconsideration, the court must determine whether the arguments are appropriately raised under the Local Rule. Holten v. Chevron, U.S.A., 2002 U.S. Dist. LEXIS 10151, *4 (D.N.J. May 20, 2002). “The motion may address only those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue.” Id. (citing Student Pub. Interest Research Group of N.J. v. Monsanto Co., 727 F.Supp. 876, 878 (D.N.J.), aff’d, 891 F.2d 283 (3d Cir.1989)). Relief by way of motion for reargument is “an extraordinary remedy” that is to be granted “very sparingly.” Yurecko v. Port Auth. Trans–Hudson Corp., 279 F.Supp.2d 606, 608 (D.N.J.2003); Sagaral v. Mountainside Hosp., 2001 U.S. Dist. LEXIS 6872, *3 (D .N.J. Mar. 27, 2001); NL Indus., Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J.1996). Only in circumstances “where matters were overlooked and which, if considered by the Court, might reasonably have resulted in a different conclusion, will the Court entertain such a motion.” Bowers v. N.C.A.A., 130 F.Supp.2d 610, 613 (D.N.J.2001).
*2 The purpose of a motion for reargument is “to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171 (1986); Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 532 (D.N.J.1998). The motion may not be used to re-litigate old matters or argue new matters that could have been raised before the original decision was reached. P. Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J.2001); NL Indus., 935 F.Supp. at 516; 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d., § 2810.1 (1995). Mere disagreement with the Court will not suffice to show that the Court overlooked relevant facts or controlling law, United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J.1999), and should be dealt with through the normal appellate process, S.C. ex rel. C.C. v. Deptford Township Bd. of Educ., 248 F.Supp.2d 368, 381 (D.N.J.2003).

A. Plaintiffs’ Motion for Reconsideration Plaintiffs move for reconsideration of this Court’s Opinion and Order with respect to the Third, Sixth and Seventh counts of the Fourth Amended Complaint on the basis that this Court overlooked dispositive factual matters and controlling law. (Pl. Br. at 1). Alternatively, Plaintiffs request that the Court clarify the basis for certain of its decisions. (Pl. Br. at 2).
1. Count Three With respect to Count Three, Plaintiffs contend that the Court misread exhibits attached to a July 2001 Affidavit (“Poulin Affidavit”) of Plaintiffs’ expert Claude Poulin (“Poulin”) when reaching its decision to grant summary judgment to Defendants and dismiss Count Three. (Pl. Br. at 2). Plaintiffs contend that the Court conflated the Poulin Affidavit with Poulin’s expert report that was dated October 3, 2003 (“Poulin Declaration”). Plaintiffs argue that the Court erroneously compared the benefits available under Cash Balance with the benefits under the “Prior Plan Formula” instead of comparing the benefits under Cash Balance with the benefits available under the Special Update. (Pl. Br. at 4). Plaintiffs also argue that this Court misinterpreted the language of the applicable treasury regulation. (Pl. Br. at 5). Essentially, Plaintiffs argue that if this Court had considered the Poulin Declaration instead of the Poulin Affidavit, it would have reached the conclusion that the Cash Balance transition required Defendants to provide § 204(h) notice.
Defendants oppose reconsideration and argue that Plaintiffs have not established the existence of a proper basis for reconsideration of the Opinion and Order. Defendants argue that the Court followed established law and correctly compared the appropriate benefit amounts in reaching its determination to grant summary judgment to Defendants on Count Three.
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Engers v. AT&T Corp., Not Reported in F.Supp.2d (2006)
2006 WL 3359722
After considering the arguments of Plaintiffs and Defendants, and carefully reviewing the Opinion and Order and all exhibits cited to by the parties, the Court hereby denies Plaintiffs’ motion for reconsideration and/or clarification with respect to Count Three. Although the Court in its Opinion and Order mistakenly referred to the Poulin Affidavit as an “expert report” in conjunction with its analysis of Count Three, the Court’s reasoning and determinations still stand even after revisiting both the Poulin Affidavit and Poulin Declaration. Plaintiffs fail to raise any matters of fact or issues of law that this Court overlooked in reaching its decision. Holten, 2002 U.S. Dist. LEXIS 10151, *4 (D.N.J. May 20, 2002) (citations omitted). Even after reviewing the Poulin Declaration, the Court shall rest upon its interpretation of the applicable statutes and regulations and its ultimate determination that Count Three should be dismissed. The Poulin Declaration does not constitute a matter that was overlooked by this Court, rather, the Poulin Declaration presents an alternative legal theory which was fully argued by the Plaintiffs during summary judgment briefing and which was rejected by this Court.
*3 Further, the Court has reviewed the attachments to the Poulin Affidavit, paying special attention to the figures reached both by Poulin, the Plaintiffs’ expert, and Kevin Armant (“Armant”), the Defendants’ actuary. Poulin and Armant reached the same figures for Plaintiffs Smit, Engers, and Noerr’s age–65 accrued benefit under both the Prior Plan Formula and Cash Balance. For each of these Plaintiffs, the projected accrued benefit available under Cash Balance is higher than that available under the Prior Plan Formula. For Plaintiff McFall, the figures reached by Poulin were slightly higher than those reached by Armant, but McFall’s projected accrued benefit at age–65 is still higher under Cash Balance than under the Prior Plan Formula. Accordingly, the Court’s original conclusion was properly supported by the exhibits to the Poulin Affidavit, nor contrary to the Poulin Declaration. Plaintiffs’ motion for reconsideration with respect to Count Three is hereby denied.
2. Count Six Plaintiffs move for reconsideration of the Opinion and Order with respect to Count Six of the Fourth Amended Complaint. Plaintiffs argue that this Court did not follow the precedent of Burstein v. Allegheny, 334 F.3d 365 (2003) in reaching its decision to dismiss Count Six and

grant summary judgment on this claim to Defendants. Alternatively, Plaintiffs ask this Court to reconsider its decision to grant summary judgment to Defendants and hold a bench trial on disputed factual issues. (Pl. Br. at 10).
Defendants oppose Plaintiffs’ request for reconsideration on the basis that Plaintiffs merely rehash arguments already made to the Court during summary judgment briefing. Defendants also argue that Plaintiffs’ request for a bench trial on factual issues constitutes mere disagreement with the Court’s decision and should consequently be disregarded. (Def. Br. Opp’n at 11).
A motion for reconsideration may not be used to re-litigate old matters. P. Schoenfeld, 161 F.Supp.2d at 352; N.L. Indus., 935 F.Supp. at 516; 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d., § 2810.1 (1995). Plaintiffs argue that this Court overlooked a controlling decision, that is, Burstein. However, this Court did not overlook this decision. Rather, the Court read Burstein and determined that it was distinguishable from the present situation and thus, inapplicable. (Op. at 41–42). It is thus apparent that this Court did not overlook this Third Circuit decision, but merely disagreed with Plaintiffs’ interpretation of its holding. This does not constitute a sufficient basis for reconsideration. Further, the Court determines that a bench trial on alleged factual disputes is not warranted in this matter. The Court granted summary judgment as a matter of law to Defendants with respect to Count Six, and in the process, necessarily determined that no genuine disputes of material fact existed. Accordingly, Plaintiffs’ request for a bench trial on alleged disputed facts runs contrary to the Court’s holding, and may thus be characterized as mere disagreement with the Court’s holding. Plaintiffs’ motion for reconsideration with respect to Count Six is hereby denied.
3. Count Seven *4 Plaintiffs move for reconsideration of the Opinion and Order with respect to Count Seven of the Fourth Amended Complaint. Plaintiffs argue that the Court misread and misapplied applicable precedent as well as overlooked legal support which Plaintiffs offered in their summary judgment submissions. Specifically, Plaintiffs contend that the Court did not address Plaintiffs’ argument concerning the “ ‘relative value’ of benefit
3

Engers v. AT&T Corp., Not Reported in F.Supp.2d (2006)
2006 WL 3359722
options” in conjunction with certain disclosure regulations and Third Circuit case-law. (Pl. Br. at 14–15).
Defendants oppose Plaintiffs’ motion on the basis that it fails to provide a proper basis for reconsideration. Defendants argue that Plaintiffs merely disagree with the Court’s holding and that the Court did not overlook any controlling decision. In support of their position, Defendants note that Plaintiffs cite to non-binding court decisions from the Second Circuit and two District Court cases from outside of the District of New Jersey. (Def. Br. Opp’n at 13). With respect to Plaintiffs’ “relative value” argument, Defendants argue that such a claim is not even present in the Fourth Amended Complaint, as argued in Defendants’ summary judgment submissions, and thus the Court was correct to disregard related arguments in its decision. (Def. Br. Opp’n at 13).
In essence, Plaintiffs argue that this Court overlooked controlling decisions as well as their “relative value” argument and supporting regulations in reaching its decision with respect to Count Seven. In addition to disagreeing with this Court’s interpretation and application of the Supreme Court decision Varity Corp. v. Howe, 516 U.S. 489 (1996), Plaintiffs argue that the Third Circuit decision in Burstein allows a plaintiff to pursue a claim related to the sufficiency of a summary plan description under § 502(a)(1)(B) of ERISA. However, as Defendants note, Burstein does not address the specific question of whether a plaintiff may pursue duplicative statutory and fiduciary duty claims for the same alleged violation. See Burstein, 334 F.3d 365. Further, the Second and Eleventh Circuit cases cited to by Plaintiffs, as well as the District Court cases, clearly do not constitute “controlling decisions” sufficient to establish a proper basis for reconsideration. L. Civ. R. 7.1(i).
Plaintiffs also argue that this Court should reconsider its decision because the Court did not address Plaintiffs’ allegation, in conjunction with Plaintiffs’ fiduciary duty claim, that Defendants failed to disclose the “ ‘relative values’ of benefit options.” (Pl. Br. at 14). In reaching its decision to dismiss Count Seven, the Court held that Plaintiffs may not pursue a breach of fiduciary duty claim which seeks an equitable remedy because Plaintiffs have the ability to proceed under ERISA § 502(a)(1)(B) to recover for Defendants’ alleged violation of ERISA § 102. (Op. at 36). Since the Court determined that Plaintiffs were unable to pursue a fiduciary claim for Defendants’ alleged failures to disclose, the Court stated that it would not thus reach “any remaining arguments of the parties with respect to this claim.” (Op. at 37). Thus,

contrary to Plaintiffs’ argument in support of reconsideration that the Court failed to consider Plaintiffs’ “relative values” claim, it is apparent that the Court did not overlook such an argument. Rather, the Court did not specifically analyze these arguments because it had already determined that Plaintiffs were unable to bring such a claim, whether based on “relative values” or not. Plaintiffs merely seek to re-litigate old matters that were raised before the Court during summary judgment briefing. Such does not constitute an appropriate basis for reconsideration, and Plaintiffs’ motion is hereby denied with respect to Count Seven.
B. Defendants’ Motion for Clarification *5 Defendants move for clarification of the Opinion and Order. Defendants request this Court to clarify certain language contained in the Opinion and Order and revise the text of the Opinion and Order. Namely, Defendants seek to have the Court amend its Opinion and Order “(1) to reflect the grant of defendants’ motion for summary judgment in its entirety, and (2) to specify that the Sixth Claim for Relief of the Fourth Amended Complaint is dismissed ‘with prejudice.’ “ (Def. Br. at 3).
As Defendants point out in their brief submitted in conjunction with their motion for clarification, the Court, at page 2 of the Opinion, and page 1 of the Order, stated that Defendants’ motion for summary judgment had been granted in part and denied in part. However, Defendants argue that since Claims Three, Four, Five, Six and Seven were all dismissed by the Court, this language should have reflected the fact that Defendants’ motion for summary judgment was granted in its entirety, not granted in part and denied in part.
Defendants also request this Court to specify that Count Six was dismissed “with prejudice.” In support of this request, Defendants note that in the absence of specification, a claim is deemed to have been dismissed on the merits, or with prejudice. (Def. Br. at 2) (citing Napier v. Thirty or More Unidentified Fed’l Agents, 855 F.2d 1080, 1087 (3d Cir.1988)).
Plaintiffs oppose Defendants’ motion for clarification on the basis that the Opinion and Order accomplishes its intended purpose. Plaintiffs argue that it is unnecessary to make any editorial changes to the Opinion and Order. However, the Court notes that Plaintiffs’ brief opposition
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Engers v. AT&T Corp., Not Reported in F.Supp.2d (2006) 2006 WL 3359722

only addresses one of Defendants’ requests. Plaintiffs’ submission does not specifically address Defendants’ request that the Court clarify that the dismissal of Count Six was with prejudice.

Accordingly, Defendants’ motion for clarification is granted. The Court will issue an Amended Order reflecting both of these changes.

In light of this Court’s denial of Plaintiffs’ motion for

reconsideration of the Opinion and Order and the Court’s

consideration of Defendants’ arguments in support of

clarification, the Court hereby grants Defendants’ motion. The Court neglected to specify that Count Six was

CONCLUSION

dismissed with prejudice, but it is clear from the text of the Opinion and after consideration of the basis for the Court’s decision that such dismissal was with prejudice. Further, since the Court dismissed1 Counts Three, Four,

For the foregoing reasons, Plaintiffs’ motion for reconsideration is denied and Defendants’ motion for clarification is granted.

Five, Six and Seven, and denied Plaintiffs’ motion

without prejudice as to Counts Ten and Twelve, there can be no question that Defendants’ motion for summary

All Citations

judgment was granted in its entirety. The Court inadvertently stated that Defendants’ motion for summary

Not Reported in F.Supp.2d, 2006 WL 3359722

judgment was granted in part and denied in part.

Footnotes

1

The Court notes that its dismissal of Counts Four and Five was without prejudice.

5

 
 Engers v. AT & T, Not Reported in F.Supp.2d (2006) 2006 WL 3626945
2006 WL 3626945 Only the Westlaw citation is currently available.
United States District Court, D. New Jersey.
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr, and Gerald Smit, individually and on behalf
of all others similarly situated, Plaintiffs, v.
AT & T and AT & T Management Pension Plan, Defendants.
No. Civ.A. 98–3660(SRC). |
Dec. 12, 2006.
Attorneys and Law Firms
Jonathan I. Nirenberg, Resnick Nirenberg & Siegler, Roseland, NJ, Neil H. Deutsch, Deutsch Atkins, PC, Hackensack, NJ, for Plaintiffs.
Christopher H. Mills, Fisher & Phillips, LLP, Somerset, NJ, for Defendants.

intervening change in the controlling law; (2) the availability of new evidence that was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” See Johnson v. Diamond State Port Corp., 50 Fed. Appx. 554, 560 (3d Cir.2002) (citing Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999)); L. CIV. R. 7.1(i).
As to the motion for reconsideration of the Order dismissing the First and Second Claims, the parties do not dispute that the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) constitutes an intervening change in the controlling law. Defendants’ sole argument in opposition is that the Supreme Court published Smith in March of 2005, and that this Court should find Plaintiffs’ delay of a year and one-half to be inexcusable. Defendants do not do more than state that there is no excuse for the delay; they do not claim to have suffered prejudice.
Defendants cite no legal authority to guide this Court in its determination of what delay is excusable. Although decided in a different context, it is helpful to look to the Supreme Court’s analysis of excusable neglect in cases of filing delay in Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993):

ORDER
CHESLER, U.S.D.J.
*1 This matter comes before the Court on the motion for reconsideration (Docket Entry No. 287) by Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively, “Plaintiffs”) of two Orders: 1) this Court’s Order of June 29, 2000 (Docket Entry No. 62), which, inter alia, dismissed with prejudice the First and Second Claims of the Amended Class Action Complaint; and 2) this Court’s Order of June 6, 2001 (Docket Entry No. 79), which, inter alia, dismissed the Ninth Claim of the Second Amended Class Action Complaint.
“A court may grant a motion for reconsideration if the moving party shows one of the following: (1) an

[In] determining what sorts of neglect will be considered “excusable,” we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.
Similarly, the matter before this Court calls for an
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Engers v. AT & T, Not Reported in F.Supp.2d (2006)
2006 WL 3626945
equitable determination, taking into account all relevant circumstances. Defendants do not claim prejudice, nor that the delay will have a significant impact on the judicial proceedings, nor that Plaintiffs acted in bad faith.
In the absence of even a claim of prejudice, this Court does not perceive how delay alone provides a basis for denying a motion for reconsideration when controlling law has changed. Defendants cite no authority for their position that denial of reconsideration is compelled by the lack of excuse for the delay. Because there is no dispute that there has been an intervening change in the controlling law, Plaintiffs’ motion for reconsideration of this Court’s Order of June 29, 2000, dismissing with prejudice the First and Second Claims of the Amended Class Action Complaint, will be granted.
*2 In contrast, with regard to the motion for reconsideration of this Court’s Order of June 6, 2001, Plaintiffs cite no intervening change in controlling law. Plaintiffs do cite proposed Treasury regulations, since withdrawn, and a number of district court decisions, some in accord and some not. Plaintiffs do not cite any circuit cases whatever, no less Third Circuit or Supreme Court authority.
As there does not appear to have been an intervening change in controlling law, this Court is bound by the law of the case doctrine, which governs the disposition of this motion. This doctrine militates against re-deciding issues of law previously resolved in the same case, either expressly or by implication. Public Interest Research Group of N.J., Inc. v. Magnesium Elecktron, Inc., 123 F.3d 111, 116 (3d Cir.1997). As the Third Circuit has indicated, it is only when there are “extraordinary

circumstances,” such as an intervening change of controlling law, that a court’s reconsideration of an issue decided earlier in the course of litigation is warranted. Id. at 116–17. In the absence of a showing of extraordinary circumstances, the law of the case doctrine bars re-deciding the issue of the dismissal of the Ninth Claim of the Second Amended Class Action Complaint, and Plaintiffs’ motion for reconsideration of this Court’s Order of June 6, 2001 will be denied.
For the reasons stated above,
IT IS on this 12th day of December, 2006:
ORDERED that Plaintiffs’ motion for reconsideration (Docket Entry No. 287) is GRANTED IN PART, as to this Court’s Order of June 29, 2000, dismissing with prejudice the First and Second Claims of the Amended Class Action Complaint; and it is further
ORDERED that this Court’s Order of June 29, 2000 (Docket Entry No. 62) is hereby VACATED IN PART as to the dismissal of the First and Second Claims of the Amended Class Action Complaint; and it is further
ORDERED that Plaintiff’s motion for reconsideration (Docket Entry No. 287) is DENIED IN PART, as to this Court’s Order of June 6, 2001.
All Citations
Not Reported in F.Supp.2d, 2006 WL 3626945

2

 
 Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 14585

2007 WL 14585 Only the Westlaw citation is currently available.
NOT FOR PUBLICATION United States District Court, D. New Jersey.
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr, and Gerald Smit, individually and on behalf
of all others similarly situated, Plaintiffs, v.
AT & T and AT & T Management Pension Plan, Defendants.
Civil Action No. 98–3660 (SRC). |
Jan. 3, 2007.
Attorneys and Law Firms
Jonathan I. Nirenberg, Resnick Nirenberg & Siegler, Roseland, NJ, Neil H. Deutsch, Deutsch Atkins, PC, Hackensack, NJ, for Plaintiffs.
Christopher H. Mills, Fisher & Phillips, LLP, Somerset, NJ, for Defendants.
OPINION
CHESLER, U.S.D.J.
*1 This matter comes before the Court on two motions. Defendants AT & T and AT & T Management Pension Plan (collectively, “Defendants” or “AT & T”) move for judgment on the pleadings, pursuant to FED.R.CIV.P. 12(c). Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively, “Plaintiffs”) move for partial summary judgment, pursuant to FED.R.CIV.P. 56. For the reasons set forth below, both motions will be DENIED.

BACKGROUND
This case arises out of disputes over an AT & T Pension Plan (the “Plan”). The background to this case has been stated in previous Opinions in this case—most recently, the Opinion of March 30, 2006—and will not be repeated here.
The instant motions concern two paragraphs in the Fourth Amended Class Action Complaint (“FAC”), ¶ 88A in the Tenth Claim and ¶ 94A in the Twelfth Claim. Defendants have moved for judgment on the pleadings, asking that these paragraphs of these claims be dismissed. Plaintiffs have cross-moved for partial summary judgment on these paragraphs.
ANALYSIS
I. Legal Standards
A. Rule 56 Motion for Summary Judgment Summary judgment is appropriate under FED.R.CIV.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’ “ Marino v.. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a
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2007 WL 14585
genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)). “[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130–31 (3d Cir.1995). “[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990); see also FED.R.CIV.P. 56(e) (requiring nonmoving party to “set forth specific facts showing that there is a genuine issue for trial”). “A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001).
*2 If the nonmoving party has failed “to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial, ... there can be ‘no genuine issue of material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.1992) (quoting Celotex, 477 U.S. at 322–23).
B. Rule 12(c) Motion for Judgment of the Pleadings The standard for a motion for judgment on the pleadings under FED.R.CIV.P. 12(c) is the same as that for a motion to dismiss under FED.R.CIV.P. 12(b). See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir.2004) (“There is no

material difference in the applicable legal standards”).
On a motion to dismiss for failure to state a claim, pursuant to FED.R.CIV.P. 12(b)(6), the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384–85 (3d Cir.1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397–98 (3d Cir.2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Morse v. Lower Merion School District, 132 F.3d 902, 906 n. 8 (3d Cir.1997). All reasonable inferences, however, must be drawn in the plaintiff’s favor. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). Moreover, the claimant must set forth sufficient information to outline the elements of his or her claims or to permit inferences to be drawn that the elements exist. See FED.R.CIV.P. 8(a)(2); Conley, 355 U.S. at 45–46. “The defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005).
II. The Rule 12(c) and Rule 56 motions as to ¶ 88A
A. Defendants’ 12(c) motion Defendants’ primary argument in support of their motion is that it is impossible for Plan § 4.06(a)(ii) to violate 29 U.S.C. § 1054(b)(1)(B) (the “133 1/3% rule”). This, even if true, cannot justify granting their motion, because it relies on an unjustified, restrictive reading of the text of ¶ 88A. AT & T construes ¶ 88A in a way that rewrites it
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Engers v. AT&T, Not Reported in F.Supp.2d (2007)
2007 WL 14585
with a major limitation: AT & T reads ¶ 88A as if “the amended Plan document” means “Plan § 4.06(a)(ii) of the amended Plan document.” AT & T does not justify or even acknowledge its insertion of this limitation, nor does this Court perceive a basis for it. The plain language of ¶ 88A includes the entire amended Plan document within its scope and does not limit it to any particular provision. Having misconstrued the scope of ¶ 88A, Defendants’ 12(c) motion on this paragraph cannot succeed.
*3 AT & T attempts to use Judge Bassler’s October 17, 2002 Opinion to limit ¶ 88A. It does appear from that Opinion, which ruled on Defendants’ motion to dismiss the Third Amended Complaint, that Plaintiffs’ arguments and the Court’s decision to dismiss Count Ten concerned Plan § 4.06(a)(ii). (October 17, 2002 Opinion at *6–*10.) This does not, however, constrain the interpretation of ¶ 88A. Magistrate Judge Hedges, in his Order of November 17, 2004, ordered that “Plaintiffs may plead the following new legal theories as set forth in Paragraphs 88A and 94A of the proposed Fourth Amended Class Action Complaint.” (Order of November 17, 2004 ¶ 1.) This language clearly expresses the understanding of the Court that ¶ 88A presented a new legal theory and, as such, was not limited by arguments already presented.
Moreover, to the extent that Defendants seek to constrain ¶ 88A by relying on any of the Court’s prior rulings on the Tenth Claim in the Third Amended Complaint,1 this runs contrary both to their previous statement and to this Court’s previous decision. Defendants appealed the November 17, 2004 Order by the Magistrate Judge to the district court. In their brief, Defendants argued that “new paragraph 88A adds an entirely different claim.” (Defs.’ Appeal Br., Docket Entry No. 233, at 14.) Defendants now appear to take the opposite position, that the scope of ¶ 88A is restricted by the old claim.
Moreover, in deciding the appeal, the Court considered Defendants’ argument and found the distinction between claims and new legal theories to be “both illusory and irrelevant.” (Opinion of Sept. 13, 2005 at 3.) The Court affirmed the Magistrate Judge’s Order. It is quite clear that the Court allowed Plaintiffs to amend their Complaint to plead new matters.
In this context, it appears that Defendants are now attempting to limit the impact of the leave to amend granted two years ago by reading ¶ 88A to restrict it to old matters. This is contrary to the Court’s previous decision. As such, this Court reads ¶ 88A as a new legal theory and does not find that its scope is limited to Plan § 4.06(a)(ii).

In support of their Rule 12(c) motion, Defendants first argue that ¶ 88A fails to state a claim because Plan § 4.06(a)(ii) cannot violate the 133 1/3% rule, as § 4.06(a)(ii) sets forth the formula for calculating early retirement benefits, and ERISA § 204(b)(1)(B) addresses only normal retirement benefits. This Court need not reach the merits of this argument because, even if true, it is insufficient to show that the entire amended Plan document cannot violate the 133 1/3% rule.
Next, Defendants argue that the Plan does comply with the 133 1/3% rule, as shown in exhibits cited in FAC ¶ 84. Again, this Court need not reach the merits of this argument because, even if true, the fact that four exhibits show no violation is insufficient to demonstrate that it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45–46. As to ¶ 88A, Plaintiffs’ motion for judgment on the pleadings will be denied.
B. Plaintiffs’ motion for partial summary judgment *4 Plaintiffs’ brief in support of its motion for partial summary judgment on ¶ 88A suffers from many defects. Most significant among them is that it never gets down to the business of applying the 133 1/3% rule to the benefit accrual methods specified in the amended Plan document—the subject of ¶ 88A. Rather, Plaintiffs focus on other issues, particularly payment.
Plaintiffs begin their argument by contending that Plaintiff Noerr has not been paid the benefits that he accrued. (Pls.’ P.S.J. Br. 3–5.) This raises three questions that the parties have not examined. First, what does “payable” in the context of 29 U.S.C. § 1054(b)(1)(B) mean? Second, what does “payable” in the context of ¶ 88A mean? Third, do Plaintiffs’ arguments about payment come within the scope of the statute and the Complaint? None of these necessary questions has been addressed by the parties.
While the title of § 1054 is “Benefit accrual requirements,” payment is implicated in provision (b)(1)(B):
A defined benefit plan satisfies the
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Engers v. AT&T, Not Reported in F.Supp.2d (2007)
2007 WL 14585
requirements of this paragraph of a particular plan year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year.
This provision states two conditions that must both be met.2 Both sub-rules refer to the benefit “payable at [the] normal retirement age.” Whether or how this covers Plaintiffs’ complaints that their benefits have not been paid depends on interpretation of the word “payable,” both in ¶ 88A and 29 U.S.C. § 1054(b)(1)(B). Again, the parties have not briefed this issue, and this Court will not analyze it sua sponte. Before this Court can rule on Plaintiffs’ payment arguments, however, the parties will likely need to address these questions.
Plaintiffs point to the example of Plaintiff Noerr and compare an early retirement benefit with the actuarial equivalent of the normal retirement benefit. (Pls.’ P.S.J. Br. 3–5.) Plaintiffs do not explain how this issue is within the scope of 29 U.S.C. § 1054(b)(1)(B). Plaintiffs later return to this issue, but relate it to 29 U.S.C. § 1054(c)(3), which does contain an actuarial equivalence requirement. (Pls.’ P.S.J. Br. 12.) Plaintiffs were not, however, granted leave to amend their Fourth Amended Complaint to include a claim for violation of 29 U.S.C. § 1054(c)(3), and ¶ 88A does not refer to this provision. Plaintiffs do not explain the link between their argument and 29 U.S.C. § 1054(b)(1)(B).
As Defendants observe, Plaintiffs next attempt to turn the plain meaning of § 1054(b)(1)(B) on its head. Plaintiffs point to subsection § 1054(b)(1)(B)(iii), which provides that, for purposes of this paragraph, “the fact that benefits under the plan may be payable to certain employees before normal retirement age shall be disregarded.” Although this plainly instructs the reader to disregard the

payment of early retirement benefits, Plaintiffs attempt to use this as a rule limiting the accrual of early retirement benefits. (Pls.’ P.S.J. Br. 14.) This is manifestly contrary to the provision’s plain meaning. Moreover, 26 C.F.R. 1.411(b) 1(b)(2)(ii)(C) clearly states that the 133 1/3% rule does not apply to early retirement benefits.
*5 Plaintiffs next point to § 1054(b)(1)(B)(i), which provides that “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years.” Plaintiffs then misapply this provision in their “effective accrual” argument. (Pls.’ P.S.J. Br. 18–20.) The effective accrual argument holds that, if you look at Plaintiff Noerr’s annual accruals before the conversion, under the terms of the old Plan, and then look at his annual accruals after the conversion, under the terms of the new Plan, you see that the new Plan has the effect of causing zero accrual rates for some plan years, followed by a resumption of non-zero accrual rates. The theory is that these non-zero accrual rates exceed 133 1/3% of the zero accrual rates, thus violating the 133 1/3% rule.
This position is fatally flawed, and is undermined specifically by § 1054(b)(1)(B)(i). In making the “effective accrual” argument, Plaintiffs apply the 133 1/3% rule to a hybrid plan that does not comport with § 1054(b)(1)(B)(i). This provision requires that, in applying the 133 1/3% rule, one must look only at the provisions in force during the current year and apply them as if they had been in effect for all other plan years. This precludes the use of hybrid models in which the benefit accruals for some years are calculated according to one plan, while for other years the benefit accruals are calculated by another plan. To show that the accruals under the amended Plan violate § 1054(b)(1)(B), Plaintiffs must calculate the entire accrual history as if the amended Plan had been in effect for every year, as required by § 1054(b)(1)(B)(i). In making the “effective accrual” argument, Plaintiffs have overlooked this.
As to their motion for partial summary judgment on ¶ 88A, Plaintiffs have failed to carry their burden under Rule 56. Plaintiffs would bear the burden of proof on the issues in ¶ 88A at trial. Under the law of the Third Circuit, then, to prevail on a motion for partial summary judgment, Plaintiffs “must show affirmatively the absence of a genuine issue of material fact” and “must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” Bressman, 327 F.3d at 238. Plaintiffs have not even argued that they have met this
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Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 14585
burden, no less done so. Plaintiffs’ motion for partial summary judgment on ¶ 88A will be denied.
III. The Rule 12(c) and Rule 56 motions as to ¶ 94A In contrast to ¶ 88A, ¶ 94A does appear to be limited in scope to Plan § 4.06(a)(ii)(A)(2), which provides for a 6% benefit reduction for commencement before age 55. The FAC alleges that this provision violates 26 C.F.R. § 1.411(a)–11(a)(2). This regulation states:
Accrued benefit. For purposes of this section, an accrued benefit is valued taking into consideration the particular optional form in which the benefit is to be distributed. The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan. For example, a plan that provides a subsidized early retirement annuity benefit may specify that the optional single sum distribution form of benefit available at early retirement age is the present value of the subsidized early retirement annuity benefit. In this case, the subsidized early retirement annuity benefit must be used to apply the valuation requirements of this section and the resulting amount of the single sum distribution. However, if a plan that provides a subsidized early retirement annuity benefit specifies that the single sum distribution benefit available at early retirement age is the present value of the normal retirement annuity benefit, then the normal retirement annuity benefit is used to apply the valuation requirements of this section and the resulting amount of the single sum distribution available at early retirement age.

*6 26 C.F.R. § 1.411(a)–11(a)(2). This paragraph of the regulation provides a general definition for the section (“The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan”), followed by two examples. The two examples deal with single sum forms of distribution and have no application to Plan § 4.06(a)(ii), which does not provide for a single sum distribution.3
In their motion for judgment on the pleadings, Defendants offer a confused attempt to argue that, in view of the language of this regulation, ¶ 94A fails to state a valid claim. Defendants first point to the examples and argue that they say the opposite of what Plaintiffs claim. Because Plan § 4.06(a)(ii) does not entail a single sum distribution, the examples have no application to it. Whether they say one thing or its opposite about single sum distributions is irrelevant to an analysis of the monthly-for-life benefits specified in § 4.06(a)(ii). Defendants ignore the relevant and operative part of the regulation, the initial definition.
It is true that ¶ 94A mischaracterizes the meaning of 26 C.F.R. § 1.411(a)–11(a)(2): the regulation does not, as ¶ 94A implies, require that every distribution option for a subsidized early retirement benefit must be the actuarial equivalent of the subsidized benefit. Similarly, this Court notes that the case cited in ¶ 94A, Costantino v. TRW, Inc., 13 F.3d 969, 980 (6th Cir.1994), deals with lump sum distributions, rather than monthly payments for life. These observations by themselves, however, while raising doubt about the merit of the claim, are insufficient to demonstrate that there is no doubt that Plaintiffs can prove no set of facts which would entitle them to relief. The gist of ¶ 94A is that the 6% reductions violate 26 C.F.R. § 1.411(a)–11(a)(2). Defendants’ argument misses the mark and does not demonstrate that the 6% reductions cannot violate this regulation.
In response, Plaintiffs assert as truth what they wished the regulation said: “When a plan provides that an optional form of benefit is based on a subsidized early retirement benefit, the plan is required to offer at least the value of that benefit.” (Pls.’ Opp. Br. 31.) No authority—statutes, cases, regulations—is provided to support this assertion. Plaintiffs have not explained how their actuarial equivalence contentions have a basis in 26 C.F.R. § 1.411(a)–11(a)(2).
Plaintiffs’ other arguments are all meritless and bring them no closer to showing that they are entitled to
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Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 14585
judgment as a matter of law on ¶ 94A. Neither side has shown this Court what impact 26 C.F .R. § 1.411(a)–11(a)(2) has or does not have on the 6% reduction provision in Plan § 4.06(a)(ii)(A)(2). As to ¶ 94A, both Defendants’ motion for judgment on the pleadings and Plaintiffs’ motion for partial summary judgment will be denied.

CONCLUSION
For the reasons stated above, Defendants’ motion for judgment on the pleadings, pursuant to FED.R.CIV.P. 12(c), is DENIED. Plaintiffs’ motion for partial summary judgment, pursuant to FED.R.CIV.P. 56, is DENIED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 14585

Footnotes

1

See, e.g., Defs.’ Reply Br. 15–20.

2

This is also reflected in the relevant Treasury Regulation on the 133 1/3 % rule, 26 C.F.R. 1.411(b)–1(b)(2)(i), which

distinguishes the two sub-rules and labels them “A” and “B.”

3

Plan § 4.06(a)(ii)(A) states that “the Participant’s pension benefit, payable monthly, for his or her life, equals the

greater of ...” Pension benefits that are payable monthly for life cannot be single sum distributions.

6

 
 Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 1557163, 100 Fair Empl.Prac.Cas. (BNA) 1312...
2007 WL 1557163 United States District Court, D. New Jersey. Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr, and Gerald Smit, individually and on behalf
of all others similarly situated, Plaintiffs, v.
AT & T and AT & T Management Pension Plan, Defendants.
Civil Action No. 98–3660 (SRC). |
May 24, 2007.
Attorneys and Law Firms Jonathan I. Nirenberg, Resnick Nirenberg & Siegler, East Hanover, NJ, Neil H. Deutsch, Deutsch Atkins, PC, Hackensack, NJ, for Plaintiffs. Christopher H. Mills, Fisher & Phillips, LLP, Somerset, NJ, for Defendants.
OPINION
CHESLER, U.S.D.J. *1 This matter comes before the Court on the motion for conditional approval of ADEA collective action and authorization of notice to the class by Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively, “Plaintiffs”). For the reasons set forth below, the motion will be GRANTED, subject to certain modifications.
BACKGROUND

This case arises out of disputes over an AT & T Pension Plan (the “Plan”). Defendants are AT & T and AT & T Management Pension Plan (collectively, “Defendants” or “AT & T”). The background to this case has been stated in previous Opinions and will not be repeated here. The instant motion concerns the First and Second Claims in the Fourth Amended Class Action Complaint (“FAC”) which allege, in brief, that AT & T’s change from one particular defined benefit pension plan to a new cash balance pension plan discriminated against workers on the basis of age, in violation of the Age Discrimination in Employment Act (“ADEA”). In the instant motion, Plaintiffs seek conditional approval of ADEA collective action and authorization of notice to the class.
ANALYSIS
The ADEA allows groups of plaintiffs to maintain collective actions, incorporating by reference the standards of 29 U.S.C. § 216(b). 29 U.S.C. § 626(b). Trial courts in this circuit employ a two-step approach to certifying collective action that has been articulated by the Eleventh and Fifth Circuits:
The first determination is made at the so-called ‘notice stage.’ At the notice stage, the district court makes a decision—usually based only on the pleadings and any affidavits which have been submitted—whether notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class. If the district court ‘conditionally certifies’ the class, putative class members are given notice and the opportunity to ‘opt-in.’ The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for ‘decertification’ by the defendant usually filed after discovery is largely complete and the matter is ready for trial. At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.
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Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 1557163, 100 Fair Empl.Prac.Cas. (BNA) 1312...
If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice.
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001) (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–1214 (5th Cir.1995)). Decisions as to whether to facilitate notice to potential plaintiffs, and how to facilitate it, are matters entrusted to the district court’s discretion. Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).
*2 As Plaintiffs observe, Defendants’ opposition to their motion does not dispute the major points, raising a number of relatively minor issues. Defendants do not object to this Court’s granting the motion to conditionally approve an ADEA collective action and authorize notice.
Plaintiffs ask that this Court approve a definition of the group of potential opt-in plaintiffs consisting of three conjunctive criteria:
a) are former or current AT & T management employees; and
b) were age 40 or over on November 19, 2001, or on the date when their employment with AT & T ended, if later; and
c) participated in the AT & T Management Pension Plan both on December 31, 1996 and after the January 1, 1998 date when the cash balance formula went into effect.
Defendants disagree with two aspects of this definition: 1) the age cut-off date in the second provision should be January 1, 1998; and 2) the third provision should restrict the class to active employees rather than plan participants on the relevant dates.
As to the age 40 cut-off date, Defendants argue that it is the date of adoption of a facially neutral policy that is the act of discrimination and, since there is no dispute that the new plan was adopted with an effective date of January 1, 1998, the ADEA protects only those who were in the protected class on that date. In response, Plaintiffs argue that AT & T has applied this practice of discrimination continuously from 1998 to the present, and that the passage of time cannot protect AT & T from liability for its ongoing discrimination.

Defendants err in treating the effective date of an employment policy as the trigger for discrimination claims under a disparate impact theory. Under a disparate impact theory, when an employer adopts a discriminatory policy with a certain effective date, a cause of action for a particular plaintiff accrues on the date that the policy has a discriminatory effect against him or her. The operative event is not the creation of the policy, but the use of it to discriminate against an individual. Thus, for example, if a police department establishes a policy requiring all officer applicants to be able to lift weights of 100 pounds, effective January 1, 2000 and continuing thereafter, and this policy discriminates against female applicants, disparate impact claims are not limited to people who had applied as of January 1, 2000, but are available to those who apply thereafter and suffer from the later use of that policy to discriminate against them.
Defendants erroneously offer Lorance v. AT & T Technologies, 490 U.S. 900, 909 (1989) as authority for their position. The Supreme Court did not hold in Lorance, as Defendants assert, that “it is the adoption of a facially neutral policy or plan with discriminatory effects, not its subsequent application to individual plaintiffs, that is the act of discrimination.” (Defs.’ Opp. Br. 7 .) In Lorance, the Court held that a particular statutory provision in Title VII required that one particular claim of “discriminatory impact must be accompanied by proof of a discriminatory purpose,” referring to the employer’s purpose at the time of adoption of the discriminatory policy. Lorance, 490 U.S. at 909.
*3 In the instant case, Defendants have not pointed to any ADEA provision that would require Plaintiffs to prove discriminatory purpose at the time of adoption of the policy to prevail on their discriminatory impact claim. In the absence of such a provision, Lorance holds, the cause of action accrues when the discriminatory impact is felt. Id. at 908. Moreover, the Supreme Court, in Smith v. City of Jackson, 544 U.S. 228, 235 (2005), the decision which led to this Court’s restoring the First and Second Claims, held that disparate impact claims are available under the ADEA and do not require a showing of discriminatory intent. The Court noted that the ADEA’s “text focuses on the effects of the action on the employee rather than the motivation for the action of the employer.” Id. at 236. The relevant date is the date of the discriminatory effect on the employee, not of the discriminatory intent of the employer, as in the part of Lorance that Defendants point to. Restricting the class to plaintiffs eligible for protection under the ADEA on the plan effective date runs contrary
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Engers v. AT&T, Not Reported in F.Supp.2d (2007) 2007 WL 1557163, 100 Fair Empl.Prac.Cas. (BNA) 1312...
to this principle.
Defendants ask as well that the class be limited to those plan participants who were active employees both on December 31, 1996 and after January 1, 1998. Defendants provide no legal argument to justify this restriction. As the Eleventh Circuit noted in Hipp, at this first stage, the Court applies a lenient standard. Hipp, 252 F.3d at 1218. Defendants have not explained to this Court why Plaintiffs should be required to impose this additional condition. This Court approves Plaintiffs’ proposed definition of the group to receive notice, as articulated above.
As to the form of the notice itself, Plaintiffs have submitted a proposed notice, and Defendants have made a number of objections. The Court approves Plaintiffs’ proposed notice (“PN”) (Docket Entry No. 301–3) with the following modifications:
1. On PN page 1, the wording of the definitions of the class (both in the first paragraph, following “TO:,” and in the section under the heading “Composition of the Age Discrimination Class”) must be revised so that they accurately reflect the definition that the Court has approved, as stated in the body of this Opinion.
2. On PN page 1, the phrase “This Notice is to inform you about a class action lawsuit ...” is changed to “This Notice is to inform you about a pending lawsuit ...”
3. On PN page 1, the phrase “and to obtain double damages for willful violations of the ADEA” is deleted.
4. On PN page 2, Plaintiffs may not include the paragraph referring to a website. All communications between potential class members and counsel must be both rigorously monitored by the Court and documented in a record. Website communications do not meet these requirements.

5. This Court agrees with Defendants that this wording on PN page 2 could be misleading: “This means that even if the Plaintiffs win on their age discrimination claims, you will not receive any additional pension benefits or other relief.” Plaintiffs must revise the wording to reduce the potential for leading readers to believe that they must join the suit in order to receive any pension benefits.
*4 6. Plaintiffs may not give notice through newspaper advertisements or internet communications. Because Defendants will provide names and addresses of virtually all potential group members, broad solicitations are neither needed nor appropriate.
7. Plaintiffs have agreed to the bear the cost of updating the mailing list, and to modify the instructions for mailing and filing the opt-in forms so that originals of all consents are filed with the Clerk of the Court, in accordance with 29 U.S.C. § 216(b).
CONCLUSION
For the reasons stated above, Plaintiffs’ motion for conditional approval of ADEA collective action and authorization of notice to the class, subject to the modifications and conditions specified in the body of this Opinion, is GRANTED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 1557163, 100 Fair Empl.Prac.Cas. (BNA) 1312, 40 Employee Benefits Cas. 2773

3

 
 Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

2010 WL 2326211 NOT FOR PUBLICATION United States District Court, D. New Jersey.
Phillip C. ENGERS, Warren J. McFall, Donald G. Noerr, and Gerald Smit, individually and on behalf
of all others similarly situated, Plaintiffs, v.
AT & T, INC., AT & T Pension Benefit Plan, and AT & T Puerto Rican Pension Benefit Plan, Defendants.
Civil Action No. 98–3660 (SRC). |
June 7, 2010.
Attorneys and Law Firms
Maureen Binetti, Wilentz, Goldman & Spitzer, Woodbridge, NJ, Jonathan I. Nirenberg, Resnick & Nirenberg, PC, East Hanover, NJ, for Plaintiffs.
Christopher H. Mills, Patricia S. Robinson, Fisher & Phillips, LLP, Murray Hill, NJ, for Defendants.

partial summary judgment will be denied as moot.
BACKGROUND This case arises out of disputes over an AT & T Pension Plan (the “Plan”). The background to this case has been stated in previous Opinions and will not be repeated here. Defendants have moved for summary judgment on the First, Second, Fourth, Fifth, Tenth and Twelfth Claims. Plaintiffs have moved for partial summary judgment on the Fourth, Fifth, Tenth and Twelfth Claims. Defendants have also moved, in the alternative, for partial summary judgment on the claims of certain opt-in plaintiffs.
APPLICABLE LEGAL STANDARDS

OPINION
CHESLER, District Judge.
*1 This matter comes before the Court on three motions: 1) the motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, by Defendants AT & T, Inc., AT & T Pension Benefit Plan, and AT & T Puerto Rican Pension Benefit Plan (collectively, “Defendants”); 2) the motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, by Plaintiffs Phillip C. Engers, Warren J. McFall, Donald G. Noerr, and Gerald Smit (collectively, “Plaintiffs”); and 3) Defendants’ motion for partial summary judgment or, in the alternative, for decertification of class. For the reasons set forth below, Defendants’ motion for summary judgment will be granted in its entirety, and the two motions for

I. Motion for summary judgment Summary judgment is appropriate under FED. R. CIV. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’ ” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the
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Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)). “[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
*2 Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir.1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130–31 (3d Cir.1995). “[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990); see also FED. R. CIV. P. 56(e) (requiring nonmoving party to “set out specific facts showing a genuine issue for trial”). “A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001).
If the nonmoving party has failed “to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial, ... there can be ‘no genuine issue of material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.1992) (quoting Celotex, 477 U.S. at 322–23).
ANALYSIS

I. Summary judgment on the First and Second Claims AT & T moves for summary judgment on the First and Second Claims in the Fourth Amended Complaint, for discrimination on the basis of age in violation of the Age Discrimination in Employment Act (“ADEA”).
The gist of the First Claim in the Fourth Amended Complaint is that the “greater of” transition mechanism1 in the provisions of the cash balance Plan “discriminates on the basis of age by providing that older workers who are eligible for early retirement earn no additional benefits under the cash balance plan in the current year, the near-term and the long-term.” (Fourth Am. Compl. ¶ 40.) The First Claim alleges that this violates the ADEA, 29 U.S.C. §§ 623(a) and 626(b).
The factual allegations underlying the Second Claim in the Fourth Amended Complaint are quite similar and are based on the assertion that the application of the “greater of” mechanism discriminates on the basis of age. (Fourth Am. Compl. ¶¶ 51–53.) The parties have briefed the First and Second Claims together and apply the same arguments to both claims; neither party distinguishes between the claims, which will be discussed together in this Opinion. Both claims focus on the effects of the “greater of” mechanism on the earning of benefits during the wear-away period. While the First Claim specifies the ADEA provision at issue, the Second Claim alleges violation of the ADEA, but specifies no provision. (Fourth Am. Compl. ¶ 56.)
*3 The parties do not dispute that ADEA § 4, entitled “Prohibition of age discrimination,” contains the statutory provisions at issue. While Defendants contend that compliance with ADEA § 4(i) provides a complete defense to any claim for violation of § 4 related to benefit accruals, Plaintiffs assert that this is not so. In support, Plaintiffs point to some legislative history, S.Rep. No. 101–263, at 1525 (1990), previously cited by this Court in the Opinion of March 29, 2007. This legislative history does not help Plaintiffs, since it merely states that, should there be a circumstance in which the provisions of § 4(i) are inapplicable, claims may be resolved under § 4(f)(2). Plaintiffs have not demonstrated that the provisions of § 4(i) are inapplicable, nor have they invoked § 4(f)(2). Plaintiffs also offer a footnote that cites three cases without discussion: Ky. Ret. Sys. v. EEOC, 554 U.S. 135, 128 S.Ct. 2361, 171 L.Ed.2d 322 (2008); Lockheed Corp. v. Spink, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996); and Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). None of these cases is on point. As this Court has previously stated:
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“The meaning of § 4(i) is plain and unambiguous: if a plan complies with § 4(i), it complies with all benefit accrual requirements in § 4.” (Opinion of March 29, 2007 at 4.)
The parties do not dispute that both the First and Second Claims relate to benefit accruals. Thus, while the First Claim alleges violation of § 4(a), and the Second Claim does not specify a provision, judgment must be entered in favor of Defendants if the Plan complies with the requirements of ADEA § 4(i). The relevant test in this provision states:
(1) Except as otherwise provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits—
(A) in the case of a defined benefit plan, the cessation of an employee’s benefit accrual, or the reduction of the rate of an employee’s benefit accrual, because of age ...
Passing this test becomes a complete defense to any claim of violation of § 4 (relating to benefit accruals) because of § 4(i)(4), which states: “Compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.”
AT & T seeks summary judgment on the ADEA claims on the theory that the Plan’s compliance with § 4(i) provides a complete defense to any claim under § 4. AT & T bears the burden of proof of this defense at trial. At summary judgment, then, AT & T must present evidence of compliance with § 4(i), such that no reasonable jury could find in favor of Plaintiffs. AT & T first points to the method for establishing the initial cash balance accounts for Plan members. (Defs.’ 56.1 Stmt. ¶ 52.) This method provided that the initial credit to a participant’s cash balance account would be the product of the participant’s monthly special update benefit and a conversion factor based on age. (Id.) Plaintiffs agree that the conversion factors increased with age. (Pls.’ 56.1 Stmt. ¶ 52.) AT & T next points to the method for adding annual pay and interest credits to the cash balance accounts. (Defs.’ 56.1 Stmt. ¶ 53.) The method for computing pay credits utilized compensation percentages which increased with age. (Id. at ¶ 54, 55.) Plaintiffs admit that the pay credit percentages increase with age.2 (Pls.’ 56.1 Stmt. ¶ 54, 55.)

Defendants have pointed to sufficient evidence to persuade a reasonable jury that the Plan complies with the requirements of § 4(i), in that there is neither “cessation of an employee’s benefit accrual, or the reduction of the rate of an employee’s benefit accrual, because of age.” 29 U.S .C. § 623(i)(1)(A).
*4 The burden then shifts to Plaintiffs to offer evidence that raises a material factual dispute. Plaintiffs contend that Dr. Bardwell’s two expert reports raise a genuine issue of fact as to compliance with § 4(i). (Pls.’ Exs. 53, 54.) Dr. Bardwell’s reports do not accomplish what Plaintiffs contend, since they do not provide evidence that the Plan ceases benefit accrual or reduces the rate of benefit accrual because of age. In the first report, Dr. Bardwell performed two kinds of analyses. (Pls.’ Ex. 53.) First, he looked at the duration of the wear-away period and concluded that “the age of employees has a strong impact on the existence and length of wear-away.” (Id. at 8.) Next, he looked at benefits lost due to the plan conversion and concluded that older employees lost greater amounts of future retirement benefits than younger employees. (Id . at 12.) The second report presents further evidence related to these points. (Pls.’ Ex. 54.)
These analyses fail to address the subject matter of § 623(i)(1)(A), which is the rate of benefit accrual. In Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 68 (3d Cir.2007), the Third Circuit construed the ERISA counterpart to 29 U.S.C. § 623(i)(1)(A), which is 29 U.S.C. § 1054(b)(1)(H)(i).3 The Court examined the analysis of benefit accruals and held that one must distinguish the benefits that are inputs to a plan from the benefits that are outputs from a plan: “the ‘accrual’ of ‘benefit’ in section 1054(b)(1)(H)(i) refers to the credits deposited into the participant’s cash balance accounts, i.e., the inputs.” Id. Thus, following Register, 29 U.S.C. § 623(i)(1)(A) refers to the benefit accrual that is the input to a plan. Dr. Bardwell did not analyze inputs to the Plan. The wear-away period is neither an input nor an output, but a higher-level construct derived from output functions of the Plan. Lost benefits are outputs. Dr. Bardwell’s analyses are not relevant evidence of benefit accrual, within the meaning of 29 U.S.C. § 623(i)(1)(A). Defendants have presented evidence demonstrating that the Plan complies with § 4(i), and Plaintiffs have failed to present evidence that raises a material factual dispute.
Plaintiffs’ ADEA case centers on the operation of the “greater of” mechanism, which produces the phenomenon of the wear-away period. Plaintiffs have presented no
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evidence, however, that the “greater of” mechanism has any effect on the benefit accrual that is the input to the Plan. Rather, the undisputed evidence shows that, during the wear-away period, employees accrue benefits in their cash balance accounts continuously. Were this not the case, the wear-away period would never end. Plaintiffs have not shown that benefit accrual ceased, nor that its rate was reduced because of age. As to the First and Second Claims, for violation of ADEA § 4, Defendants have offered evidence that the Plan complies with § 4(i) and Plaintiffs have not presented evidence which raises a question as to any material fact related to compliance with § 4(i). Defendants have succeeded in proving compliance with § 4(i). Pursuant to § 4(i)(4), this constitutes compliance with all requirements of § 4 with regard to benefit accruals. Because the First and Second claims relate to benefit accruals, Defendants have shown that they are entitled to judgment as a matter of law. Plaintiffs have failed to defeat Defendants’ motion for partial summary judgment on the ADEA claims. As to the First and Second Claims, Defendants’ motion for partial summary judgment will be granted.
*5 This outcome makes sense because it is clear that it is the Plan outputs that stop increasing during the wear-away period, not the inputs, and Register requires that this analysis be done on the inputs. This outcome also fits with the fact that, in 2006, Congress acted to deal with the issue of wear-away periods when it enacted the Pension Protection Act of 2006, which prohibited them. The legislative history for this Act states:
During the 1990s, conversions of traditional defined benefit pension plans to cash balance formulas were common among mid- to large-size employers. There was considerable media attention regarding such conversions, particularly in cases in which the plan contained a “wearaway” or in which older or longer-service employees close to retirement were denied the opportunity to continue to accrue benefits under the old plan formula. While perhaps complying with the law, such plan designs were viewed by many as unfair to certain participants. There was concern that some employers

were adversely affecting participants in order to reduce costs.
Staff of the J. Comm. on Taxation, Description of Revenue Provisions Contained in the President’s Fiscal Year 2007 Budget Proposal; IV. Provisions Related to the Employer–Based Pension System, JCS1–06 NO 5, 2006 WL 4791612 (I.R.S.) This confirms that Congress enacted the provisions prohibiting wear-away transition periods in 2006 because of the perception that such provisions were unfair but might comply with existing law.4
II. Summary judgment on the Fourth and Fifth Claims AT & T moves for summary judgment on the Fourth and Fifth Claims in the Fourth Amended Complaint. Although these claims assert violation of ERISA sections 402, pertaining to the written instrument requirement, and 404, pertaining to fiduciary duties, this Court has construed them as claims for benefits under the Plan. Engers v. AT & T, 428 F.Supp.2d 213, 226 (D.N.J.2006) ( “Plaintiffs’ Fourth and Fifth Claims actually arise under § 502(a) (1)(B).”) This recasts these claims as claims for benefits that have been denied by the Plan, with the Court serving to review the decision by the AT & T Employee Benefits Committee (“Committee”) to deny benefits.
Defendants contend that the Committee’s decision should be reviewed under an abuse of discretion standard, pursuant to Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), because the Plan gave the Committee the discretionary authority determine eligibility and interpret Plan provisions. Defendants argue that the Committee did not abuse its discretion in denying benefits.
Plaintiffs do not dispute that the Committee was authorized to interpret all Plan provisions, but argue that the relevant provisions were not properly part of the Plan, because the Plan was not amended in compliance with the requirements of ERISA § 402(b) (3). This is an entirely new legal theory. It is neither expressed nor implied in the Fourth Amended Complaint, nor in the brief seeking to supplement the Third Amended Complaint, nor in the Order that amended it.
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*6 The history, in brief, of the Fourth and Fifth Claims is as follows. As stated above, in 2006, this Court construed the claims as claims for benefits under the Plan, and held that, as such, they were subject to an exhaustion requirement and ordered them dismissed without prejudice. Engers, 428 F.Supp.2d at 231 (“These claims are dismissed without prejudice to be re-filed once Plaintiffs have exhausted their administrative remedies.”) On March 2, 2007, Plaintiffs sought leave to supplement the pleadings to allege the facts pertaining to their exhaustion of administrative remedies. (Docket Entry No. 317.) On October 17, 2007, this Court entered a Consent Order reinstating the Fourth and Fifth Claims and granting leave to supplement the pleadings to assert allegations regarding exhaustion of administrative remedies. (Docket Entry No. 354.) There is nothing in that Consent Order, nor in Plaintiffs’ moving papers, that indicates that Plaintiffs were advancing the theory that the Committee had acted improperly because of failure to comply with the requirements of ERISA § 402(b)(3). That would have been the time to seek to amend the Complaint to assert this theory. Now, over three years after filing the motion to supplement, Plaintiffs seek to defeat a motion for summary judgment with a novel theory. Defendants would suffer substantial prejudice were this Court to accept this new theory, and it will not be allowed. This leaves Plaintiffs with no opposition to Defendants’ motion.5 Rather, as Defendants contend, this leaves Plaintiffs arguing for a claim not asserted in their Complaint.
It is apparent that counsel for Plaintiffs are experienced litigators in federal court.6 Such experienced attorneys know well how to draft pleadings and how to amend them so as to articulate the claims they wish to pursue. “A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.” Bell v. City of Philadelphia, 275 Fed. Appx. 157, 160 (3d Cir.2008) (quotation omitted).
Plaintiffs bear the burden of proof at trial of the Fourth and Fifth Claims. At summary judgment, Defendants may meet their initial burden by pointing to the absence of evidence to support Plaintiffs’ case. Defendants have done so. The burden then shifts to Plaintiffs to present evidence sufficient to support their case. Plaintiffs have failed to do so, and, as to the Fourth and Fifth Claims, Defendants’ motion for summary judgment will be granted.

III. Summary judgment on the Tenth Claim Defendants move for summary judgment on the Tenth Claim. Plaintiffs’ brief in opposition makes a few jabs at Defendants’ legal arguments, but never comes to grips with its burden under Rule 56(e), which states:
(2) Opposing Party’s Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.
*7 Plaintiffs have failed to set out specific facts showing a genuine issue for trial.
At issue is ¶ 88A in the Tenth Claim, which alleges that the amended Plan violates 29 U.S.C. § 1054(b)(1)(B). This provision, known as the “133 1/3% rule,” states:
(B) A defined benefit plan satisfies the requirements of this paragraph of a particular plan year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which he can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year. For purposes of this subparagraph—
(i) any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years;
(ii) any change in an accrual rate which does not apply
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to any individual who is or could be a participant in the current year shall be disregarded;
(iii) the fact that benefits under the plan may be payable to certain employees before normal retirement age shall be disregarded ...
Although the analysis of whether a plan satisfies the requirements of the 133 1/3% rule may be complex, the burden on a plaintiff alleging violation of this provision can be summed up simply: the plaintiff must show that the annual rate at which a participant can accrue benefits in a particular year is more than 133 1/3% of any prior year’s annual rate.7
Defendants move for summary judgment with two principal arguments. First, Defendants assert that the claim in ¶ 88A is predicated on the existence of the wear-away period, that the phenomenon of the wear-away period is due entirely to early retirement benefits, and that 29 U.S.C. § 1054(b)(1)(B)(iii) specifically requires that early retirement benefits must be disregarded when applying the 133 1/3% rule. Second, Defendants contend that Plaintiffs’ evidence of violation is legally insufficient, given the Third Circuit’s decision in Register. In brief, Defendants argue that Register requires that, to show a violation of the 133 1/3% rule, Plaintiffs must calculate the accrual history as if the cash balance plan had been effect for all years, and that Plaintiffs’ evidence does not meet this requirement.
Plaintiffs’ response in opposition is short, less than four pages of their brief. In these four pages, Plaintiff’s only comment about Register is this statement: “Register does not address the requirement that the benefits earned in the plan year must be ‘payable.’ ” (Pls.’ Opp. Br. 45.) This sentence is insufficient to persuade this Court that the requirements of Register do not apply here.
Plaintiffs next point to evidence in which accrued benefits have been calculated in compliance with the plan amendment rule. The opposition brief cites ¶ 126 in Plaintiff’s Statement of Additional Facts, which points to Exhibit E of the Poulin Declaration of October 3, 2003, and Exhibit C of the Sher Report. Exhibit C of the Sher Report supports Defendants’ position.8 (Pls.’ Ex. 3.) Exhibit E, however, does not show noncompliance with the 133 1/3% rule, in view of the plan amendment rule. (Pls.’ Ex. 1.) Rather, Mr. Poulin’s declaration explains Exhibit E as follows:

*8 The average reduction in the rate of benefit accrual as a result of the conversion to a cash balance plan was 15% for all ages combined. Plan participants between the ages of 55 and 65 experienced a 20% reduction in their benefit accrual rates. The benefit accrual rate of 1.04% at age 65 represented a 35% reduction compared to the 1.6% benefit accrual rate under the previous version of the plan. Exhibit E graphs the same reductions. (Pls.’ Ex. 1 at ¶ 17.) Exhibit E does not present a calculation of the benefit accrued in each plan year, with the calculations performed in compliance with the plan amendment rule. Instead, Exhibit E compares benefit accrual rates under the old and new plans. The reference to Exhibit E appears to be a typo; Exhibit D appears to show Mr. Poulin’s calculations of benefit accrual rates in compliance with the plan amendment rule. Exhibit D does not, however, show noncompliance with the 133 1/3% rule. Instead of showing backloading, prohibited by the rule, it shows frontloading: the accrual rates in column 9 decrease steadily over a participant’s life span. (Pls.’ Ex. 1 at Ex. D.) Nor do Plaintiffs assert that Exhibit D demonstrates a violation of the 133 1/3% rule.
Nor does Mr. Poulin’s declaration provide admissible, relevant evidence to support Plaintiffs’ position. (Pls.’ Ex. 1.) Mr. Poulin makes his arguments regarding the 133 1/3% rule in ¶ 34. In brief, he alleges a zero benefit accrual rate during the wear-away period, and a nonzero benefit accrual rate after the end of the wear-away period, and observes that the ratio of these rates is infinity, which exceeds 133 1/3 %. As Defendants point out, the problem with this argument is that the calculation of a zero benefit accrual rate during the wear-away period does not comply with the plan amendment rule. The wear-away period is a phenomenon that comes into existence only when the plan amendment rule is not followed: it depends entirely on a calculation (the “greater of” mechanism) that mixes accrual methods from the old and new plans.
Register appears to be on all fours with the instant case. Register involved a conversion of a defined benefit plan to a cash balance plan. 477 F.3d at 59. The conversion entailed a similar “greater of” mechanism to that at issue here:
When PNC converted its traditional plan to a cash balance plan, the early retirement benefits of the old
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plan were frozen and the participants were given the option of either receiving the accrued (but frozen) early retirement benefits or the benefit they would have accrued under the cash balance plan, whichever was greater. The benefits for those participants that chose to receive the accrued early retirement benefits were frozen from the date of conversion until their account balances under the cash balance plan exceeded the accrued early retirement benefits.
Id. at 60. Plaintiffs sued with a claim, inter alia, asserting that the amended plan violated 29 U.S.C. § 1054(b)(1)(B) “because the participants that chose to retain the accrued (but frozen) early retirement benefits did not receive additional benefit accruals until the cash balance plan benefit caught up to their frozen prior plan benefit.” Id. at 61. This appears to be exactly what Mr. Poulin has argued in regard to the 133 1/3% rule.
*9 The plaintiffs in Register thus appear to have made exactly the same argument made by Plaintiffs here, that the zero benefit accruals during the wear-away period, followed by the nonzero benefit accruals after the end of the wear-away period, must violate the 133 1/3% rule. See id. at 71. The Third Circuit rejected this argument, citing the plan amendment provision in 29 U.S.C. § 1054(b)(1)(B)(i). The Third Circuit stated this rationale:

formula from the beginning of their employment. Accordingly, there is no violation of the anti-backloading provisions under appellants’ aggregate-formula theory.
Id. at 72.
Plaintiffs’ only attempt to distinguish Register is their observation that the Third Circuit did not address the requirement that the benefits be payable. This is true but, in view of the fact that the Register Court applied the identical statutory provision to a factual scenario that appears indistinguishable from the instant case, this Court concludes that Register requires a rejection of Plaintiffs’ position. Defendants have persuaded that Register is controlling authority, and that it establishes that Plaintiffs’ calculations involving wear-away periods do not comply with the plan amendment rule. Defendants have shown that Plaintiffs’ evidence, which involves wear-away periods, is therefore legally insufficient.
Plaintiffs have not pointed to evidence that raises a factual issue about whether the amended Plan, evaluated as the plan amendment rule requires, satisfies the 133 1/3% rule. The undisputed evidence of record is presented in the report of Mr. Sher, which demonstrates that the amended Plan satisfies the 133 1/3% rule. As to the Tenth Claim, Plaintiffs have failed to defeat Defendants’ motion for summary judgment, and the motion will be granted.

[O]nce there is an amendment to the prior plan, only the new plan formula is relevant when ascertaining if the plan satisfies the 133 1/3% test. A participant’s election to retain his early retirement benefits from the old plan is not relevant to this calculation. If we treat the amended plan as in effect for all other plan years, as Congress directs us to do, appellants never would have accrued a benefit under the old plan and would have started to accrue benefits under the cash balance

IV. Summary judgment on the Twelfth Claim Defendants move for summary judgment on the Twelfth Claim. At issue is ¶ 94A, which states, in pertinent part:

[T]he 6% per year reductions to the

undiscounted age 55 annuity

violate Treasury Regulation

1.411(a)–11(a)(2)

[which]

expressly provides that a

distribution option to a “subsidized

early retirement benefit” must offer

at least the actuarial equivalent of

the subsidized benefit.... AT & T’s

6% per year reduction to the

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undiscounted age 55 benefit violates this rule because it exceeds a reasonable actuarial reduction.
There are no disputes about the essential facts. The parties agree that ¶ 94A refers to Plan § 4.06(a)(ii)(A)(2), which offers participants with less than 30 years of service the option of receiving the Plan’s unreduced early retirement benefits before age 55, but with a reduction of one half percent for each month that the participant is shy of age 55.
*10 The relevant section of the Treasury Regulations states:
§ 1.411(a)–11 Restriction and valuation of distributions.
(a) Scope—(1) In general. Section 411(a)(11) [26 USCS § 411(a)(11) ] restricts the ability of a plan to distribute any portion of a participant’s accrued benefit without the participant’s consent. Section 411(a)(11) [26 USCS § 411(a)(11) ] also restricts the ability of defined benefit plans to distribute any portion of a participant’s accrued benefit in optional forms of benefit without complying with specified valuation rules for determining the amount of the distribution. If the consent requirements or the valuation rules of this section are not satisfied, the plan fails to satisfy the requirements of section 411(a) [26 USCS § 411(a) ].
(2) Accrued benefit. For purposes of this section, an accrued benefit is valued taking into consideration the particular optional form in which the benefit is to be distributed. The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan. For example, a plan that provides a subsidized early retirement annuity benefit may specify that the optional single sum distribution form of benefit available at early retirement age is the present value of the subsidized early retirement annuity benefit. In this case, the subsidized early retirement annuity benefit must be used to apply the valuation requirements of this section and the resulting amount of the single sum distribution. However, if a plan that provides a subsidized early retirement annuity benefit specifies that the single sum distribution benefit available at early retirement age is the present value of the normal retirement annuity benefit, then the normal retirement annuity benefit is used to apply the valuation

requirements of this section and the resulting amount of the single sum distribution available at early retirement age.
26 C.F.R. § 1.411(a)–11.
Plaintiffs bear the burden of proof on the Twelfth Claim at trial. At summary judgment, as the moving party not bearing the burden of proof, Defendants contend that they are entitled to judgment as a matter of law because Treasury Regulation 1.411(a)–11(a)(2) does not impose the requirement asserted by Plaintiffs in ¶ 94A. Plaintiffs do not contest that this dispute involves a purely legal issue; there are no factual disputes that preclude the resolution of this dispute by the Court as a matter of law. As such, the burden shifts to Plaintiffs to prove their claim.
In 2007, this Court denied a motion for judgment on the pleadings as to this claim. In denying that motion, this Court stated:
It is true that ¶ 94A mischaracterizes the meaning of 26 C.F.R. § 1.411(a)–11(a)(2): the regulation does not, as ¶ 94A implies, require that every distribution option for a subsidized early retirement benefit must be the actuarial equivalent of the subsidized benefit.
(Opinion of January 3, 2007 at 11.) This Court then observed that “[t]he gist of ¶ 94A is that the 6% reductions violate 26 C.F.R. § 1.411(a)–11(a)(2),” and that Defendants had failed to show entitlement to judgment on the pleadings. (Id. at 12.) Furthermore, this Court stated that “Plaintiffs have not explained how their actuarial equivalence contentions have a basis in 26 C.F.R. § 1.411(a)–11(a)(2).” (Id.) Now, at summary judgment, Plaintiffs must show that the 6% reductions violate 26 C.F.R. § 1.411(a)–11(a)(2). Plaintiffs have not done so.
*11 To begin with, the section of Plaintiffs’ brief in opposition to the motion for summary judgment is just slightly over two pages long. In that section, Plaintiffs: 1) pick a bone with Defendants about the specific statutory

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section implicated by 26 C.F.R. § 1.411(a)–11(a)(2); 2) critique Defendants’ interpretation of the regulation; and 3) make a one-sentence reference to Plaintiffs’ motion for partial summary judgment on this claim. Were it not for this reference to Plaintiffs’ motion for partial summary judgment, Plaintiffs’ brief in opposition would fail completely to meet their summary judgment burden.
Plaintiffs’ brief in support of its motion for partial summary judgment on the Twelfth Claim gives a more extensive exposition of Plaintiffs’ case but, nonetheless, fails to persuade that the 6% reductions violate 26 C.F.R. § 1.411(a)–11(a)(2). Plaintiffs state their main legal argument in their first subheading: “Treasury Regulations at 1.411(a)11(a) Provide that an Option to a Subsidized Early Retirement Benefit Must Offer the Present Value of that Benefit.” (Pls.’ PSJ Br. 30.) Furthermore, Plaintiffs contend that a participant’s early retirement benefit options, which vary according to the years prior to age 55 at time of commencement, must be actuarial equivalents. (Id. at 37.)
Plaintiffs’ argument depends on proving two propositions: 1) Treas. Reg. 1.411(a)–11(a) requires that all optional forms of an early retirement benefit must be of actuarially equivalent value; and 2) the age 54 early retirement benefit, for example, is an optional form, within the meaning of Treas. Reg. 1.411(a) 11(a), of the age 55 early retirement benefit. Plaintiffs do not succeed in proving either proposition.
As to the first proposition—that Treas. Reg. 1.411(a) 11(a) requires that all optional forms of an early retirement benefit must be of actuarially equivalent value—the problem for Plaintiffs is that such a requirement does not appear on the face of either subsection 1.411(a)11(a)(2), nor on the face of the entire Treas. Reg. 1.411(a) 11(a).9 As quoted above, the operative language in subsection 1.411(a)–11(a)(2) states:
For purposes of this section, an accrued benefit is valued taking into consideration the particular optional form in which the benefit is to be distributed. The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan. This language states no equivalence requirements. The remaining language in subsection 1.411(a)–11(a)(2) provides two examples. These examples do not prove the proposition that needs to be proven, because both merely state which “benefit is used to apply the valuation requirements of this section.” The examples

do not state what those valuation requirements are. This Court is thus left with key questions: what are the applicable valuation requirements? Where is actuarial equivalence between optional forms mandated?10 *12 Section 1.411(a)–11(a) (1), subtitled “In general,” gives helpful background for understanding subsection (2), which follows it. It observes that these regulations relate to a section of ERISA which imposes two kinds of restrictions on plans: 1) restrictions imposing certain participant consent rules on certain distributions; and 2) restrictions requiring distributions of an accrued benefit in an optional form of benefit to meet valuation rules. Paragraph 94A of the Fourth Amended Complaint alleges violations of the valuation rules, not the consent rules.
The second subsection, as discussed, also refers to the valuation rules, but does not state what they are. Rather, subsection (2) only states how a particular accrued benefit must be valued, when it is considered in the context of these valuation rules. Plaintiffs never fill in this hole in their case, the source of the valuation rules which require the actuarial equivalence they assert.
On page 38 of their opposition brief, Plaintiffs offer a one-paragraph explanation for their assertion that actuarial equivalence is required by Treas. Reg. 1.411(a)–11(a)(2). This paragraph, which attempts to combine a definition from “Roberts’ Dictionary of Industrial Relations” with subsection (2), does not need extensive analysis.11 No argument can get around the fact that subsection (2) points elsewhere—outside itself—to the “valuation requirements of this section.” The way to show what these valuation requirements are—and to show that they require actuarial equivalence—is to cite them specifically. Plaintiffs have not done so.
Nor do Plaintiffs prove the second proposition—that the age 54 early retirement benefit, for example, is an optional form, within the meaning of Treas. Reg. 1.411(a) 11(a), of the age 55 early retirement benefit. Plaintiffs’ ¶ 94A case only gets traction by characterizing the early retirement benefit option available to a participant before age 55 as an optional form of benefit that is not equivalent in value to the early retirement benefit available at age 55. Yet Plaintiffs have failed to show a legal basis for the proposition that an age 54 early retirement benefit is an optional form of an age 55 early retirement benefit. Clearly, a participant may have these two options.12 It remains to be proven, however, that these are two forms of one benefit.
Resolution of this question turns on the issue of how
9

Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

broadly to construe “optional form of benefit,” within the context of this Regulation: does it include every option regarding benefits available to a participant, or only some? Plaintiffs fail to persuade that an age 54 early retirement benefit and an age 55 early retirement benefit are alternative forms of a single benefit.
Plaintiffs make their case for this point by citing a definition of “optional form of benefit” in a different Treasury Regulation, 1.411(d)–3:

(ii) Optional form of benefit—(A)

In general. The term optional form

of benefit means a distribution

alternative (including the normal

form of benefit) that is available

under the plan with respect to an

accrued benefit or a distribution

alternative with respect to a

retirement-type benefit. Different

optional forms of benefit exist if a

distribution alternative is not

payable on substantially the same

terms as another distribution

alternative. The relevant terms

include all terms affecting the value

of the optional form, such as the

method of benefit calculation and

the actuarial factors or assumptions

used to determine the amount

distributed. Thus, for example,

different optional forms of benefit

may result from differences in

terms relating to the payment

schedule, timing, commencement,

medium of distribution (e.g., in

cash or in kind), election rights,

differences

in

eligibility

requirements, or the portion of the

benefit to which the distribution

alternative applies.

*13 26 C.F.R. § 1.411(d)–3(g)(6). Yet the crucial language in this definition is that “different optional forms of benefit may result from differences in terms” (italics added). This definition, if applicable, does not mandate the conclusion that the age 54 early retirement benefit must be an optional form of the age 55 early retirement

benefit. It merely allows that it may be. The paragraph which immediately precedes this definition, however, suggests otherwise in circumstances like those at hand:
(i) Early retirement benefit. The term early retirement benefit means the right, under the terms of a plan, to commence distribution of a retirement-type benefit at a particular date after severance from employment with the employer and before normal retirement age. Different early retirement benefits result from differences in terms relating to timing.
Id. (italics added). The last sentence of this paragraph appears to squarely address the question at issue. The options at issue concern early retirement benefits, and there are differences in terms relating to timing. In such a situation, the benefits are different benefits. They are not optional forms of the same benefit.
Plaintiffs provide no other arguments to support the proposition that the age 54 early retirement benefit, for example, is an optional form, within the meaning of Treas. Reg. 1.411(a) 11(a), of the age 55 early retirement benefit. They have failed to persuade this Court that they are entitled to judgment as a matter of law.
Moreover, this Court finds an additional basis for rejecting Plaintiffs’ position. The subsection of the regulation at issue, Treas. Reg. 1.411(a)–11(a)(2), bears the title “Accrued benefit.” The principles it states concern the valuation of different forms of accrued benefits. This Court finds that the reduced benefits at issue are not multiple optional forms of a single accrued benefit, for the following reasons. First, a textual analysis turns on the meaning of the word “accrue,” which Black’s defines as follows: “To come into existence as an enforceable claim or right.” Black’s Law Dictionary (8th ed.2004). Under this definition, at age 54, employee X has not accrued the age 55 early retirement benefit, because an enforceable right to the age 55 early retirement benefit has not yet come into existence. Such a right will not come into existence until employee X turns 55. The early retirement benefit that employee X has accrued at age 54 is not an optional form of the same

10

Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

early retirement benefit that employee X has accrued at age 55. Instead, it is a different benefit, because the enforceable right to it comes into existence at a different time. The age 54 early retirement benefit is not an alternative “distribution form,” within the meaning of § 1.411(a)–11(a)(2), of the age 55 early retirement benefit. This analysis supports the finding that Plaintiffs have failed to prove their case.
Furthermore, subsection 1.411(a)–11(a)(2) gives two examples which support this understanding of the Regulation. The examples are carefully worded such that the specified benefit forms are linked to a single, particular age. The first example concerns a subsidized early retirement annuity benefit, and compares the value of an optional form of distribution—a single sum, or lump sum, “available at early retirement age.” Thus, in this example, when a participant has accrued the subsidized early retirement benefit, is at early retirement age, and is given the option of choosing between the distribution forms of an annuity benefit and a lump sum benefit, the values of these two distribution forms are subject to the valuation rules defined only by reference. The first example does not involve a comparison of distribution forms at differing ages.
*14 Although it is less detailed, the second example twice specifies that it is comparing the distribution “available at early retirement age”—again, using the valuation rules defined only by reference—with the early retirement annuity benefit. Again, the distributions that are compared are forms of a particular benefit available at one particular age—in this example, at early retirement age. Benefits are not compared across ages.
Nor do the cases cited by Plaintiffs support their position. The main case in which an appellate Court applied Treasury Regulation 1.411(a)–11(a)(2) is Costantino v. TRW, Inc., 13 F.3d 969, 979 (6th Cir.1994). Like the examples just discussed, Costantino compared a subsidized early retirement annuity benefit with an optional lump sum distribution form of that benefit.13 Id. There was no comparison of benefits across ages.
In addition, when the Department of the Treasury issued 1.411(a)–11(a)(2) as a final regulation, it provided this commentary:
A plan may have more than one optional form of benefit under

which benefits may be paid. There is no requirement that each form of benefit be the actuarial equivalent of all other benefit forms.
53 Fed.Reg. 31837–03 at 31840 (August 22, 1988). This comment supports this Court’s understanding that, whatever the valuation rules referred to in subsection 1.411(a)–11(a)(2) may be, they do not mandate actuarial equivalence among options in general.
Lastly, this Court queries whether Plaintiffs’ position can pass muster under the law of the case. In 2002, this Court held: “the Court must conclude that the actuarially unreduced Special Update Benefit amount as paid by § 4.06(a)(ii)(A)(2) is not an accrued retirement benefit, but is instead a type of early retirement subsidy.” Engers v. AT & T, 2002 WL 32159586 at *7 (D.N.J.,2002). Since this Court has held that the provision at issue in ¶ 94A, § 4.06(a)(ii)(A)(2), does not provide an accrued retirement benefit, it does not appear that this Court could find that this provision violates a regulation subsection titled “Accrued benefit” without finding itself ruling inconsistently.
Plaintiffs have proven neither of the two propositions that needed to be proven: 1) Treas. Reg. 1.411(a)–11(a) requires that all optional forms of an early retirement benefit must be of actuarially equivalent value; and 2) the age 54 early retirement benefit, for example, is an optional form, within the meaning of Treas. Reg. 1.411(a)–11(a), of the age 55 early retirement benefit. Plaintiffs have failed to prove that the 6% reductions violate 26 C .F.R. § 1.411(a)–11(a)(2). The claim in ¶ 94A fails as a matter of law.
As to ¶ 94A of the Twelfth Claim, Defendants have shown that they are entitled to judgment as a matter of law, and that no factual disputes preclude the entry of summary judgment. Defendants’ motion for summary judgment on this claim will be granted.
This Court will grant Defendants’ motion for summary judgment in its entirety. This resolves all outstanding claims in this case and moots Plaintiffs’ motion for partial summary judgment, as well as Defendants’ motion for partial summary judgment.
11

Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

CONCLUSION

*15 For the reasons stated above, Defendants’ motion for

All Citations

summary judgment is granted in its entirety, and Judgment shall be entered in Defendants’ favor on the First, Second, Fourth, Fifth, Tenth, and Twelfth Claims. Both Plaintiffs’ motion for partial summary judgment and

Not Reported in F.Supp.2d, 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

Defendants’ motion for partial summary judgment are

denied as moot.

Footnotes

1

When AT & T converted its traditional defined benefit pension plan into a cash balance plan, it established new cash

balance accounts for all employees. These accounts contained opening balances derived in part from the benefits

accrued in the traditional plan. At the same time, the prior plan benefit was frozen. Plaintiffs’ expert, Dr. Bardwell,

explained the “greater of” mechanism as follows:

For many employees, the opening value of the cash balance plan was substantially lower than the value of the

prior plan benefit ... Employees retiring after the transition would receive the benefit derived from the higher of

the two formulas. This type of transition plan is denoted a “greater-of” plan. Since the cash balance plan account

was lower for many employees, it would not be used in computing the actual benefit until it caught up. This

“greater of” transition results in a period of years during which the value of the actual retirement benefit ceases

to grow at all. This phenomenon is called “wear-away.”

(Bruce Cert. Ex. 53 at 4.)

2

It is worth noting Plaintiffs’ response to factual statement ¶ 55: “Admitted, except that when the pay credits are

translated to monthly retirement benefits, younger employees received higher monthly benefits than employees

over age 55.” This contains the issues in a nutshell. As will be discussed in detail below, Plaintiffs’ argument looks at

age differences in the output of benefits from the Plan, whereas § 4(i) looks at inputs into the plan, and it appears to

be undisputed that, as to the inputs into the Plan, the rate of accrual is not reduced because of age.

3

See Hurlic v. S. Cal. Gas Opinion Co., 539 F.3d 1024, 1036 (9th Cir.2008) (“Congress has made clear that the

provisions should be interpreted to have an identical meaning.”)

4

See also Sunder v. U.S. Bancorp Pension Plan, 586 F.3d 593, 601 (8th Cir.2009) (“[W]e note that prior to the Pension

Protection Act of 2006, courts had interpreted ERISA to permit a wear-away provision in which a plan amendment

was allowed to freeze the accrued benefits and not permit any additional accumulation of benefits until the new

cash balance exceeded the benefits under the old plan.”)

5

Nor do Plaintiffs stray from this path in arguing their motion for partial summary judgment on the Fourth and Fifth

Claims, which presents only their ERISA § 402(b)(3) argument.

6

As this Court determined when granting Plaintiffs’ motion for class certification.

7

See Esden v. Bank of Boston, 229 F.3d 154, 167 n. 18 (2d Cir.2000) (“That test requires that the value of the benefit

accrued in any year may not exceed the value of a benefit accrued in any previous year by more than 33%.”)

8

In Exhibit C, Mr. Sher calculates benefit accrual rates using only the accrual methods of the amended Plan. He

observes that the ratio of the highest rate to the lowest rate is less than 133 1/3%. (Pls.’ Ex. 55 at 32.)

12

Engers v. AT & T, Inc., Not Reported in F.Supp.2d (2010) 2010 WL 2326211, 109 Fair Empl.Prac.Cas. (BNA) 812, 49 Employee Benefits Cas. 1321

9

In fact, the word “actuarial” appears nowhere in 26 C.F.R. § 1.411(a)–11.

10 This is the $64,000 question for Plaintiffs’ ¶ 94A case. Plaintiffs never answer it.

11 Nor does footnote 18 to this paragraph, which rewrites the regulation using the phrase “an optional annuity with an earlier commencement date,” need much comment. In short, rewriting regulations is not a convincing way to demonstrate their meaning.

12 It is worth noting, however, that a particular participant never has these two options as alternatives at a single point in time. At age 54, the participant cannot exercise a choice for the age 55 benefit; at age 55, the participant cannot exercise a choice for the age 54 benefit. These are never true alternatives at a single point in time.

13 In regard to Treasury Regulation 1.411(a)–11(a)(2), Costantino stands for the proposition that, in the context of that regulation, the value of a participant’s accrued early retirement benefit includes the subsidized portion of such benefits. Id.

13

 
 Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011) 51 Employee Benefits Cas. 1833
466 Fed.Appx. 75 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I,
IOP 5.7. (Find CTA3 App. I, IOP 5.7) United States Court of Appeals, Third Circuit.
Phillip C. ENGERS; Warren J. McFall; Donald G. Noerr; Gerald Smit, individually and on behalf of
all others similarly situated, Appellants. v.
AT & T, INC.; AT & T Pension Benefit Plan, and AT & T Puerto Rican Pension Benefit Plan.
No. 10–2752. |
Argued on March 17, 2011. |
Opinion filed: June 22, 2011.
Synopsis Background: Employees brought class action against their employer, alleging employer’s changes to its management pension plan disproportionately harmed older employees in violation of Age Discrimination in Employment Act (ADEA), and violated ERISA’s disclosure, anti-backloading, and anti-cutback rules. The United States District Court for the District of New Jersey, Stanley R. Chesler, J., granted employer summary judgment. Employees appealed.
Holdings: The Court of Appeals, Roth, Circuit Judge, held that:
employer’s benefits committee did not abuse its discretion in ruling on plan amendment benefits payouts;
employer complied with Department of Treasury regulation requiring adequate advance notice to participants that amendments provided for a change in the rate of participants’ future benefit accrual;

employer’s disclosures explaining plan amendments complied with ERISA; and plan amendments did not violate ERISA’s “anti-cutback” rule.
Affirmed.
*76 On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2–98–cv–03660), District Judge: Honorable Stanley R. Chesler. Maureen S. Binetti, Esquire, Wilentz, Goldman & Spitzer, Woodbridge, NJ, Stephen R. Bruce, Esquire (Argued), Allison C. Pienta, Esquire, Washington, D.C., Jonathan I. Nirenberg, Esquire, Resnick & Nirenberg, East Hanover, NJ, Edgar Pauk, Esquire, Brooklyn, NY, for Appellants. Attorneys and Law Firms David W. Carpenter, Esquire (Argued), Laura D. Rottenborn, Esquire, Jeffrey R. Tone, Esquire, Sidley Austin LLP, Chicago, IL, Patricia S. Robinson, Esquire, Fisher & Phillips, LLP, Murray Hill, NJ, for Appellee. Before: BARRY, CHAGARES and ROTH, Circuit Judges.
OPINION
ROTH, Circuit Judge:
I. Introduction **1 Engers and several other AT & T employees (collectively, Engers) appeal several orders of the District Court granting summary judgment on their claims against AT & T under the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). In 1998, Engers brought a class
1

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011)
51 Employee Benefits Cas. 1833
action against AT & T, alleging that changes to its Management Employees’ Pension Plan (the Plan) in April 1997 disproportionately harmed older employees in violation of the ADEA, and violated ERISA’s disclosure, anti-backloading, and anti-cutback rules. After extensive discovery and over a decade of litigation, the District Court granted summary judgment to AT & T on all of Engers’s claims. Engers contends on appeal that the District Court misinterpreted the ADEA and *77 several ERISA provisions and mistakenly concluded that certain of his claims had not been adequately pleaded. For the reasons that follow, we will affirm.
II. Background Because we write for the parties, we assume familiarity with the facts in this case as set out in previous opinions of the District Court, and only briefly summarize them here.1 Prior to its amendment in April 1997, the Plan provided participants with a pension based on their average pay over a “pay base averaging period” and in each subsequent year. The Plan also provided generous early retirement subsidies, which permitted participants to retire as early as age 55 and receive their full pensions. In April 1997, AT & T amended the Plan to phase out the early retirement subsidy and replace the pay-average formula with a cash balance system, under which each participant would be assigned a hypothetical cash balance which would be increased by pay and interest credits for each year of service.2 However, there were no generous early retirement subsidies for benefits accruing under the cash balance plan—instead early retirement benefits were actuarially reduced to account for the fact that the participant’s cash balance was being distributed over a longer period of time. To mitigate the effect of these changes on older plan participants, the Plan amendments created a frozen “special update” benefit, which provided a significant, one-time increase to each participant’s benefits, and was also subject to the generous early retirement subsidies available under the old Plan.3 To ensure that participants’ benefits were not reduced, the amended Plan provided that retiring participants were entitled to the greater of (1) their benefits accrued under the old Plan, (2) the frozen special update benefit (both of which had generous early retirement subsidies) or (3) their gradually increasing cash balance benefits (which did not have any early retirement subsidy).
One implication of the Plan amendments was that many

older Plan participants experienced 7–8 years of “wear-away,” a period during which their cash balance would grow, but their early retirement benefits would not increase because the actuarially discounted value of the cash balance account would be less than the subsidized early retirement benefit from the frozen special update benefit.4 Although AT & T was concerned that wear-away would be poorly received by employees, it distributed several documents explaining the Plan amendments and created a website so that each participant could calculate his or her benefits, and determine when his wear-away period would end, which AT & T called “crossover.”
**2 Engers and several other AT & T management employees brought a class action against AT & T, alleging, inter alia, that (a) the wear-away periods were disproportionately longer for older plan participants, *78 violating the ADEA; (b) key features of the new Plan had not been included in the Plan amendments, in violation of the written instrument requirement of ERISA § 402(a)(1); (c) AT & T had not adequately disclosed the implications of the Plan amendments to plan participants, in violation of its fiduciary duties and ERISA §§ 102 and 204(h); (d) the shift to a cash balance formula violated the anti-backloading rule of ERISA § 204(g)(2); and (e) the discounting of early retirement benefits received before age 50 violated the anti-cutback rule of ERISA § 204(b). Over the course of 12 years of litigation, the District Court granted summary judgment on all of Engers’s claims, resulting in this appeal.
III. Discussion “We review de novo district court orders granting or denying summary judgment,” Elassaad v. Independence Air, Inc., 613 F.3d 119, 124 (3d Cir.2010), “apply[ing] the same test required of the district court and view [ing] inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party.” Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191 (3d Cir.2009). Our review is not limited to the reasoning of the court below and we “may affirm the district court on grounds different from those relied on by the district court.”5 In re Mushroom Transp. Co., 382 F.3d 325, 344 (3d Cir.2004).
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Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011)
51 Employee Benefits Cas. 1833
A. The ADEA Claim Engers’s ADEA claim is that the 1997 amendments discriminated against older employees because they resulted in longer wear-away periods for older employees. ADEA § 4(i)(1) sets out specific rules governing age discrimination relating to retirement benefits and Engers does not contest the District Court’s conclusion that the Plan amendments complied with these rules. Engers, 2010 WL 2326211 *4–5 (citing Register v. PNC Fin. Servs. Grp., Inc., 477 F.3d 56, 68 (3d Cir.2007)). The court found that Engers’ wear-away claims related to benefit accrual, and were therefore barred by ADEA § 4(i)(4), which provides—both now and in 1997—that “[c]ompliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.” Engers, 2010 WL 2326211, *4 (quoting 29 U.S.C. § 623(i)(4)).
On appeal, Engers argues that the District Court erred in treating compliance with ADEA § 4(i) as a complete defense to his ADEA claims.6 He contends that amendments in 1990 changing the scope of ADEA § 4(a)(1) brought his wear-away claims within that subsection and outside the scope of ADEA § 4(i). We agree with the Tenth Circuit’s careful analysis of this argument and its conclusion that the 1990 amendments do not affect the scope of ADEA § 4(i). See Jensen v. Solvay Chemicals, Inc., 625 F.3d 641, 660–61 (10th Cir.2010). Engers does not seriously contest the District Court’s ruling that his wear-away claims “relat[e] to benefit accrual” and we conclude that this ruling was correct. See Hurlic v. S. Cal. Gas Co., 539 F.3d 1024, 1037 (9th Cir.2008) (wear-away claims relate to benefit accrual). Accordingly, *79 Engers’s wear-away claims are barred by the plain language of ADEA § 4(i)(4).
B. The Plan Amendment Claims **3 Some procedural background is necessary to understand Engers’s Plan amendment claims. In October 2004, Engers moved for summary judgment on these claims, arguing that two key changes to the Plan were not included in the Plan amendments and had not been validly adopted until they were included by AT & T in a restatement of the Plan in October of 2000. As a result, these changes could not be retroactively applied to determine benefits during 1997–2000. Engers therefore

interpreted the 1997 amendments as entitling participants to (1) the sum of their benefits payable under the special update and the cash balance formula, and (2) additional benefit payment options—a lump sum payment and a joint and 100% survivor annuity—for their special update benefits as well as their cash balance benefits. The District Court found that these claims were unexhausted claims for plan benefits and dismissed them without prejudice. Engers, 428 F.Supp.2d at 227–31.
In 2006, Engers presented his claim to AT & T’s Benefits Committee, which denied it. In a detailed opinion, the Committee explained that the text of the amendments and related documents were inconsistent with Engers’s proposed interpretation. Concerning Engers’s first argument, the Committee pointed out that, because the initial amount in each participant’s cash balance account is based on the special update, awarding Engers the sum of his special update and cash balance benefits would essentially give him double benefits. Additionally, presentations to AT & T’s Board when it was considering the Plan amendments and disclosures to employees immediately following the amendments made clear that participants were entitled to the greater of their cash balance and special update benefits. Regarding Engers’s second argument, the Committee noted that the plain language of the amendments indicates that the new benefit payment options apply only to the cash balance benefit, and that communications to employees immediately following the amendments made this point explicit.
In October 2007, Engers was permitted to file an amended complaint reasserting his Plan amendment claims because they had been properly exhausted. AT & T moved for summary judgment on these claims and Engers argued, again, that key features of the new Plan were not validly adopted by the Plan amendments. The District Court dismissed Engers’s claims, finding that his arguments represented an “entirely new legal theory” that had not been pleaded in the complaint. Engers, 2010 WL 2326211, *5–6. We agree with Engers that his arguments did not present an entirely new theory and that, in any case, he was not required to plead his legal theory in his complaint. See Skinner v. Switzer, 562 U.S. ––––, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011).
As it is not clear whether the District Court reached the merits of Engers’s amendment claims, we address them here. Engers does not contest that the Plan amendments were validly adopted and thus part of the Plan—rather, he argues that the amendments are not properly construed as
3

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011)
51 Employee Benefits Cas. 1833
establishing the greater-of rule and limitations on certain benefit options. Because the Committee had discretionary authority to construe the Plan, we review its interpretation of the Plan amendments for abuse of discretion.7 See Miller v. Am. *80 Airlines, Inc., 632 F.3d 837, 844–45 & n. 2 (3d Cir.2011). We find that the Committee did not abuse its discretion in denying either of Engers’s claims. First, the Committee reasonably concluded that the Plan amendments did not provide participants with double benefits. The only evidence Engers offers in support of his reading of the amendments is the testimony of Brian Byrnes, AT & T’s Human Resources director, who acknowledged that, regarding whether participants could receive the sum of their special update and cash balance benefits, the board “didn’t say you could. They didn’t say you couldn’t.” He later clarified that providing the sum of the two benefits was inconsistent with the Plan’s design. This testimony shows at most that the language of the Plan amendments was ambiguous. It does not show that the Committee resolved that ambiguity incorrectly, and Engers does not address the Committee’s arguments for its interpretation, which are eminently reasonable. Engers offers no evidence for his second claim regarding benefit payment options, and we agree with the Committee that the plain language of the Plan amendments precludes his claim. Accordingly, AT & T was entitled to summary judgment on Engers’s Plan amendment claims.
C. The Disclosure Claims **4 Engers claims that AT & T’s disclosures regarding the amended Plan violated three different ERISA provisions.
1. Disclosure of Benefit Reduction Under ERISA § 204(h). Engers’s first claim is that AT & T failed to provide adequate advance notice to participants that the Plan amendments “provide[d] for a significant reduction in the rate of future benefit accrual” as required by ERISA § 204(h), 29 U.S.C. § 1054(h). The District Court found that this claim was governed by Treasury regulations interpreting ERISA § 204(h), which provide that “an amendment to a defined benefit plan affects the rate of future benefit accrual only if it is reasonably expected to change the amount of the future annual benefit commencing at normal retirement age.” 26 C.F.R. § 1.411(d)–6T, Q & A–5, 60 Fed.Reg. 64,320, 64,322 (1995). Because even Engers’s expert calculated that retirement benefits available at normal retirement age

would be higher under the cash balance formula or special update formula than under the prior plan formula, the court found that AT & T had complied with the regulation and was entitled to summary judgment. Engers, 428 F.Supp.2d at 221–22; Engers, 2006 WL 3359722, *2–3. Engers argues that the District Court should not have considered the combined effect of the special update and cash balance formulae when determining whether the Plan amendments resulted in a significant reduction in benefit accruals. Even if this were true, Engers does not show that either formula considered separately would result in lower normal age retirement benefits than those under the old Plan, and his own expert’s report shows the opposite.8 The District Court therefore correctly granted summary judgment on this claim.
*81 2. Adequacy of Summary Plan Description Under ERISA § 102(a). Engers’s next claim is that AT & T’s disclosures explaining the Plan amendments and summary plan description (SPD) describing the amended plan violated ERISA § 102(a) because they were not “written in a manner calculated to be understood by the average plan participant, and ... sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” 29 U.S.C. 1022(a). The District Court found that Engers could not recover on this claim because he had failed to show “extraordinary circumstances” such as “ ‘circumstances ... where the employer has acted in bad faith, or has actively concealed a change in the benefit plan, and the covered employees have been substantively harmed by virtue of the employer’s actions.’ ” Engers, 428 F.Supp.2d at 239 (quoting Ackerman v. Warnaco, Inc., 55 F.3d 117, 125 (3d Cir.1995)). Engers contends on appeal that he offered sufficient evidence that AT & T actively concealed certain features of the Plan amendments and that the District Court did not properly apply the summary judgment standard to consider the evidence in the light most favorable to him.9
**5 We disagree. At most, Engers’s evidence shows that AT & T was concerned that the possibility of crossover or wear-away would “undercut[ ] Cash Balance if highlighted or placed in front” and did not want to “tell the bad parts upfront.” But regardless of any reluctance, AT & T provided multiple disclosures describing clearly and in detail the possibility of wear-away. For example, a letter sent to participants only weeks after the Plan amendments were adopted illustrated wear-away by providing examples of the benefits that two hypothetical employees retiring in 1997—one under age 55 and one over age 55—would receive under the amended Plan, and
4

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011)
51 Employee Benefits Cas. 1833
informed employees that “if you are within 7 years of retirement eligibility under the current plan, your special update will most likely provide a greater benefit than the cash balance feature.” Additionally, AT & T created a pension website that enabled participants to see *82 their cash balance accounts and identified their “crossover year—when your single life annuity (SLA) under Cash Balance exceeds your SLA under your prior accrued pension benefit.”
Engers also points to evidence that AT & T deliberately avoided comparing benefits under the new Plan to benefits under the old Plan. But as the District Court explained, the comparison insisted upon by Engers would have been misleading. Engers, 428 F.Supp.2d at 242–43. As it stood prior to amendment in April 1997, the old Plan would provide fewer benefits to employees than the new Plan. The comparison that Engers contends would show that the new Plan reduced benefits was based on the assumption that AT & T would continue its prior practice of amending the old Plan’s pay average formula to allow employees to benefit from larger salaries (which AT & T was under no obligation to do). But AT & T did not intend to continue that practice—that was why it adopted the Plan amendments. Even if AT & T should have compared benefits under the old and new plans (a comparison favorable to the new Plan), it certainly was not required to compare benefits under the new Plan to what they might have been had AT & T decided to keep updating the pay average formula.10 We conclude that AT & T’s disclosures were adequate and that no reasonable jury could conclude that AT & T actively concealed wear-away or other key plan features from participants. Summary judgment for AT & T on this claim was therefore proper.
3. Breach of Fiduciary Duty to Inform Participants. Engers’s final disclosure claim is that AT & T breached its fiduciary duty to provide material information to participants, and specifically that it failed to inform participants of the differing values of optional benefit forms available under the Plan. The District Could held that because Engers had “the ability to proceed under [ERISA] § 502(a)(1)(B) for Defendants’ alleged violation of [ERISA] § 102,” he not could not obtain “appropriate equitable relief” under ERISA § 502(a)(3). Engers, 428 F.Supp.2d at 235–36 (citing Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). AT & T does not defend this conclusion and we agree with Engers that the District Court erred. As we have explained above, Engers’s allegations that AT & T’s 1998 SPD did not comply with ERISA § 102 cannot support a

claim for benefits under ERISA § 502(a)(1)(B) because he does not seek benefits promised to him in the SPD. See supra n. 9. Rather, Engers can only obtain equitable relief under ERISA § 502(a)(3) for AT & T’s alleged breach of ERISA § 102. The District Court did not consider whether the availability of one type of equitable relief under § 502(a)(3) should preclude other types of equitable relief under the same subsection, and our precedent suggests the contrary. See, e.g., Burstein 334 F.3d at 370–71, 385–87 (considering merits of fiduciary duty claim after affirming dismissal of equitable estoppel claim). Accordingly, Engers’s fiduciary duty claim was not barred under Varity.
**6 However, we will affirm judgment for AT & T on Engers’s fiduciary duty claim because it has not been adequately pleaded. The Complaint alleges only that AT & T breached its fiduciary duty by failing to disclose “the disadvantages of the ‘new’ cash balance features and transitional provisions, compared to the ‘old’ defined benefit plan,” and contains no allegations *83 regarding the relative value of various benefit options that are available under the cash balance plan. But in this appeal and at least since 2003, Engers has advanced a different argument that AT & T failed to disclosed the “relative values” of benefit payment options (i.e., different types of annuities, or a lump sum payment) available from the cash balance benefit, and that AT & T “misrepresent[ed] ... that the ‘overall value’ of the options was the same.”11 This argument “fails at the most basic level because it finds no support in the plain language of [Engers’s] complaint.” Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450, 459 (3d Cir.2003). Engers has amended his complaint several times during the decade of litigation before the District Court but has never sought leave to include a claim concerning AT & T’s disclosure of the relative value of benefit options. Because Engers has failed to plead this claim, we will not now consider it on appeal. See id.
D. The Anti–Backloading Claim Engers claims that wear-away resulting from the Plan amendments violates the anti-backloading rule of ERISA § 204(b), because participants’ benefit accrual rates in later plan years are more than 133 1/3% of the benefit accrual rate during the wear-away period, which he claims was zero. See 29 U.S.C. § 1054(b)(1)(B). The District Court rejected this argument because even though
5

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011)
51 Employee Benefits Cas. 1833
early retirement benefits do not increase during wear-away, participants’ cash balance accounts continue to increase. Engers, 2010 WL 2326211, *7–9 (citing Register, 477 F.3d at 72). Engers argues that accrual of early retirement benefits rather than cash balance amounts should be considered in applying the anti-backloading rule. He points out that the anti-backloading rule applies to the accrual rate of benefits that are “payable,” which in his view refers to benefits that are immediately payable to a plan participant, i.e., early retirement benefits. But the plain language of ERISA § 204(b) refutes this argument: the anti-backloading rule applies to “the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan.” 29 U.S.C. § 1054(b)(1)(B) (emphasis added); see also id. § 1054(b)(1)(B)(iii) (in applying anti-backloading rule “the fact that benefits under the plan may be payable to certain employees before normal retirement age shall be disregarded”). Additionally, the statute provides that, in applying the anti-backloading rule, “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years,” which means that the transition between the old and new plans and resulting wear-away must be disregarded. Id. § 1054(b)(1)(B)(i). The District Court therefore correctly rejected Engers’s anti-backloading claim premised on the accrual rate of participants’ early retirement benefits.

to age 50, but provided that, like early retirement benefits taken between ages 50–55, benefits taken before age 50 would be also be reduced by 6% for each year a participant retired before age 55. Engers argues that extension of the 6% per year benefit reduction—which he claims is “actuarially unreasonable”—to benefits available when retiring before age 50 constitutes the imposition of an additional restriction on benefits in violation of the anti-cutback rule.12
Engers’s argument fails for two reasons. First, prior to the 1997 amendments, participants could not receive any benefits before age 50 and thus had no “ ‘early retirement benefit’ that was earned by service before the amendment was passed” and then was improperly reduced. Heinz, 541 U.S. at 744, 124 S.Ct. 2230. Rather, the Plan amendments simultaneously conferred a right to benefits before age 50 and provided that such benefits would be reduced by 6% for each year that participants retired before age 55. Second, even if participants are considered to have, in some sense, “earned” early retirement benefits before age 50, the Plan amendments did not “impose materially greater restrictions on the receipt of” these benefits and did not reduce benefits payable before age 50. Rather such benefits were increased from nothing to a percentage of the age–55 early retirement benefit. We do not see how “in any practical sense” this change could be “viewed as shrinking the value” of participants’ benefits. Id. at 745, 124 S.Ct. 2230. Summary judgment on Engers’s anti-cutback claim was therefore proper.

E. The Anti–Cutback Claim

**7 Engers’s final claim is that the amended Plan

violates the anti-cutback rule of ERISA § 204(g)(2),

IV. Conclusion

which prohibits the reduction of accrued benefits or the

For the reasons set out above, we will affirm the orders of

*84 imposition of greater restrictions on the receipt of

the District Court granting summary judgment to AT & T

accrued benefits. See 29 U.S.C. § 1054(g)(2); Cent.

on all of Engers’s claims.

Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 744, 124

S.Ct. 2230, 159 L.Ed.2d 46 (2004). Under the old,

pre–1997 Plan, participants retiring between ages 50–55

All Citations

were entitled to receive their age–55 early retirement benefits, reduced by 6% for each year they were retiring prior to age 55. But the Plan’s age and service

466 Fed.Appx. 75, 2011 WL 2507089, 51 Employee Benefits Cas. 1833

requirements did not permit participants to receive

benefits before age 50. The Plan amendments removed

the age and service restrictions on receipt of benefits prior

Footnotes

6

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011) 51 Employee Benefits Cas. 1833

1

See Engers v. AT & T, Inc., No. 98–3660, 2010 WL 2326211 (D.N.J. June 7, 2010); Engers v. AT & T Corp., No.

98–3660, 2006 WL 3359722 (D.N.J. Nov.20, 2006); Engers v. AT & T, 428 F.Supp.2d 213 (D.N.J.2006); Engers v. AT &

T, No. 98–3660, 2002 WL 32159586 (D.N.J. Oct. 17, 2002).

2

The Plan document was revised and restated on October 20, 2000 to incorporate the April 1997 amendments.

3

The Plan amendments actually made early retirement benefits more generous in some respects by eliminating age

and service requirements that had prevented employees from receiving early retirement benefits before age 50.

4

Recall that participants are entitled to the greater of their special update or cash balance benefits.

5

The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291.

6

We reject Enters’s argument that he pleaded a disparate treatment claim and that this claim is not precluded by

ADEA § 4(i)(4). Even if this claim was properly pleaded, it would arise under ADEA § 4(a), and thus be barred by

ADEA § 4(i)(4), which by its terms applies to any claim under section 4. See 29 U.S.C. § 623(i)(4).

7

Because Engers’s claim arose in the context of litigation, an argument can be made that the Committee had

conflicting interests when ruling on the claim, which is a factor relevant to the abuse-of-discretion analysis. See

Miller, 632 F.3d at 845 & n. 3. But Engers does not press this point and, in any case, taking this factor into account

would not affect the outcome in this case.

8

The expert’s calculation of the special update benefit inaccurately states the value of the special update benefit

because it is based on his mistaken view that the special update benefit should not be frozen but should be treated

as an increasing benefit. However, the Plan amendments and Plan document make clear that the special update

benefit is frozen and does not increase.

9

Engers also argues that he was not required to establish extraordinary circumstances under Burstein v. Retirement

Account Plan, because in that case we permitted an employee to recover benefits misleadingly promised by an SPD

without requiring a showing of extraordinary circumstances. 334 F.3d 365, 376–80 (3d Cir.2003). This confuses two

different claims considered in Burstein. We did not require the plan participant in Burstein to show extraordinary

circumstances to recover benefits promised in the SPD under ERISA § 502(a)(1)(B). See id. But we did require the

participant to show extraordinary circumstances to recover on a separate equitable estoppel claim under ERISA §

502(a)(3). See id. at 383. Because Engers seeks equitable relief, and not a benefit promised him in his SPD, he must

show extraordinary circumstances.

CIGNA Corp. v. Amara, 562 U.S. ––––, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011), does not alter this conclusion. There

the Court held that a showing of “detrimental reliance” is not necessary for all forms of equitable relief under §

502(a)(3). Id. at 1880–82 (“Information-related circumstances, violations, and injuries are potentially too various

in nature to insist that harm must always meet that more vigorous ‘detrimental harm’ standard when equity

imposed no such strict requirement.”) However, the Court expressly declined to address “other prerequisites” for

equitable relief, id. at 1883, and thus we see no reason to depart from our longstanding rule that an equitable

estoppel claim under § 502(a)(3) cannot be based merely on “simple ERISA reporting errors or disclosure

violations, such as a variation between a plan summary and the plan itself, or an omission in the disclosure

documents,” without a showing of extraordinary circumstances. Burstein, 334 F.3d at 383 (quoting Kurz v.

Philadelphia Elec. Co., 96 F.3d 1544, 1553 (3d Cir.1996)) (emphasis deleted).

10 Moreover, AT & T’s practice of updating the formula was inconsistent, and we see no objective way for AT & T to predict how it would have made changes to the formula that it did not intend to make.

7

Engers v. AT & T, Inc., 466 Fed.Appx. 75 (2011) 51 Employee Benefits Cas. 1833 11 Engers does not mention on appeal his original breach of fiduciary duty claim predicated on AT & T’s alleged failure
to adequately inform plan participants about wear-away and provide a comparison between benefits under the old Plan and the new Plan. Even if these claims are not waived, for the reasons we have set out above, there is no genuine issue of material fact about the adequacy of AT & T’s disclosures on these points, and summary judgment on this claim was proper. 12 Engers’s argument that the 6% per year discount rate is “actuarially unreasonable” has no bearing on the anti-cutback rule. Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 762 (7th Cir.2003), on which Engers relies, concerns the requirements of ERISA § 204(c)(3), not § 204(g)(2), and Engers has not appealed the District Court’s (correct) conclusion that the 6% yearly reduction does not violate ERISA § 204(c)(3). See Engers, 2010 WL 2326211, *9–11.
8

 
 Case 2:98-cv-03660-SRC-CLW Document 79 Filed 06/07/01 Page 1 of 1 PageID: 1071

 
 Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 1 of 45
12BR,APPEAL,CLOSED,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:98−cv−03660−SRC−CCC

PHILLIP C. ENGERS, et al v. ATTAND ATTMANAGE, et al Assigned to: Judge Stanley R. Chesler Referred to: Magistrate Judge C. C. Cecchi Demand: $0
Case in other court: Third Circuit, 10−02752
Cause: 29:1149 Recover Pension &Profit Sharing
Plaintiff

Date Filed: 08/05/1998 Date Terminated: 06/07/2010 Jury Demand: Plaintiff Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

MANAGEMENT EMPLOYEES OF AT TERMINATED: 06/08/1999

represented by GERALD SMIT 14 SARAH COURT BRIDGEWATER, NJ 08807 TERMINATED: 06/08/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

MAUREEN BINETTI WILENTZ, GOLDMAN &SPITZER 90 WOODBRIDGE CENTER DRIVE P.O. BOX 10 WOODBRIDGE, NJ 07095 (732) 636−8000 Email: mbinetti@wilentz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

NEIL H. DEUTSCH DEUTSCH ATKINS, PC COURT PLAZA NORTH 25 MAIN STREET HACKENSACK, NJ 07601 (201) 498−0900 Email: ndeutsch@njemployeerights.com TERMINATED: 06/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN I. NIRENBERG THE NIRENBERG LAW FIRM, LLC ONE UNIVERSITY PLAZA, SUITE 607 HACKENSACK, NJ 07601 201 487−2700 Fax: 201 487−2701 Email: jnirenberg@njemploymentlawfirm.com ATTORNEY TO BE NOTICED

Plaintiff GERALD SMIT

represented by MAUREEN BINETTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN I. NIRENBERG (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 2 of 45

Defendant AT

represented by CHRISTOPHER H. MILLS FISHER &PHILLIPS, LLP 430 MOUNTAIN AVENUE 3RD FLOOR MURRAY HILL, NJ 07974 (908) 516−1050 Email: cmills@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
PATRICIA S. ROBINSON FISHER &PHILLIPS LLP 430 MOUNTAIN AVENUE MURRAY HILL, NJ 07974 (908) 516−1050 Fax: (908) 516−1051 Email: probinson@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ATTMANAGEMENT PENSION PLAN

represented by CHRISTOPHER H. MILLS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PATRICIA S. ROBINSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ATTINC.

represented by CHRISTOPHER H. MILLS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PATRICIA S. ROBINSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ATTPension Benefit Plan

represented by CHRISTOPHER H. MILLS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PATRICIA S. ROBINSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ATTPuerto Rican Pension Benefit Plan

represented by CHRISTOPHER H. MILLS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

PATRICIA S. ROBINSON (See above for address)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 3 of 45

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PHILLIP C. ENGERS

represented by GERALD SMIT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MAUREEN BINETTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

JONATHAN I. NIRENBERG (See above for address) ATTORNEY TO BE NOTICED

Plaintiff WARREN J. MCFALL

represented by GERALD SMIT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MAUREEN BINETTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEIL H. DEUTSCH (See above for address) TERMINATED: 06/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN I. NIRENBERG (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
DONALD G. NOERR individually and on bhelaf of all others similarly situated

represented by GERALD SMIT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MAUREEN BINETTI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
NEIL H. DEUTSCH (See above for address) TERMINATED: 06/20/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN I. NIRENBERG (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 4 of 45

08/05/1998 08/05/1998 08/19/1998 09/23/1998 10/21/1998 10/21/1998 11/13/1998 11/19/1998 12/03/1998 12/03/1998 12/10/1998 12/14/1998 01/05/1999 01/19/1999 01/25/1999 01/27/1999 02/01/1999
02/26/1999 02/26/1999 03/08/1999

1 COMPLAINT filed; jury demand FILING FEE $ 150.00 RECEIPT # 253017 (femp) Additional attachment(s) added on 12/21/2005 (ev, ). (Entered: 08/06/1998)
2 NOTICE of Allocation and Assignment filed. Magistrate Judge RONALD J. HEDGES (femp) (mn, ). (Entered: 08/06/1998)
SUMMONS(ES) issued for ATTAND ATTMANAGE ( 20 Days) (Mailed to Counsel) (femp) (Entered: 08/19/1998)
3 APPLICATION by ATTAND ATTMANAGE and Clerk's Order extending time to answer. Answer due 11/3/98 for ATTAND ATTMANAGE (femp) (in−md, ). (Entered: 09/24/1998)
4 STIPULATION and ORDER, extending time , answer due for 12/2/98 for ATTAND ATTMANAGE ( signed by Mag. Judge Ronald J. Hedges ) (femp) (Entered: 10/22/1998)
5 WAIVER OF SERVICE RETURNED EXECUTED as to ATTAND ATTMANAGE 8/20/98 Answer deadline projected for 10/19/98 for ATTAND ATTMANAGE (femp) (in−md, ). (Entered: 10/22/1998)
6 NOTICE of Call for Dismissal Pursuant to Rule 41.1 Motion hearing set for 12/14/98 (femp) (Entered: 11/16/1998)
7 WAIVER OF SERVICE RETURNED EXECUTED as to ATTAND ATTMANAGE 8/20/98 Answer deadline projected for 10/19/98 for ATTAND ATTMANAGE (femp) (Entered: 11/19/1998)
8 ANSWER to Complaint by ATTAND ATTMANAGE (femp) (Entered: 12/03/1998)
9 ANSWER to Complaint by ATATTMANAGEMENT PEN (femp) (Entered: 12/03/1998)
10 Notice of Intent to submit a Dispositive motion by ATATTMANAGEMENT PEN (femp) (Entered: 12/11/1998)
11 Minute entry: Proceedings recorded by ; Minutes of: 12.14.98; The following actions were taken, withdrawing [6−1] dismiss/dismissal notice Call for Dismissal By Judge Nicholas H. Politan (femp) (in−md, ). (Entered: 12/17/1998)
12 Notice of Intent to submit a Dispositive motion by ATATTMANAGEMENT PEN (femp) (Entered: 01/05/1999)
13 ORDER extending time to 2.1.99 within which pltfs may serve opp to defts' motion for partial dismissal ( signed by Mag. Judge Ronald J. Hedges ) (femp) (Entered: 01/20/1999)
14 ORDER that pltfs. must provide opposition to defts.' motion for partial dismissal by 2/12/99 set motion filing deadline for defts. by 2/26/99 ( signed by Mag. Judge Ronald J. Hedges ) (DD) (in−md, ). (Entered: 01/26/1999)
15 ORDER, scheduling conference for 3/26/99 ( signed by Mag. Judge Ronald J. Hedges ) (femp) (in−md, ). (Entered: 01/28/1999)
16 ORDER extending time to 2.12.99 for pltf to serve opposition to defts' motion for partial dismissal purs to R 12(b)(6); deft to serve any reply thereto and deliver all motion papers to the court is set at 2.26.99 ( signed by Mag. Judge Ronald J. Hedges ) (femp) (in−md, ). (Entered: 02/02/1999)
17 Notice of MOTION for partial dismissal by ATATTMANAGEMENT PEN, Motion set for 3/22/99 on [17−1] motion proof of service (Brief/PO Subm) (femp) (in−md, ). (Entered: 03/01/1999)
18 CERTIFICATION of Alan Sefcik on behalf of ATATTMANAGEMENT PEN Re: [17−1] motion for partial dismissal (femp) (in−md, ). (Entered: 03/01/1999)
19 Notice of Intent to submit a Dispositive motion by ATATTMANAGEMENT PEN (femp) (in−md, ). (Additional attachment(s) added on 6/22/2009: # 1 signed) (in−md, ). (Entered: 03/08/1999)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 5 of 45

03/22/1999
03/22/1999 03/31/1999 04/23/1999 04/23/1999
04/23/1999 06/07/1999
06/25/1999 07/27/1999 08/17/1999 09/10/1999 09/17/1999 09/23/1999 09/27/1999 10/01/1999 10/04/1999
10/29/1999

20 Minute entry: Proceedings recorded by Ct−Reporter: Rizman; Minutes of: 3.22.99; The following actions were taken, [17−1] motion for partial dismissal taken under advisement ; ordered counsel to replead within 30 days by preparing proper caption and allegations; ordered that each count of the complaint to represent a seperate cause of action, each count must be specific. By Judge Nicholas H. Politan (femp) (in−md, ). (Entered: 03/23/1999)
21 ORDER, for Stephan R. Bruce to appear pro hac vice ( signed by Judge Nicholas H. Politan ) (femp) (in−md, ). (Entered: 03/23/1999)
22 TRANSCRIPT of Proceedings taken on 3.22.99 (femp) (cf, ). (Entered: 04/01/1999)
23 OPINION ( signed by Judge Nicholas H. Politan ) (femp) (in−md, ). (Entered: 04/23/1999)
24 ORDER granting [17−1] motion for partial dismissal; counts one through five and counts ten through fifteen are dismissed with prejudice; remainder of the complaint is dismissed without prejudice; pltfs are granted 45 days within to file an ameneded class action complaint that is consistent with this Court's 4−14−99 letter opinion ( signed by Judge Nicholas H. Politan ) (femp) (in−md, ). (Entered: 04/23/1999)
Case closed (femp) (Entered: 04/23/1999)
25 AMENDED COMPLAINT by MANAGEMENT EMPLOYEES , amending [1−1] complaint against PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR (nr) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 amened) (in−md, ). (Entered: 06/08/1999)
26 APPLICATION by ATATTMANAGEMENT PEN and Clerk's Order extending time to answer. Answer due 7/13/99 for ATTMANAGEMENT PEN, for ATT(femp) (in−md, ). (Entered: 06/28/1999)
27 STIPULATION and ORDER, extending time , answer due for 8/16/99 for ATTMANAGEMENT PEN, for ATT( signed by Mag. Judge Ronald J. Hedges ) (femp) Modified on 07/27/1999 (in−md, ). (Entered: 07/27/1999)
28 ANSWER by ATATTMANAGEMENT PEN to amended complaint (femp) (Entered: 08/18/1999)
29 ORDER that oral argument be conducted at 10:00 on 9/27/99; etc. ( signed by Mag. Judge Ronald J. Hedges ) (femp) (in−md, ). (Entered: 09/13/1999)
31 CERTIFICATION of Gerald J. Smit on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: EEOC age discrimination charge (femp) (in−md, ). (Entered: 09/23/1999)
30 ORDER that pltfs must provide defts with an original and one copy of pltfs' opp papers to defts' motion for partial dismissal by 10.4.99; etc. ( signed by Mag. Judge Ronald J. Hedges ) (femp) (in−md, ). (Entered: 09/23/1999)
32 Minute entry: Proceedings recorded by ; Minutes of: 9.27.99; The following actions were taken, denying [17−1] motion for partial dismissal By Mag. Judge Ronald J. Hedges (femp) (in−md, ). (Entered: 10/01/1999)
33 ORDER that discovery is stayed as to all claims that defts have moved to dimiss purs to R 12(b)(6) pending resolution of that motion; etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (femp) (in−md, ). (Entered: 10/04/1999)
34 Notice of MOTION by The American Association of Retired Persons for leave to file brief Amicus Curiae in support of the pltfs opp , Motion set for 11/8/99 on [34−1] motion proof of service (Brief/PO Subm) (femp) Modified on 10/06/1999 (in−md, ). (Entered: 10/05/1999)
35 Notice of MOTION for partial dismissal by ATATTMANAGEMENT PEN, Motion set for 11/22/99 on [35−1] motion proof of service (Brief/PO Subm) (femp) (in−md, ). (Entered: 11/03/1999)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 6 of 45

10/29/1999 10/29/1999
10/29/1999 10/29/1999 11/05/1999 11/05/1999 11/05/1999 11/05/1999 11/08/1999 11/08/1999 11/09/1999 11/10/1999 11/29/1999 12/01/1999 12/13/1999 12/13/1999

36 CERTIFICATION of Terrence J. Nolan, Esq. on behalf of ATATTMANAGEMENT PEN Re: [35−1] motion for partial dismissal (femp) (in−md, ). (Entered: 11/03/1999)
37 CERTIFICATION of Allen Sefcik on behalf of ATATTMANAGEMENT PEN Re: [35−1] motion for partial dismissal (femp) (cf, ). (Additional attachment(s) added on 10/8/2009: # 1 CERTIFICATION PART 2 OF 5) (cf, ). (Additional attachment(s) added on 10/8/2009: # 2 CERTIFICATION PART 3 OF 5) (cf, ). (Additional attachment(s) added on 10/8/2009: # 3 CERTIFICATION PART 4 OF 5) (cf, ). (Additional attachment(s) added on 10/8/2009: # 4 CERTIFICATION PART 5 OF 5) (cf, ). (Entered: 11/03/1999)
38 CERTIFICATION of Gerald J. Smit on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: [35−1] motion for partial dismissal (femp) (in−md, ). (Entered: 11/03/1999)
39 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN (femp) (in−md, ). (Entered: 11/03/1999)
40 Notice of MOTION to dismiss Pltf's First, Second &Ninth Claims by ATATTMANAGEMENT PEN, Motion set for 12/13/99 on [40−1] motion ; w/cert. of serv. (Brief/PO Subm) (DD) (in−md, ). (Entered: 11/08/1999)
41 CERTIFICATION of TERRENCE J. NOLAN, ESQ. w/attached exhibits A−I on behalf of ATATTMANAGEMENT PEN Re: [40−1] motion to dismiss Pltf's First, Second &Ninth Claims (DD) (cf, ). (Entered: 11/08/1999)
42 CERTIFICATION of GERALD SMIT on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: in opposition to [40−1] motion to dismiss Pltf's First, Second &Ninth Claims (DD) (in−md, ). (Entered: 11/08/1999)
43 CERTIFICATION of STEPHEN BRUCE on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: in opposition to [40−1] motion to dismiss Pltf's First, Second &Ninth Claims (DD) (in−md, ). (Entered: 11/08/1999)
44 ORDER granting [34−1] motion for leave to file brief Amicus Curiae in support of the pltfs opp ( signed by Judge Nicholas H. Politan ) (aa) (in−md, ). (Entered: 11/09/1999)
45 Minute entry: Proceedings recorded by Ct−Reporter: NONE; Minutes of: 11/8/99; The following actions were taken, At call for [34−1] motion for leave to file brief Amicus Curiae in support of the pltfs opp taken under advisement, purs to Rule 78. By Judge Nicholas H. Politan (DD) (in−md, ). (Entered: 11/09/1999)
Case reopened (as per chambers) (femp) (Entered: 11/09/1999)
46 Notice of MOTION for leave to file amended complaint by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR,and certificate of service Motion set for 9:30 12/13/99 on [46−1] motion . (Brief/PO Subm) (aa) (in−md, ). (Entered: 11/15/1999)
47 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN (femp) (Entered: 11/30/1999)
48 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN re: reply brief (femp) (in−md, ). (Entered: 12/02/1999)
49 Minute entry: Proceedings recorded by Ct−Reporter: Stan Rizman; Minutes of: 12/13/99; The following actions were taken, [46−1] motion for leave to file amended complaint taken under advisement, decision reserved. By Judge Nicholas H. Politan (bl) (in−md, ). (Entered: 12/15/1999)
50 Minute entry: Proceedings recorded by Ct−Reporter: Stan Rizman; Minutes of: 12/13/99; The following actions were taken, [35−1] motion for partial dismissal taken under advisement, decision Reserved. By Judge Nicholas H. Politan (bl) (in−md, ). (Entered: 12/15/1999)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 7 of 45

12/13/1999
04/14/2000 04/14/2000 04/24/2000 04/24/2000 05/09/2000 05/11/2000 05/12/2000 05/15/2000 06/07/2000 06/29/2000 06/29/2000
07/18/2000 07/26/2000 07/28/2000
09/08/2000 09/14/2000 09/15/2000 10/04/2000

51 Minute entry: Proceedings recorded by Ct−Reporter: Stan Rizman; Minutes of: 12/13/99; The following actions were taken, [40−1] motion to dismiss Pltf's First, Second &Ninth Claims taken under advisement, per rule 78. By Judge Nicholas H. Politan (bl) (Entered: 12/15/1999)
52 Notice of MOTION for preliminary injunction by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, Motion set for 5/8/00 on [52−1] motion proof of service (Brief/PO Subm) (femp) (in−md, ). (Entered: 04/17/2000)
53 CERTIFICATION of Gerald J. Smit, Esq. on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: [52−1] motion for preliminary injunction (femp) (in−md, ). (Entered: 04/17/2000)
54 CERTIFICATION in opposition of Sharon A. Byrne on behalf of ATTRe: [52−1] motion for preliminary injunction (femp) (in−md, ). (Entered: 04/25/2000)
55 CERTIFICATE OF SERVICE by ATT(femp) (in−md, ). (Entered: 04/25/2000)
56 Minute entry: Proceedings recorded by Ct−Reporter: Rizman; Minutes of: 5.9.00; The following actions were taken, granting [52−1] motion for preliminary injunction By Judge Nicholas H. Politan (femp) (in−md, ). (Entered: 05/10/2000)
58 CERTIFICATION of Carol Rosa on behalf of MANAGEMENT EMPLOYEES, PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR (femp) (in−md, ). (Entered: 05/15/2000)
57 TRANSCRIPT of Proceedings taken on 05/09/00 (sr) (cf, ). (Entered: 05/12/2000)
59 APPLICATION/motion for Edgar Pauk to appear pro hac vice by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR (copy to chambers) (femp) (in−md, ). (Entered: 05/16/2000)
60 ORDER for Edgar Pauk, Esq. to appear pro hac vice ( signed by Mag. Judge Ronald J. Hedges ) n/m (femp) (in−md, ). (Entered: 06/08/2000)
61 LETTER−OPINION ( signed by Judge Nicholas H. Politan ) (jd) Modified on 06/30/2000 (in−md, ). (Entered: 06/30/2000)
62 ORDER granting [46−1] motion for leave to file amended complaint granting in part, denying in part [40−1] motion to dismiss Pltf's First, Second &Ninth Claims granting in part, denying in part [35−1] motion for partial dismissal; Specifically, the First, Second, and Eighth Claims are dismissed with prejudice. Defts' motions to dismiss are denied as to the Fourth, Fifith, Sixth and Ninth Claims. ( signed by Judge Nicholas H. Politan ) n/m (jd) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 order) (in−md, ). (Entered: 06/30/2000)
63 SCHEDULING ORDER setting Status conference 10:30 9/15/00 ; etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (RG) (in−md, ). (Entered: 07/19/2000)
64 ANSWER by ATATTMANAGEMENT PEN to second amended complaint; jury demand, cert of service (sr) (in−md, ). (Entered: 07/26/2000)
65 Notice of MOTION for reargument of dismissal of Adea claims one and two, or entry of FRCP 54(b) or 28 USC 1292(b) order by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, Motion set for 9/11/00 on [65−1] motion . proof of service (Brief/PO Subm) (RG) (in−md, ). (Entered: 07/28/2000)
66 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN re: opp to pltfs' motion for reargument (RG) (in−md, ). (Entered: 09/11/2000)
67 Amended CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN (RG) (in−md, ). (Entered: 09/14/2000)
68 SCHEDULING ORDER setting Status conference 2/6/01 ; etc. ( signed by Mag. Judge Ronald J. Hedges ) (RG) (in−md, ). (Entered: 09/18/2000)
69 ORDER denying [65−1] motion for reargument of dismissal of Adea claims one and two, or entry of FRCP 54(b) or 28 USC 1292(b) order ( signed by Judge Nicholas H. Politan ) n/m (RG) (in−md, ). (Entered: 10/04/2000)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 8 of 45

10/10/2000 10/20/2000 11/13/2000
11/13/2000
11/13/2000 01/23/2001 02/08/2001 04/02/2001 06/07/2001 06/07/2001
06/15/2001 06/25/2001 06/25/2001 07/06/2001 07/10/2001

70 ORDER, for protective order ( signed by Mag. Judge Ronald J. Hedges ) nm (DR) (in−md, ). (Entered: 10/12/2000)
71 Notice of MOTION for class certification and approval of Adea Representative Action by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, Motion set for 12/11/00 on [71−1] motion proof of service (Brief/PO Subm) (RG) (in−md, ). (Entered: 10/23/2000)
72 CERTIFICATION of Kevin R. Armant on behalf of ATATTMANAGEMENT PEN Re: [71−1] motion for class certification and approval of Adea Representative Action (RG) (cf, ). (Additional attachment(s) added on 10/6/2009: # 1 CERTIFICATION PART 2 OF 3) (cf, ). (Additional attachment(s) added on 10/6/2009: # 2 CERTIFICATION PART 3 OF 3) (cf, ). (Entered: 11/14/2000)
73 CERTIFICATION of Christopher H. Mills, Esq. on behalf of ATATTMANAGEMENT PEN Re: [71−1] motion for class certification and approval of Adea Representative Action (RG) (cf, ). (Additional attachment(s) added on 10/6/2009: # 1 CERTIFICATION PART 2 OF 3) (cf, ). (Additional attachment(s) added on 10/6/2009: # 2 CERTIFICATION PART 3 OF 3) (cf, ). (Entered: 11/14/2000)
74 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN (RG) (in−md, ). (Entered: 11/14/2000)
75 Minute entry: Proceedings recorded by Ct−Reporter: Rizman; Minutes of: 1.23.01; The following actions were taken, [71−1] motion for class certification and approval of Adea Representative Action taken under advisement By Judge Nicholas H. Politan (RG) (in−md, ). (Entered: 01/30/2001)
76 ORDER directing pltfs' counsels to submit requested materials re: qualifications as to various resources needed to manage a class action; ( signed by Judge Nicholas H. Politan ) n/m (RG) (in−md, ). (Entered: 02/09/2001)
77 Case Management order/SCHEDULING ORDER setting Status conference 3:00 5/10/01; etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (RG) (in−md, ). (Entered: 04/03/2001)
78 LETTER−OPINION ( signed by Judge Nicholas H. Politan ) (jd) (in−md, ). (Entered: 06/11/2001)
79 ORDER granting [71−1] motion for class certification w/regard to the remaining claims in the Second Amended Complaint; the ninth claim for relief in the pltfs' second amended class action complaint is dismissed; pltfs shall submit, w/in 30 days of the date of this order, evidence which would tend to counter the defts' contention that none of the named pltfs will suffer a reduction in annual benefits commencing at age 65 by virtue of the Plan Amendment, etc. ( signed by Judge Nicholas H. Politan ) n/m (jd) (in−md, ). (Entered: 06/11/2001)
80 ORDER, extending time to file any application for relief from the order entered on June 6, 2001 an additional 10 days ( signed by Judge Nicholas H. Politan ) n/m (nr) (in−md, ). (Entered: 06/18/2001)
81 Notice of MOTION for reconsideration of [79−1] order by ATATTMANAGEMENT PEN, Motion set for 7/23/01 on [81−1] motion . (Letter Brief/PO Subm) (ar) (in−md, ). (Entered: 06/27/2001)
82 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re: [81−1] motion for reconsideration of [79−1] order (ar) (in−md, ). (Entered: 06/27/2001)
83 Notice of MOTION for leave to file amended complt. by MANAGEMENT EMPLOYEES, proof of service. Motion set for 9/10/01 on [83−1] motion . (Brief/PO Subm) (nr) (in−md, ). (Entered: 07/10/2001)
84 *** UNDER SEAL − CERTIFICATION of STEPHEN BRUCE on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Re: in support of plas' proffer of evidence on ERISA 204(H) CLAIM (ar) (Entered: 07/13/2001)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 9 of 45

07/10/2001 07/10/2001 07/16/2001 07/18/2001 07/23/2001
08/27/2001 08/27/2001 09/10/2001
09/25/2001 10/03/2001 10/04/2001 10/29/2001 11/02/2001 11/13/2001 11/13/2001 11/16/2001 11/20/2001 11/20/2001
11/26/2001

85 AFFIDAVIT of CLAUDE POULIN on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR (ar) (Entered: 07/13/2001)
86 CERTIFICATE OF SERVICE by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Service Re: Letter Brief and [85−1] affidavit, [84−1] ****UNDER SEAL certification (ar) (Entered: 07/13/2001)
87 CERTIFICATE OF SERVICE re: defts' reply brief opposing ATs Motion for reconsideration served upon counsel of record via Federal Express (sr) (in−md, ). (Entered: 07/18/2001)
88 ORDER, for an in camera inspection be conducted on 9/5/01 (signed by Mag. Judge Ronald J. Hedges)n/m (mh) (in−md, ). (Entered: 07/19/2001)
89 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 07/23/01; The following actions were taken, at call for [81−1] motion for reconsideration of [79−1] order taken under advisement, purs to Rule 78 By Judge Nicholas H. Politan (sr) (in−md, ). (Entered: 07/24/2001)
90 CERTIFICATE OF SERVICE of defts opposition to pltfs' motion for leave to file third amended complt. served upon counsel via federal express &hand delivery (sr) (in−md, ). (Entered: 08/28/2001)
91 CERTIFICATION of Patricia A. Cullen, Esq. on behalf of ATTRe: [83−1] motion for leave to file amended complt. (brief &appendix subm) (sr) (in−md, ). (Entered: 08/28/2001)
92 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 9/10/01; The following actions were taken, [83−1] motion for leave to file amended complt. taken under advisement. Rule 78. By Judge Nicholas H. Politan (jd) (in−md, ). (Entered: 09/13/2001)
93 CERTIFICATION of KENNETH C. MORGAN on behalf of ATATTMANAGEMENT PEN (nr) (in−md, ). (Entered: 09/26/2001)
94 ORDER re: in camera review of dft's privileged doc., etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (ak) (in−md, ). (Entered: 10/05/2001)
95 TRANSCRIPT of Proceedings taken on 1/23/01 by Court Reporter Stanley B. Rizman (DS) (cf, ). (Entered: 10/05/2001)
96 SUPPLEMENTAL CERTIFICATION of KENNETH C. MORGAN re pro hac vice (nr) Modified on 11/02/2001 (in−md, ). (Entered: 11/02/2001)
97 Notice of MOTION for reconsideration of [94−1] order by ATATTMANAGEMENT PEN, &cert. of service. Motion set for 11/30/01 on [97−1] motion . (Brief/PO Subm) (mn) (in−md, ). (Entered: 11/07/2001)
98 TRANSCRIPT of Proceedings taken on 9/5/01 (aa) (cf, ). (Entered: 11/14/2001)
99 TRANSCRIPT of Proceedings taken on 10/29/01 (aa) (cf, ). (Entered: 11/14/2001)
100 CERTIFICATE OF SERVICE by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR Service in opposition Re: [97−1] motion for reconsideration of [94−1] order (Brief sub.) (aa) (in−md, ). (Entered: 11/20/2001)
101 LETTER−OPINION ( signed by Judge Nicholas H. Politan ) (jd) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 district court) (in−md, ). (Entered: 11/26/2001)
102 ORDER granting [83−1] motion for leave to file a Third amended complt. denying [81−1] motion for reconsideration of [79−1] order; granting pltfs' motion to certify this matter as a class action (signed by Judge Nicholas H. Politan ) n/m (jd) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 order) (in−md, ). (Entered: 11/26/2001)
103 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 11/26/01; The following actions were taken, [97−1] motion for reconsideration of [94−1] order taken under advisement pursuant to R78. By Mag. Judge Ronald J. Hedges (aa) (in−md, ). (Entered: 11/28/2001)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 10 of 45

11/29/2001 11/30/2001
12/03/2001 12/12/2001 12/19/2001 12/19/2001
12/28/2001
01/03/2002
01/03/2002
01/03/2002
01/09/2002 01/09/2002 01/11/2002 01/11/2002 01/11/2002 01/16/2002 01/22/2002 02/04/2002

104 Third AMENDED Class Action COMPLAINT by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR ; jury demand (jd) (in−md, ). (Entered: 11/29/2001)
105 ORDER re: in camera review of certain documents; the Court shall continue the in camera review of dfts' priviledged documents at a conference on 11/30/01 at 9:30 a.m., etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (aa) (in−md, ). (Entered: 12/03/2001)
106 ORDER denying [97−1] motion for reconsideration of [94−1] order ( signed by Mag. Judge Ronald J. Hedges )n/m (ak) (in−md, ). (Entered: 12/04/2001)
107 APPLICATION by ATATTMANAGEMENT PEN and Clerk's Order extending time to answer third amended complaint. Answer due 1/2/02 for ATTMANAGEMENT PEN, for ATT(jd) (in−md, ). (Entered: 12/12/2001)
108 STIPULATION and ORDER, for protective amended order ( signed by Mag. Judge Ronald J. Hedges ) (bl) (in−md, ). (Entered: 12/20/2001)
109 ORDER ruling on dfts' claims of priviledge for those documents reviewed in camera on 11/30/01; for production of certain documents in the certification of Kenneth C. Morgan dated 9/25/01; separate order to address #s 2731 and #2736 to be turned over except for 2nd sentence of entry #65, etc. ( signed by Mag. Judge Ronald J. Hedges )n/m (aa) (in−md, ). (Entered: 12/27/2001)
113 CERTIFICATION of Stephen Bruce on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT Re: to complete record of in camera review before Mag. Judge Hedges. (mn) (in−md, ). (Entered: 01/08/2002)
110 Notice of MOTION for partial dismissal of the Third Amended Complaint, dismissing First, Second, Eighth, Ninth, Tenth, Eleventh and Twelfth Claims by dfts., ATATTMANAGEMENT PEN, Motion set for 1/28/02 on [110−1] motion (Brief/PO Subm) (cs) Additional attachment(s) added on 12/21/2004 (ev, ). (Entered: 01/04/2002)
111 CERTIFICATION of PATRICIA S. ROBINSON, ESQ. on behalf of dfts., ATATTMANAGEMENT PEN and in support of [110−1] motion for partial dismissal of the Third Amended Complaint, dismissing First, Second, Eighth, Ninth, Tenth, Eleventh and Twelfth Claims (cs) (in−md, ). (Entered: 01/04/2002)
112 CERTIFICATE OF SERVICE of [111−1] certification, [110−1] motion for partial dismissal of the Third Amended Complaint, dismissing First, Second, Eighth, Ninth, Tenth, Eleventh and Twelfth Claims and supporting brief w/appendix etc. (cs) (in−md, ). (Entered: 01/04/2002)
114 TRANSCRIPT of Proceedings taken on 11/30/01 by Court Reporter Rapid Transcript Service, Inc. (DS) (cf, ). (Entered: 01/15/2002)
115 TRANSCRIPT of Proceedings taken on 12/17/01 by Court Reporter Rapid Transcript Service, Inc. (DS) (cf, ). (Entered: 01/15/2002)
Deadline updated; reset status conference for 1:00 1/30/02 (nc) (Entered: 01/11/2002)
116 ORDER of REASSIGNMENT to Judge Bassler ( signed by Chief Judge John W. Bissell ) (ar) (in−md, ). (Entered: 01/16/2002)
CASE reassigned to Judge William G. Bassler (ar) (Entered: 01/16/2002)
117 ORDER re: Court's rulings on defts' claims of privilege for those documents reviewed in camera on 12/17/01, etc. ( signed by Mag. Judge Ronald J. Hedges ) n/m (sr) (in−md, ). (Entered: 01/17/2002)
118 LETTER ORDER, setting status conference for 2:00 2/4/02 ( signed by Magistrate Judge Madeline C. Arleo ) n/m (nr) (in−md, ). (Entered: 01/24/2002)
120 NOTICE of APPEAL by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT of Magistrate decision to District Court RE: [109−1] order, [105−1] order, [94−1] order Hearing on magistrate appeal set

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 11 of 45

02/07/2002 02/19/2002 02/19/2002
02/19/2002 02/19/2002 02/19/2002 02/22/2002 02/25/2002 03/11/2002 05/14/2002
05/16/2002 05/28/2002 06/26/2002

for 3/11/02, w/cert of service (brief subm). (sr) (in−md, ). (Entered: 02/11/2002)
119 Certified Copy Of Order from the USCA denied petition for permission to appeal; appeal no. 01−8045 (DS) (Entered: 02/08/2002)
121 Notice of Intent to submit a Dispositive motion partial dismissal of third amended complt. by ATATTMANAGEMENT PEN (mn) (in−md, ). (Entered: 02/22/2002)
122 Notice of MOTION to dismiss, 10th, 11th &12th claim in the third amended complt. by ATATTMANAGEMENT PEN, Motion set for 3/11/02 on [121−1] dispositive motion notice partial dismissal of third amended complt. . (Brief w/appendix/PO Subm) (mn) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 notice of motion) (in−md, ). (Entered: 02/22/2002)
123 CERTIFICATION of Patricia S. Robinson on behalf of ATATTMANAGEMENT PEN Re: [122−1] dispositive motion to dismiss, 10th, 11th &12th claim in the third amended complt. (mn) (in−md, ). (Entered: 02/22/2002)
124 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re: [122−1] dispositive motion to dismiss, 10th, 11th &12th claim in the third amended complt., brief, appendix &proposed form of order. (mn) (in−md, ). (Entered: 02/22/2002)
125 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re:deft's reply brief in support of mot. for partial dism. of third amended complt. (mn) (in−md, ). (Entered: 02/22/2002)
126 Minute entry: Proceedings recorded by Ct−Reporter: tape; Minutes of: 2/22/02; The following actions were taken, Status conference. No discovery to take place on claims not in the case. Counsel sent to jury deliberation room to work on discovery issues. By Magistrate Judge Madeline C. Arleo (aa) (in−md, ). (Entered: 02/26/2002)
127 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN as to Service of brief in opposition to pltfs' motion pursuant to Rule 72 objecting to Mag. Orders re atty−client privilege (bl) (in−md, ). (Entered: 02/27/2002)
128 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 3/11/02; The following actions were taken, [120−1] Magistrate appeal taken under advisement − RULE 78 By Judge William G. Bassler (ar) (in−md, ). (Entered: 03/14/2002)
129 Minute entry: Proceedings recorded by ; Minutes of: 05/14/02; The following actions were taken, Status Conference, Court will not change any ruling of Mag. Judge Hedges. Mr. Mills to confirm production of Donald Harrington and Hal Burlingham by the end of June. Depositions of Sethrec and Basseu will not take place until after Judge Bassler rules on pending motion to dismiss. Interrogatories 11 &19 more specific answers to be answered by dfts by 05/24/02 Mr. Bruce to rephrase request 38 and 39 t obe more specific by the 05/31/02. Deft to give amended responses to document #24 and #26 of the 04/09/02 letter of plt. Interrogatory answers to be amended as to request #11 and #15 of plt's April 9, 2002 letter. Ruling made on resquest #30−36 of Plf's letter of April 9 2002. Cousel to write a proposed form of order to be signed today. Balance of requests to be worked out by counsel to the extent possible and the Court will rule on any unresolved issued. Counsel worked out other issues. Status conference set for 06/26/02 12:pm By Magistrate Judge Madeline C. Arleo (JB) (in−md, ). (Entered: 05/15/2002)
130 ORDER, compelling discovery , for leave to take deposition of Adele Kellman , setting status conference for 12:00 6/26/02 ( signed by Magistrate Judge Madeline C. Arleo ) (NM) (JB) (in−md, ). (Entered: 05/17/2002)
131 TRANSCRIPT of Proceedings taken on 5/14/02 (Arleo) (jd) (cf, ). (Entered: 05/29/2002)
132 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 06/26/02; The following actions were taken, Status conf held on the record. Mr. Gollota's

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 12 of 45

07/10/2002 07/10/2002 07/12/2002 07/17/2002 09/04/2002
09/19/2002 10/11/2002 10/17/2002 10/17/2002
11/07/2002
11/07/2002

deposition to be sched promptly. ATTto produce Thomas Wyman if they are going to represent him. If not ATTis to turn over last known address. Both deps to be taken by the end of July or by a date agreed upon in August. Counsel for defendant to send a letter brief and documents re: confidentiality issue to the Court for in camera review by 07/10/02. Pla, to respd by 07/24/02. Statcnf to be set if necessary. Any pty cannot disseminate videotape depts on web sites w/out prior notice and consent of adversary. If counsel cannot agree Court will make the final ruling. Ms. Robinson to draft order. Pla to send a letter to the court why certain docs previous deemed confidential no longer be deemed confidential by 07/10/02. Deft to sent the Court a letter why said docs should remain protected under the protective order by 07/24/02. Pla is to include in his July 10th letter Interrogatories #2,3,4 and 6 and Judge Hedges' prior ruling. Deft to reply in her 07/24/02 letter. Pla to take a 30(b)(6) dep re: requests for docs as to rates of benefit accrual Status conference set for. (no date assigned). By Magistrate Judge Madeline C. Arleo (JB) (in−md, ). (Entered: 07/01/2002)
133 OPINION ( signed by Judge William G. Bassler ) (NJLJ, NJL) (JB) Modified on 07/15/2002 (in−md, ). (Entered: 07/15/2002)
134 ORDER that Magistrate Judge Hedges' Orders filed on Oct 3, 2001, Nov. 30, 2001, Dec 17, 2001, and Jan. 16, 2001 are hereby AFFIRMED.( signed by Judge William G. Bassler ) (NM) (JB) (in−md, ). (Entered: 07/15/2002)
136 CASE MANAGEMENT ORDER, setting status conference for 2:30 7/31/02 etc. ( signed by Magistrate Judge Madeline C. Arleo ) (NM) (JB) (in−md, ). (Entered: 07/19/2002)
135 TRANSCRIPT of Proceedings taken on 6/26/02 by Rapid Transcript Service (DS) (cf, ). (Entered: 07/18/2002)
137 Minute entry: Proceedings recorded by ; Minutes of: 09/04/02; The following actions were taken, Hearing on the record regarding redaction of document. Case management conference set for 11/07/02 at 2:00pm. Counsel to submit to the court a proposed discovery plan prior to the case management conference. By Magistrate Judge Madeline C. Arleo (JB) (in−md, ). (Entered: 09/10/2002)
138 TRANSCRIPT of Proceedings taken on 09/04/02(Honorable Arleo). (cs) (cf, ). (Entered: 09/20/2002)
139 ORDER, status conference for 2:00 11/7/02 ; etc. ( signed by Magistrate Judge Madeline C. Arleo ) (NM) (sr) (in−md, ). (Entered: 10/16/2002)
141 OPINION ( signed by Judge William G. Bassler ) (NJLJ, NJL). (JB) (cf, ). (Entered: 10/23/2002)
140 ORDER granting [110−1] motion for partial dismissal of the Third Amended Complaint, dismissing First, Second, Eighth, Ninth, Tenth, Eleventh and Twelfth Claims ( signed by Judge William G. Bassler ) (NM) (JB) Additional attachment(s) added on 12/21/2004 (ev, ). (Additional attachment(s) added on 6/22/2009: # 1 filed) (in−md, ). (Entered: 10/23/2002)
141 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 11/7/02; The following actions were taken, Status conference held on the record. Court rules that pltf's request for more specific answers to interrogatories is denied. Court sets schedule for letters on attorney/client priviledge issue. Pltf's letter due 11/15/02. Counsel to work out a deposition of an ATTboard member on issues presently in the case only. Mr. Basu's deposition put on hold until after motion to dismiss. Mr. Morgan's deps to be held in Judge Arleo's jury. Any issues that have not been worked out are to be brought before Judge Arleo before the deposition. By Magistrate Judge Madeline C. Arleo (aa) (Additional attachment(s) added on 9/30/2009: # 1 MINUTE ENTRY) (cf, ). (Additional attachment(s) added on 9/30/2009: # 2 MINUTE ENTRY) (cf, ). (Entered: 11/13/2002)
142 Notice of MOTION for reargument of partial dismissal by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT, Motion set for 12/9/02 on [142−1] motion w/certsvc. (Brief Subm) (aa) (cf, ). (Entered: 11/13/2002)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 13 of 45

11/25/2002
11/25/2002 12/02/2002
12/03/2002 12/17/2002 12/17/2002 12/31/2002 01/13/2003
02/19/2003 03/07/2003 04/23/2003
05/20/2003 05/21/2003 06/02/2003 06/06/2003
06/09/2003
06/10/2003

143 Notice of CROSS MOTION to strike [104−1] Third amended complaint allegations to dismissed claims. by ATATTMANAGEMENT PEN, Motion set for 12/23/02 on [143−1] cross motion w/certf of service (Brief/PO subm.). (JB) Modified on 11/27/2002 (cf, ). (Entered: 11/27/2002)
144 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re:of brief in opposition to [142−1] motion for reargument of partial dismissal (JB) (cf, ). (Entered: 11/27/2002)
145 LETTER ORDER denying [142−1] motion for reargument of partial dismissal for failure to set forth a basis for reconsideration permitted under local Rule 7.1 (g). ( signed by Judge William G. Bassler ) (NM) (JB) Modified on 12/03/2002 (cf, ). (Entered: 12/03/2002)
146 TRANSCRIPT of Proceedings taken on November 7, 2002 Honorable Madeline Cox Arleo (ce) (cf, ). (Entered: 12/03/2002)
147 ORDER of REASSIGNMENT, from Judge Bassler to Judge Linares ( signed by Chief Judge John W. Bissell ) (NM) (ak) (cf, ). (Entered: 12/17/2002)
CASE reassigned to Judge Jose L. Linares (ak) (Entered: 12/17/2002)
148 ORDER, setting status conference for 10:30 3/6/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 01/07/2003)
149 Minute entry: Proceedings recorded by Ct−Reporter: none; Minutes of: 01/13/03; The following actions were taken, setting motion hearing on [143−1] cross motion to strike [104−1] Third amended complaint allegations to dismissed claims. by ATTMANAGEMENT PEN, ATTfor 10:00 2/24/03 By Judge Jose L. Linares (JB) (cf, ). (Entered: 01/15/2003)
150 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re: a copy of Deft's Letter in reply to plaintiff's opposition to defendants's motion to strike. (JB) (cf, ). (Entered: 02/20/2003)
151 ORDER, resetting status conference for 11:00 4/9/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 03/07/2003)
152 ORDER, Pltf's application to compel production of documets described in request No. 24 of plaintiffs' second request for production of documents is DENIED setting status conference for 1:00 4/28/03 etc. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 04/29/2003)
154 ORDER, granting in part and denying in part application for production of documents setting discovery due for 6/30/03 , status conference for 4:00 6/4/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (nr) (cf, ). (Entered: 05/22/2003)
153 TRANSCRIPT of Proceedings taken on 4/28/03 Honorable Ronald J. Hedges (ce) (cf, ). (Entered: 05/21/2003)
155 ORDER, that the court's Order of 04/23/03 remains in full force and effect except as modified herein. etc. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 06/03/2003)
157 Notice of MOTION for reconsideration of [155−1] order, [154−1] order setting discovery due for 6/30/03 by ATATTMANAGEMENT PEN, Motion set for 7/14/03 on [157−1] motion . (Letter Brief/PO Subm) (JB) (cf, ). (Entered: 06/10/2003)
156 ORDER, that paragraph 16 of the Court's Orders entered on 05/22/03 and on 06/03/03 providing that fact discovery shall be completed on or before 06/30/03 is hereby vacated. rescheduling status conference for 1:00 6/30/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 06/09/2003)
158 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re: [157−1] motion for reconsideration of [155−1] order, [154−1] order setting discovery due for 6/30/03 serve on 06/06/03 via Federal Express to plaintiff. along w/ copy of Local Rule 7.1(g) Letter brief and Motion. (JB) (cf, ). (Entered: 06/11/2003)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 14 of 45

07/01/2003 07/10/2003 07/14/2003 07/15/2003 07/17/2003 07/17/2003 07/31/2003
08/21/2003 08/21/2003
08/25/2003 09/08/2003 09/08/2003 09/08/2003 09/11/2003

159 ORDER denying [157−1] motion for reconsideration of [155−1] order, [154−1] order setting discovery due for 6/30/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 07/02/2003)
160 TRANSCRIPT of Proceedings taken on June 30, 2003 Honorable Ronald J. Hedges (ce) (cf, ). (Entered: 07/11/2003)
164 Minute entry: Proceedings recorded by Ct−Reporter: 07/14/03; Minutes of: 07/14/03; The following actions were taken, denying [157−1] motion for reconsideration of [155−1] order, [154−1] order setting discovery due for 6/30/03 By Mag. Judge Ronald J. Hedges (JB) (cf, ). (Entered: 07/25/2003)
161 ORDER, that paragraph 9 of the Order entered on May 22, 2003 and paragraph 9 of the Order entered on June 06, 2003 hereby stayed pending the outcome of defendant's appeal therefrom. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 07/17/2003)
162 Notice of MOTION Appealing from Magistrate Judge's Discovery ruling pursuant to Local Civ. Rule 72.1(c)(1)(A) by ATATTMANAGEMENT PEN, Motion set for 9/8/03 on [162−1] motion w/cert of service. (Brief/PO Subm) (JB) (cf, ). (Entered: 07/21/2003)
163 CERTIFICATION of PATRICIA S. ROBINSON, ESQ. on behalf of ATATTMANAGEMENT PEN Re: in support of [162−1] motion Appealing from Magistrate Judge's Discovery ruling pursuant to Local Civ. Rule 72.1(c)(1)(A) (JB) (cf, ). (Entered: 07/21/2003)
165 ORDER, that Plaintiff shall be permitted to take the deposition of Kal Basu only by telephone. The deposition shall not exceed one hour and the questioning shall be limited to inquiring as to whether Mr. Basu had anything to do with preparation of notices etc. setting fact discovery due for 8/15/03 , setting status conference for 2:00 10/8/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 08/05/2003)
166 Notice of MOTION objecting to ruling on doc. requests &a key deposition by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT, &cert. of service. Motion set for 9/22/03 on [166−1] motion . (Brief/PO Subm) (mn) (cf, ). (Entered: 08/22/2003)
167 CERTIFICATION of Stephen R. bruce on behalf of PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT Re: [166−1] in support of motion objecting to ruling on doc. requests &a key deposition (mn) (cf, ). (Additional attachment(s) added on 9/30/2009: # 1 CERTIFICATION PART 2 OF 2) (cf, ). (Entered: 08/22/2003)
168 CERTIFICATION of Stephen R. Bruce Re: [162−1] opposing defts motion Appealing from Magistrate Judge's Discovery ruling pursuant to Local Civ. Rule 72.1(c)(1)(A) &cert. of service. (brief sub.) (mn) (cf, ). (Entered: 08/27/2003)
169 Minute entry: Proceedings recorded by ; Minutes of: 09/08/03; The following actions were taken, [162−1] motion Appealing from Magistrate Judge's Discovery ruling pursuant to Local Civ. Rule 72.1(c)(1)(A) taken under advisement pursuant to R78. By Judge Jose L. Linares (JB) (cf, ). (Entered: 09/15/2003)
170 CERTIFICATION of PATRICIA A. CULLEN, ESSQ. on behalf of ATATTMANAGEMENT PEN Re: in opposition [166−1] motion objecting to ruling on doc. requests &a key deposition (JB) (cf, ). (Entered: 09/16/2003)
171 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PEN Service Re: [170−1] certification and Brief in response to plaintiff's motion appealing the Magistrate Judge's Dicovery Orders. (JB) (cf, ). (Entered: 09/16/2003)
172 ORDER, that defendants shall be premitted to take the depositiions of Bonny Berger and Edward O'Brien by 09/30/03. Defts, shall also be allowed to depose one of the three individuals who were identified as Gary Morse, Ralph Colotti, or Bob Strong. Deposition shall also occur by 9/30/03. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 09/18/2003)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 15 of 45

09/22/2003 09/30/2003 11/05/2003
11/12/2003 11/26/2003 12/01/2003
12/04/2003 12/04/2003 12/15/2003 12/22/2003 01/26/2004 02/02/2004 02/24/2004
03/08/2004

173 ORDER, that defendants' request to extend the deadline for taking depositions beyond 08/15/03 is Granted. The parteis are directed to make every effort to completer the depositions by 09/30/03. etc. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 09/24/2003)
174 ORDER, that the time for serving the expert report of the plaintiff's communications expert is extended to 11/03/03 ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 10/02/2003)
175 CERTIFICATION of BRIAN M. BYRNES on behalf of ATATTMANAGEMENT PEN Re: in connection w/defts response to request No. 13 of plaintiff's second request for documents, which demanded the production of "any legal memoranda on cash balance issues in the possession of plan administrator" etc. (JB) (cf, ). (Entered: 11/10/2003)
176 TRANSCRIPT of Proceedings taken on 10/29/03 Hon. Ronald J. Hedges (ce) (cf, ). (Additional attachment(s) added on 10/7/2009: # 1 TRANSCRIPT) (cf, ). (Entered: 11/13/2003)
178 CERTIFICATE OF SERVICE by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT Service Re: of SUBPOENA as to Universal Mailing services Inc. c/o Edwin Adam. accepted by Rosel Frank. on 11/19/03. (JB) (cf, ). (Entered: 12/04/2003)
177 ORDER, that defendant shall produce to plaintiffs, w/in 7 days of the date of this conference, a list as describe in the Court's August 5, 2003. order etc. and Plaintiff's application for additional info re: materials presented to ATS Board of Directors re: the Plan Amendment is DENIED, ETC. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 12/03/2003)
Deadline updated; terminating [122−2] hearing Motion set for 3/11/02 on [121−1] dispositive motion notice partial dismissal of third amended complt. (dh) (Entered: 12/04/2003)
179 OPINION AND ORDER granting in part, denying in part [143−1] cross motion to strike [104−1] Third amended complaint allegations to dismissed claims. ( signed by Judge Jose L. Linares ) (JB) (cf, ). (Entered: 12/09/2003)
180 ORDER, extending time for service of report of defendant's actuarial expert. ( signed by Mag. Judge Ronald J. Hedges ) (NM) (JB) (cf, ). (Entered: 12/18/2003)
181 ANSWER by ATATTMANAGEMENT PEN to third amended class action complaint; jury demand w/certf of service. (JB) (cf, ). (Entered: 12/31/2003)
Minute Entry for proceedings held before Judge Ronald J. Hedges : Scheduling Conference held on 1/26/2004. (Del Mauro, M) (Entered: 01/29/2004)
182 ORDER extending time for service of report of defendants communications expert until 02/06/04. all other provisions of the Courts's Order entered on 12/03/03 remain in effect except as modified herein. Signed by Judge Ronald J. Hedges on 02/02/04. (JB, ) (Entered: 02/06/2004)
183 ORDER that the depositions of the commmunication experts shall be conducted in Newark the week of 2−23−27,2004. All other provisions of the Court's Order entered on 12/03/03 remain in effect as modified herein. No ruling is intended as to whether the defts are entitled to offer two reports from communication experts on the identical subject matter and topics. . Signed by Judge Ronald J. Hedges on 02/24/04. (JB, ) (Entered: 03/01/2004)
185 ORDER re 184 Opinion, Order Judge Linares remanded one matter to me for furhter consideration. I will hear oral argument on production of the "Sales Agreement" at 3:00p.m. on March 22, 2004. Plaintiff may make any written sbumission w/regard to this document. not later than 03/15/04. Defts may respond not later than 03/18/04. Defendants shall produce the Sales Agreement for in Camera inspection during oral argument.. Signed by Judge Ronald J. Hedges on 03/08/04. (JB, ) (Entered: 03/09/2004)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 16 of 45

03/09/2004 03/16/2004 03/18/2004 04/21/2004 05/19/2004 05/20/2004 05/20/2004 05/25/2004 06/04/2004 06/23/2004 06/23/2004 06/25/2004 06/28/2004
06/28/2004 06/29/2004 07/07/2004

184 OPINION &ORDER that plaintiff's appeal of paragraph 2 of the June 2, 2003 Order by Magisrate Judge Hedges to deny Plaintiff's application to Compel Production is DENIED etc. . Signed by Judge Jose L. Linares on 03/08/04. (JB, ) (Entered: 03/09/2004)
186 ORDER that dispositive motion practice shall be governed by Appendix N of the local Civil Rules. etc.. Signed by Judge Ronald J. Hedges on 03/16/04. (JB, ) (Entered: 03/18/2004)
187 ORDER that initial and opposition brief filed by either party during dispositive motion practice shall not exceed 50 (fifty), Reply brief by either party shall not exceed 20 (twenty).. Signed by Judge Jose L. Linares on 03/18/04. (JB, ) (Entered: 03/22/2004)
188 SCHEDULING ORDER:Any dispostive Motions due by 5/21/2004.Opposition papers be served by 6/11/2004.Reply brief, and the motion packages filed w/Court by 6/25/2004. Signed by Judge Ronald J. Hedges on 4/21/2004. (mn, ) (Entered: 04/23/2004)
Minute Entry for proceedings held before Judge Ronald J. Hedges : Discovery Hearing held on 5/19/2004. (Del Mauro, M) (Entered: 05/19/2004)
189 LETTER OPINION AND ORDER, for the reasons set forth above, defendants shall produce the Sales Agreement in issue w/in 10 days of the date herein. . Signed by Judge Ronald J. Hedges on 05/20/04. (JB, ) (Entered: 05/20/2004)
190 ORDER that dispositive motion practice shall be governed by appendix N of the local civil rules. Opening briefs in support of any dispositive motions by either party shall be served on the other party by 6/18/04. etc. . Signed by Judge Ronald J. Hedges on 05/20/04. (JB, ) (Entered: 05/21/2004)
Minute Entry for proceedings held before Judge Ronald J. Hedges : Scheduling Conference held on 5/25/2004. (Del Mauro, M) (Entered: 05/28/2004)
191 ORDER w/seven (7) days of 5/25/04, counsel for defendants shall produce to counsel for plaintiffs a copy of tyhe videotape of the 9/25/97 walk−through of the Cash balance seminar produced by AYCO in respone to plaintiff's subpoena etc.. Signed by Judge Ronald J. Hedges on 06/04/04. (JB, ) (Entered: 06/07/2004)
192 Notice of Intent to submit a Dispositive motion by ATT(Attachments: # 1)(MILLS, CHRISTOPHER) (Entered: 06/23/2004)
193 Notice of Intent to submit a Dispositive motion by PHILLIP C. ENGERS, MANAGEMENT EMPLOYEES OF ATWARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated, (NIRENBERG, JONATHAN) (Entered: 06/23/2004)
197 Notice of Intent to submit a Dispositive motion by defendants. (dc, ) (Entered: 07/08/2004)
CLERKS OFFICE QUALITY CONTROL MESSAGE − The Notice of Intent Dispositive motion, document number 193 submitted by J. Nirenberg on 6/23/04. The Document did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE BY 7/1/04. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only. (cs) (Entered: 06/28/2004)
194 ORDER date of service of opening briefs in support of dispositive motions under Appendix N of the Local Rules is extended to 6/23/04, etc.. Signed by Judge Ronald J. Hedges on 6/28/04. (bl, ) (Entered: 06/29/2004)
195 Notice of Intent to submit a Dispositive motion by PHILLIP C. ENGERS, MANAGEMENT EMPLOYEES OF ATWARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated, (NIRENBERG, JONATHAN) (Entered: 06/29/2004)
196 NOTICE by PHILLIP C. ENGERS, MANAGEMENT EMPLOYEES OF ATWARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 17 of 45

07/08/2004 07/12/2004
08/09/2004 08/20/2004 09/14/2004
09/15/2004 09/21/2004 09/21/2004 09/29/2004 10/07/2004
10/07/2004

behalf of all others similarly situated, re 195 Notice of Intent to submit a Dispositive motion, 193 Notice of Intent to submit a Dispositive motion − revised brief (NIRENBERG, JONATHAN) (Entered: 07/07/2004)
198 ORDER that Pltf's Memorandum of Law in Support of Summary Judgment dated 6/23/04, is STRICKEN for failure to conform w/Local Civil Rule 7.2(b) and (d) &this Court's Order dated 3/18/04; substitute brief due 7/7/04; all subsequent filing deadlines are extended two weeks; etc.,. Signed by Judge Jose L. Linares on 7/8/04. (DD, ) (Entered: 07/09/2004)
199 ORDER that Pltfs' Memorandum of Law in Support of Motion for Summary Judgment dated 6/23/04 is WITHDRAWN; Pltfs shall serve a substitute brief, no later than 7/7/04, no longer than 50 pgs; all subsequent filing deadlines set forth in Mag. Judge Hedges' Order dated 5/19/04 are extended by 2 weeks; opposition due 8/13/04; reply briefs due 9/17/04; etc.. Signed by Judge Jose L. Linares on 7/9/04. (DD, ) (Entered: 07/12/2004)
200 Consent ORDER that the date for service of briefs in opposition to motions for summary judgment is hereby extended to 8/20/04; the date for service of reply briefs and filing of all motion papers with the Court purs. to Appendix N is extended to 9/30/04. Signed by Judge Ronald J. Hedges on 8/9/04. (jd, ) (Entered: 08/10/2004)
201 Letter from Stephen Bruce/Jonathan I. Nirenberg re: Plaintiffs' Opposition to Defendants' Motin for Summary Judgment. (NIRENBERG, JONATHAN) (Entered: 08/20/2004)
202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint by PHILLIP C. ENGERS, MANAGEMENT EMPLOYEES OF ATWARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Brief in support of Motion to Amend Complaint# 2 Certification of Stephen R. Bruce# 3 Proposed Amended Complaint# 4 Text of Proposed Order # 5 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 09/14/2004)
Set Deadlines as to 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint. Motion Hearing set for 10/12/2004 10:00 AM before Judge Jose L. Linares. Please be advised that this motion will be decided on the papers unless otherwise notified by the Court. (mn, ) (Entered: 09/15/2004)
203 ORDER that the return date of pltfs' motion for leave to file a fourth amended class action complaint and to amend the class definition be adjourned from 10/12/04 to 10/25/04, etc.. Signed by Judge Jose L. Linares on 9/20/04. (jd, ) (Entered: 09/21/2004)
Reset Deadlines as to 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint. Motion Hearing set for 10/25/2004 before Judge Jose L. Linares. (Please be advised that this motion will be decided on the papers unless otherwise notified by the court) (jd, ) (Entered: 09/21/2004)
204 ORDER that the date for service of briefs in reply to motions for summary judgment is hereby extended on 10/07/04. etc.. Signed by Judge Jose L. Linares on 09/29/04. (JB, ) (Entered: 09/30/2004)
205 MOTION for Summary Judgment by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. Responses due by 10/7/2004 (Attachments: # 1 Brief # 2 Statement of Facts# 3 Certification Bruce# 4 Certification Poulin# 5 Certification Anderson# 6 Text of Proposed Order # 7 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 10/07/2004)
206 BRIEF in Opposition re 205 MOTION for Summary Judgment (Plaintiffs') filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Statement Defendants' Response to Plaintiffs' 56.1 Statement of Material Facts# 2 Certification pf Robinson, Esq. in Opposition to Plaintiffs' Motion for Summary Judgment# 3 Certification of Service of Defendants' Opposition Papers)(MILLS, CHRISTOPHER) (Entered: 10/07/2004)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 18 of 45

10/07/2004
10/07/2004
10/07/2004 10/07/2004 10/07/2004 10/07/2004 10/08/2004 10/08/2004 10/12/2004

207 MOTION for Summary Judgment by ATATTMANAGEMENT PENSION PLAN. Responses due by 10/7/2004 (Attachments: # 1 Brief of Defendants in Support of Motion for Summary Judgment# 2 Statement by Defendants of Undisputed Material Facts, pursuant to Local Civil Rule 56.1# 3 Exhibit s A &B to Defendants Rule 56.1 Statement# 4 Certification of Robinson, Esq. in Support of Defendants' Motion for Summary Judgment# 5 Certification of Brian M. Byrnes in Support of Defendants' Motion for Summary Judgment# 6 Certification of Edwin J. Adam in Support of Defendants' Motion for Summary Judgment# 7 Text of Proposed Order Granting Summary Judgment to Defendants# 8 Certification of Service of Defendants' Moving Papers in Support of Defendants' Motion for Summary Judgment)(MILLS, CHRISTOPHER) (Entered: 10/07/2004)
208 REPLY to Response to Motion re 207 MOTION for Summary Judgment filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief Reply Brief in Further Support of Defendants' Motion for Summary Judgment# 2 Certification of Mills, Esq. in Support of Defendants' Motion for Summary Judgment# 3 Statement of Defendants' in Response to Plaintiffs' Rule 56.1 Counter−Statement of Material Facts# 4 Statement of Abbreviations/Short Name Conventions used by Defendants in papers submitted on both motions for summary judgment# 5 Certification of Service of Defendants's Reply Papers, of E−filing and of filing documents under seal)(MILLS, CHRISTOPHER) (Entered: 10/07/2004)
209 BRIEF in Opposition re 207 MOTION for Summary Judgment filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Counter−Statement of Material Facts# 2 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 10/07/2004)
210 REPLY to Response to Motion re 205 MOTION for Summary Judgment (Plaintiffs') filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 10/07/2004)
213 Defendants' appendix in support of motion for summary judgment (VOLUME 1−7) filed by ATATTMANAGEMENT PENSION PLAN. (JB, ) Additional attachment(s) added on 4/6/2005 (JB, ). Modified on 4/6/2005 (JB, ). (all the exhibits to all volumes are located in clerk's office file room in a large box.) (Entered: 10/14/2004)
214 APPENDIX VOULUMES I−VI in support of plaintiff's motion for summary judgment. filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (JB, ) Additional attachment(s) added on 4/6/2005 (JB, ). Modified on 4/6/2005 (JB, ).(all exhibits of all volumes are located in clerk's file room in a large box) (Entered: 10/14/2004)
CLERKS OFFICE QUALITY CONTROL MESSAGE − The attachment for the Brief in opposition to motion for summary judgment submitted by Christopher Mills on 10/07/04 is unreadable. PLEASE RESUBMIT THE DOCUMENT BY breaking it in part by saving 50 pages at a time or 2.0 MB. Please resubmit by 10/13/04 three buiness days from the date of this annonation.(JB, ) (Entered: 10/08/2004)
211 RESPONSE to Motion re 205 MOTION for Summary Judgment PER THE COURT CLERK'S INSTRUCTIONS DEFENDANTS ARE RE−FILING THEIR RESPONSE TO PLAINTIFFS' RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS (This document consists of pages 1−51) filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Statement (Pages 52−99)# 2 Statement (Pages 100−151))(MILLS, CHRISTOPHER) (Entered: 10/08/2004)
212 Cross MOTION to Strike 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint, 205 MOTION for Summary Judgment (by Plaintiffs) by ATATTMANAGEMENT PENSION PLAN. Responses due by 10/18/2004 (Attachments: # 1 Brief of Defendants in Support of Cross−Motion to Strike Portions of Plaintiffs' Motion for Summary Judgment, and in Opposition to

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10/14/2004 10/15/2004
10/15/2004 10/15/2004 10/20/2004 10/20/2004 10/20/2004 10/21/2004
11/01/2004
11/01/2004

Plaintiffs' Motion for Leave to Amend Complaint and Class Definition# 2 Text of Proposed Order Striking Portions of Plaintiffs' Motion for Summary Judgment# 3 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 10/12/2004)
217 CERTIFICATE OF SERVICE by ATATTMANAGEMENT PENSION PLAN re 213 Brief (JB, ) (Entered: 10/18/2004)
215 MOTION to Strike 205 MOTION for Summary Judgment (filed by Plaintiffs) by ATATTMANAGEMENT PENSION PLAN. Responses due by 10/25/2004 (Attachments: # 1 Brief of Defendants' in Support of Motion to Exclude Certain Evidence and to Strike Portions of Plaintiffs' R.56 Statment in Support of Motion for Summary Judgment# 2 Certification of Patricia S. Robinson Esq. in Support of Defendants' Motion to Exclude Evidence and Strike Portions of Plaintiffs' R. 56.1 Statement of Undisputed Material Facts# 3 Text of Proposed Order # 4 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 10/15/2004)
216 MOTION to Preclude Testimony of Experts Claude Poulin and James Stratman (Certification of Patricia A. Cullen, Esq. is oversized and is being filed by hand) by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief of Defendants in Support of Motion to Exclude Testimony of Plaintiffs' Experts Claude Poulin and James Stratman# 2 Text of Proposed Order # 3 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 10/15/2004)
220 Certification of Patricia A. Cullen, Esq. on behalf of ATATTMANAGEMENT PENSION PLAN in support of 216 Motion to Preclude,. (JB, ) (Entered: 10/21/2004)
218 REPLY to Response to Motion re 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 10/20/2004)
219 BRIEF in Opposition re 212 Cross MOTION to Strike 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint, 205 MOTION for Summary Judgment (by Plaintiffs) filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 10/20/2004)
221 ORDER that the date for service and filingo plaintiff's reply brief in support of the moiton for leave to amned (doc#202) is extended to 10/20/04. etc. . Signed by Judge Jose L. Linares on 10/20/04. (JB, ) (Entered: 10/21/2004)
222 BRIEF in Opposition re 212 Cross MOTION to Strike 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint, 205 MOTION for Summary Judgment (by Plaintiffs) refiled brief because page was missing from initial version filed by PHILLIP C. ENGERS, MANAGEMENT EMPLOYEES OF ATWARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (NIRENBERG, JONATHAN) (Entered: 10/21/2004)
setting Deadlines as to 205 MOTION for Summary Judgment, 207 MOTION for Summary Judgment, 212 Cross MOTION to Strike 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint, 205 MOTION for Summary Judgment (by Plaintiffs). Motion Hearing set for 11/8/2004 10:00 AM before Judge Jose L. Linares. (PLEASE BE ADVISE THAT THIS MOTION WILL BE DECIDED ON PAPERS UNLESS OTHERWISE NOTIFY BY THE COURT). (JB, ) (Entered: 11/01/2004)
Setting Deadlines as to 215 MOTION to Strike 205 MOTION for Summary Judgment (filed by Plaintiffs), 216 MOTION to Preclude Testimony of Experts Claude Poulin and James Stratman (Certification of Patricia A. Cullen, Esq. is oversized and is being filed by hand). Motion Hearing set for 11/22/2004 10:00 AM before Judge Jose L. Linares. (Please be advised that this motion will be decide on papers unless otherwise notify by the court). (JB, ) (Entered: 11/01/2004)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 20 of 45

11/01/2004 11/01/2004 11/01/2004 11/03/2004
11/08/2004 11/08/2004 11/08/2004 11/08/2004 11/08/2004 11/19/2004

CLERKS OFFICE QUALITY CONTROL MESSAGE − The Statement of facts document #209 w/83 pages submitted by Jonathan Nirenberg on 10/07/04 is unreadable. PLEASE RESUBMIT THE DOCUMENT BY November 3, 2004 3 business days from the date of this annotation. Please be advised that the document needs to be less than 2.0 MB in order to be read by the system. You need to re−submit this documents save in 2 parts, eg. pages 1−40 then 41−83. thanks.(JB, ) (Entered: 11/01/2004)
CLERKS OFFICE QUALITY CONTROL MESSAGE − The response to motion #205 submitted by Chritopher Mills on 10/08/04 is unreadable. PLEASE RESUBMIT THE DOCUMENT BY November 5, 2004 three business days from the date of the annotation, this documents needs to be split in part of 30 pages per save or less than 2.0 MB in order for the system to be able to read it. Thanks.(JB, ) (Entered: 11/01/2004)
223 RESPONSE in Opposition re 205 MOTION for Summary Judgment THIS IS DEFENDANTS' RESPONSE TO PLAINTIFFS' RULE 56.1 STATEMENT OF MATERIAL FACTS (It is being re−filed a 2nd time pursuant to the Clerk's 11/1/04 request. It has been broken into 5 sub−parts. The first sub−part consists of pages 1− 30. The other sub−parts are attached.) filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 [Pages 31 − 60]# 2 [Pages 61 − 91]# 3 [Pages 92 − 123]# 4 [Pages 124 − 153])(MILLS, CHRISTOPHER) (Entered: 11/01/2004)
224 RESPONSE in Opposition re 207 MOTION for Summary Judgment This is Plaintiffs' LR 56.1 Counter−Statement originally filed under Dkt # 209. It is being refiled in two parts in response to the Clerk's 11/1/04 request. The first part consists of the cover page plus pages 1−39. Attachment # 1 contains the second part. filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 [Pages 40−82 of LR 56.1 Counter−Statement])(NIRENBERG, JONATHAN) (Entered: 11/03/2004)
225 ORDER that the motion hearing date for defendant's motions to exclude expert terstimony and certain evidence dkt#215 and 216 is re−set for 12/27/04. Plaintiffs shall file their opposition by 11/22/04. defendants shall file their reply by 12/13/04.. Signed by Judge Jose L. Linares on 11/08/04. (JB, ) (Entered: 11/08/2004)
adjourning deadline for 216 MOTION to Preclude Testimony of Experts Claude Poulin and James Stratman (Certification of Patricia A. Cullen, Esq. is oversized and is being filed by hand). Motion reset for 12/27/2004 10:00 AM before Judge Jose L. Linares. (JB, ) (Entered: 11/08/2004)
226 Minute Entry for proceedings held before Judge Ronald J. Hedges : Motion Hearing held on 11/8/2004 re 202 MOTION to Amend/Correct 196 Notice (Other), Notice (Other) the Complaint filed by MANAGEMENT EMPLOYEES OF ATPHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. ORDERED MOTION GRANTED IN PART. (Tape #04−43.) (nm, ) (Entered: 11/09/2004)
227 ORDER denying 202 Motion to Amend class action complaint. Plaintiff may submitt new form of order to allow new legal theories only to be pled. . Signed by Judge Ronald J. Hedges on 11/08/04. (JB, ) (Entered: 11/09/2004)
228 TRANSCRIPT of Proceedings held on 11/8/2004 before Judge Hedges. PLEASE NOTE: The complete transcript of these proceedings is maintained in paper format on file in the Clerks Office. To request copies of this transcript, contact the Official Court Reporter or Transcription Service who prepared the transcript. (ji, ) (Entered: 11/18/2004)
229 ORDER that plaintiff may plead the following new legal theoris as set forth in paragraphs 88A and 94A of the proposed Fourth Amended Class Action Complaint etc. Plaitiff's motion to amned the class definitiion in the Order dated 1/19/01 to remove the proviso that a class member must be "currently over age forty" is DENIED. Accordingly, paragraph 12 of the complaint shal not be amended.. Signed by Judge Ronald J. Hedges on 11/19/04. (JB, ) (Entered: 11/22/2004)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 21 of 45

11/22/2004 11/22/2004 11/23/2004 12/06/2004 12/06/2004 12/07/2004 12/07/2004 12/13/2004 12/13/2004 12/13/2004

230 BRIEF in Opposition re 216 MOTION to Preclude Testimony of Experts Claude Poulin and James Stratman (Certification of Patricia A. Cullen, Esq. is oversized and is being filed by hand) filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Certification of Stephen Bruce w/ Exhibits 1−3# 2 Text of Proposed Order # 3 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 11/22/2004)
231 BRIEF in Opposition re 215 MOTION to Strike 205 MOTION for Summary Judgment (filed by Plaintiffs) filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Certification of Stephen Bruce w/ Exhibits A−B# 2 Text of Proposed Order # 3 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 11/22/2004)
232 AMENDED COMPLAINT filed pursuant to Order (dkt. # 229) against ATATTMANAGEMENT PENSION PLAN, filed by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,.(NIRENBERG, JONATHAN) (Entered: 11/23/2004)
233 MOTION to Set Aside 229 Order, of Magistrate Judge Which Permitted Plaintiffs to File a Fourth Amended Complaint [Oversized Certification of Patricia S. Robinson, Esq. with exhibits is being filed separately] by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Defendants' Motion to Set Aside the Magistrate Judge's Ruling Permitting Plaintiffs to File a Fourth Amended Complaint# 2 Text of Proposed Order # 3 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 12/06/2004)
Set Deadlines as to 233 MOTION to Set Aside 229 Order, of Magistrate Judge Which Permitted Plaintiffs to File a Fourth Amended Complaint [Oversized Certification of Patricia S. Robinson, Esq. with exhibits is being filed separately]. Motion Hearing set for 1/10/2005 10:00 AM before Judge Jose L. Linares. (mn, ) (Entered: 12/07/2004)
234 MOTION to Vacate Paragraph 2 of Order (dkt #219) under LR 72.1(c) and Modify Class Definition to Remove Age Limitation by PHILLIP C. ENGERS, WARREN J. MCFALL, GERALD SMIT, DONALD G. individually and on behalf of all others similarly situated,. (Attachments: # 1 Brief in Support# 2 Certification of Stephen Bruce w/ Exhibits 1−7# 3 Text of Proposed Order # 4 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 12/07/2004)
235 Certification of PATRICIA S. ROBINSON on behalf of ATATTMANAGEMENT PENSION PLAN Re 233 Motion to Set Aside, (Oversized certification exhibits A−J located in clerk's file room). (JB, ) (Entered: 12/09/2004)
236 NOTICE by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT correcting typographical error in Dkt Entry # 234: Dkt Entry # 234 refers to Para. 2 of an Order by Judge Hedges. In parentheses a cross−reference is given to Dkt Entry # 219. The cross−reference should be to Dkt. Entry # 229. (NIRENBERG, JONATHAN) (Entered: 12/13/2004)
237 REPLY to Response to Motion re 216 MOTION to Preclude Testimony of Experts Claude Poulin and James Stratman (Certification of Patricia A. Cullen, Esq. is oversized and is being filed by hand) DEFENDANTS' REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO EXCLUDE TESTIMONY OF PLAINTIFFS' EXPERTS CLAUDE POULIN AND JAMES STRATMAN filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 12/13/2004)
238 RESPONSE in Support re 215 MOTION to Strike 205 MOTION for Summary Judgment (filed by Plaintiffs) DEFENDANTS' REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO EXCLUDE CERTAIN EVIDENCE AND TO STRIKE PORTIONS OF PLAINTIFFS' L.CIV.R. 56.1 STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Service)(MILLS,

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 22 of 45

12/21/2004 12/21/2004
12/21/2004 12/27/2004
12/28/2004 01/03/2005 01/03/2005 04/01/2005
08/10/2005 08/24/2005 08/24/2005

CHRISTOPHER) (Entered: 12/13/2004)
239 BRIEF in Opposition re 234 MOTION to Vacate Paragraph 2 of Order (dkt #219) under LR 72.1(c) and Modify Class Definition to Remove Age Limitation defendants' brief filed by ATATTMANAGEMENT PENSION PLAN. (MILLS, CHRISTOPHER) (Entered: 12/21/2004)
240 BRIEF in Opposition re 234 MOTION to Vacate Paragraph 2 of Order (dkt #219) under LR 72.1(c) and Modify Class Definition to Remove Age Limitation filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief Defendants' Brief in opposition to plaintiffs' motion objecting under L.Cv.R. 72.1(c)(2) to Order denying modification of class definition# 2 Certification of Christopher H. Mills in opposition to plaintiffs' motion objecting under L.Cv.R. 72.1(c)(2) to Order denying modification of class definition# 3 Certificate of Service as to defendants' brief in opposition to plaintiffs' motion objecting under L.Cv.R. 72.1(c)(2) to Order denying modification of class definition)(MILLS, CHRISTOPHER) (Entered: 12/21/2004)
243 ORDER that defendant must answer, move the foruth amended complaint w/in 10 days.. Signed by Judge Ronald J. Hedges on 12/21/04. (JB, ) (Entered: 12/29/2004)
241 BRIEF in Opposition re 233 MOTION to Set Aside 229 Order, of Magistrate Judge Which Permitted Plaintiffs to File a Fourth Amended Complaint [Oversized Certification of Patricia S. Robinson, Esq. with exhibits is being filed separately] filed by MANAGEMENT EMPLOYEES OF ATPHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Certification of Stephen Bruce in Support with Exhibits 1−4# 2 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 12/27/2004)
242 ORDER staying the time for defendants to answer, move, or otherwise reply to the Fourth Amended Complaint pending the outcome of defendants' appeal of the Magistrate Judge's Order entered on 11/22/04, etc.. Signed by Judge Jose L. Linares on 12/29/04. (dc, ) (Entered: 12/28/2004)
244 REPLY to Response to Motion re 234 MOTION to Vacate Paragraph 2 of Order (dkt #219) under LR 72.1(c) and Modify Class Definition to Remove Age Limitation filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Supplemental Certification of Stephen Bruce with Ex. 8# 2 Certification of Service)(NIRENBERG, JONATHAN) (Entered: 01/03/2005)
245 ORDER that the time for defendants to answer, move or otherwise reply to Fourth Amended Complaint is hereby STAYED pending the outcome of defendants' appeal of the magistrate Judge Order on 11/22/04. etc.. Signed by Judge Jose L. Linares on 01/03/05. (JB, ) (Entered: 01/04/2005)
246 ORDER The appendix volumes filed under docket entries #213 and 214 shall be unsealed. The only material to be redacted shall be the social security numbers of the named plaintiffs and three other class members whose papers are included in the exhibits. the Clerk shall make the appendix volumes filed by both parties available to plaintiffs' counsel to redact those security numbers w/in 5 days of the date of this order etc. Signed by Judge Jose L. Linares on 4/1/05. (JB, ) (Entered: 04/01/2005)
247 ORDER denying 216 Motion to Preclude . Signed by Judge Ronald J. Hedges on 8/10/05. (nm, ) (Entered: 08/10/2005)
248 MOTION for Reconsideration re 247 Order on Motion to Preclude Plaintiffs' Experts by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Motion for Reconsideration# 2 Text of Proposed Order Proposed Form of Order Granting Reconsideration# 3 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 08/24/2005)
Set/Reset Deadlines as to 248 MOTION for Reconsideration re 247 Order on Motion to Preclude Plaintiffs' Experts. Motion Hearing set for 9/26/2005 10:00 AM in Newark − Courtroom 5D before Judge Jose L. Linares. (PLEASE BE

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 23 of 45

09/09/2005
09/09/2005 09/12/2005
09/13/2005 09/19/2005
09/27/2005 10/06/2005 10/12/2005 10/26/2005
10/26/2005
11/14/2005
02/08/2006 03/16/2006

ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT). (dh, ) (Entered: 08/26/2005)
249 LETTER OPINION AND ORDER denying defts' 215 motion to exclude the supplemental declaration of Claude Poulin, granting defts' motion to exclude the declaration of Martha Anderson, granting in part defts' motion to strike portions of pltfs' L.Civ.R.56.1 statement. Signed by Judge Jose L. Linares on 9/8/05. (sr, ) (Entered: 09/09/2005)
250 LETTER OPINION AND ORDER dismissing 212 Motion to Strike . Signed by Judge Jose L. Linares on 9/9/05. (sr, ) (Entered: 09/09/2005)
251 BRIEF in Opposition re 248 MOTION for Reconsideration re 247 Order on Motion to Preclude Plaintiffs' Experts filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 09/12/2005)
252 LETTER OPINION AND ORDER denying 233 Motion to Set Aside . Signed by Judge Jose L. Linares on 9/13/05. (sr, ) (Entered: 09/13/2005)
253 LETTER−OPINION and ORDER denying 234 MOTION to Vacate Paragraph 2 of Order (dkt #219) under LR 72.1(c) and Modify Class Definition to Remove Age Limitation filed by PHILLIP C. ENGERS,, WARREN J. MCFALL,, DONALD G. individually and on behalf of all others similarly situated,,, GERALD SMIT,, . Signed by Judge Jose L. Linares on 9/16/2005. (mn, ) (Entered: 09/19/2005)
254 ANSWER to Amended Complaint (Fourth Amended Complaint) by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Service)(MILLS, CHRISTOPHER) (Entered: 09/27/2005)
255 Amended ANSWER to Amended Complaint Fourth Amended Complaint by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification Proof of Service)(MILLS, CHRISTOPHER) (Entered: 10/06/2005)
256 ORDER denying 248 Motion for Reconsideration . Signed by Judge Ronald J. Hedges on 10/12/05. (sr, ) (Entered: 10/12/2005)
257 MOTION to Set Aside 247 Order on Motion to Preclude Appeal of Magistrate Judge's Order by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Appeal from Magistrate Judge's Order Denying Motion to Exclude Testimony of Plaintiffs' Experts Claude Poulin and James Stratman# 2 Text of Proposed Order Setting Aside Order of Magistrate Judge# 3 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 10/26/2005)
Set/Reset Deadlines as to 257 MOTION to Set Aside 247 Order on Motion to Preclude Appeal of Magistrate Judge's Order. Motion Hearing set for 11/28/2005 10:00 AM in Newark − Courtroom 5D before Judge Jose L. Linares. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT). (dh, ) (Entered: 10/28/2005)
258 BRIEF in Opposition re 257 MOTION to Set Aside 247 Order on Motion to Preclude Appeal of Magistrate Judge's Order filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 11/14/2005)
259 Substitution of Attorney − Attorney JONATHAN I. NIRENBERG and JONATHAN I. NIRENBERG for PHILLIP C. ENGERS and WARREN J. MCFALL added.. (NIRENBERG, JONATHAN) (Entered: 02/08/2006)
260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief Brief in Support of Defendants' Motion Under Fed.R.Civ.P. 12(c) for Partial Dismissal of Fourth Amended Complaint# 2 Text of Proposed Order Granting Motion Under Fed.R.Civ.P. 12(c) for Partial Dismissal of

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 24 of 45

03/17/2006 03/22/2006 03/29/2006 03/31/2006 03/31/2006 04/04/2006
04/06/2006 04/10/2006 04/10/2006
04/10/2006
04/10/2006

Fourth Amended Complaint# 3 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 03/16/2006)
Set Deadline as to 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint. Motion Hearing set for 4/10/2006 before Judge Jose L. Linares. (please be advised that this motion will be decided on the papers unless otherwise otherwise notified by the court) (sr, ) (Entered: 03/17/2006)
261 Letter from Plaintiffs Invoking L.R. 7.1(d)(5) Procedure for Automatic Extension of Time to Oppose re 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint. (NIRENBERG, JONATHAN) (Entered: 03/22/2006)
262 Letter from Christopher H. Mills, Esq., Counsel for Defendants, Requesting Extension of Time to File Reply Papers re 261 Letter, 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint. (MILLS, CHRISTOPHER) (Entered: 03/29/2006)
263 OPINION fld.. Signed by Judge Jose L. Linares on 3/30/06. (sr, ) (Entered: 03/31/2006)
264 ORDER denying 205 Motion for Summary Judgment, granting in part and denying in part 207 Motion for Summary Judgment . Signed by Judge Jose L. Linares on 3/30/06. (sr, ) (Entered: 03/31/2006)
265 MOTION to Amend/Correct 263 Opinion, 264 Order on Motion for Summary Judgment, by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Defendants' Motion for Clarification of Court's Decision on Motions for Summary Judgment# 2 Text of Proposed Order Granting Motion for Clarification of Court's Decision on Motions for Summary Judgment# 3 Text of Proposed Order −−Revised Order Denying and Granting Partial Summary Judgment# 4 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 04/04/2006)
Set Deadline as to 265 MOTION to Amend/Correct 263 Opinion, 264 Order on Motion for Summary Judgment,. Motion Hearing set for 5/8/2006 before Judge Jose L. Linares. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 04/06/2006)
266 MOTION to Seal Document CD Containing "Class List" by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Brief # 2 Exhibit A# 3 Certificate of Service # 4 Text of Proposed Order)(NIRENBERG, JONATHAN) (Entered: 04/10/2006)
267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. Responses due by 4/24/2006 (Attachments: # 1 Brief in Support of Motion for Partial Summary Judgment on Tenth and Twelfth Claims and in Opposition to Defendants' Rule 12(c) Motion for Partial Dismissal of Same Claims# 2 Declaration of Allison Caalim with Exs. A and B# 3 Second Supplemental Declaration of Claude Poulin with Exs. 1 and 2# 4 Text of Proposed Order # 5 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 04/10/2006)
268 BRIEF in Opposition re 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint (Brief and Declarations also filed under Dkt.# 267) filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Declaration of Allison Caalim with Exs. A and B# 2 Second Supplemental Declaration of Claude Poulin with Exs. 1 and 2# 3 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 04/10/2006)
270 (SEALED) DECLARATION of Allison Caalim. (Attachments: # 1 cert. of service)(sr, ) (Entered: 04/13/2006)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 25 of 45

04/11/2006
04/11/2006 04/14/2006
04/17/2006 04/17/2006
04/17/2006
04/20/2006 04/20/2006 04/25/2006 04/26/2006
04/26/2006
04/26/2006
05/11/2006 05/11/2006

Set Deadline as to 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief, 266 MOTION to Seal Document CD Containing "Class List". Motion Hearing set for 5/8/2006 before Judge Jose L. Linares. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 04/11/2006)
269 ORDER granting an extension of time for defts to file reply papers. Signed by Judge Jose L. Linares on 4/10/06. (sr, ) (Entered: 04/11/2006)
271 Letter from Christopher H. Mills requesting stay re 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief, 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint, 268 Brief in Opposition to Motion,,, 266 MOTION to Seal Document CD Containing "Class List". (MILLS, CHRISTOPHER) (Entered: 04/14/2006)
272 MEMORANDUM &ORDER dismissing 257 Motion to Set Aside, &affirming 247 Order on Motion to Preclude . Signed by Judge Jose L. Linares on 4/17/06. (sr, ) (Entered: 04/17/2006)
273 MOTION for Reconsideration re 263 Opinion, 264 Order on Motion for Summary Judgment, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Brief in Support of Motion to Reconsider Decisions on the Class' Third, Sixth, and Seventh Claims# 2 Text of Proposed Order # 3 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 04/17/2006)
274 RESPONSE to Motion re 265 MOTION to Amend/Correct 263 Opinion, 264 Order on Motion for Summary Judgment, filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 04/17/2006)
Minute Entry for proceedings held before Judge Ronald J. Hedges : Discovery Hearing held on 4/20/2006. (nm, ) (Entered: 04/20/2006)
275 ORDER granting 266 Motion to Seal CD with class list . Signed by Judge Ronald J. Hedges on 4/20/06. (sr, ) (Entered: 04/20/2006)
276 ORDER that the second supplemental declaration of Claude Poulin w/exhibits filed by pltfs in support of thier motion for partial summary judgment is stricken . Signed by Judge Ronald J. Hedges on 4/24/06. (sr, ) (Entered: 04/25/2006)
Set Deadline as to 273 MOTION for Reconsideration re 263 Opinion, 264 Order on Motion for Summary Judgment,. Motion Hearing set for 5/22/2006 before Judge Jose L. Linares. (PLEASE BE ADVISED THAT THIS MTOION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 04/26/2006)
277 BRIEF of Defendants in Opposition to Plaintiffs' Motion (re 273) for Reconsideration of Summary Judgment Decision on the Third, Sixth, and Seventh Claims for Relief filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 04/26/2006)
278 DECLARATION of Stephen R. Bruce in Opposition to Request That Judicial Notice Be Taken of Uncertified Charts and Calculations re 268 Brief in Opposition to Motion,,, 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Notice of Substitute Filing# 2 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 04/26/2006)
Judge Claire C. Cecchi added. (nc, ) (Entered: 05/11/2006)
279 BRIEF in Opposition re 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief of plaintiffs filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Defendants' Supplemental Response to

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 26 of 45

05/11/2006
05/15/2006 05/17/2006 05/18/2006 05/24/2006
05/26/2006 06/05/2006 07/10/2006 07/17/2006
08/01/2006

Plaintiffs' Rule 56.1 Statement of Material Facts# 2 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 05/11/2006)
280 REPLY to Response to Motion re 260 MOTION to Dismiss Under Fed.R.Civ.P. 12(c) − Partial Dismissal of Fourth Amended Complaint −− Brief in reply to plaintiffs' opposition (docket entry number 268) and in further support of defendants' motion to dismiss, filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Defendants' Supplemental Response to Plaintiffs' Rule 56.1 Statement of Material Facts# 2 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 05/11/2006)
Case reassigned to Judge Claire C. Cecchi. Judge Ronald J. Hedges no longer assigned to the case. (Entered: 05/15/2006)
281 MOTION for Extension of Time to File Response/Reply as to 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 05/17/2006)
Set Deadline as to 281 MOTION for Extension of Time to File Response/Reply as to 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief. Motion Hearing set for 6/12/2006 before Judge Jose L. Linares. (please be advised that this motion will be decided on the papers unless otherwise notified by the court) (sr, ) (Entered: 05/18/2006)
282 RESPONSE to Motion re 281 MOTION for Extension of Time to File Response/Reply as to 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief (Defendants' Brief in Response to Plaintiffs' "Unopposed" Motion for Extension of Time to File Reply) filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Christopher H. Mills# 2 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 05/24/2006)
283 ORDER granting 281 Motion for Extension of Time to File Response/Reply . Signed by Judge Jose L. Linares on 5/25/06. (sr, ) (Entered: 05/26/2006)
284 REPLY to Response to Motion re 267 MOTION for Partial Summary Judgment on Tenth and Twelfth Claims for Relief filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 06/05/2006)
285 ORDER REASSIGNING CASE. Case reassigned to Judge Stanley R. Chesler for all further proceedings. Judge Jose L. Linares no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 7/5/06. (sr, ) (Entered: 07/12/2006)
Set/Reset Scheduling Order Deadlines: Status/SETTLEMENT Conference set for 7/26/2006 10:00 AM before Judge Stanley R. Chesler−COUNSEL SHALL REPORT TO THE WHIPPLE ATTORNEY CONFERENCE ROOM LOCATED ON THE 4TH FLOOR OF THE US COURTHOUSE AND PO BUILDING, NEWARK, NEW JERSEY;COUNSEL MUST HAVE FULL SETTLEMENT AUTHORITY;CLIENTS MUST BE AVAILABLE BY PHONE OR IN PERSON. THIS CONFERENCE DOES NOT OBVIATE COUNSEL'S OBLIGATION TO ATTEND ANY PREVIOUSLY SCHEDULED CONFERENCES WITH THE MAGISTRATE JUDGE ASSIGNED TO THIS MATTER; COUNSEL SHALL SUBMIT TO THE COURT A LETTER STATING ALL RELEVANT FACTS, ISSUES AND SETTLEMENT DEMAND. ALL LETTERS REGARDING THIS INFORMATION SHALL BE MAILED DIRECTLY TO CHAMBERS 2 DAYS PRIOR TO THE SCHEDULED DATE. (tt, ) (Entered: 07/17/2006)
Set/Reset Scheduling Order Deadlines: Status Conference set for 8/24/2006 10:00 AM before Judge Stanley R. Chesler. COUNSEL MUST HAVE FULL SETTLEMENT AUTHORITY;CLIENTS AVAILABLE BY PHONE OR IN PERSON;ALL PARTIES ARE TO REPORT TO THE WHIPPLE ATTORNEY CONFERENCE ROOM, LOCATED ON THE 4TH FLOOR OF THE U.S.

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 27 of 45

08/22/2006
09/21/2006 09/27/2006 10/06/2006 10/10/2006 11/20/2006 11/20/2006 11/20/2006
12/05/2006 12/05/2006 12/06/2006 12/06/2006

COURTHOUSE AND P.O. BUILDING, NEWARK, NEW JERSEY. PARTIES SHALL SUBMIT TO THE COURT A LETTER STATING ALL RELEVANT FACTS ANDISSUES PENDING ALONG WITH ANY SETTLEMENT DEMAND. PARTIES SHALL FAX THIS LETTER DIRECTLY TO CHAMBERS. (tt, ) (Entered: 08/01/2006)
RESCHEDULED SETTLEMENT CONFERENCE/ Status Conference set for 9/21/2006 11:30 AM before Judge Stanley R. Chesler. COUNSEL WITH FULL SETTLEMENT AUTHORITY SHALL APPEAR; CLIENTS AVAILABLE BY PHONE OR IN PERSON; COUNSEL SHALL REPORT TO THE WHIPPLE ATTORNEY CONFERENCE ROOM LOCATED ON THE 4TH FLOOR OF THE US COURTHOUSE AND PO BUILDING, NEWARK; COUNSEL SHALL SUBMIT VIA FAX TO CHAMBERS A LETTER STATING ALL RELEVANT FACTS, ISSUES AND SETTLEMENT DEMAND 2 DAYS PRIOR TO THE SCHEDULED CONFERENCE DATE; ANY CONFERENCE SCHEDULED BEFORE JUDGE CHESLER DOES NOT OBVIATE COUNSEL'S REQUIREMENT TO APPEAR FOR ANY SCHEDULED MATTERS BEFORE THE MAGISTRATE (tt, ) (Entered: 08/22/2006)
286 Minute Entry for proceedings held before Judge Stanley R. Chesler : Status Conference held on 9/21/2006. (tt, ) (Entered: 09/21/2006)
287 MOTION for Reconsideration re 79 Order,,, 62 Order,, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Brief # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Text of Proposed Order # 8 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 09/27/2006)
288 BRIEF in Opposition re 287 MOTION for Reconsideration re 79 Order,,, 62 Order,, filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Christopher H. Mills# 2 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 10/06/2006)
Set Deadlines as to 287 MOTION for Reconsideration re 79 Order, 62 Order Motion Hearing set for 10/23/2006 before Judge Stanley R. Chesler. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 10/10/2006)
289 OPINION fld.. Signed by Judge Jose L. Linares on 11/15/06. (sr, ) (Entered: 11/20/2006)
290 ORDER granting 265 Motion to Amend/Correct, denying 273 Motion for Reconsideration . Signed by Judge Jose L. Linares on 11/17/06. (sr, ) (Entered: 11/20/2006)
291 AMENDED ORDER granting 207 MOTION for Summary Judgment filed by ATATTMANAGEMENT PENSION PLAN,, denying 205 MOTION for Summary Judgment filed by PHILLIP C. ENGERS,, WARREN J. MCFALL,, DONALD G. individually and on behalf of all others similarly situated,,, GERALD SMIT, &that the dismissal of Count Six of the Fourth Amended Complt. is clarified as dismissed w/prejudice. Signed by Judge Jose L. Linares on 11/17/06. (sr, ) (Entered: 11/20/2006)
292 Letter from Stephen R. Bruce on Exhaustion of Internal Appeal Procedure and on Decision and Orders dated Nov. 15 and 17, 2006. (NIRENBERG, JONATHAN) (Entered: 12/05/2006)
293 Letter from Christopher Mills in response to plaintiff's letter dated 11/29/06. (MILLS, CHRISTOPHER) (Entered: 12/05/2006)
294 Notice of Request by Pro Hac Vice Stephen R. Bruce to receive Notices of Electronic Filings. (NIRENBERG, JONATHAN) (Entered: 12/06/2006)
295 Notice of Request by Pro Hac Vice Edgar Pauk to receive Notices of Electronic Filings. (NIRENBERG, JONATHAN) (Entered: 12/06/2006)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 28 of 45

12/12/2006 12/18/2006 12/18/2006 12/21/2006 01/03/2007 01/03/2007 01/04/2007 01/04/2007
01/09/2007 01/11/2007
01/12/2007 01/18/2007 01/18/2007

296 ORDER granting in part and denying in part 287 Motion for Reconsideration vacating in part 62 Order of 6/29/00 . Signed by Judge Stanley R. Chesler on 12/12/06. (sr, ) (Entered: 12/13/2006)
297 Application and Proposed Order for Clerk's Order to extend time to answer as to Defendants.. (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 12/18/2006)
298 ORDER as to pltfs' request for clarification of the effect of the decision and order filed by Judge Linares on 11/20/06, this Court agrees w/defts that Judge Linares properly addressed the motion for reconsideration and the motion for clarification relating to his prior Opinions &Orders; etc. Signed by Judge Stanley R. Chesler on 12/18/06. (sr, ) (Entered: 12/19/2006)
Clerk's extension granted (doc #297)Update Answer Due Deadline as to AtT&AtTManagement Pension Plan until 1/11/07 (sr, ) (Entered: 12/21/2006)
299 OPINION . Signed by Judge Stanley R. Chesler on 1/3/07. (DD, ) (Entered: 01/03/2007)
300 ORDER denying 267 Motion for Partial Summary Judgment . Signed by Judge Stanley R. Chesler on 1/3/07. (DD, ) (Entered: 01/03/2007)
301 MOTION to Certify Class in ADEA Collective Action by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Brief # 2 Proposed ADEA Notice and Consent to Join Form# 3 Text of Proposed Order # 4 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 01/04/2007)
302 DECLARATION of Stephen Bruce re 301 MOTION to Certify Class in ADEA Collective Action by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit 1 (with Tab I)# 4 Exhibit 2 (with Tabs 1 and 6)# 5 Exhibit 36# 6 Exhibit 42# 7 Exhibit 43# 8 Exhibit 44# 9 Exhibit 45# 10 Exhibit 68# 11 Exhibit 84# 12 Exhibit 110# 13 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 01/04/2007)
Set Deadline as to 301 MOTION to Certify Class in ADEA Collective Action. Motion Hearing set for 2/12/2007 before Judge Stanley R. Chesler. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 01/09/2007)
303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6) by ATATTMANAGEMENT PENSION PLAN. Responses due by 1/29/2007 (Attachments: # 1 Brief in Support of Defendants' Motion Under Fed. R. Civ. P. 12(b)(6) for Dismissal of the First and Second Claims for Relief of the Fourth Amended Complaint# 2 Text of Proposed Order Granting Motion Under Fed. R. Civ. P. 12(b)(6) for Dismissal of the First and Second Claims for Relief of the Fourth Amended Complaint# 3 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 01/11/2007)
Set Deadline as to 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6). Motion Hearing set for 1/12/2007 before Judge Stanley R. Chesler. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OHTERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 01/12/2007)
304 Letter from Defendant ATTattaching Proposed Order to Stay Proceedings Associated with Docket Entries 301 and 302. re 301 MOTION to Certify Class in ADEA Collective Action, 302 Declaration,,. (MILLS, CHRISTOPHER) (Entered: 01/18/2007)
305 Letter from Plaintiffs Invoking L.R. 7.1(d)(5) Extension to Oppose re 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6). (NIRENBERG, JONATHAN) (Entered: 01/18/2007)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 29 of 45

01/18/2007
01/22/2007 01/25/2007 01/25/2007 01/25/2007 01/31/2007 01/31/2007 02/07/2007 02/12/2007
02/13/2007
02/16/2007 02/27/2007 03/02/2007
03/05/2007

306 MOTION for Reconsideration by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Defendants? Motion for Reconsideration of the Court?s January 3, 2007 Opinion and Order Denying the Motion for Partial Dismissal of the Fourth Amended Complaint Under Fed. R. Civ. P. 12(c)# 2 Text of Proposed Order Proposed Order# 3 Certificate of Service Proof of Service)(MILLS, CHRISTOPHER) (Entered: 01/18/2007)
Set Deadline as to 306 MOTION for Reconsideration. Motion Hearing set for 2/12/2007 before Judge Stanley R. Chesler. (PLEASE BE ADVISED HAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 01/22/2007)
307 ORDER staying all proceedings associated with pltfs' Motion to conditionally certify a class in ADEA collective action. Signed by Judge Stanley R. Chesler on 1/24/07. (sr, ) (Entered: 01/25/2007)
308 Letter from Stephen R. Bruce Re: objection to the proposal that the Court stay briefing schedule and consideration of pltfs' Motion for conditional approval of ADEA action; etc. (sr, ) (Entered: 01/25/2007)
309 Letter from Christopher H. Mills to Judge Chesler requesting a conference call with the court RE: pltfs Motion for a conditional approval of ADEA collective action and authorization of Notice to the Class; etc. (sr, ) (Entered: 01/25/2007)
310 NOTICE of Change of Address by JONATHAN I. NIRENBERG (NIRENBERG, JONATHAN) (Entered: 01/31/2007)
311 BRIEF in Opposition re 306 MOTION for Reconsideration with Certificate of Service filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (NIRENBERG, JONATHAN) (Entered: 01/31/2007)
312 ORDER denying 306 Motion for Reconsideration . Signed by Judge Stanley R. Chesler on 2/7/07. (sr, ) (Entered: 02/08/2007)
313 BRIEF in Opposition re 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6) with Certificate of Service filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Exhibit 2 (Tab 1)# 2 Exhibit 36# 3 Exhibit 42# 4 Exhibit 43# 5 Exhibit 44# 6 Exhibit 84)(NIRENBERG, JONATHAN) (Entered: 02/12/2007)
314 Letter from Christopher H. Mills, Esq. requesting Extension of Time for Defendants to File Reply Papers re 313 Brief in Opposition to Motion,, 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6). (Attachments: # 1 Text of Proposed Order Granting Application for Extension of Time for Defendants to File Reply Papers# 2 Exhibit E−mail from plaintiffs' counsel to defendants' counsel)(MILLS, CHRISTOPHER) (Entered: 02/13/2007)
315 ORDER granting defts appl. for an extension of time to file reply papers. Signed by Judge Stanley R. Chesler on 2/15/07. (sr, ) (Entered: 02/16/2007)
316 REPLY to Response to Motion re 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6) filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 02/27/2007)
317 MOTION to Amend/Correct Pleadings Under FRCP 15(d) with Certificate of Service by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Brief # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Text of Proposed Order # 7 Proposed Supplemented Complaint)(NIRENBERG, JONATHAN) (Entered: 03/02/2007)
Set Deadline as to 317 MOTION to Amend/Correct Pleadings Under FRCP 15(d) with Certificate of Service. Motion Hearing set for 3/26/2007 before Judge Stanley

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 30 of 45

03/12/2007
03/23/2007 03/28/2007
03/29/2007 03/29/2007 04/10/2007 04/12/2007 04/13/2007
04/13/2007 04/13/2007
04/19/2007

R. Chesler. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 03/05/2007)
318 RESPONSE to Motion re 317 MOTION to Amend/Correct Pleadings Under FRCP 15(d) with Certificate of Service Defendants' Brief in Response to Plaintiffs' Motion to Supplement Pleadings Under Fed. R. Civ. P. 15(d) filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certification of Christopher H. Mills in Support of Defendants' Response to Plaintiffs' Motion to Supplement Pleadings Under Fed. R. Civ. P. 15(d)# 2 Text of Proposed Order Granting Plaintiffs' Motion for Leave to File Supplemented Fourth Amended Class Action Complaint# 3 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 03/12/2007)
319 Letter from Plaintiffs with Notice of Supplemental Authority re 313 Brief in Opposition to Motion,. (Attachments: # 1 Tomlinson v. El Paso Decision)(NIRENBERG, JONATHAN) (Entered: 03/23/2007)
320 Letter from Defendants in response to plaintiffs' letter with "notice of supplemental authority" re 303 MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6) MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6) MOTION to Dismiss First and Second Claims for Relief of Fourth Amended Complaint Under Fed. R. Civ. P. 12(b)(6), 316 Reply to Response to Motion, 313 Brief in Opposition to Motion, 319 Letter. (MILLS, CHRISTOPHER) (Entered: 03/28/2007)
321 OPINION fld.. Signed by Judge Stanley R. Chesler on 3/29/07. (sr, ) (Entered: 03/30/2007)
322 ORDER denying 303 Motion to Dismiss. Signed by Judge Stanley R. Chesler on 3/29/07. (sr, ) (Entered: 03/30/2007)
323 Letter from Christopher H. Mills to Magistrate Judge Cecchi, Requesting In−Court Conference on Discovery with Respect to Remaining Claims. (Attachments: # 1 Exhibit A − E−Mail Exchanges)(MILLS, CHRISTOPHER) (Entered: 04/10/2007)
324 CONSENT ORDER indiating the return date of pltfs' Collective Action Motion shall be 5/14/07. Signed by Judge Stanley R. Chesler on 4/11/07. (sr, ) (Entered: 04/12/2007)
325 MOTION for Leave to Appear Pro Hac Vice by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Affidavit Certification of Christopher H. Mills in Support of Pro Hac Vice Motion# 2 Declaration of Linton J. Childs# 3 Declaration of Jeffrey R. Tone# 4 Declaration of Charles W. Douglas# 5 Declaration of Anne E. Rea# 6 Text of Proposed Order Granting Admission Pro Hac Vice# 7 Certificate of Service Proof of Service)(MILLS, CHRISTOPHER) (Entered: 04/13/2007)
326 Second Amended ANSWER to Amended Complaint Fourth Amended Complaint and Jury Demand by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 04/13/2007)
327 MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Brief in Support of Defendants' Motion for Reconsideration or, in the Alternative, for Certification Under 28 U.S.C. sec. 1292(b)# 2 Text of Proposed Order Granting Reconsideration (First Alternative Proposed Order)# 3 Text of Proposed Order Granting Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b) (Second Alternative Proposed Order)# 4 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 04/13/2007)
Set/Reset Deadlines as to 327 MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 31 of 45

04/23/2007
04/27/2007
05/07/2007 05/07/2007 05/11/2007 05/15/2007 05/16/2007 05/18/2007 05/18/2007 05/24/2007 05/24/2007 05/29/2007

Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)). Responses due by 4/30/2007 Replies due by 5/7/2007. Motion Hearing set for 5/14/2007 10:00 AM before Judge Stanley R. Chesler. COURT INDICATED MOTION TO BE DECIDED PURSUANT TO RULE 78; NO APPEARANCE REQUIRED UNLESS NOTIFIED BY CHAMBERS (tt, ) (Entered: 04/19/2007)
328 BRIEF in Opposition re 301 MOTION to Certify Class in ADEA Collective Action Defendants' Brief in Response to Plaintiffs' Motion for Conditional Approval of ADEA Collective Action filed by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Exhibit A to Brief# 2 Exhibit B to Brief# 3 Exhibit C Part 1 to Brief# 4 Exhibit C Part 2 to Brief# 5 Exhibit D to Brief# 6 Text of Proposed Order with attached proposed Notice and Consent−to−Join Form# 7 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 04/23/2007)
329 BRIEF in Opposition re 327 MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) MOTION for Reconsideration re 322 Order on Motion to Dismiss, 321 Opinion (Motion for Reconsideration or, in the Alternative, for Certification for Interlocutory Appeal Under 28 U.S.C. sec. 1292(b)) filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (NIRENBERG, JONATHAN) (Entered: 04/27/2007)
330 ORDER denying 327 Motion for Reconsideration. Signed by Judge Stanley R. Chesler on 5/4/07. (sr, ) (Entered: 05/07/2007)
331 REPLY to Response to Motion re 301 MOTION to Certify Class in ADEA Collective Action filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Text of Proposed Order)(NIRENBERG, JONATHAN) (Entered: 05/07/2007)
Set/Reset Deadlines as to 325 MOTION for Leave to Appear Pro Hac Vice. Motion Hearing REFERRED TO JUDGE CECCHI AND set for 5/14/2007 10:00 AM; NO APPEARANCE IS REQUIRED UNLESS NOTIFIED BY CHAMBERS (tt, ) (Entered: 05/11/2007)
332 ORDER granting 325 Motion for Leave to Appear Pro Hac Vice re: Anne E. Rea, Charles W. Douglas, Jeffrey R. Tone, Linton J. Childs. Signed by Judge Claire C. Cecchi on 5/15/07. (sr, ) (Entered: 05/16/2007)
Set/Reset Deadlines as to 301 MOTION to Certify Class in ADEA Collective Action. Motion Hearing set for 5/14/2007 10:00 AM before Judge Stanley R. Chesler. NO APPEARANCE REQUIRED BY COUNSEL UNLESS NOTIFIED BY CHAMBERS (tt, ) (Entered: 05/16/2007)
333 STATEMENT Disclosure Statement Pursuant to Fed. R. Civ. P. 7.1 by ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 05/18/2007)
334 NOTICE of Change of Address by CHRISTOPHER H. MILLS (Attachments: # 1 Certificate of Service)(MILLS, CHRISTOPHER) (Entered: 05/18/2007)
335 OPINION fld.. Signed by Judge Stanley R. Chesler on 5/24/07. (sr, ) (Entered: 05/24/2007)
336 ORDER granting 301 Motion to Certify Class. Signed by Judge Stanley R. Chesler on 5/24/07. (sr, ) (Entered: 05/24/2007)
Pro Hac Vice fee: $ 600, receipt number 345494 re: Anne E. Rea, Jeffrey R. Tone, Charles W. Douglas, Linton J. Childs (sr, ) (Entered: 05/31/2007)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 32 of 45

05/31/2007 05/31/2007 05/31/2007 05/31/2007 06/20/2007
07/03/2007 07/13/2007 07/18/2007 08/13/2007
08/13/2007 08/14/2007 08/15/2007
08/16/2007 08/23/2007 09/18/2007 09/19/2007 09/20/2007 10/11/2007 10/11/2007

337 Notice of Request by Pro Hac Vice Linton J. Childs, Esq. to receive Notices of Electronic Filings. (MILLS, CHRISTOPHER) (Entered: 05/31/2007)
338 Notice of Request by Pro Hac Vice Charles W. Douglas, Esq. to receive Notices of Electronic Filings. (MILLS, CHRISTOPHER) (Entered: 05/31/2007)
339 Notice of Request by Pro Hac Vice Anne E. Rea, Esq. to receive Notices of Electronic Filings. (MILLS, CHRISTOPHER) (Entered: 05/31/2007)
340 Notice of Request by Pro Hac Vice Jeffrey R. Tone, Esq. to receive Notices of Electronic Filings. (MILLS, CHRISTOPHER) (Entered: 05/31/2007)
341 Substitution of Attorney − Attorney JONATHAN I. NIRENBERG and JONATHAN I. NIRENBERG for PHILLIP C. ENGERS and WARREN J. MCFALL added. Attorney NEIL H. DEUTSCH terminated.. (NIRENBERG, JONATHAN) (Entered: 06/20/2007)
Minute Entry for proceedings held before Judge Claire C. Cecchi : Status Conference held on 7/3/2007. (nc, ) (Entered: 07/03/2007)
342 ORDER on oral motion scheduling Status/ Settlement Conference set for 9/18/2007 04:00 PM before Magistrate Judge Claire C. Cecchi. Signed by Judge Claire C. Cecchi on 7/13/07. (sr, ) (Entered: 07/13/2007)
343 CASE MANAGEMENT ORDER Discovery due by 1/18/2008., Status Conference set for 9/18/2007 04:00 PM before Magistrate Judge Claire C. Cecchi; etc.. Signed by Judge Claire C. Cecchi on 7/18/07. (sr, ) (Entered: 07/18/2007)
344 Letter from Linton J. Childs, Christopher H. Mills, addressed to Hon. Claire C. Cecchi on behalf of defendants, regarding ADEA collective action notice and improper website communications by plaintiffs' counsel. (MILLS, CHRISTOPHER) (Entered: 08/13/2007)
345 Letter from Plaintiffs' counsel re 344 Letter. (NIRENBERG, JONATHAN) (Entered: 08/13/2007)
Set Deadlines/Hearings: Status Conference regarding letters submitted to the Court shall be set for 8/16/2007 02:00 PM before Judge Stanley R. Chesler. (tt, ) (Entered: 08/14/2007)
346 Letter from Jeffrey Tone, Christopher H. MIlls, addressed to Hon. Stanley R. Chesler on behalf of defendants regarding issues reaised for first time in 8/13/07 letter from plaintiff's counsel re 345 Letter. (MILLS, CHRISTOPHER) (Entered: 08/15/2007)
347 Minute Entry for proceedings held before Judge Stanley R. Chesler : Status Conference held on 8/16/2007. (tt, ) (Entered: 08/16/2007)
348 Letter from Jeffrey R. Tone and Patricia S. Robinson to Hon. Chesler re: 8/16/07 Conf. instructions on docs #344−346. (ROBINSON, PATRICIA) (Entered: 08/23/2007)
Minute Entry for proceedings held before Judge Claire C. Cecchi : Telephone Status/Settlement Conference held on 9/18/2007. (nc, ) (Entered: 09/19/2007)
349 Letter from Plaintiffs submitted for 9/18/07 Status Conference re 342 Order, Set Deadlines/Hearings. (NIRENBERG, JONATHAN) (Entered: 09/19/2007)
350 Letter from Jeffrey Tone &Christopher Mills on 9/13/07 to Mag. Cecchi re: attached Case Management Order of 7/18/07. (ROBINSON, PATRICIA) (Entered: 09/20/2007)
351 CASE MANAGEMENT ORDER: Status Conference set for 12/12/2007 11:30 AM before Magistrate Judge Claire C. Cecchi.. Signed by Judge Claire C. Cecchi on 10/10/07. (sr, ) (Entered: 10/11/2007)
352 Letter from Linton Childs and Christopher Mills requesting conference on "Proposed Reminder Notice". (ROBINSON, PATRICIA) (Entered: 10/11/2007)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 33 of 45

10/12/2007
10/12/2007 10/17/2007 10/17/2007
10/19/2007
10/25/2007 10/26/2007 10/29/2007 11/15/2007 11/16/2007
11/16/2007
11/19/2007 11/21/2007 12/19/2007 12/21/2007 12/27/2007
01/10/2008

Set/Reset Hearings: TELEPHONE CONFERENCE CALL HAS BEEN set for 10/22/2007 03:00 PM before Judge Stanley R. Chesler. COUNSEL SHALL INITIATE THE CALL TO CHAMBERS WITH ALL PARTIES REGARDING THE 10/11/07 LETTER (tt, ) (Entered: 10/12/2007)
353 Letter from Plaintiffs to Magistrate Judge Cecchi about Parties' Agreement on Mediator re 351 Order, Set Deadlines/Hearings. (NIRENBERG, JONATHAN) (Entered: 10/12/2007)
354 Consent ORDER granting 317 Motion to Amend/Correct. Signed by Judge Claire C. Cecchi on 10/16/07. (jd, ) (Entered: 10/17/2007)
355 AMENDED COMPLAINT reinstating Fourth and Fifth Claims filed pursuant to Consent Order (dkt. # 354) against all defendants all defendants., filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. individually and on behalf of all others similarly situated,, GERALD SMIT.(NIRENBERG, JONATHAN) (Entered: 10/17/2007)
356 ORDER ON INFORMAL MOTION REFERRING CASE to Mediation, appointing Eric D. Green, Esq., Resolutions, LLC, 222 Berkeley St., Ste. 1060, Boston MA as Mediator in this case.. Signed by Judge Claire C. Cecchi on 10/19/07. (sr, ) (Entered: 10/23/2007)
357 ORDER re: proposed questions &answers; etc. Signed by Judge Stanley R. Chesler on 10/24/07. (sr, ) (Entered: 10/25/2007)
358 ORDER on Oral Motion: adjourning the 12/12/07 status conference until 1/22/08, extending discovery through 3/31/08; etc. Signed by Judge Claire C. Cecchi on 10/26/07. (sr, ) (Entered: 10/29/2007)
Judge Michael A. Shipp added. Judge Claire C. Cecchi no longer assigned to case. (cs, ) (Entered: 10/29/2007)
359 ORDER OF RECUSAL. Judge Michael A. Shipp recused. Case reassigned to Judge Claire C. Cecchi for all further proceedings. Signed by Judge Michael A. Shipp on 11/14/07. (sr, ) (Entered: 11/15/2007)
360 ANSWER to Amended Complaint Supplemented Fourth Amended Class Action Complaint with Demand for Jury Trial by ATTINC., ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (Attachments: # 1 Certificate of Service of Answer of ATTInc., ATTPension Benefit Plan, and ATTPuerto Rican Pension Benefit Plan to Supplemented Fourth Amended Complaint with Demand for Jury Trial)(MILLS, CHRISTOPHER) (Entered: 11/16/2007)
361 Certification of Corrected Proof of Service of Answer to Supplemented Fourth Amended Complaint with Demand for Jury Trial on behalf of ATTINC., ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan Re 360 Answer to Amended Complaint,. (MILLS, CHRISTOPHER) (Entered: 11/16/2007)
362 NOTICE/CONSENT to join action as a party pltf by Dewaine J. Glyda (sr, ) (Entered: 11/28/2007)
TEXT ORDER adjourning In Person Status Conference from 1/22/08 10:00 AM to 2/11/2008 11:00 AM before Magistrate Judge Claire C. Cecchi. Ordered by Judge Claire C. Cecchi on 11/21/07. (nc, ) (Entered: 11/21/2007)
363 Letter from Plaintiffs re Filing of ADEA Opt−In Forms re 336 Order on Motion to Certify Class, 335 Opinion. (NIRENBERG, JONATHAN) (Entered: 12/19/2007)
364 Letter from C. Mills and L. Childs to Chesler re: Opt−in plaintiff list. (MILLS, CHRISTOPHER) (Entered: 12/21/2007)
365 NOTICE by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT of Filing of ADEA Opt−In Forms (Attachments: # 1 List of ADEA Opt−Ins, Abarr to Lyu# 2 List of ADEA Opt−Ins, Ma to Zylbert# 3 Certificate of Service)(NIRENBERG, JONATHAN) (Entered: 12/27/2007)
Remark: CDs with images of Consent Forms for ADEA Opt−In−Plaintiffs forms submitted 12/28/2007 consisting of (Disk 1, Abarr−Lyu) and (Disk 2,

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 34 of 45

01/10/2008 02/07/2008 02/07/2008 02/08/2008 02/27/2008 05/01/2008 05/01/2008 05/05/2008 05/05/2008 05/09/2008 05/09/2008 05/13/2008 05/13/2008 05/15/2008
05/19/2008
05/19/2008 05/19/2008

Ma−Zylbert−Bruns) will be placed in clerk's file. (See doc. 365 for list) (mn, ) (Entered: 01/10/2008)
366 NOTICE of Appearance by MAUREEN BINETTI on behalf of all plaintiffs (BINETTI, MAUREEN) (Entered: 01/10/2008)
367 Letter from Plaintiffs Re: Proposed Case Management Order. (Attachments: # 1 Text of Proposed Order)(NIRENBERG, JONATHAN) (Entered: 02/07/2008)
368 Letter from Jeffrey R. Tone and Christopher H. Mills. (Attachments: # 1 Text of Proposed Order to letter to Magistrate Judge Cecchi)(MILLS, CHRISTOPHER) (Entered: 02/07/2008)
TEXT ORDER adjourning In−Person Status Conference from 2/11/08 11:00 AM to 3/25/2008 02:30 PM before Magistrate Judge Claire C. Cecchi. Ordered by Magistrate Judge Claire C. Cecchi on 2/8/08. (nc, ) (Entered: 02/08/2008)
TEXT ORDER adjourning In Person Status Conference from 3/25/08 2:30 PM to 5/5/2008 2:00 PM before Magistrate Judge Claire C. Cecchi. Ordered by Magistrate Judge Claire C. Cecchi on 2/27/08. (nc, ) (Entered: 02/27/2008)
369 Letter from Plaintiffs Re: Proposed Case Management Order. (Attachments: # 1 Text of Proposed Order)(NIRENBERG, JONATHAN) (Entered: 05/01/2008)
370 Letter from Jeffrey Tone and Christopher Mills. (Attachments: # 1 Text of Proposed Order Proposed Case Management Order)(MILLS, CHRISTOPHER) (Entered: 05/01/2008)
371 Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Status Conference with oral argument on informal applications document # 369 and 370 held on 5/5/2008. (CD# 08−08) (nc, ) (Entered: 05/07/2008)
375 Amended Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Status Conference held on 5/5/2008. Hearing on informal applications document # 369 and 370 . (CD# 08−08) (nc, ) (Entered: 05/14/2008)
372 Letter from Jeffrey Tone, Esq. and Christopher Mills, Esq. to Judge Cecchi. (Attachments: # 1 Text of Proposed Order)(MILLS, CHRISTOPHER) (Entered: 05/09/2008)
373 Letter from Plaintiffs re Case Management Schedule. (Attachments: # 1 Text of Proposed Order)(NIRENBERG, JONATHAN) (Entered: 05/09/2008)
376 Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Status Conference held on 5/13/2008. Oral Argument on discovery application re: 372 and 373 . Order to be submitted. (nc, ) (Entered: 05/13/2008)
374 ORDER re: defts production of certian information to pltf; etc. Signed by Magistrate Judge Claire C. Cecchi on 5/13/08. (sr, ) (Entered: 05/14/2008)
377 Consent MOTION for Protective Order THIS IS AN AMENDED STIPULATION AND PROTECTIVE ORDER SIGNED BY ALL PARTIES FOR HON. USMJ CECCHI TO REVIEW AND ENTER by ATTINC., ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan, ATATTMANAGEMENT PENSION PLAN. (Attachments: # 1 Appendix Protective Order Entered 10/10/00, # 2 Appendix Amended Protective Order Entered 12/20/01)(ROBINSON, PATRICIA) (Entered: 05/15/2008)
378 Proposed MOTION for Protective Order Proposed Amended Protective Order agree upon by all parties by JEFFREY R. TONE, CHARLES W. DOUGLAS, LINTON J. CHILDS, ATTINC., ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan, ATATTMANAGEMENT PENSION PLAN. (MILLS, CHRISTOPHER) (Entered: 05/19/2008)
379 AMENDED STIPULATION AND PROTECTIVE ORDER fld.. Signed by Magistrate Judge Claire C. Cecchi on 5/16/08. (sr, ) (Entered: 05/20/2008)
380 CASE MANAGEMENT ORDER, Discovery due by 10/29/2008., Status Conference set for 9/24/2008 11:30 AM before Magistrate Judge Claire C. Cecchi;

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 35 of 45

07/09/2008
07/29/2008 07/31/2008 09/24/2008 09/29/2008
01/27/2009 01/28/2009 02/06/2009
02/17/2009 03/30/2009
03/31/2009
04/06/2009 04/29/2009
05/01/2009 05/08/2009 05/20/2009 06/19/2009

etc.. Signed by Magistrate Judge Claire C. Cecchi on 5/19/08. (sr, ) (Entered: 05/20/2008)
381 AMENDED CASE MANAGEMENT ORDER, fact Discovery due by 12/17/2008., Status Conference set for 9/24/2008 11:30 AM before Magistrate Judge Claire C. Cecchi; etc. Signed by Magistrate Judge Claire C. Cecchi on 7/8/08. (sr, ) (Entered: 07/10/2008)
382 ORDER on Oral Motion: granting the extension granted by Aon Consulting, Inc.. Signed by Magistrate Judge Claire C. Cecchi on 7/29/08. (sr, ) (Entered: 07/29/2008)
383 ORDER on Oral Motion Re: discovery; etc. Signed by Magistrate Judge Claire C. Cecchi on 7/30/08. (sr, ) (Entered: 07/31/2008)
Text Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Status Conference held on 9/24/2008. (nc, ) (Entered: 09/24/2008)
384 ORDER ON ORAL MOTION, Fact Discovery due by 2/16/2009., in person Status Conference set for 1/28/2009 11:00 AM before Magistrate Judge Claire C. Cecchi; etc. Signed by Magistrate Judge Claire C. Cecchi on 9/26/08. (sr, ) (Entered: 09/29/2008)
385 ORDER ON ORAL MOTION: that the in person status conference scheduled for 1/28/09 at 11:00 a.m. has been converted to a telephone status conference. Signed by Magistrate Judge Claire C. Cecchi on 1/26/09. (sr, ) (Entered: 01/27/2009)
Text Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Telephone Status Conference held on 1/28/2009. (nc, ) (Entered: 01/30/2009)
386 AMENDED CASE MANAGEMENT SCHEDULING ORDER: Status Conference set for 2/23/2009 04:30 PM before Magistrate Judge Claire C. Cecchi. Fact Discovery due by 4/16/2009. Dispositive Motions due by 6/16/2009; etc.. Signed by Magistrate Judge Claire C. Cecchi on 2/4/09. (DD, ) (Entered: 02/06/2009)
387 ORDER ON ORAL MOTION RE: discovery; etc., &adjourning Telephone Status/ Settlement Conference to 3/12/2009 12:30 PM. Signed by Magistrate Judge Claire C. Cecchi on 2/17/09. (sr, ) (Entered: 02/17/2009)
388 Letter from Defendants to Hon. Claire C. Cecchi, U.S.M.J., Applying for Protective Order. (Attachments: # 1 Exhibit Exhibits A through H to Letter, # 2 Certificate of Service of Letter Applying for Protective Order)(ROBINSON, PATRICIA) (Entered: 03/30/2009)
389 ORDER ON ORAL MOTION: rescheduling telephone Status/Settlement Conference for 5/21/2009 04:00 PM before Magistrate Judge Claire C. Cecchi. Signed by Magistrate Judge Claire C. Cecchi on 3/31/09. (sr, ) (Entered: 03/31/2009)
390 Letter from Michael P. Madden, Esquire regarding Subpoenas and discovery requests served upon Aon.. (MADDEN, MICHAEL) (Entered: 04/06/2009)
391 BRIEF in opposition to defendants' application for a protective order filed by MANAGEMENT EMPLOYEES OF ATPHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (BINETTI, MAUREEN) (Entered: 04/29/2009)
392 Letter from Maureen S. Binetti, Esq. re 391 Brief. (BINETTI, MAUREEN) (Entered: 05/01/2009)
393 Letter from Defendants filed as reply to [#391] plaintiffs 4/29/09 letter, which was filed as a response to [#388] Defendants 3/30/09 letter Applying for a Protective Order. re 388 Letter, 391 Brief. (ROBINSON, PATRICIA) (Entered: 05/08/2009)
394 Letter from Maureen Binetti. (BINETTI, MAUREEN) (Entered: 05/20/2009)
395 ORDER by 7/3/09, the parties shall meet and confer in an effort to resolve the pending discovery disputes in this matter, etc.; there shall be a telephone status/settlement conference on 8/31/09 at 11:00 a.m., etc. Signed by Magistrate

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 36 of 45

07/21/2009
07/31/2009
08/14/2009 08/31/2009 10/06/2009 10/06/2009 10/09/2009 11/04/2009 11/12/2009 11/12/2009 01/05/2010 01/06/2010
01/08/2010 01/12/2010
03/01/2010 03/02/2010 03/03/2010 03/17/2010

Judge Claire C. Cecchi on 6/18/09. (jd, ) (Entered: 06/19/2009)
396 ORDER ON ORAL MOTION: that by 7/31/09, the parties shall submit to the court a joint letter limited to 10 pages in length, regarding amy discovery disputes that remain after they meet &confer. Signed by Magistrate Judge Claire C. Cecchi on 7/17/09. (sr, ) (Entered: 07/21/2009)
397 ORDER ON ORAL MOTION: granting parties' request for an extension is granted. A joint letter regarding any unresolved discovery disputes shall be filed by 8/14/09. Signed by Magistrate Judge Claire C. Cecchi on 7/31/09. (sr, ) (Entered: 07/31/2009)
398 Letter from Plaintiffs and Defendants re 395 Order,. (NIRENBERG, JONATHAN) (Entered: 08/14/2009)
Text Only Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Telephone Status Conference held on 8/31/2009. (nc, ) (Entered: 08/31/2009)
399 Letter from Maureen Binetti, Esq.. (BINETTI, MAUREEN) (Entered: 10/06/2009)
400 Letter from Jeffrey Tone re 399 Letter. (ROBINSON, PATRICIA) (Entered: 10/06/2009)
401 ORDER denying deft's motion for protective order; etc. Signed by Magistrate Judge Claire C. Cecchi on 10/09/09. (sr, ) (Entered: 10/09/2009)
Text Only Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Telephone Status Conference held on 11/4/2009. (nc, ) (Entered: 11/12/2009)
402 SCHEDULING ORDER:Telephone Status/ Settlement Conference set for 1/5/2010 11:00 AM before Magistrate Judge Claire C. Cecchi. Signed by Magistrate Judge Claire C. Cecchi on 11/12/09. (sr, ) (Entered: 11/12/2009)
403 SCHEDULING ORDER:Telephone Status/ Settlement Conference set for 1/5/2010 11:00 AM before Magistrate Judge Claire C. Cecchi. Signed by Magistrate Judge Claire C. Cecchi on 11/12/09. (sr, ) (Entered: 11/16/2009)
Text Only Minute Entry for proceedings held before Magistrate Judge Claire C. Cecchi: Telephone Status/Settlement Conference held on 1/5/2010. (nc, ) (Entered: 01/06/2010)
404 Letter from Defendants requesting permission to file an overlength brief. (Attachments: # 1 Text of Proposed Order Granting Leave to File Overlength Brief (Defendants'), # 2 Text of Proposed Order Granting Leave to File Overlength Brief (Plaintiffs'))(ROBINSON, PATRICIA) (Entered: 01/06/2010)
405 ORDER granting leave to file overlength briefs. Signed by Judge Stanley R. Chesler on 1/8/10. (sr, ) (Entered: 01/11/2010)
406 ORDER ON ORAL MOTION: indicating fact &expert discovery is closed; summary judgment motions shall be served after the close of all discovery, but no later than 01/15/2010, opposition paper shall be served by 03/01/2010, and reply papers shall be served by 03/22/2010. Motion papers shall not be filed with the Court until all briefing is complete. Signed by Magistrate Judge Claire C. Cecchi on 1/12/10. (sr, ) Modified on 1/27/2010 (nc, ) (Entered: 01/12/2010)
407 Letter from Maureen Binetti, Esq.. (Attachments: # 1 Order)(BINETTI, MAUREEN) (Entered: 03/01/2010)
408 Letter from Maureen S. Binetti. (Attachments: # 1 Text of Proposed Order)(BINETTI, MAUREEN) (Entered: 03/02/2010)
409 AMENDED CASE MANAGEMENT ORDER fld. Signed by Magistrate Judge Claire C. Cecchi on 3/3/10. (sr, ) (Entered: 03/03/2010)
410 Letter from defendants requesting extension to file summary judgment reply papers. (Attachments: # 1 Text of Proposed Order)(ROBINSON, PATRICIA)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 37 of 45

03/22/2010 03/30/2010 04/01/2010 04/05/2010
04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010
04/05/2010

(Entered: 03/17/2010)
411 AMENDED CASE MANAGEMENT ORDER that on or before 4/2/10, pltfs &defts shall file their reply papers. Signed by Magistrate Judge Claire C. Cecchi on 3/22/10. (sr, ) (Entered: 03/22/2010)
412 Letter from Linton J. Childs, Esq. and Patricia S. Robinson, Esq. counsel for defendants to Hon. Claire C. Cecchi, USMJ requesting leave under Local Rule 5.2.11 to file 2 voluminous exhibits (approx. 15,000 pages) on CDs rather than using the ECF system. Plaintiffs do not object to this request with respect to the manner of filing.. (Attachments: # 1 Text of Proposed Order)(ROBINSON, PATRICIA) (Entered: 03/30/2010)
413 ORDER that defts may file Exhibit A to the Declaration of Richard E. Hoss &exhibit A to the Declaration of Paula Phillips on CDs rather than in PDF format via the ECF system. Signed by Magistrate Judge Claire C. Cecchi on 4/1/10. (sr, ) (Entered: 04/05/2010)
414 MOTION for Summary Judgment ON THE SUPPLEMENTED FOURTH AMENDED COMPLAINT by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Certificate of Service, # 2 Brief, # 3 Exhibit A, # 4 Statement of Facts pursuant to Rule 56.1, # 5 Text of Proposed Order, # 6 Certification of Patricia S. Robinson, Esq.)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
415 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1−127 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 1−79, # 2 Appendix DAI 80−127)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
416 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 128−199 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 128−199)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
417 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 200−299 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 200−299)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
418 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 300−405 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 300−337, # 2 Appendix DAI 338−380, # 3 Appendix DAI 381−405)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
419 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 406−552 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 406−435, # 2 Appendix DAI 436−442, # 3 Appendix DAI 443−474, # 4 Appendix DAI 475−496, # 5 Appendix DAI 497−519, # 6 Appendix DAI 520−523, # 7 Appendix DAI 524−525, # 8 Appendix DAI 526−545, # 9 Appendix DAI 546−552)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
420 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 553−645 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 553−645)(ROBINSON, PATRICIA) (Entered: 04/05/2010)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 38 of 45

04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010

421 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 646−758 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 646−758)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
422 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 759−874 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 759−870, # 2 Appendix DAI 871−874)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
423 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 875−989 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 875−879, # 2 Appendix DAI 880−886, # 3 Appendix DAI 887−888, # 4 Appendix DAI 889−931, # 5 Appendix DAI 932−989)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
424 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 990−1076 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 990−1076)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
425 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1077−1161 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 1077−1161)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
426 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1162−1280 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 1162−1280)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
427 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1281−1420 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAI 1281−1394, # 2 Appendix DAI 1395−1420)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
428 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1421−1539 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 DAI 1421−1460, # 2 DAI 1461−1465, # 3 DAI 1466−1469, # 4 DAI 1470−1494, # 5 DAI 1495−1502, # 6 DAI 1503−1526, # 7 DAI 1527−1539)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
429 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1540−1612 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 DAI 1540−1542, # 2 DAI 1543−1545, # 3 DAI 1546−1559, # 4 DAI 1560−1579, # 5 DAI 1580−1597, # 6 DAI 1598−1608, # 7 DAI 1609−1612)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
430 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1613−1692 by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 DAI 1613−1624, # 2 DAI 1625−1640, # 3 DAI 1641−1651, # 4 DAI 1652−1658, # 5 DAI 1659−1671, # 6 DAi 1672−1689, # 7 DAi 1690−1692)(ROBINSON, PATRICIA) (Entered: 04/05/2010)

Case: 2:98­cv­3660 As of: 10/15/2012 09:00 PM EDT 39 of 45

04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010 04/05/2010

431 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 1−79 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 1−79)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
432 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 80−154 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 80−154)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
433 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 155−325 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 155−240, # 2 Appendix DSA 241−325)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
434 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 326−424 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 326−424)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
435 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 425−486 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 425−486)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
436 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 487−567 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 487−567)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
437 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 568−610 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 568−610)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
438 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 611−711 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 611−711)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
439 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 712−843 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 712−737, # 2 Appendix DSA 738−843)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
440 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 844−914 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due

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by 4/5/2010 (Attachments: # 1 Appendix DSA 844−914)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
441 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 915−1016 (Aministrative Records from Plaintiffs' Claim for Benefits) by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DSA 915−1016)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
442 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Certificate of Service, # 2 Brief, # 3 Statement of Facts Pursuant to Rule 56.1, # 4 Text of Proposed Order for Decertification of Class, # 5 Text of Proposed Order for Partial Summary Judgment)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
443 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 1−99)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
444 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 100−170, # 2 Appendix DAII 171−249)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
445 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 250−365, # 2 Appendix DAII 366−371, # 3 Appendix DAII 372−412)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
446 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 413−459, # 2 Appendix DAII 460−462)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
447 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 463−561)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
448 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 562−689)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
449 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 690−459)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
450 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 760−872)(ROBINSON, PATRICIA) (Entered: 04/05/2010)

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451 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 843−937)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
452 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 938−1029)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
453 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. Responses due by 4/5/2010 (Attachments: # 1 Appendix DAII 1030−1112, # 2 Appendix DAII 1113−1116, # 3 Appendix DAII 1117−1125, # 4 Appendix DAII 1126−1135, # 5 Appendix DAII 1136−1139)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
454 MOTION for Partial Summary Judgment by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. Responses due by 4/5/2010 (Attachments: # 1 Brief in Support, # 2 Statement of Undisputed Material Facts, # 3 Text of Proposed Order, # 4 Certification of Stephen Bruce with Index of Exhibits, # 5 Exhibit 1, # 6 Exhibit 2, Part 1, # 7 Exhibit 2, Part 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Exhibit 11, # 17 Exhibit 12, # 18 Exhibit 13, # 19 Exhibit 14, # 20 Exhibit 15, # 21 Exhibit 16, # 22 Exhibit 17, # 23 Exhibit 18, # 24 Exhibit 19, # 25 Exhibit 20, # 26 Exhibit 21, # 27 Exhibit 22, # 28 Exhibit 23, # 29 Exhibit 24, # 30 Exhibit 25, # 31 Exhibit 26, # 32 Exhibit 27, # 33 Exhibit 28, # 34 Exhibit 29, # 35 Exhibit 30)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
455 Exhibit to 454 Motion for Partial Summary Judgment,,, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5 Exhibit 35, # 6 Exhibit 36, # 7 Exhibit 37, # 8 Exhibit 38, # 9 Exhibit 39, # 10 Exhibit 40, # 11 Exhibit 41, # 12 Exhibit 42, # 13 Exhibit 43, # 14 Exhibit 44, # 15 Exhibit 45, # 16 Exhibit 46, # 17 Exhibit 47, # 18 Exhibit 48, # 19 Exhibit 49, # 20 Exhibit 50, # 21 Exhibit 51, # 22 Exhibit 52, # 23 Exhibit 53, # 24 Exhibit 54, # 25 Exhibit 55, # 26 Exhibit 56, # 27 Exhibit 57, # 28 Exhibit 58, # 29 Exhibit 59, # 30 Exhibit 60, # 31 Exhibit 61, # 32 Exhibit 62, # 33 Exhibit 63, # 34 Exhibit 64, # 35 Exhibit 65, # 36 Exhibit 66, # 37 Exhibit 67, # 38 Exhibit 68, # 39 Exhibit 69, # 40 Exhibit 70, # 41 Exhibit 71, # 42 Exhibit 72, # 43 Exhibit 73, # 44 Exhibit 74, # 45 Exhibit 75)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
456 BRIEF in Opposition re 442 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (Attachments: # 1 Statement Responses to Defendants' Rule 56.1 Statement and Statement of Additional Disputed and Undisputed Material Facts, # 2 Certification of Stephen Bruce with Index of Exhibits, # 3 Exhibit 76, # 4 Exhibit 77, # 5 Exhibit 78, # 6 Exhibit 79, # 7 Exhibit 80, # 8 Exhibit 81, # 9 Exhibit 82, # 10 Exhibit 83, # 11 Exhibit 84, # 12 Exhibit 85, # 13 Exhibit 86, # 14 Exhibit 87, # 15 Exhibit 88, # 16 Exhibit 89, # 17 Exhibit 90, # 18 Exhibit 91, # 19 Exhibit 92, # 20 Exhibit 93, # 21 Exhibit 94, # 22 Exhibit 95, # 23 Exhibit 96, # 24 Exhibit 97, # 25 Exhibit 98, # 26 Exhibit 99, # 27 Exhibit 100, # 28 Exhibit 101, # 29 Exhibit 102, # 30 Exhibit 103, # 31 Exhibit 104, # 32 Exhibit 105, # 33 Exhibit 106, # 34 Exhibit 107, # 35 Exhibit 108)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
457 BRIEF in Opposition re 414 MOTION for Summary Judgment ON THE SUPPLEMENTED FOURTH AMENDED COMPLAINT filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (Attachments: # 1 Statement Responses to Defendants' Rule 56.1 Statement and Statement of Additional Disputed and Undisputed Material Facts, # 2 Certification of Stephen Bruce with Index of Exhibits, # 3 Exhibit 109, # 4 Exhibit 110, # 5 Exhibit 111, # 6 Exhibit 112, # 7 Exhibit 113, # 8 Exhibit 114, # 9 Exhibit 115, #

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10 Exhibit 116, # 11 Exhibit 117, # 12 Exhibit 118, # 13 Exhibit 119, # 14 Exhibit 120, # 15 Exhibit 121, # 16 Exhibit 122, # 17 Exhibit 123, # 18 Exhibit 124, # 19 Exhibit 125, # 20 Exhibit 126, # 21 Exhibit 127, # 22 Exhibit 128, # 23 Exhibit 129, # 24 Exhibit 130, # 25 Exhibit 131, # 26 Exhibit 132, # 27 Exhibit 133, # 28 Exhibit 134, # 29 Exhibit 135, # 30 Exhibit 136, # 31 Exhibit 137, # 32 Exhibit 138, # 33 Exhibit 139, # 34 Exhibit 140)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
458 Exhibit to 457 Brief in Opposition to Motion,,,, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (Attachments: # 1 Exhibit 141, # 2 Exhibit 142, # 3 Exhibit 143, # 4 Exhibit 144, # 5 Exhibit 145, # 6 Exhibit 146, # 7 Exhibit 147, # 8 Exhibit 148, # 9 Exhibit 149, # 10 Exhibit 150, # 11 Exhibit 151, # 12 Exhibit 152, # 13 Exhibit 153, # 14 Exhibit 154, # 15 Exhibit 155, # 16 Exhibit 156, # 17 Exhibit 157, # 18 Exhibit 158, # 19 Exhibit 159, # 20 Exhibit 160, # 21 Exhibit 161, # 22 Exhibit 162, # 23 Exhibit 163, # 24 Exhibit 164, # 25 Exhibit 165, # 26 Exhibit 166, # 27 Exhibit 167, # 28 Exhibit 168, # 29 Exhibit 169, # 30 Exhibit 170)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
459 Exhibit to 457 Brief in Opposition to Motion,,,, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (Attachments: # 1 Exhibit 171, # 2 Exhibit 172, # 3 Exhibit 173, # 4 Exhibit 174, # 5 Exhibit 175, # 6 Exhibit 176, # 7 Exhibit 177, # 8 Exhibit 178, # 9 Exhibit 179, # 10 Exhibit 180, # 11 Exhibit 181, # 12 Exhibit 182, # 13 Exhibit 183, # 14 Exhibit 184, # 15 Exhibit 185, # 16 Exhibit 186, # 17 Exhibit 187, # 18 Exhibit 188, # 19 Exhibit 189, # 20 Exhibit 190, # 21 Exhibit 191)(NIRENBERG, JONATHAN) (Entered: 04/05/2010)
460 NOTICE by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan NOTICE OF FILING LENGTHY EXHIBITS IN SUPPORT OF MOTION [DOCKET NO. 442] ON CD RATHER THAN IN PDF FORM ON THE ECF SYSTEM (Pursaunt to Court Order on Docket No. 413) (ROBINSON, PATRICIA) (Entered: 04/05/2010)
461 BRIEF in Opposition re 454 MOTION for Partial Summary Judgment filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (Attachments: # 1 Certificate of Service, # 2 Statement Counterstatement of Facts, # 3 Certification of Jeffrey Tone, Esq., # 4 Appendix DSA−II 1−30, # 5 Appendix DSA −II 31−38, # 6 Appendix DSA−II 39−47, # 7 Appendix DSA−II 48−51, # 8 Appendix DSA−II 52−55, # 9 Appendix DSA−II 56−62, # 10 Appendix DSA−II 63−69, # 11 Appendix DSA−II 70−72, # 12 Appendix DSA−II 73−80, # 13 Appendix DSA−II 81−91, # 14 Appendix DSA−II 92−94, # 15 Appendix DSA−II 95−108, # 16 Appendix INDEX TO DSA−II)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
462 REPLY BRIEF to Opposition to Motion re 414 MOTION for Summary Judgment ON THE SUPPLEMENTED FOURTH AMENDED COMPLAINT filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (Attachments: # 1 Certificate of Service, # 2 Statement Defendants'Reply to Pls' Resp. to Def. R. 56.1 Statement, # 3 Statement Defendants' Response to Pl. Counterstatement of Facts, # 4 Certification of Jeffrey Tone, Esq.)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
463 REPLY BRIEF to Opposition to Motion re 454 MOTION for Partial Summary Judgment filed by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. (NIRENBERG, JONATHAN) (Entered: 04/05/2010)
464 REPLY BRIEF to Opposition to Motion re 442 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (Attachments: # 1 Certificate of Service, # 2 Statement Defendants Response to Plaintiffs Local Civil Rule 56.1 Counterstatement of Additional Undisputed Material Facts in Response to Defendants Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class, # 3 Statement Defendants Reply to Plaintiffs Response to Defendants Local Civil Rule 56.1 Statement of Undisputed Material Facts in

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Support of their Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class, # 4 Certification of Jeffrey R. Tone, Esq. in Support of Defendants Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
465 REPLY BRIEF to Opposition to Motion re 442 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS **AMENDED** − To Replace Dkt. No. 464 filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (Attachments: # 1 Certificate of Service, # 2 Statement Defendants Response to Plaintiffs Local Civil Rule 56.1 Counterstatement of Additional Undisputed Material Facts in Response to Defendants Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class, # 3 Statement Defendants Reply to Plaintiffs Response to Defendants Local Civil Rule 56.1 Statement of Undisputed Material Facts in Support of their Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class, # 4 Declaration Certification of Jeffrey R. Tone, Esq. in Support of Defendants Motion for Partial Summary Judgment, or in the Alternative, Decertification of Class)(ROBINSON, PATRICIA) (Entered: 04/05/2010)
466 STATEMENT of Material Facts in Opposition re 454 MOTION for Partial Summary Judgment (In connection with Dkt. No. 461) filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (ROBINSON, PATRICIA) (Entered: 04/05/2010)
467 APPENDIX in Support re 420 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 553−645, 414 MOTION for Summary Judgment ON THE SUPPLEMENTED FOURTH AMENDED COMPLAINT (**CORRECTED VERSION** To replace Dkt. No. 420) filed by ATATTINC., ATTMANAGEMENT PENSION PLAN, ATTPension Benefit Plan, ATTPuerto Rican Pension Benefit Plan. (ROBINSON, PATRICIA) (Entered: 04/06/2010)
Set Deadlines as to 427 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1281−1420, 444 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 415 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1−127, 414 MOTION for Summary Judgment ON THE SUPPLEMENTED FOURTH AMENDED COMPLAINT, 425 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1077−1161, 441 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 915−1016 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 915−1016 (Aministrative Records from Plaintiffs' Claim for Benefits), 437 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 568−610 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 568−610 (Aministrative Records from Plaintiffs' Claim for Benefits), 416 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 128−199, 422 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 759−874, 442 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 440 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 844−914 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 844−914 (Aministrative Records from Plaintiffs' Claim for Benefits), 454 MOTION for Partial Summary Judgment, 452 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 429 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1540−1612, 426 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1162−1280, 451 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 423 MOTION

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for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 875−989, 433 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 155−325 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 155−325 (Aministrative Records from Plaintiffs' Claim for Benefits), 448 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 432 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 80−154 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 80−154 (Aministrative Records from Plaintiffs' Claim for Benefits), 439 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 712−843 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 712−843 (Aministrative Records from Plaintiffs' Claim for Benefits), 417 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 200−299, 445 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 424 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 990−1076, 430 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1613−1692, 450 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 443 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 438 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 611−711 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 611−711 (Aministrative Records from Plaintiffs' Claim for Benefits), 446 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 419 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 406−552, 434 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 326−424 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 326−424 (Aministrative Records from Plaintiffs' Claim for Benefits), 436 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 487−567 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 487−567 (Aministrative Records from Plaintiffs' Claim for Benefits), 449 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 420 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 553−645, 428 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 1421−1539, 447 MOTION for Partial Summary Judgment or. in the Alternative, DECERTIFICATION OF CLASS, 453 MOTION for Partial Summary Judgment or, in the Alternative, DECERTIFICATION OF CLASS, 435 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 425−486 (Aministrative Records from Plaintiffs' Claim for Benefits) MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DSA 425−486 (Aministrative Records from Plaintiffs' Claim for Benefits), 421 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 646−758, 418 MOTION for Summary Judgment On The Supplemented Fourth Amended Complaint APPENDIX DAI 300−405. Motion set for 5/3/2010 10:00 AM before Judge Stanley R. Chesler. The motion will be decided on the papers. No appearances required unless notified by the court. (tt, ) (Entered: 04/06/2010)
468 ORDER setting Final Pretrial Conference on 9/21/10 at 2:30 p.m.; etc. Signed by Magistrate Judge Claire C. Cecchi on 4/6/10. (sr, ) (Entered: 04/06/2010)
469 OPINION fld. Signed by Judge Stanley R. Chesler on 6/7/10. (sr, ) (Entered: 06/07/2010)

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470 ORDER granting 414 Motion for Summary Judgment ***CIVIL CASE TERMINATED; denying 442 Motion for Partial Summary Judgment; denying 454 Motion for Partial Summary Judgment. Signed by Judge Stanley R. Chesler on 6/7/10. (sr, ) (Entered: 06/07/2010)
471 NOTICE OF APPEAL as to 140 Order, 290 Order on Motion to Amend/Correct, Order on Motion for Reconsideration, 264 Order on Motion for Summary Judgment, 470 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, by PHILLIP C. ENGERS, WARREN J. MCFALL, DONALD G. NOERR, GERALD SMIT. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (NIRENBERG, JONATHAN) (Entered: 06/11/2010)
472 USCA Appeal Fees received $ 455 receipt number 0312−3163005 re 471 Notice of Appeal (USCA), filed by DONALD G. NOERR, GERALD SMIT, WARREN J. MCFALL, PHILLIP C. ENGERS. (ji, ) (Entered: 06/14/2010)
473 USCA Case Number 10−2752 for 471 Notice of Appeal (USCA), filed by DONALD G. NOERR, GERALD SMIT, WARREN J. MCFALL, PHILLIP C. ENGERS. USCA Case Manager Desiree White−Banks (Document Restricted − Court Only) (ca3dwb, ) (Entered: 06/14/2010)
474 Transcript of Proceedings held on December 13, 1999, before Judge Politan. Court Reporter/Transcriber Stanley Rizman, Contact Rose Danaghue at Telephone number 973−645−4637 with any inquiries. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 7/28/2010. Redacted Transcript Deadline set for 8/9/2010. Release of Transcript Restriction set for 10/5/2010. (ji, ) (Entered: 07/08/2010)
475 Transcript of Proceedings held on 1/23/01, before Judge Politan. Court Reporter/Transcriber Stanley Rizman, Telephone number N/A. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 9/17/2010. Redacted Transcript Deadline set for 9/27/2010. Release of Transcript Restriction set for 11/29/2010. (tjg,) (Entered: 08/27/2010)
476 NOTICE/CONSENT to become a party pltf submitted by Juliana Caini (sr, ) (Entered: 10/19/2010)
477 NOTICE/CONSENT TO JOIN ACTION AS PARTY PLAINTIFF by Bradford N. Motley. (sr, ) (Entered: 06/02/2011)
478 USCA JUDGMENT as to 471 Notice of Appeal (USCA) filed by DONALD G. NOERR, GERALD SMIT, WARREN J. MCFALL, PHILLIP C. ENGERS (ca3dwb, ) (Entered: 06/22/2011)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 6/22/11. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (tjg, ) (Entered: 06/23/2011)