UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE J.P, MORGAN CHASE CASH BALANCE LITIGATION
THIS DOCUMENT RELATES TO: All Actions

MASTER FILE: 06-CV-0732 (HB)

CONSOLIDATED CLASS ACTION COMPLAINT
I. INTRODUCTION 1. Plaintiffs Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, and Perry Shapiro (collectively, "Plaintiffs"), all of whom are participants in the JPMorgan Chase Retirement Plan, bring this action on their own behalf and on behalf of all similarly situated participants, their beneficiaries and Estates, pursuant to the Employee Retirement Income Security Act of 1974, as Amended ("ERISA"), 29 U.S.C. §§ 1001, et seq. 2. Plaintiffs challenge the cash balanc~ formulas used in the JPMorgan Chase Retirement Plan as discriminatory based on age and for other violations of EtLISA. 3. Though the actuarial component of cash balance plans is complex and far beyond the comprehension of most lay people (which is one of the probiems with the plans), the pervasive impact of the plans are straightforward. Corporations save money when they convert to cash balance plans from final average pay plans, and older workers shoulder the difference.
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Older workers who are subject to cash balance pension plans are suffering from reduced rates of benefit accrual, and retiring with dramatically reduced pension benefits, based solely on their age.
4. While the proponents of cash balance plans have touted the plans as being beneficial for American employees and retirees, in truth, cash balance plans are nothing more than a scheme to slash pension obligations for older workers. The scheme is particularly attractive to corporations like JPMorgan Chase & Co. because, as is well known, under traditional - and legal- defined benefit plans, workers with more years of service are more expensive to provide for in retirement. Prior to the advent of the cash balance plan scheme, this pension obligation was considered the quidpro quo corporations properly gave for an employee’s long-term commitment and loyalty.
5. Plaintiffs ask the Court: 1) to declare that the cash balance formulas in the JPMorgan Chase Retirement Plan and the predecessor plans of the JPMorgan Chase & Co. Predecessor Companies, as defined herein (collectively, the "Plan"), violate ERISA’s minimum accrual standards; 2) to enjoin Defendants from enforcing those unlawful formulas; 3) to order Defendants to reform the terms of the Plan to bring them into compliance with ERISA’s requirements; 4) to recalculate the accrued benefits of all participants under the terms of the refomaed Plan; and 5) to pay pensioners, thei/beneficiaries and Estates the difference between the benefits paid to them heretofore, and the b~nefits due under the terms of the reformed Plan.
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II. JURISDICTION AND VENUE 6. Jurisdiction over this action is based’on:
(a) ERISA Section 502(e)(1), 29 U.S.C. § 1132(e)(1); (b) 28 U.S.C. § i33I(a), because this action arises under the laws of the
United States, namely ERISA. 7. Venue in this District is proper pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2), because the Plan is administered and Defendants can be found in this District.

8. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202,

respectively, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by ERISA

Sections 502(a)(1)(B) and 502(a)(3), 29 U.S.C. §§1132(a)(i)(B) and (a)(3).

Plaintiffs

III. PARTIES

9. PlaintiffNeil Aldoroty is a "participant" of the Plan within the meaning of ERISA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance formula. He resides in Hilton Head, South Carolina. Plaintiff Aldoroty began working for Chase Manhattan Corporation in t 967 and continued to work for Chase Manhattan Corporation’s successor companies until 2002.

10. Plaintiff John J. B erotti is a "participant" of the Plan within the meaning of ER~SA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance formula. He resides in Long Tsland City, New York. PlaintiffBerotti began working for Chase Manhattan Corporation in 1971 and continued to work for Chase Manhattan Corporation’s successor

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companies until 2001. 11. Plaintiff Annette Marie Falchetti is a "participant" of the Plan within the meaning
of ERISA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance fonrmla. She resides in New York, New York. Plainti,ff-Fal,chetti began working for Chase Manhattan Corporation in 1975 and continued to work foi" Chase Manhattan Corporation’s successor companies until 2001.
t2. Plaintiff Terri Melli is a "participant" of the Plan within the meaning of ERISA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance formula. She resides in Tampa, Florida. Plaintiff Melli began working for Chase Manhattan Corporation in 1997 and continued working for the company’s successor, JPMorgan Chase & Co., until 2005.
13. PlaintiffNorman J. Schomaker is a "participant" of the Plan within the meaning of ERISA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance formula. He resides in Bayside, New York. Plaintiff Schomaker. began working for Chase Manhattan Corporation in 1966 and continued to work for Chase Manhattan Corporation’s successor companies until 2005.
14. Plaintiff Perry Shapiro is a "participant" of the Plan within the meaning of ERISA Section 3(7), 29 U.S.C. § 1002(7) and is subject to the Plan’s cash balance formula. He resides in Oceanside, New York. Plaintiff Shapiro began working for Manufacturers Hanover Trust in 1969 and continued to work for Manufacturers Hanover Trust’s successor companies until 2001.

Defendants
15. Defendant JPMorgan Chase Retirement Plan and the predecessor plans of the JPMorgan Chase & Co. Predecessor Companies, as defined herein (collectively, the "Plan"), is an "employee pension benefit plan" within the meaning ofERISA § 3(2)(A), 29 U.S.C. § 1002(2)(A), and a "defined benefit plan" within the meaning of ERISA § 3(35), 29 U.S.C. § 1002(35). The Plan is administered in this District. The Plan covers employees.of JPMorgan Chase & Co. ("JPMC"), which is the successor~in-interest to numerous Other companies, including but not limited to, The Chase Manh~.ttan Bank ("Chase"), Chemical Banking Corporation ("Chemical"), Manufacturers Hanover Trust ("MHT"), J.P. Morgan & Co., Inc. ("J.P. Morgan"), and Bank One (collectively, the "JPMC Predecessor Companies" or "JPMorgan Chase & Co. Predecessor Companies"), whose former employees participate in the Plan and/or whose prior retirement plans have been merged with this Plan.
16. JPMC’s Director of Human Resources (or the person, persons, or entity subsequently or otherwise appointed by the Board of Directors of JPMC or JPMorgan Chase Bank, N.A. to serve in this role) is the Plan Administrator within the meaning of ERISA § 3(16)(A)(i), 29 U.S.C. § 1002(16)(A)(i), a Plan fiduciary within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(a), and is named as a defendant herein. The Plan Administrator’s offices are located in this District.
IV. ERISA DOCUMENT REQUESTS 17. By letters dated April 25, April 27, May 9, and May 25, 2006, Plaintiffs have requested Plan-related documents from the Plan Administrator Defendant and other Defendants

pursuant to ERISA § 104(b)(4), 29 U.S.C. § !~}4(b)(4), including trust agreements, master Plan documents, Summary Plan Descriptions, Plan amendments, and Summaries of Material Modifications in effect as of December 31, 1988 (the day prior to the conversion of the Chase Manhattan Corporation’s retirement plan from a "final average pay" defined benefit plan to a "cash balance formula’’ defined benefit plan) to the present.
18. By letters dated April 25, April 27, May 9, and May 25, 2006, Plaintiffs have also requested from the Plan Administrator Defendant and other Defendants pursuant to ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), the most recent Internal Revenue Service Department of Labor Form 5500 filed by the Plan, as well as those filed from January 1, 1989 to the present.
19. On May 4, 2006, Defendants i~ro.du,ced to Plaintiffs certain Plan-related documents from the period 1997 to the present. By letters dated May 12 and May 24, 2006, Defendants have corresponded with Plaintiffs regarding their requests, but as of the date of filing this Consolidated Class Action Complaint, Defendants have failed to produce all documents Plaintiffs have requested. As a result of defendants’ failure to produce all requested documents, Plaintiffs plead certain allegations regarding upon information and belief.
V. FACTS Relevant Aspects of the JP Morgan Chase Cash Balance Plan and its Predecessor Plans
20. The Plan appties various formulas, known as "cash balance" formulas, to calculate the pension benefits of eligible employees and former employees of JPMC and YPMC Predecessor Companies, including Plaintiff~.: !’! ~
21. Pursuant to its applicable cash balance formulas, the Plan defines the pension
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benefit earned by employees with reference to the balance in his individual, but hypothetical, account (the "Account"). Each year an employee’s Account is credited with a percentage of his compensation ("Pay Credits") and an additional amount derived by applying to the Account balance a variable interest rate based on an out~ide index ("Interest Credits"). While the hypothetical allocation of Pay Credits terminates with employment, the Plan’s cash balance formula continues to allocate hypothetical Interest Credits to each Account until benefits are distributed.
22. Although the Plan refers man individual Account for each participant, the Plan is not a "defined contribution plan," as that term is defined at ERISA Section 3(34), 29 U.S.C. § 1002(34). Instead, it is a "defined benefit plan," which is defined at ERISA Section 3(35), 29 U.S.C. § 1002(35), as "a pension plan other than an individual account plan."
23. Upon retirement, the Account with Pay Credits and Interest Credits accumulated through the date that benefits are to commence is converted to either an annuity benefit, or some other form of qualified benefit, including a lump sum benefit, pursuant to actuarial assumptions specified in the Plan.
24. Normal Retirement Age under the Plan is the later of age 65 or completion of five years of participation in the Plan.
25. Generally, employees eligible to participate in the Plan include those salaried, U.S. payroll employees with at least one year of service.
26. Generally, under the terms of the Plan, participants become 100 percent vested in

their accrued benefits upon the earlier of five years of service or reaching normal retirement age. 27. The Plan year is based upon the calendar year, commencing January 1 and ending
December 31. History of the Plans Sponsored by the JPMC Predecessor Companies
28. On information and belief, the JPMC Predecessor Companies, including but not limited to Chase, Chemical, MHT, and J.P. Morgan, each had their own defined benefit pension plans before their respective mergers with JPMC, or another JPMC Predecessor Company. Upon or soon after their respective mergers, the respective plans of the JPMC Predecessor Companies (the "Predecessor Plans") were directly or indirectly merged with the Plan.
Predecessor Chase Plan, Chemical Plan, and MHT Plan 29. The Chase Plan converted from a traditional final average pay formula to a cash
balance formula effective January 1, t 989 (the "Old Chase Plan"). 30. In 1991, Chemical merged with MHT, but retained the Chemical corporate name.
Effective January 1, 1993, the Cash Plan for Retirement of Chemical Bank and Certain Companies was merged into the Retirement Plan of Manufacturers Hanover Trust and Certain Affiliated Companies. The resulting plan, known as tl~e "The Retirement Plan of Chemical Bank and Certain Affiliated Companies" (the "Chemical Plan") incorporated both a final average pay component and a cash balance component for the accrual of pension benefits.
31. Pay Credits under the Chemical Plan’s cash balance component varied according to a participant’s years of service and ranged from four to six percent of eligible salary. Interest

Credits under the Chemical Plan were based upon the average rate for one-year U.S. Treasury bills for the months of September, October and November of the previous year.
32. In 1996, Chemical merged with Chase, with the surviving entity retaining the Chase name. On about January t, 1997, the Old Chase Plan was merged with the Chemical Plan. The new plan, referred to as the "Heritage Chase Plan," was also a cash balance plan and included an amendment to the cash balance formula for benefits accrued after December 31, 1996.
33. Generally, under the Heritage Chase Plan, Pay Credits were based upon years of completed pay-credit service and ranged from four percent for the first three years of service to fourteen percent for 26 or more years of servic.e. Interest Credits were based upon the average rate for one-year U.S. Treasury bills for the months of September, October and November of the previous year, plus one percent, with no minimum rate. Predecessor Morgan Plan
34. Effective January 1, 1998, Morgan Guaranty Trust Company (a wholly-owned . subsidiary of J.P. Morgan), maintained the "Retirement Plan of Morgan Guaranty Trust Company of New York and Affiliated Companies for United States Employees" (the "Morgan Plan") as a traditional, final average pay defined benefit plan for eligible employees of J.P. Morgan and its participating affiliates.
35. Effective January 1, 1999, the! Morgan Plan was converted from a traditional final average pay formula to a cash balance formula for the accrual of pension benefits. Accordingly,
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the amended Morgan Plan was renamed the "Cash Balance Plan of Morgan Guaranty Trust Company of New York and Affiliated Companies for United States Employees?’
36. Under the Morgan Plan, Pay Credits were monthly allocations equal to five percent of eligible compensation for such monih (1/12 of annual salary). Interest Credits under the Morgan Plan were based upon the average rate for 30-year U.S. Treasury bills for the months of September, October and November of the previous year, with no minimum rate. Predecessor Bank One Plan
37. Upon information and belief, the Bank One Corporation Cash Balance Plan (the "Bank One Plan") implemented a cash balance formula effective January 1, t 997.
38. Upon information and belief, effective, January 1, 2000, the First Chicago NBD Corporation Personal Pension Account Plan and the First USA Pension Plan were merged with the Bank One Plan, with the resulting, amended cash balance plan being known as the "Bank One Corporation Personal Pension Account Pihn.".
39. Pay Credits under the Bank One Plan varied according to a participant’s completed anniversary years of service and ranged from 3 to 9 percent of eligible compensation. Interest Credits were allocated monthly based on 1/12 of the average annual yield for one-year Treasury bills published for the month two months prior to the commencement of the applicable calendar quarter, plus one percent. The Bank One Plan provided for a minimum rate of 4.5 percent.

The JPMC Plan Became Effective January 1, 2002 40. On December 31, 2000, J.P. Morgan was merged into Chase by way of a stock for
stock transaction. Following the merger, Chase changed its name to JPMorgan Chase & Co. Effective January I, 2002, the prior "cash balance" pension plan formerly maintained by J.P. Morgan (the "Morgan Plan") was merged into the cash balance plan maintained by Chase (the "Chase Plan"). As described above, the Chase Plan had already incorporated by prior merger the pension plans formerly maintained by Chemicat and MHT.
41. To effectuate the merger of the Chase Plan and the Morgan Plan, at the close of business on December 31,2001, the net assets of the Morgan Plan were transferred to the Chase Plan, which was amended and renamed "The JPMorgan Chase Retirement Plan."
42. On July 1, 2004, JPMC merged with Bank One, but retained its corporate name. 43. Subsequent to its merger with Bank One, JPMC merged the cash balance plan previously maintained by Bank One into the Plan, effective December 31, 2004, and made certain other Plan revisions. The Plan was amended effective January 1, 2005. Elements of the Plan 44. Article 4.3 of the Plan, as amended effective January 1, 2005, sets forth in Table 4.3(b) that the percentage used to calculate a pi~rticipant’s Pay Credit is based on that participant’s completed full years of pay credit service. Those percentages provide for monthly allocations of Pay Credits, ranging from accruing factors of three percent to nine percent of eligible compensation, as follows:
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Completed Years of Pay-Credit Service ~ 1 ~4 5-9 10-14 15-19 20-24
25 or more

Accruing Factor 3 percent 4 percent 5 percent 6 percent 7.5 percent 9 percent

45. For plan years beginning Januaw 1, 2002 and ending prior to January 1, 2005, the percentages for Pay Credits ranged from three.percent to ten percent of eligible compensation, based upon the Plan’s pay-credit service brackets in effect for such time. Generally, participants who were receiving Pay Credits under the prior Pay Credit schedule receive the greater of: (a) the allocation determined using the Pay Credit percentage under the prior pay credit schedule; or (b) the allocation determined using the Pay Credit percentage under the current Pay Credit schedule, until the current schedule provides a greater Pay Credit percentage.
46. Certain Bank One participants receive supplemental pay-based credits in accordance with levels fixed by the predecessor Bank One Plan.
47. Interest Credits under the Plan are allocated monthly, though compounded annually, and are based upon a variable rate of interest--the average annual yield for one-year U.S. Treasury bills published for the month of October immediately preceding the Plan year,

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plus one percent. Effective January 1, 2005, the Plan provides for a guaranteed minimum interest rate of 4.5 percent. Prior to January i, 2005, the Plan’s Interest Credits were based upon the 30-year U.S. Treasury rate, with no minimum rate.
48. Employees who were participants in the Plan immediately prior to its January 1, 2005 amendment have a "Frozen Minimum Benefit" equal to their credit balance as of December 3 I, 2004, projected with interest credits from such date through the participant’s annuity starting date (or, in the case of a lump sum or other non-annuity form of payment, the first day of the month following the date on which the participm~t is entitled to receive the benefit).
49. Under Article VII of the Plan, generally, the normal method of payment for married participants is a joint and 50 percent survivor annuity, and the normal method of payment for non-married participants is a single life annuity. Optional forms of payment also include: (a) various annuity lump sum. distributions equal to a participant’s account balance; or (b) the actuarial equivalent of the participant’s accrued benefit, determined in accordance with
} !~.. :
actuarial assumptions set forth in the Plan. Payment alternatives vary for certain participants of Predecessor Plans.
50. Certain participants of Predecessor Plans may be eligible for various transitional, "grandfathered," or "frozen" minimum benefits under the terms of their respective entry into the Plan. However, none of the transitional, "grandfathered," or "frozen" minimum benefit options that may apply to certain participants of Predecessor Plans cure or prevent the fundamental statutory violations of the cash balance formulas described herein, Rather, they may affect the calculation of benefits pursuant to the Plan, but not in a way that cures the illegal nature of the

Plan’s cash balance formulas. VI. CLASS ACTION ALLEGATIONS
51. Plaintiffs bring this action on their own behalf and, pursuant to the provisions of the Federal Rules of Civil Procedure, on behalf of a class of all others similarly situated, defined as all Plan participants, whether active, inactive or retired, their beneficiaries and Estates, whose accrued benefits or pension benefits are based in whole or in part on the Plan’s cash balance formulas, from January I, I989 to the present.
52. The requirements for maintaining this action as a class action under Rule 23(b)(1) and (b)(2), Federal Rules of Civil Procedure, are satisfied in that:
(a) The members of the class are so numerous that joinder of all members is impracticable;
(b) The class is large in number; the exact number and identities of all class members are currently unknown to Plaintiffs, but are known to Defendants. The number of class members is believed to be in the tens of thousands;
(c) There are questions of law common to all members of the class, such as whether the Plan’s cash balance formulas comply with ERISA and, if not, how to reform them to bring them into compliance with the statute;
(d) Plaintiffs are members of the class as defined above; their claims are typical of the claims of the members of the class and they will fairly and
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adequately protect the ii~terests of the class. Plaintiffs’ interests are coincident with, and not antagonistic to, those of the remainder of the class, and Plaintiffs are represented by experienced ERISA class action counsel; (e) The prosecution of separate actions by individual members of the class would create the risk of inconsistent or varying adjudications establishing incompatible standards of conduct for Defendants and a risk of adjudications which as a practical matter would be dispositive of the interests of other members of the class who were not parties; and (f) Defendants have acted or refused to act and are likely to act or refuse to act on grounds generally applicable to the class, thereby making appropriate final injunctive and other relief with respect to the class as a whole.
VII. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Rate of Benefit Accrual Reduced on Account of Age (For Violation of ERISA Section 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i)) 53. Plaintiffs repeat and reallege each and every allegation above. 54. ERISA Section 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), provides that a plan’s rate of accrual must comply not only with ERISA’s anti-backloading provisions, but also avoid reducing the rate of accrual based on increasing age:
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Notwithstanding the preceding subparagraphs [i.e., ERISA’s three minimum accrual schedules], a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee’s benefit accrual is ceased, or the rate of an employee’s benefit accrual is redi~ced, because of the attainment of any age. 55. In the case of a defined benefit pension plan, ERISA Section 3(23)(A), 29 USC § 1002(23)(A), defines "accrued benefit" in pertinent part as "IT]he individual’s accrued benefit determined under the plan and.., expressed in the form of an annual benefit commencing at normal retirement age." As required by this definition, the portion of the "accrued benefit" attributable to the Interest Credits is not the amount actually allocated to the Account, but is obtained by projecting the Interest Credits to normal retirement age, ke., age 65 under the terms of the Plan, based on a projection rate that must be set forth in the Plan. As a consequence, the younger the participant, the greater the value at normal retirement age of the Interest Credits "accrued" each year. 56. Because the value of Interest Credits is inversely proportional to advancing age, Interest Credits are "frontloaded," in contrast to Pay Credits, which are "backloaded," because they decrease with advancing age. 57. Because Pay Credits are backloaded, For example, if Pay Credits increase each year at a 5 percent rate, 5 percent would have to be the maximum interest rate for Interest Credits.
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58. In the Plan, however, Pay Credits do not increase each year at a constant rate. As a consequence, the only interest rate that would insure against a reduction in the rate of accrual on account of age would be a zero interest rate. Because the Plan and all prior plans, apply an interest rate greater than zero, there is no way to avoid a reduction in the Plan’s overall rate of accrual on account of advancing age.
59. The Plan’s cash balance formulas (as in effect in 2005 and in prior years) cause the rate of accrual to diminish with age.
60. For example, under the 2005 cash balance formula, the Plan’s overall rate of accrual diminishes from a high of 2.11 percent at age 30 with 10 years of service, to a low of 0.81 percent at age 65 with. 45 years of service. Similarly, under the 2002 cash balance formula, the rate of accrual diminishes from a high of 2.92 percent at age 29 with 9 years of service, to a low of 0.90 percent at age 65 with 45 years of service. Two charts showing the year-to-year rate of accrual under the 2005 and 2002 cash balance formulas are attached to this Consolidated Complaint as Exhibit 1.
61. Similar reductions on account of age occurred in the cash balance formulas of the JPMC Predecessor Companies. For example, under the 1997 Chase Plan, the rate of accrual was reduced on account of age from a high of 6.41 percent after one year of service to 1.26 percent at age 65 with 45 years of service. A chart showing the year-to-year rate of accrual under the 1997 Chase cash balance formula is attached to this Consolidated Complaint as Exhibit 2.

62. The reduction in the rate of accrual on account of age in the Plan and in the JPMC Predecessor Plans violates ERISA Section 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i).
SECOND CLAIM FOR RELIEF Plan Transition Offset Creates Impermissible Baekloading ("Wear-Away") (For Violation of ERISA Section 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B), and
26 U.S.C. § 411(b)(1)) 63. Plaintiffs repeat and realtege each and every allegation above. 64. Upon information and belief, the Plan and each of its Predecessor Plans were converted from a final average pay formula to a cash balance formula during the Class Period. Upon such conversions, the benefit accrued under the final pay formula was converted into a lump sum and was used as an offset against the benefits accruing to participants under the cash balance formula. 65. For example, prior to January 1, 1989, participants in the Plan who were Chase employees accrued annual benefits under a traditional final average benefit formula. Effective January 1, 1989, however, Chase Manhattan converted its final average benefit formula into a cash balance formula (referred to hereinafter as the "old cash balance formula"). 66. Effective January 1, 1997, Chase adopted an amendment to its cash balance formula for benefits accrued after December 31, 1996 (the "new cash balance formula"). The new cash balance formula did not cover "grandfathered" participants - those whose age and service qualified them to continue accruals under the old cash balance formula. 67. Chase employees who had been participants under the final average pay formula
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or the old cash balance formula and remainedactive participants under the new cash balance formula on or after January 1, 1997, are referred to in the Plan as "Heritage Chase employees."
68. For Heritage Chase employees the Opening Cash Balance Account under the new cash balance formula as of January I, 1997, consisted of the sum of: (a) the account balance under the old cash balance formula (or, if greater, the value of 1 percent of career average compensation converted to a lump sum), and (b) the vested annuity benefit under the final average pay formula frozen on December 31, 1988, converted into a lump sum based on actuarial factors set forth in the plan.
69. The new cash balance formula also provided that, for Heritage Chase employees, the benefit payable by the plan would be the greater of the 1997 Opening Balance Account or the benefit that would have accrued had the new cfish balance account been in effect at all times before January 1, 1997.
70. The 1997 Opening Cash Balance Account became an offset amount for Heritage Chase employees, so that they accrued no additional benefits under the new cash balance formula unless and until the benefit notionally accrued under the new cash balance formula and applied to all years of participation, became greater than the benefit accrued before January 1, 1997.
71. Application of the 1997 Opening Cash Balance as an offset causes the rate of accrual of the new cash balance formula to be zero for some Heritage Chase employees during one or more years of participation. This accrual. ~meth°d.. is known as the "wear-awmaeyth"od.
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72. As a defined benefit pension plan, a cash balance plan must comply with all of ERISA’s minimum standards governing defined benefit pension plans, including at least one of ERISA’s three minimum accrual rules known as the "3 percent," the "133 1/3 percent" and the "fractional" rules, set forth at ERISA Sections 2d4(b)(1)(A), (B) and (C), 29 use §§ 1054(b)(l)(A), (B) and (C). The main purpose of those rules is to outlaw the "backloading" of benefits, i.e., to keep a plan from providing disproportionately higher benefits for later years of service, thereby circumventing ERISA’s early vesting provisions.
73. Both the 3 percent and the fractional rules provide that, where pension benefits are based on compensation, such compensation cannot be averaged over more than t0 years. Because all cash balance formulas provide that Pay Credits are hypothetically credited yearly (or, in some cases, monthly), the compensation on which benefits are based is "career average" compensation. As a consequence, the only accrual rule with which a cash balance formula can comply is the 133 1/3 percent rule.
74. The 133 1/3 percent rule provides in pertinent part that no later rate of accrual can be more than one third greater than any earlier rate, as follows:
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 ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B).
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75. Because any accrual rate is infinitely greater than zero, a zero accrual rate followed by any future accrual violates the t 33 1/3 percent rule.
76. Pursuant to 26 C.F.R. § 1.41 l(b)-t(b)-l(b)(2)(ii)(B), the 133 1/3 percent rule is violated by the mere possibility that a Plan’s benefit formula could yield zero accrual in one or more years, followed by an accrual rate greater than zero.
77. In addition, as of any particular year, "the accrued benefit payable at the normal retirement age" for participants subject to "wear-away" is not "equal to the normal retirement benefit," as required by the 133 1/3 percent rule.
78. The application of"wear-away" to Plan participants, including Heritage Chase employees, causes the cash balance formula to violate the t33 1/3 percent rule, ERISA Section 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B), 26 U.S.C. § 4t l(b)(1).
THIRD CLAIM FOR RELIEF Offset Causes Impermissible Forfeiture of Accrued Benefits (For Violation of ERISA Section 203(a)(2)(A), 29 U.S.C. § 1053(a)(2)(A), and 26 U.S.C. §
411 (a)(2)(A)) 79. Plaintiffs repeat and reallege each a’nd every allegation above. 80. For some Plan participants their benefit accrued under the cash balance formula is payable only if it is larger than the opening balance in their Account upon the Plan’s conversion. Therefore, payment of the benefit accrued in any particular year under the cash balance formula is conditioned upon the size of the opening cash balance Account, regardless of vested status (five years of service under the Plan).
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81. ERISA Section 203(a)(2)(A), 29 U.S.C. § 1053(a)(2)(A) ("Nonforfeitability requirements"), and 26 U.S.C. § 411 ("Minimum Vesting Standards") provide in pertinent part that "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."
82. 26 C.F.R. § 1.411 (a)-4 provides in pertinent part: For purposes of [26 U.S.C.] Section 411 and the regulations thereunder, a right to an accrued benefit is considered to be nonforfeitable at a particular time if, at that time and thereafter, it is an unconditional right .... [A] right which, at a particular time, is conditioned under the plan upon a subsequent event, subsequent performance, or subsequent forbearance which will cause the loss of such right, is a forfeitable right at that time.
83. By conditioning payment of a vested accrued benefit upon the participant’s remaining employed long enough to permit his accrued benefit under the new cash balance formula to become larger than the opening cash balance account, the Plan conditions the nonforfeitability of the accrued benefit upon subsequent events, in violation of ERISA Section 203(a)(Z)(A), 29 U.S.C. § 1053(a)(Z)(A) and 26 U.S.C. § 411.
FOURTH CLAIM FOR RELIEF Failure to Provide Notice of Reduction in Rate of Benefit Accrual
(For Violation of ERISA Section 204(h), 29 U.S.C. § 1054(h)) 84. Plaintiffs repeat and reallege each and every allegation above.
85. At all times relevant to this action, ERISA Section 204(h), 29 U.S.C. § 1054(h), required advance notice to participants in a defined benefit pension plan of any amendment whose effect is to "provide for a significant reduction in the rate of future benefit accrual." 29
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U.S.C. § 1054(h)(1). Until December 3 t, 2001, the notice was to be provided "not tess than 15 days before the effective date of the plan amendment," and was required to "set forth" the plan amendment and its effective date. As of January 1, 2002, additional requirements were added.
86. Both versions of Section 2040a) provide that a plan may not be amended if it fails to comply with these statutory requirements.
87. Upon information and belief, in adopting their respective cash balance formulas, the Plan and all Predecessor Plans during the Class Period affected a significant reduction in the rate of future benefit accrual.
88. Upon information and belief, the timing, content and method of distribution of the notices of the adoption of the cash balance formulas in the Plan and the Predecessor Plan violated ERISA Section 204(h), 29 U.S.C. § 1054(h), and the applicable regulations.
FIFTH CLAIM FOR RELIEF Failure to Provide Adequate Summary Plan Descriptions (For Violation of ERISA Section 102(b), 29 U.S.C. § 1022(b), and 29 C.F.R. § 2520.102-2) 89. Plaintiffs repeat and reallege each and every allegation above.
90. ERISA Section 102(a), 29 U.S.C. § 1022(a), requires the Plan administrator to provide all participants and beneficiaries with a summary plan description ("SPD"):
The summary plan description shall include the information described in subsection (b) of this section, shall be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.
-23 -

91. In turn, ERISA Section 102(b), 29 U.S.C. § I022(b), provides in pertinent part:
The summary plan description shall contain the following information: .... the plan’s requirements respecting eligibility for ¯. ¯ benefits;.., circumstances which may result in disqualification, ineligibility, or denial or loss of benefits. ¯.
92. Similarly, 29 C.F.R. § 2520.102-2 provides in pertinent part:
(a) Method of presentation. The summary plan description shall be written in a manner calculated to be understood by the average plan participant and shall be sufficiently comprehensive to apprise the plan’s participants and beneficiaries of their rights and obligations under the plan ... Consideration of these factors will usually require.., the use of clarifying examples and illustrations, the use of clear cross-references and a table of contents. (b) General format. The format of the summary plan description must not have the effect [of] misleading, misinforming or failing to inform participants and beneficiaries. Any description of exceptions, limitations, reductions, and other restrictions of plan benefits shall not be minimized, rendered obscure or otherwise made to appear unimportant. Such exceptions, limitations, reductions, or restrictions of plan benefits shall be described or summarized in a manner not less prominent than the style, captions, printing type, and prominence used to describe or summarize plan benefits. The advantages and disadvantages of the plan shall be presented without either exaggerating the benefits or minimizing the limitations¯ The description or summary of restrictive plan provisions need not be disclosed in. the summary plan description in close conjunction with the description or summary of benefits, provided that adjacent to the benefit description the page on which the restrictions are described is noted.
93. Upon information and belief, none of the SPDs issued by the Plan Administrator
with respect to the Plan or the Predecessor Plans summarize their cash balance formulas in
compliance with these requirements.
94. For example, the undated Summary Plan Description, which is attached to this
- 24 -

Complaint as Exhibit 3 (the "Undated SPD"), purports to summarize the 1997 Chase Plan and
provides in pertinent part with regard to al_A1 participants:
Plan Benefits Your plan benbfi~ is determined by the credits to your account from the ti’me y0~ ~o~giia participating to the time your participation ends. Your cash balance account grows through pay credits and interest credits.
Exhibit 3, at 6.
95. The Undated SPD purports to summarize at page 9, for all participants, "how you
earn benefits" under the plan. It summarizes the allocation of Pay Credits and Interest Credits
"effective January 1, 1997," but contains no reference or cross-reference to "Appendix I -
Heritage Chase Employees," on page 23 of the Undated SPD. Appendix I, however, attempts to
reveal (albeit rather obscurely and unintelligibly, especially to the average plan participant) that
the 1997 Opening Cash Balance Account operates as an offset negating the accrual of additional
benefits described at page 9 of the Undated SP.D.for all Heritage Chase employees.
96. Appendix I provides in pertinent part at page 23:
Minimum Benefits In general, when a pension plan such as the Retirement Plan changes as the result of a plan merger or modification, participants cannot receive less than any amounts they accrued or earned under that plan prior to the date of the merger or modification. This is called the "minimum benefit." When a participant requests a benefit payment under the Retirement Plan, the amount that would normally be payable is compared to the minimum benefit. If the minimum benefit is greater, a participant will receive the minimum benefit instead of the amount that would have normally been payable under the Retirement Plan.
Undated SPD, Exhibit 3, at 23.

97. Only an ERISA attorney, or similarly knowledgeable individual, would understand that the purpose and effect of the "Minimum Benefits" provision on page 23 of the Undated SPD was to act as an offset against the receipt of additional benefits, rather than as only a safeguard of previously accrued benefits.
98. The only "examples or illustration" of the rate of accrual contained in the Undated SPD pertains to employees whose participation in the Plan commenced on or after January t, 1997, i.e., those whose benefit formula does not contain an offset of the 1997 Opening Cash Balance Account. There are no examples or illustrations of the new cash balance formula as it pertains to Heritage Chase employees, i.e., those whose rate of accrual for some or all future years of service would be reduced to zero.
99. By describing the new cash balance formula at page 9 of the Undated SPD without a reference or cross-reference to Appendix I, the undated SPD’s format for Heritage Chase employees had the effect of "misleading, misinforming [and] failing to inform participants" as to the rate of accrual, and "minimized, rendered obscure, or otherwise made to appear unimportant" the "description of exceptions, limitations, reductions, and other restrictions of plan benefits."
100. In short, the Undated SPD did not explain, inter alia, (a) that the rate of accrual under the Plan diminished based on age for al__!l Plan participants as a matter of simple arithmetic; (b) that the new cash balance formula applied retroactively to all years of service with Chase; (c) that the 1997 Opening Cash Balance Account operated as an offset against accrual under the new cash balance formula for Heritage Chase employees; and (d) that the benefit accrued under the
- 26~

1997 cash balance formula was not applicable to Heritage Chase employees until and unless their benefit under the new cash balance formula became greater than the 1997 Opening Cash Balance Account.
101. On information and belief, omissions of the type detailed with respect to the Undated SPD were pervasive tba’oughout the Class Period with respect to all Summary Plan Descriptions issued for the Plan and the Predecessor Plans.
102. The failure of the Plan’s Summary Plan Descriptions, including the Summary Plan Descriptions of the Predecessor Plans, tO fully disclose Plan provisions that negatively impacted the benefits participants reasonably expected to receive violates ERISA Section 102(b), 29 U.S.C. § 1022(b), and 29 C.F.R. § 2520.102-2. These failures and omissions prejudiced all Plan participants and render the affected cash balance formulas unenforceable.
SIXTH CLAIM FOR RELIEF Failure to Provide Summaries of Material Modifications to Plan (For Violation of ERISA Section 102(a), 29 U,S.C. § 1022(a), and 29 C.F.R. 2520.104b-3)
103. Plaintiffs repeat and reallege each and every allegation above.
t04. ERISA Section 102(a), 29 U,S.C. § 1022(a), also provides: A summary of any material modification in the terms of the plan and any change in the informatibn required under subsection (b) of this section shall be written in a manner calculated to be understood by the average planparticipant and shall be furnished in accordance with section [104(b)(1), 29 U.S.C. §] 1024(b)(1) of this title.
105. 29 C.F.R. § 2520.104b-3 governs in greater detail the timing and content of the
- 27 -

summary of material modifications ("SMM")~

106. Upon information and belief, the Plan Administrator (and the plan administrators

of the pension plans of JPMC’s Predecessor Companies) did not provide to participants the

SMMs required by ERISA Section 102(a), 29 U.S.C. § 1022(a), and 29 C.F.R. § 2520.104b-3,

thereby violating those provisions.

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court enter judgment as follows:

No

Certifying this action as a class action;

Declaring:

I. that the cash balance formulas reduce the rate of accrual based on the attainment of any age, in violation ofERISA SeCfion204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i) (First Claim for Relief);

2. that the cash balance formulas, by using an Opening Cash Balance as an offset against accruals under the cash balance formulas violate ERISA Section 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B) (the 133 1/3 percent rule) (Second Claim for Relief), and ERISA Section 203(a)(2)(A), 29 U.S.C. § t053(a)(2)(A), and 26 U.S.C. § 411(a)(2)(A) (Third Claim for Relief);

3. that the advance notice of a significant reduction in the rate of future benefit accruals required by the adoption of the cash balance formulas did not comply with ERISA Section 204(h), 29 U.S.C. § 1054(h)~ as to timing, content and method of distribution, so that the cash balance formulas did not become effective (Fourth Claim for Relief);

-28 -

4. that the Summary Plan Descriptions summarizing the new cash balance formulas violated ERISA Section 102(b), 29 U.S.C. § 1022(b), and 29 C.F.R. § 2520.102-2 (Fifth Claim for Relief); and
5. that the Plan Administrators did not provide the summaries of material modifications of the cash balance formulas required by ERISA Section 102(a), 29 U.S.C. § 1022(a), and 29 C.F.R. § 2520.104b-3, thereby violating those provisions (Sixth Claim for Relief).
Enjoining Defendants from enforcing the Plan’s unlawful provisions; Ordering Defendants to reform the Plan and those of the Predecessor Companies to cure all ERISA violations; Ordering Defendants to recalculate the accrued benefits of all Class members based on the greater of the benefit formula sought to be amended in violation of ERISA Section 204(h), or the pre-amendment formula, after both or either are reformed to cure all ERISA violations; Ordering Defendants to pay all pensionei’s, ~heir beneficiaries and Estates the difference between the amount of pension paid to them heretofore, and the benefit that should have been paid based on the Plan as reformed to cure all heretofore-listed ERISA violations, with interest at the highest allowable rate compounded monthly; Awarding Plaintiffs t. their costs, disbursements and expenses herein; 2. reasonable attorneys’ fees; and
- 29-

H. Awarding the Class such other and further relief as the Court may deem just, proper and
equitable.
Dated: May 25, 2006
KIRBY McINERNEY & SQUIRE, LLP
By: Peter S. Linden (PL-8945) Alice McInemey (AM-5484) Henry Telias (HT-0853) Andrew T. Watt (AW- t 271) 830 ~Third Avenue New York, New York 10022 Telephone: (2 t 2) 37 t-6600 Fax: (212) 751-2540
SCHIFFRIN & BARROWAY, LLP Joseph H, Mettzer, Esq. Edward W. Ciolko, Esq. Joseph A. Weeden, Esq. 280 King of Prussia Road Radnor, Pennsylvania 19087 Telephone: (610) 667-7706 Fax: (610) 667-7056
KELLER ROHRBACK L.L.P. Lyam Lincoln Sarko (LS 3700) Derek W. Loeser (DL 6712)
~imy ,Wiltiams-Derry (AWD 5891) in M. Riley (ER 7673) 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Fax: (206) 623-3384
EDGAR PAUK (EP 1039) 144 East 44th Street, Suite 600 New York, New York 10017 (212) 983-4000
-30-

LAW OFFICES OF CURTIS V. TRINKO, LLP Curtis V. Trinko 16 West 46th Street Seventh Floor New York, NY 10036
Attorneys for Plaintiffs

 
 Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE JP MORGAN CHASE CASH

Via ECF

BALANCE LITIGATION

)
THISDOCUMENTRELATESTO:~
ALL ACTIONS

Master File No. 06-cv-0732 (DLC)
. -----========; . ,I i USDC S!J:-;Y
I l; DOCUMENT
i ELECTRG~;!CALLY FILED '
y )C #:

-----·

: · )icfE FILED }/t-/tij

(PR8POSE~RELIJ\1INARY ORDER RELATED"i1'J

... :.:.:~~~==-

DISMISSAL PROCEEDINGS

WHEREAS, on January 30, 2009, the parties to the above-entitled action (the "Action")

entered into a Stipulation of Voluntary Dismissal (the "Stipulation") which sets forth the

Plaintiffs' proposed voluntary dismissal with prejudice of the Certified Notice Claims of the

Class Representatives and the Certified Class subject to this Court's review under Rule 23 of the

Federal Rules of Civil Procedure; and the Court having read and considered the Stipulation; and

the parties to the Stipulation having consented to the entry of this Order; and all capitalized terms

used herein having the meanings defined in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED, this _M.__ day of ~·

2009 that:

/

1. On or before February 27, 2009, Plaintiffs shall file with the Court a motion to

approve the voluntary dismissal provided for in the Stipulation, including the Plaintiffs' proposal

for class notice that will include notice by first class U.S. Mail, interoffice mail, and/or electronic

mail.

2. Any response by the Defendants shall be filed on or before March 13, 2009.

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 2 of 9 3. If the Court finds that a hearing is necessary to consider preliminary approval of
the voluntary dismissal provided for in the Stipulation and Plaintiffs' proposal for class notice, and to set a final hearing on Plaintiffs' motion to approve the voluntary dismissal provided for in
the Stipulation, such a hearing shall be scheduled fort__.!f; 2009, at ;l~.!tp.m.
4. All current deadiines in the Action, in luding the trial sched:1led for March 2, 2009, and all filings related thereto, are hereby suspended and stayed until further notice.
5. The Court retains exclusive jurisdiction over the Action to consider all further matters arising out of or connected with the Stipulation. Dated:
2

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 3 of 9

UNITED STATES DISTRJCT COURT FOR THE SOUIT!ERN DISTRlCT OF NEW YORK

~·-----
IN RE JP MORGAN CHASE CASH
BALANCE LITIGATION

ViaECF Master File No. 06·cv·0732 (DLC)

THIS DOCUMENT RELATES TO:
ALL ACTIONS
STIPULATION FOR VOLUNTARY DISMISSAL OF CERTIFIED CI.AIMS

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 4 of 9
WHEREAS, the original complaint in this action was filed on January 31, 2006; WHEREAS, three other subsequently-filed complaints were consolidated with this action p1:rsuant to a Consolidation Order dated April 5, 2006; WHEREAS, Plaintiffs filed their Consolidated Class Action Complaint onMay 25, 2006 and a (Corrected) Co!!Solidated Class Action Complaint on June 23, 2006 (t.'>je "Complaint"); WHEREAS, by Order dated October 30, 2006, this Court denied in part and granted in part Defendants' Motion to Dismiss; WHEREAS, by Order dated May 30, 2007, this Court certified the following claims as a non opt-out class under Fed. K Civ. P. Rules 23(b)(l) and (b)(2): (a) Counts IV, V and VI of the Complaint, but only with respect to the class claims that stem from the JPMC Plan as of January 1, 2002, and excluding those individuals who have already received their lump sum benefit (the "Certified Notice Claims"); and (b) Count I of the Complaint beginning January 1, 1989 (the "Certified Age Claim"); WHEREAS, by Order dated May 30, 2007, this Court appointed plaintiffs John Berotti, Annette Falchetti, Terri Me!li, and Perry Shapiro as Class Representatives for the Certified Notice Cairns; WHEREAS, in accordan~ with its discretion under Fed. R. Civ. P. Rule 23(c)(2)(A), the Court, citing the potential number of plaintiffs in the class and the financial burden upon the representative plaintiffs, did not require notice of this litigation to the absent class members; WHEREAS, fo:Iowing the completion of fact discovery in this matter, conscious of the resources of the parties and of the Court, the parties agreed to a stay of this matter, including the Certified Notice Claims, pending a ruling by the Second Circuit in Hirt v. Equitable Ret. Plan, on an issue central to the Certified Age Claim;
- 2.

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 5 of 9
WHEREAS, in July 2008 the Second Circuit issued a ruling in Hirt v. Equitable Ret. Plan, 533 F.3d 102 (2d Cir. 2008), reh'g denied, Nos. 06-4757, 06-5190 (2d Cir. Sept 15, 2008), 2008 WL 267582& (2d Cir. July 9, 2008) holding that cash balance plans are not age discriminatory;
WHEREAS, on September 26, 2008, thls action was reassigned from the Honorable Harold Baer, Jr. to the Honorable Denise L. Cote;
WHEREAS, by Motion dated October 21,2008, PlaintiEs filed a Motion to Amend Class Cenification Order, pursuant to which Plaintiffs requested that the Court: (a) certify Plaintiffs' claims related to the conversion of the Chase Retirement Plan to the Chase Retirement Cash Balance Plan on or around January I, 1989 (the "1989 Chase Claims"); and (b) expand the Certified Notice Claims to include the claims of participants who have taken lump sum distributions from the Plan;
WHEREAS, on October 23, 2008, in light of the Second Circuit Hirt decision, Defendants filed an unopposed Motion for Partial Judgment on the Pleadings, requesting dismissal, with prejudice, of the Certified Age Claim;
WHEREAS, by Order dated December 4, 2008, the Court granted Defendants' Motion for Partial Judgment on the Pleadings and dismissed, with prejudice, the Certified Age Claim, for the reasons set forth in Hirt;
WHEREAS, on October 24, 2008, the Court held a pre-trial status conference in this action and, further, ordered the parties to pursue settlement discussions and mediation;
WHEREAS, between October 25 and December 16, 2008, the parties took depositions o: their respective experts and otherwise exchanged materials related to expert discovery pertaining to the merits of the Certified Notice Claims;
- 3-

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 6 of 9
WHEREAS, on December 17, 2008, the parties participated in~ mediation session before the Honorable Douglas F. Eaton and conducted good faith discussions concerning the potential resolution of the Certified Notice Claims and the Plaintiffs' pre-2002 claims;
WHEREAS, the December 17, 2008 mediation session was unsuccessful; WHEREAS, between December 18,2008 and January 21,2009, the parties continued to discuss, in good faith, the potential resolution of this action, and such discussions have been unsuccessful; WHEREAS, by Order dated January 6, 2008, the Court denied Plaintiffs' request to certify the 1989 Chase Claims, and amended the scope of the certified Class with respect to the Certified Notice Claims to inciude participants who have taken Jump sum distributions (as amended, the "Certified Class"); WHEREAS, the Certified Notice Claims are set for trial on March 2, 2009; WHEREAS, the Defendants maintain that there is no merit to the Certified Notice Claims; WHEREAS, in light of: (a) the Hirt decision; and (b) the results of fact and expert discovery concerning the Certified Notice Claims, the Plaintiffs believe that, although they may have a continued disagreement with the Defe:tdants over whether Defendants may have commiJted certain technical violations of applicable law under ERISA concerning the Certified Notice Claims (which technical violations the Defendants deny), the resources of all parties and the Court will best be served by the volunlary dismissal of the Certified Notice Claims and that the voluntary dismissal of those claims with prejudice is fair, reasonable and adequate to the Class Representative.~ as well as to the Certif1ed Class;
. 4.

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 7 of 9
WHEREAS, pursuant to Fed. R. Civ. P. 15(a)(2) and 4l(a)(l)(A)(ii), Plaintiffs may amend their complaint to voluntarily dismiss with prejudice the Certified Notice Claims by a
stipulation of dismissal as to the Certified Notice Claims of all parties who have appeared, subject to Fed. R Civ. P. 23(e);
WHEREAS, Fed. R. Civ. P. 23(e) requires the Court's approval of a voluntary dismissal
where such dismissal resolves the claims, issues or defenses of a certified class and, requires notice to class members who will be bound by the dismissal;
WHEREAS, the parties have stiplated that this voluntary dismissal is to be with prejudice to the Class Representatives and the members of the Certified Class with respect to the Certified Notice Claims;
WHEREAS, the Plaintiffs will submit a Proposed Order in the form attached hereto for the Court's consideration;
WHEREAS, on or before any deadline set by the Court in the Proposed Order, the Plaintiffs will file with the Court a motion to approve the voluntary dismissal provided for in this
Stipu1ation, ir.cluding Plaintiffs' proposal for class notice that will include notice by first class
U.S. Mail, interoffice mail, and/or electronic mail; WHEREAS, Defendants agree to pay the reasonable costs of class notice issued by first
class U.S. Mail, interoffice mail, and/or electronic mail; WHEREAS, if the Court deems that notice by publication (in addition to notice by first
class U.S. Mail, interoftlce mail, and/or electronic mail) is necessary, Plaintiffs have agreed to pay the reasonable costs of publishing a notice;
WHEREAS, neither the Class Representatives herein nor their counsel have received compensation or any other fonn of relief with respect to the Certified Notice Claims;
- 5-

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 8 of 9
NOW THEREFORE. the parties stipulate and agree as fo!lows: I. The Certified ~otice Claims of the Class Representatives and the Certified Class are voluntarily dismissed with prejudice, subject to the final approval of the Cot:rt.
2. Each party sb.all bear its own costs and fees with respect to the Certified Notice
Claims, except as agreed herein with respect to notice of this dismissal to the Certified Class. 3. Subject to the final approval of the Court, Plaintiffs' Complaint is amended to dismiss v.ith prejudice the Certified Notice Claims from Counts IV, V, and VI, but Cot:nts IV, V, and VI shall remain with respect to Plaintiffs' claims that relate to the period prior to January 1, 2002. 4. Nothing in this Stipulation shall affect the status of Plaintiffs' individual notice claims related to plan amendments effective prior to January 1, 2002, which
claims are currently pending before this Court.
5. Nothing in this Stipulation shall affect the status of the claims alleged in the
pendbg related action, Bilello v. JPMorgan Chase Retiremeru Plan, et al., No.
07-cv-7379 (DLC).
Dated: January 30, 2009

425 Lexington Avenue New York, New York, 10017 Tel: (212) 455-2000

1201 Third Avenue, Suite 3200 Seattle, WA 981 0 1
-6·

Case 1:06-cv-00732-DLC Document 146 Filed 02/02/09 Page 9 of 9

Fax: (212) 455-2502

JPMORGAN CHASE LEGAL
DEPARTMENT One Cltase Manhattan Plaza, 26th Floor
New York, New York 10081
Tel: (212) 552-5825
Counsel for The JPMorgan Chase Rerirement Plan, JPMorgan Chase Bank, NA., JPMorgan
Chase & Co.

825 Third Avenue
New York, New York 10022
Telephone: (212) 371-6600
Fax· ~~ 7<. 2540
-=+-:-:=~:-:-:-'l!c---wt~aJho.,~

0
Joseph A Weeden BARROWAY TOPAZ KESSLER MELTZER
CHECKLLP 280 King ofPrussia Road
Radnor, PA 19087
(610) 667-7706
Plaintiffs and the Class

Counsel for Plaintiffs

- 7-

 
 Case 1:06-cv-00732-DLC Document 221 Filed 10/19/09 Page 1 of 2

USDCSDNY
DOCUMENT ·BLBCTRONICALLY FILED
DOC#: _____________
DATE FILED: I 0--1 q ~· f q
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE JP MORGAN CHASE CASH BALANCE LITIGATION

Master File No. 06-cv-0732 (DLC)(DFE)

fPROPOSR~RDER

THIS DOCUMENT RELATES TO: ALL ACTIONS

WHEREAS on February 27, 2009, Plaintiff John J. Berotti, Annette Falchetti, Terri Melli and Perry Shapiro (collectively, "Plaintiffs") moved this Court for an order dismissing with prejudice the certified notice claims;
WHEREAS this Comi reviewed the parties' submissions, heard oral argument and considered the written objections or responses from class members;
WHEREAS on August 4, 2009, this Court conditionally granted Plaintiffs' motion for voluntary dismissal of the certified notice claims in this action, pending the distribution of notice to certain class members and the consideration of any objections submitted in response;
WHEREAS parties have issued the required notice to the class members; WHEREAS, on October 8, 2009, Plaintiffs submitted their fourth supplemental memorandum of law in support of their motion for voluntary dismissal of the certified claims; WHEREAS, Defendants request that a partial final judgment for voluntary dismissal be issued as to the certified notice claims pursuant to Fed. R. Civ. P. 54(b);

Case 1:06-cv-00732-DLC Document 221 Filed 10/19/09 Page 2 of 2
WHEREAS, Plaintiffs have no objection to Defendants' request, so long as
Defendants will not use such judgment to oppose Plaintiffs' remaining claims in this action or the claims in the related Bilello v. JPMorgan Chase Retirement Plan, et al., (07cv07379) action, and Defendants agreed that they would not; and
WHEREAS, the Court expressly determines that there is no just delay in the entry
of partial final judgment and therefore directs entry pursuant to the provisions of Rule S4(b) ofthe Federal Rules of Civil Procedure;
IT IS HEREBY ORDERED that Plaintiffs' Motion for Voluntary Dismissal of Certified Claims is granted, the certified notice claims are dismissed with prejudice, and the Clerk is expressly directed to enter partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
SO ORDERED: Dated: New York, New York
October li_, 2009
United

 
 Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE JP MORGAN CHASE CASH BALANCE LITIGATION

Via ECF Master File No. 06-cv-0732 (DLC)(THK)

THIS DOCUMENT RELATES TO:

)

ALL ACTIONS

FRANK BILELLO, individually and on behalf of all others similarly situated,
Plaintiff;

Via ECF Civ. No. 07-CV-7379 (DLC)(THK)

v.

JPMORGAN CHASE RETIREMENT PLAN, JPMORGAN CHASE DIRECTOR OF HUMAN RESOURCES as administrator of the JPMorgan Chase Retirement Plan,

--

Defendants.
----··--··-·-··

USDCSDNY DOCUMENT ELECTRONICALLY FILED
DDAOTCE#:F-IL-ED-:-=7=7/+s::-z-1~'-0-J

ORDER AND FINAL JL'DGMENT
These cases are brought under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (''ERISA"). Individual Cash Balance Plaintiffs1 filed a Consolidated Class Action Complaint In re JPMorgan Chase Cash Balance Litigation, Master File No. 06-cv-0732 (DLC) ("Cash Balance Action") on June 23, 2006. Plaintiff Frank J. Bilello filed a Second Amended Complaint in Bilello v. JP Morgan Chase Retirement Plan, et at., No.

Individual Cash Balance Plaintiffs are Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Nonnan Schomaker, and Perry Shapiro.

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 2 of 7

07-cv-7379 (DLC) ("Bilello Action") on August 19, 20092 The parties fully executed a Stipulation and Agreement of Settlement ("Settlement Agreement") for both Actions on January 29, 2010. !'laintiffs and Defendants have agreed that the Actions should be consolidated solely for purposes ofthe Settlement. Before the Court is Named Plaintiffs' Motion for Final Approval of Class Action Settlement, Settlement Class Certification, Case Contribution Awards to Named Plaintiffs and Reimbursement of Attorneys' Expenses ("Motion for Final Approval").3
On March 3, 2010, the Court entered its Order Granting Preliminary Approval of Class Action Settlement, CertifYing a Class tor Settlement Purposes, Approving Form and Manner of Class Notice Plan, and Setting a Date for a Hearing on Final Approval of Settlement ("Order for Notice and Hearing"). A hearing was held on June 25, 20 I0 (the "Final Approval Hearing") to: (i) determine whether to grant the Motion for Final Approval; (ii) determine whether to grant the request for case contributions awards to Named Plaintiffs and reimbursement of attorneys' expenses; and (iii) rule upon such other matters as the Court might deem appropriate. In connection with the Motion for Final Approval, the Court considered the written submissions of the parties and of class members, as well as oral argument presented at the Final Approval Hearing.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. The Court has jurisdiction over the subject matter of these Actions, all Class members, and all Defendants pursuant to 29 U.S.C. §I J32(e). 2. The Actions should be consolidated solely for purposes of the Settlement.

Individual Cash Balance Plaintiffs and Plaintiff Bilello are collectively referred to herein

as "Named Plaintiffs" or "Plaintiffs."

3

All capitalized terms used in this Order and Final Judgment and not defined herein shall

have the meanings assigned to them in the Settlement Agreement.

2

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 3 of 7
3. In accordance with Federal Rule of Civil Procedure 23 and the requirements of due process, the Class has been given proper and adequate notice of the Settlement and the Fairness Hearing. The Notice and Notice methodology implemented (a) were appropriate and reasonable and constituted due, adequate, and sufficient notice to all persons entitled to notice; and (b) met all applicable requirements of the Federal Rules of Civil Procedure and any other applicable law. Notice was sent by U.S. mail, e-mail or interoffice mail to approximately 100,000 class members. As detennined by the Court at the Final Approval Hearing, no other notice is required.
4. The Settlement was negotiated at arm's-length by experienced counsel who were fully informed of the facts and circumstances of the Actions and of the strengths and weaknesses of their respective positions. The Settlement was reached after the Parties had engaged in extensive filet and expert discovery. Plaintiffs' Counsel and Defendants' Counsel are therefore well positioned to evaluate the benefits of the Settlement, taking into account the expense, risk, and uncertainty of protracted litigation over numerous questions of fact and law.
5. The Court finds that the requirements of the United States Constitution, the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Southern District of New York, and any other applicable laws have been met as to the "Class" defined below, in that:
a. The Class is cohesive and well defined; b. The members of the Class are ascertainable from records kept with respect
to the Plan, and the members of the Class are so numerous that their joinder before the Court would be impracticable;
3

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 4 of 7
c. Based on allegations in both Actions, the Court preliminarily finds that there are one or more questions of fact and/or law common to the Class.
d. Based on allegations in both Actions that the Defendants' alleged conduct affected members of the Class in a uniform manner, the Court finds that the claims of the Named Plaintiff.q are typical of the claims of the Class;
e. The Named Plaintiffs will fairly and adequately proteet the interests of the Class in that: (i) the interests of Named Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Class; (ii) there appear to be no conflicts between or among Named Plaintiffs and the Class; and (iii) Named Plaintiffs and the members of the Class are represented by qualified, reputable counsel who are experienced m preparing and prosecuting large, complicated ERISA class actions;
f. The prosecution of separate actions by individual members of the class would create a risk of (i) inconsistent or varying adjudications as to individual Class members that would establish incompatible standards of conduct for the parties opposing the claims asserted in both Actions or (ii) adjudications as to individual Class members that would, as a practical matter, be dispositive of the interests of the other Class members not parties to the adjudications, or substantially impair or impede the ability of those persons to protect their interests; and.
g. The party opposing the Class has acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the Class as a whole.
4

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 5 of 7
6. Based on the findings set out in paragraph 4 above, the Court certifies the following class (the "Class") for settlement purposes under Fed. R. Civ. P. 23(b)(l) and (b)(2):
All individuals who have or at any time had a vested benefit in the JPMorgan Chase Retirement Plan and/or its predecessor plans and, at any time prior to January 1, 2002, were subject to a Cash Balance Formula in one or more of the following plans: (I) The Retirement And Family Benefits Plan of The Chase Manhattan Bank, N.A., (2) the Retirement Plan of The Chase Manhattan Bank And Certain Affiliated Companies, (3) the Cash Plan for Retirement of Chemical Bank and Certain Affiliates, and (4) the Retirement Plan of Chemical Bank And Certain Affiliated Companies. 7. The proposed Settlement warrants final approval pursuant to Federal Rule of Civil Procedure 23(e)( I}(A) and {C) because it is fair, adequate, and reasonable to the Class and others whom it affects based upon: (I) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through trial; (7) the ability of the Defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 8. The Settlement was intended by the parties thereto to be contemporaneous exchange of value, and in fact constitutes such a contemporaneous exchange. 9. The Motion for Final Approval is GRANTED, and the Settlement hereby is APPROVED as fair, reasonable, adequate to members of the Class, and in the public interest. The settling parties are directed to consummate the Settlement in accordance with the terms of the Settlement Agreement.
5

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 6 of 7
10. Plaintiffs' request for case contribution awards is DENIED. The Court, however, approves reimbursement of out-of-pocket expenses associated with serving as class representatives to the following plaintiffs in the amounts listed below:
a. Annette Falchetti: $475.00;
b. Terri Melli: $1,052.00; c. Norman Schomaker: $1 ,969.00; and d. Perry Shapiro: $1,461.54. Defendants shall reimburse the above-named plaintiffs the amounts listed in this paragraph, respectively, within ten (1 0) business days after the Effective Date of the Settlement Agreement. 11. Plaintiffs' Counsel's request for reimbursement of expenses is GRANTED. Plaintiffs' Counsel are hereby awarded $600,000 as reimbursement of costs and expenses, and Defendants shall submit such payment to Plaintiffs' Counsel within ten (10) business days after the Effective Date of the Settlement Agreement. 12. The Coun retains jurisdiction over these Actions and the Parties, the Plan, and members of the Class for all matters relating to these Actions, including (without limitation) the administration, interpretation, effectuation or enforcement of the Settlement Agreement and this Order and Final Judgment. 13. Named Plaintiffs and all members of the Class, on behalf of themselves, and the Class, and their personal representatives, heirs, executors, administrators, trustees, successors, and assigns, with respect to each and every Settled Claim, fully, finally and forever release, relinquish and discharge, and are forever enjoined from prosecuting, any Settled Claim against any ofthe Released Parties.
6

Case 1:06-cv-00732-DLC Document 241 Filed 07/15/10 Page 7 of 7 14. All counts asserted in the Cash Balance Action and Bilello Action are
DISMISSED WITH PREJUDICE, without further order of the Court, pursuant to the terms of the Settlement Agreement.
15. If the Settlement is terminated in accordance with the tenns of the Settlement Agreement, this Judgment shall be null and void and shall be vacated nunc pro tunc, and paragraph 8.3 of the Settlement Agreement shall govern the rights of the Parties thereto.
SO ORDERED THIS_!_!__,_""day of .....1....'..",.. , 2010
HONORAB DEKISE L. COTE UNITED S ATES DISTRICT JUDO
7

 
 Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRlCT OF NEW YORK

IN RE JP MORGAN CHASE CASH BALANCE LITIGATION

ViaECF Master File No. 06-cv-0732 (DLC)(THK)

THIS DOCUMENT RELATES TO: ALL ACTIONS

FRANK BILELLO, individually and on behalf )

of all others similarly situated,

)

)

Plaintiff; )

)

V.

)

)

JPMORGAN CHASE RETIREMENT PLAN, )

JPMORGAN CHASE DIRECTOR OF

)

HUMAN RESOURCES as administrator of the )

JPMorgan Chase Retirement Plan,

)

) Defendants.

Civ. No. 07-CV-7379 (DLC)(THK)
USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#=------~~--­
DATE FILED: 'BJt>/10

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, APPROVING FORM AND MANNER OF CLASS NOTICE, AND SETTING
DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 2 of 21
The above-captioned actions (the "Cash Balance Actions") involve claims for alleged violations of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001, et seq. ("ERISA"), with respect to the JPMorgan Chase Retirement Plan and its predecessor plans (collectively, the "Plan").
The terms of the Settlement Agreement are set out in the Stipulation and Agreement of Settlement fully executed as of January 29, 2010 (the "Settlement Agreement"), executed by counsel on behalf of the Individual Cash Balance Plaintiffs, Frank Bilello, on his own behalf and on behalf of all similarly situated persons (together with the Individual Cash Balance Plaintiffs, the "Plaintiffs") and all Defendants in the Cash Balance Actions.1
Pursuant to Plaintiffs' request for Preliminary Approval of the Settlement Agreement, submitted on January 29, 2010, the Court preliminarily considered the Settlement Agreement to determine, among other things, whether the Settlement Agreement is sufficient to warrant the issuance of notice to members of the proposed Class. Upon reviewing the Settlement Agreement it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. Consolidation of the Cash Balance Actions. Solely for the purposes of the Settlement Agreement, and pursuant to FED. R. CIV. P. 42(a), the Court hereby consolidates the Cash Balance Actions, In re JPMorgan Chase Cash Balance Litigation, Master File No. 06-cv-0732 (DLC), and Bilello v. JPMorgan Chase Retirement Plan, eta/., No. 07-cv-7379 (DLC), as the Court finds that the two actions involve common questions of law and fact. Further, consolidation of the Cash Balance Actions will avoid unnecessary cost and delay and facilitate the administration of the Settlement Agreement.
1
Capitalized terms not otherwise defined in this Order shall have the same meaning as ascribed to them in the Settlement Agreement.

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 3 of 21
2. Class Findings. Solely for the purposes of the Settlement Agreement, the Court preliminarily finds that the requirements of the Federal Rules of Civil Procedure, the United States Constitution, the Rules of the Court and any other applicable law have been met as to the Class defined below, in that:
(a) The Court preliminarily finds for purposes of settlement only that, as required by FED. R. C!V. P. 23(a)(l), the Class is ascertainable from records kept with respect to the Plan and from other objective criteria, and the members of the Class are so numerous that their joinder before the Court would be impracticable.
(b) The Court preliminarily finds for purposes of settlement only that, as required by FED. R. CIV. P. 23(a)(2), there are one or more questions of fact and/or law common to the Class.
(c) The Court preliminarily finds for purposes of settlement only that, as required by FED. R. Civ. P. 23(a)(3), the claims of the Plaintiffs are typical of the claims of the Class.
(d) The Court preliminarily finds, for purposes of settlement only, as required by FED. R. CIV. P. 23(a)(4), that the Plaintiffs will fairly and adequately protect the interests of the Class in that: (i) the interests of the Plaintiffs and the nature of their alleged claims are consistent with those of the members of the Class, (ii) there appear to be no conflicts between or among the Plaintiffs and the Class, and (iii) the Plaintiffs and the members of the Class are represented by qualified, reputable counsel who are experienced in preparing and prosecuting ERISA class actions.
(e) The Court preliminarily finds for purposes of settlement only that, as required by FED. R. CIV. P. 23(b)(l), the prosecution of separate actions by individual members
2

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 4 of 21
of the Class would create a risk of: (A) inconsistent or varying adjudications as to individual Class members that would establish incompatible standards of conduct for the Parties opposing the claims asserted in the Cash Balance Actions; or (B) adjudications as to individual Class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the adjudications, or substantially impair or impede the ability of such persons to protect their interests.
(f) The Court finds for purposes of settlement only that, as required by FED. R. Crv. P. 23(b)(2), Defendants have acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the Class as a whole.
(g) The Court preliminarily finds for purposes of settlement only that, as required by FED. R. Crv. P. 23(g), Counsel for Plaintiffs ("Class Counsel") are capable of fairly and adequately representing the interests of the Class, in that Class Counsel (i) have done appropriate work identifying or investigating potential claims in the action; (ii) are experienced in handling class actions; (iii) are knowledgeable of the applicable law; and (iv) have committed the necessary resources to represent the Class.
3. Class Certification. The Court, in conducting the settlement approval process required by FED. R. CIV. P. 23, preliminarily certifies solely for purposes of settlement the following non-opt-out class under FED. R. Civ. P. 23(b)(l) and 23(b)(2) (the "Class"):
All individuals who have or at any time had a vested benefit in the JPMorgan Chase Retirement Plan and/or its predecessor plans and, at any time prior to January 1, 2002, were subject to a Cash Balance Formula in one or more of the following plans: (1) The Retirement And Family Benefits Plan of The Chase Manhattan Bank, N.A., (2) the Retirement Plan of The Chase Manhattan Bank And Certain Affiliated Companies, (3) the Cash Plan for Retirement of Chemical Bank and Certain Affiliates, and (4) the Retirement Plan of Chemical Bank And Certain Affiliated Companies.
3

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 5 of 21

The Court appoints the Plaintiffs as representatives for the Class and Class Counsel as

counsel for the Class. Any preliminary certification of a Class pursuant to the terms of the

Settlement Agreement shall not constitute and does not constitute, and, except for the purposes of

the Settlement Agreement, shall not be construed or used as an admission, concession, or

declaration by or against Defendants that the Cash Balance Actions are appropriate for class

treatment under FED. R. CIV. P. 23, or any similar federal or state class action statute or rule.

4. Preliminary Findings Regarding the Proposed Settlement Agreement. The

Court preliminarily finds that (i) the proposed Settlement Agreement resulted from extensive

arm's-length negotiations, including mediation discussions before U.S. Magistrate Judge Katz,

(ii) the Settlement Agreement was executed only after Class Counse(had conducted appropriate

investigation and discovery regarding the strengths and weaknesses of Plaintiffs' claims, (iii)

Plaintiffs and Class Counsel have concluded that the proposed Settlement Agreement is fair,

reasonable and adequate, and (iv) the proposed Settlement Agreement is sufficiently fair,

reasonable, and adequate to warrant sending notice of the proposed Settlement Agreement to the

Class. Having considered the terms of the Settlement Agreement under the recommended

standards for preliminary approval of settlements as set forth in relevant jurisprudence, the Court

finds that those whose claims would be settled, compromised, dismissed, and/or released

pursuant to the Settlement Agreement should be given notice and an opportunity to be heard

regarding final approval of the Settlement Agreement and other matters.

5.

Fairness Hearing. A hearing is scheduled for Jvl\£ 25.~ l o I 0 at 5: 00

~.m. (the "Fairness Hearing") to determine, among other things:

•

Whether the Settlement Agreement merits final approval as fair, reasonable and

adequate;

4

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 6 of 21

•

Whether the Cash Balance Actions should be dismissed with prejudice pursuant

to the terms of the Settlement Agreement;

•

Whether the notice proposed by the Parties: (i) constitutes the best practicable

notice, (ii) constitutes notice reasonably calculated, under the circumstances, to

apprise members of the Class of the pendency of the litigation, their right to

object to the Settlement Agreement, and their right to appear at the Fairness

Hearing, (iii) is reasonable and constitutes due, adequate, and sufficient notice to

all persons entitled to notice and (iv) meets all applicable requirements of the

Federal Rules of Civil Procedure and any other applicable law;

•

Whether Class Counsel adequately represented the Class for purposes of entering

into and implementing the Settlement Agreement; and

•

Whether any application(s) for attorneys' expenses and case contribution awards

to Plaintiffs is fair and reasonable and should be approved.

6. Class Notice. The Parties have presented to the Court a proposed form of Class

Notice, appended hereto as Attachment 1, as well as the envelope in which the Class Notice will

be mailed pursuant to subsection (i) of this paragraph, appended hereto as Attachment 2. The

Court finds that such form fairly and adequately: (a) describes the terms and effect of the

Settlement Agreement, (b) notifies the Class that Class Counsel will seek reimbursement of

reasonable expenses not to exceed $600,000 to be paid by Defendants ("Counsel for Plaintiffs'

Expense Application"), and for case contribution awards of $7,500 for each of the Individual

Cash Balance Plaintiffs and $5,000 for Plaintiff Bilello ("Contribution Awards") for their time,

efforts, and expense in serving as plaintiffs in the Cash Balance Actions, (c) gives notice to the

Class of the time and place of the Fairness Hearing, and (d) describes how the recipients of the

5

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 7 of 21

Class Notice may object to any of the relief requested. The Parties have proposed the following

manner of communicating the notice to members of the Class, and the Court finds that such

proposed manner is the best notice practicable under the circumstances. Accordingly, the Court

directs the following:

(i)

A.pl': / By no later than

3o, 2010, Defendants shall cause the Class

Notice, in the form attached as Attachment 1, to be provided by first-class mail,

postage prepaid, in an envelope in the form attached as Attachment 2, or by electronic

mail, to the last known address of each member of the Class who can be identified by

reasonable effort.

(ii)

/Jr,;l 3t> , By no later than

2010, Defendants shall cause the Class

Notice to be published on the internet-based PR Newswire.

(iii)

In addition, Class Counsel shall cause the Class Notice to be published on

the website identified in the Class Notice, dedicated to the Settlement,

www.JPMCCashBalanceLitigation.com, which will also host and make available

copies of all Settlement-related documents, including the Settlement Agreement.

7. Objections to Settlement. Any member of the Class who wishes to object to the

fairness, reasonableness or adequacy of the Settlement Agreement, to any term of the Settlement

Agreement, to the Counsel for Plaintiffs' Expense Application, or to the Contribution Awards

may file an objection. An objector must file with the Court Clerk a statement of his, her, or its

objection(s) no later than 30 days before the scheduled date of the Fairness Hearing (the "filing

deadline"), specifying the following:

• The objector's full name and address and the approximate dates during which the

objector participated in the JPMorgan Chase Retirement Plan or its predecessor(s)

6

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 8 of 21
and the plan involved and (although there is no requirement to retain counsel) an appearance on behalf of any counsel representing the objector; • A written statement of all grounds for the objection including any evidence supporting the objection; • Any supporting memorandum or brief; • A list of any persons who will be called to testify in support of the objection; and • A statement whether the objector intends to appear at the Fairness Hearing, and, if such appearance will be through counsel, the identity of such counsel.
The objection should be mailed or hand-delivered to the Court so that it is filed with the Court by the filing deadline, at the following address:
Daniel Patrick Moynihan United States District Courthouse Southern District of New York 500 Pearl Street, Room 1040 New York, New York 10007 Additionally, the objection must be served upon the following counsel of record by U.S. Mail, postage prepaid and postmarked by the filing deadline: To Class Counsel:
KELLER ROHRBACK L.L.P. Amy Williams-Derry, Esq. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Tel: (206) 428-0582 Fax: (206) 623-3384 The objector or his, her, or its counsel (if any) must effect service of copies of the objection on counsel listed above and file it with the Court by no later than the filing deadline. If an objector hires an attorney to represent him, her, or it for the purposes of making such
7

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 9 of 21
objection pursuant to this paragraph, the attorney must both effect service of a notice of appearance on counsel listed above and file it with the Court by no later than the filing deadline. Any member of the Class or other person who does not timely file and serve a written objection complying with the terms of this paragraph shall be deemed to have waived, and shall be foreclosed from raising, any objection to the Settlement Agreement, to Counsel for Plaintiffs' Expense Application, or to any Contribution Award, either before the Court or on appeal, and any untimely objection shall be barred absent an Order from the Court. Any member of the Class who does not timely file and serve a written objection complying with the terms of this paragraph shall also waive his or her right to appear and be heard at the Fairness Hearing.
8. Notice Expenses. The expenses of printing and mailing and publishing all notices required by subsections (i) and (ii) of paragraph 6 herein shall be paid by Defendants. The expenses of publishing on the website identified in the Class Notice required by subsections (iii) of paragraph 6 herein shall be paid by Class Counsel.
9. Service of Papers. After the objection filing deadline, Defendants' counsel and Class Counsel shall promptly furnish each other with copies of any and all objections that come into their possession.
10. Termination of Settlement. This Order shall become null and void, ab initio, and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions as of October 27, 2009, if the Settlement Agreement is terminated in accordance with the terms therein.
11. Use of Order. This Order is not admissible as evidence for any purpose against Defendants in any pending or future litigation involving any of the Parties. This Order shall not be construed or used as an admission, concession, or declaration by or against Defendants of any
8

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 10 of 21
fault, wrongdoing, breach, or liability and Defendants specifically deny any such fault, breach, liability or wrongdoing. This Order shall not be construed or used as an admission, concession, or declaration by or against Plaintiffs or the Class that their claims lack merit or that the relief requested in the Cash Balance Actions is inappropriate, improper or unavailable. This Order shall not be construed or used as an admission, concession, declaration or waiver by any Party of any arguments, defenses, or claims he, she, or it may have, including, but not limited to, any objections by Defendants to class certification, in the event that the Settlement Agreement is terminated. Moreover, the Settlement Agreement and any proceedings taken pursuant to the Settlement Agreement are for settlement purposes only. Neither the fact of, nor any provision contained in the Settlement Agreement or its exhibits, nor any actions taken thereunder shall be construed as, offered into evidence as, received in evidence as, and/or deemed to be evidence of a presumption, concession, or admission of any kind as to the truth of any fact alleged or validity of any defense that has been, could have been, or in the future might be asserted.
12. Jurisdiction. The Court hereby retains jurisdiction for purposes of implementing the Settlement Agreement, and reserves the power to enter additional orders to effectuate the fair and orderly administration and consummation of the Settlement Agreement as may from time to time be appropriate, and to resolve any and all disputes arising thereunder.
13. Continuance of Hearing. The Court reserves the right to continue the Fairness Hearing without further written notice.
SO ORDERED this 1.( day of __......::1~«A~L..!::C.-.___, 2010.
9

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 11 of 21
Exhibit A-I

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 12 of 21

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

IN RE JP MORGAN CHASE CASH BALANCE LITIGATION

) Via ECF Master File No. 06-cv-0732 (DLC)(THK)

THIS DOCUMENT RELATES TO: ALL ACTIONS

FRANK BILELLO, individually and on behalf )

of all others similarly situated,

)

)

Plaintiff; )

)

v.

)

)

JPMORGAN CHASE RETIREMENT PLAN, )

JPMORGAN CHASE DIRECTOR OF

)

HUMAN RESOURCES as administrator of the )

JPMorgan Chase Retirement Plan,

)

)

Defendants.

Via ECF Civ. No. 07-CV-7379 (DLC)(THK)

NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: ALL PERSONS WHO HAVE OR AT ANY TIME HAD A VESTED BENEFIT IN THE JPMORGAN CHASE RETIREMENT PLAN AND/OR ITS PREDECESSOR RETIREMENT PLANS AND, AT ANY TIME PRIOR TO JANUARY 1, 2002, WERE SUBJECT TO A CASH BALANCE FORMULA IN ONE OR MORE OF THE FOLLOWING RETIREMENT PLANS: (1) THE RETIREMENT AND FAMILY BENEFITS PLAN OF THE CHASE MANHATTAN BANK, N.A., (2) THE RETIREMENT PLAN OF THE CHASE MANHATTAN BANK AND CERTAIN AFFILIATED COMPANIES, (3) THE CASH PLAN FOR RETIREMENT OF CHEMICAL BANK AND CERTAIN AFFILIATES, AND (4) THE RETIREMENT PLAN OF CHEMICAL BANK AND CERTAIN AFFILIATED COMPANIES
Please be advised that your legal rights may be affected by a proposed settlement (the "Settlement") of two actions (the "Actions") against the JPMorgan Chase Retirement Plan and JPMorgan Chase & Co.'s Director Of Human Resources (together, "Defendants") pending in the United States District Court for the Southern District of New York before the Honorable Denise
1

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 13 of 21
Cote, captioned In re JP Morgan Chase Cash Balance Litigation (the "Cash Balance Action") and Bilello v. JPMorgan Chase Retirement Plan (the "Bilello Action"). This Notice explains important rights and a deadline for you to act to protect those legal rights. The deadline is described below in paragraph 9. Your legal rights will be affected whether or not you act. Please read this Notice carefully!
This Notice will not affect any vested accrued benefit in the JPMorgan Chase Retirement Plan or its predecessor retirement plans identified in this Notice.
The proposed SettlemeQ-t was entered into by plaintiffs Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman Schomaker, and Perry Shapiro (the "Cash Balance Plaintiffs") on their own behalf and on behalf of all similarly situated persons in the Cash Balance Action, plaintiff Frank J. Bilello (with the Cash Balance Plaintiffs, "Plaintiffs") on his own behalf and on behalf of all similarly situated persons in the Bilello Action, and by Defendants in the Actions. Plaintiffs have determined that the proposed Settlement serves the interests ofjustice and is fair, reasonable and adequate to members of the Class (as defined in paragraph 5 below). The proposed Settlement will result in a dismissal of the Actions with prejudice; which means that the claims in the Actions cannot later be asserted by you or any other member of the Class against Defendants.
1. DESCRIPTION OF THE ACTIONS: The Actions challenge the JPMorgan Chase Retirement Plan and its predecessor plans (collectively, the "Plan"), including The Retirement And Family Benefits Plan OfThe Chase Manhattan Bank, N.A. (the "1989 Chase Plan"), (2) The Retirement Plan Of The Chase Manhattan Bank And Certain Affiliated Companies (the "1997 Chase Plan"), (3) The Cash Plan For Retirement Of Chemical Bank And Certain Affiliates (the "1989 Chemical Plan"), and (4) The Retirement Plan Of Chemical Bank And Certain Affiliated Companies (the "1993 Chemical Plan"). On October 27, 2009, the Court stayed the Actions after the parties reached an agreement in principle to settle the Actions. The Actions are further described below.
2. THE CASH BALANCE ACTION: The complaint in the Cash Balance Action, filed on June 23, 2006, asserts that the Plan discriminates on the basis of age in violation of ERISA (the "Age Claim") and that Defendants' notices, summary plan descriptions ("SPDs") and/or summaries of material modification failed to disclose that the 1989 Chase Plan and subsequent Plan amendments caused a significant reduction in participants' rate of future benefit accrual (the "Notice Claims"). In May 2007, the Court certified the Age Claim for class treatment with respect to the Plan in effect between January 1, 1989 and January 31, 2006 and the Notice Claims for class treatment with respect to Plan amendments effective on or after January 1, 2002 (the "Certified Notice Claims"). On December 4, 2008, the Court dismissed the Age Claim with prejudice.
In January 2009, following the completion of fact and expert discovery, the Cash Balance Plaintiffs decided to voluntarily dismiss the Certified Notice Claims with prejudice, after concluding that even if they succeeded at trial on the Certified Notice Claims there would be no meaningful remedy to class members. Notice of the voluntary dismissal was provided to class members, and the Court held a hearing in July 2009 to consider class members' objections. On October 19, 2009, the Court dismissed the Certified Notice Claims with prejudice.
2

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 14 of 21
In July 2009, the Cash Balance Plaintiffs filed a motion for leave to file a proposed amended class action complaint (the "Proposed Complaint"). The :a,roposed Complaint asserts notice and fiduciary breach claims relating to ( 1) the 1989 Chase Plan and (2) the 1997 Chase Plan, to the extent it affected former employees of Manufacturers Hanover Trust Company. In the motion, the Cash Balance Plaintiffs reserved the right to seek class certification and/or Plan-wide relief with respect to the claims asserted in the Proposed Complaint. The motion was fully submitted to the Court on September 25, 2009. On October 26, 2009, the parties informed the Court that they had reached an agreement in principle to settle the Actions and requested a stay of the Actions. On October 27,2009, the Court stayed the Actions. As a result of the stay, the Court has not issued a decision with respect to the motion. The remaining claims in the Cash Balance Action are the Notice Claims to the extent they relate to Plan amendments effective between January 1, 1989 and December 31, 2001, together with the claims asserted in the Proposed Complaint (the "Remaining Cash Balance Claims").
3. THE BILELLO ACTION. The current (Second Amended) complaint in the Bilello Action, filed on August 19, 2009, alleges that the Plan violated ERISA in that ( 1) the Plan is "backloaded" because it does not provide for a minimum interest credit rate (the "Minimum Interest Rate Claim"), (2) the Plan is "backloaded" as a result of an alleged period of"wearaway" resulting from the implementation of the 1989 Chemical Plan (the "Wearaway Claim"), (3) Defendants did not provide sufficient notice that the 1989 Chemical Plan and subsequent Plan amendments caused a significant reduction in participants' rate of future benefit accrual (the "Bilello Notice Claim"), (4) Defendants did not provide adequate summary plan descriptions ("SPDs") and/or summaries of material modification relating to the 1989 Chemical Plan and subsequent Plan amendments (the "SPD Claim"), and (5) Defendants breached their fiduciary duties in connection with the conduct at issue in the Bilello Notice Claim and the SPD claim (the "Fiduciary Breach Claim"). The complaint also asserts two individual claims based on the Plan's alleged failure to provide requested Plan documents (the "Individual Claims").
The Court has dismissed the Wearaway Claim and the Bilello Notice Claim in their entirety and the other claims in part. The remaining class claims in the Bilello Action (the "Remaining Bilello Claims") are (1) the Minimum Interest Rate Claim to the extent it concerns Plan participants who were grandfathered under the 1997 Chase Plan's cash balance formula after December 31, 2001, (2) the SPD Claim to the extent it alleges that SPDs relating to the 1989 Chemical Plan and the 1993 Chemical Plan failed to disclose reductions in rates of future benefit accrual and/or an alleged period ofwearaway, (3) the Fiduciary Breach Claim to the extent it alleges that Defendants misrepresented and/or failed to disclose that the 1989 Chemical Plan caused a significant reduction in participants' rate of future benefit accrual and a period of alleged wearaway. The Court dismissed the Individual Claims except to the extent they allege that Defendants failed to provide formal Plan documents from the period before 2002 that were used to operate the Plan in 2007.
4. CONSOLIDATION OF THE ACTIONS. Plaintiffs and Defendants have agreed that the Actions should be consolidated solely for purposes of the Settlement.
5. THE CLASS. Plaintiffs and Defendants have agreed to stipulate to class certification in the Actions solely for the purpose of the Settlement. The Class consists of individuals who have or at any time had a vested benefit in the JPMorgan Chase Retirement Plan and/or its predecessor plans
3

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 15 of 21
and, prior to January 1, 2002, were subject to a cash balance formula in one or more of the following plans: the 1989 Chase Plan, 1997 Chase Plan, 1989 Chemical Plan, and the 1993 Chemical Plan. Plaintiffs and Defendants further agree that solely for purposes of this settlement Plaintiffs should be named as Class Representatives for the Class and that Counsel for Plaintiffs should be named as counsel for the Class.
6. THE SETTLEMENT. The terms of the proposed Settlement are set forth in the Stipulation and Agreement of Settlement (the "Stipulation") that is on file with the Court, and are summarized below.
Benefits To The Class. Under the Settlement, Defendants will make available to the Class a financial planning assistance program (the "Program") for a period of twelve months, beginning within 12 weeks after the effective date of the Settlement. Class members will have access to the Program via telephone, and will be allowed a maximum of four consultations per person. Each consultation will be with a trained financial counselor at a vendor selected by Defendants to manage the Program Topics that may be discussed include a variety of financial, investment, and budgeting topics, and class members can discuss any ofthose topics with a counselor. Samples of available topics include retirement and/or investment planning, cash flow/budgeting analysis, debt management, insurance needs, education funding, tax and estate planning, and understanding Medicare and Social Security. Written materials will be available via a website on many of these topics, and personalized reports/action plans will be available for applicable topics following a counseling session (such as retirement gap analysis, cash flow/debt analysis, or insurance needs).
Attorneys' Expenses. Lead Plaintiffs' Counsel will not seek attorneys' fees for legal services rendered in the Actions. However, Lead Plaintiffs' Counsel will make an application to the Court on behalf of all Plaintiffs' Counsel for a reasonable award of expenses in connection with the Actions in an amount not to exceed $600,000 (the "Expense Application"). Defendants have agreed not to oppose Plaintiffs' Expense Application request.
Contribution Awards. Concurrent with their Expense Application, Counsel for Plaintiffs intends to petition the Court for reasonable contribution awards ("Contribution Awards") for (1) each of the Cash Balance Plaintiffs in an amount not to exceed $7,500, to compensate them for their time, efforts, and expense in serving as a Plaintiff in the Cash Balance Actions, and (2) Plaintiff Bilello in an amount not to exceed $5,000 to compensate him for his time, efforts, and expense in serving as a Plaintiff in the Bilello Action. Defendants will not oppose and have agreed to pay these Contribution Awards, provided that they are approved by the Court. Such Contribution Awards shall be paid separately and in addition to the amount sought pursuant to the Expense Application. Separately, Defendants have agreed to pay Mr. Bilello $10,000 in complete settlement of the Individual Claims, which were only asserted on behalf of Plaintiff Bilello.
7. REASONS FOR THE SETTLEMENT: Plaintiffs, by their counsel, have conducted investigations relating to the claims and the underlying events and transactions alleged in the Actions. Plaintiffs and their counsel have analyzed evidence adduced in connection with the Actions, including during discovery, and have researched the applicable law with respect to the claims of the Plaintiffs and the Class against the Defendants and the potential defenses thereto.
4

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 16 of 21
Based on the Court's rulings and developments in the case law, the remaining claims in the Cash Balance Action and the remaining class claims in the Bilello Action faced significant risk both on the merits and procedurally. As a result, there was significant risk whether, if litigation continued, there would be any substantive remedy available to Plaintiffs. For example, the remedy for a procedural violation, such as failing to provide an SPD that complied with ERISA, was likely to have been procedural in nature, requiring the provision of a compliant SPD. Such a remedy would not have provided additional benefits to Plaintiffs. Similarly, the extent of any remedy available to Plaintiffs based on the alleged breach of fiduciary duty claims, even if successful, was uncertain under the developing case law.
In light of the Court's rulings on class certification, there was also a significant risk whether, if litigation continued, there would be any substantive remedy available to other, similarly-situated Plan participants in the Cash Balance Action, or whether the Court would certify a class in the Bilello Action.
As part of this evaluation, Plaintiffs and their counsel considered (a) the benefits that the members of the Class will receive from settlement of the Actions, (b) the attendant risks of litigation, and (c) the desirability of permitting the Settlement Agreement to be consummated as provided by the terms ofthis Stipulation. Plaintiffs and Counsel for Plaintiffs believe the Settlement provides certainty of prompt benefits to the Class, while continued litigation encompasses several potential negative factors, such as: (a) significant risk of the Actions being dismissed in whole or in part, (b) delayed benefits, if any, for pensioners, (c) an award of relief that might only be procedural in nature, but which might not increase benefits, (d) the uncertainty of being able to secure relief for anyone other than the Named Plaintiffs, and (e) the uncertainty of the remedy for Plaintiffs' breach of fiduciary duty allegations based on the alleged failure to disclose full and accurate Plan information.
Accordingly, based on the availability of a settlement that offers substantial value to Plaintiffs and the Class by providing concrete financial planning services, information, and resources, Plaintiffs and their counsel believe that the Settlement is fair, reasonable and adequate to Plaintiffs and the Class, and in their best interests.
Defendants deny any wrongdoing whatsoever. Defendants' agreement to the Settlement shall in no event be construed or deemed to be evidence of or an admission or concession, on the part of any Defendant with respect to any claim of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that the Defendants have asserted or would assert. Defendants each deny that they have committed or aided and abetted in the commission of any violation of law or engaged in any of the wrongful acts alleged in the Actions. Defendants expressly maintain that they diligently and scrupulously complied with their fiduciary and legal duties; and that Defendants are entering into the Settlement solely to avoid the risk of and minimize the expense of further litigation.
8. EFFECT OF THE SETTLEMENT. As a result of the Settlement, the Plaintiffs, on behalf of themselves and the Class, will release all Released Claims against the Released Parties (as defined below).
5

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 17 of 21
"Released Claims" means any and all claims, debts, demands, rights or causes of action, suits, matters, and issues or liabilities whatsoever (including, but not limited to, any claims for benefits, damages, interest, attorneys' fees, expert or consulting fees, and any other costs, expenses or liability whatsoever), whether based on ERISA, federal, state, local, statutory or common law or any other law, rule or regulation, whether based on the Plan or the Plan as sought to be reformed to cure any alleged violation of law (including claims for benefits under the Plan as sought to be reformed to cure any alleged violation oflaw, or claims for benefits under the Plan alleged to be in effect as a result of any alleged violation of law), whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, at law or in equity, matured or unmatured, whether asserted by a Class member that has not received a benefit from the Plan or by a Class member that has received a benefit from the Plan and seeks additional benefits, whether class or individual in nature, including both known claims and Unknown Claims (as defined below), against any of the Released Parties (as defined below) (i) that have been asserted or were attempted to be asserted on a class-wide basis in the Actions, including the Remaining Cash Balance Claims and the Remaining Bilello Claims, or (ii) that could have been asserted in any forum by any Class member or their successors and assigns which arise out of or are based upon the allegations, transactions, facts, matters or occurrences, representations or omissions out of which the claims asserted in the Actions arise. Notwithstanding the foregoing, "Released Claims" do not include any claims, rights or causes of action or liabilities whatsoever related to the enforcement of the Settlement, including, without limitation, any of the terms of the Stipulation or orders or judgments issued by the courts in connection with the Settlement or confidentiality obligations. In addition, "Released Claims" do not include any claims that are not described above as being within the scope of the "Released Claims," such as claims for benefits or miscalculation claims that are not based upon the claims asserted in the Actions.
"Unknown Claims" means any and all Released Claims which any of the Plaintiffs or Class members does not know or suspect to exist in his, her or its favor as ofthe effective date of the Settlement (as defined in paragraph 8.1 of the Stipulation). Unknown Claims include any rights pursuant to Section 1542 ofthe California Civil Code or any similar law or legal principle. Section 1542 of the California Civil Code provides that: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
"Released Parties" means any and all of the Defendants, every person who, at any time between January 1, 1989 and January 29, 2010, was a director, officer, employee, agent, attorney, advisor, general partner, limited partner, administrator, fiduciary, successor or assign, whether under state or federal law, and whether directly derivatively, representatively or arising in any other capacity, ofDefendants or of JPMorgan Chase & Co. or a fiduciary ofthe Plan, together with, for each ofthe foregoing, any predecessors, successors-in-interest, present and former representatives, direct or indirect parents and subsidiaries, affiliates (including any director or officer of such affiliate, parent, or subsidiary), insurers, co-insurers, re-insurers, consultants, employee benefit plans, investment advisors, investment bankers, underwriters, and any person that controls, is controlled by, or is under common control with any of the foregoing.
6

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 18 of 21

9. OBJECTING To THE SETTLEMENT: If you desire, you can tell the Court that you do not agree with the Class Representatives' decision to agree to the Settlement (including any aspect of the Settlement described in paragraph 6 above).

A hearing (the "Fairness Hearing") will be held on _ _ [30 days from deadline for objecting],
2010' at _, before the Honorable Denise Cote at the United States Courthouse, in Courtroom 11 B
at 500 Pearl Street, New York, NY 10007-1312, to determine whether the Settlement should be approved.

You may object to the Settlement by mailing or hand delivering a statement referencing the case

names and docket numbers of the Actions (In re J.P. Morgan Chase Cash Balance Litigation;

Master File No. 06-cv-0732; Bilello v. JPMorgan Chase Retirement Plan, No. 07-cv-7379),

explaining the basis for your objection, and stating whether you intend to appear at the Fairness

Hearing, set for

, 2010. Your objection must be filed with the District Court at the

following address:

Daniel Patrick Moynihan United States District Courthouse Southern District ofNew York 500 Pearl Street, Room 1040 New York, New York 10007

In addition, you must send a copy of your objection to the counsel listed below, who will distribute a copy of your objection to all counsel appearing in the Actions.

KELLER ROHRBACK, L.L.P. Amy Williams-Derry, Esq. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 428-0582 Facsimile: (206) 623-3384

Your objection must be filed with the Court and postmarked or faxed to the counsel listed

above no later than

[30 days from deadline set for distributing notice], 2010.

Your objection must include (1) the objector's full name, address and the approximate dates during which the objector participated in the JPMorgan Chase Retirement Plan or its predecessor(s) and the plan involved and (although you are not required to retain counsel) an appearance on behalf of any counsel that is representing you in connection with your objection, (2) a detailed statement of your specific objection(s), the grounds for the objection(s) or the reasons why you wish to be heard at the hearing, and all documents that you wish the Court to consider, (3) any supporting memorandum or brief, (4) a list of any persons who will be called to testify in support of your objection, and (5) a statement indicating whether you intend to appear at the Fairness Hearing and, if such appearance will be through counsel, the identity of such counseL

Ifyou fail to object to the Settlement in the time and manner specified, you will not be heard at the 7

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 19 of 21
Fairness Hearing, and you will not thereafter be able to contest the Settlement, or appeal a judgment entered by the Court with respect to the Settlement. If you do not object to the Settlement, or ifyour objection(s) are overruled by the Court, you will be bound by the Settlement. If you do not object, you will be deemed to have waived any right to appeal the Court's decision regarding the Settlement.
If the Court approves the Settlement, you will be bound by it whether you have objected or not.
Thus, even if you do object to the dismissal of the Settlement, you will still be bound by the Settlement if the Court overrules your objection(s) or otherwise approves the Settlement. You will not be able to assert the Released Claims, including the Remaining Cash Balance Claims or the Remaining Bilello Claims if the Court approves the Settlement. 10. FOR MORE INFORMATION: Further information about the Actions can be found at www.JPMCCashBalanceLitigation.com. Among other resources and information, this website includes: a copy of this Notice; links to the parties' filings related to the Settlement, all pleadings and substantive orders in the Actions. If you have questions about this notice, you may also contact counsel for Plaintiffs:
KELLER ROHRBACK, L.L.P. Amy Williams-Derry, Esq. 1201 Third Avenue, Suite 3200 Seattle, WA 981 0 1 Telephone: (206) 428-0582 Facsimile: (206) 623-33 84 awilliams-derry@kellerrohrback.com www.JPMCCashBalanceLitigation.com Please do not telephone or write to the Court (other than to file any objection).
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Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 20 of 21
Exhibit A-2

Case 1:06-cv-00732-DLC Document 228 Filed 03/03/10 Page 21 of 21

@
3950 Business Park Dr Columbus, OH 43204
LEGAL NOTICE FOR PARTICIPANTS IN THE JPMORGAN CHASE RETIREMENT PLAN AND ITS PREDECESSOR PlANS
®

~Presorted
Flrsl C.lass Mail US Postage PAID
CC>IumbusOH Penn•t # 2443
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I 112811 0 4:59:11 PM

 
 460 F.Supp.2d 479 (2006)
In re J.P. MORGAN CHASE CASH BALANCE LITIGATION. This Document Relates To: All Actions.
No. 06 Civ. 732(HB).
United States District Court, S.D. New York.
October 30, 2006.
480 *480 Andrew Thomas Watt, Joseph A. Weeden, Peter S. Linden, Kirby Mcinerney & Squire, L.L.P., Edgar Pauk, New York, NY, Amy C. Williams-Derry, Derek W. Loeser, Erin M. Riley, Lynn Lincoln Sarko, Keller Rohrback L.L.P, Seattle, WA, for Plaintiffs.
Jonathan K. Youngwood, Thomas C. Rice, Simpson Thacher & Barlett, LLP, Meryl R. Kaynard, JPMorgan Chase Legal Department, New York, New York, for Defendants.
OPINION & ORDER
BAER, District Judge:
Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, and Perry Shapiro (collectively, "Plaintiffs") allege that the JPMorgan Chase Retirement Plan ("Plan") implemented by JPMorgan Chase ("JPMC") violates the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1001, et. seq. In Count I, the Plaintiffs allege that the JPMC Plan is age discriminatory. Plaintiffs have withdrawn Count II ("backloading," i.e. postponing benefits)[1] and Count III ("forfeiture")[2] without prejudice and reserve their rights to reinstate these claims during discovery. In Counts IV-VI, Plaintiffs allege, respectively, that JPMC and JPMC's Director of Human Resources (collectively, "Defendants") failed to provide notice that the rate 481 of their future benefit accrual would decrease *481 under the new plan, did not provide an adequate Summary Plan Description ("SPD"), and did not provide summaries of material modifications to the Plan. Defendants have filed a motion to dismiss all remaining counts of the Consolidated Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), failure to state a claim. Defendants also contend that Counts IV-VI, should be dismissed pursuant to Federal Rule of Civil Procedure 8(a), failure to plead with particularity. For the reasons set forth below, this motion to dismiss is granted in part and denied in part.
I. FACTUAL BACKGROUND
A. Background on ERISA Retirement Plans
ERISA provides for two types of pension plans and labels them defined-contribution or defined-benefit plans. The categorization of a retirement plan as either a defined-contribution plan or a defined-benefit plan is critical because the plans are subject to different requirements under ERISA.
ERISA sets forth a narrow definition for defined-contribution plans. Pursuant to the law, a defined-contribution plan is one where the employer periodically contributes a certain amount of money (e.g. 3% of the employee's salary) into each employee account. ERISA Section 3(34), 29 U.S.C. § 1002(34) ("A pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account, and any income, expenses, gains and losses."). Under defined-contribution plans, the employer does not guarantee a retirement benefit to the employee. The employee bears the risk of any investment, even if the investment reduces the amount in their retirement account. A common type of definedcontribution plan is a 401(k) plan. The employer makes contributions to the employee's account but does not guarantee any benefit upon retirement.

In contrast, a defined-benefit plan is one where the employee is promised a retirement benefit based on a formula set forth in the plan. Under ERISA, defined-benefit plans include all plans that do not meet the definition of a defined-contribution plan. ERISA Section 3(35), 29 U.S.C. § 1002(35) (stating that a defined-benefit plan is "a pension plan other than an individual account plan."). One type of defined-benefit plan is a final pay formula plan. In simplified terms, under a final pay formula plan, employees are guaranteed a retirement benefit that is calculated on a percentage of the employee's salary during their final years of employment.
Cash balance plans combine features of both defined-benefit and defined-contribution plans. Under a cash balance plan, not only does an employer guarantee an employee a benefit upon retirement, but the employer also makes contributions to a hypothetical account on behalf of the employee. In this Circuit, cash balance plans fall under the defined-benefit plan umbrella, subject to the regulations that govern those plans and "[t]he regulatory consequences of this classification are wide-reaching." Esden v. Bank of Boston, 229 F.3d 154, 158 (2d. Cir.2000). In Esden, the Second Circuit explained that
However `hybrid' in design a cash balance plan may be, it remains subject to a regulatory framework that is in many regards rigidly binary. Because the individual accounts, and the employer contributions and the interest credits to those accounts, are all hypothetical under a cash balance plan, it is classified as a defined-benefit plan.
Id.
B. JPMC's Cash Balance Plan
482 In a Rule 12(b)(6) motion, the allegations in the plaintiffs complaint are taken *482 as true. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). The Plaintiffs recount the following in their Consolidated Class Action Complaint.
JPMC is the successor-in-interest to several other companies, including The Chase Manhattan Bank ("Chase"), Chemical Banking Corporation ("Chemical"), Manufacturers Hanover Trust ("MHT"), J.P. Morgan & Co., Inc. ("J.P.Morgan"), and Bank One (collectively, "JPMC Predecessor Companies"). Corrected Consolidated Class Action Complaint ("Compl.") ¶ 15. Each of these Predecessor Companies had a defined-benefit pension plan prior to merger with J.P. Morgan. Compl. 1128. The last conversion occurred in 1998, with an effective date of January 1, 1999. Compl. ¶ 35. The Plan at issue, effective January 1, 2002, is the result of the union of, and amendments to, the various retirement plans of the JPMC Predecessor Companies. Compl. ¶¶ 28, 40.
The current JPMC Plan is a cash balance plan. Compl. ¶ 20; See generally Esden v. Bank of Boston, 229 F.3d 154, 158 (2d Cir.2000) (description of cash balance plans). Under the Plan, pension benefits are calculated using the cash balance formula which commands that an employer set up a hypothetical or notional account ("Account") in the participant's name. Compl. ¶ 21. The Account is simply a recordkeeping device. A participant's Account accumulates benefits based on two factors 0907 Pay Credits and Interest Credits. Id. The Pay Credit, a percentage of the individual's annual salary based on the participant's completed years of service, is a contribution the employer makes to the Account. Compl. ¶¶ 44, 45. As years of service accumulate, a higher percentage of the individual's compensation is deposited into the hypothetical Account by the employer. Id. Interest Credits, a variable interest rate based on an outside index, are also allocated to the Account. Compl. ¶ 47. The Interest Credit, while the rate itself may vary, is the same for all employees. Once the employee leaves the company, Pay Credits no longer accumulate to the account. However, Interest Credits continue to be allocated to the Account until the employee decides to receive the benefit.
After five years of participation in the Plan, the benefits in the hypothetical Account vest. At that point (and any time thereafter until the age of 70½), an employee can elect to receive their retirement benefit in one lump sum payment or in an annuity. The Account must be converted into a dollar benefit based on actuarial assumptions in the Plan before it is paid over to the employee. Compl. ¶ 23. In other words, an employee's retirement benefit is determined by the value of the Interest and Pay Credits in the Account.

All Plaintiffs are former employees of JPMC (or one of its Predecessor companies) and are subject to the JPMC cash balance formula. Compl. ¶¶ 19-14. Plaintiffs claim that retirement benefits calculated under the cash balance plan are age discriminatory.
II. STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the movant must establish that the plaintiff failed to "state a claim upon which relief can be granted." FED. R. CIV. PRO. 12(b)(6). In ruling on a Rule 12(b)(6) motion, this Court must construe all factual allegations in the complaint in favor of the non-moving party. See Krimstock v. Kelly, 306 F.3d 40, 47-48 (2d Cir.2002). The Court's consideration is normally limited to facts alleged in the complaint, documents appended to the complaint or incorporated in the complaint by reference, and to 483 matters of which judicial notice may be taken. Allen v. West-Point-Pepperell, Inc., 945 F.2d 40, 44 (2d *483 Cir.1991). A motion to dismiss should not be granted "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." Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
III. DISCUSSION
A. Procedural Claims
As a preliminary matter, the Defendants assert two procedural arguments and contend that one, or both, require dismissal of this Complaint. For me, at this time, both arguments are unavailing.
1. Failure to Exhaust Administrative Remedies
Defendants claim that the Plaintiffs failure to plead that they exhausted the administrative remedies related to these claims merits dismissal. Although there is a federal policy that favors exhaustion of administrative remedies in ERISA actions, Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 594 (2d Cir.1993), there is no statutory exhaustion requirement under an ERISA claim brought by a participant who files a civil action to clarify their rights to future benefits under the Plan. Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 445 (2d Cir.2006).
2. Statute of Limitations
Defendants state that the Plaintiffs' claims are time-barred to the extent that they deal with the provision of benefits or communications before 1999. ERISA does not provide a statute of limitations for civil enforcement actions, 29 U.S.C. § 1132, thus, the most similar state statute of limitations applies. Miles v. N.Y. State Teamsters Conf. Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.1983). Employee benefit plans are contracts, accordingly, under New York law, the applicable statute of limitations is six years. N.Y.C.P.L.R. § 213.
The Second Circuit has held that the six-year statute of limitations does not begin to run until "there has been a repudiation by the fiduciary which is clear and made known to the beneficiaries." Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir.2001). The statute of limitations period typically begins when a participant's formal application for benefits is denied by the plan. Lewis v. John Hancock Mut. Life Ins. Co., 6 F.Supp.2d 244, 247 (S.D.N.Y.1998). In some circumstances, the time period may begin earlier. Carey v. Int'l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47-48 (2d Cir.1999) (finding that a participant's receipt of a plan amendment or letter, before the submission of a formal application for benefits, may also trigger the statute of limitations). Based on the facts set forth by the Plaintiffs in the Consolidated Complaint, it is uncertain when it became clear to them that JPMC had "repudiated" the benefits they were entitled to under the previous retirement plan.
Defendants argue that "repudiation" occurred when JPMC converted the pension plan from a traditional definedbenefit plan to a cash balance plan. Since the last cash balance plan conversion occurred in December 1998,

Defendants conclude that the claims here are time-barred since the Complaint was filed more than six years thereafter, in January 2006.
While this may be true, the Defendants fail to recognize that this is two-step inquiry. Not only must there be a repudiation by the fiduciary but the repudiation must be "clear and made known to the beneficiaries." Plaintiffs allege that JPMC failed to provide adequate notice with respect to the decrease in their retirement benefit as a 484 result of the conversion to a cash balance *484 plan. Thus, it appears that Plaintiffs argue that they were unaware of the reduction in their retirement benefits that resulted from the cash balance conversion until they left JPMC.
While receipt of a SPD from the Plan may be sufficient notice, there are no assurances that this is so. Taking the Plaintiffs allegations as true, there are issues of fact with respect to when the Plaintiffs were notified about the effect on their retirement benefit as a result of the cash balance conversion and whether the statute of limitations was triggered upon receipt of this notice. Thus, construing the facts in their favor as I must on a motion to dismiss, the statute of limitations was not triggered until 2001, since it was then (and after) that any named plaintiff left the employment of JPMC. Given that the initial complaint in this matter was filed in January 2006, well within the six-year statute of limitations, the motion to dismiss will not be granted on this basis as to any of the claims.
B. Age Discrimination Claim (CountI)
Presently, two district courts in this Circuit have found that cash balance plans are not age discriminatory, Laurent v. Price WaterhouseCoopers, LLP, 448 F.Supp.2d 537, 2006 WL 2546805 (S.D.N.Y.2006), Hirt v. Equitable Ret. Plan for Employees, Managers & Agents, 441 F.Supp.2d 516 (S.D.N.Y.2006), and one has come out the other way, Richards v. FleetBoston, 427 F.Supp.2d 150 (D.Conn. 2006). I join the court that found that cash balance plans are age discriminatory, although I reach this conclusion via a different path. In short, I find that the unambiguous statutory language, as well as ERISA's different regulatory requirements for defined-contribution and defined-benefit plans, compels this result.
The crux of this case depends on how you interpret the ERISA anti-age discrimination provision, § 204(b)(1)(H) (i), for defined-benefit plans. The age discrimination test for defined-benefit plans and defined-contribution plans is set forth below, side-by-side.

Defined-benefit Plan-29 contribution Plan-29
U.S.C. § 1054(b)(1)(H)(i) (2)(A)

DefinedU.S.C. § 1054(b)

A defined-benefit plan shall be treated as not contribution plan satisfies the requirements satisfying the requirements of this paragraph if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age.

A defined-
of this paragraph if, under the plan, allocations to the employee's acc are not ceased, and the rate at which amounts are allocated to the employee's is not reduced, because of the attainme of any age.

1. ERISA Age-Based Accrual Provisions Are Applicable Before Normal Retirement Age

Although neither party raised this argument here, there is a split among courts as to whether ERISA's age-based accrual provisions apply to individuals younger than 65. As set forth above, ERISA section 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), prevents the reduction of the rate of benefit accrual "because of the attainment of any age." The unambiguous meaning of the term "any" dictates the conclusion that the ERISA anti-age discrimination provision applies to individuals of all ages.

485

*485 A number of courts, even those who eventually conclude that cash balance plans are not age discriminatory, have found that the broad language of the antiage discrimination provisions, "attainment of any age," favor the application of these provisions before and after normal retirement age. See, e.g., Hirt, 441 F.Supp.2d at 550 ("The application of the age discrimination prohibition contained in section 204(b)(1)(H) of ERISA to workers of all ages is, in my opinion, the necessary consequence of the broad language employed by the statute"); Register v. PNC Financial Servs. Group, 2005 WL 3120268, at *7, n. 17 (E.D.Pa. Nov.21, 2005) ("The [IRS 2002] proposed regulations emphatically reject the first holding in Eaton, that the age discrimination provisions only apply after normal retirement age."). Since the statutory language "attainment of any age" is unambiguous, I join the courts that conclude that plain language of the antidiscrimination provisions dictate that its prohibitions apply at any age.
2. Definition of "Rate of Benefit Accrual"
ERISA's age discrimination provision prohibits the reduction of the rate of an employee's benefit accrual on account of age. The definition of the phrase "rate of an employee's benefit accrual," used only in the agediscrimination provision for defined-benefit plans, is central to this analysis. Specifically, whether this phrase refers to the employer's contributions to the plan (inputs) or the employee's retirement benefit (outputs). Defendants argue for the former interpretation whereas the Plaintiffs argue for the latter.
In other words, Defendants argue that the ordinary meaning of "rate of benefit accrual" suggests that as long as the rate at which payments (i.e. pay credits and interest credits) made to the employee's account does not decrease from one year to the next, no violation exists. Put another way, the employer's contributions to the account are the relevant "benefit" in this paradigm. Thus, if the employer makes ever-increasing contributions to the account, $100, then $120, etc., there is no ERISA violation. Plaintiffs contend, however, that the relevant "benefit" is what an employee receives from the hypothetical account in the form of a retirement benefit, the actuarial equivalent of the employer's contributions to the account. Thus, in order to avoid an ERISA violation, an employer must ensure that the rate at which an employee accumulates their retirement benefit increases as the individual gets older.
"Rate of benefit accrual" is not defined in the ERISA statute or any regulation, but since under a defined benefit plan an employee is promised a retirement benefit, not employer contributions to a retirement account, the import of the statutory language suggests that "rate of benefit accrual" refers to the outputs from the Plan. As mentioned in section I.A. above, this is the critical distinction between defined-benefit and defined contribution plans. Under a defined benefit plan, employees are promised an output, retirement benefits, whereas under a defined contribution plan, employees are only promised an employer contribution to an account 0907 benefits are not guaranteed. The binary regulatory framework with regard to defined-contribution and defined-benefit plans compels differing treatment for the two plans.
The parties agree that the phrase, "rate of benefit accrual," is unambiguous and I agree. See Def. Mot. to Dismiss at 10 ("The phrase [rate of benefit accrual] therefore should be interpreted in accordance with the ordinary meaning of the words used."); PI. Mot. in Opposition to Def. Mot. to Dismiss at 12-15. Since the term is not 486 ambiguous, there is no need to consider legislative history to divine Congress' *486 intent. BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal citations omitted) ("Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous."); Cf. Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"). The dictionary definition for benefit and accrual follow.
Benefit 0907 A payment or service provided for under an annuity, pension plan, or insurance policy
Accrual 0907 To accumulate or be added periodically.
MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (1999). Thus, substituting in the respective definitions, the phrase "rate of benefit accrual" is defined as the rate at which an employee accumulates retirement payments and cannot mean the contributions (credit balance) the employer makes to the employee's hypothetical account. The plain meaning of the phrase, "rate of benefit accrual," e.g. the employee's retirement payments from the account, is supported by the purpose and structure of defined-benefit plans.

By definition, under a defined-benefit plan, the employee never receives the credit balance in the Account. Instead, the inputs (contributions and interest credits) the employer makes into the Account must be converted to the age 65 annuity. Esden, 229 F.3d at 164 ("Because the Plan is a defined benefit plan, any distribution from the plan must be the actuarial equivalent of the accrued benefit expressed as an annual benefit payable at normal retirement age, that is-otherwise expressed-the normal retirement benefit."). You must know an individual's age to perform the actuarial calculation. As a result, the cash balance plan is not age neutral.

The JPMC Plan itself states that participants do not receive the amounts in the notional account as their retirement benefit. Instead, the Plan dictates that the credit balance in the account must be converted into an accrued benefit before it is paid over to the employee. JPMC Plan, Vested Benefit at ¶ 5.1 (Jan. 1, 2002) ("A Participant who has completed a Period of Service of at least five years has a nonforfeitable right to 100% of such individual's Accrued Benefit."). An accrued benefit, as defined by the Plan is the following.

(i) an annuity for the life of the Participant (without survivor benefits) at Normal Retirement date, that is the Actuarial Equivalent of the Participant's Credit Balance.

JPMC Plan, Definitions at ¶ 1.2 (Jan. 1, 2002). Unsurprisingly, this description is the same as ERISA's accrued benefit definition for defined-benefit plans.[3] The Second Circuit explained that this actuarial conversation
requires "projecting the cash balance forward and then discounting back to present value." Id. at 159.

Although the Esden court was not faced with an age discrimination claim, it recognized and applied the conversion concept in the cash balance plan at issue. There, the Second Circuit found that the ERISA regulations require that

487

Because the Plan [cash balance plan] is a defined-benefit plan, any distribution *487 from the plan

must be the actuarial equivalent of the accrued benefit expressed as an annual benefit payable at

normal retirement age, that is 0907 otherwise expressed 0907 the normal retirement benefit.

Esden, 229 F.3d at 164. The Court applied the regulations for defined benefit plans, even in the anomalous situation where the plaintiff elected to collect a lump sum annuity payment before she reached 65 years of age and the lump sum (discounted to present value) distributed to her at that time was more money than was currently in the notional account. Esden, 229 F.3d at 159-61 (finding that an employer must give an employee the present value of her accrued benefit, $1,595.52, not the smaller amount in her cash balance account, $1,533.98); See also id. at 165 (citing Treas. Reg. § 1.417(e)-1(d)(1)) ("The present value of any optional form of a benefit cannot be less than the present value of the normal retirement benefit.").

In short, the age discrimination at issue here stems from the required conversion to an age 65 annuity (required because cash balance plans are defined benefit plans) combined with the fact that under the JPMC Plan, JPMC allocates interest credits to the account through normal retirement age. This means that younger workers have more years to earn interest in their hypothetical account. See Esden, 229 F.3d at 170 ("[T]he interest adjustments to a hypothetical allocation [i.e. cash balance account] must be provided through normal retirement age, even though the employee terminates employment or commences benefits before that age."). A worker's age is required to convert the hypothetical account balance into an age 65 annuity, and as a matter of simple arithmetic, this conversion results in a smaller retirement benefit for older workers because they have less years in which to earn interest. This is undisputed by Defendants and was conceded at oral argument.[4] In other words, for similarly situated workers (same salary and work history), the older worker, by definition, will receive a smaller retirement benefit simply because they are older, and thus closer to age 65. Interest credits will accrue to their account for fewer years as compared to the similarly situated younger worker.

Further, the older worker will accrue benefits at a slower rate than the younger worker even though both employees receive the same interest and continue to accrue interest in that account until normal retirement age (age 65). This is simply the result of compound interest. The extra years the younger worker has to earn interest on his retirement benefit grows his money at a faster rate and produces a larger sum when it is converted to an annuity at age 65.[5] Simply put, interest is applied to an ever-increasing principal balance.

Defendants argue that even if you accept the Plaintiffs' contention, the fact that older workers get less money as 488 compared *488 to younger workers is simply a result of older workers having less time to accrue interest on their
account as compared to younger workers and that is not age discrimination but instead, a simple reflection and recognition of the time value of money. While this analysis is fair, it misses the point. The gravamen here is a question of statutory interpretation, specifically, the meaning of the phrase "rate of benefit accrual." Participants in a defined benefit plan are promised a benefit upon retirement, not yearly credits in a notional account. The Plan must know a participant's age to calculate that retirement benefit, which is an age 65 annuity. The Defendants avoid the consequences that result from the application of compound interest to amounts in the notional Account by their misguided focus on the employer's contributions to the plan as opposed to what the employee receives from the plan.
It is immaterial that the terms of the plan appear age neutral. Despite the fact that every employee receives pay credits based on their completed years of service and the same interest rate is applied to each employee's account balance, that is not the yardstick by which to test, nor the means to avoid, age discriminatory results pursuant to ERISA section 204(b)(i)(H)(i). Rather, ERISA's regulatory framework instructs that for defined-benefit plans, it is the retirement benefit with which we are concerned. Under JPMC's plan, individuals who join the company at a later age receive less.
In sum, under a cash balance plan, all other things being equal, when we focus on the benefit that the employer promises at retirement, (as the statute instructs us to), a worker who begins employment at an older age will receive a smaller retirement benefit as compared with a similarly situated employee who begins work at a younger age, and this is violative of ERISA section 204(b)(1)(H)(i).
3. Other Courts That Have Ruled on this Issue
The only Circuit to rule on this issue held that cash balance plans are not age discriminatory and do not violate § 204(b)(l)(H)(i). See Cooper v. IBM Personal Pension Plan and IBM Corp., 457 F.3d 636 (7th Cir.2006). To reach this result, Judge Easterbrook concluded that the age discrimination provisions for defined benefit and defined contribution plans, set out in the table above, "appear to say the same thing." Id. at 638. Further, he noted that cash balance plans are "economically equivalent" to defined contribution plans and since the award of interest in defined contribution plans is not age discriminatory, it makes little sense to treat the award of interest as age discriminatory for a defined benefit plan. Id. ("Interest is not treated as age discrimination for a definedcontribution plan, and the fact that these subsections are so close in both function and expression implies that it should not be treated as discriminatory for a defined-benefit plan either."). Put another way, the Seventh Circuit treated cash balance plans as defined contribution plans.
Part of the Seventh Circuit's decision relied on a finding that "`benefit accrual' (for defined-benefit plans) and `allocation' (for defined-contribution plans) both refer to the employer's contribution." Id. at 639. Defendants in this case make a similar argument and they argue that Congress was saying the same thing when they used the term "allocation" in one provision and "rate of benefit accrual" in the other. The fact is accrual, using its dictionary meaning and in line with the structure of defined benefit plans, refers to what the employee accumulates (the 489 outputs *489 from the plan) whereas allocation, using its dictionary definition and in line with the structure of defined contribution plans, refers to what an employer puts into the account. As this Circuit has observed, "[w]hen Congress uses particular language in one section of a statute and different language in another, we presume its word choice was intentional." U.S. v. Peterson, 394 F.3d 98, 107 (2d Cir.2005). Congress was not prohibited from explicitly stating that age discrimination may be measured via the rate at which employer's allocate funds to the employee's notional account. They did not do so, and instead used two different words, in two separate provisions in the statute.
It is difficult to imagine that in this case, where Congress has set forth one standard applicable to defined-benefit plans and another standard applicable to defined-contribution plans, they meant both provisions to mean the same thing. In other places in the statutory scheme when Congress intended the same rule to apply to both defined-benefit plans and defined-contribution plans, they, unsurprisingly, used a single provision. Compare 29 U.S.C. § 1052(a)(1)(A) (explaining in one statutory provision participation standards that apply to both defined-

benefit and defined-contribution plans) with 29 U.S.C. § 1054(b)(1) (anti-discrimination provision for definedbenefit plans) and 1054(b)(2) (anti-discrimination provision for defined-contribution plan).
Furthermore, the district courts that conclude that cash balance plans are not age discriminatory give significant weight to policy arguments 0907 specifically, the fact that the Plaintiffs' position not only fails to comport with the way cash balance plans are structured but also penalizes companies for a progressive approach in awarding interest to employees. See, e.g., Tootle v. ARINC, Inc., 222 F.R.D. 88, 94 (D.Md. 2004) ("The potential claim of age discrimination arises only by applying a definition for accrued benefits which does not fit with the way cash balance plans are structured. The more sensible approach is to measure benefit accrual under cash balance plans by examining the rate at which amounts are allocated and the changes over time in an individual's account balance."); See also Hirt, 441 F.Supp.2d at 551 (finding that "[a]ge discrimination does not arise from neutral application of interest to yearly account balances."). These arguments miss the point since the "dispute it not over what a `better' regulatory regime, more accommodating to the design objectives of cash balance plans might look like; the dispute is over how to apply the existing regulations to this Plan." Esden, 229 F.3d at 171.
While these policy arguments appear salutary and give me pause, the statutory text dictates a different result. The Second Circuit in Esden counseled as much, suggesting that one must adhere to the statutory text and utilize ERISA rules for defined benefit plans when dealing with cash balance plans, despite seemingly anomalous results.
It is undisputed that the governing statutes and regulations were developed with traditional finalpay defined-benefit plans in mind; they do not always fit in a clear fashion with cash balance plans and they sometimes require outcomes that are in tension with the objectives of those plans.
Esden, 229 F.3d at 159.
Although it appears that this ruling may make it more difficult for companies to construct a cash balance plan that comports with ERISA requirements, Congress, not the Courts, is the place to turn for redress. The Second Circuit said as much in Esden "[t]he issue is whether the Plan's terms complied with the law. They did not." Id. at 172.
490 *490 Further, the age discrimination arises because this is a defined benefit plan and older workers accrue their retirement benefits at a slower rate than similarly situated younger workers. As directed by the Supreme Court, my role "is to apply the text, not to improve upon it." Pavelic & LeFlore v. Marvel Entm't Group, 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989). That is the province of Congress, and it addressed some of the tensions that arise when the binary statutory framework is applied to cash balance plans at the time they passed the Pension Protection Act of 2006 this summer.[6]
C. Back-loading and Forfeiture Claims (Counts II and III)
The Plaintiffs have withdrawn these two counts without prejudice, and request the right to reinstate these claims during discovery, if appropriate.
Plaintiffs were given an opportunity to amend their complaint prior to answering the Defendants' motion to dismiss. They elected to rest on their Consolidated Complaint. It is unlikely that any further amendments will be permitted following discovery.
D. Notice Claims (Counts IV-VI)
Plaintiffs allege that the conversion to a cash balance plan served as a material modification to the Plan because the conversion decreased their retirement benefits. Since as a matter of simple arithmetic older workers receive less money because they have less time to accrue interest, I agree with the Plaintiffs. As a result, I conclude that the allegations that the Plan administrator failed to inform the Plaintiffs about the reduction in their retirement benefits resulting from the conversion to a cash balance plan is separate and distinct from the age discrimination claim. See also Oral Argument Hearing Tr. at 43:7-10 ("It is misleading for the defendants to suggest the notice claim and the discrimination claim are intertwined and can't be separated. It is not true.").

Defendants argue that Plaintiffs have not pled with sufficient particularity their lack of notice claims (Counts IV VI), in violation of Federal Rule of Civil Procedure Rule 8(a). Under this rule, a complaint need only set forth "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . ., (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." FED.R.Crv.P. 8(a). This is a permissive pleading standard and the plaintiff is only required to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). I find that the Plaintiffs have pled enough here.
In Count IV, the Plaintiffs allege that the Defendants did not provide advance written notice that the switch to cash balance plans might result in a "significant reduction in the rate of future benefit accrual." Pursuant to ERISA section 204(h), 29 U.S.C. § 1054(h), notice must be given at least 15 days before the effective date of an amendment that significantly reduces the rate of future benefit accruals, and they contend that the conversion to a cash balance plan did just that. In fact, Plaintiffs state in paragraph 88 that ERISA section 204(h) required the 491 Plan to give them adequate notice of the *491 change to their benefits, and they failed to do so. Compl. ¶ 88 ("Upon information and belief, the timing, content and method of distribution of the notices of the adoption of the cash balance formulas in the Plan and the Predecessor Plan violated ERISA Section 204(h), 29 U.S.C. § 1054 (h), and the applicable regulations."). Although Plaintiffs fail to provide specifics as to how the "timing, content and method of distribution" ran afoul of section 204(h), they do clearly state that their claim is based on the Defendants failure to inform them that the switch to the cash balance plan would reduce their retirement benefit. This is enough to state a claim under Count IV.
In Count V, the Plaintiffs allege that JMPC failed to provide participants with a summary plan description that can be understood by an average plan participant as required by ERISA Section 102(b), 29 U.S.C. § 1022(b) and 29 C.F.R. § 2520.102-2. ERISA Section 102(b) requires the Plan administrator provide all participants with a summary plan description ("SPD") that sets forth the following.
The summary plan description shall contain the following information: . . . the plan's requirements respecting eligibility for . . . benefits; . . . circumstances which may result in disqualification, ineligibility, or denial or loss of benefits . . .
29 U.S.C. 1022(b). The Plaintiffs allege that the following information was omitted from or insufficient in the Summary Plan description provided to participants.
In short, the Undated SPD did not explain, inter alia, (a) that the rate of accrual under the Plan diminished based on age for all Plan participants as a matter of simple arithmetic; (b) that the new cash balance formula applied retroactively to all years of service with Chase; (c) that the 1997 Opening Cash Balance Account operated as an offset against accrual under the new cash balance formula for Heritage Chase employees; and (d) that the benefit accrued under the 1997 cash balance formula was not applicable to Heritage Chase employees until and unless their benefit under the new cash balance formula became greater than the 1997 Opening Cash Balance Account.
Compl. ¶ 100.
Further, not only must the Plan administrator provide specific information about the plan, it must do so in a clear, and easy to understand fashion. 29 C.F.R. § 2520.102-2 ("The format of the summary plan description must not have the effect [of] misleading, misinforming or failing to inform participants and beneficiaries."). While Plaintiffs allege that the various omissions specified in Complaint paragraph 100 obscured the fact that their retirement benefit would decrease as a result of the conversion, 1 find there was ample language to state a claim and Count V will not be dismissed.
Finally, in Count VI, the Plaintiffs allege that Defendants failed to provide summaries of material modifications to the Plan as required by ERISA Section 102(a), 29 U.S.C. § 1022(a) and 29 C.F.R. § 2520.104b-3. ERISA Section 102(a) provides that

A summary of any material modification in the terms of the plan and any change in the information required under subsection (b) of this section shall be written in a manner calculated to be understood by the average plan participant.
29 U.S.C. § 1022(a). 29 C.F.R. § 2520.104b-3 requires that the Plan administrator disclose these modifications no later than 210 days after the year in which the changes were adopted. Allegations that participants were not notified about the impeding decrease in their retirement benefit under the new cash balance plan was a material 492 change to the plan and had *492 to be disseminated. Failure to notify participants about this change would run afoul of ERISA Section 102(a). This claim will not be dismissed.
IV. CONCLUSION
For the reasons set forth above, this motion to dismiss is granted in part and denied in part. The motion to dismiss is denied with respect to Count I, the age discrimination claim, and Counts IV-VI, the notice claims, but Counts II and Ill are dismissed. The Clerk of the Court is instructed to close this motion and remove it from my docket.
IT IS SO ORDERED.
[1] Count II claimed that the transition from a final average pay formula to the cash balance formula created an impermissible "wear-away" of benefits, in violation of ERISA § 204(b)(1)(B).
[2] Count III claimed that the transition from a final average pay formula to the cash balance formula created an impermissible forfeiture of accrued benefits, in violation of ERISA § 203(a)(2)(A).
[3] ERISA defines accrued benefit, for the purpose of defined-benefit plans, as follows.
The term "accrued benefit" means 0907
(A) [I]n the case of a defined benefit plan, the individual's accrued benefit determined under the plan . . ., expressed in the form of an annual benefit commencing at normal retirement age. 29 U.S.C. § 1002(23)(A).
[4] The Defendants do not dispute that when you apply the Plaintiffs' method (i.e. looking at the annual benefit an employee gets at age 65), the rate at which benefits accrue decreases with age.
When you talk about the rate of the accrued, employees' accrued benefit, accrual or accumulation, then, yes, because a 20-year old has 45 years to earn interest through age 65 and because a 50-year old has 15 years, that the accrued benefit will& mdash; the total of the accumulations over the longer period for a younger employee will be larger than the accumulation for an older employee.
See Oral Argument Hearing Tr. at 15.
[5] In the case of JPMC's Plan, Plaintiffs allege that the pay credits are not allocated to the account at a rate that can compensate older workers for the fewer years they have to earn interest as compared to younger workers. JPMC Plan ¶¶ 57-58.
[6] The House of Representatives passed the Act on July 28, 2006, the Senate followed suit on August 3, 2006, and President Bush signed the Act into law on August 17, 2006.
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 In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

242 F.R.D. 265 United States District Court,
S.D. New York.
In re J.P. MORGAN CHASE CASH BALANCE LITIGATION.
No. 06 Civ. 732(HB). | May 30, 2007.
Attorneys and Law Firms
*268 Amy C. Williams–Derry, Karin B. Swope, Derek W. Loeser, Erin M. Riley, Lynn Lincoln Sarko, Keller Rohrback L.L.P., Seattle, WA, Andrew Thomas Watt, Joseph A. Weeden, Peter S. Linden, Kirby McInerney & Squire, L.L.P., Edgar Pauk, Law Offices of Edgar Pauk, Esq., New York, NY, for Plaintiffs.
Jonathan K. Youngwood, Simpson Thacher & Bartlett LLP, New York, NY, for Defendants.
Opinion

1

Counts II and III were subsequently withdrawn by the

Plaintiffs.

The action was initiated in January 2006 and Defendants, in June 2006, filed a motion to dismiss all claims. I granted the motion with respect to Counts II and III, but denied it with respect to the age discrimination and notice claims. Thus, Counts I, IV, V, and VI remain.
As noted, Plaintiffs now request, pursuant to Federal Rule of Civil Procedure 23, certification of their proposed class, appointment of Plaintiffs as class representatives, and appointment of class counsel. For the reasons set forth below, this motion to certify the class is GRANTED in part. Plaintiffs Berotti, Falchetti, Melli, and Shapiro are appointed class representatives and the law firms of Schiffrin & Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP are appointed class counsel pursuant to Federal Rule of Civil Procedure 23(g).

*269 OPINION & ORDER
BAER, District Judge.
Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, and Perry Shapiro (collectively “Plaintiffs”), former employees of JPMorgan Chase & Co. (“JPMC”) and its various Predecessor Plans, allege various ERISA violations against JPMC and JPMC’s Director of Human Resources (collectively “Defendants”) and seek, amongst other relief, class certification. In Count I, Plaintiffs allege that the cash balance method that Defendants use to calculate pension benefits under the JPMC Retirement Plan (“Plan”) is age discriminatory in violation of ERISA § 204(b)(1)(H)(i). In Count II, Plaintiffs claim that the transition from a final average pay formula to the cash balance formula created an impermissible “wear-away” of benefits in violation of ERISA § 204(b)(1)(B), and in Count III, Plaintiffs allege that the transition from a final average pay formula to the cash balance formula created an impermissible forfeiture of accrued benefits in violation of ERISA § 203(a)(2)(A).1 In Counts IV–VI (collectively “notice claims”), Plaintiffs allege that Defendants failed to provide the following— notice of reduction of the rate of their future benefit accrual pursuant to ERISA Section 204(h), an adequate Summary Plan Description (“SPD”) as required by ERISA Section 102(b), and summaries of material modifications to the Plan pursuant to ERISA Section 102(a).

I. BACKGROUND
The facts of this case, including the terms of the Plan at issue, are set forth in detail in my October 30, 2006 Opinion & Order, familiarity with which is presumed. In re J.P. Morgan Cash Balance Litigation, 460 F.Supp.2d 479 (S.D.N.Y.2006). In summary, the JPMC Plan is a cash balance plan that was initiated after the union of, and amendments to, the various retirement plans of the JPMC Predecessor Companies. Over the years, JPMC has merged with the following companies (collectively “Predecessor Companies”)—the Retirement Plan of the Chase Manhattan Bank & Certain Affiliated Companies, the Retirement & Family Benefits Plan of the Chase Manhattan Bank, N.A., the Retirement Plan of Chemical Bank and Certain Affiliated Companies, Cash Plan for Retirement of Chemical Bank and Certain Affiliates, the Chase Balance Plan of Morgan Guaranty Trust Company of New York and Affiliated Companies for United States Employees, and Bank One Corporation Personal Pension Account Plan. At present, there is one plan, centrally administered by JPMC.
The proposed class representatives are former employees of JPMC, or one of its acquired banks (“Predecessor Companies”), and are members of its cash balance plan. Plaintiffs have put forth the following representatives:
1. Neil Aldoroty joined Chase Manhattan Corporation in 1967 and continued to work for Chase Manhattan Corporation’s successor companies
1

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

until 2002.
2. John J. Berotti joined Chase Manhattan Corporation in 1971 and continued to work for Chase Manhattan Corporation’s successor companies until 2001.
3. Annette Marie Falchetti joined Chase Manhattan Corporation in 1975 and continued to work for Chase Manhattan *270 Corporation’s successor companies until 2001.
4. Terri Melli joined Chase Manhattan Corporation in 1997 and continued to work for the company’s successor, JP Morgan Chase & Co., until 2005.
5. Norman J. Schomaker joined Chase Manhattan Corporation in 1966 and continued to work for Chase Manhattan Corporation’s successor companies until 2005.
6. Perry Shapiro joined Manufacturers Hanover Trust in 1969 and continued to work for Manufacturers Hanover Trust’s successor companies until 2001.
Two of class representatives, Neil Aldoroty and Norman Schomaker, have already received their lump sum payments under the plan.
II. DISCUSSION
[1] [2] [3] Plaintiffs request that the court certify a class that consists of:
All Plan participants, whether active, inactive or retired, their beneficiaries and Estates, whose accrued benefits or pension benefits are based in whole or in part on the Plan’s cash balance formulas, from January 1, 1989 to present.
To determine whether the proposed class should be certified, a two-step inquiry is required. The district court must first ascertain whether the class satisfies the factors set forth in Federal Rule of Civil Procedure 23(a), commonly referred to as the numerosity, commonality, typicality, and adequacy factors. If each Rule 23(a) factor is met, then the court must determine whether class certification is appropriate under one of the three provisions set out in Federal Rule of Civil Procedure 23(b). Plaintiffs bear the burden of showing that the proposed class satisfies Rule 23, see, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir.1997), and the district court must determine, based on relevant facts submitted

by the Plaintiff, that Rule 23 is met. In re Initial Public Offering Securities Litigation, 471 F.3d 24, 30 (2d Cir.2006). Finally, a court must address the proper administration of the action, including appointment of class counsel pursuant to Rule 23(g) and directing proper notice to absent class members pursuant to Rule 23(c). In re Omnicom Group, Inc. Sec. Litig., No. 02–4483, 2007 WL 1280640, at *5 (S.D.N.Y. Apr. 30, 2007).
Defendants assert that the named Plaintiffs lack standing to bring these claims and they fail to meet the class certification requirements of Rule 23.
A. Standing
1. Standing Under Article III of the United States Constitution [4] In order to establish standing under Article III, the potential plaintiff must: (1) have suffered an injury-infact, (2) demonstrate a causal connection between the injury and the objectionable conduct; and (3) demonstrate that the injury will be remedied by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Defendants maintain that ERISA § 204(b)(1)(H), the anti-age discrimination provision, only applies to individuals over the age of 65. Since none of the Plaintiffs have reached age 65, Defendants contend that they lack standing under Article III.
[5] In my October 30, 2006 Opinion & Order, I rejected Defendants’ interpretation of ERISA § 204(b)(1)(H). This provision provides as follows:
A defined-benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee’s benefit accrual is ceased, or the rate of an employee’s benefit accrual is reduced, because of the attainment of any age.
I found that the unambiguous meaning of the phrase “attainment of any age” compels the conclusion that the statute applies to everyone, not only those over 65. In re J.P. Morgan Cash Balance Litigation, 460 F.Supp.2d 479, 484–85. Plaintiffs allege that their injury stems from the fact that they accrue less money in their retirement accounts as they grow older due to the language of JPMC’s cash balance plan and claim that JPMC must reform the plan or be in violation of ERISA § 204(b)(1)(H). Since their concerns will be redressed if they prevail, *271 I find that the Plaintiffs meet all of the Lujan factors and have constitutional standing to bring this suit.
2

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

2. Statutory Standing Under ERISA § 502(a) ERISA § 502 allows participants or beneficiaries of an employee benefit plan to bring a civil action to “recover benefits due to him under the terms of his plan, ..., or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Consequently, JPMC Plan participants who have yet to receive benefits can bring suit under ERISA. However, the law, as it stands, is less clear with respect to those class members that availed themselves of a lump sum payment from the Plan.
Standing for these class members require that they all qualify as participants under the statute. They do not claim beneficiary status under ERISA nor are they benefit plan fiduciaries. 29 U.S.C. § 1132(a) (stating that only participants, beneficiaries, and fiduciaries of employee benefit plans can bring suit under ERISA). ERISA defines “participant” as follows:
Any employee or former employee of an employer, ... who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer....
29 U.S.C. § 1002(7) (emphasis added). The Supreme Court in Firestone Tire & Rubber Company v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), expounded on ERISA’s definition of “participant” and held that “the term ‘participant’ is naturally read to mean either employees in, or reasonably expected to be in, currently covered employment ... or former employees who have ... a reasonable expectation of returning to covered employment or who have a colorable claim to vested benefits.” Firestone, 489 U.S. at 117, 109 S.Ct. 948.
[6] The fly in the ointment here, as Defendants argue, is that two of the named Plaintiffs, Aldoroty and Schomaker, as former employees of JPMC, are no longer plan participants because they have already received their lump sum benefit and do not contend that they will ever return to covered employment. In Defendants’ view, Aldoroty and Schomaker are no longer “eligible to receive a benefit” and do not have standing to bring this claim and thus, this aspect of the motion for class certification should be denied. In support, Defendants cite case law from other circuits that hold that former employees that have received their lump sum payment do not have standing to sue under ERISA. See, e.g., Raymond v. Mobil Oil Corp., 983 F.2d 1528, 1535–36 (10th Cir.1993) (holding that former employers who have accepted lump sum payments of their retirement benefits, even if fraudulently induced to do so, are no longer

“participants” under ERISA); Kuntz v. Reese, 785 F.2d 1410, 1411–12 (9th Cir.1986) (finding that an individual that has received a lump sum payment is not a participant for ERISA purposes because the claim is one for damages, not vested benefits, as required by the statute); Yancy v. American Petrofina, 768 F.2d 707, 708–09 (5th Cir.1985) (holding that a former employer who accepted lump sum payment of his retirement benefit is no longer a “participant” under ERISA). This Circuit has not ruled on the question. See Coan v. Kaufman, 457 F.3d 250, 255–56 (2d Cir.2006).
In short, Defendants contend that any relief that Aldoroty and Schomaker may be entitled to in the event Plaintiffs were to prevail would be a damage award, not benefits, and thus, they fall without the statute and without standing, I agree. Plaintiffs contend that Aldoroty and Schomaker are plan participants because their lump sum payments were calculated under an illegal plan and thus, under a reformed plan, they are entitled to additional benefits. Plaintiffs point to miscalculation cases where courts have found that a former employee has standing if their lump sum payment was miscalculated under the terms of the plan, but that is not our case. There, the former employee was still “eligible to receive benefits” under the plan because calculation of benefits under the terms of the plan was challenged, not the plan itself.
[7] Further, while it is true that this Circuit has adopted a more expansive view of standing under the “zone of interests” test adopted in *272 Mullins v. Pfizer, 23 F.3d 663 (2d Cir.1994), Plaintiffs do not qualify as plan participants pursuant to that theory either. In Mullins, the Court stated that “the basic standing issue is whether the plaintiff is ‘within the zone of interests ERISA was intended to protect.’ ” Mullins, 23 F.3d at 668. In that case, the Court held that a plaintiff, who would not have retired but for the affirmative material misrepresentations by a Plan administrator, had standing to sue under ERISA as a participant of the plan. Id. at 667. The Court was concerned that a plan fiduciary could destroy employee standing (and by extension, avoid liability) through their own bad acts. However, unlike Mullins, neither Aldoroty nor Schomaker allege any malfeasance on the part of Defendants. Therefore, as Aldoroty and Schomaker lack standing to bring this action, they, and any similarly situated individuals, are excluded from the class and Aldoroty and Schomaker will no longer be in the caption.
B. Class Certification Rule 23 of the Federal Rules of Civil Procedure sets forth the following prerequisites to class certification:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are
3

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED.R.CIV.P. 23(a). If each Rule 23(a) factor is met, then the court must determine whether class certification is appropriate under Federal Rule of Civil Procedure 23(b). Plaintiffs bear the burden of proof as to each Rule 23 element and, as directed by this Circuit, the proposed class can be certified only after the district court finds, after review of “all the relevant evidence admitted at the class certification stage,” that “each of the Rule 23 requirements has been met.” In re Initial Public Offering, 471 F.3d 24, 30 (2d Cir.2006).
1. Rule 23(a) Factors
a. Numerosity [8] [9] [10] Plaintiffs must first demonstrate that the proposed class is “so numerous that joinder of all members is impracticable.” Impracticable does not suggest impossible, simply inconvenient or difficult. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993). Plaintiffs state that the proposed class will number in the hundreds of thousands and in support, submit JPMC’s 2004 tax return which states that as of the beginning of the 2004 plan year, JPMC had 117,345 participants in the Plan. Peter Linden Affidavit (“Linden Aff.”), Ex. A. This Circuit has held that at 40 class members, numerosity is presumptively satisfied. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). Plaintiffs easily satisfy this prong of the 23(a) requirements.

contained material misrepresentations and thus were violative of ERISA’s notice provisions.
c. Typicality [13] Rule 23(a)(3), the typicality requirement, “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992) (internal citation omitted). This prong of the test does *273 not require “that the factual background of each named plaintiff’s claim be identical to that of all class members; rather it requires that the disputed issue of law or fact ‘occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class.’ ” Caridad v. Metro– North Commuter R.R., 191 F.3d 283, 293 (2d Cir.1999) (internal citation omitted) (finding that typicality was satisfied when nineteen of the twenty-seven named plaintiffs claimed that they had been unfairly disciplined because of their race, even though two plaintiffs admitted to the offense for which they were disciplined); In re Omnicom Group, Inc. Sec. Litig., No. 02–4483, 2007 WL 1280640 at *6–7 (explaining that typicality does not demand that the factual background of the named plaintiff’s claim be identical to that of all class members). In other words, factual diversity among the claims of putative class members does not automatically doom class certification under this prong. The purpose of the typicality requirement is to “ensure that ‘maintenance of a class action is economical and that the named plaintiff’s claims and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’ ” See Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 122 (S.D.N.Y.2001) (citations omitted).

b. Commonality [11] Turning to the second factor, commonality, Plaintiffs must demonstrate that their claims share a common question of law or fact with absent class members. Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997). One question of law or fact is sufficient to satisfy this prong, id., and Plaintiffs make that showing here.
[12] Although Plaintiffs were employees of different Predecessor Plans, all of which were eventually merged into the JPMC Plan, Plaintiffs allege that JPMC’s conduct caused all class members to suffer identical ERISA violations. Common questions of law include whether JPMC’s cash balance plan violates ERISA’s anti-age discrimination provision and whether JPMC’s notice to participants of a decrease in the rate of benefit accrual was timely and whether any of those communications

Plaintiffs argue that the age discrimination claims of all class members arise from JPMC’s decision to utilize the cash balance formula to calculate retirement benefits.2 Since this method, as a matter of arithmetic, allocates retirement benefits to employees at a slower rate as they age, Plaintiffs allege that JPMC is in violation of § 204(b)(1)(H)(i), ERISA’s age discrimination provision for defined benefit plans.

2

The issue of age discrimination in a factually similar

case is before the Second Circuit in Hirt v. The

Equitable Retirement Plan for Employees, Managers,

and Agents et al., Docket No. 06–CV–4757.

Respondent class of long-term employees, managers

and agents of insurance company filed suit under

ERISA challenging changes made by their employer to

their retirement plans. The lower court held, in part,

that The Equitable Retirement Plan’s amendments to its

retirement plans did not discriminate against

4

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

participants on the basis of age. Hirt v. The Equitable Retirement Plan for Employees, Managers, and Agents et al., 441 F.Supp.2d 516, 518 (S.D.N.Y.2006).

[14] Plaintiffs proposed class consists solely of individuals “whose accrued benefits or pension benefits are based in whole or in part on the Plan’s cash balance formulas.” As defined, all proposed class members have some, if not all, of their retirement benefits calculated via the cash balance formula, and thus, the alleged violation of ERISA § 204(b)(1)(H)(i), the anti-age discrimination provision, affects them all. In other words, the same method is used to calculate retirement benefits for all members of the proposed class, regardless of employer or employee status and satisfies the typicality prong of 23(a).
The more difficult question is whether Plaintiffs can satisfy the typicality requirement with respect to the notice claims. Plaintiffs again assert that if you focus on the conduct of the Defendants, this factor is satisfied.3 Specifically, after each conversion to a cash balance plan, JPMC failed to issue the requisite notice to plan participants as required by ERISA. According to Plaintiffs, this failure, along with the uniformity of the notices issued, is enough to satisfy the typicality requirement.

3

I heard oral arguments on class certification on

December 19, 2006. Thereafter, at a status conference

held on January 19, 2007, I ordered the parties to

submit 10–page, non-adversarial supplemental briefs on

the notice issue by March 16, 2007. I heard

supplemental oral arguments on the notice claims on

April 27, 2007.

However, the problem, as Defendants point out, is that Plaintiffs seek to certify a class of individuals who worked for different employers, at different times, and thus were subject to different Plans and notices related to those plans.4 Thus, an analysis of the notice claims would require numerous fact-specific individualized inquiries (e.g. the content of the notice, timing and method of distribution) that are not conducive to class treatment and which would detract from the *274 focus of this litigation.5 See, e.g., In re Omnicom Group, Inc. Sec. Litig., No. 02–4483, 2007 WL 1280640 at *7 (explaining, with respect to defenses raised by Defendants at the class certification stage, that “the court’s analysis of unique defenses centers on whether these defenses will unacceptably detract from the focus of the litigation to the detriment of the class members.”) Plaintiffs, to carry their burden of proof, must demonstrate that notices issued by unrelated Predecessor Plans are sufficiently similar to meet the typicality requirement and in this instance, they have failed to carry their burden.

4

See, e.g., Defendant’s Supplemental Memorandum

Regarding Class Certification, Appendices II–III

(outlining the differences in plan conversions and

notices at issue).

5

Further, Defendants have indicated their intent to raise

a statute of limitations defense to some, if not all, of

these claims. Since this Circuit has held that the six-

year statute of limitations for ERISA civil enforcement

actions does not begin to run until “there has been a

repudiation by the fiduciary which is clear and made

known to the beneficiaries,” Davenport v. Harry N.

Abrams, Inc., 249 F.3d 130, 134 (2d Cir.2001), the

timing and content of those notices may be dispositive

as to some claims.

Furthermore, Plaintiffs’ proposed class of all active, inactive or retired employees “whose accrued benefits or pension benefits are based in whole or in part on the Plan’s cash balance formulas, from January 1, 1989 to present” may include individuals who retired before the Plan converted to a cash balance plan at their bank and therefore, the provisions of the current JPMC cash balance plan may be inapplicable to them. See Amy Williams–Derry Declaration (“Williams–Derry Decl.”), Ex. 3, JPMC Retirement Plan Preamble (“benefits for participants in the Heritage Morgan Cash Balance Plan who retired or terminated employment prior to December 31, 2001 and their beneficiaries will be provided for under the terms and conditions of the Heritage Morgan Cash Balance Plan as in effect immediately prior to the December 31, 2001 merger.”) (emphasis added). To the extent that these individuals are included in the proposed class, Plaintiffs have failed to demonstrate that these individuals received (or were even entitled to receive) notice, not to mention the same notice that went to the other members in the proposed class. As stated by Plaintiffs’ counsel at oral argument:
The Court: I think what I’m asking you is if I’m retired but had been in that plan since ′89, would I have the opportunity to look at and complain about a summary plan description that you’re talking about?
Mr. Loeser [Plaintiffs’ Counsel]: You may or may not. It depends on what notice was issued to that person.
Tr. at 13:3–8. In short, the notice claims of the named Plaintiffs are not typical vis-à-vis the proposed class members. Further, typicality would not be met, as suggested by the Plaintiffs, with the addition of named Plaintiffs that represent each Predecessor Plan. It is the factual diversity of the notice claims that pose an insurmountable hurdle to class certification of the notice claims.
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In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

While the assortment of notices issued by the various Predecessor Plans dating back to 1989 defeats typicality of Plaintiffs’ proposed class, we are still left with the current JPMC Plan which went into effect on January 1, 2002. As Plaintiffs highlight and underscore, all members of the proposed class are now subject to the terms of the 2002 Plan that is administered by JPMC, tr. at 12:21–23, and notices were sent to participants with respect to this Plan. The typicality requirement is met if the proposed class is restricted to participants of the 2002 plan since the claims will address the notice(s) issued with respect to only that plan.
d. Adequacy of Representation [15] Finally, I reach the adequacy of representation by the named Plaintiffs. The law demands that “the parties ... fairly and adequately protect the interests of the class,” FED.R.CIV.P. RULE 23(a)(4). The proper enquiry examines whether plaintiff’s interests conflict with the interests of the other members of the class. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir.2000).
[16] The class members must not have interests that are “antagonistic” to one another. In re Drexel Burnham Lambert Group, Inc., 960 F.2d at 291. Defendants argue that the interests of the named Plaintiffs *275 substantially conflict with the rest of putative class. I disagree. Defendants contend that Plaintiffs, as former employees in their fifties, do not have the same interests as current employees or younger workers. Specifically, any reformation of the JPMC Plan at the behest of the named Plaintiff may reduce benefits for these employees. However, the gravamen of the Plaintiffs’ complaint is that at any age, the cash balance method allocates less money to one’s retirement account as one gets older. This ERISA violation affects former and current employees equally. While current employees may prefer the cash balance formula for various reasons (a speculative concept at best), see In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir.2001), I find that preference for a different remedy does not preclude class certification. See, e.g., Richards v. FleetBoston Financial Corp., 235 F.R.D. 165, 172 (D.Conn.2006) (“Even if the court could assume at this stage in the litigation that class members do prefer a lump-sum distribution, a question it does not decide, this conclusion would go only toward the question of which remedy class members would seek, which does not affect the viability of the class at this stage in the litigation.”); Amara v. CIGNA Corp., 2002 WL 31993224, *2 (D.Conn.2002); Wilder v. Bernstein, 499 F.Supp. 980, 983 (S.D.N.Y.1980) (“The fact that some members of the class may be personally satisfied with the existing system and may prefer to leave the violation of their rights unremedied is simply not dispositive of a

determination under Rule 23(a).”) (internal citation omitted). In the final analysis, Plaintiffs seek to reform the JPMC Plan so that benefit accruals do not decrease with age, which is in the interest of all putative class members.
2. Rule 23(b) Factors Plaintiffs must also demonstrate that the case “may be maintained as a class action” pursuant to one of three categories set forth in Rule 23(b) and they assert that they satisfy two of the three Rule 23(b) conditions for class certification, (b)(1) and (b)(2). Rule 23(b)(1) counsels that class certification is appropriate when there is a risk that separate actions would result in “incompatible standards of conduct for the party opposing the class,” FED. RULE CIV. P. 23(b)(1)(A), or would “as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” FED. RULE CIV. P. 23(b)(1)(B). Rule 23(b)(2) provides that the class action vehicle is appropriate if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” FED. RULE CIV. P. 23(b)(2). I find that the class may be certified under both Rule 23(b)(1) and (b)(2).
a. Certification Under Rule 23(b)(1) [17] As Plaintiffs stress, the cash balance plan, to the extent it affects proposed class members, is now centrally administered by JPMC. No other entity is responsible for calculating and distributing retirement benefits, even if the plan originated with one of the Predecessor Plans. As Plaintiffs represented at oral argument, and which Defendants do not dispute,
There’s only one plan now. We have the J.P. Morgan Chase plan, and I think it’s important that that plan is centrally administered for all of the predecessor plans, so there’s only one administrator. The defendants have accurately identified Bank One, Morgan Guarantee, but all of those plans, they don’t exist anymore except within the J.P. Morgan Chase Plan and they’re all administered by J.P. Morgan Chase.
Tr. 12:20–13:2. Thus, failure to certify the proposed class may result in “incompatible standards of conduct” for JPMC as the sole administrator of the Plan. As Plaintiff point out, reformation of only some of the Predecessor
6

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

Plans would result in JPMC, as the sole administrator, managing some plans under one set of standards and the others under a different standard. Tr. at 14:10–24; see also Tr. at 14:21–24 (“So it would be, we think, totally unworkable and inappropriate to have the administrator on one hand fixing one of the plans it administers, but on the *276 other hand not fixing one of the plans it administers.”). Further, in the situation where individual plaintiffs prevail in a lawsuit, reformation of the Plan may affect the interest of other plan members to the extent these participants are subject to the same Plan. Accordingly, I find that Plaintiffs can maintain a class action under Federal Rule of Civil Procedure 23(b)(1).
b. Certification Under Rule 23(b)(2) [18] Plaintiffs’ prayer for relief includes a request to enjoin Defendants from utilizing the cash balance method to calculate retirement benefits. If Plaintiffs prevail on the merits and JPMC’s Plan is found to violate ERISA’s agebased accrual rules, any injunctive or declaratory relief ordered would be applicable to the entire class. Thus, class certification under Rule 23(b)(2) is appropriate also.
C. Issue Certification [19] As held above, inclusion of notice claims that encompass Predecessor Plans dating back to 1989 may not be certified. However, Federal Rule of Civil Procedure 23 allows courts to certify a class limited to specific issues. FED.R.CIV.P. 23(c)(4)(A).
Plaintiffs’ age discrimination claim is a question of statutory interpretation—whether cash balance plans discriminate on the basis of age. This claim affects all class members in the same way, regardless of their age, employment status (current or former employee), or employer (JPMC or one of the Predecessor Plans). For individuals who have not elected and taken their lump sum payment and “whose accrued benefits or pension benefits are based in whole or in part on the Plan’s cash balance formulas,” Plaintiffs allege that the cash balance plan allocates less money to an employee’s retirement account as they age. This claim is common and typical to the class, and named Plaintiffs are adequate representatives of all class members in their goal to reform a plan that allocates less money to retirement accounts as employees get older.
With respect to the notice claims, Plaintiffs failed to demonstrate that typicality was met amongst notices issued by different companies dating back to 1989. However, it is undisputed that participants of the 2002 JPMC Plan all received the same notice which Plaintiffs allege were deficient in the same way, failure to apprise participants of the reduction to the rate of benefit accrual. Since the Rule 23 factors are met with respect to the 2002

Plan, the class will be limited to this subset but with respect to the notice claims only.
Last, class certification can proceed, even though the named Plaintiffs are not participants in each of the Predecessor Plans. Once it is established that the Plaintiffs have standing under Article III to bring this claim, which they do, the relevant inquiry is whether the class representatives meet the Rule 23 factors vis-à-vis the putative members of the class. Because Plaintiffs demonstrate that the Rule 23 factors are satisfied in the manner indicated above, class certification is proper.
However, this, of course, excludes Plaintiffs Aldoroty and Schomaker as former employees that have received their lump sum benefit.

D. Trial Administration of the Class
1. Appointment of Class Counsel [20] When a class is certified, a court is also charged with appointment of class counsel. FED.R.CIV.P. RULE 23(g). Class counsel must be “qualified, experienced and generally able to conduct the [ ] litigation.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992). Defendants do not dispute that Plaintiffs satisfy this requirement and I agree. Plaintiffs are represented by three firms—Schiffrin & Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP— all with extensive experience in ERISA class action litigation. Plaintiffs include firm resumes in support of their motion and I find that they have satisfied their burden under this prong. Linden Aff., Ex. B–E.
[21] Rule 23 directs courts to consider, at a minimum, the following factors: “the work counsel has done in identifying or investigating potential claims in the action, counsel’s experience in handling class actions, other *277 complex litigation, and claims of the type asserted in the action, counsel’s knowledge of the applicable law, and the resources counsel will commit to representing the class.” See Iglesias–Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 375 (S.D.N.Y.2007) (outlining the elements courts must consider and noting the court’s discretion to consider any “other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”) (citation omitted). Co-lead counsel Schiffrin & Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP not only have extensive experience with ERISA class action litigation but have undertaken significant work in litigating this case up to this point— drafting the consolidated complaint and defense of the motion to dismiss.6

6

Defendants do not challenge co-lead counsel Schiffrin

7

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

& Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP’s appointment.

Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP are appointed class counsel pursuant to Federal Rule of Civil Procedure 23(g).

[22] In addition, I may consider any other factors relevant to counsel’s ability to fairly and adequately represent the interests of the class. FED.R.CIV.P. 23(g)(1)(C)(ii) and Advisory Committee Notes Rule 23(g), 2003 Amendments, Subsection (C) (inviting the court to consider other pertinent matters); Federal Judicial Center, 4 Manual for Complex Litigation (“Manual”) § 21.27 at 278–301 (2004) (same); WRIGHT & MILLER § 1802.3 (“[The court] has broad authority in making [class counsel] appointments.”). See, e.g., In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 58 (E.D.N.Y.2006) (considering “attorneys’ ability to command the respect of their colleagues and work cooperatively with opposing counsel and the court” among factors for appointment of class counsel). No single factor is dispositive. Manual § 21.271 at 279.
[23] Appointment of class counsel is an extraordinary practice with respect to dictating and limiting the class members’ control over the attorney-client relationship and thus requires a heightened level of scrutiny to ensure that the interests of the class members are adequately represented and protected. Judge Jack Weinstein of the Eastern District has aptly compared the role of class counsel to that of “a judicially appointed fiduciary, not that of a privately retained counsel.” Schwab v. Philip Morris USA, Inc., 449 F.Supp.2d 992, 1106–1107 (E.D.N.Y.2006).
The proposed class includes thousands of Plan participants, both male and female, arguably from diverse racial and ethnic backgrounds. Therefore, I believe it is important to all concerned that there is evidence of diversity, in terms of race and gender, of any class counsel I appoint. A review of the firm biographies provides some information on this score. Here, it appears that gender and racial diversity exists, to a limited extent, with respect to the principal attorneys involved in the case. Co-lead counsel has met this Court’s diversity requirement—i.e., that at least one minority lawyer and one woman lawyer with requisite experience at the firm be assigned to this matter.
Last, although the appointment of three firms as class counsel gives me pause, co-lead counsel has assured me that they will work together efficiently and minimize expenditures to the Plaintiff class. To that end, I have directed counsel to submit quarterly reports that reflect the attorneys’ fees incurred during that time period. Two such reports have been submitted to date. As a result of the above, Plaintiffs have satisfied me that their selected co-lead counsel will fairly, adequately, and economically represent the interests of the class and thus, Schiffrin &

2. Notice for Absent Class Members. [24] Pursuant to Rule 23(c)(2)(A), “the [C]ourt may direct appropriate notice to the class” certified under Rule 23(b)(1) or (2). Fed.R.Civ.P. 23(c)(2)(A) (emphasis added); Advisory Committee Notes, Subdivision (c)(1) ( “Whether the court should require notice to be given to the members of the class of ... the order embodying [the certified class], is left to the court’s discretion under subdivision (d)(2).”). Given the potential number of plaintiffs in the proposed class and the financial *278 burden to the representative plaintiffs, the Court will not require notice to the absent class members at this stage of the litigation.
III. CONCLUSION
Certification is granted to the class with respect to the notice claims—i.e., Counts IV, V, and VI, but only with respect to the class claims that stem from the JPMC Plan as of January 1, 2002, and excluding those individuals who have already received their lump sum benefit.
Certification is granted to the class with respect to the age discrimination claim beginning the 1st day of January 1989, however, because Hirt v. The Equitable Ret. Plan for Employees, Managers & Agents, No. 06–CV–4757, is currently sub judice before the Second Circuit, and since that decision will likely be dispositive of the age discrimination issue, I am reserving the right to revisit this issue following that decision. See FRCP 23(c)(i)(C).
Plaintiffs Berotti, Falchetti, Melli, and Shapiro are appointed class representatives, and the law firm Schiffrin Barroway, LLP, Kirby, McInerney & Squire, LLP, and Keller Rohrback LLP are appointed class counsel and will abide by my Order of July 28, 2006.
Discovery may proceed but it is restricted with respect to the age discrimination claim to the period January 1, 2002 and thereafter. The parties will prepare a proposed joint pretrial scheduling order and bring it to a pretrial conference in chambers on June 14, 2007 at 3:00 P.M.
The Clerk of the Court is instructed to close this motion and remove it from my docket.
Parallel Citations
8

In re J.P. Morgan Chase Cash Balance Litigation, 242 F.R.D. 265 (2007)

41 Employee Benefits Cas. 1716

	  

9

 
 In re J.P. Morgan Chase Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

2007 WL 2177019 United States District Court,
S.D. New York.
In re J.P. MORGAN CHASE CASH BALANCE LITIGATION.
This Document Relates to: All Actions.
No. 06 Civ. 732(HB). | July 31, 2007.
Opinion
OPINION & ORDER
Hon. HAROLD BAER, JR., District Judge.
*1 Plaintiffs, former employees of JPMorgan Chase & Co. (“JPMC”) and its various Predecessor Plans, allege various ERISA violations against JPMC and JPMC’s Director of Human Resources (collectively “Defendants”). On May 30, 2007, the Court issued an Opinion and Order (“May 30th Order” or the “Order”) granting in part and denying in part Plaintiffs’ Motion for Class Certification. I granted clearly and unequivocally Plaintiffs’ notice claims that stemmed from the JPMC Plan as of January 1, 1989, and equally clearly, denied class claims to Aldoroty and Schomaker and all those similarly situated that had taken lump sum benefits on their retirement. I found that they lacked standing to bring this action under ERISA.
On June 14, 2007, pursuant to Local Rule 6.3 and Rule 54(b), Plaintiffs filed this motion for certification and because they failed to understand my May 30th Order that persons who took a lump sum distribution after this action was commenced on January 31, 2006, and those that will thereafter, are excluded from the class. Plaintiffs’ motion for reconsideration reiterates essentially the same arguments they have made time and time again-the same points this Court has thoroughly considered and found wanting. For the reasons set forth below, Plaintiffs’ motions for reconsideration and certification are DENIED.
I. BACKGROUND
The facts of this case, including the terms of the Plan at issue, are set forth in detail in my October 30, 2006 Opinion & Order as well as my May 30, 2007 Opinion & Order, familiarity with which is presumed. See In re J.P. Morgan Cash Balance Litigation, 460 F.Supp.2d 479

(S.D.N.Y.2006); In re J.P. Morgan Chase Cash Balance Litig., No. 06-Civ.-0732, 2007 U.S. Dist. LEXIS 38766 (S.D .N.Y. May 30, 2007).

II. STANDARD OF REVIEW
“Motions for reconsideration are intended to bring to the Court’s attention matters that it overlooked, not to examin[e] a decision and then plug[ ] the gaps of a lost motion with additional matters ... [a] party seeking reconsideration is not supposed to treat the court’s initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court’s rulings.” In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349 (S.D.N.Y.2004) (internal quotation and citation omitted); In re Health Mgmt. Sys., Sec. Litig., 113 F.Supp.2d 613, 614 (S.D.N.Y.2000) (noting that reconsideration is an “extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.”). The purpose of Local Civil Rule 6.3,1 which governs Plaintiffs’ motion for reconsideration, is to ensure the finality of decisions. Accordingly, relief is only available to the extent that the Court overlooked controlling law or factual matters that were put before it, or alternatively, where the movant demonstrates a clear error or to prevent manifest injustice. Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998).

1

Local Civil Rule 6.3 provides in pertinent part: “A

notice of motion for reconsideration or reargument

shall be served within ten (10) days after the docketing

of the court’s determination of the original motion.

There shall be served with the notice of motion a

memorandum setting forth concisely the matters or

controlling decisions which counsel believes the court

has overlooked ....No oral argument shall be heard

unless the court directs that the matter shall be reargued

orally. No affidavits shall be filed by any party unless

directed by the court.” (emphasis added).

*2 A court must narrowly construe and strictly apply Local Rule 6.3 “so as to avoid duplicative rulings on previously considered issues and to prevent the Rule from being used as a substitute for appealing a final judgment.” Newman v. RCN Telecom Servs., 448 F.Supp.2d 556, 557 (S.D.N.Y.2006).
Further, a partial adjudication pursuant to Rule 54(b)2 requires Plaintiff to show “some danger of hardship or injustice through delay which would be alleviated by immediate appeal.” Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir.2005) (“Respect for
1

In re J.P. Morgan Chase Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

the historic federal policy against piecemeal appeals requires that a Rule 54(b) certification not be granted routinely[, and] should be used only in the infrequent harsh case where there exists.”) (internal citations and quotation marks omitted).

2

Fed.R.Civ.P. 54(b) provides in relevant part that “[a]ny

order or other form of decision ... which adjudicates

fewer than all the claims or the rights and liabilities of

fewer than all the parties shall not terminate the action

as to any of the claims or parties, and the order or other

form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties.”

in Illinois and Connecticut are not controlling for purposes of Local Rule 6.3. See, e.g., Pharr v. Evergreen Gardens, Inc., No. 03-cv-5520 (HB), 2004 U.S. Dist. LEXIS 3872, at *2 (S.D.N.Y. Mar. 11, 2004) (“[T]he cases upon which plaintiffs rely are not controlling law since all but two of the cases were decided by other circuit courts of appeal or district courts outside the Second Circuit.”); Herman Miller, Inc. v. Worth Capital, No. 97-cv-7878 (SAS), 1998 U.S. Dist. LEXIS 6275, at *1 (S.D.N.Y. May 4, 1998) (“The decision of a fellow district court is not a ‘controlling’ one for the purposes of Local Rule 6.3.”). I refuse to open the door to relitigation of the standing issue. Further, no manifest injustice will result from my May 30th Order since Lump Sum Plaintiffs are free to bring a separate action to recover damages. However, they are excluded from the certified class in this action.

III. DISCUSSION
Plaintiffs contend that reconsideration is appropriate and indeed “critical” here because the status of the Lump Sum participants is unclear. Specifically, Plaintiffs claim that reconsideration is justified for three reasons-(1) the Court overlooked the Second Circuit’s “controlling” decision in Esden v. Bank of Boston, 229 F.3d 154 (2d Cir.2000); (2) three cases decided after the May 30th Order and which Plaintiffs’ allege supports their position, and (3) the Court misapplied the “zone of interest” test discussed in the May 30th Order. Unfortunately for Plaintiffs, this Court will not grant them a second bite at the apple.
a. Reconsideration Pursuant to Local Rule 6.3 Plaintiffs contend that the Court’s May 30th Order is inconsistent with controlling law, particularly the Second Circuit’s decision in Esden v. Bank of Boston, 229 F.3d 154 (2d Cir.2000). The Court previously considered Esden and other cases in this Circuit and determined that while the Second Circuit has not yet decided the issue of participant standing with respect to persons who opted for lump sum payments, the cases in this Circuit support a determination that Aldoroty and Schomaker (and those similarly situated) are no longer ERISA “participants” eligible to receive a “benefit,” and thus, lack standing to proceed. See May 30th Order, at 4-6; Coan v. Kaufman, 457 F.3d 250, 255-56 (2d Cir.2006). Similarly, the Court’s interpretation and application of the “zone of interests” test articulated in Mullins v. Pfizer, 23 F.3d 663 (2d Cir.1994) was clear and will not be revisited. See May 30th Order, at 5-6. Aggressive litigation is sometimes commendable-this doesn’t fit the bill.
Nor do the recent cases presented by Plaintiffs weigh in favor of a different outcome for Aldoroty and Schomaker, because cases from the Seventh Circuit and district courts

b. Rule 54(b) Certification *3 Rule 54(b) certification is inappropriate in this instance because Plaintiffs have not shown that hardship or injustice from the delay will be alleviated by an immediate appeal here. Plaintiffs contend that this Court should direct the entry of final judgment as to the Lump Sum Plaintiffs to provide “some degree of certainty regarding their benefits” to “tens of thousands of Plan participants and beneficiaries.” Pls’ Mem. In Support of Mot. for Reconsideration, at 13. Although my decision to exclude the Lump Sum Plaintiffs from the certified class is “final,” Plaintiffs’ argument that “proceeding without appellate review is likely to confuse and mislead [the Lump Sum Plaintiffs]” is unpersuasive and does not support an exercise of my discretion in this instance. “Confusion”-which is expected in any pending litigation-does not rise to the level of “hardship” contemplated by Rule 54(b). See Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980) ( “Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.”).
IV. CONCLUSION
Because Plaintiffs have failed to identify any controlling law or factual matters put to the Court on the underlying motion that the Court demonstrably did not consider, and, in the alternative, because they have failed to establish any manifest injustice which would result if the May 30th Order stands, Plaintiffs’ motion for reconsideration is DENIED. Further, because Plaintiffs have not shown that without interlocutory review they face unjust hardship, Plaintiffs’ motion for certification pursuant to Rule 54(b) is denied.
2

In re J.P. Morgan Chase Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

The Clerk of the Court is instructed to close this motion and remove it from my doeket.
IT IS SO ORDERED.

Parallel Citations
41 Employee Benefits Cas. 1726
	  

3

 
 Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 1 of 29
CLOSED, CASREF, ECF, LEAD
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:06−cv−00732−DLC

Wilson v. J.P. Morgan Chase Retirement Plan et al Assigned to: Judge Denise L. Cote Referred to: Magistrate Judge Theodore H. Katz (Settlement) Member case: (View Member Case) Related Cases: 1:06−cv−03300−DLC
1:06−cv−01249−DLC
1:06−cv−03031−DLC
1:07−cv−07379−DLC
1:06−cv−04184−DLC Cause: 29:1132 E.R.I.S.A.−Employee Benefits
Plaintiff

Date Filed: 01/31/2006 Date Terminated: 07/15/2010 Jury Demand: Plaintiff Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Darrin Wilson individually and on behalf of all others similarly situated TERMINATED: 05/25/2006

represented by Curtis Victor Trinko Law Offices of Curtis V. Trinko, LLP 16 West 46th Street, Seventh Floor New York, NY 10036 212−490−9550 Fax: 212−986−0158 Email: ctrinko@trinko.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward W. Ciolko Barroway Topaz Kessler Meltzer &Check,LLP 280 King of Prussia Road Radnor, PA 19087 (610)−667−7706 Fax: (610)−667−7056 Email: eciolko@sbtklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph H. Meltzer Barroway Topaz Kessler Meltzer &Check, LLP (PA) 280 King of Prussia Road Radnor, PA 19087 (610)667−7706 x1210 Fax: (610) 667−7056 Email: jmeltzer@btkmc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph A. Weeden Barroway Topaz Kessler Meltzer &Check, LLP 280 King of Prussia Road Radnor, PA 19087 (610)−667−7706 Fax: (610)−667−7056 Email: jweeden@btkmc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard S.. Schiffrin , . Schiffrin &Barroway L.L.P.

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 2 of 29

280 King of Prussia Road Radnor, PA 19087 (610) 667−7706 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Perry Shapiro

represented by Amy C. Williams−Derry Keller Rohrback L.L.P 1201 3rd Avenue, Suite 3200 Seattle, WA 98101 (206)−623−1900 Fax: (206)−623−3384 Email: awilliams−derry@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Thomas Watt Kirby McInerney LLP 825 Third Avenue 16th Floor New York, NY 10022 (212) 699−1190 Email: awatt@kmslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph A. Weeden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter S Linden Kirby McInerney LLP 825 Third Avenue 16th Floor New York, NY 10022 (212) 371−6600 Fax: (212) 751−2540 Email: plinden@kmllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Steven Preminger Keller Rohrback L.L.P. (NYC) 770 Broadway 2nd Floor New York, NY 10003 (646) 495−6198 Fax: (646) 495−6197 Email: dpreminger@kellerrohrback.com ATTORNEY TO BE NOTICED

Edward W. Ciolko Barroway Topaz Kessler Meltzer &Check, LLP (PA) 280 King of Prussia Road Radnor, PA 19087 (610)−667−7706 Fax: (610)−667−7056 Email: eciolko@btkmc.com ATTORNEY TO BE NOTICED

Gretchen S. Obrist

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 3 of 29

Keller Rohrback L.L.P.(WA) 1201 Third Avenue Suite 3200 Seattle, WA 98101 (206) 623−1900 Fax: (206) 623−3384 Email: gobrist@kellerrohrback.com PRO HAC VICE ATTORNEY TO BE NOTICED

Karin B. Swope Keller Rohrback L.L.P.(WA) 1201 Third Avenue Suite 3200 Seattle, WA 98101 (206) 623−1900 Fax: (206) 623−3384 Email: kswope@kellerrohrback.com ATTORNEY TO BE NOTICED

Mark K. Gyandoh Barroway Topaz Kessler Meltzer &Check, LLP (PA) 280 King of Prussia Road Radnor, PA 19087 (610) 667.7706 Fax: (610) 667.7056 Email: mgyandoh@btkmc.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Neil Aldoroty

represented by Amy C. Williams−Derry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Thomas Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek W. Loeser Keller Rohrback L.L.P.(WA) 1201 Third Avenue Suite 3200 Seattle, WA 98101 (206) 224−7562 Fax: (206) 623−3384 Email: dloeser@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin M. Riley Keller Rohrback L.L.P 1201 3rd Avenue, Suite 3200 Seattle, WA 98101 (206) 623−1900 Fax: (206) 623−3384 Email: eriley@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph A. Weeden

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 4 of 29

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

Lynn Lincoln Sarko Keller Rohrback L.L.P.(WA) 1201 Third Avenue Suite 3200 Seattle, WA 98101 (206) 224−7552 Fax: (206) 623−3384 Email: lsarko@kellerrohrback.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gretchen S. Obrist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Karin B. Swope (See above for address) ATTORNEY TO BE NOTICED

Mark K. Gyandoh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff John J. Berotti

represented by Amy C. Williams−Derry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Thomas Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek W. Loeser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin M. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph A. Weeden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynn Lincoln Sarko (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 5 of 29

Plaintiff Annette Marie Falchetti

Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Steven Preminger (See above for address) ATTORNEY TO BE NOTICED
Edward W. Ciolko (See above for address) ATTORNEY TO BE NOTICED
Gretchen S. Obrist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karin B. Swope (See above for address) ATTORNEY TO BE NOTICED
Mark K. Gyandoh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy C. Williams−Derry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Thomas Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek W. Loeser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin M. Riley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph A. Weeden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynn Lincoln Sarko (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 6 of 29

David Steven Preminger (See above for address) ATTORNEY TO BE NOTICED

Edward W. Ciolko (See above for address) ATTORNEY TO BE NOTICED

Gretchen S. Obrist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Karin B. Swope (See above for address) ATTORNEY TO BE NOTICED

Mark K. Gyandoh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Terri Melli

represented by Amy C. Williams−Derry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Thomas Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph A. Weeden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Steven Preminger (See above for address) ATTORNEY TO BE NOTICED

Edward W. Ciolko (See above for address) ATTORNEY TO BE NOTICED

Gretchen S. Obrist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Karin B. Swope (See above for address) ATTORNEY TO BE NOTICED

Mark K. Gyandoh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 7 of 29

Plaintiff Norman J. Schomaker

represented by Amy C. Williams−Derry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Thomas Watt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edgar Pauk Edgar Pauk, Esq., 27 Eighth Avenue Brooklyn, NY 11217 (347)9529−4604 Email: pauk@tiac.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph A. Weeden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gretchen S. Obrist (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karin B. Swope (See above for address) ATTORNEY TO BE NOTICED
Mark K. Gyandoh (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Consolidated Plaintiff
Perry Shapiro on behalf of himself and on behalf of all others similarly situated TERMINATED: 05/25/2006

represented by Peter S Linden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant J.P. Morgan Chase Retirement Plan

represented by Jonathan K. Youngwood Simpson Thacher &Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212) 455−2000 Fax: (212) 455−2502

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 8 of 29

Email: jyoungwood@stblaw.com ATTORNEY TO BE NOTICED

Thomas C. Rice Simpson Thacher &Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212) 455−2000 Fax: (212) 455−2502 Email: trice@stblaw.com ATTORNEY TO BE NOTICED

Defendant
J.P. Morgan Chase Bank, N.A. TERMINATED: 05/25/2006

Defendant
J.P. Morgan Chase &Co. TERMINATED: 05/25/2006

represented by Thomas C. Rice (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Does 1−100

Defendant JPMC's Director of Human Resources

represented by Jonathan K. Youngwood (See above for address) ATTORNEY TO BE NOTICED

Thomas C. Rice (See above for address) ATTORNEY TO BE NOTICED

ADR Provider
Perry Shapiro TERMINATED: 05/25/2006

Date Filed 01/31/2006
01/31/2006 01/31/2006 01/31/2006 02/10/2006
02/28/2006

# Docket Text
1 COMPLAINT against J.P. Morgan Chase &Co., John Does, J.P. Morgan Chase Retirement Plan, J.P. Morgan Chase Bank, N.A.. (Filing Fee $ 250.00, Receipt Number 568944)Document filed by Darrin Wilson.(jeh, ) Additional attachment(s) added on 2/1/2006 (lb, ). (Entered: 02/01/2006)
SUMMONS ISSUED as to J.P. Morgan Chase &Co., John Does, J.P. Morgan Chase Retirement Plan, J.P. Morgan Chase Bank, N.A. (jeh, ) (Entered: 02/01/2006)
Case Designated ECF. (jeh, ) (Entered: 02/01/2006)
Magistrate Judge Kevin N. Fox is so designated. (jeh, ) (Entered: 02/01/2006)
2 AFFIDAVIT OF SERVICE of Summons and Complaint,. J.P. Morgan Chase &Co. served on 2/10/2006, answer due 3/2/2006; John Does served on 2/10/2006, answer due 3/2/2006; J.P. Morgan Chase Retirement Plan served on 2/10/2006, answer due 3/2/2006; J.P. Morgan Chase Bank, N.A. served on 2/10/2006, answer due 3/2/2006. Service was accepted by Dalia M. Perez, Legal Papers Served Office. Document filed by Darrin Wilson. (Trinko, Curtis) (Entered: 02/10/2006)
3 STIPULATION; the time for all defendants to answer, move, or otherwise respond to the complaint is extended until 4/17/2006. (Signed by Judge Lawrence M. McKenna on 2/24/06) (kco, ) (Entered: 02/28/2006)

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 9 of 29

03/13/2006 03/13/2006 03/13/2006 03/16/2006 03/24/2006 03/24/2006 03/24/2006 03/24/2006
04/05/2006
04/05/2006 04/13/2006 05/05/2006
05/08/2006 05/08/2006
05/08/2006
05/08/2006

4 MOTION to Consolidate Cases 06−1249 and for Entry of Pretrial Order No. 1. Document filed by Darrin Wilson. Return Date set for 4/14/2006 10:00 AM. (Trinko, Curtis) (Entered: 03/13/2006)
5 MEMORANDUM OF LAW in Support re: 4 MOTION to Consolidate Cases 06−1249 and for Entry of Pretrial Order No. 1.. Document filed by Darrin Wilson. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Trinko, Curtis) (Entered: 03/13/2006)
6 DECLARATION of Edward W. Ciolko in Support re: 4 MOTION to Consolidate Cases 06−1249 and for Entry of Pretrial Order No. 1.. Document filed by Darrin Wilson. (Attachments: # 1 Text of Proposed Pretrial Order No. 1# 2 Certificate of Service)(Trinko, Curtis) (Entered: 03/13/2006)
7 MEMORANDUM OF LAW in Support re: 4 MOTION to Consolidate Cases 06−1249 and for Entry of Pretrial Order No. 1. [Corrected]. Document filed by Darrin Wilson. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Certificate of Service)(Trinko, Curtis) (Entered: 03/16/2006)
8 CROSS MOTION to Consolidate Cases 06−1249. Document filed by Perry Shapiro, Perry Shapiro. (Attachments: # 1 Text of Proposed Order)(Linden, Peter) (Entered: 03/24/2006)
9 MEMORANDUM OF LAW in Support re: 8 CROSS MOTION to Consolidate Cases 06−1249. and in Response to Plaintiff Wilson's Amended Motion. Document filed by Perry Shapiro. (Linden, Peter) (Entered: 03/24/2006)
10 AFFIDAVIT of Peter S. Linden in Support re: 8 CROSS MOTION to Consolidate Cases 06−1249.. Document filed by Perry Shapiro. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Linden, Peter) (Entered: 03/24/2006)
11 AFFIDAVIT OF SERVICE of Notice of Cross−Motion, Memorandum, Affidavit, Proposed Order served on Schiffrin &Barroway LLP, J.P. Morgan Chase Legal Dept., Simpson Thacher &Bartlett LLP on March 24, 2006. Service was made by by FedEx or by Hand. Document filed by Perry Shapiro. (Linden, Peter) (Entered: 03/24/2006)
12 STIPULATION AND ORDER that the actions 06cv732 and 06cv1249 are consolidated purs. to FRCP 42(a) as further set forth in this order; they shall be referred to collectively as In re J.P. Morgan Chase Cash Balance Litigation, Master File no. 06cv732 the "Consolidated Action" or the "Cash Balance Action"; (Signed by Judge Harold Baer on 4/5/06) (dle, ) (Entered: 04/06/2006)
Set/Reset Hearings: Pretrial Conference set for 5/16/2006 10:00 AM before Judge Harold Baer. (dle, ) (Entered: 04/06/2006)
13 RULE 7.1 DISCLOSURE STATEMENT. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Certificate of Service)(Rice, Thomas) (Entered: 04/13/2006)
14 ENDORSED LETTER: addressed to Judge Harold Baer from Peter S. Linden dated 5/3/2006. ENDORSEMENT: I will adjorn to 5/31 your request but direct that in conference with one another you construct and bring with you a detailed−−on a short string−−a timetable through a trial month and we can adjust further if necessary as we proceed. (Signed by Judge Harold Baer on 5/5/2006) (lb, ) (Entered: 05/08/2006)
15 NOTICE of Motion of Plaintiffs To Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel. Document filed by Perry Shapiro. (Linden, Peter) (Entered: 05/08/2006)
16 FILING ERROR − DEFICIENT DOCKET ENTRY − (MISSING PDF PAGES) − MEMORANDUM OF LAW in Support re: 15 Notice (Other) Plaintiffs' Motion to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB(Linden, Peter) Modified on 5/9/2006 (gf, ). (Entered: 05/08/2006)
17 AFFIDAVIT of Peter S. Linden in Support re: 16 Memorandum of Law in Support,, 15 Notice (Other). Document filed by Perry Shapiro. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB(Linden, Peter) (Entered: 05/08/2006)
18 MEMORANDUM OF LAW in Support re: 15 Notice (Other) Plaintiffs' Motion to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB(Linden, Peter) (Entered: 05/08/2006)

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05/09/2006
05/22/2006 05/25/2006
05/25/2006 05/30/2006
05/30/2006
06/01/2006 06/01/2006 06/01/2006 06/02/2006 06/02/2006 06/13/2006 06/13/2006 06/14/2006 06/15/2006 06/15/2006

19 CERTIFICATE OF SERVICE of Notice of Motion of Plaintiffs to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel, Memorandum, and Affidavit served on Simpson Thacher &Bartlett LLP, J.P. Morgan Chase Legal Dept., Schiffrin &Barroway, LLP, Keller Rohrback LLP, Edgar Pauk on May 8, 2006. Service was made by Hand, Mail, or ECF. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB(Linden, Peter) (Entered: 05/09/2006)
20 RESPONSE re: 15 Notice (Other) to Plaintiffs' Motion to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, J.P. Morgan Chase Bank, N.A.. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB(Youngwood, Jonathan) (Entered: 05/22/2006)
21 CERTIFICATE OF SERVICE of Consolidated Class Action Complaint served on J.P. Morgan Chase Legal Dept., Simpson Thacher &Bartlett LLP on 5/25/2006. Service was made by Mail. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 05/25/2006)
22 CONSOLIDATED CLASS ACTION COMPLAINT against JPMC's Director of Human Resources, J.P. Morgan Chase Retirement Plan. Document filed by Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, Perry Shapiro. (Attachments: # 1)... Received in the night deposit box on 5/25/06 at 11:38 p.m..(sac, ) (Entered: 05/26/2006)
23 REPLY MEMORANDUM OF LAW re: 15 Notice (Other) of Motion of Plaintiffs to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel.. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 05/30/2006)
24 CERTIFICATE OF SERVICE of Reply Memorandum of Plaintiffs in Support of Motion to Consolidate J.P. Morgan Cash Balance Cases and to Appoint Co−Lead Counsel served on Simpson Thacher &Bartlett LLP and J.P. Morgan Chase Legal Department on 05/30/2006. Service was made by Hand and Mail. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 05/30/2006)
25 NOTICE OF APPEARANCE by Derek W. Loeser on behalf of Neil Aldoroty, John J. Berotti, Annette Marie Falchetti (Loeser, Derek) (Entered: 06/01/2006)
26 NOTICE OF APPEARANCE by Amy C. Williams−Derry on behalf of Neil Aldoroty, John J. Berotti, Annette Marie Falchetti (Williams−Derry, Amy) (Entered: 06/01/2006)
27 NOTICE OF APPEARANCE by Lynn Lincoln Sarko on behalf of Neil Aldoroty, John J. Berotti, Annette Marie Falchetti (Sarko, Lynn) (Entered: 06/01/2006)
28 NOTICE OF APPEARANCE by Erin M. Riley on behalf of Neil Aldoroty, John J. Berotti, Annette Marie Falchetti (Riley, Erin) (Entered: 06/02/2006)
29 MOTION for Joseph H. Meltzer and Edward W. Ciolko to Appear Pro Hac Vice. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In All Associated Cases.(db, ) (Entered: 06/07/2006)
30 ORDER granting 29 Motion for Joseph H. Meltzer and Edward W. Ciolko to Appear Pro Hac Vice . (Signed by Judge Harold Baer on 6/12/06) (jco, ) (Entered: 06/13/2006)
Transmission to Attorney Admissions Clerk. Transmitted re: 30 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (jco, ) (Entered: 06/13/2006)
31 MOTION for Joseph A. Weeden to Appear Pro Hac Vice. Document filed by Perry Shapiro. Proposed Order attached. (db, ) (Entered: 06/14/2006)
CASHIERS OFFICE REMARK on 30 Order on Motion to Appear Pro Hac Vice in the amount of $50.00, paid on 06/14/2006, Receipt Number 581652. (jd, ) (Entered: 06/15/2006)
32 ORDER granting 31 Motion for Joseph A. Weeden to Appear Pro Hac Vice . (Signed by Judge Harold Baer on 6/15/06) (dle, ) (Entered: 06/15/2006)

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06/15/2006 06/23/2006 06/26/2006 06/26/2006 06/26/2006 06/26/2006
07/06/2006 07/20/2006 07/20/2006
07/31/2006 07/31/2006

Transmission to Attorney Admissions Clerk. Transmitted re: 32 Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. (dle, ) (Entered: 06/15/2006)
33 CERTIFICATE OF SERVICE of (Corrected) Consolidated Class Action Complaint served on Simpson Thacher &Bartlett LLP, J.P. Morgan Chase Legal Department, Wechsler Harwood LLP, Gainey &McKenna on 6/23/06. Service was made by Mail and Email. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 06/23/2006)
34 (CORRECTED) AMENDED CONSOLIDATED CLASS ACTION COMPLAINT amending 1 Complaint, against J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources.Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Related document: 1 Complaint, filed by Darrin Wilson,. (Attachments: # 1 exhibits)(db, ) (Entered: 06/26/2006)
35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Return Date set for 8/3/2006 09:30 AM. (Attachments: # 1 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 06/26/2006)
36 MEMORANDUM OF LAW in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Appendix A# 2 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 06/26/2006)
37 AFFIDAVIT of Thomas C. Rice in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit A (Part 1)# 2 Exhibit A (Part 2) − Exhibit K (Part 1)# 3 Exhibit K (Part 2) − Exhibit L (Part 1)# 4 Exhibit L (Part 2) − Exhibit M (Part 1)# 5 Exhibit M (Part 2) − Exhibit O (Part 1)# 6 Exhibit O (Part 2)# 7 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 06/26/2006)
CASHIERS OFFICE REMARK on 32 Order on Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 06/21/2006, Receipt Number 582743. (jd, ) (Entered: 07/06/2006)
38 RESPONSE in Opposition re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Appendix Appendix of Unreported Authorities)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 07/20/2006)
39 DECLARATION of Amy Williams−Derry in Opposition re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit 1−Zelinsky Article 2000# 2 Exhibit 2−AARP Amicus Brief−Register v. PNC# 3 Exhibit 3−AARP Amicus Brief Cooper v. IBM# 4 Exhibit 4−Langbein excerpt# 5 Exhibit 5−Wall Street Journal Article 1998# 6 Exhibit 6−Wall Street Journal Article 99# 7 Exhibit 7−GOA Report# 8 Exhibit 8−H.R. Conf. Report# 9 Exhibit 9−Zelinsky article 2001)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 07/20/2006)
40 PRETRIAL SCHEDULING ORDER: Amended Pleadings due by 10/11/2006. Joinder of Parties due by 10/11/2006. Discovery due by 12/11/2006. Oral Argument set for 8/9/2006 10:00 AM before Judge Harold Baer. Pretrial Order due by 6/18/2007. So Ordered. (Signed by Judge Harold Baer on 7/31/06) (jco, ) (Entered: 08/01/2006)
41 PRETRIAL ORDER NO. 2: the Court designates the law firms as further set forth in said Order to act as Co−Lead Counsel for Plaintiffs and the Proposed Class in the Consolidated Action, with the responsibilities described on pgs 2−4 [marked 1−6]. (Signed by Judge Harold Baer on 7/28/06) (db, ) Modified on 8/1/2006 (db, ). (Entered: 08/01/2006)

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 12 of 29

08/03/2006 08/08/2006
08/10/2006 08/11/2006 08/11/2006 08/11/2006 08/11/2006 08/11/2006 08/18/2006 08/18/2006

42 REPLY MEMORANDUM OF LAW in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 08/03/2006)
43 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from David W. Loeser dated 8/7/06 re: Counsel writes to request to submit a supplemental brief not to exceed ten pages addressing the material on 8/16/06, the hearing on the motion to dismiss take place on 8/23/06. I trust you now understand how to approach the PTSO and realize that I have no problem with extending discovery so long as it does not impact on motion practice and my time to decide such motino and we keep our July 07 trial date. Furhter 10 pages on "new developments" due now by noon on 8/18 in my hands and agrument on the 23rd at 10:30 is fine. So Ordered. (Signed by Judge Harold Baer on 8/8/06) Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(jco, ) (Entered: 08/08/2006)
44 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Certify Class. Document filed by Perry Shapiro. Responses due by 10/20/2006 (Attachments: # 1 Plaintiffs' Memorandum In Support Of Motion For Class Certification# 2 Affidavit of Peter S. Linden# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) Modified on 8/11/2006 (kg, ). (Entered: 08/10/2006)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Peter S. Linden to RE−FILE Document 44 MOTION to Certify Class. ERROR(S): Filing Error of Attachments. Supporting documents must be filed separately. Event codes found under Responses and Replies. (kg) (Entered: 08/11/2006)
45 MOTION to Certify Class. Document filed by Perry Shapiro. Responses due by 10/20/2006 Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/11/2006)
46 MEMORANDUM OF LAW in Support re: 45 MOTION to Certify Class.. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/11/2006)
47 AFFIDAVIT of Peter S. Linden in Support re: 45 MOTION to Certify Class.. Document filed by Perry Shapiro. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/11/2006)
48 CERTIFICATE OF SERVICE of Plaintiffs' motion for class certification, supporting memorandum, supporting affidavit and exhibits served on Simpson Thacher &Bartlett LLP and J.P. Morgan Chase Legal Dept. on 08/10/2006. Service was made by Mail and Email. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/11/2006)
49 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 08/18/2006)
50 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/18/2006)

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08/18/2006 08/18/2006
08/29/2006 09/07/2006 09/08/2006 09/13/2006
10/05/2006 10/11/2006
10/16/2006 10/19/2006 10/20/2006
10/20/2006

51 AFFIDAVIT of Andrew T. Watt in Opposition re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by Perry Shapiro. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/18/2006)
52 CERTIFICATE OF SERVICE of Plaintiffs' supplemental memorandum of law in opposition to motion to dismiss, supporting affidavit and exhibits served on Simpson Thacher &Bartlett LLP and J.P. Morgan Chase Legal Dept. on 08/18/2006. Service was made by Mail, email and by hand. Document filed by Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Linden, Peter) (Entered: 08/18/2006)
Minute Entry for proceedings held before Judge Harold Baer : Motion Hearing held on 8/29/2006 re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Judge's decision reserved. (jar, ) (Entered: 08/31/2006)
53 NOTICE of Plaintiffs' Notice of Supplemental Authority in Opposition to Defendants' Motion to Dismiss re: 38 Response in Opposition to Motion,. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit 1)(Riley, Erin) (Entered: 09/07/2006)
54 TRANSCRIPT of proceedings (Motion) held on 8/23/06 before Judge Harold Baer. (ja, ) (Entered: 09/08/2006)
55 RESPONSE in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint. Response to Plaintiffs' Notice of Supplemental Authority in Oppositon to Defendants' Motion. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit A# 2 Exhibit B)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 09/13/2006)
56 NOTICE of Plaintiffs's Submission of Additional Supplemental Authority In Opposition To Defendants' Motion To Dismiss re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint.. Document filed by Perry Shapiro. (Linden, Peter) (Entered: 10/05/2006)
57 RESPONSE in Support re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint. (Defendants' Response to Plaintiffs' Submission of Additional Supplemental Authority). Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 10/11/2006)
58 RESPONSE in Opposition re: 35 MOTION to Dismiss Plaintiffs (Corrected) Consolidated Class Action Complaint. Reply re: Add. Authorities. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Ciolko, Edward) (Entered: 10/16/2006)
59 NOTICE of Withdrawal of Binu Mathew as Proposed Class Representative. Document filed by Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Williams−Derry, Amy) (Entered: 10/19/2006)
60 AFFIDAVIT of Jonathan K. Youngwood in Opposition re: 45 MOTION to Certify Class.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibits A−E# 2 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 10/20/2006)
61 MEMORANDUM OF LAW in Opposition re: 45 MOTION to Certify Class.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Appendices A−C# 2 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 10/20/2006)

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10/30/2006 11/01/2006 11/01/2006 11/10/2006 11/13/2006
11/13/2006 11/13/2006 11/13/2006 11/13/2006 11/13/2006

62 MEMORANDUM AND OPINION # 93876: that for the reasons set forth in this opinion, this motion to dismiss is granted in part and denied in part. the motion to dismiss is denied with respect to Count I, the age discrimination claim, and Counts IV−VI the notice claims, but Counts II and III are dismissed. The clerk of the court is instructed to close this motion and remove it from my docket. (Signed by Judge Harold Baer on 10/30/06) (dle, ) Modified on 10/31/2006 (rw, ). (Entered: 10/31/2006)
63 MOTION for Certificate of Appealability For Immediate Appeal of the October 30, 2006 Opinion and Order of the Court and For Expedited Briefing and Consideration. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 11/01/2006)
64 MEMORANDUM OF LAW in Support re: 63 MOTION for Certificate of Appealability For Immediate Appeal of the October 30, 2006 Opinion and Order of the Court and For Expedited Briefing and Consideration.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit A to Memorandum of Law# 2)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 11/01/2006)
65 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 45 MOTION to Certify Class.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Rice, Thomas) (Entered: 11/10/2006)
66 ENDORSED LETTER addressed to Judge Harold Baer from Thomas Rice dated 11/8/06 re: counsel for dfts request that the case be stayed. The 2d Circuit is less than enthusiastic about section 1292(b) certifications and so am I. Here the major issue will be decided in Hirt and I'm confident all my arguments will be pursued. That motion is denied − as for class certification and the three "notice claims" i.e., Count IV, V and VI they will proceed space. The central question as well as any discovery into the age discrimination issue and the case itself but for the allowed actions detailed above will be stayed for 60 days and then conferenced to see if anything makes going forward a reasonable course to follow.. (Signed by Judge Harold Baer on 11/13/06) Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(dle, ) (Entered: 11/13/2006)
67 MOTION to Strike Document No. 65 Supplemental Memorandum of Law in Opposition re Motion to Certify Class. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/13/2006)
68 MOTION to Strike Document No. 65 Supplemental Memorandum of Law in Opposition re Motion to Certify Class. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/13/2006)
69 REPLY MEMORANDUM OF LAW in Support re: 45 MOTION to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/13/2006)
70 REPLY MEMORANDUM OF LAW in Support re: 45 MOTION to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/13/2006)
71 REPLY AFFIDAVIT of Amy Williams−Derry in Support re: 45 MOTION to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/13/2006)

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11/17/2006
11/20/2006 11/20/2006
11/27/2006
11/27/2006 12/12/2006 12/19/2006 12/28/2006 12/29/2006 01/09/2007 03/16/2007
03/16/2007

72 REPLY MEMORANDUM OF LAW in Opposition re: 67 MOTION to Strike Document No. 65 Supplemental Memorandum of Law in Opposition re Motion to Certify Class., 68 MOTION to Strike Document No. 65 Supplemental Memorandum of Law in Opposition re Motion to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 11/17/2006)
73 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Harold Baer on 11/17/06) (dle, ) (Entered: 11/20/2006)
74 REPLY MEMORANDUM OF LAW in Support re: 68 MOTION to Strike Document No. 65 Supplemental Memorandum of Law in Opposition re Motion to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Text of Proposed Order Proposed Order)Filed In Associated Cases: 1:06−cv−00732−HB,1:06−cv−01249−HB,1:06−cv−03031−HB,1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 11/20/2006)
75 ENDORSED LETTER addressed to Judge Harold Baer from Thomas Rice dated 11/22/06 re: counsel for dfts request confirmation of their understanding that the dates in the 7/31/06 scheduling order as amended by the 8/8/06 order, regarding dispositive motions and pretrial orders are extended until further order of the court. The short answer is yes. The longer answer is that come our next PTC in January we can discuss new time lines if that seems worthwhile depending upon what if anything we know about this HIRT matter as well as the matters discussed in this letter. The next PTC will be 1/18/06 at 3:00 p.m.. (Signed by Judge Harold Baer on 11/27/06) (dle, ) (Entered: 11/28/2006)
Set/Reset Hearings: Pretrial Conference set for 1/18/2007 03:00 PM before Judge Harold Baer. (dle, ) (Entered: 11/28/2006)
76 ANSWER to Amended Complaint. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Related document: 34 Amended Complaint, filed by Perry Shapiro,, Neil Aldoroty,, John J. Berotti,, Norman J. Schomaker,, Annette Marie Falchetti,, Terri Melli,.(Youngwood, Jonathan) (Entered: 12/12/2006)
Minute Entry for proceedings held before Judge Harold Baer : Oral Argument held on 12/19/2006 re: 45 MOTION to Certify Class. filed by Perry Shapiro,. (pl, ) (Entered: 12/20/2006)
77 NOTICE of Submission and Filing Under Seal. Document filed by Perry Shapiro. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D − Part 1# 5 Exhibit D − Part 2 of 2# 6 Exhibit E − Part 1 of 2# 7 Exhibit E − Part 2 of 2# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H)(Linden, Peter) (Entered: 12/28/2006)
78 NOTICE of SUBMISSION. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit A# 2 TAB 1# 3 TAB 2# 4 TAB 3# 5 TAB 4# 6 TABS 5 AND 6)(Rice, Thomas) (Entered: 12/29/2006)
80 TRANSCRIPT of proceedings held on 12/19/06 before Judge Harold Baer. (es, ) (Entered: 01/09/2007)
81 AFFIDAVIT of Jonathan K. Youngwood (Part I of IV) in Opposition re: (45 in 1:06−cv−00732−HB, 28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit A− Part 1# 2 Exhibit A− Part 2# 3 Exhibit A− Part 3# 4 Exhibit A− Part 4# 5 Exhibit A− Part 5# 6 Exhibit B− Part 1# 7 Exhibit B− Part 2# 8 Exhibit B− Part 3# 9 Exhibit B− Part 4# 10 Exhibit B− Part 5# 11 Exhibit B− Part 6# 12 Exhibit B− Part 7# 13 Exhibit B− Part 8# 14 Exhibit B− Part 9)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 03/16/2007)
82 AFFIDAVIT of Jonathan K. Youngwood (Part II of IV) Exhibit C− Part 1 in Opposition re: (45 in 1:06−cv−00732−HB, 28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit C− Part 2# 2 Exhibit C− Part 3# 3 Exhibit C− Part 4# 4 Exhibit C− Part 5# 5 Exhibit C− Part 6# 6 Exhibit C− Part 7# 7 Errata C− Part 8# 8 Exhibit D− Part 1# 9 Exhibit D− Part 2# 10 Exhibit E−Part1# 11 Exhibit E−Part 2# 12 Exhibit E−Part 3# 13 Exhibit E−Part 4)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 03/16/2007)

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03/16/2007
03/16/2007
03/16/2007
03/16/2007
03/16/2007
03/23/2007 04/12/2007 04/16/2007 04/20/2007 04/24/2007 04/25/2007

83 AFFIDAVIT of Jonathan K. Youngwood (Part III of IV) Exhibit F− Part 1 in Opposition re: (45 in 1:06−cv−00732−HB, 28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit F− Part 2# 2 Exhibit F− Part 3# 3 Exhibit F− Part 4# 4 Exhibit G− Par1# 5 Exhibit G− Part 2# 6 Exhibit G− Part 3# 7 Exhibit G− Part 4# 8 Exhibit H# 9 Exhibit I− Part 1# 10 Exhibit I− Part 2# 11 Exhibit I− Part 3# 12 Exhibit I− Part 4# 13 Exhibit I− Part 5# 14 Exhibit I− Part 6)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 03/16/2007)
84 AFFIDAVIT of Jonathan K. Youngwood (Pat IV of IV)− Exhibit J in Opposition re: (28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 45 in 1:06−cv−00732−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Exhibit K# 2 Exhibit L− Part 1# 3 Exhibit L− Part 2# 4 Exhibit M− Part 1# 5 Exhibit M− Part 2# 6 Exhibit N# 7 Exhibit N# 8 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 03/16/2007)
85 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: (28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 45 in 1:06−cv−00732−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Appendix 1# 2 Appendix 2# 3 Appendix 3# 4 Appendix 4# 5 Appendix 5 (Part 1 of 2)# 6 Appendix 5 (PArt 2 of 2)# 7 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 03/16/2007)
86 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: (28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 45 in 1:06−cv−00732−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, Darrin Wilson, Perry Shapiro, Annette Falchetti, Annette Falchetti, Neil Aldoroty, Neil Aldoroty, John J. Berotti, John J. Berotti, Norman J. Schomaker, Norman J. Schomaker. (Attachments: # 1 Appendix 1# 2 Appendix 2# 3 Text of Proposed Order)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 03/16/2007)
87 DECLARATION of Amy Williams−Derry in Support re: (45 in 1:06−cv−00732−HB, 28 in 1:06−cv−03031−HB, 26 in 1:06−cv−01249−HB, 18 in 1:06−cv−03300−HB) MOTION to Certify Class.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, Darrin Wilson, Perry Shapiro, Annette Falchetti, Annette Falchetti, Neil Aldoroty, Neil Aldoroty, John J. Berotti, John J. Berotti, Norman J. Schomaker, Norman J. Schomaker. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Errata 15# 16 Exhibit 16)Filed In Associated Cases: 1:06−cv−00732−HB, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 03/16/2007)
88 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute* Discovery Dispute re:document. (Signed by Judge Harold Baer on 3/23/07) (jco) (Entered: 03/26/2007)
89 NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Douglas F. Eaton, for DISCOVERY. Magistrate Judge Kevin Nathaniel Fox no longer referred to the case. (laq) (Entered: 04/16/2007)
Mailed notice to the attorney(s) of record. (laq) (Entered: 04/16/2007)
90 MOTION for Karin B. Swope to Appear Pro Hac Vice. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker.(jco) (Entered: 04/24/2007)
91 MEMORANDUM AND ORDER: I hereby direct the defendants to submit to me, by 4/20/07, the disputed documents for my "in camera" review as further set forth in said Order. (Signed by Judge Douglas F. Eaton on 4/19/07) (db) (Entered: 04/25/2007)
CASHIERS OFFICE REMARK on 90 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 04/20/2007, Receipt Number 612919. (jd) (Entered: 04/25/2007)

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04/30/2007 92 ORDER granting 90 Motion for Karin B. Swope to Appear Pro Hac Vice. (Signed by Judge Harold Baer on 4/27/07) (db) (Entered: 04/30/2007)

04/30/2007 93 ORDER that for the reasons set forth herein, I sustain dfts' invocation of the attorney client privilege. None of the disputed documents comes within the fiduciary exception. I deny plaintiffs' motion to compel production. (Signed by Judge Douglas F. Eaton on 4/30/07) (dle) (Entered: 05/01/2007)

05/11/2007

94 NOTICE of Filing. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, Perry Shapiro, Annette Falchetti, Annette Falchetti, Neil Aldoroty, Neil Aldoroty, John J. Berotti, John J. Berotti, Norman J. Schomaker, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Williams−Derry, Amy) (Entered: 05/11/2007)

05/11/2007

95 NOTICE of Amended Filing re: (41 in 1:06−cv−03300−HB) Notice (Other), Notice (Other). Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker, Perry Shapiro, Annette Falchetti, Annette Falchetti, Neil Aldoroty, Neil Aldoroty, John J. Berotti, John J. Berotti, Norman J. Schomaker, Norman J. Schomaker. Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Loeser, Derek) (Entered: 05/11/2007)

05/17/2007

96 NOTICE of Filing of Opposition to Plaintiffs' Request for Consideration. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Attachments: # 1 Certificate of Service)Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Youngwood, Jonathan) (Entered: 05/17/2007)

05/21/2007 97 MEMORANDUM AND ORDER: have reviewed plaintiff's 5/11/07 letter and defendants 5/17/07 letter. I have reconsidered my 4/30/07 Memorandum and Order, and I adhere to it. (Signed by Judge Douglas F. Eaton on 5/21/07) Copies Mailed by Chambers.(db) (Entered: 05/22/2007)

05/30/2007

98 MEMORANDUM AND OPINION # 94720: that certification is granted to the class with respect to the notice claims − i.e., Counts IV, V, and VI, but only with respect to the class claims that stem from the JPMC Plan as of 1/1/02 and excluding those individuals who have already received their lump sum benefit; certification is granted to the class with respect to the age discrimination claim beginning 1/1/89, however, because Hirt v. The Equitable Ret. Plan for Employees Managers &Agents, no. 06cv4757 is currently sub judice before the Second Circuit and since that decision will likely be dispositive of the age discrimination issue, I am reserving the right to revisit this issue following that decision; plaintiffs Berotti, Falchetti, Melli, and Shapiro are appointed class representatives and the law firm Schiffrin &Barroway, LLP, Kirby, McInerney &Squire, LLP and Keller Rohrback LLP are appointed class counsel and will abide my order of 7/28/06; discovery may proceed but it is restricted with respect to the age discrimination claim to the period 1/1/02 and thereafter; the parties will prepare a proposed joint pretrial scheduling order and bring it to a pretrial conference in chambers on 6/14/07 at 3:00 p.m.; the clerk of court is instructed to close this motion and remove it from my docket. (Signed by Judge Harold Baer on 5/30/07) (dle) Modified on 6/1/2007 (rw). Modified on 6/6/2007 (Lewis, Diahan). Modified on 6/6/2007 (Lewis, Diahan). (Entered: 05/31/2007)

05/30/2007

Set/Reset Hearings: Pretrial Conference set for 6/14/2007 03:00 PM before Judge Harold Baer. (dle) (Entered: 05/31/2007)

06/14/2007

99 MOTION for Reconsideration and Clarification. Document filed by Neil Aldoroty, Norman J. Schomaker, Neil Aldoroty, Neil Aldoroty, Norman J. Schomaker, Norman J. Schomaker.Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Swope, Karin) (Entered: 06/14/2007)

06/14/2007 100 MEMORANDUM OF LAW in Support re: (44 in 1:06−cv−03300−HB) MOTION for Reconsideration.. Document filed by Neil Aldoroty, Norman J. Schomaker, Neil Aldoroty, Neil Aldoroty, Norman J. Schomaker, Norman J. Schomaker. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Swope, Karin) (Entered: 06/14/2007)

06/15/2007 101 PRETRIAL SCHEDULING ORDER #2: The parties do not consent to proceed before a US Magistrate for all purposes, pursuant to 28 USC 636(c) and FRCP 73. All discovery, except expert, is due by 12/20/2007. Disclosure of expert testimony due by 1/31/2008. All Expert Discovery due by 3/31/2008. Dispositive Motions due by 5/30/2008, allowing 30 days for opposition to the motion and 15 days for reply. Joint Pretrial Order due by 8/15/2008. Jury Trial to be held, Ready for Trial by 9/2008. (Signed by Judge Harold Baer on 6/14/2007) (jar) (Entered: 06/18/2007)

06/20/2007 102 ENDORSED LETTER addressed to Jasmine Elwick from Karin B. Swope dated 6/19/07 re: Counsel writes on behalf of plaintiff to request permission to file their reply brief on or before 7/12/07.

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ENDORSEMENT: Your partriotism is praiseworthy but since I told you my general view on such motions at the conference let's not draw this litigation, already ling, to interminable lenghts July 9 will provide time for plenty of fireworks time. So Ordered., Set Deadlines/Hearing as to 99 MOTION for Reconsideration and Clarification: Replies due by 7/9/2007. (Signed by Judge Harold Baer on 6/20/07) (jco) (Entered: 06/21/2007)
06/26/2007 103 TRANSCRIPT of proceedings held on 4/27/07 before Judge Harold Baer. (jbe) (Entered: 06/26/2007)
06/28/2007 104 MEMORANDUM OF LAW in Opposition re: 99 MOTION for Reconsideration and Clarification.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Certificate of Service)(Rice, Thomas) (Entered: 06/28/2007)
07/09/2007 105 REPLY MEMORANDUM OF LAW in Support re: 99 MOTION for Reconsideration and Clarification.. Document filed by Neil Aldoroty, Norman J. Schomaker. (Linden, Peter) (Entered: 07/09/2007)
07/25/2007 106 TRANSCRIPT of proceedings held on 4/27/07 before Judge Harold Baer. (jbe) (Entered: 07/25/2007)
07/31/2007 107 OPINION &ORDER # 94984: because plaintiffs have failed to identify any controlling law or factual matters put to the Court on the underlying motion that the Court demonstrably did not consider, and, in the alternative, because they have failed to establish any manifest injustice which would result if the May 30th Order stands, plaintiffs' 99 MOTION for Reconsideration and Clarification is DENIED. Further, because plaintiffs have not shown that without interlocutory review they face unjust hardship, plaintiff's motion for certification pursuant to Rule 54(b) is DENIED. The Clerk of the Court is instructed to close this motion and remove it from my docket. (Signed by Judge Harold Baer on 7/31/07) (db) Modified on 8/2/2007 (rw). (Entered: 07/31/2007)
09/28/2007 108 NOTICE of CHANGE OF LAW FIRM NAME. Document filed by Perry Shapiro, Perry Shapiro. Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Linden, Peter) (Entered: 09/28/2007)
12/07/2007 109 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE of Submission. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) Modified on 12/12/2007 (lb). (Entered: 12/07/2007)
12/10/2007 110 NOTICE of Submission AMENDED re: 109 Notice (Other). Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) (Entered: 12/10/2007)
12/12/2007 111 ENDORSED LETTER addressed to Judge Harold Baer from Keller Rohrback L.L.P. dated 12/7/2007 re: We request guidance on whether the Court's certification of Plaintiffs' notice claims relates to the Plan as in effect from January 1, 2002, or whether certification of the notice claims is commensurate with the age discrimination claim, and has been granted from the period January 1, 1989 to the present. ENDORSEMENT: The notice claims as per the May 30th order granted class certification (on notice claims) from 2002 − a simple telephone call or even just a little review of your note might have come to that conclusion − Sorry for any inconvenience. (Signed by Judge Harold Baer on 12/12/2007) (jmi) (Entered: 12/13/2007)
12/13/2007 112 NOTICE of Submission. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) (Entered: 12/13/2007)
12/26/2007 113 ENDORSED LETTER addressed to Judge Harold Baer from Counsel at Keller Rohrback, L.L.P dated 12/13/07 re: Counsel for Plaintiffs request the Court's guidance on timing for proceeding with discovery related to the certified age discrimination claim for the period 1/1/89 through 12/31/01. ENDORSEMENT: Denied. (Signed by Judge Harold Baer on 12/26/07) (tro) (Entered: 12/26/2007)
01/25/2008 114 STIPULATION AND ORDER REGARDING SCHEDULING ORDER NO. 2: Plaintiffs and Defendants stipulate that the Scheduling Order be slightly modified as follows: Disclosure of expert testimony due by 2/7/08. Disclosure of expert testimony intended to contradict or rebut the subject matter of other testimony due by 3/4/08. (Signed by Judge Harold Baer on 1/25/08) Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(tro) (Entered: 01/28/2008)
03/11/2008 115 NOTICE of Submission. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) (Entered: 03/11/2008)

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03/17/2008 116 ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Amy William−Derry, Peter Linden, Edward Ciolko, Edgar Pauk, Esq. dated 3/10/08 re: the parties jointly write to update the Court of the status of this litigation, inform the Court that the Second Circuit recently scheduled oral argument in Hirt v. The Equitable Ret. Plan of Employees, Manager &Agents, No. 06cv4757 ("Hirt") for the week of 4/22/08, and to jointly requests a stay of this action pending the Second Circuit decision in Hirt. ENDORSEMENT: While I know and appreciate how much work you have done in this case, the case is over two years old, and by next January it will be on my three−year list a no−no at least for me. I also have great respect and admiration for the Second Circuit, but several cases of mine were argued last year, and there is no sign of a decision SOOO I will add this matter to my very short suspense calendar, and at the end of a year without word, (March 15, 2009) from the Circuit it will be dismissed without prejudice or motions fully briefed will be due 4/30/09. Joint Pretrial Order due by 7/10/2009 and we will try the case in early September. It is my hope and Im sure yours that the Hirt decision will come down before you notify me. Please notify me on or before 3/15 if there is a decision, and if not your choice of how to proceed. (Signed by Judge Harold Baer on 3/15/08) (pl) (Entered: 03/17/2008)
07/11/2008 117 NOTICE OF CHANGE OF ADDRESS by Peter S Linden on behalf of all plaintiffs. New Address: Kirby McInerney LLP., 825 Third Avenue, 16th Floor, New York, New York, USA 10022, 212−371−6600. Filed In Associated Cases: 1:06−cv−00732−HB−DFE, 1:06−cv−01249−HB, 1:06−cv−03031−HB, 1:06−cv−03300−HB(Linden, Peter) (Entered: 07/11/2008)
09/26/2008 118 NOTICE OF CASE REASSIGNMENT to Judge Denise L. Cote. Judge Harold Baer is no longer assigned to the case. (rdz) (Entered: 09/30/2008)
10/03/2008 119 SCHEDULING ORDER: That a pretrial conference is scheduled for October 24, 2008 at 3:30 p.m. in Courtroom 11B, 500 Pearl Street. IT IS FURTHER ORDERED that the conference must be attended by the attorney who will be principle trial counsel for each party. (Signed by Judge Denise L. Cote on 10/3/2008) Filed In Associated Cases: 1:06−cv−00732−DLC−DFE, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(rw) Modified on 10/6/2008 (rw). (Entered: 10/03/2008)
10/21/2008 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli.(Williams−Derry, Amy) (Entered: 10/21/2008)
10/21/2008 121 MEMORANDUM OF LAW in Support re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Williams−Derry, Amy) (Entered: 10/21/2008)
10/21/2008 122 DECLARATION of John J. Berotti in Support re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Williams−Derry, Amy) (Entered: 10/21/2008)
10/21/2008 123 DECLARATION of Annette M. Falchetti in Support re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Williams−Derry, Amy) (Entered: 10/21/2008)
10/21/2008 124 DECLARATION of Amy Williams−Derry in Support re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, Part 1, # 6 Exhibit 4, Part 2, # 7 Exhibit 5, # 8 Exhibit 6, Part 1, # 9 Exhibit 6, Part 2, # 10 Exhibit 6, Part 3, # 11 Exhibit 6, Part 4, # 12 Exhibit 6, Part 5, # 13 Exhibit 6, Part 6, # 14 Exhibit 6, Part 7, # 15 Exhibit 7, # 16 Exhibit 8, # 17 Exhibit 9, # 18 Exhibit 10, Part 1, # 19 Exhibit 10, Part 2, # 20 Exhibit 10, Part 3, # 21 Exhibit 10, Part 4)(Williams−Derry, Amy) (Entered: 10/21/2008)
10/23/2008 125 MOTION to Dismiss with Prejudice Count I of Plaintiffs' (Corrected) Consolidated Class Action Complaint. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Return Date set for 11/14/2008 at 09:30 AM. (Attachments: # 1 Text of Proposed Order)(Rice, Thomas) (Entered: 10/23/2008)
10/23/2008 126 MEMORANDUM OF LAW in Support re: 125 MOTION to Dismiss with Prejudice Count I of Plaintiffs' (Corrected) Consolidated Class Action Complaint. MOTION to Dismiss with Prejudice Count I of Plaintiffs' (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Rice, Thomas) (Entered: 10/23/2008)
10/23/2008 127 DECLARATION of Thomas C. Rice in Support re: 125 MOTION to Dismiss with Prejudice Count I of Plaintiffs' (Corrected) Consolidated Class Action Complaint. MOTION to Dismiss with Prejudice Count I of Plaintiffs' (Corrected) Consolidated Class Action Complaint.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (Rice, Thomas) (Entered: 10/23/2008)

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10/29/2008 128 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Kevin Nathaniel Fox. (Signed by Judge Denise L. Cote on 10/29/08) Filed In Associated Cases: 1:06−cv−00732−DLC−DFE, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tro) (Entered: 10/29/2008)

10/29/2008 129 SCHEDULING ORDER: The parties are instructed to contact the chambers of Magistrate Judge Kevin N. Fox prior to October 31, 2008 in order to pursue settlement discussions under his supervision. The Joint Pretrial Order for the 2002 and 2005 class certified claims is due by 1/30/2009. Final Pretrial Conference set for 2/13/2009 at 02:00 PM in Courtroom 11B, 500 Pearl Street, New York, NY 10007 before Judge Denise L. Cote. Trial set for 3/2/2009 at 09:30 AM before Judge Denise L. Cote. The procedures as set forth in this Order shall govern the conduct of the trial. (Signed by Judge Denise L. Cote on 10/29/08) Filed In Associated Cases: 1:06−cv−00732−DLC−DFE, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tro) (Entered: 10/29/2008)

10/30/2008 130 ORDER: that the parties are instructed to contact the Chambers of Magistrate Judge Eaton immediately in order to pursue settlement discussions under his supervision. (Signed by Judge Denise L. Cote on 10/30/2008) (tve) (Entered: 10/30/2008)

10/30/2008 131 AMENDED ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Douglas F. Eaton. (Signed by Judge Denise L. Cote on 10/30/2008) (tve) (Entered: 10/30/2008)

11/05/2008 132 MEMORANDUM OF LAW in Opposition re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 11/05/2008)

11/05/2008 133 AFFIDAVIT of Thomas C. Rice in Opposition re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 11/05/2008)

11/05/2008 139 TRANSCRIPT of proceedings held on October 24, 2008 before Judge Denise L. Cote. (ad) (Entered: 12/29/2008)

11/11/2008 134 NOTICE OF APPEARANCE by David Steven Preminger on behalf of Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli (Preminger, David) (Entered: 11/11/2008)

11/13/2008 135 REPLY to Response to Motion re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Appendix)(Williams−Derry, Amy) (Entered: 11/13/2008)

11/13/2008 136 DECLARATION of Amy Williams−Derry in Support re: 120 MOTION to Amend/Correct 98 Memorandum &Opinion,,,,,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Williams−Derry, Amy) (Entered: 11/13/2008)

12/03/2008 137 MOTION for Gretchen S. Obrist to Appear Pro Hac Vice. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker.(dle) (Entered: 12/05/2008)

12/05/2008 138 ORDER: defendants' October 23, 2008 motion for partial judgment on the pleadings is granted and Count I of the Complaint is dismissed with prejudice. ORDER granting (125) Motion to Dismiss in case 1:06−cv−00732−DLC−DFE. (Signed by Judge Denise L. Cote on 12/4/08) Filed In Associated Cases: 1:06−cv−00732−DLC−DFE, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(db) (Entered: 12/05/2008)

12/08/2008

CASHIERS OFFICE REMARK on 137 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 12/03/2008, Receipt Number 671334. (jd) (Entered: 12/08/2008)

12/17/2008

Minute Entry for proceedings held before Magistrate Judge Douglas F. Eaton: Settlement Conference held on 12/17/2008. The parties are unable to reach any settlement. (mro) (Entered: 12/18/2008)

12/19/2008

CASE NO LONGER REFERRED to Magistrate Judge Douglas F. Eaton. I hereby close the above Order of Reference for magistrate judge statistical purposes. This case remains open. Reason: I held a settlement conference on 12/17/08. The parties are unable to reach any settlement. Associated Cases: 1:06−cv−00732−DLC−DFE, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(ae) (Entered: 12/30/2008)

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01/06/2009

***DELETED DOCUMENT. Deleted document number 141 ORDER. The document was incorrectly filed in this case. (rw) (Entered: 01/07/2009)

01/06/2009

***DELETED DOCUMENT. Deleted document number 140 Opinion and Order. The document was incorrectly filed in this case. (js) (Entered: 01/15/2009)

01/06/2009 144 OPINION AND ORDER: #96918. Plaintiffs' October 21, 2008 motion to amend class certification is denied with respect to the 1989 Notice Claims and granted with respect to the inclusion of former employees who have received lump−sum payouts of their retirement benefits. The May 2007 Order is hereby amended in accordance with this Opinion. All current deadlines in this matter remain in place. So Ordered. (Signed by Judge Denise L. Cote on 1/6/09) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(js) (Entered: 01/15/2009)

01/07/2009 141 MEMO ENDORSEMENT granting (137) Motion for Gretchen S. Obrist to Appear Pro Hac Vice in case 1:06−cv−00732−DLC. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 1/6/09) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tro) (Entered: 01/07/2009)

01/07/2009

Transmission to Attorney Admissions Clerk. Transmitted re: (55 in 1:06−cv−03300−DLC, 65 in 1:06−cv−03031−DLC, 63 in 1:06−cv−01249−DLC, 141 in 1:06−cv−00732−DLC) Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tro) (Entered: 01/07/2009)

01/12/2009 142 NOTICE of Firm Name Change. Document filed by Terri Melli. (Meltzer, Joseph) (Entered: 01/12/2009)

01/12/2009 143 NOTICE of Firm Name Change. Document filed by Terri Melli. (Ciolko, Edward) (Entered: 01/12/2009)

01/26/2009 145 ENDORSED LETTER addressed to Judge Denise L. Cote from Amy Williams−Derry and Jonathan K. Youngwood dated 1/23/09 re: Counsel requests that the January 30 Pretrial Order deadline be extended by one week, to February 6, 2009. ENDORSEMENT: Plaintiffs' submission is due January 30, 2009, at the latest. The one week extension of the Pretrial Order is granted. (Signed by Judge Denise L. Cote on 1/26/09) (mme) Modified on 1/28/2009 (mme). (Entered: 01/26/2009)

02/02/2009 146 PRELIMINARY ORDER RELATED TO DISMISSAL PROCEEDINGS: It is hereby stipulated and agreed by and between the parties that on or before February 27, 2009, plaintiffs shall file with the Court a motion to approve the voluntary dismissal provided for in the Stipulation, as set forth herein. Any response by Defendants shall be filed by 3/13/2009. A hearing shall be scheduled for March 25, 2009 at 2:30 p.m. (Signed by Judge Denise L. Cote on 2/2/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(jpo) (Entered: 02/02/2009)

02/03/2009 147 NOTICE OF CHANGE OF ADDRESS by Edgar Pauk on behalf of all plaintiffs. New Address: Edgar Pauk, 27 Eighth Avenue, Park Slope, Brooklyn, New York, USA 11217, 347−529−4604. (Pauk, Edgar) (Entered: 02/03/2009)

02/27/2009 148 MOTION for Approval of Dismissal of Certified Claims. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. Return Date set for 3/25/2009 at 02:30 PM.(Ciolko, Edward) (Entered: 02/27/2009)

02/27/2009 149 MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Attachments: # 1 Exhibit A)(Ciolko, Edward) (Entered: 02/27/2009)

03/12/2009 150 ENDORSED LETTER addressed to Judge Denise L. Cote from Jonathan K. Youngwood dated 3/12/2009 re: Request permission to electronically file the affidavit, without exhibits, and file a hard copy of the affidavit with the referenced. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 3/12/2009) (jpo) (Entered: 03/12/2009)

03/13/2009 151 RESPONSE in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 03/13/2009)

03/13/2009 152 AFFIDAVIT of Ian H. Altman in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Attachments: # 1 Exhibit)(Rice,

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 22 of 29
Thomas) (Entered: 03/13/2009)
03/13/2009 153 AFFIDAVIT of Edward L. McGann (Exhibits filed in hard copy pursuant to document #150) in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 03/13/2009)
03/13/2009 156 AFFIDAVIT of Edward L. McGann. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. (hard copy filed purs to Order dated 3/12/09, docmt #150) (djc) (Entered: 03/19/2009)
03/13/2009 157 AFFIDAVIT of Edward L. McGann in Support re: 148 MOTION for Approval of Dismissal of Certified Claims. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources.(hard copy filed purs to Order dated 3/12/09, docmt #150); (received in night dep. on 3/13/09 at 10:57 p.m.) (djc) (Entered: 03/19/2009)
03/17/2009 154 ENDORSED LETTER addressed to Judge Denise L. Cote from Amy Williams−Derry dated 3/16/2009 re: Plaintiffs request the Court's permission to file a short reply to correct some misstatements in Defendant's Response, and to point out Plaintiffs' disagreement with certain issues Defendants raised. Plaintiff will electronically file this reply by March 20, 2009. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 3/17/2009) (jfe) (Entered: 03/18/2009)
03/18/2009 155 ORDER: It is hereby ORDERED that, should the Court find a hearing necessary to consider preliminary approval of the voluntary dismissal, such a hearing shall occur on April 1, 2009 at 2:00 p.m. There shall be no hearing on March 25. (Signed by Judge Denise L. Cote on 3/18/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(jfe) (Entered: 03/18/2009)
03/20/2009 158 REPLY MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) (Entered: 03/20/2009)
03/20/2009 159 DECLARATION of Amy Williams−Derry in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) (Entered: 03/20/2009)
04/15/2009 161 TRANSCRIPT of proceedings held on 4/1/2009 before Judge Denise L. Cote. (jmi) (Entered: 04/23/2009)
04/20/2009 160 ENDORSED LETTER addressed to Judge Denise L. Cote from Peter S. Linden dated 4/16/09 re: The parties request a telephone conference. ENDORSEMENT: Granted. A conference call will be held on 4/22/09 at noon. (Telephone Conference set for 4/22/2009 at 12:00 PM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 4/20/09) (db) (Entered: 04/20/2009)
04/29/2009 162 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Attachments: # 1 Exhibit A: Revised Notice)(Williams−Derry, Amy) (Entered: 04/29/2009)
05/01/2009 163 RESPONSE re: 162 Memorandum of Law in Support of Motion, 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 05/01/2009)
05/01/2009 164 ENDORSED LETTER addressed to Judge Denise Cote from Amy William Derry dated 4/29/2009 re: Enclosed please find two courtesy copies of plaintiffs' supplemental memorandum in support of voluntary dismissal of certified claims, with revised proposed notice to class members attached as Ex A. ENDORSEMENT: The revised notice is approved Chambers will contact counsel regarding a minor editing issue. Counsel shall submit a proposed schedule for the distribution, objections, and hearing. (Signed by Judge Denise L. Cote on 5/1/2009) (jpo) (Entered: 05/01/2009)
05/07/2009 165 ENDORSED LETTER addressed to Judge Denise Cote from Amy Williams−Derry dated 5/6/2009 re: Pursuant to your Memo Endorsement dated May1, 2009, the parties have conferred on a proposed schedule for distributing class notice, filing any objections, and setting a final hearing for the pending voluntary dismissal. The parties respectfully request that the Court approve the following schedule: Plaintiffs to post notice &associated materials to website: by May 15, 2009; Plaintiffs to cause notice to be posted on PR Newswire: by June 1, 2009; Defendants to complete mailing and distribution of notice (via U.S. Mail, email, or interoffice mail): by June 5, 2009; Objections to be postmarked, filed,

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 23 of 29
or faxed: by July 6, 2009; and Final approval hearing: July 30, 2009 at 11:00 am. ENDORSEMENT: SO ORDERED. (Signed by Judge Denise L. Cote on 5/7/2009) (jmi) (Entered: 05/07/2009)
05/29/2009 166 NOTICE OF CHANGE OF ADDRESS by David Steven Preminger on behalf of Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. New Address: Keller Rohrback L.L.P. (New York office), 770 Broadway, Second Floor, New York, New York, USA 10003, (646) 495−6198. (Preminger, David) (Entered: 05/29/2009)
07/02/2009 167 ENDORSED LETTER addressed to Judge Denise L. Cote from Amy Williams−Derry dated 6/18/09 re: If Defendants do not so stipulate, Plaintiffs propose filing a motion seeking leave to amend by July 20, 2009. ENDORSEMENT: Granted. (Amended Pleadings due by 7/20/2009.) (Signed by Judge Denise L. Cote on 7/2/09) (db) (Entered: 07/02/2009)
07/13/2009 168 ANSWER TO OPINION AND ORDER. (Docmt filed by Annie Scott−Gray) (djc) (Entered: 07/13/2009)
07/13/2009 169 Answer to Opinion. (Docmt filed by Patricia Raysor). (djc) (Entered: 07/13/2009)
07/13/2009 170 Answer to Opinion &Order. (docmt filed by Sylvia Scott−Daniels) (djc) (Entered: 07/13/2009)
07/16/2009 171 MOTION to Docket Opposition to Plaintiffs' Motion for Voluntary Dismissal of Certified Class Claims. Filed by Melissa Y. Carr. (ae) Modified on 7/17/2009 (ae). (Entered: 07/17/2009)
07/20/2009 172 ENDORSED LETTER addressed to Judge Denise Cote from Peter S. Linden dated 7/17/09 re: counsel for plaintiff's respectfully request the opportunity to submit these class member objections/responses to the Court along with a supplemental submission from plaintiffs responding, as necessary, to these papers. We ask that the Court allow us until July 23, 2009 to make this submission. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 7/20/09) (pl) (Entered: 07/20/2009)
07/20/2009 173 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for leave to file an Amended Consolidated Class Action Complaint. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker.(Williams−Derry, Amy) Modified on 7/21/2009 (KA). (Entered: 07/20/2009)
07/20/2009 174 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 173 MOTION for leave to file an Amended Consolidated Class Action Complaint. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Williams−Derry, Amy) Modified on 7/21/2009 (KA). (Entered: 07/20/2009)
07/20/2009 175 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Amy Williams−Derry in Support re: 173 MOTION for leave to file an Amended Consolidated Class Action Complaint. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Williams−Derry, Amy) Modified on 7/21/2009 (KA). (Entered: 07/20/2009)
07/21/2009 176 MOTION to Amend/Correct 1 Complaint,. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti.(Williams−Derry, Amy) (Entered: 07/21/2009)
07/21/2009 177 MEMORANDUM OF LAW in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Williams−Derry, Amy) (Entered: 07/21/2009)
07/21/2009 178 DECLARATION of Amy Williams−Derry in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, # 3 Exhibit 1, # 4 Exhibit 1, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3)(Williams−Derry, Amy) (Entered: 07/21/2009)
07/21/2009 179 ORDER. The parties shall be prepared to address the motion for leave to amend at the July 30 conference. If necessary, a schedule will be set at the conference for the submission of the remainder of the briefing on this motion. (Signed by Judge Denise L. Cote on 7/21/09) (djc) (Entered: 07/22/2009)
07/22/2009 180 AFFIDAVIT OF SERVICE on 7/20/2009. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/22/2009)
07/23/2009 181 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/23/2009)

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07/23/2009 182 DECLARATION of Amy Williams−Derry in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/23/2009)
07/23/2009 183 DECLARATION of Peter S. Linden in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit A−L, # 2 Exhibit M−R, # 3 Exhibit S−MM)(Linden, Peter) (Entered: 07/23/2009)
07/24/2009 184 CERTIFICATE OF SERVICE on 7/23/2009. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/24/2009)
07/24/2009 185 RESPONSE re: 181 Memorandum of Law in Support of Motion . Defendants' Response to Plaintiffs' Second Supplemental Memorandum in Support of Voluntary Dismissal of Certified Notice Claims. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 07/24/2009)
07/24/2009 186 AFFIDAVIT of Daniela Nese re: 185 Response,. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 07/24/2009)
07/28/2009 187 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/28/2009)
07/28/2009 188 DECLARATION of Peter S. Linden in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit NN, # 2 Exhibit OO, # 3 Exhibit PP, # 4 Exhibit QQ)(Linden, Peter) (Entered: 07/28/2009)
07/28/2009 189 DECLARATION of Amy Williams−Derry in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit 1)(Linden, Peter) (Entered: 07/28/2009)
07/28/2009 190 CERTIFICATE OF SERVICE on 07/28/2009. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/28/2009)
07/29/2009 191 CERTIFICATE OF SERVICE of Plaintiffs' Second Supplemental Memorandum in Support of Voluntary Dismissal of Certified Notice of Claims, dated July 23, 2009; Declaration of Amy Williams−Derry, dated July 23, 2009; Declaration of Peter Linden, dated July 23, 2009; Defendants' Response to Plaintiffs' Second Supplemental Memorandum in Support of Voluntary Dismissal of Certified Notice Claims, dated July 24, 2009; and Affidavit of Daniela Nese, dated July 24, 2009 served on David Martin on July 27, 2009. Service was made by email. Document filed by Perry Shapiro, John J. Berotti, Annette Marie Falchetti, Terri Melli. (Williams−Derry, Amy) (Entered: 07/29/2009)
07/29/2009 192 AFFIDAVIT of Daniela Nese (Supplemental) in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Rice, Thomas) (Entered: 07/29/2009)
07/30/2009 193 NOTICE of Additional Submission re: 183 Declaration in Support of Motion,. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 07/30/2009)
08/04/2009 194 ORDER: that defendants' opposition is due by August 14, 2009. Any reply is due by September 4, 2009. At the time any reply is filed, the plaintiffs shall provide two courtesy copies of all motion papers to Chambers by delivering them to the Courthouse Mailroom, 8th Floor, United States Courthouse, 500 Pearl Street, New York, New York. IT IS FURTHER ORDERED that the parties shall contact Magistrate Judge Katz by August 14, 2009 to arrange for settlement discussions under his supervision. SO ORDERED. (Signed by Judge Denise L. Cote on 8/4/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tve) (Entered: 08/04/2009)
08/04/2009 195 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Theodore H. Katz. (Signed by Judge Denise L. Cote on 8/4/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tve) (Entered: 08/04/2009)

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08/04/2009 196 ORDER: granting (148) Motion in case 1:06−cv−00732−DLC. Plaintiffs' February 27 motion is granted conditionally, pending the distribution of notice to certain class members as discussed on the record at the July 31 telephone conference and the consideration of any objections submitted in response. SO ORDERED. (Signed by Judge Denise L. Cote on 8/4/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tve) (Entered: 08/04/2009)

08/04/2009 197 NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Theodore H. Katz, for Settlement. Magistrate Judge Douglas F. Eaton no longer referred to the case. (ldi) (ldi). (Entered: 08/05/2009)

08/13/2009 198 ENDORSED LETTER addressed to Judge Denise L. Cote from Jonathan K. Youngwood dated 8/13/2009 re: Requesting that the due date for an opposition be extended to August 26, 2009, and that the due date for Plaintiffs' reply be extended to September 17, 2009. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 8/13/2009) (jpo) (Entered: 08/13/2009)

08/18/2009 199 NOTICE OF CHANGE OF ADDRESS by Edgar Pauk on behalf of Norman J. Schomaker. New Address: Law Offices of Edgar Pauk, 27 Eighth Avenue, Park Slope, Brooklyn, New York, USA 11217, 347−529−4604. (Pauk, Edgar) (Entered: 08/18/2009)

08/20/2009 200 ENDORSED LETTER addressed to Judge Denise Cote from Thomas C. Rice dated 8/20/2009 re: We write to update the Court on the status and schedule for providing additional notice as directed by the Court. ENDORSEMENT: So ordered. (Signed by Judge Denise L. Cote on 8/20/2009) (jpo) (Entered: 08/20/2009)

08/26/2009 201 MEMORANDUM OF LAW in Opposition re: (176 in 1:06−cv−00732−DLC) MOTION to Amend/Correct (1) Complaint,.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Rice, Thomas) (Entered: 08/26/2009)

08/26/2009 202 DECLARATION of Jonathan K. Youngwood in Opposition re: (176 in 1:06−cv−00732−DLC) MOTION to Amend/Correct (1) Complaint,.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Youngwood, Jonathan) (Entered: 08/26/2009)

08/26/2009 203 MOTION for Mark K. Gyandoh to Appear Pro Hac Vice. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker.(dle) (Entered: 08/27/2009)

08/27/2009

CASHIERS OFFICE REMARK on 203 Motion to Appear Pro Hac Vice in the amount of $25.00, paid on 08/26/2009, Receipt Number 698444. (jd) (Entered: 08/27/2009)

08/31/2009 204 MOTION FOR ADMISSION PRO HAC VICE: ORDER granting (203) Motion for Mark K. Gyandoh to Appear Pro Hac Vice in case 1:06−cv−00732−DLC for Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 8/31/09) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(db) (Entered: 08/31/2009)

08/31/2009

Transmission to Attorney Admissions Clerk. Transmitted re: (64 in 1:06−cv−03300−DLC, 72 in 1:06−cv−01249−DLC, 204 in 1:06−cv−00732−DLC, 74 in 1:06−cv−03031−DLC) Order on Motion to Appear Pro Hac Vice, to the Attorney Admissions Clerk for updating of Attorney Information. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(db) (Entered: 08/31/2009)

09/11/2009 205 ENDORSED LETTER addressed to Judge Denise L. Cote from Thomas C. Rice dated 9/10/09 re: Enlargement of page requests by both parties for reply briefs and sur−replies. ENDORSEMENT: Both parties' requests are granted. (Signed by Judge Denise L. Cote on 9/11/09) (db) (Entered: 09/11/2009)

09/16/2009 206 MEMORANDUM OF LAW in Opposition re: (62 in 1:06−cv−03300−DLC) Memorandum of Law in Opposition to Motion, (CORRECTED). Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A., J.P. Morgan Chase &Co., The JPMorgan Chase Retirement Plan, JPMorgan Chase Bank, N.A., JPMorgan Chase &Co., J.P. Morgan Chase &Co.. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Rice, Thomas) (Entered: 09/16/2009)

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09/17/2009 207 REPLY MEMORANDUM OF LAW in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Williams−Derry, Amy) (Entered: 09/17/2009)

09/17/2009 208 DECLARATION of Amy Williams−Derry in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Williams−Derry, Amy) (Entered: 09/17/2009)

09/17/2009 209 DECLARATION of Perry Shapiro in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Williams−Derry, Amy) (Entered: 09/17/2009)

09/17/2009 210 DECLARATION of Neil Aldoroty in Support re: 176 MOTION to Amend/Correct 1 Complaint,.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit A)(Williams−Derry, Amy) (Entered: 09/17/2009)

09/17/2009 211 CERTIFICATE OF SERVICE of Plaintiffs' Reply in Support of Plaintiffs' Motion for Leave to File an Amended Consolidated Class Action Complaint served on All Counsel of Record on September 17, 2009. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Williams−Derry, Amy) (Entered: 09/17/2009)

09/18/2009 212 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Amy Williams Derry dated 9/17/2009 re: Requesting permission for Mr. Aldoroty appear by telephone throughout the duration of the conference. ENDORSEMENT: That is fine. (Signed by Magistrate Judge Theodore H. Katz on 9/18/2009) (jpo) (Entered: 09/18/2009)

09/22/2009

Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 9/22/2009. (mro) (Entered: 09/24/2009)

09/25/2009 213 DECLARATION of Jonathan K. Youngwood (Supplemental with Exhibits) in Opposition re: (176 in 1:06−cv−00732−DLC) MOTION to Amend/Correct (1) Complaint,.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Youngwood, Jonathan) (Entered: 09/25/2009)

09/25/2009 214 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: (176 in 1:06−cv−00732−DLC) MOTION to Amend/Correct (1) Complaint,.. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Youngwood, Jonathan) (Entered: 09/25/2009)

10/02/2009 215 ENDORSED LETTER addressed to Judge Denise L. Cote from Peter S. Linden dated 10/1/2009 re: Plaintiffs request until October 8, 2009 to submit a supplemental memorandum to respond to these submissions and in further support of voluntary dismissal of the certified notice claims. ENDORSEMENT: Granted. So Ordered. (Signed by Judge Denise L. Cote on 10/2/2009) (jfe) (Entered: 10/02/2009)

10/08/2009 216 FOURTH MEMORANDUM OF LAW in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 10/08/2009)

10/08/2009 217 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Peter S. Linden in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Attachments: # 1 Exhibit A−H)(Linden, Peter) Modified on 10/15/2009 (KA). (Entered: 10/08/2009)

10/08/2009 218 DECLARATION of Mark K. Gyandoh in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti. (Linden, Peter) (Entered: 10/08/2009)

10/08/2009 219 AFFIDAVIT of Daniela Nese (Second Supplemental) in Support re: 192 Affidavit in Support of Motion,. Document filed by J.P. Morgan Chase &Co., J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources, J.P. Morgan Chase Bank, N.A.. (Youngwood, Jonathan) (Entered: 10/08/2009)

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 27 of 29

10/09/2009 220 DECLARATION of Peter S. Linden in Support re: 148 MOTION for Approval of Dismissal of Certified Claims.. Document filed by John Does, Perry Shapiro, Neil Aldoroty, Annette Marie Falchetti. (Attachments: # 1 Exhibit A−H)(Linden, Peter) (Entered: 10/09/2009)

10/19/2009 221 ORDER: It is hereby ordered that Plaintiffs' Motion for Voluntary Dismissal of Certified Claims is granted, the certified notice claims are dismissed with prejudice, and the Clerk is expressly directed to enter partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. (Signed by Judge Denise L. Cote on 10/19/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(jpo) (Entered: 10/19/2009)

10/19/2009

Transmission to Judgments and Orders Clerk. Transmitted re: 221 Order, to the Judgments and Orders Clerk. (jpo) (Entered: 10/19/2009)

10/20/2009 222 RULE 54(B) PARTIAL CLERK'S JUDGMENT That for the reasons stated in the Court's Order dated October 19, 2009, that there is no just reason for delay, pursuant to Fed. R. Civ. P. 54(b), a partial final judgment is entered granting Plaintiffs' Motion for Voluntary Dismissal of Certified Claims, and dismissing the certified notice claims with prejudice. (Signed by J. Michael McMahon, CLERK on 10/20/09) (Attachments: # 1 notice of right to appeal)Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(ml) (Entered: 10/20/2009)

10/23/2009

Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 10/23/2009. (mro) (Entered: 10/27/2009)

10/27/2009 223 ENDORSED LETTER addressed to Judge Denise L. Cote from Amy Williams−Derry dated 10/26/09 re: Request that the Court stay both pending actions pending settlement. ENDORSEMENT: Both actions are stayed, pending a status report from the parties due 11/13/09. ( Status Report due by 11/13/2009.) (Signed by Judge Denise L. Cote on 10/27/09) (cd) (Entered: 10/27/2009)

11/17/2009 224 ENDORSED LETTER addressed to Judge Denise L. Cote from Thomas C. Rice dated 11/13/2009 re: The parties respectfully request that the Court continue the stay of both actions until the proposed stipulation of settlement is filed. ENDORSEMENT: Status letter due 12/18/2009. So Ordered. (Signed by Judge Denise L. Cote on 11/17/2009) (jfe) (Entered: 11/17/2009)

12/16/2009 225 ORDER: that the Clerk of Court shall terminate the pending motion for leave to file an amended consolidated class action complaint (ECF Docket # 173 ) and motion to amend the complaint (ECF Docket # 176 ) without prejudice to renewal. SO ORDERED. (Signed by Judge Denise L. Cote on 12/16/2009) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(tve) (Entered: 12/16/2009)

12/21/2009 226 ENDORSED LETTER addressed to Judge Denise L. Cote from Amy Williams Derry dated 12/17/2009 re: The parties respectfully request that the Court continue the stay of both actions until the Stipulation of Settlement is filed. ENDORSEMENT: The proposed settlement papers shall be filed by 1/22/10. (Signed by Judge Denise L. Cote on 12/21/2009) (tve) (Entered: 12/21/2009)

01/21/2010 227 ENDORSED LETTER addressed to Judge Denise L. Cote from Peter S. Linden dated 1/20/2010 re: Your Honor's order of December 21, 2009 requires the parties to file their settlement papers by January 22, 2010. I write on behalf of all the parties to request an additional week to submit the executed settlement stipulation. Accordingly, the parties jointly request until Friday, January 29, 2010, to submit the executed agreement together with a proposed class notice and a preliminary approval order. We intend to seek preliminary approval by letter, in lieu of a formal motion, if that is acceptable to the Court. In the alternative, the parties could submit the settlement papers by January 29, 2010, with a preliminary approval motion to be submitted by February 5, 2010.ENDORSEMENT: Submission on 1/29/10 is approved. (Signed by Judge Denise L. Cote on 1/21/2010) (tro) (Entered: 01/26/2010)

01/21/2010

***DELETED DOCUMENT. Deleted document number 228 Endorsed Letter (Duplicate of 227). The document was incorrectly filed in this case. (tro) (Entered: 01/26/2010)

03/03/2010 228 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, PRELIMINARILY CERTIFYING CLASS FOR SETTLEMENT PURPOSES, APPROVING FORM AND MANNER OF CLASS NOTICE, AND SETTING DATE FOR HEARING ON FINAL APPROVAL OF SETTLEMENT: A hearing is scheduled for June 25, 2010 at 3:00 p.m. (Signed by Judge Denise L. Cote on 3/3/2010) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(jfe) (Entered: 03/04/2010)

03/05/2010 229 ENDORSED LETTER addressed to Judge Denise L. Cote from Peter S. Linden dated 3/4/2010 re: I write on behalf of the Plaintiffs, and with the consent of Defendants, in the above−referenced cases. The parties respectfully request that the due date for objections to be filed be changed to May 28, 2010.

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 28 of 29
ENDORSEMENT: SO ORDERED. (Signed by Judge Denise L. Cote on 3/5/2010) (jmi) (Entered: 03/08/2010)
04/23/2010 230 MANDATE of USCA (Certified Copy) USCA Case Number 09−0444−mv. The parties in the above referenced case have filed a stipulation withdrawing their petition for leave to appeal, without costs or attorney's fees. The stipulation is so ordered. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 04/23/2010. (nd) (Entered: 04/23/2010)
06/14/2010 231 ENDORSED LETTER addressed to Judge Denise L. Cote from Peter Linden dated 6/11/10 re: Plaintiffs request an additional five pages (from the 25 pages) for the memorandum of law in support of plaintiffs motion. ENDORSEMENT: Granted. (Signed by Judge Denise L. Cote on 6/14/10) (cd) (Entered: 06/14/2010)
06/17/2010 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker.(Linden, Peter) (Entered: 06/17/2010)
06/17/2010 233 MEMORANDUM OF LAW in Support re: 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Linden, Peter) (Entered: 06/17/2010)
06/17/2010 234 DECLARATION of Peter S. Linden in Support re: 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Linden, Peter) (Entered: 06/17/2010)
06/17/2010 235 DECLARATION of Amy Williams−Derry in Support re: 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Linden, Peter) (Entered: 06/17/2010)
06/17/2010 236 DECLARATION of Joseph A. Weeden in Support re: 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit A)(Linden, Peter) (Entered: 06/17/2010)
06/17/2010 237 AFFIRMATION of Edgar Pauk in Support re: 232 MOTION for Settlement NAMED PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, SETTLEMENT CLASS CERTIFICATION, CASE CONTRIBUTION AWARDS TO NAMED PLAINTIFFS AND REIMBURSEMENT OF ATTORNEYS EXPENSES.. Document filed by Perry Shapiro, Neil Aldoroty, John J. Berotti, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit A)(Linden, Peter) (Entered: 06/17/2010)
06/24/2010 238 AFFIDAVIT of Daniela Nese in Support. Document filed by J.P. Morgan Chase Retirement Plan, JPMC's Director of Human Resources. Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(Youngwood, Jonathan) (Entered: 06/24/2010)
07/06/2010 239 NOTICE of Filing re: 233 Memorandum of Law in Support of Motion,. Document filed by Perry Shapiro, Annette Marie Falchetti, Terri Melli, Norman J. Schomaker. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Williams−Derry, Amy) (Entered: 07/06/2010)
07/12/2010 240 ORDER denying (for the reasons stated on the record at the June 25 Fairness Hearing) Renewed (232) Motion for Settlement in case 1:06−cv−00732−DLC The following amounts are approved for reimbursement of out−of−pocket expenses associated with serving as class representatives as set forth

Case: 1:06-cv-732 As of: 09/08/2010 09:51 PM EDT 29 of 29
herein. Plaintiffs' counsel shall promptly submit a revised Order and Final Judgment that reflects the rulings at the June 25 Fairness Hearing and in this Order. (Signed by Judge Denise L. Cote on 7/12/10) Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC (djc) Modified on 7/12/2010 (djc). Modified on 7/14/2010 (djc). (Entered: 07/12/2010)
07/15/2010 241 JUDGMENT settling action. (Signed by Judge Denise L. Cote on 7/15/10) (Attachments: # 1 notice of right to appeal)Filed In Associated Cases: 1:06−cv−00732−DLC, 1:06−cv−01249−DLC, 1:06−cv−03031−DLC, 1:06−cv−03300−DLC(ml) (Entered: 07/17/2010)
07/16/2010 242 TRANSCRIPT of proceedings held on 6/25/2010 before Judge Denise L. Cote. (ab) (Entered: 07/19/2010)

 
 In re JP Morgan Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

2007 WL 1280623 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
In re JP MORGAN CASH BALANCE LITIGATION
No. 06 Civ. 0732 HB DFE. | April 30, 2007. | Adhered to On Reconsideration May 21, 2007.
Opinion
MEMORANDUM AND ORDER
EATON, Magistrate J.
*1 Judge Baer’s opinion of October 30, 2006 described the “notice” claims in the Consolidated Complaint (Counts IV, V and VI). In re J.P. Morgan Cash Balance Litigation, 460 F.Supp.2d 479, 490-92 (S.D.N.Y.2006). These Counts primarily complain about inadequate notice concerning amendments that Defendants and their predecessors made to ERISA Plans prior to 1999. In discovery, Plaintiffs have requested documents related to later amendments, ones that were made to the Plans during the years 1999 through 2005. At this early stage, Defendants are not contesting the relevance of those requests. Defendants have supplied copies of drafts of ERISA section 204(h) notices and drafts of Summary Plan Descriptions (“SPDs”) concerning Plan amendments that were made during 1999-2005. They have withheld attorney-client communications written about those drafts. But they are not claiming privilege as to any communication that specifically discussed a prior section 204(h) notice, or a completed SPD, or a past Summary of Material Modification.
On April 20, 2007, Defendants submitted the disputed documents for my in camera review. I have reviewed 78 of the 80 documents listed on the updated April 20 privilege log; Plaintiffs’ March 15 letter at footnote 2 said they are not moving to compel Documents 100 and 118, and therefore Defendants did not submit those two documents. I have also reviewed the redacted and unredacted versions of the 15 documents listed on the updated April 20 redaction log.
I find that the attorney-client privilege attached to each of the disputed documents (and to each of the redacted portions of the 15 redacted documents). In moving to compel production, Plaintiffs invoke the fiduciary exception to the attorney-client privilege. “[T]here is

general agreement that the burden of proving the preliminary facts of exceptions to the privilege is on the opponent of the privilege claim.” 24 Wright & Graham, Federal Practice and Procedure: Evidence § 5507, text at n. 45 (2006 ed.). For example, Judge Haight has written: “The burden shifts to the party seeking disclosure when that party contends that communications to which the attorney-client privilege would otherwise attach fall within the crime-fraud exception....” Renner v. Chase Manhattan Bank, 2001 WL 388044, *2 (S.D.N.Y. Apr.17, 2001), citing United States v. Jacobs, 117 F.3d 82, 87 (2d Cir.1997).
The Second Circuit rejected an invocation of the fiduciary exception in an ERISA case named In re Long Island Lighting Co., 129 F.3d 268 (2d Cir.1997). Judge Jacobs wrote in pertinent part:
After sorting out and directing the production of certain unprivileged documents that are not at issue here, Magistrate Judge Orenstein ruled that the remaining documents concern amendments to the plan-as to which LILCO did not act in a fiduciary capacity-rather than administration of the plan-as to which LILCO did act as a fiduciary. Relying on Siskind v. Sperry Retirement Program, 47 F.3d 498, 505 (2d Cir.1995), which holds that amendment of a retirement plan is not a fiduciary function under ERISA, the magistrate judge concluded that the documents were insulated from discovery by the attorney-client privilege (and adhered to that conclusion following a motion for reconsideration).
*2 ... The district court did not question the magistrate judge’s determination that the documents related to plan amendment rather than plan administration, but found that LILCO “waived its privilege over the documents in question by using the same lawyer for amendment purposes as it used to represent the fiduciary of the employees.”
... [B]y authorizing the employer to act as plan fiduciary in the first place, see ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), ERISA has surely absolved the employer of the lesser conflict of using a single lawyer (or its in-house counsel) to advise it in both capacities. Instead, the issue presented here is a discovery question that depends on the existence (or not) of a fiduciary duty that is located in the employer, not the lawyer.
In M.A. Everett v. USAir Group, Inc., 165 F.R.D. 1, 4 (D.D.C.1995) (decided by a court within the same district as Washington Star ), the district court recognized that an employer does not act as a fiduciary when it decides to form, amend, or terminate a plan, and concluded therefore that “when an employer seeks
1

In re JP Morgan Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

legal counsel solely in its role as employer regarding issues other than plan administration, the employer (not the beneficiaries) is the client and may legitimately assert the attorney-client privilege.” Everett, 165 F.R.D. at 4. See In re Unisys Corp. Retiree Medical Benefits Erisa Lit., 1994 WL 6883, at *3 (E.D.Pa.1994) (noting the critical distinction between communications regarding fiduciary matters and those regarding non-fiduciary matters). In Everett, the administrator of the plan failed to show that any of the disputed documents “relate solely to its nonfiduciary activities or to the formation, amendment or termination of the pension plan.” Everett, 165 F.R.D. at 4. But in LILCO’s case, the magistrate judge specifically found (and no one has questioned) that the disputed documents clearly relate to non-fiduciary matters only. As to those matters, the fiduciary exception does not overcome the attorney-client privilege.
In re Long Island Lighting Co. [“LILCO”], 129 F.3d at 270, 272-73 (emphases in the original).
Two years later, in Hudson v. General Dynamics, 73 F.Supp.2d 201, 203 (D.Conn.1999), Judge Arterton conducted an in camera examination of documents that gave “legal advice regarding many aspects of potential plan amendments or enhancements, including their disclosure.” (Emphasis added.) She ruled:
... While such communication could arguably be broadly viewed as “relating to” fiduciary matters insofar as disclosures of plan amendments would affect current plan participants, the Court, however, rejects such an expansive interpretation of the fiduciary exception....
Ibid (emphasis added).
In the case at bar, Plaintiffs’ March 21 letter attempted to distinguish Hudson:
... The Hudson court’s holding prohibiting disclosure of legal advice regarding plan changes that were under ‘consideration’ has no bearing on Plaintiffs’ challenge here. Plaintiffs seek disclosure of [attorney-client] documents that are expressly related to the fiduciary function of communicating to plan participants the impact of completed plan amendments.
*3 During my in camera review of the attorney-client

communications, I found none that were discussing the impact of plan amendments that had already been completed. At my request, Defendants confirmed this by letter to me dated April 27, 2007:
.... We ... confirm that Defendants are not claiming privilege with respect to any communications that specifically discuss completed Summary Plan Descriptions (“SPDs”), past Summaries of Material Modifications (“SMMs”), or prior ERISA § 204(h) notices....
The SPD-related communications for which the privilege is asserted do not specifically discuss the plan amendment process or past ERISA § 204(h) notices. By their nature, SPDs do discuss the then current plan, which is of course in part the result of prior amendments. The SPD communications that are subject to our claim of privilege ... relate to draft future SPDs or the distribution of future SPDs and concern counsels’ efforts to ensure that the Plan Administrator complied with the various applicable statutes and regulations with respect to the yet-to-be issued SPD.
I am not sure whether Plaintiffs are satisfied with the above assurances from me and from defense counsel. Plaintiffs waited until 2006 to sue. It may be that, as of 2006, Defendants no longer possessed drafts of the most pertinent amendments (which were made prior to 1999), let alone attorney-client communications about those drafts. Plaintiffs’ argument seems to run as follows. In 2001, Defendants had “under consideration” new plan amendments that in some sense may have been “related to” the challenged amendments that were completed prior to 1999. The new amendments could not become effective without a section 204(h) notice. Therefore, Plaintiffs argue that any attorney communication about the draft 204(h) notice was “related to the fiduciary function of communicating to plan participants,” and in some sense was “related to” the continuing impact of the amendments that were completed prior to 1999.
In my view, Plaintiffs’ argument lacks any sensible limiting principle. Plaintiffs rely heavily on a decision by Magistrate Judge Zimmerman in Fischel v. Equitable Life Assurance, 191 F.R.D. 606 (N.D.Cal.2000). However, I see three problems with Fischel. First. It acknowledged that in the seminal case of Riggs Nat’l Bank v. Zimmer, 355 A.2d 709 (Del.Ch.1976), “the Chancellor was impressed by the facts that the trust paid for the advice....” 191 F.R.D. at 608. Yet Judge Zimmerman did not mention whether the attorneys in Fischel had been paid by the Plan or by the Plan Sponsor. In the case at bar, the attorneys were paid entirely by the Plan Sponsor and its predecessor entities; this is “a significant factor” in deciding whether the Plan Sponsor was the real client. Riggs, 355 A.2d at 711-12, discussed at Part III B(1) of Wachtel v. Health Net, Inc., 482 F.3d 225, 2007 WL
2

In re JP Morgan Cash Balance Litigation, Not Reported in F.Supp.2d (2007)

958572 (3d Cir. Apr.2, 2007). Second. Fischel (191 F.R.D. at 609) chose to depart from the Long Island Lighting test, an option that is not open to judges within the Second Circuit. Third. Fischel (191 F.R.D. at 610 n. 3) relied on page 934 of Bins v. Exxon Co., 189 F.3d 929 (9th Cir.1999), a portion that was rejected five months after Fischel by the en banc decision in Bins, 220 F.3d 1042, 1053 (9th Cir. en banc Aug. 10, 2000).

*4 For the reasons stated above, I sustain Defendants’ invocation of the attorney-client privilege. None of the disputed documents comes within the fiduciary exception. I deny Plaintiffs’ motion to compel production.
	  

3