Grant M. WALKER, and Edward Zeringue, on behalf of..., 2004 WL 3112273...
2004 WL 3112273 (S.D.Ill.) (Trial Pleading) United States District Court, S.D. Illinois.
Grant M. WALKER, and Edward Zeringue, on behalf of themselves and all other similarly situated, Plaintiffs, v.
THE MONSANTO COMPANY PENSION PLAN and the Monsanto Company, Defendants. No. 04-436-DRH. June 23, 2004.
Class Action Complaint
Michael B. Marker, Matthew H. Armstrong, One Metropolitan Square, Suite 2970, ST. Louis, Missouri 63102-2793, Telephone: (314)446-0990, Facsimile: (314)446-0991, Dan Girard, Jonathan Levine, Girard Gibbs & De Bartolomeo Llp, 601 California Street, Suite 1400 San Francisco, California 94108 Telephone: (415)981-4800 Facsimile: (415)981-4846, Attorneys for Plaintiffs Plaintiffs make the following allegation on personal knowledge as to facts concerning themselves and on information and belief, based upon investigation of counsel, as to all other matters:
FACTS RELEVANT TO BOTH COUNTS
THE PARTIES 1. Plaintiffs are individuals who are current or former employees of Monsanto Company, a global agricultural products provider.
pension contract between Monsanto and Plan participants. A copy of the Plan contract is attached as Exhibit A to this Complaint.
2. Each Plaintiffs brings his claim both indivudally and as a representative of a class of similarly situated participants in the Monsanto Company Pension Plan.
3. Defendant Monsanto Company (MNonsanto), a Delaware corporation, administers the Monsanto Company Pension Plan (the Plan).
4. The Plan, which is also a Defendant, provides pension benefits to Plan participants. In addition to using the term “Plan” to refer to the Monsanto entity which provides pension benefits, Plaintiffs at times also use the term “plan” to refer to the pension contract between Monsanto and Plan participants. A copy of the Plan contract is attached as Exhibit A to this Complaint.
MONSANTO’S DEFINED BENEFIT PLAN 5. At all times relevant to this Complaint, the Plan has been a defined benefit plan within the meaning of the Employee Retirement Income Security Act (“ERJSA”), 29 U.S.C. § 1001et seg.
6. ERISA requires defined benefit plans to offer vested participants (i.e., employees with over 5 years of service) a “normal retirement benefit” in the form of an annual lifetime pension starting at “normal retirement age,” which is 65 under the
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Monsanto Plan. 29 U.S.C., § 1053(a)[(a)(2)(A)]; 29 U.S.C. § 1002(22)[(23)(A)]; Plan § 3.37.
7. In a conventional defined benefit plan, the normal lifetime retirement benefit equals a specified percentage of a participant’s salary in the final year or years of his employment.
8. Effective January 1, 1997, Monsanto converted from a conventional defined benefit plan to a type of defined benefit plan called a cash balance plan.
9. In cash balance plans, including Monsanto’s, the normal lifetime retirement benefit is based upon a hypothetical account called the cash balance account.
10. Each Monsanto Plan participant’s Cash Balance Account (CBA) grows by a specified percentage of a participant’s income for each year of employment (contribution credits), plus interest posted to the CBA monthly (interest credits).
11. For participants who had been enrolled in Monsanto’s Plan before the institution of the Cash Balance Account on January 1, 1997, the normal retirement benefit is also based upon a separate account called the Prior Plan Account (PPA)
12. The PPA began simultaneously with the Cash Balance Account on January 1, 1997, and initially consisted of the present value of the pre-1997 accrued benefits under the conventional defined benefit plan which was in effect prior to 1997.
13. Since January 1, 1997, the balance in each pre-1997 participant’s PPA has grown by a specified percentage of the opening account balance (pay credits), plus interest posted to the PPA monthly (interest credits).
14. The Monsanto Plan calls for interest credits to the PPA to cease by the time that a participant reaches the age of 55, at the latest.
15. Like other cash balance plans, Monsanto’s Cash Balance Plan calculates a participant’s normal retirement benefit based upon a formula which takes into consideration the amounts in the participant’s CBA and PPA. The formula used by the Monsanto Plan is stated in section 3.2 of the Plan.
16. The formula provided in section 3.2 of the Monsanto Plan yields an “accrued benefit” payable on a monthly basis, i.e., the formula determines the amount of the monthly pension payments which a vested participant is entitled to receive starting at age 65 and continuing for the rest of his life.
17. For a participant who leaves Monsanto before normal retirement age, the normal retirement benefit required by ERISA is the benefit that the participant has “accrued” through the date of his leaving Monsanto. 26 U.S.C. § 41l(c)(3); 29 U.S.C. § 1054(c)(3);26U.S.C. 411(a)(7)(A)(i); 29 U.S.C. § 1002(23)(A); 26 C.F.R. §§ 1.41l(a) 7(a)(l),1.411(c)-l(e).
JURISDICTION AND VENUE
18. This Court has jurisdiction over the subject matter of the claims asserted in this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e).
19. Venue is proper in this District under 29 U.S.C. § 1132(e)(2) because the Plan resides and may be found in this District and because terms of the Plan which track legal requirements have been breached in this District.
20. At times relevant to this Complaint, Defendant Monsanto has operated a plant and other facilities which have employed numerous Plan participants in this District.
21. At times relevant to this Complaint, many Monsanto Plan participants have accrued pension benefits within this District.
22. At times relevant to this Complaint, many Monsanto Plan participants who work at Monsanto’s world headquarters in St. Louis, Missouri, have commuted to and from this District, which is just across the Mississippi River from St. Louis.
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23. At times relevant to this Complaint, the Monsanto Plan has underpaid pension benefits to many Plan participants who have resided in this District.
OVERVIEW OF THE PLAN’S VIOLATIONS
24. As stated in Count I, the Monsanto Plan has underpaid the pension benefits of all participants who have elected to receive their benefits in the form of a lump sum, rather than in the form of monthly annuity payments for life. The Plan’s underpayment of lump sum benefits violates ERISA and Internal Revenue Code (IRQ accrual and anti-forfeiture provisions; Treasury Department regulations; an Internal Revenue Service (IRS) Notice; and the Plan’s own terms which track some or all of these legal requirements. The Plan’s underpayment of lump sum benefits also violates ERISA prohibitions against age discrimination to the extent that the Plan calls for no interest credits to be posted to pre-1997 participants’ Prior Plan Accounts after those participants reach the age of 55.
25. As stated in Count II, the actuarial value of contributions to participants’ Cash Balance Accounts is reduced and/or increases at a reduced rate because of participants’ age. This practice violates ERISA prohibitions against age discrimination.
COUNT I
26. Plaintiff Grant M. Walker incorporates Paragraphs 1- 24 into this Count, as if the incorporated paragraphs were fully set forth here.
27. Plaintiff Walker, a resident of Edgard, Louisiana, worked as a maintenance technician at the Monsanto plant in Luling, Louisiana, from September 8, 1975, until February 28, 2003.
28. Upon retirement from Monsanto past the age of 55, Plaintiff Walker opted to receive his accrued pension benefits immediately in the form of a lump sum payment, as permitted by Option 4 under section 7.3(d) of the Plan.
29. Any lump sum distribution of accrued pension benefits must be the actuarial equivalent of the participant’s normal retirement benefit, i.e., any lump sum distribution must equal the present value of the stream of pension benefits which the participant would receive if he waited until normal retirement age (65) and then took his benefits in the form of pension payments for the rest of his life. 29 U.S.C. § 1054(c)(3); 26 U.S.C. § 41l(c)(3); 26 C.F.R. § 1.41 l(c)-l(e); IRS Notice 96-8 “Cash Balance Pension Plans,” 1996-1 C.B. 359 (Feb. 5, 1996).
30. The Plan itself requires that any lump sum distribution of pension benefits equal at least the “lump sum Actuarial Equivalent of Participant’s Accrued Benefit.” Plan § 7.3(d) (“Option 4”).
31. Determining the lump sum actuarial equivalent of a participant’s accrued benefit involves a three-step process known as a “whipsaw” calculation.
32. The first step in the whipsaw calculation requires adding “future interest credits” to the participant’s Cash Balance and Prior Plan Accounts. Future interest credits are those credits which would have been posted to a pre-age 65 retiree’s CBA and PPA between the time that the early retiree left Monsanto and the date on which he would have reached the age of 65.
33. Adding future interest credits to a vested participant’s CBA and PPA is necessary because the Monsanto Plan is “frontloaded,” which means that “future interest credits to an employee’s hypothetical account balance are not conditioned upon future service.” IRC Notice 96-8; Plan § 6.3(d).
34. Adding future interest credits to a vested participant’s Prior Plan Account is also necessary because discontinuing interest credits on this Account by age 55, as section 6.2(d) of the Plan provides, constitutes unenforceable age discrimination in violation of ERISA. 29 U.S.C. § 1054(b)(l)(G)[H] prohibit any ERISA plan participant’s pension benefits from ceasing or
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being reduced or increasing at a reduced rate because of the participant’s age.
35. The interest rate at which future interest credits are added to the CBA and PPA in Step 1 of the whipsaw calculation is commonly called the “projection rate.”
36. Section 6.3(d) of the Plan supplies the projection rate for future interest credits to a participant’s Cash Balance Account.
37. Section 6.2(d) of the Plan supplies the projection rate for future interest credits to a participant’s Prior Plan Account.
38. Step 2 of the whipsaw calculation requires converting the amount calculated in Step 1 (the projected age-65 sum of the balances in a participant’s CBA and PPA) into a life annuity, using an annuity conversion rate inherent in the formula provided by section 3.2 of the Plan.
39. Step 3 of the whipsaw calculation requires discounting the life annuity calculated in Step 2 to present value based upon mortality tables and an interest rate (commonly known as the “discount rate”) provided in section 3.3(c)(iii)(A)[B] of the Plan and required by Treasury Regulations found in 26 CFR sections 1.411(a)-11 and 1.417(e)-l.
40. Rather than determining lump sum distributions by performing the above-described whipsaw conversion to present value, the Monsanto Plan simply pays participants, including Plaintiff Walker, lump sum pension benefits equal to the amount in participants’ Cash Balance Accounts, plus any amount in pre-1997 participants’ Prior Plan Accounts without interest rate credits.
41. Paying Plan participants lump sums equal to the amounts in their Cash Balance and Prior Plan Accounts violates ERISA if: a. The projection rate used in Step 1 of the whipsaw calculation is greater than the discount rate used in Step 3 of the calculation; or
b. The annuity conversion rate inherent in Step 2 of the whipsaw calculation is greater than the discount rate used in Step 3 of the calculation.
42. For most of the time since the Monsanto Plan switched to the Cash Balance format in 1997, the Step 1 projection rate has exceeded the Step 3 discount rate.
43. Throughout the time since the Monsanto Plan switched to the Cash Balance format in 1997, the Step 2 annuity conversion factor has exceeded the Step 3 discount rate.
44. Since January 1, 1997, the Monsanto Plan’s failure to use the whipsaw calculation has therefore caused the lump sum distributions (i.e. the sum of the amounts in a participant’s CBA and PPA) to all retired Plan participants, including Plaintiff Walker, to be less than the actuarial equivalent of their accrued normal retirement benefit.
45. Paying Plan participants less than the actuarial equivalent of their accrued normal retirement benefit violates the ERISA and parallel I.R.C. provisions regarding both the non-forfeitability and accrual of vested pension benefits. 29 U.S.C. §§ 1053(a)(2); 1054(b)(l); 26 U.S.C. §§ 41l(a)(2) and (b)(l).
46. Simultaneous with the filing of this Complaint, Plaintiff Walker and other similarly situated Plan participants submitted to the Monsanto Employee Benefits Plan Committee and to Monsanto, in its capacity as Administrator of the Plan, claims for the relief sought in this Count. These claims were filed in accordance with the procedure set out in Section 10.2 of the Plan. However, insofar as the remedies sought in connection with this Count are concerned, exhaustion of remedies is both unnecessary and futile. The relief which Plaintiff Walker seeks is for the Plan’s violations of the law and violations of Plan terms which track applicable legal requirements. There are no disputed factual issues for the Plan to resolve and no need for interpretation of any Plan terms.
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Class Allegations relevant to Count I
47. Plaintiff Walker seeks certification of the following Class: All current Cash Balance Account participants and all former CBA participants who opted for a lump sum distribution of their pension benefits.
48. Certification of this Class is appropriate under Rule 23(b)(l), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Plan regarding the proper way to calculate lump sum benefits.
49. Certification of this Class is also appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Plan has miscalculated and continues to miscalculate lump sum payments with respect to each Class Member in the same contested manner; therefore, the Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or declaratory relief with respect to the Class as a whole.
50. The Class is believed to be comprised of thousands of current and former Plan participants and is thus so numerous that joinder of all Class Members would be impracticable.
51. There are common questions of fact and law as to each Member of the Class regarding the manner in which the Plan determines lump sum pension benefit payments and the respects in which the Plan’s method of determining lump sum payments is illegal and otherwise improper.
52. Plaintiff Walker’s claims are typical of the claims of all Class Members regarding whether the Plan’s determination of lump sum pension payments is legal, in that the Plan has used and continues to use a uniform method to determine lump sum payments for all Class Members.
53. Plantiff Walker is an adequate representative of the Class. Plaintiff Walker understands the basic issues in the case, and the undersigned attorneys are experienced and competent to handle complex class action litigation.
54. Plaintiff Walker has interests identical to and not in conflict with the interests of other Class Members regarding how the Plan determines lump sum pension benefits and whether the Plan’s method of determining lump sum pension benefits is legal.
55. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Class is impracticable. Furthermore, many Class Members injured by the Plan’s conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Plan’s actions. By contrast, a class action presents fewer management difficulties and provides the benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
COUNT II
56. Plaintiff Edward Zeringue incorporates Paragraphs 1-25 into this Count, as if the incorporated paragraphs were fully set forth here.
57. Plaintiff Zeringue, a resident of Des Allemands, Louisiana, worked at the Monsanto plant in Luling, Louisiana, from April 29, 1973 until December 31, 2001, before retiring as a unit specialist.
58. Upon retirement from Monsanto at age 53, Plaintiff Zeringue opted to receive his pension benefits in the form of an immediate lump sum payment.
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59. Regardless of the form in which participants have elected to receive pension benefits since Monsanto’s Cash Balance Plan began on January 1, 1997, pension payments made by the Plan since that date have violated ERISA’s prohibitions against age discrimination.
60. ERISA prohibits the actuarial value of any Plan participant’s accrued benefit from being reduced on account of any increase in age. 29 U.S.C. 1054 (b)(l)(G); 29 U.S.C. 1002(23)(A).
61. ERISA also prohibits the actuarial value of any Plan participant’s rate of benefit accrual from being reduced because of the attainment of any age. 29 U.S.C. 1054 (b)(l)(H); 29 U.S.C. 1002 (23)(A).
62. Since Monsanto adopted its Cash Balance plan on January 1, 1997, the actuarial value of the amounts credited to the Cash Balance and Prior Plan Accounts of all participants, including Plaintiff Zeringue, is reduced on account of age, in violation of subparagraph (G) of ERISA § 204(b)(l)(G), 29 U.S.C. § 1054(b)(l)(G).
63. Since Monsanto adopted its Cash Balance plan on January 1, 1997, the actuarial value of the amounts credited to the Cash Balance and Prior Plan Accounts of all participants, including Plaintiff Zeringue, accrues at a rate which is reduced because of age, in violation of subparagraph (H) of ERISA 204(b)(l), 29 U.S.C. 1054 (b)(l)(H).
64. For example, a hypothetical Plan participant who earned $40,000 per year from ages 30 through 32 would experience a decrease in the actuarial value of the annual credits to his Cash Balance Account (measured in terms of the present value of an annuity commencing at age 65) from $70.60 at age 30 to $67.24 at age 31 and to $64.04 at age 32.
65. In order to comply with the above-referenced ERISA prohibitions against age discrimination, the Monsanto Plan should have contributed more to participant’s Cash Balance and Prior Plan Accounts as participants grow older.
66. Because Monsanto Plan participants’ pension benefits are based upon the CBA and PPA, all pension payments made to Plan participants, including Plaintiff Zeringue, since January 1, 1997 have been too low to comply with ERISA.
67. Simultaneous with the filing of this Complaint, Plaintiff Zeringue submitted to the Monsanto Plan Committee a claim for the relief sought in this Count. The claim was filed in accordance with the procedure set out in Section 10.2 of the Plan. However, insofar as the remedies sought in connection with this Count are concerned, exhaustion of remedies is both unnecessary and futile. The relief which Plaintiff Zeringue seeks is solely for the Plan’s violations of the law. There are no disputed factual issues for the Plan to resolve and no need for interpretation of any Plan terms.
Class Allegations relevant to Claim II
68. Plaintiff Zeringue seeks certification of the following Class: All current and former employees who participated in Monsanto’s Cash Balance plan for at least one month after January 1, 1997.
69. Certification of the Class is appropriate under Rule 23(b)(l), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the administrator of the Plan regarding whether the actuarial value of the amounts credited to participants’ Cash Balance Accounts is reduced or accrues at a reduced rate because of age, in violation of the above-referenced provisions of ERISA and the IRC.
70. Certification of the Class is appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Plan has violated the abovereferenced ERISA and IRC accrual rules with respect to each Class Member in the same contested manner; therefore, the Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole.
71. The Class is believed to be comprised of thousands of Plan participants and is thus so numerous that joinder of all Class Members would be impracticable.
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72. There are common questions of fact and law as to each Member of the Class regarding the propriety of the identical method which the Plan has used to determine how much to credit to each Class Member’s Cash Balance Account. 73. Plaintiff Zeringue’s claims are typical of the claims of all Class Members regarding whether the Plan’s Cash Balance Account accrual practices comply with ERISA, in that all Class Members’ rights arise under the same Plan document and the same ERISA provisions. 74. Plaintiff Zeringue is an adequate representative of the Class and understands the basic issues in the case, and the undersigned attorneys are experienced and competent to handle complex class action litigation. 75. Plaintiff Zeringue has interests identical to and not in conflict with the interests of other Class Members regarding the Plan’s Cash Balance Account accrual practices. 76. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Class is impracticable. Furthermore, many Class Members injured by the Plan’s conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Plan’s actions. By contrast, a class action presents fewer management difficulties and provides the benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. Regarding Plaintiffs’ claims for class certification: 1. Certification under subsections (b)(l) and/or (b)(2) of Rule 23 of the Classes proposed in Counts I and II; 2. Approval of the Plaintiffs named in Counts I and II as representatives of their respective Classes; and 3. Appointment of the undersigned attorneys as Counsel for each of the proposed Classes.
B. Regarding Plaintiffs’ substantive claims on behalf of the Classes: 1. Judgment against the Plan and in favor of Plaintiffs and the Classes on all claims herein, including: a. An order declaring the Plan’s practices to be unlawful, as alleged in Counts I and II; b. An order permanently enjoining the Plan from continuing to engage in the unlawful practices described in Counts I and II; c. An order requiring the Plan to recalculate and pay former Plan participants the difference between the pension
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Grant M. WALKER, and Edward Zeringue, on behalf of..., 2004 WL 3112273... benefits which those former participants have received and the pension benefits which they should have received, as alleged in Counts I and II; d. Pre- and post-judgment interest and costs; e. Reasonable attorneys’ fees pursuant to the common fund doctrine or any other applicable law; and f. Any other relief this Court deems just, proper and equitable. End of Document
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 Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

GRANT M. WALKER, EDWARD ZERINGUE, and

)

RICHARD W. DRAKE, on behalf of themselves and )

all others similarly situated,

)

)

Plaintiffs,

)

v.

)

)

THE MONSANTO COMPANY PENSION PLAN

) Case No. 03:04-cv-436-DRH

and THE MONSANTO COMPANY,

)

) CONSOLIDATED CLASS

Defendants.

) ACTION COMPLAINT

)

GLYNN DAVIS, EUGENE FORNERIS, and JUANITA )

HAMMOND, individually and on behalf of all

)

those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

SOLUTIA, INC. EMPLOYEES' PENSION PLAN,

)

)

Defendant.

)

)

FRED DONALDSON, ALBERT WALTER III,

)

MARY CLAWSON, SANDRA BELLON, AUDREY

)

SOKOLOSKI, and CAROL THOMAS, individually )

and on behalf of all those similarly situated,

)

)

Plaintiffs,

)

v.

)

)

PHARMACIA CASH BALANCE PENSION PLAN,

)

PHARMACIA CORPORATION, PHARMACIA &

)

UPJOHN COMPANY, PFIZER, INC.,

)

)

Defendants.

)

CONSOLIDATED CLASS ACTION COMPLAINT

Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 2 of 40
General facts relevant to multiple Counts THE PARTIES
1. At times relevant to this Complaint, Plaintiffs have been participants in one or more of three substantially identical cash balance pension plans sponsored by Defendant Monsanto Company (Monsanto), non-party Solutia, Inc. (Solutia), or Defendant Pharmacia Corporation (Pharmacia).
Plaintiffs asserting claims against the Monsanto Defendants 2. Plaintiff Grant Walker, a resident of Edgard, Louisiana, worked as a maintenance technician at the Monsanto plant in Luling, Louisiana, from September 8, 1975, until February 28,2003. 3. Plaintiff Edward Zeringue, a resident of Des Allemands, Louisiana, worked at the Monsanto plant in Luling, Louisiana, from April 29, 1973, until December 31, 2001, before retiring as a unit specialist. 4. Plaintiff Richard Drake, a resident of Lebanon, Illinois, in this District, worked at Monsanto's St. Louis headquarters from September, 1975, until retiring from Monsanto as a Senior Database Analyst in August, 2002.
Plaintiffs asserting claims against the Solutia Defendant 5. Plaintiff Glynn Davis, a resident of Belleville, Illinois, in this District, was employed by Monsanto in various non-union, salaried positions at its WG Krummrich facility in Sauget, Illinois, in this District, and other St. Louis area facilities from June 2, 1969, until August 31, 1997, and then was employed by Solutia at the same plant in this District from September 1, 1997, until retiring as a Manufacturing Technologist on July 31,2002.
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6. Plaintiff Eugene Fomeris, a resident of Belleville, Illinois, in this District, was employed by Monsanto in various non-union, salaried positions at its WG Krummrich facility in Sauget, Illinois, in this District, from September 24, 1964, until retiring on November 1, 1999.
7. Plaintiff Juanita Hammond, a resident of Belleville, Illinois, in this District, worked in various non-union, salaried positions at the Monsanto/Solutia WG Krummrich plant in Sauget, Illinois, in this District from 1979 until retiring as a Paymaster on or about May 1,2003.
Plaintiffs asserting claims against the Pharmacia Defendants 8. Plaintiff Fred Donaldson, a resident of Collinsville, Illinois, in this District, was employed by Monsanto at its facilities in S1. Louis, Missouri, from 1992 until August 31, 2000, and then by Pharmacia from September 1,2000, until terminated on August 7, 2006. 9. Plaintiff Albert Walter, III, a resident of S1. Ann, Missouri, was employed by Monsanto at its facilities in S1. Louis, Missouri, from 1986 until August 31, 2000, and then by Pharmacia from September 1,2000, until terminated on August 7, 2006. 10. Plaintiff Mary Clawson, a resident of Ballwin, Missouri, was employed by Monsanto at its headquarters in S1. Louis, Missouri, from January 2, 1985, until August 31, 2000, and then by Pharmacia from September 1, 2000, until retiring as a Human Resources IT Specialist on February 6, 2004. 11. Plaintiff Sandra Bellon, a resident of Ballwin, Missouri, was employed by Monsanto at its headquarters in St. Louis, Missouri, from 1974, until separating on April 1, 1999. 12. Plaintiff Audrey Sokoloski, a resident of Kirkwood, Missouri, was employed by Monsanto at its headquarters in S1. Louis, Missouri, from September 1969, until retiring on May 31, 1997.
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13. Plaintiff Carol Thomas, a resident of St. Louis, Missouri, was employed by Monsanto at its headquarters in St. Louis, Missouri, from August 2, 1971, until separating on February 1,2001.
Defendants 14. Defendants Monsanto Company Pension Plan (the "Monsanto Plan"), Solutia, Inc. Employees' Pension Plan (the "Solutia Plan"), and Pharmacia Cash Balance Pension Plan (the "Pharmacia Plan"), are "defined" benefit plans within the meaning of the Employment Retirement Income Security Act (ERISA), § 3(35), 29 U.S.C. § 1002 (35). 15. Defendant Monsanto, a Delaware corporation, headquartered in Creve Coeur, Missouri, sponsors the Monsanto Plan. 16. Defendant Pharmacia, a Delaware corporation, headquartered in Peapack, New Jersey, sponsors the Pharmacia Plan. Pharmacia is a wholly owned subsidiary of Pfizer, Inc. 17. Defendant Pfizer, Inc. (Pfizer), a Delaware corporation headquartered in New York, New York, also sponsors the Pharmacia Plan. 18. Defendant Pharmacia & Upjohn Company ("P&U Company"), a Delaware limited liability company headquartered in Peapack, New Jersey, also sponsors the Pharmacia Plan. P&U Company is a wholly owned subsidiary of non-party Pharmacia & Upjohn LLC, which is a wholly owned subsidiary of Pharmacia, which is a wholly owned subsidiary of Pfizer.
JURISDICTION AND VENUE 19. This Court has jurisdiction over the subject matter of the claims asserted in this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). 20. Venue is proper in this District under 29 U.S.C. § 1132(e)(2) because breaches upon which the suit is premised occurred in this judicial district, damages occurred directly to
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Plaintiffs in this District, and/or because the Defendants to each claim reside or may be found in this District.
NATURE OF THE ACTION 21. Plaintiffs seek injunctive relief pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), in the form of a declaration that the respective Plans' method of computing their pension benefits and the pension benefits of all similarly situated participants was unlawful. 22. Plaintiffs seek injunctive relief pursuant to ERISA § 502(a)(3), 29 U.S.C. §1132(a)(3), in the form of a court order requiring the respective Plans to recalculate their pension benefits and the pension benefits of all similarly situated participants in accordance with the requirements of ERISA. 23. Incidental to the injunctive relief sought pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), and mechanically flowing from that injunctive relief, Plaintiffs also seek a court order requiring the respective Plans to create a common fund from which Defendants may be ordered to make a retroactive payment of pension benefits to Plaintiffs and all other similarly situated participants in an amount equal to the difference between what Plaintiffs and class members were paid under the unlawful method of computing their pension benefits and what the court-ordered recalculation of pension benefits shows they should have been paid. 24. Alternatively, Plaintiffs seek a judgment pursuant to ERISA § 502(a)(l)(B), 29 U.S.C. §1132(a)(l)(B), against the respective Plans for the unlawful computation of their pension benefits in violation of ERISA and seek damages in the form of a common fund to recover pension benefits due them based upon a lawful computation of their pension benefits.
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THE ADOPTION OF SUBSTANTIALLY IDENTICAL CASH BALANCE PLANS BY MONSANTO, SOLUTIA, AND PHARMACIA 25. Immediately before and after January 1, 1997, Monsanto consisted of three business units: agricultural, chemicals, and pharmaceuticals/nutrition. 26. Effective January 1, 1997, Monsanto converted to a cash balance pension plan for employees in the above-referenced business units, with the exception of hourly union employees in the chemicals unit. 27. Monsanto's cash balance plan has covered agricultural unit employees continuously since January 1, 1997. 28. Prior to September 1, 1997, the business of Monsanto's chemicals unit was conducted by Solutia as a wholly-owned subsidiary of Monsanto. 29. On September 1, 1997, Monsanto spun Solutia off as an independent corporation. 30. On September 1, 1997, the Solutia Plan was created as a cash balance plan substantially identical to the cash balance plan to which Monsanto had converted on January 1, 1997. 31. The Solutia Plan covered salaried and non-umon hourly employees from Monsanto's chemicals business unit. 32. On April 1, 2000, Monsanto split itself into two companies: "New" Monsanto, which conducted the agricultural unit business, and Pharmacia, which conducted the pharmaceutical and nutrition business. New Monsanto was initially a subsidiary ofPharmacia. 33. On September 1,2000, New Monsanto and Pharmacia separated into independent compames.
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34. From January 1, 1997, until December 31, 2001, by agreement between New Monsanto and Pharmacia, the Pharmacia pharmaceutical and nutrition employees continued to participate in the Monsanto Plan.
35. Effective January 1,2002, the Pharmacia Plan was created as a cash balance plan substantially identical to Monsanto's.
36. On or about June 30, 2002, the Pharmacia cash balance plan was frozen and merged into a new plan known as the Pharmacia Pension Plan, a non-cash balance plan which is not a party to this case.
HOW THE IDENTICAL CASH BALANCE PLANS WORK 37. Unless otherwise indicated, all further references to the "Plan" in this Complaint are intended as references to the common practices or the substantially identical features or practices of the Monsanto cash balance plan since January 1, 1997; of the Solutia cash balance plan since September 1, 1997; and of the Pharmacia cash balance plan from January 1, 2002 through June 30, 2002. 38. At all times relevant to this Complaint, the Plan has been a defined benefit plan within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. 39. Unlike defined contribution plans, defined benefit plans offer pensions in amounts which do not depend upon the investment return on the money set aside in a trust to fund the benefits. 40. Immediately prior to January 1, 1997, the Monsanto Plan and related ERISA plans whose participants were transferred into the Monsanto Plan on January 1, 1997, were traditional defined benefit plans.
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41. In a traditional defined benefit plan, monthly pension benefits are based upon a formula that takes into account either a specified dollar amount per years of service or a specified percentage of a participant's salary in the final year or years of his employment.
42. Although cash balance plans are considered defined benefit plans, cash balance plans differ from traditional defined benefit plans because the pension benefits provided by cash balance plans are derived from hypothetical participant accounts, rather than the sort of formula used in traditional defined benefits plans, as described in the preceding paragraph.
43. Pension payments made by the cash balance plans involved in this case have been based upon one or both of two hypothetical accounts established for participants on or after January 1, 1997: the Cash Balance Account (CBA) and the Prior Plan Account (PPA).
44. The Plan's stated practice has been to offer participants the option of pension benefits in the form of (a) a lump sum payment equal to the sum ofthe balances in the CBA and PPA; (b) for single participants who begin receiving pension benefits at age 55 or older, a singlelife annuity equal to the sum of the CBA and PPA balances divided by 125; or (c) other types of annuities with reductions in case the participant begins receiving his benefit before age 55 and/or elects a payment option which might continue annuity payments past the participant's lifetime. For example, an unmarried cash balance participant 55 or older with a combined total of $125,000 in his CBA and PPA could choose either a lump sum pension payment of $125,000 or a single-life annuity of$I,OOO per month.
THE CASH BALANCE ACCOUNT 45. The initial balance in each participant's CBA is always zero. 46. The Plan provides for each participant's CBA to grow by the addition of three sorts of credits:
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a. Contribution credits; b. Transition credits; and c. Interest credits. 47. Contribution credits are added to the CBA at the end of each year of employment. Contribution credits range from 3% to 7% of eligible pay, depending upon the participant's age, plus 3% of eligible pay in excess ofthe Social Security wage base. 48. For cash balance participants who had been active participants in a Monsanto pension plan as of December 31, 1996, transition credits are added to the CBA at the end of the year for up to ten years after January 1, 1997 (depending on prior service), for as long as those participants remain employed by a plan sponsor after that date. Transition credits range from 2% to 6% of eligible pay, depending upon the participant's age. 49. Interest credits are added to the CBA monthly until pension benefits start. CBA interest credits equal a percentage of the amount in the participant's CBA. The CBA interest crediting rate is "the average yield for 3D-year Treasury Bonds for the October of the preceding Plan Year; provided that the Interest Rate for any Plan Year shall not be less than 5% nor more than 10%." Plan, § 3.35.
THE PRIOR PLAN ACCOUNT 50. In addition to CBA's, Prior Plan Accounts (PPA's) are maintained for cash balance participants who were active participants in a Monsanto pension plan immediately before January 1, 1997. 51. The PPA began simultaneously with the CBA on January 1, 1997, and initially consisted of the calculated present value of the pre-1997 accrued benefits under the traditional defined benefit plans which were in effect prior to 1997.
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52. The Plan provides for eligible participants' PPA accounts to grow by the addition of two types of credits:
a. pay credits and
b. interest credits. 53. Pay credits are added to the PPA monthly for as long as the participant remains employed by a plan sponsor. PPA pay credits are paid at an annual rate of 4% of the PPA account balance; PPA pay credits are not based upon a percentage ofthe participant's pay. 54. Interest credits are added to the PPA balance monthly until the participant reaches age 55, or starts his benefits, whichever date is earlier. PPA interest credits are paid at an annual rate of 8.5% of the PPA account balance.
BENEFITS RECEIVED BY PLAINTIFFS WHO HAVE TAKEN PENSION DISTRIBUTIONS The Monsanto Plaintiffs
55. Following retirement from Monsanto after age 55, Plaintiff Walker opted to receive his pension benefits in the form of a lump sum payment, as permitted by Option 4 under section 7.3(d) of the Plan. Plaintiff Walker received a lump sum payment equal to the sum of the balances in his CBA and PPA.
56. Following retirement from Monsanto at age 53, Plaintiff Zeringue opted to receive his pension benefits in the form of a lump sum payment, as permitted by Option 4 under section 7.3(d) of the Plan. Plaintiff Zeringue received a lump sum payment equal to the sum of the balances in his CBA and PPA.
57. Following retirement from Monsanto after age 55, Plaintiff Drake opted to receive his pension benefits in the form of a Qualified Joint and Survivor Annuity. This annuity equals
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the quotient of the sum of the balances in his CBA and PPA, divided by 125, with a reduction for the purpose of providing a 50% annuity to his spouse in case she survives him.
The Solutia Plaintiffs 58. Following retirement from Solutia at age 55, Plaintiff Davis opted to receive his pension benefits in the form of a lump sum payment, as permitted by Option 4 under Section 7.3(d) of the Plan. Plaintiff Davis received a lump sum payment equal to the sum of the balances in his CBA and PPA. 59. Following retirement from Solutia at age 55, Plaintiff Fomeris opted to receive his pension benefits in the form of a lump sum payment, as permitted by Option 4 under Section 7.3(d) of the Plan. Plaintiff Fomeris received a lump sum payment equal to the sum of the balances in his CBA and PPA. 60. Following retirement from Solutia after age 55, Plaintiff Hammond opted to receive her pension benefits in the form of a lump sum payment, as permitted by Option 4 under Section 7.3(d) of the Plan. Plaintiff Hammond received a lump sum payment equal to the sum of the balances in her CBA and PPA.
The Pharmacia Plaintiffs 61. Following her retirement from Pharmacia at age 65, Plaintiff Clawson opted to receive her pension benefits in the form of a lump sum payment, as permitted by Option 4 under Section 7.3(d) of the Plan. Plaintiff Clawson received a lump sum payment equal to the sum of the balances in her CBA and PPA. 62. Following her separation from Monsanto at age 51, Plaintiff Bellon opted to receive her pension benefits in the form of a lump sum payment, as permitted by Option 4 under
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Section 7.3(d) of the Plan. Plaintiff Bellon received a lump sum payment equal to the sum ofthe balances in her eBA and PPA.
63. Following her retirement from Monsanto at age 55, Plaintiff Sokoloski opted to receive her pension benefits in the form of a Life Annuity, as permitted by Option 1 under Section 7.3(d) of the Plan. This annuity equals the quotient of the sum of the balances in her CBA and PPA, divided by 125.
64. Following her separation from Monsanto at age 50, Plaintiff Thomas opted to receive her pension benefits in the form of a lump sum payment, as permitted by Option 4 under Section 7.3(d) of the Plan. Plaintiff Thomas received a lump sum payment equal to the sum of the balances in her CBA and PPA.
OVERVIEW OF THE ALLEGED ERISA VIOLATIONS 65. As stated in Counts I-III (the Age 55 Cut-off claims), the Plan's discontinuation of PPA interest credits at age 55 violates ERISA's prohibition against causing the rate of benefit accrual and/or accrued benefit to decrease "because of the attainment of any age" or "on account of any increase in ... age" and provisions regarding the non-forfeitability and accrual of vested pension benefits. These violations have resulted and will continue to result in the underpayment of pension benefits to both lump sum recipients with PPA's and annuitants with PPA's who work past age 55. 66. As stated in Alternative Counts IV-VI (the Backloading claims), the Plan has underpaid and continues to underpay pension benefits to cash balance participants with PPA's. The Plan's rate of benefit accrual violates ERISA backloading provisions, which are designed to ensure that benefits accrue ratably over the course of a participant's employment.
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67. As stated in Alternative Counts IV-IX (the Age Discrimination claims), the Plan has underpaid pension benefits to the overall Class of cash balance participants. The actuarial values of non-interest credits to Class Members' accounts are improperly reduced or increase at a reduced rate because of participants' age. This practice violates ERISA prohibitions against age discrimination.
68. As stated in Count X (the Late Lump Sum claim), the Monsanto Plan has violated and continues to violate its own terms requiring that 8.5% PPA interest credits continue "regardless of age" when there is a delay of more than a calendar month in the payment of lump sum benefits.
COUNT I--Age 55 Cut-Off Claim against the Monsanto Defendants 69. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Solutia Plan and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Monsanto Age 55 Cut-Off Class Definition 70. Plaintiffs Walker, Zeringue, and Drake bring Count I individually and on behalf ofthe Monsanto Age 55 Cut-Off Class defined as follows:
All current Monsanto Plan participants and all vested former Monsanto Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Monsanto Age 55 Cut-Off Class are participants who terminated employment with Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Monsanto Plan and/or Monsanto have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Solutia Plan or Pharmacia
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Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Monsanto's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family.
Substantive Allegations Related to the Monsanto Age 55 Cut-Off Claim 71. The Plan's failure to add future PPA interest credits to participants' Prior Plan Accounts after the age of 55 constitutes unenforceable age discrimination in violation of ERISA. Subsection (H) of29 U.S.C. § 1054 prohibits "an employee's benefit accrual ... or the rate of an employee's benefit accrual [from being] ... reduced, because of the attainment of any age." Subsection (G) of the same statute prohibits "the participant's accrued benefit [from being] ... reduced on account of any increase in his age[.]" 72. The Plan's failure to add future PPA interest credits to participants' Prior Plan Accounts after the age of 55 has caused and will continue to cause the annuities paid to PPA participants who work after the age of 55, including Plaintiff Drake, to be too low, because the Plan bases those annuities upon the quotient of the sum of the balances in the CBA and PPA accounts, divided by 125. 73. The illegality of the Plan's discontinuation of PPA interest credits at age 55 has caused and will continue to cause the lump sums paid to participants with PPA's (including the lump sums paid to all Plaintiffs who received lump sum distributions) to be too low. The lump sums paid violate ERISA's requirement that any lump sum be at least the actuarial equivalent of the participant's accrued benefit expressed in the form of an annual benefit commencing at "normal retirement age," which is 65 under the Plan. In other words, any lump sum distribution
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must equal at least the present value of the stream of pension benefits which the participant would receive if he waited until normal retirement age (65) and then took his benefits in the form of pension payments for the rest of his life. 29 U.S.C. § 1054(c)(3); 1002(23)(A).
74. The Plan itself requires that any lump sum distribution of pension benefits equal at least the "lump sum Actuarial Equivalent of Participant's Accrued Benefit." Plan § 7.3(d) ("Option 4").
75. The Plan provides the following Accrued Benefit formula which takes into consideration the amounts in the participant's CBA and PPA:
A participant's monthly Accrued Benefit is a single life annuity commencing at Normal Retirement Age equal of the quotient of (a) the Participant's current Accounts plus interest credits added to the Prior Plan Account through age 55 pursuant to Section 6.2(d) and interest credits added to the Cash Balance Account through Normal Retirement Age pursuant to Section 6.3(d) divided by (b) 125. Plan, § 3.2. 76. Determining the lump sum actuarial equivalent of a participant's accrued benefit involves a three-step process known as a "whipsaw" calculation. 77. The lump sum benefits which the Plan has paid to members of this Age 55 CutOff Class, including the lump sum recipient representatives of the Class, have been less than the actuarial equivalent of the Plan's accrued benefit, primarily because the Plan's whipsaw calculations do not include PPA interest through the normal retirement age of 65, as required by ERISA. 78. Paying Plan participants less than the actuarial equivalent of their accrued normal retirement benefit violates the ERISA and parallel IRC provisions regarding both the non-
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forfeitability and accrual of vested pension benefits. 29 U.S.C. §§ 1053(a)(2); 1054(b)(I); 26 U.S.C. §§ 411(a)(2) and (b)(l).
Allegations Concerning Certification of the Age 55 Cut-Off Class 79. This Age 55 Cut-Off Class can be identified by objective criteria in records maintained by one or both Defendants. 80. Certification of the Age 55 Cut-Off Class is appropriate under Rule 23(b)(I), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Plan regarding whether PPA interest credits should continue after age 55. 81. Certification of the Age 55 Cut-Off Class is also appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Plan has underpaid and continues to underpay pension benefits in the same contested manner by refusing to provide PPA credits past age 55; therefore, the Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or declaratory relief with respect to the Class as a whole. 82. Alternatively, certification of the Age 55 Cut-Off Class is also appropriate under Rule 23(b)(3), Fed.R.Civ.P., because there are predominant common questions of fact and law as to whether the Plan's discontinuation ofPPA interest credits at age 55 is legal. 83. The Age 55 Cut-Off Class is comprised of thousands of current and former Plan participants and is thus so numerous that joinder of all Class Members would be impracticable. 84. Common questions of law and fact exist as to all members of the Age 55 Cut-Off Class and predominate over any questions affecting solely individual members of the Class. The common questions include:
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a. whether the Plan should be reformed to require the continuation of PPA interest credits through the normal retirement age of 65;
b. whether injunctive relief is appropriate under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3); and
c. whether members of the Age 55 Cut-Off Class have sustained or will sustain damage. 85. Plaintiffs' claims are typical of the claims of all Age 55 Cut-Off Class Members regarding whether the Plan's discontinuation of PPA interest credits after age 55 complies with ERISA provisions concerning age discrimination, forfeiture, and accrual, in that the Plan is uniform in its practice of not paying PPA interest credits after the age of 55. 86. Plaintiffs are adequate representatives of the Age 55 Cut-Off Class, III that Plaintiffs understand the basic issues in the case, and the undersigned attorneys are experienced and competent to handle complex class action litigation. 87. Plaintiffs have interests identical to and not in conflict with the interests of other Age 55 Cut-Off Class Members regarding the method and legality of the Plan's discontinuation ofPPA interest credits after age 55. 88. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Age 55 Cut-Off Class is impracticable. Furthermore, many Class Members injured by the Plan's conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Plan's actions.
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By contrast, a class action presents fewer management difficulties and provides the benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
COUNT II--Age 55 Cut-Off Claim against the Solutia Plan 89. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Solutia Age 55 Cut-Off Class Definition 90. Plaintiffs Davis, Fomeris, and Hammond bring Count II individually and on behalf of the Solutia Age 55 Cut-Off Class defined as follows:
All current Solutia Plan participants and all vested former Solutia Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Solutia Age 55 Cut-Off Class are participants who terminated employment with Solutia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Solutia Plan has no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Solutia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family. 91. The Solutia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count I Age 55 Cut-Off Claim against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 71-88.
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COUNT III--Age 55 Cut-Off Claim against the Pharmacia Defendants 92. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto Defendants and the Solutia Plan are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Pharmacia Age 55 Cut-Off Class Definition 93. Plaintiffs Donaldson, Walter, Clawson, Bellon, Sokoloski, and Thomas bring Count III individually and on behalf of the Pharmacia Age 55 Cut-Off Class defined as follows:
All current Pharmacia Plan participants and all vested former Pharmacia Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Pharmacia Age 55 Cut-Off Class are participants who terminated employment with Pharmacia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Pharmacia Plan and/or Pharmacia have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto Defendants or the Solutia Plan; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Pharmacia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family. 94. The Pharmacia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count I Age 55 Cut-Off Claim against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 71-88.
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THE FOLLOWING COUNTS IV-VI ARE PLEAD IN THE ALTERNATIVE COUNT IV-Backloading Claim against the Monsanto Defendants
95. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Solutia and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Monsanto Backloading Class Definition 96. Plaintiffs Walker, Zeringue, and Drake bring Count IV individually and on behalf of the Monsanto Backloading Class defined as follows:
All current Monsanto Plan participants and all vested former Monsanto Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Monsanto Backloading Class are participants who terminated employment with Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Monsanto Plan and/or Monsanto have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Solutia Plan or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Monsanto's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family. Substantive Allegations Related to the Monsanto Backloading Claim 97. As a defined benefit plan, the Plan must comply with ERISA backloading provisions whose purpose is to prevent Plan participants from being locked into a particular
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employment because their pension benefits are worth relatively little unless participants work for the same employer for many years. IRS Notice 96-8; 26 U.S.C. §§ 41l(a), (b)(l); 29 U.S.C. § 1054(c)(3).
98. In order to comply with ERISA backloading requirements, defined benefit plans must satisfy one of the three backloading tests codified at 29 U.S.C. § 1054(b)(1)(A), (B), (C).
99. The only one of the above-referenced backloading tests which the Plan could possibly meet is the "133 1/3%" subsection B test. According to that test,
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 play 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. 29 U.S.C. § 1054(b)(l)(B). 100. Under the 133 1/3% backloading test, the rate of benefit accrual in any later plan year cannot be more as a percentage of compensation than 133 1/3% of the rate of benefit accrual in any prior year. For example, if a participant's rate of benefit accrual in his first year of employment under a defined benefit plan equals 3% of his compensation, there is a violation of the 133 1/3% test if that participant's benefits in any subsequent plan year exceed 4% of his compensation in that year. 101. The Plan violates the 133 1/3% test with respect to members of the Backloading Class.
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Allegations Concerning Certification of the Backloading Class 102. This Backloading Class can be identified by objective criteria III records maintained by one or both Defendants. 103. Certification of the Backloading Class is appropriate under Rule 23(b)(1), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Plan, regarding whether the rate of benefit accrual for the Class is backloaded and how the Plan should remedy any backloading violation. 104. Certification of the Backloading Class is appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Plan has violated and continues to violate ERISA backloading requirements with respect to members of this Class in the same contested manner; therefore, the Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 105. Alternatively, certification of the Backloading Class is also appropriate under Rule 23(b)(3), Fed.R.Civ.P., because there are predominant common questions of fact and law as to whether the rate of benefit accrual under the Plan is impermissibly backloaded with respect to members of this Class. 106. The Backloading Class is believed to be comprised of thousands of Plan participants and is thus so numerous that joinder of all Class Members would be impracticable. 107. Common questions of law and fact exist as to all members of the Backloading Class and predominate over any questions affecting solely individual members of the Class. The common questions include:
a. whether the Plan has improperly backloaded benefits III violation of ERISA;
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b. how the Plan's alleged backloading violation should be remedied; c. whether injunctive relief is appropriate under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3); and d. whether members of the Backloading Class have sustained and will sustain damage. 108. Plaintiffs' claims are typical of the claims of all Backloading Class Members regarding whether the Plan's rate of accrual complies with ERISA's prohibition against backloading, in that the same backloading test applies to the benefits accrued by all Class Members and all Class Members have had both Cash Balance and Prior Plan Accounts. 109. Plaintiffs are adequate representatives of the Backloading Class, in that Plaintiffs understand the basic issues in the case and the undersigned attorneys are experienced and competent to handle complex class action litigation. 110. Plaintiffs have interests identical to and not in conflict with the interests of other Backloading Class Members regarding whether the Plan's rate of benefit accrual is impermissibly backloaded with respect to members ofthis Class. 111. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Backloading Class is impracticable. Furthermore, many Class Members injured by the Plan's conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Plan's actions.
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By contrast, a class action presents fewer management difficulties and provides the benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
COUNT V-Backloading Claim against the Solutia Plan 112. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Solutia Backloading Class Definition 113. Plaintiffs Davis, Fomeris, and Hammond bring Count V individually and on behalf of the Solutia Backloading Class defined as follows:
All current Solutia Plan participants and all vested former Solutia Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Solutia Backloading Class are participants who terminated employment with Solutia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Solutia Plan has no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Solutia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family. 114. The Solutia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count IV Backloading Claim against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 97-111.
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COUNT VI-Backloading Claim against the Pharmacia Defendants 115. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto Defendants and the Solutia Plan are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Pharmacia Backloading Class Definition 116. Plaintiffs Donaldson, Walter, Clawson, Bellon, Sokoloski, and Thomas bring Count VI individually and on behalf of the Pharmacia Backloading Class defined as follows:
All current Pharmacia Plan participants and all vested former Pharmacia Plan participants (and their beneficiaries) who had active Cash Balance and Prior Plan Accounts on and after January 1, 1997. Excluded from the Pharmacia Backloading Class are participants who terminated employment with Pharmacia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Pharmacia Plan and/or Pharmacia have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto Defendants or the Solutia Plan; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Pharmacia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family. 117. The Pharmacia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count IV Backloading Claim against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 97-111.
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THE FOLLOWING COUNTS VII-IX ARE PLEAD IN THE ALTERNATIVE COUNT VII-Age Discrimination Claim against the Monsanto Defendants 118. All paragraphs of the preceding "General facts" section of this Complaint which
are not specific to the claims against the Solutia and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Monsanto Age Discrimination Class Definition 119. Plaintiffs Walker, Zeringue, and Drake bring Count VII individually and on behalf ofthe Age Discrimination Class defined as follows:
All current Monsanto Plan participants and all vested former Monsanto Plan participants (and their beneficiaries) who have had active Cash Balance Accounts at any time since January 1, 1997. Excluded from the Monsanto Age Discrimination Class are participants who terminated employment with Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Monsanto Plan and/or Monsanto have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Solutia Plan or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Monsanto's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family.
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Substantive Allegations Related to the Monsanto Age Discrimination Claim 120. Regardless of the form in which Plan participants have elected to receive pension benefits, pension payments made to Plan participants have violated and continue to violate ERISA's prohibitions against age discrimination. 121. ERISA prohibits the actuarial value of any Plan participant's accrued benefit from being "reduced on account of any increase in ... age." 29 U.S.C. § 1054 (b)(l)(G); 29 U.S.C. § 1002 (23)(A). 122. ERISA also prohibits the actuarial value of any Plan participant's "rate of benefit accrual (from being reduced) because of the attainment of any age." 29 U.S.C. § 1054 (b)(I)(H); 29 U.S.C. § 1002 (23)(A). 123. The actuarial value of the amounts credited to the Cash Balance and Prior Plan Accounts of all participants, including Plaintiffs, is reduced or increases at a reduced rate on account of age, in violation of ERISA § 204(b)(I)(G) & (H), 29 U.S.C. § 1054(b)(I)(G) & (H). 124. In order to comply with the above-referenced ERISA prohibitions against age discrimination, the Plan should provide to participants' Cash Balance and Prior Plan Accounts non-interest credits which increase each year as participants grow older. 125. Because Plan participants' pension benefits are based upon the CBA and PPA, all pension benefits paid to Plan participants, including Plaintiffs, have been too low to comply with ERISA.
Allegations Concerning Certification of the Age Discrimination Class 126. This Age Discrimination Class can be identified by objective criteria in records maintained by one or both Defendants.
27

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127. Certification of the Age Discrimination Class is appropriate under Rule 23(b)(1), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Plan regarding whether the actuarial value of the amounts credited to participants' accounts is reduced or accrues at a reduced rate because of age, in violation of the above-referenced provisions of ERISA.
128. Certification of the Age Discrimination Class is appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Plan has violated the above-referenced ERISA provisions with respect to each Class Member in the same contested manner; therefore, the Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole.
129. Alternatively, certification of the Age Discrimination Class is also appropriate under Rule 23(b)(3), Fed.R.Civ.P., because there are predominant common questions of fact and law as to each Member of the Class regarding the propriety of the identical method which the Plan has used to determine how much to credit to each Class Member's accounts.
130. The Age Discrimination Class is comprised of thousands of current and former Plan participants and is thus so numerous that joinder of all Class Members would be impracticable.
131. Common questions of law and fact exist as to all members of the Age Discrimination Class and predominate over any questions affecting solely individual members of the Class. The common questions include:
a. whether the benefits provided under the terms of the Plan improperly accrue at a reduced rate based on age;
28

Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 29 of 40
b. whether the benefits earned under the Plan are calculated correctly as required by ERISA;
c. whether injunctive relief is appropriate under ERISA § 502(a)(3), 29 U.S.C. § I 132(a)(3); and
d. whether members of the Age Discrimination Class have sustained and will sustain damage. 132. Plaintiffs' claims are typical of the claims of all Class Members regarding whether the Plan's cash balance accrual practices comply with ERISA, as alleged in this Age Discrimination claim, in that all Class Members' rights arise under the same Plan document and the same ERISA provisions. 133. Plaintiffs are adequate representatives of the Age Discrimination Class, in that Plaintiffs understand the basic issues in the case and the undersigned attorneys are experienced and competent to handle complex class action litigation. 134. Plaintiffs have interests identical to and not in conflict with the interests of other Class Members regarding the Plan's accrual practices alleged in this Age Discrimination Count. 135. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Age Discrimination Class is impracticable. Furthermore, many Class Members injured by the Plan's conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Plan's actions. By contrast, a class action presents fewer management difficulties and provides the
29

Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 30 of 40
benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
COUNT VIII--Age Discrimination Claim against the Solutia Plan 136. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Solutia Age Discrimination Class Definition 137. Plaintiffs Davis, Fomeris, and Hammond bring Count VIII individually and on behalf of the Solutia Age Discrimination Class defined as follows:
All current Solutia Plan participants and all vested former Solutia Plan participants (and their beneficiaries) who had active Cash Balance Accounts on and after January 1, 1997. Excluded from the Solutia Age Discrimination Class are participants who terminated employment with Solutia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Solutia Plan has no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Solutia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family.
30

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138. The Solutia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count VII Age Discrimination against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 120-135.
COUNT IX-Age Discrimination Claim against the Pharmacia Defendants 139. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Monsanto and Solutia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Pharmacia Age Discrimination Class Definition 140. Plaintiffs Donaldson, Walter, Clawson, Bellon, Sokoloski, and Thomas bring Count IX individually and on behalf of the Pharmacia Age Discrimination Class defined as follows:
All current Pharmacia Plan participants and all vested former Pharmacia Plan participants (and their beneficiaries) who had active Cash Balance Accounts on and after January 1, 1997. Excluded from the Pharmacia Age Discrimination Class are participants who terminated employment with Pharmacia prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from this Class are any individuals for whose pension benefits the Pharmacia Plan and/or Pharmacia have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Monsanto Defendants or the Solutia Plan; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Pharmacia's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family.
31

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141. The Pharmacia Plaintiffs incorporate the substantive and certification-related paragraphs of the Count VII Age Discrimination Claim against the Monsanto Defendants, as if those paragraphs were fully set out here. The incorporated paragraphs are numbers 120-135.
COUNT X-Late Lump Sum Claim against the Monsanto Defendants 142. All paragraphs of the preceding "General facts" section of this Complaint which are not specific to the claims against the Solutia and Pharmacia Defendants are incorporated as if fully set forth here. The incorporated paragraphs are numbers 1-68.
Monsanto Late Lump Sum Class Definition 143. Plaintiff Zeringue brings Count X individually and on behalf of the Monsanto Late Lump Sum Class defined as follows:
All former Monsanto Plan participants (and their beneficiaries) with PPA's who have taken a lump sum distribution more than a complete calendar month after their Benefit Commencement Date and all Monsanto Plan participants (and their beneficiaries) with PPA's who have not yet taken a distribution of their pension benefits. Excluded from this Class are any individuals for whose pension benefits the Monsanto Plan and/or Monsanto have no first party responsibility, including those individuals whose pension obligations are the exclusive first party responsibility of any of the Solutia Plan or Pharmacia Defendants; Defendants; members and staff of the Employee Benefits Plans Committee; any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants' legal representatives (including employees of Monsanto's Law Department), assigns, and successors; and any judges assigned to this case and any member of such judge's immediate family.
Exhaustion of Administrative Remedies 144. Plaintiff has exhausted his administrative remedies with respect to this claim.
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Substantive Allegations Related to the Late Lump Sum Claim 145. In pertinent part, section 7.3(e)(v) of the Monsanto Plan provides that the Prior Plan Accounts of lump sum recipients who are "paid ... after the calendar month containing the Participant's Annuity Starting Date ... shall be credited with Interest Credits in accordance with Section 6.2(d) (regardless of the Participant's age) ... for each complete calendar month in the period beginning on the first day of the month containing his Annuity Starting Date and ending on the first day of the month in which the Lump Sum Distribution is made to the Participant." 146. Section 3.10 of the Monsanto Plan defines Annuity Starting Date as "[t]he first day of the first period for which an amount is payable under the Plan to a Participant or Beneficiary as an annuity or any other form." 147. In its letter denying Plaintiff Zeringue's administrative claim, the Committee which administers the Monsanto Plan acknowledged that the interest required by section 7.3(e)(v) of the Monsanto Plan is due whenever a lump sum distribution is "paid after the benefit commencement date[,]" which the Committee defines as "[t]he date on which the participant chooses to receive his/her benefit[.]" 148. Despite Monsanto Plan section 7.3(e)(v)'s requirement of 8.5% PPA interest on lump sum distributions paid after the benefit commencement date, the Monsanto Plan Committee acknowledged in its denial letter that it pays only lower PPA interest (typically, around 5%) based upon the average yield of 30-year Treasury Bonds on delayed lump sum distributions. 149. Plaintiff Zeringue received his lump sum distribution on March 1, 2002, more than a complete calendar month after the January 1, 2002, benefit commencement date on which Zeringue chose to receive his benefit.
33

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150. Rather than being credited with the 8.5% PPA interest required by section 7.3(e)(v) of the Monsanto Plan, Plaintiff Zeringue's PPA Account was credited only with interest based upon the above-referenced 30-year Treasury Bond during the two-month delay in the payment of Zeringue's lump sum distribution.
Allegations Concerning Certification of the Late Lump Sum Class 151. The Monsanto Late Lump Sum Class can be identified by objective criteria in records maintained by one or both Defendants. 152. Certification of the Monsanto Late Lump Sum Class is appropriate under Rule 23(b)(1), Fed.R.Civ.P., because there is a risk that the prosecution of separate actions would establish incompatible standards of conduct for the Monsanto Plan regarding whether members of this Class are entitled to 8.5% PPA interest credits when there is a lag in the payment of their lump sum benefits, as described above. 153. Certification of the Monsanto Late Lump Sum Class is appropriate under Rule 23(b)(2), Fed.R.Civ.P., because the Monsanto Plan has underpaid and continues to underpay the lump sum distributions of Members of the Class in the same contested manner; therefore, the Monsanto Plan has acted or refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 154. Alternatively, certification of the Monsanto Late Lump Sum Class is also appropriate under Rule 23(b)(3), Fed.R.Civ.P., because there are predominant common questions of fact and law as to whether the Monsanto Plan has underpaid and continues to underpay PPA interest credits to Members of the Class during lag periods between their Annuity Starting Date and lump sum distribution date.
34

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155. The Monsanto Late Lump Sum Class is comprised of at least hundreds of Monsanto Plan participants and is thus so numerous that joinder of all Class Members would be impracticable.
156. Common questions of law and fact exist as to all members of the Monsanto Late Lump Sum Class and predominate over any questions affecting solely individual members of the Class. The common questions include:
a. the meaning of Section 7.3(e)(v) of the Monsanto Plan; b. whether injunctive relief is appropriate under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3); and c. whether Monsanto Late Lump Sum Class Members have received and will receive the additional PPA credits due under Section 7.3(e)(v) of the Monsanto Plan. 157. Plaintiff Zeringue's claim is typical of the claims of Members of the Monsanto Late Lump Sum Class regarding whether the Monsanto Plan underpays PPA interest credits during "lag periods" prior to the distribution of lump sum benefits, in that all Class Members' entitlement to additional PPA interest credits during such lag periods is based upon the same provision of the Monsanto Plan. 158. Plaintiff Zeringue is an adequate representative of the Monsanto Late Lump Sum Class, in that Plaintiff understands the basic issues in the case and the undersigned attorneys are experienced and competent to handle complex class action litigation. 159. Plaintiff Zeringue has interests identical to and not in conflict with the interests of other Monsanto Late Lump Sum Class Members regarding their entitlement to additional interest credits to their PPA accounts under Section 7.3(e)(v) of the Monsanto Plan.
35

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160. A class action is superior to other available litigation methods for the fair and efficient adjudication of this controversy, as joinder of all Members of the Monsanto Late Lump Sum Class is impracticable. Furthermore, many Class Members injured by the Monsanto Plan's conduct will not be compensated for their injuries in the absence of a class action since it is too expensive for many individual members to prosecute this litigation. Even if individual Class Members could afford to prosecute this litigation alone, individual litigation magnifies the delay and expense to all parties and to the court system of resolving the controversies engendered by the Monsanto Plan's actions. By contrast, a class action presents fewer management difficulties and provides the benefits of unitary adjudication, economies of scale and comprehensive supervision by a single court.
REQUESTS FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: A. Regarding Plaintiffs Walker's, Zeringue's and Drake's claims for Class certification:
1. Certification under subsections (b)(1), (b)(2), or (b)(3) of the Classes proposed in Counts I, IV, VII, and X;
2. Approval of all three Plaintiffs as representatives of the Classes with respect to the claims stated in Counts I, IV and VII and approval of Plaintiff Zeringue as representative of the Late Lump Sum Class with respect to the claim stated in Count X; and
3. Appointment of the undersigned attorneys as Counsel for the Classes proposed in Counts I, IV, VII, and X.
36

Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 37 of 40
B. Regarding Plaintiffs Davis', Forneris' and Hammond's claims for Class certification,
1. Certification under subsections (b)(1), (b)(2), or (b)(3) of the Classes proposed in Counts II, V, and VIII;
2. Approval of all three Plaintiffs as representatives of the Classes with respect to the claims stated in Counts II, V, and VIII; and
3. Appointment of the undersigned attorneys as Counsel for the Classes proposed in Counts II, V, and VIII.
C. Regarding Plaintiffs Donaldson's, Walter's, Clawson's, Bellon's, Sokoloski's, and Thomas' claims for Class certification,
1. Certification under subsections (b)(1), (b)(2), or (b)(3) of the Classes proposed in Counts III, VI, and IX;
2. Approval of all six Plaintiffs as representatives of the Classes with respect to the claims stated in Counts III, VI, and IX.
3. Appointment of the undersigned attorneys as Counsel for the Classes proposed in Counts III, VI, and IX.
D. Regarding Plaintiffs' substantive claims on behalf of all proposed Classes: 1. Judgment against the Plan and in favor of Plaintiffs and the Classes on all claims herein, including: a. An order declaring the Plan's practices to be unlawful, as alleged in Counts I-X; b. An order permanently enjoining the Plan from continuing to engage in the unlawful practices described in Counts I-X;
37

Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 38 of 40
c. An order requiring the Plan to be reformed to the extent necessary to correct the unlawful practices and Plan provisions, as described in Counts I-X.
d. In accordance with the equitable relief requested in preceding subparagraphs a-c, an order requiring the Plan to recalculate and pay former Plan participants the difference between the pension benefits which those former participants have received and the pension benefits which they should have received, as alleged in Counts I-X;
e. In conjunction with the order requested in the preceding subparagraph d, an order creating a common fund equal to the amount of pension benefits due former Plan participants;
f. Pre- and post-judgment interest and costs; g. Reasonable attorneys' fees; and h. Any other relief this Court deems just, proper and equitable.
38

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Respectfully submitted,

Michael B. Marker THE REX CARR LAW FIRM, LLC 412 Missouri Avenue East St. Louis, Illinois 62201 618/274-0434 (office) 618/274-8369 (fax) mmarker@rexcarr.com
Norman E. Siegel (admitted pro hac vice) Eric Dirks (admitted pro hac vice) STUEVE SIEGEL HANSON WOODY LLP 330 West 47th Street, Suite 250 Kansas City, Missouri 64112 816/714-7112 (office) 816/714-7101 (fax) siegel@sshwlaw.com dirks@sshwlaw.com

s/ Matthew H. Armstrong Jerome J. Schlichter Matthew H. Armstrong SCHLICHTER BOGARD & DENTON 2661 North Illinois, Suite 187 Swansea, Illinois 62226 314/621-6115 (office) 314/621-7151 (fax) jschlichter@uselaws.com marmstrong@uselaws.com

ATTORNEYS FOR PLAINTIFFS

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Case 3:04-cv-00436-JPG-PMF Document 139 Filed 09/04/06 Page 40 of 40

CERTIFICATE OF SERVICE

I hereby certify that on September 4,2006, I electronically filed Plaintiffs' Consolidated Class Action Complaint with the Clerk of Court using CMlECF system which will send notification of such filing to the following:

Michael B. Marker mmarker@rexcarr.com
Norman E. Siegel siegel@sshwlaw.com
Eric L. Dirks dirks@sshwlaw.com
Matthew H. Armstrong marmstrong@uselaws.com
Jerome J. Schlichter jschlichter@uselaws.com
Attorneys for Plaintiffs

Michael J. Nester mnester@ilmoattorneys.com

Dawn A. Sallerson Dsallerson@hinshawlaw.com

Carol Connor Flowe flowe.carol@arentfox.com

Mark B. Blocker mblocker@sidley.com

Caroline Turner English english.caroline@arentfox.com

William F. Conlon wconlon@sidley.com

Gretchen Dixon dixon.gretchen@arentfox.com

Ryan M. Sandrock rsandrock@sidley.com

Attorneys for Defendants The Monsanto Company Pension Plan and The Monsanto Company

Chris K. Meyer cmeyer@sidley.com
Priscilla E. Ryan pryan@sidley.com

Thomas P. Berra, Jr. tberra@lewisrice.com

AnneE. Rea area@sidley.com

Robert J. Golterman rgolterman@lewisrice.com

Neil H. Wyland nwyland@sidley.com

Neal F. Perryman Nperryman@lewisrice.com

Erin E. Kelly ekelly@sidley.com

Attorneys for Defendant Solutia, Inc. Employees' Pension Plan

Attorneys for Defendants Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc.

sf Matthew H. Armstrong Matthew H. Armstrong

40

 
 Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
2010 WL 300586 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit. Grant M. WALKER, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. MONSANTO COMPANY PENSION PLAN, et al., Defendants - Appellees. Glynn Davis, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. Solutia Incorporated Employees Pension Plan, Defendant - Appellee. Fred Donaldson, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. Pharmacia Cash Balance Pension Plan, et al., Defendants - Appellees.
No. 09-3637. January 12, 2010. Appeal from the United States District Court For the Southern District of Illinois, Case No. 3:04-cv00436-JPGPMF, The Honorable Judge J. Phil Gilbert
Brief and Required Short Appendix of Plaintiffs - Appellants
Stueve Siegel Hanson LLP, Norman E. Siegel, 815-714-7112 (tel) / 816-714-7101 (fax), siegel@stuevesiegel.com, 460 Nichols Road, Suite 200, Kansas City, Missouri 64112, Attorney for Plaintiffs - Appellants.
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
1. The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3): Grant M. Walker, Edward Zeringue and Richard W. Drake, individually and on behalf of the Monsanto Age 55 CutOff Class.
Glynn Davis, Eugene Forneris and Juanita Hammond, individually and on behalf of the Solutia Age 55 Cut-Off Class.
Fred Donaldson, Albert Walter III, Mary Clawson, Sandra Bellon, Audrey Sokolski and Carol Thomas, individually and on behalf of the Pharmacia Age 55 Cut-Off Class.
2. The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Stueve Siegel Hanson LLP; Schlichter Bogard & Denton LLP; Schoen, Walton, Telken & Foster; Rex Carr Law Firm; Girard Gibbs LLP; Marker Armstrong LLP; Stueve Siegel Hanson Woody LLP
3. If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
N/A 1

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)

TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................................................................................... JURISDICTIONAL STATEMENT ........................................................................................................................................ STATEMENT OF THE ISSUE PRESENTED FOR REVIEW ................................................................................... STATEMENT OF THE CASE ................................................................................................................................................. STATEMENT OF FACTS ......................................................................................................................................................... SUMMARY OF ARGUMENT ................................................................................................................................................ ARGUMENT ................................................................................................................................................................................... I. Standard of Review .................................................................................................................................................................... II. Defendants’ Plan Violates ERISA as a Matter of Law .............................................................................................. A. The Plan Violates ERISA’s Prohibition Against Ceasing an Employee’s Benefit Accrual Because of the Attainment of Any Age Because the Plan on Its Face Ceases PPA Interest Credits Because a Participant Attains Age 55 .......................................................................................................................................................... 1. The PPA Interest Credits Are Part of a Participant’s Benefit Accrual .................................................................. 2. The PPA Interest Credits Cease under the Plan’s Express Terms Because of the Attainment of a Specified Age ................................................................................................................................................................................... B. By Projecting the PPA Interest Credits Only Until Age 55 as Opposed to the Plan’s Normal Retirement Age of 65, the Plan Also Violates ERISA’s Requirement that an Employee’s Accrued Benefit Be Calculated with Interest Credits Projected to Normal Retirement Age .............................................. CONCLUSION ............................................................................................................................................................................... CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS ..................................................................................... CIRCUIT RULE 31(e) CERTIFICATION .......................................................................................................................... PROOF OF SERVICE .................................................................................................................................................................. CIRCUIT RULE 30(d) STATEMENT .................................................................................................................................. REQUIRED SHORT APPENDIX ...........................................................................................................................................
TABLE OF AUTHORITIES CASES Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992) .............
2

iii 1 2 3 5 9 11 11 11 12
13 20 29
30 32 33 34 35 36
27, 28

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
Berger v. Xerox Corp., 338 F.3d 755 (7th Cir. 2003) ..................................... Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006) .... Drutis v. Rand McNally & Co., 499 F.3d 608 (6th Cir. 2007) .................... Dugan v. R.J. Corman R.R. Co., 344 F.3d 662 (7th Cir. 2003) .................. EEOC v. Bd. of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir. 1992) ....................................................................................................... Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644 (7th Cir. 2009) ......................................................................................................................... Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) .................. Grun v. Pneumo Abex Corp., 163 F.3d 411 (7th Cir. 1998) ........................ Hurlic v. Southern California Gas Co., 539 F.3d 1024 (9th Cir. 2008) .. In the Matter of Chi., Milwaukee, St. Paul & Pac. R.R. Co., 658 F.2d 1149 (7th Cir. 1981) .................................................................................................... International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187(1991) ......................................................................................................................... Johnson v. Georgia Pacific Corp., 19 F.3d 1184 (7th Cir. 1994) .............. Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008) ............... May Dep’t Stores Co. v. Federal Insurance Co., 305 F.3d 597 (7th Cir. 2002) ......................................................................................................................... Mona Shores Board of Education v. Mona Shores Teachers Education Ass’n, 2008 WL 3009890 (Mich. App. Aug. 5, 2008) ............. Northwest Airlines, Inc. v. Phillips, 594 F. Supp. 2d 1075 (D. Minn. 2009) .................................................................................................................................. PMC, Inc. v Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998) ............ Register v. PNC Financial Services Group, Inc., 477 F.3d 56 (3d Cir. 2007) .................................................................................................................................. Silvernail v. Ameritech Pension Plan, 439 F.3d 355 (7th Cir. 2006) ....... Solon v. Gary Community School Corp., 180 F.3d 844 (7th Cir. 1999) .. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111(1985) ....................... Wetzler v. Illinois CPA Society & Foundation Retirement Income Plan, 586 F.3d 1053 (7th Cir. 2009) .....................................................................
3

30 13, 27 14, 27
17 24
11
25 11, 17 14, 20, 23, 25
25
23
12, 22 23, 24, 25, 26
12
24
27
16 14, 15, 27
12 24 24 11

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
Williams v. Rohm & Haas Pension Plan, 497 F.3d 710 (7th Cir. 2007) ............................................................................................................................................... Williams v. Rohm & Haas Pension Plan, 2009 WL 382628 (S.D. Ind. Feb. 11, 2009) ................................................................................................................ STATUTES 26 U.S.C. § 411 ............................................................................................................. 28 U.S.C. § 1291 ........................................................................................................... 28 U.S.C. § 1331 ........................................................................................................... 29 U.S.C. § 1001 ........................................................................................................... 29 U.S.C. § 1054 ........................................................................................................... 29 U.S.C. § 1132 ........................................................................................................... 29 U.S.C. § 623 ............................................................................................................. REGULATIONS AND OTHER ADMINISTRATIVE GUIDANCE Notice 96-8, 1996-6 I.R.B. 23, 1996-1 C.B. 359, 1996 WL 17901............ Rev. Rule. 2008-7, 2008-7 I.R.B. 419, 2008 WL 274325.............................. 53 Fed. Reg. 11,876 (Apr. 11, 1988) ..................................................................... 67 Fed. Reg. 76123 (Dec. 11, 2002) ...................................................................... LEGISLATIVE HISTORY H.R. Rep. No. 99-1012 (1986) (Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 3868 ......................................................................................................

11 17
14, 28 1 1 1
passim 1
25, 28
30 2, 29
15 13
20, 25

JURISDICTIONAL STATEMENT
The district court had federal question jurisdiction under 28 U.S.C. § 1331 because Plaintiffs alleged in their Complaint that Defendants violated the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. (“ERISA”), which provides for jurisdiction in the district court under 29 U.S.C. § 1132(e).
This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, as this is an appeal from a final decision of a district court. The United States District Court for the Southern District of Illinois, the Honorable J. Phil Gilbert, entered final judgment disposing of all of the claims with respect to all parties on September 29, 2009 (Doc. 341 (A17)).1 Plaintiffs timely filed their Notice of Appeal on October 27, 2009, and are appealing that portion of the Court’s final judgment in favor of Defendants on Counts I, II and III, pursuant to the Memorandum and Order (Doc. 326 (A1)) granting Defendants’ motion for summary judgment on Counts I, II and III and denying in part Plaintiffs’ motion for summary judgment to the extent it seeks judgment on Counts I, II and III. (Doc. 345).

4

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
ERISA prohibits a defined benefit plan from ceasing or reducing an employee’s benefit accrual because of the attainment of any age. 29 U.S.C. § 1054(b)(1)(H)(i) (stating that a defined benefit plan does not meet the requirements of ERISA if “an employee’s benefit accrual is ceased, or the rate of any employee’s benefit accrual is reduced, because of the attainment of any age”).
Defendants’ cash-balance defined benefit plan (“the Plan”) includes a Prior Plan Account whose Initial Balance increases monthly in the form of Pay Credits and Interest Credits. Under the Plan’s express terms, Interest Credits contributed to a participant’s Prior Plan Account cease because “the Participant attains age 55.” (Plan § 6.2(d) (JA34)).
ERISA also prohibits the forfeiture of benefits and requires that “in determining the accrued benefit of a participant under a cash balance plan at any time prior to normal retirement age, the balance in the cash balance plan must be projected with interest credits to normal retirement age.” Rev. Rule. 2008-7, 2008-7 I.R.B. 419, 2008 WL 274325.
In determining a participant’s accrued benefit, the Plan projects PPA Interest Credits only through age 55, as opposed to the Plan’s normal retirement age of 65. (Plan § 3.2 (JA13)).
The issue presented for review is whether the Plan violates ERISA’s prohibition against ceasing or reducing an employee’s benefit accrual because of the attainment of any age and results in an impermissive forfeiture.
STATEMENT OF THE CASE
The origin of the underlying consolidated class action lawsuit is Plaintiffs’ Complaint filed on June 23, 2004 in the United States District Court for the Southern District of Illinois, Walker v. Monsanto Company Pension Plan, Case No. 04-436. (Doc. 1). On September 1, 2006, the district court entered an Order consolidating the Walker action with the following three related actions: Hammond v. Solutia, Inc. Employees’ Pension Plan, Case No. 06-139 (S.D. Ill. filed 2/15/2006); Davis v. Solutia, Inc. Employees’ Pension Plan, Case No. 05-736 (S.D. Ill. filed 10/12/2005); and Donaldson v. Pharmacia Pension Plan, Case No. 06-3 (S.D. Ill. filed 1/3/2006). (Doc. 138). Plaintiffs filed their Consolidated Class Action Complaint on September 1, 2006. (Doc. 139). The Consolidated Class Action Complaint alleges (among other things) that Defendants’ substantively identical cash-balance defined benefit plans violate ERISA’s prohibition against ceasing or reducing an employee’s benefit accrual because of the attainment of any age and results in an impermissive forfeiture. (Doc. 139, Counts I, II and III; Doc. 326 at 5 (A5)).
On May 22, 2008, the district court certified the three identical “Age 55 Cut-Off claims” (Counts I, II and III of the Consolidated Class Action Complaint) against the Monsanto, Solutia and Pharmacia Defendants (Doc. 276), consistent with the parties’ Stipulation on class certification filed with the district court on June 11, 2007 (Doc. 211).
On June 11, 2009, the district court granted Defendants’ motion for summary judgment on Plaintiffs’ Age 55 Cut-Off claims (Counts I, II and III of the Consolidated Class Action Complaint) and denied Plaintiffs’ cross-motion for summary judgment on those same claims. (Doc. 326 (A1)). The district court held that there were no factual disputes before the court in relation to Counts I, II and III, and that Defendants’ Plan did not, as a matter of law, violate ERISA. (Doc. 326 (A1)). After additional proceedings necessary to resolve another claim (Count X) on which the district court granted Plaintiffs’ cross-motion for summary judgment on the issue of liability against the Monsanto Defendants (Doc. 327), the district court entered final judgment disposing of all of the claims with respect to all parties on September 29, 2009 (Doc. 341 (A17)). Plaintiffs timely filed their joint notice of appeal on October 27, 2009. (Doc. 345).
STATEMENT OF FACTS
Effective January 1, 1997, Monsanto Company (“Old Monsanto”) converted its traditional defined benefit plan to another form of defined benefit pension plan known as a cash balance plan. After the conversion, there were a number of corporate spin-offs and restructurings that resulted in Old Monsanto becoming three separate corporations -- namely, Pharmacia Corporation (“Old Monsanto” or “Pharmacia”), Solutia Inc. (“Solutia”), and a newly-created Monsanto Company (“New Monsanto”). As a result, there are three substantially identical cash balance pension plans: (1) the Pharmacia Cash Balance
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Pension Plan (the “Pharmacia Plan”), sponsored by Pharmacia, (2) the Solutia Inc. Employees’ Pension Plan (the “Solutia Plan”), sponsored by Solutia, and (3) the Monsanto Company Pension Plan (the “Monsanto Plan”), sponsored by New Monsanto. (Doc. 287 at 7, ¶¶ 1-2; Doc. 296 at 3 n.2; (A2-3).2
This case involves identical provisions in the Pharmacia, Solutia and Monsanto Plans. Because the relevant provisions are identical, the parties have referred to all of these plans collectively simply as “the Plan.” (Doc. 287 at 7, ¶ 1; Doc. 296 at 3 n.2; Doc. 326 at 2-3 (A2-3)).
The Plan is structured around the formation and maintenance of two Accounts for each Participant: a Cash Balance Account and a Prior Plan Account (sometimes referred to herein as the “PPA”). (Plan § 3.1 (JA13)). Plaintiffs are not challenging any aspect of the Plan’s Cash Balance Account. (Doc. 326 at 4 (A4)).
The initial account balance for a Participant’s PPA was established pursuant to a conversion formula set forth in the Plan whereby a Participant’s PPA is “credited with an amount equal to the Actuarial Equivalent lump sum value of the Participant’s Predecessor Plan Accrued Benefit (as defined in [Paragraph 6.2(b)]), discounted using an interest rate of eight and one-half percent per annum for each month, if any, by which the Participant’s age as of January 1, 1997 precedes age 55.” (Plan § 6.2(b) (JA32)).
Once established, the PPA’s initial account balance increases monthly in the form of Pay Credits and Interest Credits. As long as a Participant is an Eligible Employee or Qualified Disabled Terminated Employee, the Participant’s PPA is credited monthly with Pay Credits equal to the balance of the Prior Plan Account on the first day of the month multiplied by 0.003274 (the monthly equivalent of 4% per annum). The PPA is also credited each month with Interest Credits equal to the sum of (i) the balance of the Prior Plan Account on the first day of such month, and (ii) the Participant’s Pay Credits for that month, if any, multiplied by 0.006822 (the monthly equivalent of 8.5% per annum). (Plan §§ 6.2(c) (Pay Credits), 6.2(d) (Interest Credits) (JA34)).
The Plan, however, explicitly conditions a Participant’s right to receive these Interest Credits to his Prior Plan Account on the Participant being under age 55. Under the Plan’s express terms, Interest Credits contributed to a participant’s Prior Plan Account cease because “the Participant attains age 55.” (Plan § 6.2(d) (JA34); Doc. 287 at 9-10, ¶ 12; Doc. 296 at 3 n.2).
To further illustrate the operation of the Plan’s PPA Interest Credits and Pay Credits, consider, for example, that an age 54 (or younger) participant that is a current employee will have both monthly Pay Credits and Interest Credits contributed to his PPA. These monthly Interest Credits for a participant age 54 (or younger) will apply to the participant’s entire PPA balance, including increases to that account attributable to the monthly Pay Credits. However, if that participant remains employed after attaining age 55, he will continue to receive monthly Pay Credits to his PPA; but solely because he attained the age of 55, he will no longer receive any Interest Credits to the PPA, including the increase to the PPA attributable to monthly Pay Credits contributed after he attained age 55. Thus, under the Plan, post-age 55 Pay Credits do not have any Interest Credits added to them, while pre-age 55 Pay Credits do have Interest Credits added to them, but only to age 55. (Plan §§ 6.2(c), 6.2(d) (JA34)). (See also Doc. 315).
The Plan’s provision explicitly ceasing the monthly PPA Interest Credits because “the Participant attains age 55” is also reflected in the Plan’s calculation of a Participant’s Accrued Benefit. Under the Plan’s terms, “A participant’s monthly Accrued Benefit is a single life annuity commencing at Normal Retirement Age equal to the quotient of (a) the Participant’s current Accounts plus interest credits added to the Prior Plan Account through age 55 pursuant to Section 6.2(d) and interest credits added to the Cash Balance Account through Normal Retirement Age pursuant to Section 6.3(d) divided by (b) 125.” (Plan § 3.2 (JA13)). The Plan defines Normal Retirement Age as age 65. (Plan § 3.36 (JA23)).
The Plan does not contain an early retirement benefit formula, as confirmed by the absence of any such term in the Plan itself (JA1-181) and Defendants’ own admission in the form of a sworn statement to the IRS, (see Application for Determination for Employee Benefit Plan, IRS Form 5300 (“Benefit formula at early retirement age is NO EARLY RETIREMENT BENEFIT FORMULA.”) (JA217)).
Defendants’ own proffered ERISA expert has never seen or even heard of a cash balance plan that terminates any type of
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interest credit in the same manner as this Plan. (See Doc. 294-3 at 1-12 (excerpts from deposition of Francis X. Reagan)).
Plaintiffs, individually and on behalf of the certified Age 55 Cut-Off Classes, allege that by ceasing the monthly Interest Credits to a Participant’s Prior Plan Account because “the Participant attains age 55,” the Plan violates ERISA’s prohibition against ceasing or reducing an employee’s benefit accrual because of the attainment of any age. Plaintiffs also allege that an impermissive forfeiture occurs because the Plan calculates a Participant’s Accrued Benefit by reference to the continuation of PPA Interest Credits only “through age 55 pursuant to Section 6.2(d),” as opposed to the Plan’s Normal Retirement Age (i.e., age 65).
SUMMARY OF ARGUMENT
Defendants chose to discontinue their prior traditional defined benefit plan in favor of a new defined benefit cash balance plan. In doing so, Defendants created a Plan that includes two separate accounts. One of those accounts, the Prior Plan Account, had an initial account balance determined pursuant to the Plan’s conversion formula. Once this initial account balance was established, the Plan is structured to increase a participant’s Prior Plan Account through employer contributions in the form of Pay Credits and Interest Credits. These Pay Credits and Interest Credits increase a participant’s stated account balance, and like other benefits, rights or features under a plan, are benefit accruals within the meaning of section 1054(b)(1)(H)(i) and cannot be stopped or reduced because of the attainment of any age.
While ERISA makes certain aspects of pension plans variable and allows employers to act in their own interest in making decisions with respect to those variable aspects, ERISA also declares certain aspects of Plan design to be immutable. Plan participants are entitled to the benefit of those immutable terms. In this case, participants are entitled to the benefit of ERISA’s immutable requirement that a plan not cease or reduce a benefit accrual because of the attainment of any age.
Plaintiffs are challenging a Plan provision that on its face ceases a benefit accrual solely because a participant attains the age of 55. The district agreed: “[U]nder § 6.2(d)’s plain terms, the participant’s accrual of interest credits ceases because the participant attains the age of 55 ....” (Doc. 326 at 7 (A7)). The language in the Plan itself is dispositive, and as the illustration provided in Plaintiffs’ Statement of Facts further demonstrates, the Plan facially discriminates on the basis of age. Because the Plan on its face defines a participant’s eligibility for PPA Interest Credits in terms of his age, the discrimination is facial and Defendants’ reasons for adopting the challenged Plan provision are irrelevant to the Plan’s legality.
The challenged Plan provision at issue in this case is the only one of its kind. Defendants’ own proffered ERISA expert has never seen or even heard of a cash balance plan that terminates any type of interest credit in the same manner as this Plan. Of course, the reason that plan designers do not structure plans with provisions terminating interest credits (or other rights, benefits or features) based on the attainment of a specified age is that such a provision on its face violates ERISA’s clear prohibition against ceasing or reducing any benefit accrual because of the attainment of any age and results in an impermissive forfeiture.
The district court erred as a matter of law in determining that the Plan complied with ERISA. The plain language of the statute itself, the statute’s regulatory guidance, and the relevant case law all make clear that Defendants’ Plan on its face violates ERISA’s prohibition against ceasing or reducing a benefit accrual because of the attainment of any age and results in an impermissive forfeiture. Plaintiffs, therefore, are entitled to entry of judgment in their favor on the issue of liability against Defendants on their Age 55 Cut-Off Claims (Counts I, II and III).
ARGUMENT
I. Standard of Review.
This Court reviews a district court’s decision on cross-motions for summary judgment de novo. Wetzler v. Illinois CPA Society & Foundation Retirement Income Plan, 586 F.3d 1053, 1057 (7th Cir. 2009). The issue of whether a certain term in a benefit plan violates ERISA is a question of law and as such, is also reviewed de novo. Id. Under a de novo standard of review, this Court reviews “without deference for the view of the district judge and hence almost as if the motion had been
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made to [this Court] directly.” Grun v. Pneumo Abex Corp., 163 F.3d 411, 419 (7th Cir. 1998).
II. Defendants’ Plan Violates ERISA as a Matter of Law.
ERISA is a highly technical, paternalistic regulation that restricts the freedom of contract with respect to the scope and terms of employee benefit plans through specific and express statutory limitations. See, e.g., Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644, 646 (7th Cir. 2009) (“Employers are entitled to vary by contract those aspects of pension plans ERISA makes variable, and they may act in their own interest when doing so, just as participants are entitled to the benefit of terms ... that the law makes immutable.”); Williams v. Rohm & Haas Pension Plan, 497 F.3d 710, 714 (7th Cir. 2007) (“Employers are not required to provide pension benefits, but when they do, their plans must comply with ERISA .... The Plan cannot avoid that which is dictated by the terms of ERISA. While ERISA generally allows each plan to select the monetary amount of benefits provided, it remains a paternalistic statute designed to restrict the freedom of contract.”); May Dep’t Stores Co. v. Federal Insurance Co., 305 F.3d 597, 601 (7th Cir. 2002) (“ERISA is ... a regulation of private pension plans. It is a paternalistic regulation, intruding on the freedom of the contracting parties, the plan and its participants, every step of the way ....”).
Consequently, this Court has emphasized that “courts should take care to interpret ERISA strictly according to its plain language.” Silvernail v. Ameritech Pension Plan, 439 F.3d 355, 358 (7th Cir. 2006); Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1190 (7th Cir. 1994) (“[B]ecause ERISA is a highly technical statute our part is to apply it as precisely as we can, rather than to make adjustments according to a sense of equities in a particular case.”).
A. The Plan Violates ERISA’s Prohibition Against Ceasing an Employee’s Benefit Accrual Because of the Attainment of Any Age Because the Plan on Its Face Ceases PPA Interest Credits Because a Participant Attains Age 55.
At issue in this case is ERISA’s prohibition against ceasing or reducing an employee’s benefit accrual because of the attainment of any age:
[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 any employee’s benefit accrual is reduced, because of the attainment of any age.
29 U.S.C. § 1054(b)(1)(H)(i).
A two-step analysis confirms that Defendants’ Plan violates this provision of ERISA. First, the PPA Interest Credits are part of a participant’s benefit accrual because they reflect an input credited by the employer to the participant’s stated account balance, and are a right, benefit or feature of the Plan. Second, the PPA Interest Credits cease under the Plan’s express terms because of a participant’s attainment of a specified age (i.e., when “the Participant attains age 55”) in direct contravention of ERISA’s clear and unambiguous statutory prohibition.
Accordingly, Plaintiffs are entitled to judgment as a matter of law on the issue of liability against Defendants. The district court erred in concluding otherwise.
1. The PPA Interest Credits Are Part of a Participant’s Benefit Accrual.
Although ERISA itself does not define the phrase “benefit accrual,” this Court and every other Circuit to have interpreted the phrase has done so in a way that confirms that the PPA Interest Credits at issue in this case are part of a participant’s benefit
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accrual.
In Cooper v. IBM Personal Pension Plan, this Court stated that “benefit accrual” is “a phrase dealing with inputs (either in absolute terms or as a rate of change)” and should be read “as a reference to what the employer puts in” or “imputes to the account.” 457 F.3d 636, 638-39 (7th Cir. 2006). This Court also explained in Cooper that its interpretation of “benefit accrual” as a reference to the employer’s contribution to a participant’s account has the support of regulations proposed by the Treasury Department, which define the phrase “benefit accrual” as “ ‘the additions to the participant’s hypothetical account for the plan year.’ ” Id. at 649 (quoting 67 Fed. Reg. 76123, 76125-26 (Dec. 11, 2002)).
All other Circuits to have considered the issue have adopted this Court’s interpretation of the statutory phrase “benefit accrual.” For example, in Register v. PNC Financial Services Group, Inc., the Third Circuit stated:
[C]ash balance plans define the benefit in terms of a stated account balance .... Thus, the “benefit” as used in the phrase “benefit accrual” refers to the stated account balance as that is how the benefit is defined by cash balance plans. Once this proposition is grasped, it becomes clear that the “accrual” of “benefit” in section 1054(b)(1)(H)(i) refers to the credits deposited into the participant’s cash balance accounts, i.e., the inputs.
477 F.3d 56, 68-69 (3d Cir. 2007). Accord Drutis v. Rand McNally & Co., 499 F.3d 608, 612-15 (6th Cir. 2007) (“[T]he term ‘benefit accrual’ as used in § 1054(b)(1)(H)(i) refers to the employer’s contribution to the defined benefit plan.”); Hurlic v. Southern California Gas Co., 539 F.3d 1024, 1037 (9th Cir. 2008) (“The term ‘accrue’ means ‘to increase.’ ... ‘Benefit accrual’ thus refers to the process by which benefits increase.... Under the cash balance plan, benefits increase as the employer credits the account with earnings and interest credits.”).
Similarly, the Treasury Department in 1988 published proposed regulations to implement the Internal Revenue Code’s parallel provisions to those of ERISA at issue here. Compare 29 U.S.C. § 1054(b)(1)(H) and 29 U.S.C. § 1054(b)(2), with 26 U.S.C. § 411(b)(1)(H) and 26 U.S.C. § 411(b)(2). As the Treasury Department explained:
The proposed regulations provide that the rate of an employee’s benefit accrual under a defined benefit plan or the rate of allocations to an employee’s account under a defined contribution plan will be considered to be reduced on account of the attainment of a specified age if optional forms of benefits, ancillary benefits or other benefits, rights or features under a plan that are provided with respect to benefits or allocations prior to such age are not provided (on terms that are at least as favorable to employees) with respect to benefits or allocations after such age.
53 Fed. Reg. 11,876, 11,877 (Apr. 11, 1988). Thus, the Treasury Department has interpreted the statutory phrase “benefit accrual” quite broadly, i.e., to encompass any optional form of benefit, ancillary benefit or other benefit, right or feature under a plan, and confirmed that any termination or reduction of any such benefit, right or feature on account of the attainment of any age is prohibited. See id.
Once this established framework for interpreting the statutory phrase “benefit accrual” is grasped, it becomes clear that the PPA Interest Credits at issue in this case are part of a participant’s benefit accrual and cannot be stopped or reduced because of the attainment of any age. The Prior Plan Account is one of the Accounts that forms the cash balance plan at issue in this case and has a stated account balance that increases monthly through employer contributions in the form of certain credits (i.e., Pay Credits and Interest Credits). These credits are not dependent on the investment return of plan assets but rather represent a guaranteed increase provided by the employer.
Thus, in this case, the “benefit” as used in the statutory phrase “benefit accrual” includes the PPA’s stated account balance as 9

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that is how the benefit is defined by cash balance plans. See Register, 477 F.3d at 68-69. The “accrual” of “benefit” in section 1054(b)(1)(H)(i) refers to the credits deposited into the participant’s Prior Plan Account, i.e., the inputs - in this case, the Pay Credits and Interest Credits. See id. Accordingly, ERISA prohibits the Plan from stopping or reducing either the PPA Pay Credits or Interest Credits (both benefit accruals within the meaning of section 1054(b)(1)(H)(i)) because of the attainment of any age.
Defendants, however, claimed that the PPA Interest Credits are not a “benefit accrual” by arguing, based on extrinsic evidence (as opposed to the unambiguous language in the Plan itself), that the PPA Interest Credit merely “represents the reversal of the discount taken from the total lump sum value of a participant’s accrued benefit at the time of the plan conversion.” (Doc. 326 at 8 (A8)). As such, according to Defendants, the PPA Interest Credits are not a benefit accrual because they do not increase the value of the accrued benefit to which participants were entitled under the prior traditional defined benefit plan. (Doc. 326 at 5 (A5)). Defendants’ argument (and the district court’s acceptance of that argument) misses the mark for several reasons.
As an initial matter, it was improper for the district court to rely upon Defendants’ proffered extrinsic evidence in determining whether the PPA Interest Credits were a benefit accrual because that evidence revealed absolutely no ambiguity in the Plan that required interpretation. See PMC, Inc. v Sherwin-Williams Co., 151 F.3d 610, 615 (7th Cir. 1998). Rather, Defendants’ extrinsic evidence merely revealed that Defendants had a particular Plan design objective and were, at least according to Defendants, not actually motivated by any discriminatory age-based animus when it adopted the Plan language requiring the cessation of PPA Interest Credits when a participant attains age 55. This evidence is not relevant to the determination of whether the PPA Interest Credits, which are unambiguously defined in the Plan, are a benefit accrual within the meaning of section 1054(b)(1)(H)(i). Defendants’ extrinsic evidence, therefore, should have been disregarded. See Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 665 (7th Cir. 2003) (stating the general rule that if the language in an ERISA plan is unambiguous, the court should not consider extrinsic evidence); Grun, 163 F.3d at 420 (same); Williams v. Rohm & Haas Pension Plan, 2009 WL 382628, at *5 (S.D. Ind. Feb. 11, 2009) (“[A] discussion of the intent underlying this [Plan] provision is unwarranted because we find that provision to be unambiguous.... Defendant can not prevail here by asserting that its own words in the Plan were not intended to mean what they say.”) (citing Grun, 163 F.3d at 420-21)).
The district court also erred in accepting Defendants’ characterization of the PPA Interest Credits as simply “the reversal of an early retirement discount” and, as such, not reflecting any change to a participant’s accrued benefit. (Doc. 326 at 13 (A13)). First, there is no early retirement discount feature in the Plan, as confirmed by the absence of any such term in the Plan itself and Defendants’ own admission in the form of a sworn statement to the IRS. (JA1-181, 217).
Second, it is inaccurate for Defendants to claim that the PPA Interest Credits do nothing more than simply reverse the 8.5% discount taken for each year a participant was under age 55 as part of the formula the Plan used to establish the PPA’s opening account balance. Although mathematically convenient, neither the Plan’s PPA Interest Credit provision (section 6.2(d)) nor the Plan’s provision setting forth the formula for determining a Participant’s initial PPA account balance (section 6.2(b)) refer to the other or otherwise disclose the existence of Defendants’ claimed “reversal.”
And, third, as stated in the Plan itself, the monthly PPA Interest Credits apply not just to the participant’s PPA opening account balance, but also to the monthly PPA Pay Credits that Defendants contribute to the Prior Plan Accounts of participants who are current employees or qualified disabled employees during the month.
Thus, as a matter of undisputed fact, and even considering Defendants’ extrinsic evidence, the PPA Interest Credits do function in manner beyond simply “reversing” a non-existent early retirement or other discount and do increase the accrued benefit of participants. Therefore, even utilizing Defendants’ and the district court’s evaluative framework, these Interest Credits are benefit accruals within the meaning of section 1054(b)(1)(H)(i).
In any event, Defendants’ focus on the alleged absence of any change to a participant’s accrued benefit under the prior traditional defined benefit plan is legally unwarranted. This Court and all of the other Circuit’s to have considered the issue have explained that a “benefit accrual” under section 1054(b)(1)(H)(i) refers to any employer contribution that changes a participant’s stated account balance, as that is how the benefit is defined by cash balance plans. And, as the proposed Treasury Department regulations make clear, the prohibition on ceasing a benefit accrual because of the attainment of any change applies to any optional form of benefit, ancillary benefit or other benefit, right or feature under a plan.
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It is undisputed that the stated account balances of participants’ Prior Plan Accounts are subject to increase as Defendants contribute Interest Credits and Pay Credits to participants’ Prior Plan Accounts on a monthly basis. These Interest Credits and Pay Credits are clearly a form of benefit, right or feature under the Plan. Thus, these Interest Credits and Pay Credits are benefit accruals within the meaning of section 1054(b)(1)(H)(i) as a matter of law, and cannot be discontinued or reduced because of the attainment of any age. Ultimately, there is nothing in the Plan itself or anything revealed by Defendants’ improperly proffered extrinsic evidence that can change this inescapable legal conclusion.
Because the Plan permits the continuation of the Pay Credits to the Prior Plan Account as long as the Participant is an Eligible Employee or Qualified Disabled Terminated Employee during the month, it is undisputed that the Pay Credits do not cease and are not reduced because of the attainment of any age. The Plan, however, explicitly conditions a participant’s right to receive Interest Credits to the PPA on the participant being under age 55. Under the Plan’s express terms, Interest Credits on a participant’s Prior Plan Account cease because “the Participant attains age 55” and are projected only until age 55 when calculating the participant’s Accrued Benefit. Thus, the focus of Plaintiffs’ claims is the express discontinuation of PPA Interest Credits because “the Participant attains age 55.”3
Because it is established that the PPA Interest Credits are a benefit accrual under section 1054(b)(1)(H)(i), the only remaining question is whether those Interest Credits cease “because of the attainment of any age,” as prohibited by ERISA.
2. The PPA Interest Credits Cease under the Plan’s Express Terms Because of the Attainment of a Specified Age.
Section 1054(b)(1)(H)(i) prohibits a Plan from ceasing or reducing a participant’s benefit accrual “because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H)(i). Although ERISA itself does not define the phrase “attainment of any age,” and this Court has not specifically addressed the question, the Ninth Circuit recently interpreted this phrase and explained its interpretation in a manner that readily establishes that the PPA Interest Credits at issue in this case cease under the Plan’s express terms because of the attainment of a specified age in violation of ERISA.
In Hurlic v. Southern California Gas Co., the Ninth Circuit considered both the precise statutory language employed by Congress as well as the statute’s legislative history in concluding that “[t]he phrase ‘attainment of any age’ means the act of reaching a certain age . . . .” 539 F.3d 1024, 1031-32 (9th Cir. 2008). The Ninth Circuit explained: The statute’s legislative history makes clear that the word “attainment” is important. As originally enacted, ERISA did not require that a pension plan allow participants who worked beyond normal retirement age to continue earning benefits. See H.R. Rep. No. 99-1012, at 378 (1986) (Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 3868, 4023. In 1986, Congress enacted provisions to remedy that problem, explaining that “benefit accruals or continued allocations to an employee’s account under either a defined benefit plan or a defined contribution plan may not be reduced or discontinued on account of the attainment of a specified age.” Id. (emphasis added).
This language clearly describes Congress’s intent to prohibit pension plans from reducing or ceasing benefits when a participant reached age 65 or any other specified age. For example, the Plan would clearly be in violation of ERISA § 204(b)(1)(H)(i) if it provided that when participants reached age 50, they stopped receiving benefits or began accruing benefits at a reduced rate.
Id. at 1031-32 (emphasis in second paragraph added).
The Plan in this case expressly provides that the Interest Credits to the Prior Plan Account stop because “the Participant attains age 55.” Thus, the Plan’s plain terms violate ERISA’s specific statutory prohibition against ceasing a benefit when a participant reaches a specified age, as the nearly identical example used by the Ninth Circuit in Hurlic aptly demonstrates.
Even though the Plan’s terms require that the PPA Interest Credits cease because of the attainment of a specified age (i.e., when “the Participant attains age 55”) in direct contravention of ERISA’s clear statutory prohibition, the district court found that these Interest Credits did not cease “because of the attainment of any age” based on Defendants’ proffered extrinsic evidence that they had a non-age-based motive for adopting the challenged Plan provision. According to the district court,
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this extrinsic evidence demonstrated that, notwithstanding the Plan’s plain terms, “the Plan’s decision to stop awarding ‘interest credits’ was ‘actually motivated’ by the fact that the early retirement discount became fully reversed at the fully subsidized early retirement age, that is, the participant’s pension status.” (Doc. 326 at 15 (A15)). Hence, under the district court’s logic, the cessation of the PPA Interest Credits because “the Participant attains age 55” was not a cessation “because of the attainment of any age.”
The district court’s conclusion with respect to the question of whether the PPA Interest Credits cease “because of the attainment of any age” is fundamentally flawed because the district court failed to apply ERISA strictly according to its plain language and disregarded the dispositive facial nature of the Plan’s clear violation of ERISA’s unambiguous statutory prohibition.
The statutory language appearing in section 1054(b)(1)(H)(i) mandates examination of whether, “under the plan,” the PPA Interest Credits cease “because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H)(i). The district court failed to apply this statutory language in the precise manner mandated by this Court. See Johnson, 19 F.3d at 1190 (“[B]ecause ERISA is a highly technical statute our part is to apply it as precisely as we can, rather than to make adjustments according to a sense of equities in a particular case.”).
For instance, the district erred in relying upon Defendants’ proffered extrinsic evidence of a non-age-based motive for adopting the challenged Plan provision. Such evidence is irrelevant for two equally dispositive reasons. First, the statute requires examination of the actual language appearing in the Plan itself, not extrinsic evidence, in making a determination of whether the Plan complies with section 1054(b)(1)(H)(i). See 29 U.S.C. § 1054(b)(1)(H)(i) (stating that statutory prohibition should focus on whether “under the plan” a benefit accrual is ceased or reduced “because of the attainment of any age”).
Second, Defendants’ proffered extrinsic evidence of a non-age-based motive for adopting the challenged Plan provision is completely irrelevant where, as here, the challenged Plan provision expressly provides on its face that the PPA Interest Credits cease because the participant attains the age of 55, which section 1054(b)(1)(H)(i) plainly prohibits. See Hurlic, 539 F.3d at 1032 (“For example, the Plan would clearly be in violation of ERISA § 204(b)(1)(H)(i) if it provided that when participants reached age 50, they stopped receiving benefits or began accruing benefits at a reduced rate.”).
This traditional rule is well-established and declares unlawful any policy or provision that on its face discriminates on the basis of age (or other protected trait) and finds the employer’s reasons for adopting the challenged policy or provision to be irrelevant to its legality. See, e.g., Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361, 2369 (2008) (reaffirming the traditional rule “that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA”); International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (“[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.”; “[T]he motives underlying the employers’ express exclusion of women did not alter the intentionally discriminatory character of the policy.”); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22 (1985) (holding that TWA’s policy of allowing pilots displaced for other reasons to remain employed by bumping a less senior flight engineer, but barring pilots displaced because of age from doing so, was “discriminatory on its face”); Solon v. Gary Community School Corp., 180 F.3d 844, 855 (7th Cir. 1999) (holding that early retirement incentive program that expressly varied benefits in terms of the retiree’s age was discriminatory on its face, stating: where “[t]he terms of the [plan] ... explicitly establish an employee’s eligibility ... in terms of his age,” the discrimination is facial, “and independent proof of an illicit motive is unnecessary”); EEOC v. Bd. of Governors of State Colleges & Universities, 957 F.2d 424, 429-31 (7th Cir. 1992) (holding that where a policy is facially discriminatory “the employer’s reasons for adopting the challenged policy are irrelevant to the policy’s legality”).4
Had the district court properly rejected Defendants’ extrinsic evidence of a non-age-based motive for adopting the facially discriminatory Plan provision, the Plan’s clear violation of ERISA’s statutory prohibition is conclusively established, as the district court itself acknowledged, see Doc. 326 at 7 (A7) (“Thus, under § 6.2(d)’s plain terms, the participant’s accrual of interest credits ceases because the participant attains the age of 55, and § 6.2(d) violates ERISA’s anti-discrimination provisions unless there is an ambiguity in the Plan.”).
Finally, the district court erred in finding that the Supreme’s Court’s decision in Kentucky Retirement and the Eighth
12

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
Circuit’s decision in Atkins compelled a conclusion in this case that participants’ accrual of Interest Credits did not cease “because of the attainment of any age.”
The Supreme Court’s decision in Kentucky Retirement is readily distinguishable from this case and, contrary to the district court’s conclusion, actually supports Plaintiffs’ contention that the Plan’s explicit termination of PPA Interest Credits because a participant attains age 55 is a violation on its face of ERISA.5
Kentucky Retirement addressed disparate treatment based on pension status, see 128 S. Ct. at 2369-70, while Plaintiffs in this case challenge disparate treatment based explicitly and directly on the attainment of a specified age. To the extent the Supreme Court’s decision in Kentucky Retirement is relevant to Plaintiffs’ claims here, its relevance relates not to the Supreme Court’s specific resolution of the self-described “quite special case” before it, but to its emphatic statement that its “opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA,” id. at 2369, which the dissenting justices seized upon and similarly emphasized: “The rule ... is that once the plaintiff establishes that a policy discriminates on its face, no additional proof of a less-than-benign motive ... is required. For if the plan discriminates on its face, it is obvious that decisions made pursuant to the plan are ‘actually motivated’ by age,” id. at 2374-75.
Thus, Kentucky Retirement itself makes clear that cases like this one, where the challenged termination of a benefit accrual is based expressly on the attainment of a specified age, are governed by the traditional rule -- that such a provision is a violation on its face -- and not by the Kentucky Retirement exception. Because the Plan at issue here on its face includes language terminating the accrual of the PPA Interest Credits because “the Participant attains age 55,” which ERISA specifically prohibits, the district court erred in disregarding the traditional rule applicable to facially discriminatory policies or plans.
Like the Supreme Court in Kentucky Retirement, many courts have emphasized the importance of carefully considering whether a challenged plan is one that is facially discriminatory because of the traditional rule declaring such plans unlawful without regard to the employer’s stated benign reasons for its adoption (as such reasons are irrelevant to the plan’s legality). For instance, several recent Circuit Court of Appeals opinions demonstrate that had those courts been presented with the facts of this case, the result would have been a determination that the Plan on its face violates ERISA. See Cooper, 457 F.3d at 638, 640 (rejecting plaintiffs’ challenge to the plan, but emphasizing that “[n]either the contribution rate nor the interest rate changes with age,” and that all of the terms of the plan were “age-neutral”); Register, 477 F.3d at 68 (rejecting plaintiffs’ challenge to the plan, but emphasizing that the plan did not reduce contributions in the form of “interest credits” to older employees and that these “interest credits” were properly “credited into the participants’ accounts regardless of their age”); Drutis, 499 F.3d at 615 (rejecting plaintiffs’ challenge to the plan, but emphasizing that the interest rate for the plan’s “interest credit” did not “change with age.”).6
The district court also erred in its reliance on the Eighth Circuit’s decision in Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992). The issue before the Eighth Circuit in Atkins was whether the difference in accrual of pension payments caused by a traditional defined benefit plan’s twenty-five year service cap and early retirement provision violated the ADEA and ERISA. The Eighth Circuit stated that the twenty-five year service cap was age-neutral and noted that federal law does not forbid that type of service cap. Id. at 1200-01 (citing 29 U.S.C. § 1054(b)(1)(H)(ii) (ERISA); 29 U.S.C. § 623(i)(2) (ADEA); 26 U.S.C. § 411(b)(1)(H)(ii) (IRC)). With respect to the plan’s early retirement benefit provision, which permitted a participant to retire at age 55 with a 3% reduction for each year the participant was under the normal retirement age of 60, the Eighth Circuit observed that federal law does not forbid that type of early retirement discount. Id. (citing 29 U.S.C. § 1054(b)(1)(H)(v) (ERISA); 29 U.S.C. § 623(0(6) (ADEA); 26 U.S.C. § 411(b)(1)(H)(v) (IRC)). Accordingly, the Eighth Circuit summarily determined that the plan’s terms did not cause any prohibited age-related reductions in an accrued benefit (or benefit accrual). Id.
The analysis employed by the Eighth Circuit in Atkins is irrelevant to Plaintiffs’ claims here because Plaintiffs are challenging a plan that contains neither a service cap nor any early retirement benefit feature. Additionally, Plaintiffs’ claims arise in connection with a cash balance plan - which, as explained above, is structured differently than a traditional defined benefit plan, such as the one at issue in Atkins. Also, unlike in Atkins, the Plan provision challenged by Plaintiffs here presents a straightforward claim involving a Plan that on its face includes language terminating a benefit accrual because a participant attains a specified age, which ERISA plainly prohibits. Thus, the Eighth Circuit’s decision in Atkins provides no support for the district court’s approval of the Plan’s explicit termination of the interest credit benefit accrual because a
13

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)
participant attains the age of 55.
In summary, the PPA Interest Credits are a benefit accrual because they reflect an input credited by the employer to the participant’s stated account balance and clearly constitute a form of benefit, right or feature under the Plan. As such, ERISA prohibits the Plan from ceasing or reducing the PPA Interest Credits “because of the attainment of any age.” Where, as here, the Plan on its face ceases the PPA Interest Credits because a participant attains the age of 55, the Plan violates ERISA as a matter of law, and it does not matter whether Defendants had a non-age-based motive for adopting the challenged Plan provision. Accordingly, Plaintiffs are entitled to judgment in their favor as a matter of law on the issue of Defendants’ liability on Plaintiffs’ Age-55 Cut Off Claims (Counts I, II and III).

B. By Projecting the PPA Interest Credits Only Until Age 55 as Opposed to the Plan’s Normal Retirement Age of 65, the Plan Also Violates ERISA’s Requirement that an Employee’s Accrued Benefit Be Calculated with Interest Credits
Projected to Normal Retirement Age.
The Plan’s unlawful termination of the PPA Interest Credits at age 55 also results in an impermissive forfeiture under ERISA because the Plan calculates a participant’s accrued benefit with PPA Interest Credits projected only through age 55, as opposed to the Plan’s Normal Retirement Age of 65. See, e.g., Rev. Rule. 2008-7, 2008-7 I.R.B. 419, 2008 WL 274325 (“[I]n determining the accrued benefit of a participant under a cash balance plan at any time prior to normal retirement age, the balance in the cash balance plan must be projected with interest credits to normal retirement age.”); Notice 96-8, 1996-6 I.R.B. 23, 1996-1 C.B. 359, 1996 WL 17901 (“Under a cash balance plan, the retirement benefits payable at normal retirement age are determined by reference to the hypothetical account balance as of normal retirement age, including benefits attributable to interest credits to that age.”); Berger v. Xerox Corp., 338 F.3d 755, 762-63 (7th Cir. 2003) (stating that IRS Notice 96-8 is “an authoritative interpretation of the applicable statutes and regulations” and confirming that to derive the actuarially equivalent of a pension at normal retirement age, a plan must add all interest that would accrue through age 65 before discounting the resulting sum to its present value); 29 U.S.C. § 1054(c)(3).
Accordingly, the district court also erred in failing to find that the Plan’s calculation of a participant’s accrued benefit results in an impermissive forfeiture.

CONCLUSION
Plaintiffs respectfully urge this Court to rule that the district court erred in granting summary judgment to Defendants and in denying summary judgment to Plaintiffs. Accordingly, the district court’s judgment in favor of Defendants on Plaintiffs’ Age 55 Cut-Off claims (Counts I, II and III of the Consolidated Class Action Complaint) should be reversed, and judgment entered in favor of Plaintiffs on those claims.

Appendix not available.

Footnotes

1

Citations beginning with “A” refer to documents contained in the required short appendix bound with this brief. Citations

beginning with “JA” refer to documents contained in the separately bound joint appendix.

2

Defendants did not dispute any portion of Plaintiffs’ Statement of Undisputed and Material Facts (Doc. 287 at 7-11). See Doc. 296

at 3 n.2.

3

In stark contrast (and as an illustration of how it should be done to comply with ERISA), under the Plan’s express terms, Interest

Credits on a participant’s Cash Balance Account continue for each month prior to a Participant’s Annuity Starting Date and are

projected through Normal Retirement Age (i.e., age 65) when calculating a participant’s Accrued Benefit. (See Plan §§ 6.3(d)

(JA37), 3.2 (JA13)).

14

Grant M. WALKER, individually and on behalf of all other..., 2010 WL 300586 (2010)

4

See also Mona Shores Board of Education v. Mona Shores Teachers Education Ass’n, 2008 WL 3009890, at *4-5 (Mich. App.

Aug. 5, 2008) (holding that a plan provision expressly providing for supplemental benefits to retirees “based solely on the age of

the teacher at the time of retirement” was “facially invalid” and unlawful, citing Kentucky Retirement and Solon).

5

The claim in Kentucky Retirement did not arise under ERISA; rather, the claim arose under the ADEA’s prohibition of age

discrimination in employee pension benefit plans, which employs statutory language that differs from that of ERISA. For instance,

the ADEA prohibits the establishment or maintenance of a defined benefit plan that requires or permits the cessation of an

employee’s benefit accrual, or the reduction of the rate of an employee’s benefit accrual, because of age.” 29 U.S.C. § 623(i)(1)(A)

(emphasis added). ERISA, in contrast, prohibits a plan from ceasing or reducing an employee’s benefit accrual “because of the

attainment of any age.” 29 U.S.C. § 1054(b)(1)(H)(i). While Plaintiffs recognize that there is legislative history stating that any

differences in language between the provisions of ADEA and ERISA (as well as the Code) that were amended as part of the

Omnibus Budget Reconciliation Act of 1986 were not intended to create an inference that a difference exists among such

provisions, see H.R. Rep. No. 99-1012, at 378-79 (1986) (Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 3868, 4023-24, the

Supreme Court recently emphasized the importance of textual differences in statutory provisions and the need to carefully consider

those differences before concluding that decisions under one statutory scheme should control construction under another statutory

scheme. See Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) (emphasizing the textual differences between Title VII

and the ADEA). And, as previously discussed, the Ninth Circuit has concluded that the word “attainment” appearing in section

1054(b)(1)(H)(i) of ERISA “is important.” See Hurlic, 539 F.3d at 1031-32. See also In the Matter of Chi, Milwaukee, St. Paul &

Pac. R.R. Co., 658 F.2d 1149, 1160 (7th Cir. 1981) (stating “well-known principle of statutory construction that all provisions

within a statute are to be interpreted as meaningful and are not to be considered as mere surplusage”).

6

See also Northwest Airlines, Inc. v. Phillips, 594 F. Supp. 2d 1075, 1084-86 (D. Minn. 2009) (“The [Plaintiffs] do not allege that

the [Plan], on its face, discontinues or reduces allocations [based on age.]”; “The [Plaintiffs] must show that the allocations are

ceased or reduced ‘because of age. On its face, the [Plan] does not use age when calculating allocations. The Court therefore turns

to whether the [Plan’s] use of projected final average earnings, which incorporates a [plaintiff’s] age, equates to cessation or

reduction of allocations “because of age.”).

End of Document

15

 
 Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
2010 WL 1789182 (C.A.7) (Appellate Brief) United States Court of Appeals, Seventh Circuit.
Grant WALKER, individually and on behalf of all others similarly situated, et al., Glynn Davis, individually and on behalf of all others similarly situated, et al., Fred Donaldson, individually and on behalf of all others similarly
situated, et al., Plaintiffs-Appellants, v.
MONSANTO COMPANY PENSION PLAN, et al., Solutia Incorporated Employees Pension Plan, et al., Pharmacia Cash Balance Pension Plan, et al., Defendants-Appellees.
No. 09-3637. March 12, 2010.
Appeal from the United States District Court for the Southern District of Illinois, in Case No. 04-cv-436, consolidated with Case Nos. 05-cv-736, 06-cv-3, and 06-cv-139, The Honorable J. Phil Gilbert
Brief and Supplemental Appendix of Defendants-Appellees
Anne E. Rea, Mark B. Blocker, Robert N. Hochman, Christopher K. Meyer, Sidley Austin LLP, One South Dearborn, Chicago, Illinois 60603, (312) 853-7000, Counsel for Pharmacia Cash Balance Pension Plan; Pharmacia Corporation; Pharmacia & Upjohn Company LLC, Pfizer Inc.
Carol Connor Cohen, Caroline Turner English, Leah Montesano, Arent Fox LLP, 1050 Connecticut Ave., NW, Washington, D.C. 20036, (202) 857-6000, Counsel for Monsanto Company; Monsanto Company Pension Plan.
Neal F. Perryman, Robert J. Golterman, Lewis, Rice & Fingersh, L.C., 600 Washington Ave., Suite 2500, St. Louis, MO 63101, (314) 444-7600, Counsel for Solutia Inc. Employees’ Pension Plan.
*I CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Pharmacia Cash Balance Pension Plan; Pharmacia Corporation; Pharmacia & Upjohn Company LLC;
Pfizer Inc.
______________________________
1

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Sidley Austin LLP Hinshaw & Culbertson LLP Hart & Hart (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and Pharmacia & Upjohn LLC; Pharmacia Corporation; Pfizer Inc. ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: Pfizer Inc.
*II CIRCUIT RULE 26.1 DISCLOSURE STATEMENT To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Monsanto Company Monsanto Company Pension Plan ______________________________ (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Arent Fox LLP; Donovan, Rose, Nester & Joley, PC; Cook, Ysursa, Bartholomew, Brauer & Shevlin, Ltd; Hart and Hart; Bryan Cave LLP ______________________________ (3) If the party or amicus is a corporation:
2

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
i) Identify all its parent corporations, if any; and None ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: None
*III CIRCUIT RULE 26.1 DISCLOSURE STATEMENT To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party’s main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [X] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Solutia Inc. Employees’ Pension Plan ______________________________ ______________________________ (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Lewis, Rice & Fingersh, L.C. ______________________________ ______________________________ (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and Nlot applicable ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: Not applicable
3

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...

*i TABLE OF CONTENTS

INTRODUCTION ...................................................................................................................................................................................

1

JURISDICTIONAL STATEMENT .................................................................................................................................................

3

ISSUES PRESENTED FOR REVIEW ...........................................................................................................................................

3

STATEMENT OF THE CASE ..........................................................................................................................................................

4

STATEMENT OF FACTS ..................................................................................................................................................................

6

I. The Development and Implementation of the New Plan .....................................................................................................

6

A. Conversion to a Cash Balance Plan ............................................................................................................................................

6

1. Determining the Prior Plan Account’s Initial Balance .........................................................................................................

7

2. Restoring the Discount to Prior Plan Accounts .......................................................................................................................

10

B. Detailed Communications to Employees ..................................................................................................................................

11

II. Plaintiffs’ Claims ...............................................................................................................................................................................

13

III. The District Court Ruling .............................................................................................................................................................

14

SUMMARY OF ARGUMENT .........................................................................................................................................................

16

ARGUMENT ............................................................................................................................................................................................

19

I. The Plan Does Not Violate ERISA § 204(b)(1)(H) ...............................................................................................................

19

A. The 8.5% Interest Credits Are Not Benefit Accruals ...........................................................................................................

19

1. The Credits Do Not Increase the Accrued Benefit .................................................................................................................

19

2. The Function of the 8.5% Credits Is Clear ................................................................................................................................

25

3. The Prior Plan Account Could Function in an Economically Equivalent Way Without Any 8.5% Interest

30

Credits ..........................................................................................................................................................................................................

4. The Eighth Circuit Has Determined That Increases That Reverse an Early Retirement Discount Are Not

32

Benefit Accruals. ......................................................................................................................................................................................

5. Construing the Interest Credits as Benefit Accruals Leads to Absurd Results ...........................................................

34

*ii B. The 8.5% Interest Credits Do Not Cease “Because Of” Age .....................................................................................

35

C. ERISA § 204(b)(1)(H)(v) Forecloses Plaintiffs’ Claims ....................................................................................................

41

D. There Is No Forfeiture .....................................................................................................................................................................

45

II. Plaintiffs’ Claims Are Time Barred ............................................................................................................................................

46

4

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...

A. Missouri Law Supplies the Applicable Limitations Period for Plaintiffs’ Claims, Which Accrued in 1996

46

..........................................................................................................................................................................................................................

B. Plaintiffs’ Claims Are Governed by a Two-Year or a Five-Year Limitations Period .............................................

47

1. Plaintiffs’ Claims Are Barred by Missouri’s Two-Year Limitations Period Applicable to Age

48

Discrimination Claims ...........................................................................................................................................................................

2. Plaintiffs’ Claims Are Barred by Missouri’s Five-Year Limitations Period Applicable to Claims of

49

Breach of Contract Implied by Law .................................................................................................................................................

CONCLUSION ........................................................................................................................................................................................

51

*iii TABLE OF AUTHORITIES
Cases
Aaron v. Brown Group, Inc., 80 F.3d 1220 (8th Cir. 1996) .........................
Ashenbaugh v. Crucible, Inc., 1975 Salaried Ret. Plan, 854 F.2d 1516 (3d Cir. 1988) .................................................................................................................
Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992) .............
Berger v. AXA Network LLC, 459 F.3d 804 (7th Cir. 2006) ........................
Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755 (7th Cir. 2003) ................................................................................................................
Brady v. Curators of Univ. of Missouri, 213 S.W.3d 101 (Mo. Ct. App. 2006) .......................................................................................................................
Commonwealth Ins. Co. v. Titan Tire Corp., 398 F.3d 879 (7th Cir. 2004) ..................................................................................................................................
Cooper v. IBM Pers. Pension Plan, 457 F.3d 636 (7th Cir. 2006) ............
Drutis v. Rand McNally & Co., 499 F.3d 608 (6th Cir. 2007) ....................
Finley v. Dun & Bradstreet Corp., 471 F. Supp. 2d 485 (D.N.J. 2007) ..
Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644 (7th Cir. 2009) .........................................................................................................................
Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445, 2010 WL 446097 (7th Cir. Feb. 10, 2010) ......................................
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ..........................................
Hirt v. Equitable Ret. Plan for Employees, Managers & Agents, 533 F.3d 102 (2d Cir. 2008) ..............................................................................................
*iv Hurlic v. So. Cal Gas Co., 539 F.3d 1024 (9th Cir. 2008) ....................
5

50 42
passim 46, 47 6, 40, 41
48
26
passim 20 20 45
28
35 20
39

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130 (2d Cir. 2000) ............................................................................................................................................... Jones v. UOP, 16 F.3d 141 (7th Cir. 1994) ........................................................ Kentucky Ret. Sys. v. EEOC, 128 S. Ct. 2361 (2008) ..................................... Mathews v. Sears Pension Plan, 144 F.3d 461 (7th Cir. 1998) .................. May Dep’t Stores Co. v. Fed. Ins. Co., 305 F.3d 597 (7th Cir. 2002) ...... Medcom Holding Co. v. Baxter Travenol Lab, Inc., 984 F.2d 223 (7th Cir. 1993) ......................................................................................................................... Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007) ...... Strawn v. Missouri State Bd. of Educ, 210 F.3d 954 (8th Cir. 2000) ....... Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738 (7th Cir. 1996) ................... Teumer v. Gen. Motors Corp., 34 F.3d 542 (7th Cir. 1994) ......................... United Airlines, Inc. v. HSBC Bank USA, N.A., 416 F.3d 609, 612 (7th Cir. 2005) ......................................................................................................................... United States v. B.F. Ball Constr. Co., 355 U.S. 587 (1958) ....................... Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v. Wells, 213 F.3d 398 (7th Cir. 2000) ............................................................................................. Statutes, Rules & Regulations 29 U.S.C. § 623(i)(1)(A) ............................................................................................ 29 U.S.C. § 1001, et seq. (“ERISA”) .................................................................... *v ERISA § 204(b)(1)(H) .......................................................................................... ERISA § 204(g) ............................................................................................................. ERISA § 3(23) ............................................................................................................... Internal Revenue Code § 417(e) ............................................................................. Mo. Rev. Stat. § 213.055 ........................................................................................... Mo. Rev. Stat. § 213.111(1) ..................................................................................... Mo. Rev. Stat. § 516.120(1) ..................................................................................... Other Authorities 53 Fed. Reg. 11,876 (April 11, 1988) ...................................................................
6

34
34 17, 35, 37, 38 17, 27, 28, 34
49 26
20, 30 48 26
47, 48 35
35 34
38 4
passim 7 7
44 18, 48 48, 49 19, 50
25, 43

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...

67 Fed. Reg. 76,123 (Dec. 11, 2002) ....................................................................

39

H.R. Conf. Rep. No. 1012, 99th Cong., 2d Sess. 378-79 (1986),

39

reprinted in 1986 U.S.C.C.A.N 3868 ...................................................................

IRS Notice 96-8 .............................................................................................................

46

Revenue Ruling 2008-7 ..............................................................................................

45

*1 INTRODUCTION
In 1997, Monsanto Company (“Old Monsanto”) restructured its pension programs, converting them to a new plan design known as a “cash balance plan.” A cash balance plan uses hypothetical accounts to represent the pension benefit of each participant, expressed so that its value is readily understood, similar to a defined contribution plan. A cash balance plan, however, does not create actual individual participant accounts. Rather, all of the plan’s assets are held in trust for all employees, and the employer is responsible for ensuring that the assets are sufficient to pay all promised benefits. Accordingly, a cash balance plan is a “defined benefit plan” under ERISA.
In the new plan, Old Monsanto established two hypothetical accounts for its employees: one reflecting only new benefits to be earned going forward, and a second preserving the age-65 benefits that employees had already earned as of the time of the conversion. Only this second account, called the “Prior Plan Account,” is at issue in this case.
After the conversion, employees had the right to receive their Prior Plan Account benefits upon termination of their employment, regardless of age. All employees could receive the full age-65 benefit ten years early, at age 55, while employees under 55 could receive a discounted benefit. Therefore, the Prior Plan Accounts of employees age 55 or older at the time of the conversion had balances reflecting the full amount of the benefits they had earned as of that date, and employees not yet 55 were shown a discounted amount they could receive if they wanted to take their benefits early. Each year, if an employee under 55 did not elect *2 to receive the benefit, the amount of the discount for that year was credited back to the account. Employees who waited until age 55 or later to receive their benefit would see the discount on their Prior Plan Account restored to the full, undiscounted age-55 amount.
As explained below, the way the Prior Plan Account operates is not controversial. Providing benefits with an early retirement distribution option is lawful. Discounting the amount the employee receives if he or she takes the benefit early is lawful. Showing employees under age 55 the current (discounted) value of exercising their early retirement option is also lawful.
Nonetheless, because the plan uses the phrase “interest credits” to describe how the early retirement discount on the Prior Plan Account phases out as employees age toward 55, Plaintiffs brought this class action suit. Seizing upon the label “interest,” Plaintiffs mischaracterize the amounts credited back to the Prior Plan Account each year until age 55 as “new” benefits being added by the employer. Based on that mischaracterization, Plaintiffs assert that it is age discrimination to cease reversing the discount at age 55, even though, at that point, the early retirement discount is eliminated.
The district court correctly saw the interest credits for what they are: the lawful restoration of an early retirement discount. They add no new benefits to the Prior Plan Account, as the plan documents make clear. Because these amounts are not new benefits, they are not “benefit accruals,” and ERISAs prohibition against ceasing benefit accruals because of age does not apply. Likewise, as seen from the *3 plan documents, the credits do not cease “because of age,” but rather because of pension status. The credits stop at age 55 because, once the employee reaches age 55, the discount has been fully restored. For these reasons, the district court properly entered summary judgment for Defendants.
Plaintiffs’ claims fail for two additional reasons preserved by Defendants, although not reached by the court below. First, ERISA instructs that the amount of an early retirement subsidy should be disregarded when examining a plan to determine whether there has been age discrimination. Here, if one disregards the early retirement subsidy, there is no age discrimination claim. Second, Plaintiffs’ claims are time-barred.
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JURISDICTIONAL STATEMENT
The jurisdictional statement of Plaintiffs-Appellants is complete and correct.
ISSUES PRESENTED FOR REVIEW
1. Are credits to an ERISA plan’s hypothetical account “benefit accruals” within the meaning of ERISA § 204(b)(1)(H)(i), where they add no new value to a participant’s “accrued benefit” but merely restore an early retirement discount?
2. When credits that restore an early retirement discount to a hypothetical account cease when the discount is fully restored at age 55, is the cessation of those credits discrimination “because of ... age” within the meaning of ERISA § 204(b)(1)(H)(i)?
3. Are Plaintiffs’ claims foreclosed by ERISA § 204(b)(1)(H)(v), which requires that early retirement subsidies be disregarded in determining whether a plan provision discriminates because of age?
*4 4. Are Plaintiffs’ ERISA age discrimination claims, the earliest of which were brought more than seven years after their claims accrued, barred by the applicable statute of limitations?
STATEMENT OF THE CASE
Plaintiffs filed the first of these consolidated cases, Walker v. Monsanto Company Pension Plan, No. 04-436-DRH, on June 23, 2004. Subsequent actions were filed in Davis v. Solutia Inc. Employees’ Pension Plan, No. 05-736-DRH (October 12, 2005); Donaldson v. Pharmacia Cash Balance Pension Plan, No. 06-03-GPM (January 3, 2006); and Hammond v. Solutia Inc. Employees’ Pension Plan, No. 06-139-DRH (February 15, 2006). All of these cases were related because they asserted substantially identical claims based on the defendant pension plans, all of which, as a result of corporate restructuring, were successors to a single plan first adopted by Old Monsanto on January 1, 1997. The cases were consolidated on September 1, 2006, and Plaintiffs filed a consolidated complaint (the “Complaint”) on September 4, 2006.
The Complaint asserted several claims under the Employee Retirement Income Security Act of 1974, as amended 29 U.S.C. § 1001, et seq. (“ERISA”). (R.139.)1 Counts I-III alleged that the plans violated ERISA § 204(b)(1)(H)(i) because interest credits cease on the Prior Plan Account at age 55. Counts IV-VI alleged that the plans violated ERISAs anti-backloading provisions. Counts VII-IX *5 alleged the same theory later rejected by this Court in Cooper v. IBM Pers. Pension Plan, 457 F.3d 636 (7th Cir. 2006). Count X, brought against only one plan, alleged an improper calculation of post-termination interest on lump sum distributions delayed by administrative processing time.
The district court granted the Defendants’ motion for judgment on the pleadings as to Counts VII-IX on September 13, 2007. Plaintiffs stipulated to the dismissal of Counts IV-VI on September 27, 2007. As to the remaining counts, the district court certified the consolidated cases as a class action on May 22, 2008.
With respect to Counts I-III and Count X, the parties agreed that no material facts were in dispute and filed cross motions for summary judgment. On May 6, 2009, the district court held a three-hour hearing at which the parties orally presented their arguments and answered questions. (R.322.)
On June 11, 2009, the district court granted summary judgment for the Defendants (and denied Plaintiffs’ corresponding motion) as to Counts I-III, which are the only claims at issue on appeal. The district court held that the Plan’s cessation of the interest credits at age 55 does not violate ERISA § 204(b)(1)(H)(i) for two reasons: (1) the credits are not “benefit accruals” because they do not increase the value of participants’ accrued benefits but merely restore an early retirement discount applied to already-earned benefits; and (2) the credits do not cease because of age, but rather because the discount is fully restored at age 55.
Also on June 11, 2009, the district court granted summary judgment in favor of Plaintiffs with respect to liability on Count X. Subsequently, the Plaintiffs and *6 the Defendants against whom Count X had been asserted stipulated to the amount of
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damages, and the district court entered its final judgment on September 29, 2009. This appeal followed.
STATEMENT OF FACTS
I. The Development and Implementation of the New Plan.
A. Conversion to a Cash Balance Plan.
Effective January 1, 1997, Old Monsanto restructured its existing pension programs, converting them to a single plan with a “cash balance plan” design.2 (JA9, 12.) Like other defined benefit plans, cash balance plans specify a promised benefit. But they express the promised benefit in the form of an “account,” similar to a defined contribution plan, such as a 401(k) plan. However, cash balance plans create no actual separate account for individual employees. Rather, they use hypothetical bookkeeping accounts (sometimes referred to as “notional” accounts) that reflect the benefit promised to each employee in the easily understood format of an account balance. See Berger v. Xerox Corp. Ret. Income Guarantee Plan, 338 F.3d 755, 757-58 (7th Cir. 2003) (describing cash balance plans).
In the new cash balance plan, Old Monsanto created two hypothetical accounts for each employee: a “Cash Balance Account” for employees’ new benefits, and a “Prior Plan Account” for employees’ already-earned benefits. (JA31-37, Plan *7 §§ 6.2, 6.3.) This lawsuit concerns only the operation of the Prior Plan Account. (Br. 5.)
1. Determining the Prior Plan Account’s Initial Balance.
ERISA protected the already-earned benefits (accrued benefits) of employees who had participated in prior pension plans.3 ERISA § 204(g). Certain features of the old pension plans provide helpful background for understanding how the new Prior Plan Account preserved those accrued benefits.
First, Old Monsanto’s prior pension plans expressed an employee’s accrued benefit as a monthly annuity beginning at age 65, not as a lump sum payable at one time. (R.284 Ex. A ¶¶ 4-5.) For example, an employee who retired at age 55 might be entitled to receive $1,000 per month starting at age 65 until she died. If she continued to work beyond age 55 and earned additional benefits, then the monthly annuity available to her starting at age 65 would be greater than $1,000.
Second, some of the prior plans provided a discounted early retirement option to employees. (R.284 Ex. A ¶¶ 6-7.) If employees retired early and wanted to begin receiving their benefits before age 65, they could do so as early as age 55. (Id. ¶ 6.) In that event, the payments would be discounted by 3% for each year that the employee’s age was less than 65 to reflect the longer payment stream. (Id.) For example, if our 55 year-old employee was entitled to a monthly annuity payment of $1,000 at age 65, but retired and elected to begin receiving payments at age 55, her $1,000 per month payment would be discounted by 30% (3% x 10 years) to $700 per *8 month. The prior plans did not permit retirees to begin receiving payments before age 55. (Id.)
Finally, some of the prior plans also provided for an undiscounted early retirement option. (R.284 Ex. A ¶¶ 8-9.) The undiscoimted early retirement option provided the employee the full age-65 benefit even before the employee reaches age 65. (Id.) Such an option subsidizes early retirement. (Id.) The undiscounted, fully-subsidized early retirement option, known as “Combo 80,” was available only to employees whose combined age and years of service with Old Monsanto equaled or exceeded 80. (Id. ¶ 8.) If the same 55-year-old employee described above had 25 years of service, and hence was Combo 80 eligible, then she could begin receiving the full $1,000 monthly payments at age 55, rather than either waiting until she turned 65 or taking the discounted $700 per month available to employees who were not Combo 80 eligible.
The new cash balance plan’s Prior Plan Account was designed to preserve employees’ accrued benefits, taking each of these features into account. (R.284 Ex. A 11, 24-29.) In importing these prior plan benefits into the Prior Plan Account, Old Monsanto improved the early retirement options and made the preserved benefits easier to understand in the context of the new Plan format.
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To begin, the benefits earned under the old plans were expressed to employees in the new Plan as a lump sum, instead of an annuity. (R.284 Ex. A ¶¶ 22-23, Ex. H at MSP 673; SA6, 14, 19.) Showing the lump sum value of the prior *9 benefits paralleled the lump sum value of the new cash balance plan benefits, making it easier for employees to calculate and understand their total benefit. (Id.)
In addition, the undiscounted, subsidized early retirement option in the prior plans was expanded to include all participants, not just those who were Combo 80 eligible. (R.284 Ex. A ¶ 25; SA6, 15, 33.) As a result, all employees were credited with the full age-65 benefit at age 55, without any discounting. (Id.)
Last, a discounted early retirement option was made available to participants even before age 55. (R.284 Ex. A ¶ 26; SA6, 14.) Under the prior plans, no benefits could be received before age 55. (R.284 Ex. A ¶ 6.) Following conversion, an employee could collect benefits prior to age 55, but the benefit would be discounted by 8.5% for each year the participant was younger than age 55. (R.284 Ex. A ¶¶ 27-28, Ex. E at MSP 3575-77; SA15, 40-41.)
Accordingly, Old Monsanto calculated the initial balance of the old plan benefits preserved in the Prior Plan Account in three steps. First, the age-65 annuity benefit earned as of January 1, 1997 was converted to a lump sum by multiplying it by an annuity conversion factor of 125. (R.284 Ex. A ¶ 28, Ex. E at MSP 3575-77.) Second, the lump sum was treated as payable in full at age 55 as an undiscounted, i.e., subsidized, early retirement benefit. (Id.) Thus, for employees who were already age 55 or older on the date of conversion, the opening balance of their Prior Plan Accounts was the full, undiscounted value of their age-65 benefits already earned under the prior plans. (Id.) Third, to reflect the discounted early retirement option available for employees younger than age 55, § 6.2(b) of the new *10 Plan discounted the lump sum at a rate of 8.5% per year for each year the employee was younger than 55:
The Prior Plan Account ... shall, as of January 1, 1997, be credited with an amount equal to the Actuarial Equivalent lump sum value of the Participant’s Predecessor Plan Accrued Benefit ... discounted using an interest rate of eight and one-half percent per annum for each month, if any, by which the Participant’s age as of January 1, 1997 precedes age 55.
(JA32, Plan § 6.2(b) (emphasis added).) The initial Prior Plan Account balance for employees younger than 55 was thus a discounted portion of their accrued benefit.
Plaintiffs do not complain about the calculation of the initial Prior Plan Account balance, or the discounting that was applied to balances of employees under age 55. They do not deny that the initial Prior Plan Account balances accurately preserved employees’ accrued benefits.
2. Restoring the Discount to Prior Plan Accounts.
Going forward from the January 1, 1997 date of conversion, the Plan restored the 8.5% discount that had been applied to the Prior Plan Account balances of employees younger than 55. Just as § 6.2(b) of the Plan explicitly provided for the initial discounting at an 8.5% “interest rate,” § 6.2(d) of the Plan explicitly provided for a mirror image 8.5% “interest credit” to restore the annual discount as employees aged and elected not to take early retirement:
For each month prior to ... age 55 or [the Participant’s] Annuity Starting Date, a Participant’s Prior Plan Account shall be credited with Interest Credits equal to the sum of (i) the Prior Plan Account on the first day of such month, and (ii) the Participant’s Pay Credits credited for that month, if any, multiplied by 1.006822 [8.5%].
(JA34, Plan § 6.2(d).)
*11 Section 6.2(d) thus adds “interest credits” at precisely the same “interest rate” (8.5%) that § 6.2(b) had discounted from the initial account balance. As a result, the 8.5% interest credit applies only to balances that had been discounted by 8.5% per year in the first place: balances credited to employees who were younger than age 55 when the Prior Plan Account was established. And, for the same reason, it applies only until the discount is fully restored: when the employee reaches age 55. Indeed, even Plaintiffs’ experts acknowledged that the interest credits simply correspond to the early retirement discount that was calculated when the Prior Plan Account balances were first established for each employee. (R.284 Ex. N at 80, Ex. O at
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35-38, 49-50, Ex. P at 82-84, Ex. Q at 39-40, 109-11; see SA42 (visual representation of discount and corresponding credit).)4
B. Detailed Communications to Employees.
In mid-1996, before the effective date of the plan conversion, Old Monsanto began informing its employees about the new Plan. (R.284 Ex. A ¶ 34.) Using a variety of media, it explained how the Prior Plan Account worked, that the Prior Plan Account ensured that the full value of the benefits employees had already earned under the prior programs would be preserved, and that employees were getting the benefit of expanded early retirement options. (Id. ¶¶ 34-35; SA6, 15, 19, 3341.) The communications specifically explained that the 8.5% discount applied to the initial Prior Plan Account balances of employees younger than 55, and that the *12 corresponding 8.5% credit would be applied only until employees reached age 55 because, by age 55, the discount would be fully restored. (SA6, 15, 27, 33-41.)
For example, the company gave employees personalized account statements explaining how their opening Prior Plan Account balances were calculated. (R.284 Ex. A ¶ 37; SA27.) Those account statements explained:
Your Prior Plan Account opening balance is the lump sum value of your monthly retirement benefit as of January 1, 1997 ... discounted by 8.5% for each year you are younger than age 55.... Each year that your account stays in the plan, it will grow with 8.5% interest credits, until you reach age 55, building your lump sum to its full age 55 value.
(R.284 Ex. A ¶ 38; SA27.)
Similarly, a company newsletter entitled the “Benefits Bulletin” was distributed to all employees, and several editions explained that the 8.5% interest credits would stop at age 55. (R.284 Ex. A ¶ 38.) For example, the September 1996 edition explained that the initial Prior Plan Account balances differed for employees who were at least age 55 and those who were under 55. (SA15.) For those who were at least 55, the initial balance was determined simply by multiplying the monthly annuity as of January 1, 1997 by the conversion factor. (Id.) For those who were under 55, the bulletin explained, “[the converted lump sum] amount is then discounted by 8.5% for each year that you are younger than age 55...” (Id.) It then explained that interest credits would be added at an 8.5% annual rate to the account going forward, and why:
This way, when you reach age 55, your Prior Plan Account will have increased to the value of your full benefit before it was discounted. If you are 55 or older, no interest is credited since your Prior Plan Account will not be discounted.
*13 (Id.)
In addition, a written presentation to employees directly explained “Why Prior Plan Account Interest Credits Stop at Age 55:”
A lot of people have asked about why interest credits are not added to the prior plan account after age 55. The reason relates to how the old plan works now, and the Company’s intent to preserve old plan values in the new plan. . . . By crediting interest to age 55, your benefit builds back to its full value at age 55, preserving your old plan benefit.
(SA41.)
Moreover, the Summary Plan Description (“SPD”) explained that the final step in determining the initial balance of the Prior Plan Account was to discount the lump sum value by “an annual interest rate of 8.5% ... for each month that you are younger than age 55” at the time of conversion to the new Plan. (JA198.) The SPD also explained that 8.5% interest credits would be applied to the Prior Plan Account balance “until you reach age 55....” (JA186.) Similar language was contained in pension benefit election guides, pension estimates, and other disclosures that Plaintiffs never disputed receiving around the time the new Plan became effective and thereafter. (R.284 Ex. A ¶ 39.)
II. Plaintiffs’ Claims.
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More than seven years after Old Monsanto introduced its new cash balance plan, putative class actions were filed against the successors to the Old Monsanto Plan. The cases were ultimately consolidated, and Plaintiffs filed a consolidated amended complaint (“Complaint”) against all Defendants on September 4, 2006. (R.139.)
*14 Plaintiffs asserted a variety of counts, but only three--Counts I, II, and III--remain at issue in this appeal. These three counts present an identical claim against each of the three defendant groups: Monsanto, Solutia and Pharmacia. Plaintiffs allege that “the Plan’s discontinuation of [Prior Plan Account] interest credits at age 55 violates ERISA § 204(b)(1)(H), which prohibits the rate of benefit accrual and/or accrued benefits from ceasing or decreasing ‘because of the attainment of any age’ or ‘on account of any increase in age.’ ” (R.139 ¶ 65.)
III. The District Court Ruling.
The district court entered summary judgment for the Defendants. (App. 16.) The district court recognized that Plaintiffs’ claims depended on reading the phrase “interest credits” in § 6.2(d) “in a vacuum.” (App. 7.) The court, however, was unwilling to read the phrase in isolation. (App. 8.) Considering the “context and history” surrounding § 6.2(d), which included “other portions of the Plan and ... pre-conversion materials distributed to participants and the SPD,” the court concluded “the 8.5% ‘interest credit’ ... is not interest as the common person understands interest. Instead, the ‘interest credit’ represents the reversal of the discount taken from the total lump sum value of a participant’s accrued benefit at the time of plan conversion.” (Id.) In light of the clear function of the interest credits, the court ruled that the credits are not “benefit accruals” and do not cease “because of age,” as Plaintiffs’ claims required. (App. 8-16.)
First, relying on this Court’s decision in Cooper v. IBM Pers. Pension Plan, 457 F.3d 636, 639 (7th Cir. 2006), the district court concluded that the credits are not a benefit accrual because a “benefit accrual” increases the value of a *15 participant’s retirement benefit. (App. 9-10.) A credit that merely “reverses the pre-55 ... discount year by year as the participant approaches 55” does not increase the value of the benefit. (App. 10.) The interest credits have no effect on the value of the benefit that any participant was entitled to claim at age 55, which, under the new Plan, was the age at which the full value of the previously earned benefits could be taken. (Id.) The interest credits merely reduce the total amount of discount taken from a particular base because the participant is (of course) aging and, hence, getting closer to 55 than when the Plan became effective in 1997. (Id.) The district court concluded that this case was “indistinguishable” from Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992), where the Eighth Circuit held that simply reversing an early retirement discount until the point at which the early retirement discount is exhausted does not increase a participant’s accrued benefit, and therefore is not a “benefit accrual” for purposes of ERISA § 204(b)(1)(H). (App. 11-12.)
Second, the district court determined that the 8.5% interest credits do not cease “because of” age. As the court recognized, numerous courts hold that a plaintiff must show that an action was taken because of age, not merely on account of a characteristic that correlates with age. (App. 14 (citing cases).) Here, “it is clear that the Plan’s decision to stop awarding ‘interest credits’ was ‘actually motivated’ by the fact that the early retirement discount became fully reversed[.]” (App. 15.) Under this Plan, that point occurred “without fail when a participant turns 55” because that is the point at which the new Plan determined all participants would *16 be entitled to receive their fully undiscounted (subsidized) accrued benefit. (Id.) It does not matter that the Plan referred to age 55 as the point at which the credits cease, rather than saying that they cease because the participant’s Prior Plan Account had reached the point where it contained the “full early retirement subsidy [.]” (Id.) The undisputed record establishes that the credits cease because the early retirement discount had been fully reversed, not because of age. (Id.)
Having ruled in favor of Defendants on these two grounds, the district court chose not to address the two other independently dispositive arguments presented by Defendants: that Plaintiffs’ claims are predicated on an early retirement subsidy, as ERISA § 204(b)(1)(H)(v) prohibits, and that their claims are time-barred. (App. 16.)
SUMMARY OF ARGUMENT
Four distinct arguments support affirming the judgment.
First, the 8.5% interest credits are not “benefit accruals,” so ERISA § 204(b)(1)(H)’s prohibition against ceasing “benefit accruals” because of age does not apply. A benefit accrual adds “to the pot,” Cooper, 457 F.3d at 641, which means that a
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benefit accrual increases the amount of a participant’s accrued benefit.
Here, the 8.5% interest credits do not add to an employee’s accrued benefit. To the contrary, the interest credits in the Prior Plan Account were necessary to preserve the already accrued benefits of employees. The initial balance in the Prior Plan Account for employees was determined in part by discounting their accrued benefit by 8.5% for each year, if any, they were younger than age 55. Having discounted the initial balance in the account by that amount, the 8.5% credits *17 merely restore (as the employee ages to 55) what had been removed. The discounting and corresponding restoration of the discount in the Prior Plan Account is clear from the text of the Plan itself and was fully explained to employees in numerous documents. (JA32 (§ 6.2(b)--the discount) and JA34 (§ 6.2(d)--the restoration).) Even if the Plan’s terms were ambiguous--and they are not--the objective extrinsic evidence demonstrates that the interest credits in § 6.2(d) exist merely to preserve the accrued benefits of employees whose initial Prior Plan Account balances had been discounted. See Mathews v. Sears Pension Plan, 144 F.3d 461, 466 (7th Cir. 1998) (explaining importance of objective extrinsic evidence in plan interpretation). The accrued benefit--the lump sum value the employee is entitled to receive at age 55--is unaffected by the interest credits, so those credits are not “benefit accruals.”
Second, the interest credits do not cease “because of age.” The credits cease because of pension status. The law is clear that if a benefit accrual ceases because of a factor that merely correlates with age, but not because of age itself, there is no violation. Kentucky Ret. Sys. v. EEOC, 128 S. Ct. 2361, 2366 (2008). Here, the credits cease when the discount to the initial balance is fully restored. Simply because full restoration occurs at a specified age does not change the analysis. As this Court recognized in Cooper, even when some other factor perfectly correlates with age, the two factors must be kept distinct. Because pension status--here, the full restoration of the age-55 accrued benefit--must be kept analytically distinct from the age--here, 55--the credits do not cease “because of age.”
*18 Third, ERISA provides that a court should disregard early retirement subsidies when determining whether a benefit accrual ceases because of age. ERISA § 204(b)(1)(H)(v). The Plan fully subsidizes early retirement for employees by providing that all employees are entitled to the full age-65 benefit when they reach age 55 (the undiscountedearly retirement option). The Plan also provides a discounted early retirement option by offering those who are under age 55 the opportunity to collect benefits, though the amount is discounted by 8.5% for each year the employee is under 55. Plaintiffs complain that the increase in the amount of benefits that an employee can collect (an increase that reflects the diminishing discount as the employee approaches age 55) stops at age 55. They believe that the increase should continue, and at the same rate, until employees reach age 65. But far from disregarding the early retirement subsidy, the increase in the amount of benefits an employee can collect stops at age 55 only because the Plan fully subsidizes early retirement at that point. This is precisely the age discrimination claim that ERISA § 204(b)(1)(H)(v) was designed to preclude.
Fourth, Plaintiffs’ claims are time-barred because they waited more than seven years to bring them. That was too long under either of the two potentially applicable Missouri limitations periods. Plaintiffs complain of age discrimination, so the Missouri law most analogous to their claim would be Missouri’s age discrimination law, which provides a two-year limitations period. Mo. Rev. Stat. § 213.055. Even if Plaintiffs’ claims are treated as analogous to breach of contract, it is clear that their contract claim is for breach of a contract term implied by law. No *19 contract provision requires continuation of the 8.5% interest credits beyond age 55. Plaintiffs are asking this Court to hold that ERISA implies the term. Missouri provides a five-year limitations period for such claims, Mo. Rev. Stat. § 516.120(1), leaving Plaintiffs’ claims two years late.
ARGUMENT
I. The Plan Does Not Violate ERISA § 204(b)(1)(H).
ERISA § 204(b)(1)(H)(i) provides that a defined benefit plan is unlawfully age discriminatory “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.” Thus, to prevail on their age discrimination claims, Plaintiffs must establish both that the credits at issue are “benefit accruals” and that they cease “because of” age. Moreover, they must show that the exception stated in § 204(b)(1)(H)(v)-whereby early retirement subsidies are disregarded in determining whether there is age discrimination--does not apply. Plaintiffs’ claims fail each of these three steps, and each one standing alone is dispositive.
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A. The 8.5% Interest Credits Are Not Benefit Accruals.
The district court correctly determined that the credits are not benefit accruals, because they do not increase the benefit that an employee had earned as of the January 1, 1997 plan conversion date. Instead, the 8.5% credits simply restore the 8.5% discounting that was built into the Prior Plan Account.

1. The Credits Do Not Increase the Accrued Benefit.
ERISA does not define the term “benefit accrual,” but this Court held in Cooper that it means “the rate at which value is added” to an employee’s benefit. *20 457 F.3d at 639. An amount is a “benefit accrual” only if it is an “addition to the pot,” that is, a contribution that increases the amount of the benefit the employee has already earned. Id. at 641; see also Hirt v. Equitable Ret. Plan for Employees, Managers & Agents, 533 F.3d 102, 108 (2d Cir. 2008) (same); Drutis v. Rand McNally & Co., 499 F.3d 608, 614-15 (6th Cir. 2007) (same); Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 68 (3d Cir. 2007) (same).5
Here, the 8.5% credits do not add to the Prior Plan Account “pot” in the sense that Cooper discusses. The Prior Plan Account, by its very nature, represents the accrued benefit already earned under the old plans. The annual 8.5% credits, when viewed in conjunction with the identical 8.5% discount taken for each year an employee was younger than 55 at the time of conversion, ensure that the accrued benefit always remains the same--they do nothing more than preserve that benefit. The credits surely add to the yearly account balance, but never add to the accrued benefitir in the account. Indeed, because the 8.5% discount was taken from the age-55 benefit amount, the 8.5% credits applied until age 55 were part of the accrued benefit participants had already earned as of the plan conversion date. And a credit that is already part of the accrued benefit cannot be a new benefit accrual. As Cooper instructs, an “accrued benefit” (the age-65 benefit to which an employee is entitled--the “end result”) should be distinguished from “benefit accruals” (the amounts added along the way). Cooper, 457 F.3d at 639; see also Finley v. Dun & *21 Bradstreet Corp., 471 F. Supp. 2d 485, 491 (D.N.J. 2007) (“Accrual is the process of accumulating, not the end result of accumulation.”). The 8.5% credits are not, therefore, benefit accruals.
How the 8.5% credits add to the account balance without adding to the accrued benefit can be demonstrated using a hypothetical participant. This hypothetical was presented in Defendants’ expert’s report and to the district court below. (R.286 at 23-24; R.284 Ex. C at 26.) Plaintiffs have never disputed its accuracy.

(

(

(c)

a

b

)

)

YA

e

g

a

e

r

Accrued Benefit (Age-65 annuity payable at 55)

1

5

9

0

9

7

$1,000

1

5

9

1

9

8

14

$1,000

Mary Doe’s Prior Plan Account Progression

(d)

(e)

Age-55 Lump Sum of Accrued Benefit
$125,000

Prior Plan Account Balance at Beginning of
Year/Immediately Payable Lump Sum
$83,131

$125,000

$90,197

(f)
8.5% Credit (Added to Prior Plan Account each
year before age 55) $7,066
$7,667

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...

1

5

9

2

9

9

2

5

0

3

0

0

2

5

0

4

0

1

2

5

0

5

0

2

$1,000 $1,000 $1,000 $1,000

$125,000 $125,000 $125,000 $125,000

$97,864 $106,182 $115,207 $125,000

$8,318 $9,025 $9,793
$0

In this example, Mary Doe is age 50 with 15 years of service at the time of conversion. Mary had earned an accrued benefit under her prior plan of $1,000 per month payable at age 65. Her opening Prior Plan Account balance would have been calculated by starting with the lump sum value of her age-65 accrued benefit: $125,000 ($1,000 x 125, the annuity conversion factor). This amount was preserved; she would always be entitled to a lump sum of $125,000 at age 65. But under the new Plan, she would have been credited with that full amount ten years early due to the subsidy Old Monsanto applied--so after conversion she became entitled to a *22 lump sum of $125,000 at age 55. But Mary Doe is only 50 at conversion, and in order to express her accrued benefit as a current account (available to her at age 50), her balance would have been discounted by 8.5% per year for 5 years. As a result, her Prior Plan Account initial balance in 1997 would have been set at $83,131, as shown in column (e) of the chart. If she had chosen to retire at conversion and take her discounted early retirement benefit at that time, that is the amount she could have taken.
After the conversion, the Plan (specifically, § 6.2(d), JA34) would have restored the 8.5% discount to the account each year that Mary chose not to take an early retirement benefit, by adding 8.5% interest credits until she reached age 55. What those credits accomplish is clear from the chart. As column (e) illustrates, each year the credits add to Mary Doe’s account balance, reflecting one less year of discounting. But as columns (c) and (d) illustrate, those credits have no effect on her accrued benefit. Even though Mary Doe continues to receive 8.5% interest credits up to age 55, her accrued benefit remains a constant $125,000 (as a lump sum) during that period. When Mary reaches age 55, her account balance and her accrued benefit become equal (as shown in columns (d) and (e)). The credits are aiming for, not adding to, the $125,000 accrued benefit. Therefore, once the credits equalize the account balance and the accrued benefit, they cease.
Indeed, Plaintiffs’ expert correctly acknowledged that as the 8.5% credits are added, “the account balance would change as the participant aged up to age 55, but the accrued benefit ... always remain[s] the same.” (R.284 Ex. O at 49.) More *23 broadly, Plaintiffs’ experts recognized that when an employee’s benefit amount nominally increases by reason of the elimination of an early retirement discount, the increase is not a benefit accrual. (R.284 Ex. Q at 111 (Q: “So if [an individual] had waited one year and he decided to take his benefit at normal retirement age, the amount of his monthly benefit check would increase, is that right?” A: “Yes.” Q: “Would you characterize that increase as a benefit accrual?” A: “No.”); R.284 Ex. P at 84 (Q: “If [an individual] waits one year, the amount of his benefit check is going to be 3 percent higher than if he had taken it the year before normal retirement age.... Would you characterize that increase ... as a benefit accrual?” A: “Nope.” Q: “Has his accrued benefit changed at all?” A: “Nope.”).)
Plaintiffs suggest that it does not matter whether the participant’s accrued benefit remained unchanged by the interest credits applied in this case. They argue that any addition to an account, regardless of whether it adds to a participant’s accrued benefit, is a benefit accrual. (Br. 13-14 (quoting Cooper, 457 F.3d at 638-39; Register, 477 F.3d at 68-69; Drutis, 499 F.3d at
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612-15; Hurlic v. So. Cal Gas Co., 539 F.3d 1024, 1037 (9th Cir. 2008)).) But none of the authorities they cite supports that view.
Significantly, none of Plaintiffs’ cases addressed additions to an account balance that merely offset a previously-applied discount. None of the courts, in discussing benefit accruals, were referring to an addition to an account balance that had no effect on a participant’s accrued benefit. None of the courts reviewed additions to an account balance necessary to preserve a previously-earned benefit. *24 Plaintiffs’ cases are simply inapposite--any credit that merely preserves a participant’s accrued benefit cannot be a “benefit accrual.” Contrary to Plaintiffs’ arguments, there is nothing “put in” or “deposited” to the Prior Plan Account by the interest credits that was not already there. These credits merely provide the method to show the pre-55 benefit a participant could take if he or she chose to do so. If the participant does not take the benefit before age 55, the depiction of the account in prior years has no significance.
The proposed Treasury Department regulations on which Plaintiffs rely also do not advance their position.6 The 2002 proposed regulations provide only that “benefit accruals” in eligible cash balance plans would be “permitted” to be determined by reference to the “additions to the participant’s hypothetical account.” 67 Fed. Reg. 76,123, 76,126 (Dec. 11, 2002) (emphasis added). The regulations specifically recognize that this would be a special rule for certain cash balance plans, designed to get around the problem of interest credits that cause the accrued benefit to increase at different rates for older and younger workers. Id. The “general rule” is still that “the rate of benefit accrual ... is the increase in the participant’s accrued normal retirement benefit.” Id. at 76,125 (emphasis added).7 The 1988 proposed Treasury regulations that Plaintiffs cite, to bolster their view that any *25 “rights or features” that cease upon a specified age are discriminatory, say nothing about plan features that do not add to the accrued benefit or affect normal retirement benefit entitlements. Instead, in the very same paragraph, these proposed regulations remind us, by referring to § 204(b)(1)(H)(v) (discussed below), that an early retirement subsidy (which, by definition, does not affect the accrued benefit) is to be disregarded in this analysis. 53 Fed. Reg. 11,877 (Apr. 11, 1988). Put simply, Treasury, like this Court and the district court below, recognizes that unless an addition to an account adds to a participant’s “accrued benefit,” that addition is not a “benefit accrual.”
2. The Function of the 8.5% Credits Is Clear.
That the interest credits simply restore the early retirement discount initially applied to the Prior Plan Account opening balances of younger employees is truly not debatable. Indeed, even Plaintiffs’ experts acknowledged that “it is mathematically true” that “all that happens is the 8.5 percent interest credit restore[s] the discounting[] that had been taken,” and that “adding eight-and-a-half percent back ... is simply restoring that discount.” (R.284 Ex. N at 80; Ex. O at 35-36.)
Plaintiffs treat the mathematically undeniable function of the credits as legally irrelevant. They dismiss as “mathematically convenient” the relationship between the initial 8.5% discount for those under age 55 at conversion (JA32, § 6.2(b)) and the subsequent 8.5% interest credits applied until employees reach age 55 (JA34, § 6.2(d)), simply because the two Plan provisions do not expressly reference each other. (Br. 17-18.) As the district court observed, Plaintiffs are *26 asking this Court to apply what Plaintiffs claim is the plain meaning of the term “interest credit” in a “vacuum.” (App. 7.) Their approach, which analyzes the meaning of § 6.2(d)’s 8.5% interest credits as if the 8.5% discount in § 6.2(b) had never happened, is an object lesson in how divorcing a contractual provision from its context and reading it in isolation distorts rather than captures the true meaning of a contract term.
It is a “basic contract principle that the meaning of separate contract provisions should be considered in light of one another and the context of the entire agreement.” Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 745 (7th Cir. 1996). One does not interpret a contract “by reference to particular words or isolated phrases.” Medcom Holding Co. v. Baxter Travenol Lab, Inc., 984 F.2d 223, 226 (7th Cir. 1993). The “purpose” of a contractual provision, as derived from its context within the contract as a whole, can illuminate the “plain meaning” of the provision. Commonwealth Ins. Co. v. Titan Tire Corp., 398 F.3d 879, 885 n.3 (7th Cir. 2004).
Under these settled and sensible principles of contract interpretation, it does not matter that Plan § 6.2(d) does not expressly refer back (a mere two subparagraphs within the same Plan section) to § 6.2(b) when providing for the 8.5% interest credits. To ignore the interplay between such closely related, complementary subsections within the same section of a contract would be a caricature of, not a search for, the “plain meaning” of the phrase “interest credits.” The “plain meaning” of the phrase
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“interest credits” in § 6.2(d), read in light of the *27 contract as a whole, is that those credits merely preserve an accrued benefit, and do not add any new benefit accruals to a participant’s Prior Plan Account.
Plaintiffs also assert that the interest credits in § 6.2(d) do not reverse any early retirement discount because, they say, “there is no early retirement discount feature in the Plan.” (Br. 17.) This is nonsense. The Plan provides employees with the right to take their benefits before age 55, but if they do so, their benefit is discounted for each year the employee is younger than age 55. (JA32-34, 44, Plan §§ 6.2(b)-(d), 7.3(d) “Option 4: Lump Sum”.) That is, the Plan provides employees with the option of retiring early, which, if exercised before age 55, will result in the retiree receiving a discounted benefit. Plaintiffs have not even tried to explain how this is anything but an “early retirement discount feature in the Plan.”8
Even if the plain meaning of the 8.5% interest credits, read in context, were not enough, or were deemed ostensibly to support the Plaintiffs’ view, the objective evidence extrinsic to the Plan confirms unquestionably that § 6.2(d)’ s “interest credits” refer to the restoration of the initial discount applied under § 6.2(b). “[P]arties are allowed to present extrinsic evidence to demonstrate that although the contract looks clear, anyone who understood the context of its creation would understand that it doesn’t mean what it seems to mean.” Mathews, 144 F.3d at 466; *28 see also Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445, 2010 WL 446097 at *4 (7th Cir. Feb. 10, 2010).
In Mathews, this Court concluded that the meaning of the plan language on its face supported the plaintiffs’ interpretation, but it did not end its evaluation there because the defendant had presented objective evidence that the plan language had been understood by all involved to mean something other than the supposed “plain meaning.” 144 F.3d at 466-69. Ultimately, this Court concluded that the objective evidence in support of the defendant’s interpretation controlled.
Here, the literature disseminated to participants contemporaneously with the plan conversion expressly states that the 8.5% interest credits added to the Prior Plan Account until age 55 simply restore the discount initially taken from participants younger than age 55 at conversion. For example, a September 1996 Benefits Bulletin distributed to employees explained that the initial Prior Plan Account balances for those who were under 55 would be “discounted by 8.5% for each year that you are younger than age 55.” (SA15.) It further explained why the 8.5% interest credits were added to the account going forward.
This way, when you reach age 55, your Prior Plan Account will have increased to the value of your full benefit before it was discounted. If you are 55 or older, no interest is credited since your Prior Plan Account will not be discounted.
(Id.) In addition, a written presentation to employees directly explained “Why Prior Plan Account Interest Credits Stop at Age 55.”
A lot of people have asked about why interest credits are not added to the prior plan account after age 55. The reason relates to how the old plan works now, and the Company’s intent to preserve old plan values *29 in the new plan. . . . By crediting interest to age 55, your benefit builds back to its full value at age 55, preserving your old plan benefit.
(SA41.)
The message to participants at the time of conversion was consistent and clear. As the district court recognized, “anyone who understood the context and history of the 8.5% ‘interest credit’ would understand that it is not interest as the common person understands interest. Instead, [it] represents the reversal of the discount taken from the total lump sum value of a participant’s accrued benefit at the time of the plan conversion.” (App. 8.)
Plaintiffs’ final effort to distort the function of the 8.5% interest credits fails at the mathematical level. Plaintiffs assert 17

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(without explanation) that because the 8.5% interest credits also apply to the monthly 4% pay credits added to participants’ Prior Plan Accounts, the interest credits must do more than reverse the early retirement discount. (Br. 18.) Plaintiffs suggest that because the 4% pay credits are new benefit accruals, the 8.5% interest credits on the 4% pay credits must also be new benefit accruals. But that is wrong because the 4% pay credit is equal to 4% of the account balance (not salary), and for anyone younger than 55, the account balance already reflects the 8.5% per year discount. As a consequence, the 4% pay credit on the discounted balance is smaller than it otherwise would have been by 8.5% per year. The 8.5% interest credits on any 4% pay credits simply cancels out the effect of the initial discounting. To the extent there is any new value added to a participant’s Prior Plan Account, it is thus entirely attributable to the *30 unobjectionable 4% pay credit, and not at all attributable to the 8.5% interest credits at issue here.
The Mary Doe example from above can easily be adapted to illustrate the math. If she works for one year past age 50, her opening account balance of $83,131 will increase by the 4% pay credit, or $3,325. In addition, the 8.5% interest credit will apply to the sum of the prior account balance and the 4% pay credit, yielding an 8.5% interest credit of $7,349. That produces an account balance of $93,805 ($83,131 (initial balance) + $3,325 (pay credit) + $7,349 (interest credit)) at age 51. If, instead, her age-55 accrued benefit of $125,000 were increased by 4% for one year, her new accrued benefit would be $130,000. And if $130,000 were discounted by 8.5% per year from age 55 to 51, the resulting amount is the same $93,805 balance. Thus, the difference in the amount of the accrued benefit from age 50 to age 51, when the 4% pay credit is considered, is attributable solely to the 4% credit. The 8.5% interest credit adds no new value.
3. The Prior Plan Account Could Function in an Economically Equivalent Way Without Any 8.5% Interest Credits.
Considering how the Prior Plan Account can function without any interest credits at all provides another way to understand why the 8.5% interest credits merely preserve already accrued benefits and do not reflect any new benefit accruals. In Cooper, this Court reasoned that two different, but functionally “economically equivalent” plans (a cash balance plan and a defined contribution plan) should not be treated differently for age discrimination purposes. 457 F.3d at 637-39; see also Register, 477 F.3d at 68-69 (treating cash balance plans and *31 functionally equivalent defined contribution plans differently for age discrimination purposes “would lead to a result that is not sensible”). The same principle applies with even greater force here, where the issue is not two different plans that function alike, but rather two different methods for calculating and displaying the very same benefit.
Because, as Cooper explains, a “benefit accrual” adds to the “pot,” 457 F.3d at 641, one could not eliminate a “benefit accrual” (new value added by the employer) without producing an effect on the “accrued benefit” (the amount an employee is entitled to take out). Here, one could change the method for calculating the Prior Plan Account balance for employees in a way that completely eliminates the 8.5% interest credit without any effect on participants’ accrued benefits at any point in time. The 8.5% interest credit must therefore not be a “benefit accrual.”
As relevant here, the Plan as written reflects a three-step process to determine the Prior Plan Account balance at any given moment: (1) convert the already-earned age-65 benefit as of January 1, 1997 from an annuity into a lump sum; (2) discount that lump sum by 8.5% per year for each year the participant was younger than 55 at conversion; and (3) add an 8.5% “interest credit” to the balance each year until the participant reaches age 55. The chart on page 21 above reflects this process for the hypothetical participant Mary Doe.
Plaintiffs do not complain about either step 1 or step 2; they complain only that step 3--the addition of 8.5% interest credits, which they assert to be “benefit accruals”--stops at age 55. But the Plan could have produced exactly the same *32 economic effect--precisely the same amount in benefit distributions for all participants--without any step 3 at all. The Plan could define the account balance at any moment in time through the following two steps: (1) convert the already-earned age-65 benefit as of January 1, 1997 from an annuity into a lump sum; and (2) discount that amount by 8.5% for each year that the participant is presently younger than 55. Using this methodology, the amount of Mary Doe’s account balance (column (e) in the chart) at any point in time would be precisely the same as it is under the Plan as written. Yet this 2-step plan has no credits whatsoever, but merely calculates a smaller discount each year from the unchanging accrued-benefit base, until Mary turns 55.
Viewed this way, Plaintiffs are not asking the court to continue to provide a “benefit accrual.” Rather, by asking that the
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8.5% interest credits continue beyond age 55, Plaintiffs are really asking the court to use the anti-age discrimination provision of ERISA to begin providing new benefits at age 55. Such a claim must fail.
4. The Eighth Circuit Has Determined That Increases That Reverse an Early Retirement Discount Are Not Benefit Accruals.
As the district court recognized, the credits at issue in this case are “indistinguishable from the pension payment increases at issue in Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992).” (App. 11.) In that case, Northwest’s plan offered a normal retirement benefit to its pilots at age 60 and an early retirement benefit that was discounted for pilots younger than age 60. Because of the discounting, the monthly benefit of pilots who did not take early *33 retirement increased each year that they postponed receipt of their benefits until they reached age 60, as each passing year meant one less year of discounting for early payment. Id. at 1200.
The Atkins plaintiffs’ claims are essentially the same as those asserted here: that “the rate of increase in pension payments for pilots over sixty must increase at the same rate that it increases for pilots under sixty,” and because it did not, they claimed that the plan ceased “benefit accruals” because of age. Id. The Eighth Circuit rejected this claim, explaining that the nominal “increase” in pilots’ pensions between ages 55 and 60 did not reflect any new benefit accruals. Id. at 1201. The “total accrued pension benefit” would be identical for a pilot who retired at age 55 and another pilot who retired at age 60 with the same years of service and final salary. Id. at 1200. The increase in the monthly payment for each year that a pilot postponed retirement did not reflect any additional accrued benefit, but “merely reflects that the early retirement discount is exhausted” for that year. Id. at 1201.
As in Atkins, the Plan here applies an early retirement discount to benefits received before a specified age (in Atkins, age 60; here, age 55). Each year, if an employee postpones taking his benefit, the Prior Plan Account balance increases, just as the nominal pension benefit increased in Atkins if a pilot postponed receipt of his benefit. In both situations, the annual increase in the amount immediately payable does not represent new value on top of what employees had previously earned. In both cases, the normal retirement benefit (the accrued benefit) is constant, but the amount payable is merely discounted for one less year for each *34 year the employee ages. Just as the Eighth Circuit concluded that such a plan feature is not a benefit accrual triggering age discrimination concerns, so too should this Court.
5. Construing the Interest Credits as Benefit Accruals Leads to Absurd Results.
Courts should not construe an ERISA plan to produce absurd results, which includes construing a plan to provide a windfall that was neither intended nor expected. Plaintiffs were provided extra value in the conversion to the new plan design--all employees were given a ten-year increase in their benefits when the age 65 accrued benefit was subsidized and credited to every employee at age 55 in full. If the 8.5% credit were continued to age 65, as Plaintiffs demand, employees would get the windfall of yet another ten-year increase. ERISA was not “intended to confer such a windfall,” particularly in respect to an account that was designed to preserve already-earned benefits. Mathews, 144 F.3d at 469 (“We cannot see how ERISA beneficiaries or anyone else within the protective sweep of the statute would be benefited by the adoption of principles of contractual interpretation so rigid and archaic as to permit the class to reap the pure windfall here sought to the potential prejudice of other beneficiaries.”); Jones v. UOP, 16 F.3d 141, 144 (7th Cir. 1994) (rejecting argument that plaintiff was entitled to “double credits” for years of service because ERISA prohibits windfalls); Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 139 (2d Cir. 2000) (ERISA is intended “to make the plaintiffs whole, but not to give them a windfall”).
*35 To the contrary, ERISA plans are construed to give effect to the common-sense substance of the transaction. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v. Wells, 213 F.3d 398, 402 (7th Cir. 2000) (ERISA plans are “enacted against a background of common sense understanding”). The label “interest credit,” ripped from context, has no legal significance separate from the actual function of the credits. Form should not be elevated over substance. See, e.g., United States v. B.F. Ball Constr. Co., 355 U.S. 587, 593 (1958) ( “Substance, not form or labels, controls the nature and effect of legal instruments.”); United Airlines, Inc. v. HSBC Bank USA, N.A., 416 F.3d 609, 612 (7th Cir. 2005) (“[it is] unlikely that the
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[Bankruptcy] Code makes big economic effects turn on the parties’ choice of language rather than the substance of their transaction”).
B. The 8.5% Interest Credits Do Not Cease “Because Of” Age.
That the 8.5% interest credits are not “benefit accruals” forecloses Plaintiffs’ claims. In addition, their claims fail for the independent reason that the 8.5% interest credits do not cease “because of age.” ERISA § 204(b)(1)(H). It is well settled that a cessation of a benefit accrual based on factors that merely correlate with age is not because of age. Kentucky Ret. Sys., 128 S. Ct. at 2366; Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993); Cooper, 457 F.3d at 642 (“it is essential to separate age discrimination from other characteristics that may be correlated with age”) (emphasis in original). Here, the credits cease when the early retirement discount is fully restored. That this always occurs at age 55, because that is the date from which the discount was taken, does not transform the lawful decision to cease the credits when the discount is restored into unlawful age discrimination.
*36 In Cooper, plaintiffs alleged that a cash balance plan violated § 204(b)(1)(H) because the rate of benefit accrual declined each year as the employee grew older. Id. at 638. The decline occurred because the accrued benefit was determined by projecting a participant’s account balance forward to age 65 at the plan’s interest crediting rate. Thus, for each year a participant aged, there was one less year of interest to project forward. Id. Despite a perfect correlation with age, this Court rejected plaintiffs’ age-discrimination theory because any decrease in the rate of accrual was a function of the time value of money, not age, and “[t]reating the time value of money as a form of discrimination is not sensible.” Id. at 639. The sensible result--no age discrimination--followed the Supreme Court’s instruction to keep “variables correlated with age ... ‘analytically distinct’ from age when searching for discrimination.” Id. (quoting Hazen Paper Co., 507 U.S. at 611).
Here, keeping the point at which the early retirement discount is fully restored “analytically distinct” from age makes clear that it is not sensible to treat a decision based on the full restoration of a discount as a form of discrimination. The complementary provisions of the Plan-- §§ 6.2(b) and (d)-- leave no doubt that the credits cease because the initial discount is fully restored. Section 6.2(b) takes an 8.5% discount from the initial balance of the Prior Plan Account for each year a participant is under 55, enabling employees, for the first time, to take an early retirement benefit before reaching age 55. Section 6.2(d) preserves the full age-55 benefit by providing a corresponding 8.5% interest credit each year employees choose not to take their benefits before age 55. The goal--preservation of the age-55 *37 benefit--is accomplished when participants turn 55. It is thus not age but pension status-- specifically, a participant’s eligibility to receive his or her full accrued benefit that had already been earned when the account was established--that causes the credits to cease.
That pension status (not age) triggers cessation of the credits for certain participants does not depend on examining Defendants’ motives or reasons for designing the Plan, as Plaintiffs suggest. Instead, the express Plan provisions that (1) preserve the age-65 accrued benefit and make it available at 55, (2) provide the discount if less than 55, (3) allow a participant to receive a discounted benefit before age 55, and (4) restore the discount to age 55 if not taken early, clearly demonstrate that pension status, not age, is the key.
The Supreme Court has made clear that it is not age discrimination to allow for differential treatment based on pension status, even when pension status is expressly correlated with age. In Kentucky Retirement Systems, a pension plan provided for full retirement benefits at age 55 for employees who had worked five years. 128 S. Ct. at 2365. The plan also provided that if an employee became disabled before 55, he would be given extra service credit so that he would qualify for the full benefit. Id. However, the plan did not give this extra credit to similarly situated employees who were older than 55, because those employees would already have qualified for the full retirement benefit. Id. at 2368. By not giving the extra credit to similarly situated older employees, younger workers could get twice as *38 much in benefits as older workers. Id. at 2373 (Kennedy, J., dissenting).9 Nevertheless, the Supreme Court held that the disparity was due to pension status. Workers who had reached age 55 were already eligible for the full retirement benefit, and even though this pension status perfectly correlated with age-it always occurred at age 55--it was not age discrimination. Id. at 2367-69.
The same is true here. As noted above, the 8.5% credits cease not because of age, but because of pension status, i.e., employees’ eligibility to receive their full retirement benefit, unreduced for early payment. The fact that this eligibility always occurs at age 55 does not mean that the cessation of the 8.5% credits is “because of” age.
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Plaintiffs contend that Kentucky Retirement Systems is distinguishable because it was brought under the Age Discrimination in Employment Act (“ADEA”). This makes no difference, as this Court recognized when it applied ADEA cases in Cooper to reject an ERISA claim. 457 F.3d at 642 (citing Hazen Paper Co., 507 U.S. 604; Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997)). The slight difference in language between the ADEA, which prohibits cessation of benefit accruals “because of age,” 29 U.S.C. § 623(i)(1)(A), and ERISA, which prohibits cessation of benefit accruals “because of the attainment of any age,” does not matter. Plaintiffs assert *39 that the word “attainment” is “important,” (Br. 25 n.5) but fail to explain how or why. In fact, Congress intended the two provisions to be interpreted consistently. H.R. Conf. Rep. No. 1012, 99th Cong., 2d Sess. 378-79 (1986), reprinted in 1986 U.S.C.C.A.N 3868, 4023-24.10
Plaintiffs’ contention that Defendants are ignoring the so-called “traditional rule” of looking only at the face of the plan or policy as discussed by the Supreme Court in Kentucky Retirement Systems is simply wrong. As demonstrated above, the express terms of the Plan, independent of any properly considered extrinsic evidence, supports the conclusion that pension status and not age triggers the discontinuation of the interest credits.
Plaintiffs’ reliance on Hurlic, 539 F.3d 1024, is misplaced. There, the Ninth Circuit, like this Court in Cooper, held that cash balance plans do not violate ERISA § 204(b)(1)(H) merely because they guarantee interest credits through a plan’s normal retirement age. In rejecting the plaintiffs’ age discrimination theory, the Ninth Circuit provided an example of a plan under which participants began earning benefits at a reduced rate upon reaching age 50, and opined, in dicta, that such a plan would run afoul of ERISA § 204(b)(11)(H)(i). Id. at 1032. Plaintiffs erroneously assert that the example in Hurlic is “nearly identical” to the Plan here. The Ninth Circuit plainly was referring to a plan in which new benefits were earned *40 at a reduced rate beginning at age 50; it gave no indication it was considering a plan in which credits restoring a discount to an accrued benefit cease at a certain age because of pension status (namely, the discount is fully restored).
In contrast, the Eighth Circuit has actually considered a case in which the plaintiffs’ contentions were identical to those asserted here. Atkins, 967 F.2d at 1200. The Eighth Circuit not only rejected plaintiffs’ claims that the increases to restore an early retirement discount were “benefit accruals,” but it also rejected the argument that the increases ceased because of age. It held that the cessation did not “result from age discrimination. It merely reflects that the early retirement discount is exhausted.” Id. at 1201.
Plaintiffs attempt to distinguish Atkins on three grounds, each of which fails. First, Plaintiffs note that Atkins involved a service cap and an early retirement benefit, and argue that the Plan here involves neither. (Br. 28.) But Plaintiffs cannot and do not explain how the absence of a service cap here makes any difference. And the Plan here does involve an early retirement benefit--participants may take their benefits early, before the age 65 normal retirement date. If they do so before age 55, the early retirement benefit is discounted, just as the early retirement benefit in Atkins was discounted before age 60.
Second, Plaintiffs argue that Atkins involved a “traditional defined benefit plan,” which is “structured differently” than a cash balance plan. (Br. 28.) That is true, but the Prior Plan Account preserves the accrued benefit from the old plan, which was a traditional defined benefit plan. See Berger, 338 F.3d at 757-58 *41 (describing how “standard” defined benefit plans determine benefits in contrast with how cash balance plans determine benefits).11 The Prior Plan Account is, therefore, like a traditional defined benefit plan, just like the plan at issue in Atkins. In any event, a cash balance plan is a defined benefit plan, Cooper, 457 F.3d at 637-38, and Plaintiffs do not and cannot explain how the only “structural” difference here--the fact that benefits are expressed in an account-based format--affects whether an alleged cessation in benefit accrual is “because of” age.
Third, Plaintiffs argue that Atkins did not involve a plan that “on its face includes language terminating a benefit accrual because a participant attains a specified age.” (Br. 28.) Plaintiffs are wrong. The plaintiffs in Atkins alleged that their benefit accrual ceased upon the attainment of age 60, the point at which the early retirement discount was exhausted.
In light of the Supreme Court authority, this Court’s decision in Cooper, and the Eighth Circuit’s decision in Atkins, a ruling in Plaintiffs’ favor would be a striking departure from the widely accepted analysis of age discrimination claims under ERISA. The district court correctly chose not to break new, legally unfounded ground. The 8.5% credits do not cease “because of age.”
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C. ERISA § 204(b)(1)(H)(v) Forecloses Plaintiffs’ Claims.
While Plaintiffs’ claims fail doubly under § 204(b)(1)(H) because the 8.5% credits are not benefit accruals and because they do not cease because of age, the *42 statute makes clear that this type of design feature is excepted from the age discrimination rules in any event. ERISA § 204(b)(1)(H)(v) provides: “A plan shall not be treated as failing to meet the requirements of [204(b)(1)(H)(i)] solely because the subsidized portion of any early retirement benefit is disregarded in determining benefit accruals.” This means that a plan may provide an early retirement subsidy that decreases over time as an employee ages, or even ceases because of age, without engaging in age discrimination.
The subsidized portion of any early retirement benefit is “the excess in value of a benefit over the actuarial equivalent of the normal retirement benefit.” Ashenbaugh v. Crucible, Inc., 1975 Salaried Ret. Plan, 854 F.2d 1516, 1521 n.6 (3d Cir. 1988). By definition, therefore, the subsidized portion of an early retirement benefit ends once an employee reaches normal retirement age and becomes eligible for the full normal retirement benefit. Because that is when an early retirement subsidy has to disappear, in the case of a fully-subsidized early retirement benefit, like the one in the Plan between ages 55 and 65, the subsidy diminishes each year as the employee ages closer to his normal retirement date. This decline in the amount of the subsidy over time might superficially appear to be based upon age were it not for 204(b)(1)(H)(v), which ensures that employers can provide early retirement subsidies that diminish over time without fear of liability for age discrimination.12
*43 The subsidy built into the Prior Plan Account at any given point is the excess of (a) the benefit actually available under the Plan to an employee at a given age over (b) the actuarial equivalent of the employee’s accrued benefit (i.e., the age-65 benefit discounted from age 65 to the employee’s current age). This is visually represented in the following graph, derived from the Mary Doe hypothetical discussed above at page 21-22:
TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE
The bottom line on the graph represents the actuarial equivalent of Mary Doe’s normal retirement benefit at any given age, i.e., the amount she would be entitled to if no subsidy were provided. This line shows her benefits discounted from age 65 *44 to 40 at a statutory rate.13 The top line represents the benefit actually available under the Plan over the same age range. The top line slopes downward from age 55 to 40 to reflect the annual 8.5% early retirement discount applied to those years. That line is flat from age 65 to 55 because the early retirement benefit under the Plan is fully subsidized from age 65 to age 55, i.e., there is no discounting. The shaded area is the early retirement subsidy.
Plaintiffs’ claim focuses on the rate of growth of the top line--the year-to-year progression of the Prior Plan Account balance. According to Plaintiffs, because the Prior Plan Account balance (the top line) increases gradually and then flattens, there is age discrimination--what was growing until a certain age stopped growing. Plaintiffs want the Plan to continue to credit 8.5% interest credits through age 65; the top line should continue to go up at a constant rate rather than go flat.
Rather than disregarding the subsidized portion of an early retirement benefit, Plaintiffs’ claims are predicated on the existence of a fully-subsidized early retirement benefit. Focusing on the point at which the asserted discrimination occurs-age 55--the top line goes flat because the early retirement benefit provided by the Plan becomes fully subsidized at that point. By complaining that the top line does not continue to move upward, Plaintiffs are merely complaining that the subsidized early retirement benefit now equals the normal retirement benefit, and that the subsidy (the shaded area) therefore started to diminish. But that is precisely what ERISA § 204(b)(1)(H)(v) says must be disregarded.
*45 Indeed, if Plaintiffs were correct, any plan that provided an early retirement subsidy would be locked into providing additional benefits indefinitely. As noted above, when an early retirement subsidy is offered, the top lines and bottom lines have to meet somewhere. But Plaintiffs read the law to prevent the lines from meeting. In the graph above, the top line would continue to increase through age 65, and the shaded portion would actually increase with age. At age 55, what was an early retirement subsidy would be supplemented with new benefit accruals, producing a total benefit that would continue to increase. As a result, what was supposed to encourage employees to retire early would actually have the opposite effect, even though early retirement subsidies exist to encourage early retirement.
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Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
D. There Is No Forfeiture.
In a last gasp, Plaintiffs assert, without any explanation, that the cessation of 8.5% credits at age 55 also results in an “impermissive forfeiture under ERISA.” (Br. 29-30.) Citing IRS Notice 96-8 and Revenue Ruling 2008-7, Plaintiffs contend that all cash balance plans must add any “interest” through a plan’s normal retirement age. That is wrong. Rather, the notice and revenue ruling provide that if a plan promises interest credits prior to normal retirement age that are not conditioned on future employment, then the plan must consider the value of those future interest credits when converting an employee’s accrued benefit to an immediate lump sum. See Cooper, 457 F.3d at 640 (Notice 96-8 simply requires that “a plan must ... add all interest that would accrue through age 65, then ... discount the resulting sum to its present value.”) (emphasis added); see also Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644, 645 (7th Cir. 2009) (in calculating *46 lump sum distributions, pension plans were required “to start with the current balance and add any contractually promised interest (or any other form of guaranteed increase in benefits) through the employee’s ‘normal retirement age’ ”) (emphasis added). Here, the Plan does not “contractually promise” 8.5% credits to normal retirement age; therefore, there is no obligation to project future 8.5% credits to that age when calculating lump sum benefits. In any event, the 8.5% credits are not the type of “interest” addressed in the IRS guidance; they do not contribute to “an employee’s entire accrued benefit.” See IRS Notice 96-8 at II.A.
II. Plaintiffs’ Claims Are Time Barred.
Even if there were merit to Plaintiffs’ age discrimination claims (and there is not), the claims come too late. Whether the applicable statute of limitations is two years (borrowed from Missouri’s statute of limitations for age discrimination claims), or five years (borrowed from Missouri’s statute of limitations for breach of contracts implied by law), Plaintiffs’ claims are time barred because they waited more than seven years to file suit.
A. Missouri Law Supplies the Applicable Limitations Period for Plaintiffs’ Claims, Which Accrued in 1996.
ERISA does not supply a limitations period for age discrimination claims brought under § 204(b)(1)(H). Thus, the Court borrows “the most analogous” statute of limitations from “the state with the most significant relationship to the parties and to the transaction” at issue. *47 Berger v. AXA Network LLC, 459 F.3d 804, 808, 813 (7th Cir. 2006). Plaintiffs have rightly never disputed that Missouri has the most significant relationship to the parties and the issues in this case.14
Although state law provides the applicable limitations period, federal law determines the date of accrual of an ERISA claim. AXA, 459 F.3d at 815. A claim under ERISA accrues when the “plaintiffs’ discovery of their employer’s allegedly unlawful decision put them on notice of a potential ERISA violation and provided the factual basis for their claim.” Id. Here, Plaintiffs’ claims accrued no later than January 1, 1997--the date when Old Monsanto converted to the new cash balance plan design. In fact, Plaintiffs have not disputed that their claims accrued in 1996, when Old Monsanto began expressly advising them that the 8.5% credits added each year to their Prior Plan Accounts would end when the discount to their initial Prior Plan Account balance was fully restored at age 55. Their claims are barred under either accrual date.
B. Plaintiffs’ Claims Are Governed by a Two-Year or a Five-Year Limitations Period.
To determine what limitations period applies, the court must “ ‘characterize the essence’ of the [ERISA] claim in question and find the most analogous cause of action” under Missouri law. Teumer v. Gen. Motors Corp., 34 F.3d 542, 546-47 (7th Cir. 1994). This entails a review of the specific section of ERISA alleged to have been violated, as well as a determination of the “nature of the ...rights recognized” and the abuses that provision protects against. Id. at 547. The Court examines the *48 “analytical correspondence” and the “substantive focus” of the federal and state law causes of action to determine which state law claim provides the closest analogue. Id. at 549-50.
Two limitations periods in Missouri law are potentially analogous: the two-year period for age discrimination claims and the five-year period for breach of contract terms implied by law. Under either provision, Plaintiffs’ claims, filed more than seven
23

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...
years after the claims accrued, are untimely.
1. Plaintiffs’ Claims Are Barred by Missouri’s Two-Year Limitations Period Applicable to Age Discrimination Claims.
The Missouri statute prohibiting employer-based age discrimination is most analogous to this case. Missouri Revised Statutes § 213.055 provides that it is unlawful for an employer to discriminate against any individual with respect to privileges of employment, including the provision of employee benefits. See Brady v. Curators of Univ. of Missouri, 213 S.W.3d 101 (Mo. Ct. App. 2006). The essence of Plaintiffs’ claims is age discrimination in violation of ERISA § 204(b)(1)(H), (R.139 at ¶¶ 71, 91, 94), which this Court has recognized “prohibits age discrimination.” Cooper, 457 F.3d at 637. Because Mo. Rev. Stat. § 213.055 directly addresses the cause of action at issue, that statute provides “the most analogous cause of action.” Teumer, 34 F.3d at 547.
A two-year limitations period applies to claims brought under Mo. Rev. Stat. § 213.055. See Mo. Rev. Stat. § 213.111(1). Plaintiffs’ claims alleging unlawful age discrimination are therefore untimely. Cf Strawn v. Missouri State Bd. of Educ, 210 F.3d 954, 957 (8th Cir. 2000) (borrowing two-year limitations period set forth in *49 § 213.111(1) for disability discrimination claims brought under federal Individuals with Disabilities Education Act).
2. Plaintiffs’ Claims Are Barred by Missouri’s Five-Year Limitations Period Applicable to Claims of Breach of Contract Implied by Law.
Plaintiffs argued in the district court that their claims are most analogous to a claim for breach of contract because they are based on a benefit plan, which is essentially a written contract between employer and employee. No statute or case law affirmatively provides that claims alleging that a plan violates ERISA are always most analogous to breach of contract claims. And nothing in ERISAs anti-age discrimination provision suggests that the “substantive focus” of that provision is to ensure that employers honor their contractual obligations.
However, even if Plaintiffs’ claims were deemed akin to breach of contract, the claims are analogous to claims for breach of contract implied by law. See May Dep’t Stores Co. v. Fed. Ins. Co., 305 F.3d 597, 601 (7th Cir. 2002). May demonstrates that when a claim is based on ERISA-imposed requirements (or their implementing regulations), and not the language of a plan, the claim amounts to one of breach of contract implied by law. See id. (“[L]ike many other contracts, pension plans governed by ERISA contain provisions implied by law.”). In this case, Plaintiffs do not contend that they are entitled to the 8.5% credits beyond age 55 under the terms of the Plan. Their claims rest upon § 204(b)(1)(H), which they contend requires the Plan to provide the credits beyond age 55. Because Plaintiffs’ claims are based on ERISA-imposed requirements, not violations of the Plan’s *50 terms, they are more analogous to claims for breach of contract implied by law than to claims for breach of a contract’s terms.
Under Missouri law, claims of breach of contract implied by law are subject to a five-year limitations period. See Mo. Rev. Stat. § 516.120(1); Aaron v. Brown Group, Inc., 80 F.3d 1220, 1225 (8th Cir. 1996) (applying Missouri law and concluding that an action under the federal Worker Adjustment and Retraining Notification Act “inserts additional terms into covered employment contracts ... [and] is most closely analogous to an action to recover damages for a breach of an implied contract” subject to the five-year limitations period). Again, Plaintiffs’ claims are untimely, as they accrued more than seven years before the first of the consolidated lawsuits was filed. Thus, whether the two-year limitations period or the five-year limitations period applies, Plaintiffs’ claims are barred.
*51 CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.
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Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182...

Appendix not available.

Footnotes

1

Materials not reproduced in any appendix in this Court will be cited by district court docket number, R. ___. Material reproduced

in an appendix will be cited by appendix page: App. ___ (Appellants’ required short appendix), JA ___ (separately bound Joint

Appendix), and SA ___ (Supplemental Appendix attached to this brief).

2

As a result of corporate restructuring, Old Monsanto’s plan became three distinct plans--the Monsanto Company Pension Plan, the

Pharmacia Cash Balance Pension Plan and the Solutia Inc. Employees’ Pension Plan--all of which are at issue in this case. The

plan provisions at issue here are identical. (Br. 5.) For convenience, all three plans are collectively referred to as the “Plan.”

3

The “accrued benefit” is the benefit under a plan expressed in terms of a single life annuity payable at age 65. ERISA § 3(23).

4

In addition to the 8.5% interest credits at issue here, the benefits preserved in the Prior Plan Account were also subject to annual

pay credits at the rate of 4% of the then-current balance in any given year. (JA34, Plan § 6.2(c), discussed infra at 41-45.)

5

Indeed, this point was not disputed by the plaintiffs in Cooper. Rather, in that case, it was clear that the interest credits at issue did

increase the accrued benefit, and the question then became whether the rate at which they were adding to the accrued benefit

discriminatorily benefited younger workers over older workers.

6

The proposed regulations were never adopted. Cooper, 457 F.3d at 639.

7

Measuring benefit accrual by additions to an account may be the standard way for determining age discrimination when dealing

with a typical cash balance plan account, but the Prior Plan Account does not function as a typical cash balance plan account.

Rather, it is merely a mechanism for preserving the accrued benefit earned under the prior (traditional defined benefit) plans. In the

Plan, ongoing benefit accruals are reflected in the Cash Balance Account, which is a typical cash balance plan account.

8

Plaintiffs cite an excerpt from a 2002 submission to the IRS in which Solutia indicated that there is no early retirement benefit

formula in the Solutia Plan. (Br. 17). The 8.5% early retirement discount was built into opening Prior Plan Account balances, and

thus remains a part of the basic benefit formula going forward. Therefore, Solutia was entirely correct in informing the IRS that

there was no “early retirement benefit formula” separate from the basic formula, which was disclosed in the IRS submission.

(JA217, 221).

9

Plaintiffs erroneously assert that the plan at issue in Kentucky Retirement Systems did not provide for disparate treatment based

“explicitly” on the attainment of a specified age. (Br. 26.) To the contrary, the plan at issue there expressly distinguished between

employees who became disabled before age 55 and those who became disabled after age 55. 128 S. Ct. at 2368.

10

The 2002 proposed Treasury regulations upon which Plaintiffs rely elsewhere recognize that this distinction is immaterial. 67 Fed.

Reg. 76,123, 76,124 n.1 (Dec. 11, 2002) (“The legislative history states that no differences among the provisions is intended ... and

the agencies have concluded that this particular difference in language has no effect.”).

11

Even the pay credits in the Prior Plan Account are not “structured” like a cash balance plan, because they are a function of the

account balance, not an employee’s salary. Berger, 338 F.3d at 757-58 (distinguishing cash balance plans from “ordinary” defined

benefit plans).

12

Proposed regulations cited by Plaintiffs state that the rate of benefit accrual under a defined benefit plan will not be considered to

cease merely because the subsidized portion of an early retirement benefit “ceases to be provided to an employee or is provided on

a reduced basis to an employee by a plan on account of the employee’s attainment of a specified age.” 53 Fed. Reg. 11,876, 11,877

(April 11, 1988).

13

For illustration purposes, actuarial equivalence was calculated at the Internal Revenue Code § 417(e) rate for February 2009.

14

Old Monsanto was a Missouri-based corporation, its pension programs were administered in St. Louis, and most members of the

group that designed the Prior Plan Account were based in St. Louis. (R.284 Ex. A ¶¶ 42-44.)

End of Document
25

Grant WALKER, individually and on behalf of all others..., 2010 WL 1789182... 26

 
 472 F.Supp.2d 1053 (2006)
Grant WALKER, et al., Plaintiffs, v.
MONSANTO COMPANY PENSION PLAN, et al., Defendants.
Nos. 04CV436 DRH, 06CV139 DRH, 06CV3 DRH, 05CV736 DRH.
United States District Court, S.D. Illinois.
October 25, 2006.
1054*1054 Eric L. Dirks, Patrick J. Stueve, Todd M. Mcguire, Stueve, Siegel et al., Kansas City, MO, for Plaintiffs.
Carol C. Flowe, Caroline T. English, Gretchen Dixon, Arent Fox PLLC, Washington, DC, Michael J. Nester, Donovan, Rose et al., Dawn A. Sallerson, Hinshaw & Culbertson, Belleville, IL, Anne E. Rea, Chris K. Meyer, Erin E. Kelly, Mark B. Blocker, Neil H. Wyland, Priscilla E. Ryan, Ryan M. Sandrock, William F. Conlon, Sidley Austin LLP, Chicago, IL, Neal F. Perryman, Robert J. Golterman, Thomas P. Berra, Jr., Lewis, Rice et al., St. Louis, MO, for Defendants.
Jerome J. Schlichter, Matthew H. Armstrong, Schlichter, Bogard et al., Michael B. Marker, Rex Carr Law Firm, East St. Louis, IL, Norman E. Siegel, Stueve, Siegel et al., Kansas City, MO.
ORDER
HERNDON, District Judge.
This matter is before the Court on the Motion to Stay Counts VII, VIII, and IX of the Consolidated Class Action Complaint brought by Plaintiffs Grant Walker, Edward Zeringue, Richard W. Drake, Glynn Davis, Eugene Forneris, Juanita Hammond, Fred Donaldson, Albert Walter III, Mary Clawson, Sandra Bellon, Audrey Sokoloski, and Carol Thomas in these consolidated actions (Doc. 144). Plaintiffs request a stay of a few months' duration pending resolution by the Supreme Court of the United States of a petition for writ of certiorari regarding the decision of the United States Court of Appeals for the Seventh Circuit in Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006). In Cooper the court held of course that claims of age discrimination in the payment of pension benefits substantially identical to the agediscrimination claims asserted in Counts VII-IX of the operative complaint in this case are not actionable under the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 ("ERISA"), governing age discrimination by defined benefit plans, specifically ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i). See 457 F.3d at 638-42.
The power to grant a stay is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Walker v. Merck & Co., No. 05-CV-360-DRH, 2005 WL 1565839, at *2 (S.D.Ill. June 22, 2005) (quoting Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936)). The decision to grant a stay is committed to a court's discretion, see Brooks v. Merck & Co., 443 F.Supp.2d 994, 997 (S.D.Ill.2006); Rutherford v. Merck & Co., 428 F.Supp.2d 842, 845 (S.D.Ill.2006), though that discretion must be exercised consistently with principles of fairness and judicial economy. See Walker, 2005 WL 1565839, at *2 (citing Board of Trs. of Teachers' Ret. Sys. of State of Ill. v. Worldcom, Inc., 244 F.Supp.2d 900, 905-06 (N.D.Ill.2002)).

In this instance, although Defendants Monsanto Company Pension Plan, Monsanto Company, Pharmacia Cash Balance Pension Plan, Pharmacia 1055*1055 Corporation, Pharmacia & Upjohn Company, Pfizer, Inc., and Solutia Inc. Employees' Pension Plan have filed a brief in opposition to the requested stay, they have not shown, and the Court cannot fathom, how the requested stay could cause them any prejudice. Such stays are entered quite routinely, see, e.g., Coombs v. Diguglielmo, No. Civ.A. 04-1841, 2004 WL 1631416, at *1-2 (E.D.Pa. July 21, 2004); Peaceable Planet, Inc. v. Ty, Inc., No. 01 C 7350, 2004 WL 1574043, at *2 (N.D.Ill. July 13, 2004), and in fact, as Plaintiffs point out, have been entered by the Court in other ERISA cases presenting the same issues with respect to alleged age discrimination under ERISA as this case presents. See Chamberlain v. U.S. Bancorp Cash Balance Ret. Plan, Civil No. 04-841-DRH (S.D.Ill. Aug. 29, 2006) (order extending stay). Finally, Defendants' suggestion that the Court, instead of granting the requested stay, should dismiss Plaintiffs' agediscrimination claims sua sponte with prejudice obviously is mistaken. Sua sponte dismissals of claims are not favored in this Circuit. See Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1185 (7th Cir.1989); Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir.1987); Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 414-15 (7th Cir.1986). Therefore, the Court will not dismiss Plaintiffs' agediscrimination claims save upon an appropriate motion by Defendants.
To conclude, Plaintiffs' Motion to Stay Counts VII, VIII, and IX of the Consolidated Class Action Complaint is GRANTED (Doc. 144). Counts VII-IX of the operative complaint in this cause are STAYED pending resolution of a petition for writ of certiorari in the Cooper case. Plaintiffs are ORDERED to advise the Court promptly, via written notice, upon disposition of the petition for writ of certiorari in Cooper. The remaining counts of Plaintiffs' operative complaint, e.g., other than Counts VII-IX, will continue to proceed according to the current scheduling order in this case.
IT IS SO ORDERED.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

GRANT WALKER, et al., Plaintiffs,
v. MONSANTO COMPANY PENSION PLAN, et al.,
Defendants.

Case No. 04-cv-436-DRH
Consolidated With: Case No. 06-cv-139-DRH Case No. 06-cv-003-DRH Case No. 05-cv-736-DRH

MEMORANDUM & ORDER HERNDON, District Judge:
The above-captioned matter concerns four related putative class actions under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (“ERISA”): Hammond v. Solutia, Inc., Employees’ Pension Plan, Civil No. 06-139-DRH (S.D. Ill. filed Feb. 15, 2006), Donaldson v. Pharmacia Pension Plan, Civil No. 06-3-DRH (S.D. Ill. filed Jan. 3, 2006), Davis v. Solutia, Inc., Employees’ Pension Plan, Civil No. 05-736-DRH (S.D. Ill. filed Oct. 12, 2005), and Walker v. Monsanto Co. Pension Plan, Civil No. 04-436-DRH (S.D. Ill. filed June 23, 2004). These actions recently were consolidated, and the plaintiffs therein have filed a consolidated class action complaint. At this time the Court addresses certain
Page 1 of 9

motions filed in Hammond, Davis, and Walker prior to the consolidation. The Court turns first to the motions for class certification filed in the
Walker and Davis cases, see Walker Docket Entry (“D.E.”) No. 109; Davis D.E. No. 18, as well as the motion for a hearing on the Walker plaintiffs’ motion for class certification brought by the defendants in that case. See Walker D.E. No. 130. In light of the consolidated class action complaint, the Court deems these motions to be moot. Although it is clear that the plaintiffs in the consolidated actions intend to seek class certification as to their claims, the consolidated complaint suggests that the configuration of the proposed classes will be different than that set out in the original complaints and class certification papers filed in Walker and Davis, employing perhaps a system of subclasses with respect to the four distinct groups of ERISA plan participants involved in the consolidated actions. Additionally, as will be discussed in a bit more detail presently, recent developments in the law of this Circuit, notably Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006), have dramatically altered the scope of the claims that can be asserted in this case, rendering class certification a moot issue as to a number of claims asserted by the plaintiffs in the consolidated actions. Accordingly, the Court will deny without prejudice both the Walker and Davis plaintiffs’ motions for class certification, as well as the Walker defendants’ request for a hearing on class certification.
Turning then to the Hammond and Davis cases, prior to consolidation defendant Solutia, Inc., Employees’ Pension Plan (hereinafter, “the Solutia Plan” or “the Plan”) filed motions in both cases requesting dismissal of the claims asserted
Page 2 of 9

against it for failure to exhaust administrative remedies. See Hammond D.E. No. 10; Davis D.E. No. 23. Although, as noted, an amended complaint recently was filed with respect to the consolidated actions, the Court concludes that the issues presented by the Solutia Plan’s motions to dismiss remain live. See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1476 (3d ed. 1998 & Supp. 2006) (“Defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading.”) (collecting cases); Patton Elec. Co. v. Rampart Air, Inc., 777 F. Supp. 704, 712-13 (N.D. Ind. 1991) (the defendants adequately defended themselves against the plaintiff’s amended complaint, for purposes of Rule 55 of the Federal Rules of Civil Procedure governing default judgments, even though the defendants’ motions to dismiss were directed to the plaintiff’s original complaint, not the plaintiff’s amended complaint, where the amended complaint was subject to attack on the same grounds asserted in defendants’ motions to dismiss). Therefore, the Court will proceed to resolve on their merits the Solutia Plan’s motions to dismiss on grounds of failure to exhaust administrative remedies.
“The text of 29 U.S.C. § 1132, providing for civil actions to redress violations of ERISA, does not address whether a claimant must exhaust her administrative remedies before filing suit in federal court.” Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803, 807 (7th Cir. 2000). See also Call v. Ameritech Mgmt.
Page 3 of 9

Pension Plan, No. Civ. 01-717-GPM, 2004 WL 483199, at *3 (S.D. Ill. Mar. 10, 2004). However, in light of ERISA § 503, 29 U.S.C. § 1133, directing employee benefit plans to provide adequate written notice of the reasons for denials of claims by plan participants and to create procedures for the review of such denials of claims, this Circuit interprets ERISA as requiring exhaustion of administrative remedies as a prerequisite to bringing suit under the statute. See Powell v. A.T. & T. Communications, Inc., 938 F.2d 823, 826 (7th Cir. 1991). “[T]he decision to require exhaustion as a prerequisite to bringing suit is a matter within the discretion of the trial court . . . . [T]his determination will only be disturbed on appeal if the lower court has clearly abused its discretion – in other words, if the lower court’s decision ‘is obviously in error.’” Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 138 (7th Cir. 1997) (quoting Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996)). An ERISA plaintiff’s failure to exhaust administrative remedies may be excused where there is a lack of meaningful access to review procedures, or where pursuing internal plan remedies would be futile. See Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th Cir. 1997); Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 402 (7th Cir. 1996); Smith v. Blue Cross & Blue Shield United of Wis., 959 F.2d 655, 658-59 (7th Cir. 1992).
To evaluate properly the Solutia Plan’s demand for exhaustion of administrative remedies, the Court must examine briefly the legal validity of the claims asserted against the Plan, as it would be absurd to order exhaustion as to claims that have no legal merit. The operative complaint in this case alleges
Page 4 of 9

essentially three types of claims against the Solutia Plan: that the Plan violates ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), which prohibits a defined benefit plan from causing any cessation or reduction in the rate at which an employee accrues benefits on account of age; that the Plan is backloaded, that is, it violates the provisions of ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B), which prohibit defined benefit plans from establishing minimum accrual rates that cause a participant’s benefits to accrue very slowly until the participant is near retirement age; and that the Plan violates ERISA provisions requiring defined benefit plans to pay lump-sum benefits that are the actuarial equivalent of a participant’s accrued benefit projected to normal retirement age, that is, age 65, then reduced to present value. See Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 761-63 (7th Cir. 2003); I.R.S. Notice 96-8, 1996-1 C.B. 359. In light of the recent decision of the United States Court of Appeals for the Seventh Circuit in Cooper v. IBM Personal Pension Plan, the age-discrimination claims asserted against the Solutia Plan clearly have no legal merit. See 457 F.3d at 638-42. See also Laurent v. PriceWaterhouseCoopers LLP, No. 06 Civ. 2280(MBM), 2006 WL 2546805, at **1213 (S.D.N.Y. Sept. 5, 2006). The Court likewise discerns no merit in the backloading claims asserted against the Solutia Plan. See Langman v. Laub, 328 F.3d 68, 71-72 (2d Cir. 2003); Richards v. FleetBoston Fin. Corp., 427 F. Supp. 2d 150, 170-71 (D. Conn. 2006); Register v. PNC Fin. Servs. Group, Inc., No. 04-CV-6097, 2005 WL 3120268, at *3 (E.D. Pa. Nov. 21, 2005); Allen v. Honeywell Ret. Earnings Plan, 382 F. Supp. 2d 1139, 1160 (D. Ariz. 2005). Therefore, the question for the Court
Page 5 of 9

to decide is whether the claims against the Solutia Plan regarding alleged miscalculation of lump-sum benefits should be dismissed for failure to exhaust administrative remedies.
In the past the Court has declined to order exhaustion as to identical claims regarding alleged miscalculation of lump-sum benefits. See Donaldson v. Pharmacia Pension Plan, 435 F. Supp. 2d 853, 860-63 (S.D. Ill. 2006); Berger v. Xerox Ret. Income Guar. Plan, 231 F. Supp. 2d 804, 820 (S.D. Ill. 2002). As in those cases, it is not disputed in this instance that the lump-sum benefits at issue have been calculated in accordance with the express terms of the Solutia Plan, and thus the Court fails to see what administrative remedy is available under the terms of the Plan. See Donaldson, 435 F. Supp. 2d at 860 (citing Costantino v. TRW, Inc., 773 F. Supp. 34, 44 (N.D. Ohio 1991)). The policies underlying ERISA’s exhaustion requirement are to provide a mechanism for informal dispute resolution, to shield the discretion of plan administrators from excessive judicial interference, and to develop an administrative record that will provide useful factual background in litigation regarding plan benefits. See id. at 859-60 (citing, inter alia, Janowski v. International Bhd. of Teamsters Local No. 710 Pension Fund, 673 F.2d 931, 935 (7th Cir. 1982)). The claims asserted against the Solutia Plan regarding alleged miscalculation of lump-sum benefits under the terms of the Plan involve questions of law concerning the interpretation of ERISA that the Court, rather than the Plan administrators, is in the best position to decide, and that are best resolved, in the Court’s view, through classwide adjudication, not piecemeal through administrative
Page 6 of 9

proceedings. See id. at 860-61. The Court in its discretion declines to order exhaustion of administrative remedies and therefore the Solutia Plan’s motions to dismiss for failure to exhaust will be denied. The Court notes that the parties to the Hammond case have brought a joint request for a stay pending exhaustion of administrative remedies as to the claim in the pre-consolidation complaint in Hammond that the Plan was dilatory in paying benefits. See Hammond D.E. No. 53. However, the consolidated class action complaint asserts no such claim against the Solutia Plan and therefore the Court will deny the joint motion for a stay in Hammond as moot.
Finally the Solutia Plan has moved for dismissal of the claims asserted against it in the Hammond and Davis cases on the grounds that the plaintiffs in those cases have failed to join Solutia, Inc. (“Solutia”). See Hammond D.E. No. 12; Davis D.E. No. 21. Solutia is the Plan sponsor and administrator and currently is in Chapter 11 bankruptcy proceedings. The Plan contends Solutia is a person needed for just adjudication whose non-joinder mandates dismissal of this case. See Fed. R. Civ. P. 19(b), 12(b)(7). As the Hammond and Davis plaintiffs point out, in an action under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), in general the only proper defendant is an ERISA plan, although in limited instances a plan administrator may be a proper defendant as well. See Riordan v. Commonwealth Edison Co., 128 F.3d 549, 551 (7th Cir. 1997); Holy Cross Hosp. v. Bankers Life & Cas. Co., No. 01C1505, 2002 WL 1822916, at *1 (N.D. Ill. Aug. 7, 2002). It seems to the Court to be an extraordinary leap of logic to conclude, as the Solutia Plan
Page 7 of 9

urges, that a party which only in limited circumstances is a proper defendant is indispensable within the meaning of Rule 19(b) of the Federal Rules of Civil Procedure.
As to the claims of the Hammond and Davis plaintiffs under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), the Court likewise concludes that Solutia is not an indispensable party. The gist of the Solutia Plan’s argument is simply that Solutia, as the Plan sponsor, may be liable for a judgment against the Plan. In the Court’s view, this issue is controlled by the settled rule, in both contract and tort, that a mere obligation to pay money in the event of a judgment does not render a party indispensable within the meaning of Rule 19(b). See, e.g., Rhone-Poulenc, Inc. v. International Ins. Co., 71 F.3d 1299, 1301 (7th Cir. 1995) (“A victim of wrongdoing is not generally required to sue all the wrongdoers. Certainly not in a tort case, where the rule of joint and several liability reigns; and not in a contract case either.”); Microcomputer Workshops Corp. v. Mindscape, Inc., No. 89 C 2188, 1989 WL 106684, at *3 (N.D. Ill. Sept. 14, 1989) (“[T]he law is settled that joint obligors are not indispensable parties within the meaning of Rule 19(b).”); Sniezek v. Cords, No. 87 C 1766, 1987 WL 15768, at *1 (N.D. Ill. Aug. 12, 1987) (“[F]ederal courts have not treated joint obligors as indispensable parties.”); Freeman v. Liu, 112 F.R.D. 35, 41 (N.D. Ill. 1986) (“Potential indemnitors have never been considered indispensable parties or even parties whose joinder is required if feasible . . . . The same situation as to indispensability and joinder applies to joint tortfeasors subject to a possible right of contribution . . . . Similarly, joint obligors to a contract are generally not
Page 8 of 9

considered indispensable, since their liability is usually joint and several.”); 7 Wright,

Miller & Kane, Federal Practice & Procedure § 1613 (“Joint obligors . . . typically

are treated as Rule 19(a) parties, but are not deemed indispensable under

Rule 19(b).”) (collecting cases). The Court will deny the Solutia Plan’s motions to

dismiss the claims of the Hammond and Davis plaintiffs for failure to join Solutia.

In summary, the Court rules as follows with respect to the pending pre-

consolidation motions. The motion for class certification filed in the Walker case

and the defendants’ motion for a hearing thereon, see Walker D.E. Nos. 109, 130,

are DENIED as moot. The motion for class certification in the Davis case, see Davis

D.E. No. 18, is DENIED as moot. The joint motion for a stay in the Hammond case,

see Hammond D.E. No. 53, is DENIED as moot. The motions to dismiss for failure

to exhaust administrative remedies filed by the Solutia Plan in the Hammond and

Davis cases, see Hammond D.E. No. 10; Davis D.E. No. 23, are DENIED. Finally

the motions to dismiss for failure to join a party needed for just adjudication filed

by the Solutia Plan in the Hammond and Davis cases, see Hammond D.E. No. 12;

Davis D.E. No. 21, are DENIED.

IT IS SO ORDERED.

Signed this 27th day of September, 2006.

/s/

David RHerndon

United States District Judge

Page 9 of 9

 
 636 F.Supp.2d 785 (2009)
Grant M. WALKER, Edward Zeringue, and Richard W. Drake, on behalf of themselves and all others similarly situated, Plaintiffs, v.
MONSANTO COMPANY PENSION PLAN and Monsanto Company, Defendants. Glynn Davis, Eugene Forneris, and Juanita Hammond, individually and on behalf of all
those similarly situated, Plaintiffs, v.
Solutia Inc. Employees' Pension Plan, Defendant. Fred Donaldson, Albert Walter III, Mary Clawson, Sandra Bellon, Audrey Sokoloski, and
Carol Thomas, individually and on behalf of all those similarly situated, Plaintiffs, v.
Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc., Defendants.
Case Nos. 3;04-cv-436-JPG-PMF, 05-cv-736-JPG, 06-cv-3-JPG, 06-cv-139-JPG.
United States District Court, S.D. Illinois.
June 11, 2009.
786 *786 Eric L. Dirks, Norman E. Siegel, Patrick J. Stueve, Todd M. McGuire, Stueve, Siegel et al., Kansas City, MO, Michael B. Marker, Rex Carr, Rex Carr Law Firm, East St. Louis, IL, Jerome J. Schlichter, Matthew H. Armstrong, Schlichter, Bogard et al., St. Louis, MO, for Plaintiffs.
Carol Connor Cohen, Caroline T. English, Gretchen Dixon, Arent Fox PLLC, Washington, DC, Michael J. Nester, Donovan, Rose et al., Belleville, IL, Anne E. Rea, Chris K. Meyer, Erin E. Kelly, Mark B. Blocker, Neil H. Wyland, Priscilla E. Ryan, Ryan M. Sandrock, William F. Conlon, Sidley Austin LLP, Chicago, IL, Neal F. Perryman, Thomas P. Berra, Jr., Robert J. Golterman, Lewis, Rice et al., St. Louis, MO, for Defendant.
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the motion for summary judgment on Count X filed by defendants Monsanto Company Pension Plan and Monsanto Company (collectively, "Monsanto") (Doc. 282). Plaintiff Edward Zeringue, class representative, has responded to the motion (Doc. 295), and Monsanto has replied to that response (Doc. 298). The Court also considers the plaintiffs' motion for summary judgment (Doc. 285) to the extent it seeks judgment on Count X, Monsanto's response to the plaintiffs' summary judgment arguments about Count X (Doc. 293), and the plaintiffs' reply to that response (Doc. 297).
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.2000). There are no factual disputes before the Court in relation to Count X; the Court is only asked to decide legal issues to determine whether any party is entitled to judgment as a matter of law.

I. Background
This dispute arises out of a provision in the Monsanto Company Pension Plan ("Plan") regarding calculation of interest credits where a participant elects to receive his pension in a lump sum but that lump sum is paid a month 787 or more after it becomes payable under the Plan. The account at issue is the Prior Plan Account[1]*787 ("PPA"), one of the factors used to determine the amount of the lump sum benefit. The Plan provision at issue states:
If a Participant elects to receive his Accounts as a Lump Sum and such Lump Sum is paid to the Participant after the calendar month containing the Participant's Annuity Starting Date, his Prior Plan Account ... shall be credited with Interest Credits in accordance with Section 6.2(d) (regardless of the Participant's age) ... for each complete calendar month in the period beginning on the first day of the month containing his Annuity Starting Date and ending on the first day of the month in which the Lump Sum distribution is made to the Participant.
Plan, § 7.3(e)(v) (2002).[2] Section 6.2(d), in turn, states that a PPA shall be credited monthly with interest credits at an annual rate of 8.5%.
The Plan's summary plan description ("SPD") describes the awarding of interest credits to a PPA in connection with a lump sum benefit payment as follows:
Your first payment may be delayed for at least one month to allow for payment processing. ... If you select a Lump Sum Benefit, your payment will include interest on the amount of your Lump Sum Benefit, for the period from your benefit commencement date to the date of payment, at an annual rate equal to the average yield of 30-year Treasury Bonds for October of the prior year.
SPD at 6 (2002). It further states:
You may also elect to defer receipt of your benefit under the Pension Plan.... During the deferral period, your Prior Plan Account (until age 55) ... continue[s] to receive interest credit.
SPD at 8 (2002).
Throughout its life, the Plan administrator has awarded interest credits at a rate of 8.5% for periods where a lump sum benefit payment was delayed because a participant voluntarily elected to defer receipt of the lump sum benefit to a later date (a "deferral"). However, the Plan administrator has historically awarded interest credits at the lower 30-year treasury bond rate for periods where a lump sum benefit was delayed because of an administrative or processing delay (an "administrative delay").
Zeringue's payment was delayed for two months due to administrative processing. Consistent with its past practice, the Plan awarded him interest credits at the 30-year treasury bond rate (5.32% for 2002) instead of at 8.5%. His fellow class members experienced similar administrative delays and interest calculations or are subject to such administrative delays and interest payments should they choose a lump sum benefit.
The Employee Benefits Plans Committee ("EBPC"), the Plan administrator, heard appeals of the decision to award interest credits during administrative delays at the treasury bond rate instead of at 8.5%. Under the Plan, the EBPC is authorized to exercise its discretion to determine eligibility for benefits and to interpret the Plan. See Plan, § 10.1(d) (2002); SPD at 22 (2002). The Plan further provides that the EBPC's fiduciary actions are subject to review "only if without a rational basis." Plan § 10.1(h).
788 *788 On July 25, 2005, the EBPC issued a letter rejecting the claims requesting application of the higher interest rate during periods of administrative delays. See Letter from Schopp to Marker of 7/25/05 ("EBPC Claims Decision"), at 7-8. In its decision, the EBPC noted that the EBPC has consistently interpreted § 7.3(e)(v) of the Plan to mean that a participant who elects to defer receipt of a lump sum benefit will receive interest credits on his PPA account pursuant to § 6.2(d) (i.e., at an annual rate of 8.5% until age 55) but that a participant whose lump sum benefit is delayed due to administration or processing will receive interest credits in accordance with

the aforementioned provision of the SPD (i.e., at the annual 30-year treasury bond rate from the prior October). The EBPC concluded that in each of the claims, interest credits were awarded "in accordance with the provisions of the Plan and/or the SPD." EBPC Claims Decision, at 8. The EBPC denied the appeal of its original decision for the reasons cited in the original decision. See Letter from Schopp to Marker of 11/8/05, at 1.
Zeringue, on behalf of a class of plaintiffs, brings a claim under the Employee Retirement Income Security Act ("ERISA") § 502(a)(3), 29 U.S.C. § 1132(a)(3), seeking a declaration that the Plan has improperly computed their benefits and an injunction forcing them to recalculate and create a common fund to pay the proper benefits. Alternatively, the plaintiffs bring a claim under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), seeking to recover benefits due under the Plan.
II. Analysis
Clearly, this case centers on § 7.3(e)(v) of the Plan. When interpreting a plan governed by ERISA, the Court looks to federal common law rules of contract interpretation. Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 873 (7th Cir. 2001). Those rules require a plan to be interpreted "in an ordinary and popular sense as would a person of average intelligence and experience." Id. (internal quotations omitted). One of the key questions is whether the plan is ambiguous, that is, if it is susceptible to more than one reasonable interpretation. Id.
Where a plan provision is ambiguous and a plan administrator has discretion to interpret the plan, the Court will overturn the plan administrator's decision only if it is arbitrary and capricious. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (§ 1132(a)(1)(B) action). Under the arbitrary and capricious standard, in the absence of special circumstances such as fraud or bad faith, the Court will uphold a plan administrator's decision "so long as it is possible to offer a reasoned explanation, based on the evidence, for that decision." Trombetta v. Cragin Fed. Bank for Sav. Employee Stock Ownership Plan, 102 F.3d 1435, 1438 (7th Cir.1996); accord Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 810 (7th Cir.2006). If the plan administrator "makes an informed judgment and articulates an explanation for it that is satisfactory in light of the relevant facts, i.e., one that makes a `rational connection' between the issue to be decided, the evidence in the case, the text under consideration, and the conclusion reached," then the plan administrator's decision will not be reversed. Exbom v. Central States, S.E. & S.W. Areas Health & Welfare Fund, 900 F.2d 1138, 1143 (7th Cir.1990).
However, "unambiguous terms of a pension plan0907that is, those that are susceptible to only one reasonable meaning0907leave no room for the exercise of interpretive discretion by the plan's administrator." Call v. Ameritech 789 Mgmt. Pension Plan, 475 F.3d 816, 822-23 (7th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2900, 171 *789 L.Ed.2d 857 (2008). A plan administrator, even one given discretion to interpret the plan, simply must discharge his duties with respect to the plan "in accordance with the documents and instruments governing the plan," 29 U.S.C. § 1104(a)(1)(D), and an interpretation that controverts the unambiguous terms of a plan is arbitrary and capricious. Swaback v. American Info. Techs. Corp., 103 F.3d 535, 540 (7th Cir. 1996).
Section 7.3(e)(v) is unambiguous on its face. Its language viewed in an "ordinary and popular sense as would a person of average intelligence and experience," Neuma, 259 F.3d at 873, is clear: PPA interest credits are to be awarded pursuant to § 6.2(d)0907that is, at an annual rate of 8.5% if 0907 a lump sum benefit "is paid to the Participant after the calendar month containing the Participant's Annuity Starting Date...." Monsanto implies that § 7.3(e)(v) is ambiguous on its face because it fails to specify whether it applies to deferrals, administrative delays or both. This argument has no merit. On its face, § 7.3(e)(v) is not limited to deferrals. Thus, its broad language is only susceptible to meaning that § 7.3(e)(v) includes any occasion where "such Lump Sum is paid to the Participant after the calendar month containing the Participant's Annuity Starting Date...." An EBPC decision to apply § 7.3(e) (v) only to deferrals and not to administrative delays is inconsistent with the Plan as a matter of law and therefore cannot be upheld as a reasonable interpretation of the plain language of the Plan unless there is an extrinsic ambiguity in the Plan.
Monsanto argues that the EBPC's decision is a reasonable interpretation of an extrinsic ambiguity in § 7.3(e)(v) that is revealed when the Plan is viewed in light of the concrete circumstances in which it was drafted. Monsanto believes that in light of the extrinsic ambiguity, the EBPC was entitled to consult extrinsic evidence 0907 the SPD and

the Plan's past practices to 0907 clarify the ambiguity. Monsanto argues that because the Plan gives the EBPC discretion to make such interpretations, the arbitrary and capricious standard applies, and the EBPC's decision satisfies the arbitrary and capricious standard.
The doctrine of extrinsic ambiguity allows parties "to present extrinsic evidence to demonstrate that although the contract looks clear, anyone who understood the context of its creation would understand that it doesn't mean what it seems to mean." Mathews v. Sears Pension Plan, 144 F.3d 461, 466 (7th Cir. 1998). "The party claiming that a contract is ambiguous must first convince the judge that this is the case ..., and must produce objective facts, not subjective and self-serving testimony, to show that a contract which looks clear on its face is actually ambiguous." Murphy v. Keystone Steel & Wire Co., 61 F.3d 560, 565 (7th Cir.1995) (citations omitted); accord Mathews, 144 F.3d at 467. Where a plan is ambiguous, a plan administrator may consult extrinsic evidence, including past practices, to determine the parties' intent. Krawczyk v. Harnischfeger Corp., 41 F.3d 276, 279 (7th Cir.1994).
For example, in Mathews, a class of retirees sued Sears' pension plan based on the discount rate applied to calculate the present value0907and thus a lump sum benefit of 0907 future annuity payments the retiree would have received had he later taken an annuity instead of a lump sum. Mathews, 144 F.3d at 464. The Sears pension plan stated that it would use the discount rate calculated monthly by the Pension Benefit Guaranty Corporation ("PBGC") that was applicable "as of the date of distribution." Id. In practice, the pension plan actually used the 790 PBGC rate applicable on January 1 of the year in which the employee retired, *790 and the pension plan's summary plan description reflected this practice. Id. The Court of Appeals found that, while "as of the date of distribution" on its face unambiguously meant the rate applicable the month after the employee retired, objective extrinsic evidence revealed the phrase as ambiguous. Id. at 466. The objective external evidence included a Department of Treasury regulation that used "as of the date of distribution" as a term of art to mean either the rate applicable when the retiree receives the lump sum benefit or the rate applicable on January 1 of the year the retiree receives the lump sum. Id. at 467. Thus, the Treasury regulation suggested "a technical legal meaning different from [the phrase's] ordinary meaning," and supported an extrinsic ambiguity. Id. That the plan administrator construed the plan to employ the technical legal meaning of "as of the date of distribution" was reinforced by Sears' consistent past practice and summary plan description. Id. at 468. The Court ultimately found the plan administrator properly exercised its discretion to interpret an extrinsic ambiguity considering extrinsic evidence. Id. at 469.
Monsanto asks the Court to consider extrinsic evidence0907the SPD and its past practice to 0907 find an extrinsic ambiguity in the Plan that would allow the EBPC to interpret § 7.3(e)(v) as it has. It is true that the SPD and its past practices are the type of objective evidence the Court may consider when an extrinsic ambiguity exists. See, e.g., Mathews, 144 F.3d at 468. They may also be used to establish the existence of an extrinsic ambiguity. However, in this case, there simply is no extrinsic ambiguity, even considering that extrinsic evidence. The Plan's language is clear, and understanding the context of the Plan and any "terms of art" used therein does not make it any less so. The extrinsic evidence cited by Monsanto does not reveal the plan to mean anything other than what it appears on its face to mean. On the contrary, the extrinsic evidence merely shows that the Plan has consistently misapplied § 7.3(e)(v) by inserting limiting provisions that just are not there.
As for the SPD, Monsanto claims that the EBPC's decision to interpret the plan to be consistent with the SPD is reasonable because the SPD's description of the plan governs over the Plan itself when there is a conflict between the two. This rule is true, however, only when a participant reasonably relies on the SPD to his detriment. Schwartz v. Prudential Ins. Co., 450 F.3d 697, 699 (7th Cir.2006); see also SPD at 26 (2002) ("In the event that a provision in the [Plan] conflicts with the Summary Plan Description, the terms of the plan document shall control."). Here, there is no contention that the plaintiff class reasonably relied on the SPD to their detriment.
In sum, the EBPC's decision to interpret § 7.3(e)(v) to apply only to deferrals and not to administrative delays is unreasonable and has no rational connection to the Plan. Therefore it is arbitrary and capricious and cannot stand.

III. Conclusion
For the foregoing reasons, the Court DENIES Monsanto's motion for summary judgment on Count X (Doc. 282) and GRANTS in part the plaintiff's motion for summary judgment (Doc. on count X) (Doc. 285) to the extent it seeks judgment on Count X. The Court further DECLARES the Plan's practices of interpreting § 7.3(e)(v) of the Plan to apply only to deferrals and not to administrative delays to be unlawful and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Further proceedings necessary to determine the propriety 791 and scope of injunctive or other relief to be awarded to the plaintiff class should proceed *791 in accordance with Magistrate Judge Frazier's September 29, 2008, order (Doc. 302). See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (requiring four-part analysis of factors supporting injunctive relief); Sierra Club v. Franklin Co. Power of Ill., LLC, 546 F.3d 918, 935-36 (7th Cir.2008), petition for cert. filed, 77 U.S.L.W. 3610 (U.S. Apr. 20, 2009) (No. 08-1304). The Court further ORDERS that a telephone status conference shall be held on August 13, 2009, at 9:00 a.m. The plaintiffs are responsible for placing the conference call. The Court's telephone number is XXX-XXX-XXXX.
IT IS SO ORDERED.
[1] The account was named the Prior Plan Account because it represents the value of a participant's accrued benefit under Monsanto's prior traditional defined benefit plan when the prior plan was transitioned into a cash balance plan. That transition is not relevant to the pending motions addressed in this order.
[2] The 2002 version of the Plan was in effect when Zeringue at his Annuity Starting Date on January 1, 2002, and when he received his lump sum pension payment on March 1, 2002.
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 636 F.Supp.2d 774 (2009)
Grant M. WALKER, Edward Zeringue, and Richard W. Drake, on behalf of themselves and all others similarly situated, Plaintiffs, v.
MONSANTO COMPANY PENSION PLAN and Monsanto Company, Defendants. Glynn Davis, Eugene Forneris, and Juanita Hammond, individually and on behalf of all
those similarly situated, Plaintiffs, v.
Solutia Inc. Employees' Pension Plan, Defendant. Fred Donaldson, Albert Walter III, Mary Clawson, Sandra Bellon, Audrey Sokoloski, and
Carol Thomas, individually and on behalf of all those similarly situated, Plaintiffs, v.
Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc., Defendants.
No. 3:04-cv-436-JPG-PMF. Nos. 05-cv-736-JPG, 06-cv-3-JPG, 06-cv-139-JPG.
United States District Court, S.D. Illinois.
June 11, 2009.
776 *776 Eric L. Dirks, Norman E. Siegel, Patrick J. Stueve, Todd M. McGuire, Stueve, Siegel Et Al., Kansas City, MO, Michael B. Marker, Rex Carr, Rex Carr Law Firm, East St. Louis, IL, Jerome J. Schlichter, Schlichter, Bogard Et Al., St. Louis, MO, for Plaintiffs.
Carol Connor Cohen, Caroline T. English, Gretchen Dixon, Arent Fox PLLC, Washington, DC, Michael J. Nester, Donovan, Rose Et Al., Belleville, IL, Anne E. Rea, Chris K. Meyer, Erin E. Kelly, Mark B. Blocker, Neil H. Wyland, Priscilla E. Ryan, Ryan M. Sandrock, William F. Conlon, Sidley Austin LLP, Chicago, IL, Neal F. Perryman, Robert J. Golterman, Thomas P. Berra, Jr., Lewis, Rice Et Al., St. Louis, MO, for Defendants.
MEMORANDUM AND ORDER
GILBERT, District Judge.
This matter comes before the Court on the joint motion for summary judgment on Counts I, II and III filed by defendants Monsanto Company Pension Plan and Monsanto Company (collectively, "Monsanto"), Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company and Pfizer, Inc. (collectively, "Pharmacia") and Solutia Inc. Employees' Pension Plan ("Solutia") (Doc. 284). The plaintiffs, on behalf of their respective classes, have responded to the motion (Doc. 294), and the defendants have replied to that response (Doc. 299). The Court also considers the plaintiffs' motion for summary judgment (Doc. 285) to the extent it seeks judgment on Counts I, II and III, the defendants' response to the plaintiffs' summary judgment arguments about Counts I, II and III (Doc. 293), and the plaintiffs' reply to that response (Doc. 297). The parties have submitted 777 additional materials in connection with the pending motions (Docs. 314, 315, 316, 318 *777 & 319), and on May 6, 2009, the Court held oral argument on the motions.
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir.2000). There are no factual disputes before the Court in relation to Counts I, II and III; the Court is only asked to decide legal issues to determine whether any party is entitled to judgment as a matter of law.

I. Background
This matter involves an identical provision in the pension plans of defendants Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Inc. Employees' Pension Plan. Because the relevant provision is identical, the Court will refer to all of the plans collectively simply as "the Plan." Furthermore, a single corporation was the predecessor of all the defendant corporations, and the Court will refer to that entity at "Old Monsanto."
As of January 1, 1997, Old Monsanto converted its various existing traditional defined benefit pension plans to a single cash-balance defined benefit plan. In a traditional defined benefit plan, a participant is entitled to a certain benefit upon retirement such as, for example, a monthly annuity equal to a certain percentage of his highest annual earnings. A traditional defined benefit plan must provide that benefit regardless of the cost to the plan, so the employer bears the risk that the plan will not be adequately funded to pay the benefits. In a cash-balance defined benefit plan, each participant maintains a cash balance account on the books only 0907thus, it is often referred to as a "notional" account to 0907 which credits can be added through the participant's working period based on his salary and "interest" on the notional account balance. Because the account is notional and contains no real dollars, the employer still bears the risk of not having sufficient assets to cover pension obligations, but Old Monsanto believed participants could more easily understand the value of a cash-balance benefit than a future pension expressed as a monthly payment amount. In 1996, before the conversion, Old Monsanto communicated the details of the conversion to its employees in a variety of ways and included detailed descriptions of how benefits that participants had accrued under the prior defined benefit plans would be treated in the conversion, which is described in more detail in the following paragraphs.
The conversion to a cash-balance plan was complicated because many employees who worked for Old Monsanto prior to January 1, 1997, had accrued benefits under the prior plans, and when those benefits were converted to the new Plan, Old Monsanto had to do so without reducing their value. To accomplish this, Old Monsanto converted an employee's accrued benefit under a prior plan into a Prior Plan Account ("PPA").[1] It did this by determining the value at the time of conversion of the monthly annuity to which the employee would have been entitled under the prior plan at age 65 (the Plan's normal retirement age) based on the employee's then778 current salary history and/or years of *778 service, and multiplying that number by 125 to get a lump sum value for the employee's accrued benefit at the time of conversion (125 is the annuity conversion factor selected to approximate the average number of months an annuity would be paid). It then reduced the lump sum by 8.5% per year to its value at the age of the employee at the time of the transition to arrive at the employee's opening PPA balance, as described in § 6.2(b) of the Plan, which is further described in the following paragraph.
The magnitude of the reduction was impacted by Old Monsanto's decision to treat all participants as if they were entitled to a fully subsidized early retirement benefit at age 55 and a discounted early retirement benefit before age 55 (features of the Plan), even when they were not entitled to such benefits under their prior plans. The result was that each participant's lump sum accrued benefit under his prior plan was reduced 8.5% per year for each year the employee was less than 55 years old, not 65 years old. The resulting amount0907 the lump sum value of the employee's accrued benefit at the time of the conversion reduced by 8.5% for each year the employee was under 55 years of age0907became the beginning PPA notional cash balance. Had Old Monsanto not extended the early retirement benefits to participants who had not been entitled to them under their prior plans, their lump sum accrued benefits would have been reduced from age 65. The Plan provided that the PPA balance would grow by 8.5% annually through "interest credits" so that by the time the participant reached age 55, the PPA balance would be equal to the undiscounted lump sum value of the employee's accrued benefit under the prior plans at the time of conversion.[2]
The controversy in this litigation stems from § 6.2(d) of the Plan, which directs that "interest credits" be awarded to each participant's PPA at a rate of 8.5% per year until the participant reaches age 55, at which time the interest credit awards cease. The plaintiff classes claim that this provision violates the prohibition on age discrimination in § 204(b)(1)(H)(i) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1054(b)(1)(H)(i), and the Internal Revenue Code ("IRC"), 26 U.S.C. § 411(b)(1)(H)(i), and the prohibition on forfeiting benefits in § 203

(a) (2) of ERISA, 29 U.S.C. § 1053(a)(2), and the IRC, 26 U.S.C. § 411(a)(2). The defendants argue that the cessation of interest credits to PPAs at age 55 is not discriminatory because the interest credits up to that time simply reversed the discount taken in the calculation of the beginning PPA cash balance to reflect the pre-55 early retirement feature of the Plan. In the defendants' view, once a participant reaches age 55, the discount will have been fully reversed by the annual 8.5% credits prior to age 55, and the PPA cash balance will be equal to the full, undiscounted lump sum value of the employee's accrued benefit under the prior plan as calculated at the time of the conversion. They further argue that the claims of the plaintiff classes are time-barred.
II. Analysis
The critical statutory provision is § 204(b)(1)(H)(i) of ERISA, 29 U.S.C. § 1054(b)(1)(H)(i), which forbids age 779 discrimination in benefit accrual by disqualifying *779 from tax benefits any plan where "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." [3] The plaintiff classes claim that § 6.2(d) of the Plan[4] violates this provision because, by its plain terms, it stops the awarding of "interest credits" on the PPA balance when a participant turns 55 years old. They argue that the Plan must stand or fall on its face because it is unambiguous, and consideration of extrinsic evidence to interpret an unambiguous contract provision should not be allowed. On the other side, the defendants argue that the history and context of the PPA "interest credits" must be considered in order to understand their role in the Plan, that is, that they are not truly "interest" but the restoration of a discount taken at the time of the conversion.
A. Consideration of Extrinsic Evidence
The Court will consider extrinsic evidence to interpret § 6.2(d) of the Plan and to determine its place in the context of the entire Plan. Plan interpretation is governed by federal common law rules of contract interpretation. Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 873 (7th Cir. 2001). Where a plan is unambiguous, that is, if it is susceptible to only one reasonable interpretation, it must be interpreted accordingly. However, where a plan is susceptible to more than one reasonable interpretation, the Court may consult extrinsic evidence in accordance with the plain language of the plan.
The plaintiff classes are correct that § 6.2(d) is unambiguous on its face when read in a vacuum. Its language viewed in an "ordinary and popular sense as would a person of average intelligence and experience," Neuma, 259 F.3d at 873, is clear: the Plan stops awarding interest credit when a participant turns 55. True interest credits for a cash-balance account are an accrued benefit to which a participant is entitled when he reaches normal retirement age and which therefore must be included when calculating a lump sum retirement benefit. See Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 761 (7th Cir.2003). Thus, under § 6.2(d)'s plain terms, the participant's accrual of interest credits ceases because the participant attains the age of 55, and § 6.2(d) violates ERISA's anti-discrimination provisions unless there is an ambiguity in the Plan.
The defendants argue that such an ambiguity is revealed when one considers the calculations used to arrive at 780 the beginning PPA balance as described in § 6.2(b) of the plan,[5] the pre-conversion explanatory *780 materials
distributed to participants and the Plan's summary plan description ("SPD"). Considering such evidence, they argue, it becomes clear that the 8.5% "interest credits" are not truly interest at all but are instead a reversal of the discount taken during the conversion as described in § 6.2(b). Under their view, the Plan is not discriminatory because it ceases "interest credits" when a participant turns 55.
The doctrine of extrinsic ambiguity allows parties "to present extrinsic evidence to demonstrate that although the contract looks clear, anyone who understood the context of its creation would understand that it doesn't mean what it seems to mean." Mathews v. Sears Pension Plan, 144 F.3d 461, 466 (7th Cir. 1998). "The party claiming that a contract is ambiguous must first convince the judge that this is the case ..., and must produce objective facts, not subjective and self-serving testimony, to show that a contract which looks clear on its face is actually ambiguous." Murphy, 61 F.3d at 565 (citations omitted); accord Mathews, 144 F.3d at 467. Where a plan is ambiguous, extrinsic evidence may be considered to determine the parties' intent. Krawczyk v. Harnischfeger Corp., 41 F.3d 276, 279 (7th Cir.1994).

Here, anyone who understood the context and history of the 8.5% "interest credit" would understand that it is not interest as the common person understands interest. Instead, the "interest credit" represents the reversal of the discount taken from the total lump sum value of a participant's accrued benefit at the time of the plan conversion. That Old Monsanto chose to call the incremental restoration of the discount "interest credits" instead of "reverse discount credits" or "subsidy credits" or some similar term is unfortunate in that it opened the door for confusion and, as this case bears out, for litigation. Nevertheless, consideration of other portions of the Plan and of objective extrinsic evidence such as the pre-conversion materials distributed to participants and the SPD is allowed to interpret the plan.
B. Are "Interest Credits" Benefit Accruals?
The defendants argue that the cessation of "interest credits" at age 55 is not forbidden by ERISA § 204(b)(1)(H) (i)'s prohibition of cessation of "benefit accrual" because "interest credits" under the Plan are not "benefit accruals."
As both sides emphasized at oral argument, a "benefit accrual" is "what the employer puts in (either in absolute terms or as a rate of change)" to increase the value of a participant's retirement benefit. Cooper v. IBM Pers. Pension Plan, 457 F.3d 636, 639 (7th Cir.2006), cert. denied, 549 U.S. 1175, 127 S.Ct. 1143, 166 L.Ed.2d 907 (2007); Hurlic v. Southern Cal. Gas Co., 539 F.3d 1024, 1037 (9th Cir.2008) ("The term "accrue" means "to increase."... "Benefit accrual" thus refers to the process by which benefits increase."). In the case of a cashbalance plan, the benefit accrual is the rate at which the employer imputes value to a participant's cash-balance account. Cooper, 457 F.3d at 639. This is to be distinguished from an "accrued benefit," which ERISA defines as an amount "expressed in the form of an annual benefit commencing at normal retirement age." ERISA § 3(23)(A), 29 U.S.C. § 1002(23)(A); see Cooper, 457 F.3d at 638.
The PPA "interest credits" are not "benefit accruals" because, although the employer imputes them to a participant's cash-balance PPA, the "interest credits" do not increase the value of the participant's age-65 retirement benefit that accrued prior to the conversion. The value of a participant's accrued benefit prior to 781 conversion was and will always be the *781 value of the monthly annuity to which a participant would have been entitled at age 65 had he stopped working at the time of the conversion expressed as a lump sum benefit. If the participant was 55 at the time of conversion, the lump sum benefit was not discounted at all in the beginning PPA balance, and the participant was entitled to the full value of his age-65 retirement benefit by virtue of the fully subsidized age-55 early retirement provision. If the participant was under 55 at the time of conversion, the beginning PPA balance was the accrued lump sum benefit discounted by 8.5% for each year the participant was under 55 to reflect a reduction in the early retirement subsidy (pre-55 retirement was only partially subsidized). The early retirement subsidy was then added back at a rate of 8.5% through "interest credits" until the PPA reached the value of the pre-1997 age-65 accrued benefit expressed as a lump sum benefit at the time of conversion0907that is, 100% of the participant's accrued benefit at the time of the conversion. The Plan simply reverses the pre-55 subsidy discount year by year as the participant approaches 55, the age at which he can receive a fully subsidized retirement benefit. The benefit accrued prior to conversion never changed; only the amount of the early retirement subsidy did.
The example cited in the defendants' brief and at oral argument is helpful to understand why "interest credits" under § 6.2(d) do not increase the value of a participant's pre-conversion accrued benefit (Doc. 286, Defs.' Mem. Supp. Summ. J. 23-24). In the example, Mary Doe was 50 years old at the time of conversion on January 1, 1997, and her accrued benefit under her prior plan was a monthly annuity payment beginning at age 65 of $1,000 based on her salary and years of service at the time of conversion. Mary's monthly annuity of $1,000 was multiplied by 125, the annuity conversion factor, to get the lump sum value of her accrued benefit at the time of conversion: $125,000. Because the Plan offered a fully subsidized early retirement benefit beginning at age 55, Mary would have been entitled to the entire lump sum benefit of $125,000 if she retired at age 55. However, had she retired at age 54, a year prior to her being entitled to a fully subsidized retirement benefit, she would have been entitled only to a discounted retirement benefit, and her lump sum benefit would have been reduced by 8.5%. Had she retired at 53, the reduction would have been a further 8.5%, and so on.

In the Plan, the 8.5% "interest credits" describe the calculation from another perspective. Instead of describing Mary's accrued age-65 benefit as $125,000 and providing that Mary would be entitled to 8.5% less per year if she chose to retire before 55, the Plan starts Mary off at the lowest possible lump sum to which she could be entitled under the discounted early retirement program0907the lump sum to which she would have been entitled under the Plan had she retired at the time of conversion, that is, at age 50. It then restored the 8.5% subsidy until she reached a PPA balance of $125,000, the lump sum value of her accrued benefit at the time of conversion, when she reached age 55. At all times from age 50 to 55, Mary's accrued benefit was $125,000; it was only the portion of that accrued benefit to which she was entitled that changed each year because she was able to take advantage of the increasingly larger retirement subsidy.
The Plan's 8.5% "interest credit" award until age 55 is indistinguishable from the pension payment increases at issue in Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir.1992). In Atkins, a plaintiff class challenged their employer Northwest Airlines' pension plan that stopped awarding service credits, which were used along with the 782 participant's earnings to calculate *782 his accrued benefits, after a participant has accumulated 25 years of service and that reduced his pension amount if he retired before age 60, the plan's normal retirement age, to account for a projected longer payment period. Id. at 1200. The result was that a 55-year-old with 25 years of service credit received a lower monthly pension payment than a 60-year-old with the same years of service and the same earnings, but that the 60-year-old's pension would not increase if he continued to work beyond age 60. Id. The plaintiff class argued that the failure of the incremental pension payment increases before age 60 to continue after age 60 violated the same anti-age discrimination provision at issue in this suit, ERISA § 205(b)(1) (H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), as well as other age discrimination laws. Id. at 1199. They asked the Court to require the Northwest plan to invert the early retirement discount so that it became a "late retirement bonus" if a participant continued to work beyond age 60 at the same rate that the early retirement discount was reversed before a participant turned 60. Id. at 1200.
The Eighth Circuit Court of Appeals held that since ERISA did not forbid service caps or early retirement discounts, it did not require Northwest's plan to award a "late retirement bonus" to employees who worked beyond 60 even if their total benefit was actuarially less than an employee who retired at age 60. Id. It concluded that the cessation of the monthly pension increases beyond age 60 simply reflected the exhaustion of an early retirement benefit, not improper age discrimination. Id. at 1201. It further noted that similarly situated participants (i.e., those with 25 years of service and the same earnings) had the same accrued benefit 0907 the amount of pension payment to which they would be entitled at normal retirement age 0907no matter when they actually retired. Id. Therefore, the discontinuation of the early retirement discount reversal at age 60 had no effect on a participant's accrued benefit and was not discriminatory under ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1) (H)(i). Id. Because the reversing of the early retirement discount and the cessation of that reversal once the discount was fully reversed did not increase a participant's accrued benefit, it did not constitute a "benefit accrual" under Cooper.
The plaintiffs attempt to distinguish Atkins by noting that the Atkins early retirement discount reversal continued until the normal retirement age of 60, not an earlier retirement age as in the case at bar. This is immaterial. In both Atkins and the case at bar, the discount was reversed until the participant was eligible for a full retirement benefit, at which point the discount reversal ceased. In Atkins, which provided for no fully-subsidized early retirement benefit, that occurred at the normal retirement age of 60; in this case, where there is a fully-subsidized early retirement benefit, that occurs at age 55, when a participant is eligible for that benefit.
The plaintiff classes also point to Hurlic v. Southern California Gas Company, 539 F.3d 1024 (9th Cir.2008), in support of their position that the "interest credits" awarded are benefit accruals because they increase the value of the participants' retirement accounts. In Hurlic, as in this case, a pension plan was converted from a traditional defined benefit plan to a cash balance plan. Id. at 1027. At the conversion, the initial balance of each participant's retirement account was set at the actuarial equivalent of the participant's accrued benefit under the prior plan, and interest credits were added to that balance at a predetermined rate subsequent to the plan conversion. Id. 783 The Hurlic court had occasion to consider the difference in benefit accruals in traditional defined benefit *783 plans as compared to cash balance plans, noting that in a traditional defined benefit plan, benefits accrued or 0907

increased0907according to a formula based on salary history and years of service and that in a cash balance plan, benefits accrued or 0907 increased0907with the award of earnings and interest credits. Id. at 1037.
Hurlic is readily distinguishable from the case at bar because the credits at issue in each case are of an entirely different nature, although they are both labeled "interest credits." In Hurlic, no early discounted early retirement benefit was involved, and the interest credits represented additions to the accrued benefit of each participant. After each interest credit was awarded, a participant's accrued benefit was larger. However, as explained earlier in this order, the "interest credits" in this case did not increase the accrued benefit in any participant's PPA. Were the "interest credits" awarded under the Plan in this case truly interest instead of the reversal of an early retirement discount, the plaintiffs' position would have some merit. However, the "interest credits" in this case are indistinguishable from those in Atkins and of a completely different nature than those in Hurlic.
The plaintiff classes in this case essentially ask the Court to impose a "late retirement bonus" of 8.5% per year for participants who work beyond 55, the age at which they could first take a fully subsidized early retirement. However, as demonstrated in Atkins, the reversal of an early retirement discount that ceases when the discount is fully reversed at a certain age is not age discrimination and does not violate ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i).
C. Do "Interest Credits" Cease Because of a Participant's Age?
Using the same reasoning, the defendants argue that, although the plain terms of the Plan state that "interest credits" cease at age 55, the "interest credits" cease not because of age but because the early retirement discount has been fully restored, which happens to coincide with the participant reaching age 55. Thus, the attainment of age 55 is not the reason the "interest credits" cease; it simply perfectly correlates with the reason the "interest credits" cease.
While it is unlawful to discriminate on the basis of age, it is not necessarily unlawful to discriminate on the basis of other characteristics that correlate with age. Cooper v. IBM Pers. Pension Plan, 457 F.3d 636, 642 (7th Cir.2006) (years of interest available until retirement) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 611-12, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (pension status/years of service)), cert. denied, 549 U.S. 1175, 127 S.Ct. 1143, 166 L.Ed.2d 907 (2007). When a plaintiff claims age discrimination under ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), he must "demonstrate that the complained-of effect is actually on account of age," not some other factor that correlates with age. Cooper, 457 F.3d at 642; see Kentucky Ret. Sys. v. EEOC, ___ U.S. ___, ___, 128 S.Ct. 2361, 2366, 171 L.Ed.2d 322 (2008) (ADEA context). It is only where the correlated factor serves as a "proxy for age" that the effect will be deemed unlawfully discriminatory. Kentucky Ret. Sys., 128 S.Ct. at 2367 (citing Hazen Paper, 507 U.S. at 613, 113 S.Ct. 1701). Generally, age and pension status are analytically distinct concepts, although pension status often turns on a pension plan participant's age. Kentucky Ret. Sys., 128 S.Ct. at 2367.
Kentucky Retirement Systems v. EEOC, ___ U.S. ___, 128 S.Ct. 2361, 171 L.Ed.2d 322 (2008), provides a 784 perfect example of the analytical distinction between age and *784 retirement status. That case arose because
Kentucky's retirement system imputed unearned years of service credits to certain workers who became disabled and who were not eligible for retirement but did not impute such credits to otherwise similarly situated workers who were already eligible for retirement. Id. at 2365. Years of service was a component of the pension benefit calculation, so the plan was effectively more generous to those who were not yet eligible for retirement than it was to those who were. Id. The EEOC argued that the plan discriminated on the basis of age because a worker like the plaintiff with at least five years of service who became disabled after age 55 received no imputed years of service but a similarly situated worker under 55 would have. Id. The Supreme Court concluded that the decision to impute additional years of service was non-discriminatory because it was made based on pension status, not age, although the result was that a worker under 55 received imputed years and worker 55 or older did not. Id. at 2369.
Here, as explained in the previous section of this order, there is no evidence showing the cessation of PPA "interest credits" at age 55 was age discrimination and that pension status was a proxy for age. Nothing in the record indicates the early retirement discount reversal designed to provide a fully subsidized early retirement

benefit at age 55 was "based on a `prohibited stereotype' of older workers,... produce[d] any `attendant stigma' to those workers, [or was] `the result of an inaccurate and denigrating generalization about age,'" the evils age discrimination statutes were designed to remedy. Kentucky Ret. Sys., 128 S.Ct. at 2366-67. On the contrary, it is clear that the Plan's decision to stop awarding "interest credits" was "actually motivated" by the fact that the early retirement discount became fully reversed at the fully subsidized early retirement age, that is, the participant's pension status. That this happens to occur without fail when a participant turns 55 (the date a participant can obtain a fully subsidized early retirement benefit) and that the Plan chose to describe the reversal point in terms of a participant's age instead of the attainment of a full early retirement subsidy does not make the cessation "because of the attainment of any age."
Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir.1992), discussed in the prior section of this order, is completely consistent with this conclusion. In that case, the early retirement discount expired at normal retirement age0907a pension status which happened to occur invariably at age 60 0907and was discontinued. Id. at 1200. The Court of Appeals found the cessation of the reduction to be proper because it did not "result from age discrimination," but instead "merely reflect[ed] that the early retirement discount [was] exhausted." Id. at 1201.
In the case at bar, the relevant pension status occurs at age 55 when a participant is eligible for a fully subsidized early retirement. Under Kentucky Retirement Systems and consistent with Atkins, the cessation of a discount reversal at the achievement of that pension status does not violate ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b) (1)(H)(i), because it is not "because of the attainment of any age."
In light of the foregoing, it is unnecessary to address the parties' other arguments regarding whether the Plan complies with § 204(b)(1)(H)(i) of ERISA, 29 U.S.C. § 1054(b)(1)(H)(i), and whether these consolidated actions were filed within the applicable statute of limitations.
III. Conclusion
For the foregoing reasons, the Court GRANTS the defendants' motion for summary judgment on Counts I, II and 785 III (Doc. 284), DENIES in part the plaintiff's *785 motion for summary judgment (Doc. 285) to the extent it seeks
judgment on Counts I, II and III and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
[1] The Plan also contained a Cash Balance Account ("CBA") for each participant where post-transition benefit accruals would be reflected. The CBA is not at issue in this litigation.
[2] The defendants note that the IRS issued favorable rulings with respect to the tax-qualified status of the Old Monsanto and Solutia plans. Although these rulings may be entitled to some respect under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), see Hurlic v. Southern Cal. Gas Co., 539 F.3d 1024, 1034 (9th Cir.2008), the Court does not rely on them in ruling on the pending motions.
[3] The IRC contains a provision identical to the cited ERISA provision. See 26 U.S.C. § 411(b)(1)(H)(i). For simplicity's sake, the Court will only refer to the ERISA provision in this order, although its ruling applies equally to the alleged IRC violations.
[4] Section 6.2(d) states:
Interest Credits. For each month prior to the earlier of the first day of the month following the month in which the Participant attains age 55 or his Annuity Starting Date, a Participant's Prior Plan Account shall be credited with Interest Credits equal to the sum of (i) the Prior Plan Account on the first day of such month, and (ii) the Participant's Pay Credits credited for that month, if any, multiplied by 1.006822.
This calculation yields an annual interest of approximately 8.5%.
[5] Section 6.2(b) states, in pertinent part:

The Prior Plan Account of a Participant ... shall, as of January 1, 1997, be credited with an amount equal to the Actuarial Equivalent lump sum value of the Participant's Predecessor Plan Accrued Benefit..., discounted using an interest rate of eight and one-half percent per annum for each month, if any, by which the Participant's age as of January 1, 1997 precedes age 55....
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 Walker v. Monsanto Co. Pension Plan, 252 F.R.D. 450 (2008)

252 F.R.D. 450 United States District Court,
S.D. Illinois.
Grant M. WALKER, Edward Zeringue, and Richard W. Drake, on behalf of themselves and all
others similarly situated, Plaintiffs, v.
MONSANTO COMPANY PENSION PLAN and Monsanto Company, Defendants.
Glynn Davis, Eugene Forneris, and Juanita Hammond, individually and on behalf of all those
similarly situated, Plaintiffs, v.
Solutia Inc. Employees’ Pension Plan, Defendant. Fred Donaldson, Albert Walter III, Mary Clawson,
Sandra Bellon, Audrey Sokoloski, and Carol Thomas, individually and on behalf of all those
similarly situated, Plaintiffs, v.
Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company, and
Pfizer, Inc., Defendants.
No. 3:04-cv-436-JPG-PMF. | May 22, 2008.
Attorneys and Law Firms
*451 Eric L. Dirks, Norman E. Siegel, Patrick J. Stueve, Todd M. McGuire, Stueve, Siegel, Kansas City, MO, Jerome J. Schlichter, Schlichter, Bogard, St. Louis, MO, Michael B. Marker, Rex Carr Law Firm, East St. Louis, IL, for Plaintiffs.
Carol Connor Cohen, Caroline T. English, Gretchen Dixon, Arent Fox PLLC, Washington, DC, Dawn A. Sallerson, Hinshaw & Culbertson, Michael J. Nester, Donovan, Rose, Belleville, IL, Anne E. Rea, Chris K. Meyer, Erin E. Kelly, Mark B. Blocker, Neil H. Wyland, Priscilla E. Ryan, Ryan M. Sandrock, William F. Conlon, Sidley Austin, LLP, Chicago, IL, Neal F. Perryman, Robert J. Golterman, Thomas P. Berra, Jr., Lewis, Rice, St. Louis, MO, for Defendants.
Opinion
ORDER
GILBERT, District Judge:
INTRODUCTION

Now before the Court is Plaintiffs’ Motion for Class Certification on Counts I-III and X of the Consolidated Complaint (Doc. 166). Although all Defendants initially opposed class certification, an agreement was subsequently reached whereby the Defendants agreed not to object to certification in exchange for Plaintiffs’ agreement not to object to the class definitions proposed by Defendants in the Stipulation they filed with the Court on June 11, 2007 (Docket No. 211). Accordingly, the Court hereby certifies the classes set forth in the Stipulation.
Prior to 1997, a company then known as Monsanto Company (“Old Monsanto”) sponsored a traditional defined benefit plan known as the Monsanto Company Pension Plan. Effective January 1, 1997, Old Monsanto converted this plan to another form of defined benefit pension plan known as a “cash balance plan.” Subsequent to the conversion, there were a number of corporate spinoffs and restructurings that resulted in Old Monsanto becoming three separate corporations; namely, Pharmacia Corporation (“Old Monsanto” or “Pharmacia”), Solutia Inc. (“Solutia”), and a newly-created Monsanto Company (“New Monsanto”). The pension liabilities of the original cash balance plan were divided among these entities and their respective plans. As a result, there are now three substantially identical cash balance pension plans: (1) the Pharmacia Plan, sponsored by Pharmacia, (2) the Solutia Plan, sponsored by Solutia, and (3) the Monsanto Plan, sponsored by New Monsanto (collectively, the “Plan” or “Plans”). Plaintiffs are current and former employees of Old Monsanto, *452 New Monsanto, Pharmacia, or Solutia who are or were participants in one of the three substantially identical plans.
The facts recited here are based on the allegations of the Consolidated Class Action Complaint. As cash balance plans, the Plans pay pension benefits based upon one or both of two hypothetical accounts maintained for each participant: the Prior Plan Account (“PPA”) and the Cash Balance Account (“CBA”). (Consolidated Complaint, ¶¶ 42-43) PPAs were established on January 1, 1997, for participants who had been employed by Old Monsanto immediately prior to that date, when Old Monsanto converted from a traditional defined benefit plan to a cash balance defined benefit plan. (Id. at ¶¶ 26, 40, 50-51) CBAs were established for those individuals as well as for individuals who became Plan participants on or after January 1, 1997. (Id. at ¶ 45).
Plaintiffs request certification of three identical “Age 55 Cut-Off claims” against the Monsanto, Solutia, and Pharmacia Defendants (Counts I-III of the Consolidated Complaint), as well as certification of a “Late Lump Sum claim” against the Monsanto Defendants (Count X).1 In the Age 55 Cut-Off claims, Plaintiffs allege that the Plans violate ERISA’s prohibition against reducing the rate of
1

Walker v. Monsanto Co. Pension Plan, 252 F.R.D. 450 (2008)

pension benefit accrual by virtue of the discontinuation of PPA interest credits at age 55. (Id. at ¶¶ 71-72, 77-78) In Count X, Plaintiff Zeringue, on behalf of the Monsanto Late Lump Sum Subclass, alleges that the Monsanto Plan violated its own provision concerning the payment of PPA interest credits when participants receive lump sum payments at least a complete calendar month after their annuity starting date. (Id. at ¶¶ 145-146, 149). Plaintiffs seek relief consisting of an order declaring the challenged Plan provisions and practices illegal; requiring reformation of the allegedly illegal Plan provisions and practices; and requiring recalculation of pension benefits in accordance with ERISA.

1

Plaintiffs have not moved to certify a class on Counts

IV-VI, wherein they allege violations of ERISA’s

antibackloading provisions, or Counts VII-IX, wherein

they allege violations of ERISA’s age discrimination

provision. The age discrimination claims were

dismissed with prejudice on September 13, 2007

(Docket No. 242).

LEGAL STANDARDS FOR CLASS CERTIFICATION
When evaluating a motion for class certification, the court accepts as true the allegations made in support of certification, and does not examine the merits of the case. Mirfasihi v. Fleet Mortgage Corp., 2005 WL 1950386 at *11 (N.D.Ill.2005). In order to maintain a class action, a plaintiff must satisfy all of the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Federal Rule of Civil Procedure 23(a) provides that one or more persons may sue as representatives of a class if:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are 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.
These four elements of the Rule 23(a) test often are referred to as the requirements of (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
Plaintiffs have satisfied the requirements of Rule 23(a).

Plaintiffs have satisfied the numerosity requirement. Plaintiffs allege that the Monsanto Defendants’ Age 55 Cut-Off Class includes more than 2,700 participants; the Solutia Plan’s Age 55 Cut-Off Class includes more than 5,400 participants; the Pharmacia Defendants’ Age 55 Cut-Off Class includes more than 2,500 participants; and the Monsanto Defendants’ Late Lump Sum Class includes more than 500 participants. Defendants have not disputed that there are sufficient class members to satisfy the requirement of numerosity.
[1] Plaintiffs have also satisfied the commonality requirement. Plaintiffs have alleged claims that turn upon uniform Plan provisions that the Plans have uniformly applied *453 to the participants who comprise the proposed classes.
[2] The typicality requirement is also met. Plaintiffs have alleged claims that arise from the Plans’ uniform enforcement of the Plan provisions at issue and each class member’s claims are based upon the same legal theories.
[3] Finally, Plaintiffs have satisfied the adequacy of representation requirement. The Court finds that Plaintiffs’ attorneys are well-qualified to conduct this sort of complex class litigation and that there is no evidence of any antagonism between the interests of the named Plaintiffs and the interests of the classes they seek to represent.

Plaintiffs have satisfied the requirements of Rule 23(b).
In addition to the requirements of Rule 23(a), plaintiffs seeking class certification must satisfy one of the requirements of Rule 23(b) of the Federal Rules of Civil Procedure. Williams v. Chartwell Financial Services, Ltd., 204 F.3d 748, 760 (7th Cir.2000). Plaintiffs in the present case seek certification under subsections (b)(1) and (b)(2) of Rule 23.2 Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing incompatible standards of conduct for the party opposing the class or would as a practical matter be dispositive of the interests of nonparty class members or substantially impair or impede their ability to protect their interests. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where the party opposing the class has acted or refused to act on grounds generally applicable to the class.

2

Although Plaintiffs alternatively sought certification

under Rule 23(b)(3), per their agreement with

Defendants, they now seek certification only under

(b)(1) or (b)(2).

2

Walker v. Monsanto Co. Pension Plan, 252 F.R.D. 450 (2008)
[4] The Court concludes that certification under Rule 23(b)(1) is appropriate in this case because Plaintiffs challenge the legality of Plan provisions that govern the calculation of all class members benefits, and thus a resolution in this case will be dispositive of the claims of nonparty class members.
[5] This case also meets the requirements of Rule 23(b)(2). Enforcement of the Plan provisions at issue as against all class members constitutes action on grounds generally applicable to members of the proposed classes.
CLASS DEFINITIONS
On June 11, 2007, Defendants filed a stipulation-to which the Plaintiffs do not object-with the Court agreeing to the following class definitions if the Court should certify classes in this matter:
The Monsanto Defendants’ Age 55 Cut-Off Class (Count I)
All current vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts, all former vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000, and all former employees of DEKALB Genetic Corporation who participated at any time in the Monsanto Plan. Excluded from the Monsanto Defendants’ class are participants who terminated employment with New Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Monsanto Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of New Monsanto’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Pharmacia Defendants’ Age 55 Cut-Off Class (Count III)
All current and former vested Pharmacia Plan participants (and their beneficiaries) with Prior Plan Accounts; and all former vested Monsanto Plan participants (and *454 their beneficiaries) with Prior Plan Accounts who terminated employment with old Monsanto Company or Pharmacia Corporation on or after January 1, 1997 and on or before December 31, 2001, other than former employees of DEKALB

Genetic Corporation and other than persons who are members of the Solutia Plan’s Age 55 Cut-Off Class (as defined in paragraph 3 below). Excluded from the Pharmacia Defendants’ class are participants who terminated employment with Pharmacia Corporation prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Pharmacia Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of the Law Departments of Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer, Inc.), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Solutia Plan’s Age 55 Cut-Off Class (Count II)
All current and former vested Solutia Plan participants (and their beneficiaries) with Prior Plan Accounts on or after January 1, 1997. Excluded from the Solutia Plan’s class are participants who terminated employment with Solutia Inc. prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Solutia Plan’s class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of Solutia Inc.’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Monsanto Defendants’ Late Lump Sum Class (Count X)
All former Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000 and who took a lump sum distribution at least one complete calendar month after their Benefit Commencement Date; all current Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who have not yet taken a distribution of their pension benefits. Excluded from the Monsanto Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of Monsanto’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
3

Walker v. Monsanto Co. Pension Plan, 252 F.R.D. 450 (2008)

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Certify the following Classes under Rule 23(b)(1) and (b)(2) (Doc. 166).
The Court CERTIFIES the Monsanto Defendants’ Age 55 Cut-Off Class, defined as follows:
All current vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts, all former vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000, and all former employees of DEKALB Genetic Corporation who participated at any time in the Monsanto Plan.
Excluded from the Monsanto Defendants’ class are participants who terminated employment with New Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Monsanto Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of New Monsanto’s Law Department), assigns, *455 and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Court CERTIFIES the Pharmacia Defendants’ Age 55 Cut-Off Class, defined as follows:
All current and former vested Pharmacia Plan participants (and their beneficiaries) with Prior Plan Accounts, and all former vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with old Monsanto Company or Pharmacia Corporation on or after January 1, 1997 and on or before December 31, 2001, other than former employees of DEKALB Genetic Corporation and other than persons who are members of the Solutia Plan’s Age 55 Cut-Off Class.
Excluded from the Pharmacia Defendants’ class are participants who terminated employment with Pharmacia Corporation prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Pharmacia Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of the Law Departments of Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer Inc.), assigns, and

successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Court CERTIFIES the Solutia Plan’s Age 55 CutOff Class, defined as follows:
All current and former vested Solutia Plan participants (and their beneficiaries) with Prior Plan Accounts on or after January 1, 1997.
Excluded from the Solutia Plan’s class are participants who terminated employment with Solutia Inc. prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Solutia Plan’s class are the Defendant, members and staff of the Employee Benefits Plans Committee, any entity in which Defendant has a controlling interest or which has a controlling interest of Defendant; Defendant’s legal representatives (including employees of Solutia Inc.’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Court CERTIFIES the Monsanto Defendants’ Late Lump Sum Class, defined as follows:
All former Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000, and who took a lump sum distribution at least one complete calendar month after their Benefit Commencement Date; all current Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who have not yet taken a distribution of their pension benefits.
Excluded from the Monsanto Defendants’ class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of Monsanto’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family.
The Court APPOINTS Plaintiffs Walker, Zeringue, and Drake as representatives of the Monsanto Defendants’ Age 55 Cut-Off Class. The Court APPOINTS Plaintiffs Davis and Hammond as representatives of the Solutia Plan’s Age 55 Cut-Off Class. The Court APPOINTS Plaintiff Donaldson as representative of the Pharmacia Defendants’ Age 55 Cut-Off Class. The Court APPOINTS Plaintiff Zeringue as representative of the Monsanto Defendants’ Late Lump Sum Class. The Court APPOINTS Michael B. Marker of The Rex Carr Law Firm, LLC; Matthew H. Armstrong and Jerome J.
4

Walker v. Monsanto Co. Pension Plan, 252 F.R.D. 450 (2008)

Schlichter of Schlichter Bogard & Denton; and Norman E. Siegel and Eric L. *456 Dirks of Stueve Siegel Hanson LLP as counsel for the foregoing Classes.
IT IS SO ORDERED.

Parallel Citations
44 Employee Benefits Cas. 1041
	  

5

 
 Walker v. Monsanto Co. Pension Plan
United States District Court for the Southern District of Illinois August 29, 2007, Decided; August 29, 2007, Filed
Case No. 04-cv-436-JPG, Consolidated with: Case No. 05-cv-736-JPG, Case No. 06-cv-3-JPG, Case No. 06-cv-139-JPG

Reporter: 2007 U.S. Dist. LEXIS 63793; 42 Employee Benefits Cas. (BNA) 1312

GRANT WALKER, et al., on behalf of themselves and all Admitted, Kansas City, MO; Michael B. Marker, LEAD

others similarly situated, Plaintiffs, v. MONSANTO ATTORNEY, Rex Carr Law Firm, Generally Admitted, East

COMPANY PENSION PLAN, et al., Defendants.

St. Louis, IL; Matthew H. Armstrong, Schlichter, Bogard et

al. - St. Louis, Generally Admitted, St. Louis, MO. Subsequent History: Motion granted by, Complaint

dismissed at Walker v. Monsanto Co. Pension Plan, 2007 U.S. For Jeffrey Scharringhausen, Doug Strahm, Intervenor

Dist. LEXIS 67704 (S.D. Ill., Sept. 13, 2007)

Plaintiffs: Christopher F. Cueto, LEAD ATTORNEY, Law

Office of Christopher Cueto, Ltd., Generally Admitted, Prior History: Walker v. Monsanto Co. Pension Plan, 2006 Belleville, IL. U.S. Dist. LEXIS 70122 (S.D. Ill., Sept. 27, 2006)

Counsel: [*1] For Grant Walker, Edward Zeringue, on behalf of themselves and all others similarly situated, James E Mueller, Plaintiffs: Eric L. Dirks, Norman E. Siegel, Patrick J. Stueve, Todd M. McGuire, LEAD ATTORNEYS, Stueve, Siegel et al., Generally Admitted, Kansas City, MO; Michael B. Marker, LEAD ATTORNEY, Rex Carr Law Firm,

For Monsanto Company Pension Plan, The, Monsanto Company, The, Defendants: Carol Connor Cohen, Caroline T. English, Gretchen Dixon, LEAD ATTORNEYS, Arent Fox PLLC, Washington, DC; A. Courtney Cox, Hart & Hart, Benton, IL; Michael J. Nester, Donovan, Rose et al., Generally Admitted, Belleville, IL.

Generally Admitted, East St. Louis, IL.

For Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia

For Richard W. Drake, Plaintiff: Matthew H. Armstrong, LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. Louis, MO; Michael B. Marker, LEAD ATTORNEY, Rex Carr Law Firm, East St. Louis, IL.

Cash Balance Pension Plan, Pharmacia Corporation, Defendants: Anne E. Rea, Chris K. Meyer, Erin [*3] E. Kelly, Neil H. Wyland, Priscilla E. Ryan, Ryan M. Sandrock, William F. Conlon, LEAD ATTORNEYS, Sidley Austin LLP - Chicago, Chicago, IL; Dawn A. Sallerson, LEAD

For Sandra Bellon, Audrey Sokoloski, Carol Thomas, Plaintiffs: Matthew H. Armstrong, LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. Louis, MO.

ATTORNEY, Hinshaw & Culbertson - Belleville, Generally Admitted, Belleville, IL; Mark B. Blocker, LEAD ATTORNEY, Sidley, Austin et al., Generally Admitted, Chicago, IL; A. Courtney Cox, Hart & Hart, Benton, IL.

For Mary Clawson, Fred Donaldson, Albert Walter, III, Plaintiffs: Jerome J. Schlichter, LEAD ATTORNEY, Schlichter, Bogard & Denton, Generally Admitted, St. Louis, MO; Matthew H. Armstrong, LEAD ATTORNEY,

For Solutia Inc Employees' Pension Plan, Defendant: Neal F. Perryman, Robert J. Golterman, Thomas P. Berra, Jr., LEAD ATTORNEYS, Lewis, Rice et al., Generally Admitted, St. Louis, MO; A. Courtney Cox, Hart & Hart, Benton, IL.

Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. For Eugene Brombolich, Defendant: Jerome J. Schlichter,

Louis, MO.

LEAD ATTORNEY, Schlichter, Bogard & Denton, Generally

For Glynn Davis, Eugene Forneris, Plaintiffs: Jerome J. Schlichter, LEAD ATTORNEY, Schlichter, Bogard & Denton, Generally Admitted, St. Louis, MO; Matthew H. Armstrong, LEAD [*2] ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. Louis, MO; Michael B. Marker, LEAD ATTORNEY, Rex Carr Law Firm, East St. Louis, IL; Norman E. Siegel, LEAD ATTORNEY, Stueve,

Admitted, St. Louis, MO; Matthew H. Armstrong, LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. Louis, MO; Michael B. Marker, LEAD ATTORNEY, Rex Carr Law Firm, East St. Louis, IL; Norman E. Siegel, LEAD ATTORNEYS, Stueve, Siegel et al., Generally Admitted, Kansas City, MO; A. Courtney Cox, Hart & Hart, Benton, IL.

Siegel et al., Generally Admitted, Kansas City, MO.

Judges: J. Phil Gilbert, DISTRICT JUDGE.

For Juanita Hammond, Plaintiff: Eric L. Dirks, Norman E. Siegel, LEAD ATTORNEYS, Stueve, Siegel et al., Generally

2007 U.S. Dist. LEXIS 63793, *3

Page 2 of 4

Opinion by: J. Phil Gilbert

Pension Plan, No. Civ. 01-717-GPM, 2004 U.S. Dist. LEXIS

3814, 2004 WL 483199, at *3 (S.D. Ill. Mar. 10,

Opinion

2004). [*6] However, in light of ERISA § 503, 29 U.S.C. § 1133, directing employee benefit plans to provide adequate

MEMORANDUM AND ORDER

written notice of the reasons for denials of claims by plan participants and to create procedures for the review of such

GILBERT, District Judge:

denials of claims, this Circuit interprets ERISA as requiring exhaustion of administrative remedies as a prerequisite to

This matter is before the Court on the following bringing suit under the statute. See Powell v. A.T. & T. motions: [*4] the motion to dismiss for failure to join a Communications, Inc., 938 F.2d 823, 826 (7th Cir. 1991).

necessary and indispensable party brought by Defendant "[T]he decision to require exhaustion as a prerequisite to Solutia, Inc., Employees' Pension Plan ("the Solutia Plan") bringing suit is a matter within the discretion of the trial court

(Doc. 145); the motion to dismiss for failure to exhaust . . . . [T]his determination will only be disturbed on appeal if

administrative remedies brought by the Solutia Plan (Doc. the lower court has clearly abused its discretion -- in other

147); the motion to dismiss for failure to join a party needed words, if the lower court's decision 'is obviously in error.'"

for just adjudication brought by Defendants Monsanto Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 138 (7th

Company Pension Plan and Monsanto Company ("the Cir. 1997) (quoting Lindemann v. Mobil Oil Corp., 79 F.3d

Monsanto Defendants") (Doc. 149); and the motion to 647, 650 (7th Cir. 1996)). An ERISA plaintiff's failure to

reconsider brought by the Solutia Plan (Doc. 155).

exhaust administrative remedies may be excused where there

is a lack of meaningful access to review procedures, or where

As has been discussed in prior orders in this cause, the matter pursuing internal plan remedies would be futile. See Robyns v.

before the Court involves consolidated putative class actions Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th

against three related employee benefit plans under the Cir. 1997); [*7] Wilczynski v. Lumbermens Mut. Cas. Co., 93

Employee Retirement Income Security Act of 1974 F.3d 397, 402 (7th Cir. 1996); Smith v. Blue Cross & Blue

("ERISA"), 29 U.S.C. §§ 1001-1461. The operative complaint Shield United of Wis., 959 F.2d 655, 658-59 (7th Cir. 1992).

by Plaintiffs Grant M. Walker, Edward Zeringue, Richard W.

Drake, Glynn Davis, Eugene Forneris, Juanita Hammond, Previous orders in this case have held that Plaintiffs' claims of

Fred Donaldson, Albert Walter, III, Mary Clawson, Sandra age discrimination and backloading are not subject to

Bellon, Audrey Sokoloski, and Carol Thomas alleges that the exhaustion. As those orders have explained, it is undisputed

plans violate the statute in essentially three ways. First, that the benefits of Plaintiffs and the proposed class have been Plaintiffs allege, the plans violate ERISA § 204(b)(1)(H)(i), calculated in accordance with the express terms of the

29 U.S.C. § 1054(b)(1)(H)(i), [*5] which prohibits a defined relevant plan documents, and thus the Court fails to see what

benefit plan from causing any cessation or reduction in the administrative remedy is available under the terms of those

rate at which an employee accrues benefits on account of age. plans. See Donaldson v. Pharmacia Pension Plan, 435 F.

Second, Plaintiffs allege, the plans are backloaded, that is, Supp. 2d 853, 860 (S.D. Ill. 2006) (citing Costantino v. TRW,

they violate the provisions of ERISA § 204(b)(1)(B), 29 Inc., 773 F. Supp. 34, 44 (N.D. Ohio 1991)) (declining to

U.S.C. § 1054(b)(1)(B), which prohibit defined benefit plans order exhaustion of administrative remedies as to age-

from establishing minimum accrual rates that cause a discrimination and backloading claims against one of the

participant's benefits to accrue very slowly until the Defendants in this case, where the plan document afforded no

participant is near retirement age. Third, Plaintiffs allege, one administrative remedy). The policies underlying ERISA's

of the subject plans, the Monsanto Company Pension Plan, exhaustion requirement are to provide a mechanism for pays interest on late benefit payments at a rate lower than that informal dispute resolution, to shield the discretion of plan

specified in the plan document.

administrators from excessive judicial interference, and to develop an administrative record that [*8] will provide useful

The Court turns first to the Solutia Plan's request for dismissal factual background in litigation regarding plan benefits. See

of Plaintiffs' age-discrimination and backloading claims id. at 859-60 (citing, inter alia, Janowski v. International Bhd.

against the plan on grounds of failure to exhaust of Teamsters Local No. 710 Pension Fund, 673 F.2d 931, 935

administrative remedies. "The text of 29 U.S.C. § 1132, (7th Cir. 1982)). The age-discrimination and backloading

providing for civil actions to redress violations of ERISA, claims asserted in this case involve questions of law

does not address whether a claimant must exhaust her concerning the interpretation of ERISA that the Court, rather

administrative remedies before filing suit in federal court." than the administrators of the relevant plans, is in the best

Gallegos v. Mount Sinai Med. Ctr., 210 F.3d 803, 807 (7th position to decide, and that

Cir. 2000). See also Call v. Ameritech Mgmt.

2007 U.S. Dist. LEXIS 63793, *8

Page 3 of 4

are best resolved, in the Court's view, through classwide September 27, 2006, holding that the sponsor of the Solutia

adjudication, not piecemeal through administrative Plan, Solutia, Inc., ("Solutia") is not a mandatory party to this

proceedings. See id. at 860-61.

action within the meaning of Rule 19 and Rule 12(b)(7) of the

The previous decisions in this case declining to order of exhaustion of administrative remedies as to the agediscrimination and backloading claims asserted in earlier complaints in this case establish, of course, the law of the case. "[T]he phrase, 'law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, . . . expresses the practice of courts generally to refuse to reopen what has been decided." Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). Put another way, "[t]he doctrine of law of the case establishes a presumption [*9] that a ruling made at one stage of a lawsuit will be adhered to throughout the suit."

Federal Rules of Civil Procedure. Although the Federal Rules of Civil Procedure contain express provisions governing reconsideration of final orders and judgments, reconsideration of interlocutory decisions "is a matter of a district court's inherent power." Koelling v. Livesay, 239 F.R.D. 517, 519 (S.D. Ill. 2006). See also Canon U.S.A, Inc. v. Nippon Liner Sys., Ltd., No. 90C 7350, 1992 U.S. Dist. LEXIS 7659, 1992 WL 137406, at *1 (N.D. Ill. June 2, 1992); Giguere v. Vulcan Materials Co., No. 87 C 7043, 1988 U.S. Dist. LEXIS 11381, 1988 WL 107387, at *4 (N.D. Ill. Oct. 13, 1988). Such motions "serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Zurich Capital Mkts. Inc. v. Coglianese, 383 F. Supp. 2d

Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1041, 1045 (N.D. Ill. 2005) (quoting Publishers Res., Inc. v.

1227 (7th Cir. 1995). "The law of the case doctrine . . . is not an immutable concept," Walsh v. Mellas, 837 F.2d 789, 796 (7th Cir. 1988), and it is not required to be followed where certain "exceptional circumstances" are present, as when new evidence mandates a ruling contrary to a prior order,

Walker-Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985)). Reconsideration of an interlocutory order may be granted where: "the court has misunderstood a party; the court has made a decision outside the adversarial [*12] issues presented to the court by the parties; the court has made an

controlling authority rendered since a court's original decision error of apprehension (not of reasoning); a significant change

requires reconsideration of an order, or a prior decision in a in the law has occurred; or significant new facts have been

case "was clearly erroneous, and would work a substantial discovered." Wilson v. Cahokia Sch. Dist. # 187, 470 F. Supp. injustice" if allowed to stand. Evans v. City of Chicago, 873 2d 897, 913 (S.D. Ill. 2007) (collecting cases). F.2d 1007, 1014 (7th Cir. 1989). Nevertheless, the

presumption created by the law of the case, though only a Reconsideration of an interlocutory order is committed to a

presumption, "is not to be lightly disregarded," Shakman v. court's sound discretion. See Harrisonville Tel. Co. v. Illinois

Dunne, 829 F.2d 1387, 1393 (7th Cir. 1987), and the law-of- Commerce Comm'n, 472 F. Supp. 2d 1071, 1074 (S.D. Ill.

the-case doctrine "should be applied unless unusual 2006); IMI Norgren, Inc. v. D & D Tooling & Mfg., Inc., No.

circumstances or a compelling reason render it inapplicable." 00 C 5789, 2003 U.S. Dist. LEXIS 98, 2003 WL 40499, at *2

Parts & Elec. Motors, Inc. v. Sterling Elec., 866 F.2d 228, (N.D. Ill. Jan. 6, 2003); Fisher v. National R.R. Passenger

231 (7th Cir. 1988). Cf. United States v. Mendez, 102 F.3d Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993). Further,

126, 131 (5th Cir. 1996)(quoting White v. Murtha, 377 F.2d "[m]otions for reconsideration generally are not encouraged."

428, 431 (5th Cir. 1967)) [*10] (the law-of-the-case doctrine Johnson v. City of Kankakee, No. 04-2009, 2007 U.S. Dist.

"creates a strong presumption of finality within the case, LEXIS 34639, 2007 WL 1431874, at *1 (C.D. Ill. May 11,

resting 'on the salutary and sound public policy that litigation 2007) (quoting Wilson, 470 F. Supp. 2d at 913). See also

should come to an end.'"). Because the Solutia Plan has Automatic Liquid Packaging, Inc. v. Dominik, No. 86 C 5595,

presented no compelling reason for the Court to depart from 1987 U.S. Dist. LEXIS 11076, 1987 WL 26149, at *1 (N.D.

earlier rulings in this case that Plaintiffs' age-discrimination Ill. Dec. 2, 1987). This is because, "[i]n general, a district

and backloading claims are unsuitable for exhaustion of court's rulings 'are not intended as mere first drafts, subject to

administrative remedies, the Court in its discretion declines to revision and reconsideration at a litigant's pleasure,' and 'ill-

order exhaustion of administrative remedies as to those founded requests for reconsideration [*13] of matters

claims. 1

previously decided . . . needlessly take the court's attention

from current matters and visit inequity upon opponents who, The Court turns next to the Solutia Plan's motion for prevailing in an earlier proceeding, must reconsideration of the [*11] Court's order entered

1 Although the Court in its discretion declines to order exhaustion of administrative remedies as to Plaintiffs' claims for alleged age discrimination in violation of ERISA, Plaintiffs acknowledged at the status conference conducted in this case on July 25, 2007, that those claims are due to be dismissed under Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006). Accordingly, the Court will not order Plaintiffs to exhaust administrative remedies as to their age-discrimination claims and instead will dismiss those claims upon the filing of an appropriate motion to dismiss by Defendants.

2007 U.S. Dist. LEXIS 63793, *13

Page 4 of 4

nevertheless defend their position again and again.'" indispensable parties."); Freeman v. Liu, 112 F.R.D. 35, 41

Harrisonville Tel. Co., 472 F. Supp. 2d at 1074 (quoting (N.D. Ill. 1986) ("Potential indemnitors have never been

Berger v. Xerox Ret. Income Guar. Plan, 231 F. Supp. 2d 804, considered indispensable parties or even parties whose joinder

820 (S.D. Ill. 2002)). See also Asllani v. Board of Educ. of is required if feasible . . . . The same situation as to

City of Chicago, 845 F. Supp. 1209, 1226 (N.D. Ill. 1993) indispensability and joinder applies to joint tortfeasors subject

(noting that, as a rule, motions for reconsideration "do nothing to a possible right of contribution . . . . Similarly, joint

but express dissatisfaction with a prior ruling and ask the obligors to a contract are generally not

court to change its mind").

considered [*15] indispensable, since their liability is usually

joint and several."); 7 Charles Alan Wright, Arthur R. Miller

The Court's previous determination that Solutia is not a & Mary Kay Kane, Federal Practice & Procedure § 1613 (3d

mandatory party to this action is, as discussed, the law of the ed. 1998 & Supp. 2007) ("Joint obligors . . . typically are

case, from which the Court should not depart absent a treated as Rule 19(a) parties, but are not deemed

compelling reason to do so and, in the Court's view, the indispensable under Rule 19(b).") (collecting cases). In light

Solutia Plan has demonstrated no such compelling reason. of this settled principle, the Court concludes that the Solutia

The gist of the Solutia Plan's argument for mandatory joinder Plan's motion for reconsideration, as well as the motions to

of Solutia remains that, in the event a judgment is entered dismiss under Rule 12(b)(7) brought by the Solutia Plan and

against the plan, Solutia may be required, as the plan sponsor, the Monsanto Defendants, are due to be denied.

to pay it. The Court remains persuaded that the issue of joiner

of Solutia is controlled by the settled rule [*14] in both To conclude, the Solutia Plan's motion to dismiss for failure

contract and tort that a mere obligation to pay money in the to join a necessary and indispensable party (Doc. 145), the

event of a judgment does not mandate joinder of a party under Solutia Plan's motion to dismiss for failure to exhaust

Rule 19. See, e.g., Rhone-Poulenc, Inc. v. International Ins. administrative remedies (Doc. 147), the Monsanto

Co., 71 F.3d 1299, 1301 (7th Cir. 1995) ("A victim of Defendants' motion to dismiss for failure to join a party

wrongdoing is not generally required to sue all the needed for just adjudication (Doc. 149), and the Solutia Plan's

wrongdoers. Certainly not in a tort case, where the rule of motion to reconsider (Doc. 155) are DENIED.

joint and several liability reigns; and not in a contract case

either."); Microcomputer Workshops Corp. v. Mindscape, IT IS SO ORDERED.

Inc., No. 89 C 2188, 1989 U.S. Dist. LEXIS 10905, 1989 WL 106684, at *3 (N.D. Ill. Sept. 14, 1989) ("[T]he law is settled DATED: August 29, 2007

that joint obligors are not indispensable parties within the meaning of Rule 19(b)."); Sniezek v. Cords, No. 87 C 1766, s/ J. Phil Gilbert

1987 U.S. Dist. LEXIS 7458, 1987 WL 15768, at *1 (N.D. Ill. Aug. 12, 1987) ("[F]ederal courts have not treated joint

DISTRICT JUDGE

obligors as

 
 Walker v. Monsanto Co. Pension Plan
United States District Court for the Southern District of Illinois September 13, 2007, Decided; September 13, 2007, Filed
Case No. 04-cv-436-JPG Consolidated with: Case No. 05-cv-736-JPG, Case No. 06-cv-3-JPG, Case No. 06-cv-139-JPG

Reporter: 2007 U.S. Dist. LEXIS 67704; 101 Fair Empl. Prac. Cas. (BNA) 990; 41 Employee Benefits Cas. (BNA) 2397

GRANT WALKER, et al., on behalf of themselves and all LEAD ATTORNEY, Rex Carr Law Firm, Generally

others similarly situated, Plaintiffs, v. MONSANTO Admitted, East St. Louis, IL; Norman E. Siegel, LEAD

COMPANY PENSION PLAN, et al., Defendants.

ATTORNEY, Stueve, Siegel et al., Generally Admitted,

Kansas City, MO.

Subsequent History: Class certification granted by Walker v.

Monsanto Co. Pension Plan, 2008 U.S. Dist. LEXIS 80063 For Juanita Hammond, Plaintiff: Eric L. Dirks, LEAD

(S.D. Ill., May 22, 2008)

ATTORNEY, Norman E. Siegel, LEAD ATTORNEY,

Stueve, Siegel et al., Generally Admitted, Kansas City, MO;

Prior History: Walker v. Monsanto Co. Pension Plan, 2007 Michael B. Marker, LEAD ATTORNEY, Rex Carr Law

U.S. Dist. LEXIS 63793 (S.D. Ill., Aug. 29, 2007)

Firm, Generally Admitted, East St. Louis, IL; Matthew H.

Armstrong, LEAD ATTORNEY, Schlichter, Bogard et al. Counsel: [*1] For Grant Walker, Edward Zeringue, on St. Louis, Generally Admitted, St. Louis, MO. behalf of themselves and all others similarly situated,

Plaintiffs: Eric L. Dirks, LEAD ATTORNEY, Norman E. For Jeffrey Scharringhausen, Doug Strahm, Intervenor

Siegel, LEAD ATTORNEY, Patrick J. Stueve, LEAD Plaintiffs: Christopher F. Cueto, LEAD ATTORNEY, Law

ATTORNEY, Todd M. McGuire, LEAD ATTORNEY, Office of Christopher Cueto, Ltd., Generally Admitted,

Stueve, Siegel et al., Generally Admitted, Kansas City, MO; Belleville, IL.

Michael B. Marker, LEAD ATTORNEY, Rex Carr Law

Firm, Generally Admitted, East St. Louis, IL.

For Monsanto Company Pension Plan, The, Monsanto

Company, The, Defendants: Carol Connor Cohen, LEAD

For James E Mueller, Plaintiff: Eric L. Dirks, LEAD ATTORNEY, Caroline T. English, LEAD ATTORNEY,

ATTORNEY, Norman E. Siegel, LEAD ATTORNEY, Gretchen Dixon, LEAD ATTORNEY, Arent Fox PLLC,

Patrick J. Stueve, LEAD ATTORNEY, Todd M. McGuire, Washington, [*3] DC; A. Courtney Cox, Hart & Hart,

LEAD ATTORNEY, Stueve, Siegel et al., Generally Benton, IL; Michael J. Nester, Donovan, Rose et al.,

Admitted, Kansas City, MO; Michael B. Marker, Rex Carr Generally Admitted, Belleville, IL.

Law Firm, Generally Admitted, East St. Louis, IL.

For Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia

For Richard W. Drake, Plaintiff: Matthew H. Armstrong, Cash Balance Pension Plan, Pharmacia Corporation,

LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis, Defendants: Anne E. Rea, LEAD ATTORNEY, Chris K.

Generally Admitted, St. Louis, MO; Michael B. Marker, Meyer, LEAD ATTORNEY, Erin E. Kelly, LEAD

LEAD ATTORNEY, Rex Carr Law Firm, East St. Louis, IL. ATTORNEY, Neil H. Wyland, LEAD ATTORNEY, Priscilla

For Sandra Bellon, Audrey Sokoloski, Carol Thomas, Plaintiffs: Matthew H. Armstrong, LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. Louis, MO.

E. Ryan, LEAD ATTORNEY, Ryan M. Sandrock, LEAD ATTORNEY, William F. Conlon, LEAD ATTORNEY, Sidley Austin LLP - Chicago, Chicago, IL; Dawn A. Sallerson, LEAD ATTORNEY, Hinshaw & Culbertson Belleville, Generally Admitted, Belleville, IL; Mark B.

Blocker, LEAD ATTORNEY, Sidley, Austin et al., Generally For Mary Clawson, Fred Donaldson, Albert Walter, III, Admitted, Chicago, IL; A. Courtney Cox, Hart & Hart, Plaintiffs: Jerome J. Schlichter, LEAD ATTORNEY, Benton, IL. Matthew H. Armstrong, LEAD [*2] ATTORNEY,

Schlichter, Bogard et al. - St. Louis, Generally Admitted, St. For Solutia Inc Employees' Pension Plan, Defendant: Neal F.

Louis, MO.

Perryman, LEAD ATTORNEY, Robert J. Golterman, LEAD

ATTORNEY, Thomas P. Berra, Jr., LEAD ATTORNEY, For Glynn Davis, Eugene Forneris, Plaintiffs: Jerome J. Lewis, Rice et al., Generally Admitted, St. Louis, MO; A. Schlichter, LEAD ATTORNEY, Matthew H. Armstrong, Courtney Cox, Hart & Hart, Benton, IL. LEAD ATTORNEY, Schlichter, Bogard et al. - St. Louis,

Generally Admitted, St. Louis, MO; Michael B. Marker,

2007 U.S. Dist. LEXIS 67704, *3

Page 2 of 4

For Eugene Brombolich, Defendant: Jerome J. Schlichter, 1995). Thus, a court, in ruling on a motion for judgment on

LEAD ATTORNEY, Matthew H. Armstrong, LEAD the pleadings, must "accept all well-pleaded allegations in the

ATTORNEY, Schlichter, Bogard et al. - St. Louis, Generally complaint as true and draw all reasonable inferences in favor

Admitted, St. Louis, MO; Michael B. Marker, LEAD of the plaintiff." [*6] Forseth v. Village of Sussex, 199 F.3d

ATTORNEY, [*4] Rex Carr Law Firm, Generally Admitted, 363, 368 (7th Cir. 2000). Likewise, the court must "view the

East St. Louis, IL; Norman E. Siegel, LEAD ATTORNEY, facts in the complaint in the light most favorable to the

Stueve, Siegel et al., Generally Admitted, Kansas City, MO; nonmoving party." GATX Leasing Corp., 64 F.3d at 1114. A

A. Courtney Cox, Hart & Hart, Benton, IL.

court may "grant a Rule 12(c) motion only if 'it appears

Judges: J. PHIL GILBERT, DISTRICT JUDGE.

beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.'" Northern Ind. Gun &

Opinion by: J. PHIL GILBERT

Outdoor Shows, 163 F.3d at 452 (quoting Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir.

1993)).

Opinion

The employee benefit plans at issue in this case, specifically,

MEMORANDUM AND ORDER

the Solutia Inc. Employees' Pension Plan, Monsanto Company Pension Plan, and Pharmacia Cash Balance Pension

GILBERT, District Judge:

Plan, are so-called "cash balance" plans, which means that plan participants' benefits are computed in the form of

This matter is before the Court on the motion for judgment on the pleadings brought by Defendants Solutia Inc. Employees' Pension Plan, Monsanto Company Pension Plan, Monsanto Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia and Upjohn Company, and Pfizer, Inc. (Doc. 224). Defendants seek dismissal of Counts VII, VIII, and IX of the operative complaint in this cause, alleging age discrimination in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 10011461. As Defendants argue correctly, those claims are due to be dismissed under Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006). Accordingly, the motion is GRANTED and Counts VII, VIII, and IX of the complaint are DISMISSED with prejudice.

periodic hypothetical credits to a hypothetical participant account. See Donaldson v. Pharmacia Pension Plan, 435 F. Supp. 2d 853, 857 (S.D. Ill. 2006) (quoting Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 758 (7th Cir. 2003)) (explaining that "[a] typical cash balance pension plan purports to compute an employee's accrued benefit as a hypothetical account balance, to which putative 'pay [*7] credits' and 'interest credits' are added each year. In truth, 'the employee has no actual account, the employer makes no contributions to an employee account, and so there is no account balance to which interest might be added.'"). "[A]lthough a cash balance plan has superficial similarities to an individual account plan or defined contribution plan, legally it is a defined benefit plan for ERISA purposes." Id.

(citing Berger, 338 F.3d at 757-58). See also29 U.S.C. § Rule 12 of the Federal Rules of Civil Procedure provides, in 1002(35). pertinent part, "[a]fter the pleadings are closed but within

such time as [*5] not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The pleadings for purposes of a Rule 12(c) motion include the complaint, the answer, and any written instruments attached to the pleadings as exhibits. See Northern Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452-53 (7th Cir. 1998). The main difference between a Rule 12(c) motion and a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure is that the latter may be filed before an answer to a complaint is filed, whereas a Rule 12(c) motion may be filed "after the pleadings are closed but within such time as not to delay the trial." Id. at 452 n.3 (quoting Fed. R. Civ. P. 12(c)). Otherwise, however, a Rule 12(c) motion is evaluated "under the same standard as a motion to dismiss under [Rule 12(b)(6)]." GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir.

Under ERISA § 204, 29 U.S.C. § 1054, a defined benefit plan is deemed to be age discriminatory "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." 29 U.S.C. § 1054(b)(1)(H)(i). In recent years controversy has arisen about whether the term "benefit accrual" for purposes of ERISA § 204(b)(1)(H)(i), 29 U.S.C. § 1054(b)(1)(H)(i), is synonymous with the term "accrued benefit" for purposes of ERISA § 3(23)(A), 29 U.S.C. § 1002(23)(A), that is, the annuity a participant in a defined benefit plan is entitled to collect upon attaining normal retirement age, which is to say age 65. See29 U.S.C. § 1002(24). If so, [*8] the argument goes, cash balance plans are inherently discriminatory against older employees. Because the accrued benefit in a defined benefit plan must be expressed as an annuity payable at age 65, cash balance plans necessarily discriminate against employees who are closer to normal retirement age than

2007 U.S. Dist. LEXIS 67704, *8

Page 3 of 4

employees who are further from retirement age because "benefit accrual" is "a phrase dealing with inputs." Id. at 639.

credits to a younger employee's cash balance account, "As long as we think of 'benefit accrual" as referring to what

expressed as an annuity payable at age 65, are automatically the employer imputes to the account -- an understanding

more valuable than the same credits allocated to an older reinforced by the use of the word 'allocation' in the subsection

employee's account. A younger employee simply is entitled to addressing defined-contribution plans -- there is no statutory

more years of interest on the same employer contribution to difference [*11] between the treatment of economically

his or her cash balance account than is an older employee. As equivalent defined-benefit and defined-contribution plans."

one judicial decision puts it, "In terms of an age 65 annuity, Id. "For defined-benefit plans, where the account is an

the interest credits will always be more valuable for a younger accounting entry rather than cash, 'benefit accrual' matches

employee as opposed to an older employee . . . . There is no the money 'allocated' to a defined-contribution plan." Id.

dispute about the underlying arithmetic of cash balance arrangements: each year, as a cash balance participant ages, the same contribution made for her in the previous year declines in value in annuity terms." Cooper v. IBM Personal

Counts VII, VIII, and IX of the operative complaint do not allege any reduction in employer inputs to participants' accounts by reason of age and instead allege merely that the

Pension Plan, 274 F. Supp. 2d 1010, 1021 (S.D. Ill. 2003) (quoting [*9] Edward A. Zelinsky, The Cash Balance Controversy,19 Va. Tax Rev. 683, 733 (2000)).

actuarial value of the interest credited those accounts decreases as participants near retirement age. However, as Cooper makes clear, this is simply a function of the "time value of money," not age discrimination, so that those counts

In Cooper the United States Court of Appeals for the Seventh of the complaint must be dismissed. 457 F.3d at 640. See also

Circuit rejected the view that the term "benefit accrual" for Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 69 (3d

purposes of ERISA § 204(b)(1)(H)(i), 29 U.S.C. § Cir. 2007) (quoting Cooper, 457 F.3d at 639) (holding with

1054(b)(1)(H)(i), is synonymous with the term "accrued respect to the terms "benefit accrual" and "accrued benefit" as

benefit" for purposes of ERISA § 3(23)(A), 29 U.S.C. § used in ERISA that there is "no indication that Congress

1002(23)(A). While acknowledging that a cash balance plan intended that courts and administrators use these phrases

is a defined benefit plan and not a "defined contribution plan" interchangeably . . . . [T]he phrase 'benefit accrual' reads most

or "individual account plan" within the meaning of ERISA § naturally as a reference to what the employer puts in . . . ,

3(34), 29 U.S.C. § 1002(34), the Seventh Circuit reasoned while the defined phrase [*12] 'accrued benefit' refers to

that a cash balance plan should be treated equivalently to a outputs after compounding."); Sunder v. U.S. Bank Pension

defined contribution plan for purposes of ERISA's age Plan, No. 4:05CV01153 ERW, 2007 U.S. Dist. LEXIS

discrimination provisions, notwithstanding the fact that in a 11331, at *20, 2007 WL 541595, at *6 (E.D. Mo. Feb. 16,

defined contribution plan, unlike a cash balance plan, 2007) ("[T]he term [']rate of benefit accrual,['] as applied to

contributions to participant accounts are actual, not cash balance plans, is best read as referring to the employer's

hypothetical. As the court put it, the legal treatment of a plan contribution to the plan, and not the benefit the employee

for purposes of ERISA age discrimination rules should not receives upon retirement."); Finley v. Dun & Bradstreet

depend on whether "the account balances are book entries Corp., 471 F. Supp. 2d 485, 490 (D.N.J. 2007) ("[29 U.S.C.]

rather than cash." 457 F.3d at 638. Accordingly, the court § 1054(b)(1)(H) prohibits reduction in benefit accrual which .

held that age discrimination in a cash balance plan is to be . . is the amount that the employer puts in. It does not apply to

tested under [*10] the standard for defined contribution plans accrued benefits that an employee takes out. Because Plaintiff

set out in ERISA § 204(b)(2)(A), 29 U.S.C. § 1054(b)(2)(A), complains in Count One that age has a differential effect on

which states that "[a] defined contribution plan satisfies the what an employee takes out -- but not what the employer puts

requirements of this paragraph if, under the plan, allocations in -- he has failed to state a valid claim for violation of §

to the employee's account are not ceased, and the rate at 1054(b)(1)(H)."). Although the plaintiffs point out that some

which amounts are allocated to the employee's account is not federal courts have disagreed with the Seventh Circuit's

reduced, because of the attainment of any age." 29 U.S.C. § Cooper decision, see, e.g., Parsons v. AT & T Pension Benefit

1054(b)(2)(A). The Cooper court reasoned that "[i]nterest is Plan, Civil Action No. 3:06CV552 (JCH), 2006 U.S. Dist.

not treated as age discrimination for a defined-contribution LEXIS 93135, at *2-3, 2006 WL 3826694, at *1 (D. Conn.

plan, and . . . it should not be treated as discriminatory for a Dec. 26, 2006); In re Citigroup Pension Plan ERISA Litig.,

defined-benefit plan either. The phrase 'benefit accrual' reads 470 F. Supp. 2d 323, 341-45 (S.D.N.Y. 2006); In re J.P.

most naturally as a reference to what the employer puts in Morgan Chase Cash Balance Litig., 460 F. Supp. 2d 479,

(either in absolute terms or as a rate of change), while the 488-90 (S.D.N.Y. 2006), [*13] Cooper is binding, of course,

defined phrase 'accrued benefit' refers to outputs after on this Court. See Greeno v. Daley, 414 F.3d 645, 656 (7th

compounding." 457 F.3d at 638-39. In other words,

2007 U.S. Dist. LEXIS 67704, *13

Cir. 2005); Taco Bell Corp. v. Continental Cas. Co., 388 F.3d 1069, 1077 (7th Cir. 2004); Burkybile v. Mitsubishi Motors IT IS SO ORDERED.

Corp., No. 04 C 4932, 2006 U.S. Dist. LEXIS 57892, 2006

WL 2325506, at *7 (N.D. Ill. Aug. 2, 2006).

DATED: September 13, 2007

The defendants' motion for judgment on the pleadings (Doc. s/ J. Phil Gilbert

224) is GRANTED and Counts VII, VIII, and IX of the

complaint in this cause are DISMISSED with prejudice.

DISTRICT JUDGE

Page 4 of 4

 
 Case 3:04-cv-00436-JPG-PMF Document 355 Filed 09/22/10 Page 1 of 1 Page ID #10417 Case:C0a9s-e3:60397-36D3o7cumDeonctu:m00e7n1t:1249268F4il9ed:F0i9le/d1:40/290/2120/20P1a0gesP:a1ges: 1
United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
September 14, 2010
Before
WILLIAM J. BAUER, Circuit Judge JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge

GRANT M. WALKER, individually and on]

behalf of all other similarly situated, et al.,] ]

Plaintiffs-Appellants,

]

]

No. 09-3637

v.

]

]

MONSANTO COMPANY PENSION

]

PLAN, et al.,

]

Defendants-Appellees.

]

Appeal from the United States District Court for the Southern District of Illinois.
No. 3:04-cv-00436
J. Phil Gilbert, Judge.

O R D E R
On consideration of the petition for rehearing and petition for rehearing en banc filed by the appellants in the above case on August 13, 2010, no judge in active service has requested a vote thereon, and all of the judges on the original panel have voted to deny the petition. The petition is therefore DENIED.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

GRANT M. WALKER, EDWARD ZERINGUE, and RICHARD W. DRAKE, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.

Case No. 3:04-cv-436-JPG-PMF
CONSOLIDATED CLASS ACTION

MONSANTO COMPANY PENSION PLAN and MONSANTO COMPANY,
Defendants. ______________________________________ GLYNN DAVIS, EUGENE FORNERIS, and JUANITA HAMMOND, individually and on behalf of all those similarly situated,

Consolidated with: Case No. 05-cv-736-JPG Case No. 06-cv-3-JPG Case No. 06-cv-139-JPG

Plaintiffs,

v.

SOLUTIA INC. EMPLOYEES= PENSION PLAN,

Defendant. ______________________________________ FRED DONALDSON, ALBERT WALTER III, MARY CLAWSON, SANDRA BELLON, AUDREY SOKOLOSKI, and CAROL THOMAS, individually and on behalf of all those similarly situated,

Plaintiffs,

v.

PHARMACIA CASH BALANCE PENSION PLAN, PHARMACIA CORPORATION, PHARMACIA & UPJOHN COMPANY, and PFIZER, INC.,

Defendants.

JUDGMENT

This matter having come before the Court, the issues having been heard, and the Court

having rendered a decision as to some matters and the parties having stipulated to others,
IT IS HEREBY ORDERED AND ADJUDGED that judgment on Counts I, II and III is entered in favor of defendants Monsanto Company Pension Plan and Monsanto Company and against plaintiffs Grant M. Walker, Edward Zeringue and Richard W. Drake, individually and on behalf of the Monsanto Defendants’ Age 55 Cut-Off Class, defined as:
All current vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts, all former vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000, and all former employees of DEKALB Genetic Corporation who participated at any time in the Monsanto Plan.
Excluded from the Monsanto Defendants’ Age 55 Cut-Off Class are participants who terminated employment with New Monsanto prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Monsanto Defendants’ Age 55 Cut-Off Class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of New Monsanto’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family;
IT IS FURTHER ORDERED AND ADJUDGED THAT judgment on Counts I, II and III is entered in favor of defendant Solutia Inc. Employees’ Pension Plan and against plaintiffs Glynn Davis, Eugene Forneris, and Juanita Hammond, individually and on behalf of the Solutia Plan’s Age 55 Cut-Off Class, defined as:
All current and former vested Solutia Plan participants (and their beneficiaries) with Prior Plan Accounts on or after January 1, 1997.
Excluded from the Solutia Plan’s Age 55 Cut-Off Class are participants who terminated employment with Solutia Inc. prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Solutia Plan’s Age 55 Cut-Off Class are the Defendant, members and staff of the Employee Benefits Plans Committee, any entity in which Defendant has a controlling interest or which has a controlling interest of Defendant; Defendant’s legal representatives (including employees of Solutia Inc.’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family;
IT IS FURTHER ORDERED AND ADJUDGED THAT judgment on Counts I, II and III is entered in favor of defendants Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Pharmacia & Upjohn Company and Pfizer, Inc. and against plaintiffs Fred Donaldson, Albert Walter III, Mary Clawson, Sandra Bellon, Audrey Sokoloski, and Carol Thomas, individually
2

and on behalf of the Pharmacia Defendants’ Age 55 Cut-Off Class, defined as:
All current and former vested Pharmacia Plan participants (and their beneficiaries) with Prior Plan Accounts, and all former vested Monsanto Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with old Monsanto Company or Pharmacia Corporation on or after January 1, 1997 and on or before December 31, 2001, other than former employees of DEKALB Genetic Corporation and other than persons who are members of the Solutia Plan’s Age 55 Cut-Off Class.
Excluded from the Pharmacia Defendants’ Age 55 Cut-Off Class are participants who terminated employment with Pharmacia Corporation prior to age 55 and who took their pension benefits in some form of annuity. Also excluded from the Pharmacia Defendants’ Age 55 Cut-Off Class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of the Law Departments of Pharmacia Corporation, Pharmacia & Upjohn Company, and Pfizer Inc.), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family;
IT IS FURTHER ORDERED AND ADJUDGED that Counts IV, V and VI are dismissed without prejudice;
IT IS FURTHER ORDERED AND ADJUDGED that Counts VII, VIII and IX are dismissed with prejudice;
IT IS FURTHER ORDERED AND ADJUDGED that in settlement of Count X defendants Monsanto Company Pension Plan and Monsanto Company shall pay $590,428.04 in compensation to the Monsanto Defendants’ Late Lump Sum Class, defined as:
All former Monsanto Company Pension Plan participants (and their beneficiaries) with Prior Plan Accounts who terminated employment with New Monsanto on or after September 1, 2000, and who took a lump sum distribution at least one complete calendar month after their Benefit Commencement Date; all current Monsanto Company Pension Plan participants (and their beneficiaries) with Prior Plan Accounts who have not yet taken a distribution of their pension benefits.
Excluded from the Monsanto Defendants’ Late Lump Sum Class are the Defendants, members and staff of the Employee Benefits Plans Committee, any entity in which Defendants have a controlling interest or which has a controlling interest of Defendants; Defendants’ legal representatives (including employees of Monsanto’s Law Department), assigns, and successors, and any judges assigned to this case and any member of such judge’s immediate family;
3

that defendants Monsanto Company Pension Plan and Monsanto Company shall pay $209,571.96 in attorney’s fees to Monsanto Defendants’ Late Lump Sum Class counsel; and that Count X is dismissed with prejudice, the parties to pay their own costs except as provided herein.

DATED: September 29, 2009

JUSTINE FLANAGAN, Acting Clerk

s/Donna Stull Deputy Clerk

Approved: s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

4

 
 Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 1 of 40
CJRA_D,CLOSED,FILE_CREATED,LEADTR,PROTO
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:04−cv−00436−JPG−PMF

Walker et al v. Monsanto Company Pension Plan, The et al Assigned to: Judge J. Phil Gilbert Referred to: Magistrate Judge Philip M. Frazier Related Cases: 3:05−cv−00736−JPG−PMF
3:06−cv−00003−JPG−PMF
3:06−cv−00139−JPG−PMF
Case in other court: USCA7, 09−03637 Cause: 28:1001 E.R.I.S.A.
Plaintiff

Date Filed: 06/23/2004 Date Terminated: 09/29/2009 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question

Grant Walker On behalf of himself and all others similarly situated

represented by Eric L. Dirks Stueve, Siegel et al. 460 Nichols Road Suite 200 Kansas City, MO 64112 816−714−7100 Fax: 816−714−7101 Email: dirks@stuevesiegel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman E. Siegel Stueve, Siegel et al. 460 Nichols Road Suite 200 Kansas City, MO 64112 816−714−7100 Fax: 816−714−7101 Email: siegel@stuevesiegel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Stueve Stueve, Siegel et al. 460 Nichols Road Suite 200 Kansas City, MO 64112 816−842−8600 Email: stueve@stuevesiegel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd M. McGuire Stueve, Siegel et al. 460 Nichols Road Suite 200 Kansas City, MO 64112 816−714−7100 Email: mcguire@stuevesiegel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel C. Girard Girard Gibbs LLP 601 California Street Suite 1400 San Francisco, CA 94108

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 2 of 40

415−981−4800 Email: dcg@girardgibbs.com TERMINATED: 10/27/2004

Jonathan Levine Girard Gibbs LLP 601 California Street Suite 1400 San Francisco, CA 94108 415−981−4800 Fax: 415−981−4846 TERMINATED: 10/27/2004

Matthew H. Armstrong Armstrong Law Firm LLC 8816 Manchester Road, No. 109 St. Louis, MO 63144 314−258−0212 Email: matt@mattarmstronglaw.com TERMINATED: 09/27/2005

Michael B. Marker Walton Telken Foster LLC 241 N. Main Street Edwardsville, IL 62025 618−307−9880 Fax: 618−307−9881 Email: mmarker@waltontelken.com ATTORNEY TO BE NOTICED

Rex Carr Walton Telken Foster, LLC 241 North Main Street Edwardsville, IL 62025 618−274−0434 Fax: 618−274−8369 Email: rcarr@rexcarr.com TERMINATED: 10/27/2009

Plaintiff
Edward Zeringue On behalf of himself and all others similarly situated

represented by Eric L. Dirks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Stueve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd M. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel C. Girard (See above for address) TERMINATED: 10/27/2004

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 3 of 40

Jonathan Levine (See above for address) TERMINATED: 10/27/2004

Matthew H. Armstrong (See above for address) TERMINATED: 09/27/2005

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Rex Carr (See above for address) TERMINATED: 10/27/2009

Plaintiff James E Mueller

represented by Eric L. Dirks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Stueve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd M. McGuire (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong (See above for address) TERMINATED: 09/27/2005

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Richard W. Drake On behalf of himself and all others similarly situated

represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman E. Siegel (See above for address) LEAD ATTORNEY

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Rex Carr (See above for address) TERMINATED: 10/27/2009

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 4 of 40

Plaintiff
Sandra Bellon Individually and on behalf of all those similarly situated

represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Rex Carr (See above for address) TERMINATED: 10/27/2009

Plaintiff
Mary Clawson Individually and on behalf of all those similarly situated

represented by Jerome J. Schlichter Schlichter, Bogard et al. − St. Louis 100 S. Fourth St. Suite 1200 St. Louis, MO 63102 314−621−6115 Fax: 314−621−7151 Email: jschlichter@uselaws.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Rex Carr (See above for address) TERMINATED: 10/27/2009

Plaintiff
Glynn Davis Individually and on behalf of all those similarly situated

represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

Rex Carr (See above for address) TERMINATED: 10/27/2009

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 5 of 40

Plaintiff Fred Donaldson Individually and on behalf of all those similarly situated
Plaintiff Eugene Forneris Individually and on behalf of all those similarly situated
Plaintiff Juanita Hammond Individually and on behalf of all those similarly situated

represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Eric L. Dirks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H. Armstrong (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 6 of 40

Plaintiff Audrey Sokoloski Individually and on behalf of all those similarly situated
Plaintiff Carol Thomas Individually and on behalf of all those similarly situated
Plaintiff Albert Walter, III Individually and on behalf of all those similarly situated
Plaintiff Eugene Brombolich

Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED
Rex Carr (See above for address) TERMINATED: 10/27/2009
represented by Jerome J. Schlichter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 7 of 40
Matthew H. Armstrong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norman E. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B. Marker (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Jeffrey Scharringhausen TERMINATED: 04/27/2006
Intervenor Plaintiff Doug Strahm TERMINATED: 04/27/2006

represented by Christopher F. Cueto Law Office of Christopher Cueto , LTD 7110 West Main Street Belleville, IL 62223 618−277−1554 Email: ccueto@cuetolaw.com TERMINATED: 04/27/2006
represented by Christopher F. Cueto (See above for address) TERMINATED: 04/27/2006

V. Defendant Monsanto Company Pension Plan, The

represented by Carol Connor Cohen Arent Fox LLC 1717 K Street, NW Washington, DC 20036 202−857−6000 Email: flowe.carol@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline T. English Arent Fox LLC 1717 K Street, NW Washington, DC 20036 202−857−6000 Email: english.caroline@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gretchen Dixon Arent Fox LLC 1717 K Street, NW Washington, DC 20036 202−775−5772 Email: dixon.gretchen@arentfox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
A. Courtney Cox Hart &Hart

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 8 of 40

Generally Admitted 602 West Public Square P.O. Box 937 Benton, IL 62812−0937 618−435−8123 TERMINATED: 10/02/2007

Bernard J. Ysursa , Sr. Cook, Ysursa et al. 12 West Lincoln Street Belleville, IL 62220 618−235−3500 Email: bjy@cooklawoffice.com TERMINATED: 06/02/2006

Bruce N. Cook Cook, Ysursa et al. 12 West Lincoln Street Belleville, IL 62220 618−235−3500 Email: bncook@cooklawoffice.com TERMINATED: 05/26/2006

Christopher J. Rillo Schiff, Hardin LLP − San Francisco One Market Plaza San Francisco, CA 94105 415−901−8700 Fax: 415−901−8701 Email: crillo@schiffhardin.com TERMINATED: 02/25/2005

Louis F. Bonacorsi Bryan Cave − St. Louis 211 North Broadway One Metropolitan Square, Suite 3600 St. Louis, MO 63102 314−259−2000 Email: lfbonacorsi@bryancave.com TERMINATED: 03/02/2005

Michael J. Nester Donovan Rose Nester PC 201 South Illinois Street Belleville, IL 62220 618−212−6500 Fax: 618−212−6501 Email: mnester@drnpc.com ATTORNEY TO BE NOTICED

Defendant Monsanto Company, The

represented by Carol Connor Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Caroline T. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gretchen Dixon (See above for address) LEAD ATTORNEY

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 9 of 40

ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Bernard J. Ysursa , Sr. (See above for address) TERMINATED: 06/02/2006

Bruce N. Cook (See above for address) TERMINATED: 05/26/2006

Christopher J. Rillo (See above for address) TERMINATED: 02/25/2005

Louis F. Bonacorsi (See above for address) TERMINATED: 03/02/2005

Michael J. Nester (See above for address) ATTORNEY TO BE NOTICED

Defendant Pfizer Inc

represented by Anne E. Rea Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: area@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: cmeyer@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: ekelly@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker Sidley Austin LLP Generally Admitted One S. Dearborn Chicago, IL 60603 312−853−6097 Email: mblocker@sidley.com

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 10 of 40

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: nwyland@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: pryan@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Fax: 312−853−7036 Email: rsandrock@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon Sidley Austin LLP − Chicago One South Dearborn Street Chicago, IL 60603 312−853−7000 Email: wconlon@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Dawn A. Sallerson Hinshaw &Culbertson − Belleville Generally Admitted 521 West Main Street Suite 300, P.O. Box 509 Belleville, IL 62222 618−277−2400 Email: dsallerson@hinshawlaw.com TERMINATED: 06/09/2009

Defendant Pharmacia and Upjohn Company

represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 11 of 40

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Dawn A. Sallerson (See above for address) TERMINATED: 06/09/2009

Defendant Pharmacia Cash Balance Pension Plan

represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 12 of 40

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Dawn A. Sallerson (See above for address) TERMINATED: 06/09/2009

Defendant Pharmacia Corporation

represented by Anne E. Rea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chris K. Meyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark B. Blocker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil H. Wyland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Priscilla E. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan M. Sandrock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon (See above for address)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 13 of 40

LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Dawn A. Sallerson (See above for address) TERMINATED: 06/09/2009

Defendant Solutia Inc Employees' Pension Plan

represented by Neal F. Perryman Lewis Rice LLC − St. Louis 600 Washington Avenue Suite 2500 St. Louis, MO 63101 314−444−7600 Email: Nperryman@lewisrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert J. Golterman Lewis Rice LLC − St. Louis 600 Washington Avenue Suite 2500 St. Louis, MO 63101 314−444−77745 Fax: 314−612−7745 Email: rgolterman@lewisrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas P. Berra , Jr. Lewis Rice LLC − St. Louis 600 Washington Avenue Suite 2500 St. Louis, MO 63101 314−444−7600 Email: tberra@lewisrice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

A. Courtney Cox (See above for address) TERMINATED: 10/02/2007

Theresa A. Phelps Rosenblum, Goldenhersh et al. 7733 Forsyth Boulevard 4th Floor St. Louis, MO 63105 314−726−6868 Fax: 314−726−6786 Email: tap@rgsz.com TERMINATED: 06/09/2006

Date Filed 06/23/2004

# Docket Text
1 COMPLAINT against The Monsanto Company and The Monsanto Company Pension Plan ($150.00 filing fee received; receipt number 300 98165) filed by Grant Walker and Edward Zeringue. (Attachments: # 1 Civil Cover Sheet # 2 Exhibit)(jmp) (Entered: 06/24/2004)

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06/23/2004 06/23/2004 06/23/2004 07/09/2004 07/09/2004 07/09/2004 07/14/2004 07/14/2004 07/15/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004 08/13/2004
08/13/2004 08/13/2004
08/13/2004 08/16/2004

2 Summons Issued as to Monsanto Company c/o General Counsel. (jmp) (Entered: 06/24/2004)
3 Summons Issued as to Monsanto Company. (jmp) (Entered: 06/24/2004)
4 Summons Issued as to Monsanto Company Pension Plan. (jmp ) (Entered: 06/24/2004)
5 SUMMONS Returned Executed by Grant Walker, Edward Zeringue. Monsanto Company, The served on 6/24/2004, answer due 7/14/2004. (Armstrong, Matthew) (Entered: 07/09/2004)
6 SUMMONS Returned Executed by Grant Walker, Edward Zeringue. Monsanto Company Pension Plan, The served on 6/24/2004, answer due 7/14/2004. (Armstrong, Matthew) (Entered: 07/09/2004)
7 SUMMONS Returned Executed by Grant Walker, Edward Zeringue. Monsanto Company, The served on 6/24/2004, answer due 7/14/2004. (Armstrong, Matthew) (Entered: 07/09/2004)
8 NOTICE of Appearance by Louis F. Bonacorsi on behalf of Monsanto Company Pension Plan, The, Monsanto Company, The (Bonacorsi, Louis) (Entered: 07/14/2004)
9 MOTION for Extension of Time to File Answer re 1 Complaint by Monsanto Company Pension Plan, The, Monsanto Company, The. (Bonacorsi, Louis) (Entered: 07/14/2004)
10 ORDER granting 9 Motion for Extension of Time to Answer. Signed by Judge David R Herndon on 7/15/04. (klh) (Entered: 07/15/2004)
11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 9/13/2004 (Attachments: # 1 Exhibit A)(Bonacorsi, Louis) (Entered: 08/13/2004)
12 MEMORANDUM in Support re 11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Bonacorsi, Louis) (Entered: 08/13/2004)
13 MOTION to Dismiss Monsanto Company by Monsanto Company, The. Responses due by 9/13/2004 (Attachments: # 1 Exhibit A)(Bonacorsi, Louis) (Entered: 08/13/2004)
14 MEMORANDUM in Support re 13 MOTION to Dismiss Monsanto Company filed by Monsanto Company, The. (Bonacorsi, Louis) (Entered: 08/13/2004)
15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri by Monsanto Company Pension Plan, The. Responses due by 9/13/2004 (Attachments: # 1 Exhibit A)(Bonacorsi, Louis) (Entered: 08/13/2004)
16 MEMORANDUM in Support re 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri filed by Monsanto Company Pension Plan, The. (Bonacorsi, Louis) (Entered: 08/13/2004)
17 MOTION to Dismiss for Failure to Join Necessary Parties by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 9/13/2004 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Bonacorsi, Louis) Additional attachment(s) added on 8/16/2004 (dlr, ). (Entered: 08/13/2004)
18 MEMORANDUM in Support re 17 MOTION to Dismiss for Failure to Join Necessary Parties filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Bonacorsi, Louis) (Entered: 08/13/2004)
19 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking Exhibit C to 17 Motion to Dismiss, filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (dlr ) (Entered: 08/16/2004)

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08/17/2004 08/23/2004 08/24/2004 09/10/2004
09/13/2004 09/13/2004 09/21/2004 09/22/2004
09/23/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 10/05/2004

20 EXHIBIT by Monsanto Company Pension Plan, The, Monsanto Company, The. Exhibit to 17 Motion to Dismiss, for Failure to Join Necessary Parties (Exhibit C). (Bonacorsi, Louis)Received Exhibit C in Clerk's Office on 8/17/2004 (trb, ). (Entered: 08/17/2004)
21 CJRA TRACK D assigned: Bench Trial set for presumptive month of April 2006 at 9:00 AM in East St. Louis Court House before Judge David R Herndon. (pab) (Entered: 08/23/2004)
22 NOTICE of Scheduling and Discovery Conference:Telephone Scheduling/Discovery Conference set for 9/22/2004 at 9:30 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 08/24/2004)
23 MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies, 13 MOTION to Dismiss Monsanto Company, 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri, 17 MOTION to Dismiss for Failure to Join Necessary Parties by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/10/2004)
24 ORDER granting 23 Motion for Extension of Time to File Response/Reply. Responses due by 9/23/2004. Signed by Judge David R Herndon on 9/13/04. (klh, ) (Entered: 09/13/2004)
25 NOTICE of Appearance by Michael J. Nester on behalf of all defendants (Nester, Michael) (Entered: 09/13/2004)
Set/Reset Hearings: Scheduling Conference reset for 10/15/2004 at 9:30 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 09/21/2004)
26 Second MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies, 13 MOTION to Dismiss Monsanto Company, 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri, 17 MOTION to Dismiss for Failure to Join Necessary Parties by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/22/2004)
27 ORDER granting 26 Motion for Extension of Time to File Response/Reply Responses due by 9/30/2004 . Signed by Judge David R Herndon on 9/23/04. (klh, ) (Entered: 09/23/2004)
28 MEMORANDUM in Opposition re 17 MOTION to Dismiss for Failure to Join Necessary Parties filed by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/30/2004)
29 MEMORANDUM in Opposition re 13 MOTION to Dismiss Monsanto Company filed by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/30/2004)
30 MEMORANDUM in Opposition re 11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/30/2004)
31 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri [Verified] by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/30/2004)
32 AFFIDAVIT re 31 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri [Verified] by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/30/2004)
34 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Caroline T. English for Monsanto Company Pension Plan, The and Monsanto Company, The. $100.00 fee paid,receipt number 300 100292 (dlr ) (Entered: 10/06/2004)

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10/05/2004 10/05/2004 10/06/2004 10/08/2004 10/08/2004
10/12/2004 10/12/2004 10/15/2004
10/18/2004 10/22/2004 10/22/2004
10/22/2004 10/22/2004 10/22/2004

35 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Christopher J. Rillo for Monsanto Company Pension Plan, The and Monsanto Company, The. $100.00 fee paid,receipt number 300 100292 (dlr ) (Entered: 10/06/2004)
36 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Carol C. Flowe for Monsanto Company Pension Plan, The and Monsanto Company, The. $100.00 fee paid,receipt number 300 100292 (dlr ) (Entered: 10/06/2004)
33 ORDER granting in part 31 Motion for Extension of Time to File Response/Reply Responses due by 10/22/2004. Signed by Judge David R Herndon on 10/5/04. (klh, ) (Entered: 10/06/2004)
Set/Reset Hearings: Scheduling Conference reset for 11/12/2004 at 9:30 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (amv) (Entered: 10/08/2004)
37 ENTRY STRICKEN AS ORDERED BY COURT−MEMORANDUM in Support re 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri Addendum filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) Modified on 10/12/2004 (dlr ). (Entered: 10/08/2004)
38 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 37 Memorandum in Support of Motion, filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (dlr ) (Entered: 10/12/2004)
39 SUPPLEMENT by Monsanto Company Pension Plan, The, Monsanto Company, The. Supplement to 15 Motion to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri Addendum. (Flowe, Carol) (Entered: 10/12/2004)
40 MOTION for Extension of Time to File Response/Reply as to 30 Memorandum in Opposition to Motion, 28 Memorandum in Opposition to Motion, 29 Memorandum in Opposition to Motion − Stipulated by Monsanto Company Pension Plan, The, Monsanto Company, The, Grant Walker, Edward Zeringue. (Flowe, Carol) (Entered: 10/15/2004)
41 ORDER granting 40 Motion for Extension of Time to File Response/Reply. Replies due by 10/22/2004. Signed by Judge David R Herndon on 10/18/04. (klh, ) (Entered: 10/18/2004)
42 REPLY to 30 Memorandum in Opposition to 11 Motion to Dismiss for Failure to Exhaust Administrative Remedies filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Flowe, Carol) Modified on 10/25/2004 (dlr ). (Entered: 10/22/2004)
43 REPLY to memorandum in opposition to 17 28 Motion to Dismiss, in Support of Motion To Dismiss For Failure To Join Necessary Parties filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Affidavit of Caroline Turner English)(Flowe, Carol) Additional attachment(s) added on 10/22/2004 (myz, ). Modified on 10/25/2004 (dlr ). (Entered: 10/22/2004)
44 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri by Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 10/22/2004)
45 ORDER granting 44 Motion for Extension of Time to File Response/Reply. Replies due by 10/29/2004.Signed by Judge David R Herndon on 10/22/04. (klh, ) (Entered: 10/22/2004)
46 NOTICE OF ERRORS AND/OR DEFICIENCIES re 43 Response, filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (myz ) (Entered: 10/22/2004)

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10/25/2004 10/25/2004 10/27/2004 10/27/2004 10/29/2004
10/29/2004
11/02/2004 11/04/2004 11/04/2004 11/10/2004 11/16/2004
12/03/2004
12/03/2004
12/03/2004

47 NOTICE OF ERRORS AND/OR DEFICIENCIES re 42 Response, filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (dlr ) (Entered: 10/25/2004)
48 NOTICE OF ERRORS AND/OR DEFICIENCIES re 43 Response, filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (dlr ) (Entered: 10/25/2004)
49 AMENDED COMPLAINT against all defendants, filed by Grant Walker, Edward Zeringue.(Marker, Michael) (Entered: 10/27/2004)
50 NOTICE by Grant Walker, Edward Zeringue NOTICE OF WITHDRAWAL (Girard, Daniel) (Entered: 10/27/2004)
51 MEMORANDUM in Opposition re 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri filed by Grant Walker, Edward Zeringue. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6)(Marker, Michael) (Entered: 10/29/2004)
52 ORDER DENYING AS MOOT 11 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Monsanto Company, The, Monsanto Company Pension Plan, The, 13 MOTION to Dismiss Monsanto Company filed by Monsanto Company, The, 15 MOTION to Dismiss for Improper Venue, or in the alternative, to Transfer Venue to the Eastern District of Missouri filed by Monsanto Company Pension Plan, The, 17 MOTION to Dismiss for Failure to Join Necessary Parties filed by Monsanto Company, The, Monsanto Company Pension Plan, The.. Signed by Judge David R Herndon on 10/29/04. (klh, ) (Entered: 10/29/2004)
53 Set/Reset Hearings: Telephone Scheduling Conference set for 11/12/2004 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Counsel for plaitiff shall initiate the conference call. The telephone number for chambers is 618−482−9106. (amv) (Entered: 11/02/2004)
54 MOTION for Extension of Time to File Response/Reply as to 49 Amended Complaint by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 11/04/2004)
55 ORDER granting 54 Motion for Extension of Time to File Response/Reply. Responses due by 12/3/2004. Signed by Judge David R Herndon on 11/4/04. (klh, ) (Entered: 11/04/2004)
56 Minute Entry for proceedings held before Judge Clifford J. Proud : Telephone Scheduling and Discovery Conference set 11/12/04 is canceled. The parties have submitted a joint report. (Court Reporter n/a.) (amv) (Entered: 11/10/2004)
57 SCHEDULING AND DISCOVERY ORDER Discovery due by 12/7/2005. Dispositive Motions due by 12/22/2005. Telephone Status Conference set for 2/14/2005 at 9:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. Signed by Judge Clifford J. Proud on 11/15/04. (Attachments: # 1 Joint Report)(amv) Modified on 1/14/2005 (dmw). (Entered: 11/16/2004)
58 MOTION to Dismiss For Failure to Exhaust Administrative Remedies by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 1/2/2005 (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)(Flowe, Carol) (Entered: 12/03/2004)
59 MOTION for Summary Judgment On Plaintiff James Mueller's Claim by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 1/2/2005 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Flowe, Carol) Modified on 12/7/2004 (dlr ). Manually filed Exhibit C received in Clerk's Office on 12/7/04. (Entered: 12/03/2004)
60 MOTION to Dismiss for Failure to Join Parties Needed for Just Adjudication by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 1/2/2005 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Flowe, Carol) (Entered: 12/03/2004)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 18 of 40

12/03/2004 12/03/2004 12/06/2004 12/16/2004 12/17/2004 12/29/2004
12/29/2004 01/07/2005 01/14/2005 01/18/2005
01/18/2005 01/18/2005 01/18/2005 02/04/2005

61 ENTRY STRICKEN AS ORDERED BY COURT− MOTION to Change Venue To The Eastern District Of Missouri by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A)(Flowe, Carol) Modified on 12/6/2004 (dlr ). (Entered: 12/03/2004)
62 MOTION to Change Venue to Eastern District of Missouri and Memorandum in Support by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit Exhibit A)(Flowe, Carol) (Entered: 12/03/2004)
63 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 61 Motion to Change Venue filed by Monsanto Company, The,, Monsanto Company Pension Plan, The,. See attached document for specifics (dlr ) (Entered: 12/06/2004)
64 MOTION for Extension of Time to File Response/Reply as to 62 MOTION to Change Venue to Eastern District of Missouri and Memorandum in Support [Unopposed] by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 12/16/2004)
65 ORDER granting 64 Motion for Extension of Time to File Response/Reply Responses due by 1/7/2005. Signed by Judge David R Herndon on 12/17/04. (klh, ) (Entered: 12/17/2004)
66 MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss For Failure to Exhaust Administrative Remedies, 59 MOTION for Summary Judgment On Plaintiff James Mueller's Claim, 60 MOTION to Dismiss for Failure to Join Parties Needed for Just Adjudication by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 12/29/2004)
67 ORDER granting 66 Motion for Extension of Time to File Response/Reply Responses due by 1/17/2005. Signed by Judge David R Herndon on 12/29/04. (klh, ) (Entered: 12/29/2004)
68 MEMORANDUM in Opposition re 62 MOTION to Change Venue to Eastern District of Missouri and Memorandum in Support filed by James E Mueller, Grant Walker, Edward Zeringue. (Attachments: # 1 Exhibit Group 1)(Marker, Michael) (Entered: 01/07/2005)
69 NOTICE of Hearing: Status Conference set for 2/14/2005 09:00 AM in East St. Louis Court House before Mag/Judge Clifford J. Proud. (NOTE: This setting was originally inadvertently entered in system as 2/15/05)(dmw) (Entered: 01/14/2005)
70 RESPONSE in Opposition re 59 MOTION for Summary Judgment On Plaintiff James Mueller's Claim filed by James E Mueller. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7)(Marker, Michael) (Entered: 01/18/2005)
71 RESPONSE in Opposition re 60 MOTION to Dismiss for Failure to Join Parties Needed for Just Adjudication filed by James E Mueller, Grant Walker, Edward Zeringue. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3)(Marker, Michael) (Entered: 01/18/2005)
72 RESPONSE in Opposition re 58 MOTION to Dismiss For Failure to Exhaust Administrative Remedies filed by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 01/18/2005)
73 AFFIDAVIT re 70 Response in Opposition to Motion,, 71 Response in Opposition to Motion, by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 01/18/2005)
74 Joint MOTION for Order to Compromising Defendants' Motion To Dismiss For Failure to Join Parties Needed For Just Adjudication by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Proposed Order −− stricken and deleted # 2 Certificate of Service)(English, Caroline) Additional attachment added and text modified on 2/10/2005 (car). (Entered: 02/04/2005)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 19 of 40

02/04/2005
02/08/2005
02/09/2005 02/10/2005
02/23/2005 02/24/2005 02/24/2005 02/25/2005 02/25/2005 02/25/2005 03/02/2005 03/14/2005 03/21/2005
09/27/2005 09/27/2005
09/27/2005 09/27/2005 09/28/2005 09/29/2005

75 MOTION to Withdraw 59 MOTION for Summary Judgment On Plaintiff James Mueller's Claim by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Proposed Order −− stricken and deleted # 2 Certificate of Service)(English, Caroline) Additional attachment added and text modified on 2/10/2005 (car). (Entered: 02/04/2005)
76 ORDER granting 75 Motion to Withdraw and withdrawing 59 Motion for Summary Judgment. Defendants' motion for summary judgment is withdrawn, without prejudice to Defendants' right to re−file the motion at a later date. Signed by Judge David R Herndon on 2/8/05. (klh, ) (Entered: 02/08/2005)
77 ORDER finding as moot 60 Motion to Dismiss, granting 74 Motion for Order. Signed by Judge David R Herndon on 2/09/05. (klh,) (Entered: 02/09/2005)
78 NOTICE OF ERRORS AND/OR DEFICIENCIES re 74 Motion for Order, filed by Monsanto Company, The, Monsanto Company Pension Plan, The, 75 Motion to Withdraw filed by Monsanto Company, The, Monsanto Company Pension Plan, The. See attached document for specifics (car) (Entered: 02/10/2005)
79 NOTICE: On February 23, 2005, the Court received two proposed orders via email. To ensure that the record is clear, the parties shall file motions seeking the relief requested. (klh) (Entered: 02/23/2005)
80 Joint MOTION for Protective Order by James E Mueller, Grant Walker, Edward Zeringue. (Armstrong, Matthew) (Entered: 02/24/2005)
81 Joint MOTION to Stay re 58 MOTION to Dismiss For Failure to Exhaust Administrative Remedies by James E Mueller, Grant Walker, Edward Zeringue. (Armstrong, Matthew) (Entered: 02/24/2005)
82 ORDER finding as moot 58 Motion to Dismiss, granting 81 Motion to Stay. Signed by Judge David R Herndon on 2/25/05. (klh, ) (Entered: 02/25/2005)
83 NOTICE by Monsanto Company Pension Plan, The, Monsanto Company, The Notice of Withdrawal of Counsel (Flowe, Carol) (Entered: 02/25/2005)
84 ORDER granting 80 Motion for Protective Order. Signed by Judge David R Herndon on 2/25/05. (klh, ) (Entered: 02/25/2005)
85 NOTICE by Monsanto Company Pension Plan, The, Monsanto Company, The of filing Notice of Withdrawal (Bonacorsi, Louis) (Entered: 03/02/2005)
86 ORDER denying 62 Motion to Change Venue. Signed by Judge David R Herndon on 3/14/05. (klh, ) (Entered: 03/14/2005)
87 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Gretchen Dixon for Monsanto Company Pension Plan, The and Monsanto Company, The. $100.00 fee paid,receipt number 300 103733 (trb, ) (Entered: 03/22/2005)
88 MOTION to Withdraw as Attorney by James E Mueller, Grant Walker, Edward Zeringue. (Armstrong, Matthew) (Entered: 09/27/2005)
Order: The Court GRANTS 88 MOTION to Withdraw as Attorney filed by Grant Walker, Edward Zeringue, James E Mueller. Attorney Matthew H. Armstrong terminated. Signed by Judge David R Herndon on 9/27/05. (klh) (Entered: 09/27/2005)
89 MOTION to Withdraw as counsel by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 09/27/2005)
90 NOTICE of Appearance by Michael B. Marker on behalf of all plaintiffs (Marker, Michael) (Entered: 09/27/2005)
91 ORDER granting 89 Motion to Withdraw. Marker Armstrong, LLP, is terminated as Plaintiffs' counsel. Signed by Judge David R Herndon on 9/28/05. (klh) (Entered: 09/28/2005)
92 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Norman E. Siegel for Edward Zeringue; James E Mueller and Grant Walker.

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 20 of 40

09/29/2005 09/29/2005 10/07/2005 10/12/2005 11/18/2005 11/21/2005 01/20/2006 01/20/2006
01/20/2006 01/23/2006 02/15/2006
02/15/2006 02/21/2006 03/08/2006 03/08/2006 03/10/2006 03/20/2006 03/20/2006

$100.00 fee paid,receipt number 300 107636 (dlr ) (Entered: 10/04/2005)
93 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Patrick J. Stueve for Edward Zeringue; James E Mueller and Grant Walker. $100.00 fee paid, receipt number 300 107636 (jmp) (Entered: 10/04/2005)
94 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Todd M. McGuire for Edward Zeringue; James E Mueller and Grant Walker. $100.00 fee paid, receipt number 300 107636 (jmp) (Entered: 10/04/2005)
95 NOTICE of Appearance by Norman E. Siegel on behalf of James E Mueller, Grant Walker, Edward Zeringue (Siegel, Norman) (Entered: 10/07/2005)
96 ORDER that Law Clerk Andrew Schlichter is isolated from working on the case at bar. Signed by Judge David R Herndon on 10/12/2005. (pab ) (Entered: 10/12/2005)
97 Joint MOTION to Lift Stay by James E Mueller, Grant Walker, Edward Zeringue. (Marker, Michael) (Entered: 11/18/2005)
98 ORDER granting 97 Motion to Lift Stay. Signed by Judge David R Herndon on 11/21/05. (klh) (Entered: 11/21/2005)
99 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Eric L. Dirks for James E Mueller and Grant Walker. $100.00 fee paid,receipt number 300 109648. (trb) (Entered: 01/20/2006)
100 AMENDED COMPLAINT against all defendants, filed by Richard W. Drake, Grant Walker, Edward Zeringue. (Attachments: # 1 Exhibit Exhibit A part 1# 2 Exhibit Exhibit A Part 2# 3 Exhibit Exhibit A part 3# 4 Exhibit Exhibit A Part 4# 5 Exhibit Exhibit A Part 5# 6 Exhibit Exhibit A Part 6# 7 Exhibit Exhibit A Part 7# 8 Exhibit Exhibit A Part 8# 9 Exhibit Exhibit A Part 1# 10 Exhibit Exhibit B Part 2)(Marker, Michael) (Entered: 01/20/2006)
101 MOTION for Leave to File Second Amended Class Action Complaint by Grant Walker, Richard W. Drake, Edward Zeringue. (Marker, Michael) (Entered: 01/20/2006)
102 NOTICE OF ERRORS AND/OR DEFICIENCIES re 100 Amended Complaint, filed by Grant Walker, Edward Zeringue, Richard W. Drake,. See attached document for specifics (dlr ) (Entered: 01/23/2006)
103 Joint MOTION for Extension of Time to File Answer re 100 Amended Complaint, by Monsanto Company Pension Plan, The, Monsanto Company, The, James E Mueller, Grant Walker, Richard W. Drake, Edward Zeringue. (Flowe, Carol) (Entered: 02/15/2006)
104 ORDER granting 103 Motion for Extension of Time to Answer. . Signed by Judge David R Herndon on 2/15/06. (klh, ) (Entered: 02/15/2006)
105 NOTICE by Grant Walker, Richard W. Drake, Edward Zeringue of intent to file revised Second Amended Complaint (Marker, Michael) (Entered: 02/21/2006)
106 ORDER granting 101 Motion for Leave to File Second Amended Class Action Complaint by March 10, 2006. Response due 3/24/06. Signed by Judge Clifford J. Proud on 3/8/06. (amv) (Entered: 03/08/2006)
107 SCHEDULING ORDER: Discovery due by 1/20/2007. Dispositive Motions due by 2/9/2007. Signed by Judge Clifford J. Proud on 3/8/06. (Attachments: # 1 Joint Report)(amv) (Entered: 03/08/2006)
108 AMENDED COMPLAINT (Second) against all defendants, filed by Grant Walker, Richard W. Drake, Edward Zeringue.(Marker, Michael) (Entered: 03/10/2006)
109 MOTION to Certify Class by Grant Walker, Richard W. Drake, Edward Zeringue. Responses due by 4/19/2006 (Marker, Michael) (Entered: 03/20/2006)
110 MEMORANDUM in Support re 109 MOTION to Certify Class filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Attachments: # 1 Exhibit 1# 2

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 21 of 40

03/21/2006 03/21/2006 03/22/2006 03/22/2006 03/22/2006 04/03/2006 04/11/2006
04/24/2006
04/24/2006 04/25/2006 04/25/2006 04/27/2006
05/03/2006 05/04/2006 05/08/2006

Exhibit 2# 3 Exhibit 3 (part 1)# 4 Exhibit 3 (part 2)# 5 Exhibit 3 (part 3)# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8)(Marker, Michael) (Entered: 03/20/2006)
111 NOTICE of Appearance by Bruce N. Cook on behalf of all defendants (Cook, Bruce) (Entered: 03/21/2006)
112 MOTION to Withdraw as Attorney by Monsanto Company Pension Plan, The, Monsanto Company, The. (Nester, Michael) (Entered: 03/21/2006)
113 ANSWER to Amended Complaint by Monsanto Company Pension Plan, The, Monsanto Company, The.(Flowe, Carol) (Entered: 03/22/2006)
114 NOTICE of Appearance by Bernard J. Ysursa, Sr on behalf of Monsanto Company Pension Plan, The, Monsanto Company, The (Ysursa, Bernard) (Entered: 03/22/2006)
115 ORDER GRANTING 112 Motion to Withdraw as Attorney. Attorney Michael J. Nester will no longer serve as representative counsel for defendants in this matter. Signed by Judge David R Herndon on 03/22/06. (seg) (Entered: 03/22/2006)
116 NOTICE of Appearance by Michael J. Nester on behalf of Monsanto Company Pension Plan, The, Monsanto Company, The (Nester, Michael) (Entered: 04/03/2006)
117 WITHDRAWN−−MOTION to Intervene For Purposes of Filing a Motion to Consolidate by Jeffrey Scharringhausen, Doug Strahm. (Attachments: # 1 Exhibit A − Motion to Consolidate Cases)(Cueto, Christopher) Modified on 5/1/2006 (dlr ). (Entered: 04/11/2006)
118 STRICKEN AS ORDERED BY COURT−−NOTICE by Jeffrey Scharringhausen, Doug Strahm re 117 MOTION to Intervene For Purposes of Filing a Motion to Consolidate Withdrawal of Petitioners' Motion to Intervene (Cueto, Christopher) Modified on 4/25/2006 (dlr ). (Entered: 04/24/2006)
119 MEMORANDUM in Opposition re 117 MOTION to Intervene For Purposes of Filing a Motion to Consolidate filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Siegel, Norman) (Entered: 04/24/2006)
120 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 118 Notice (Other), Notice (Other) filed by Jeffrey Scharringhausen,, Doug Strahm,. See attached document for specifics (dlr ) (Entered: 04/25/2006)
121 MOTION to Withdraw 117 MOTION to Intervene For Purposes of Filing a Motion to Consolidate by Jeffrey Scharringhausen, Doug Strahm. (Cueto, Christopher) (Entered: 04/25/2006)
122 ORDER GRANTING 121 Motion to Withdraw 117 MOTION to Intervene For Purposes of Filing a Motion to Consolidate filed by Jeffrey Scharringhausen, Doug Strahm. 117 Motion to Intervene is withdrawn, without prejudice to Intervening Petitioners' right to re−file the Motion, if necessary, at a later date. Signed by Judge David R Herndon on 04/27/2006. (seg) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/27/2006)
123 MOTION to Consolidate Cases by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Memorandum in Support# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D)(Flowe, Carol) (Entered: 05/03/2006)
124 NOTICE OF ERRORS AND/OR DEFICIENCIES re 123 Motion to Consolidate Cases filed by Monsanto Company, The,, Monsanto Company Pension Plan, The,. See attached document for specifics (dlr ) (Entered: 05/04/2006)
125 RESPONSE in Opposition re 109 MOTION to Certify Class filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C−1# 4 Exhibit C−2# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H)(Flowe, Carol) (Entered: 05/08/2006)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 22 of 40

05/17/2006 05/23/2006 05/25/2006 05/26/2006 05/26/2006 06/01/2006 06/01/2006 06/02/2006 07/20/2006
08/03/2006 08/04/2006
08/14/2006 09/01/2006 09/04/2006
09/19/2006

126 RESPONSE to Motion re 123 MOTION to Consolidate Cases filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Marker, Michael) (Entered: 05/17/2006)
127 REPLY to Response to Motion re 109 MOTION to Certify Class filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Siegel, Norman) (Entered: 05/23/2006)
128 MOTION to Withdraw as Attorney by Monsanto Company Pension Plan, The, Monsanto Company, The. (Cook, Bruce) (Entered: 05/25/2006)
129 ORDER GRANTING 128 Motion to Withdraw as Attorney. Attorney Bruce N. Cook is hereby terminated as representative counsel for defendants The Monsanto Company Pension Plan and The Monsanto Company in this case.Signed by Judge David R Herndon on 05/26/2006. (seg) (Entered: 05/26/2006)
130 MOTION for Hearing re 109 MOTION to Certify Class by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 05/26/2006)
131 MOTION to Withdraw as Attorney by Monsanto Company Pension Plan, The, Monsanto Company, The. (Ysursa, Bernard) (Entered: 06/01/2006)
132 RESPONSE to Motion re 130 MOTION for Hearing re 109 MOTION to Certify Class filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Siegel, Norman) (Entered: 06/01/2006)
133 ORDER GRANTING 131 Motion to Withdraw as Attorney. Attorney Bernard J. Ysursa, Sr., is hereby terminated from serving as representative counsel for defendants The Monsanto Company Pension Plan and The Monsanto Company. Signed by Judge David R Herndon on 06/02/2006. (seg) (Entered: 06/02/2006)
134 Amended MOTION to Consolidate Cases by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A − Schopp Declaration# 2 Exhibit B − Consolidation Chart# 3 Exhibit C − Marker Letter# 4 Exhibit D − Reimann Deposition# 5 Exhibit E − Schopp Depostion)(Flowe, Carol) (Entered: 07/20/2006)
135 MOTION for Extension of Time to File Response/Reply as to 134 Amended MOTION to Consolidate Cases by Grant Walker, Richard W. Drake, Edward Zeringue. (Marker, Michael) (Entered: 08/03/2006)
136 ORDER GRANTING 135 Plaintiffs' Motion for Extension of Time to File Response re 134 Monsanto Defendants' Amended Motion to Consolidate Cases. Responses due by 8/14/2006. Replies, if necessary, due by 8/21/2006. Signed by Judge David R Herndon on 08/04/2006. (seg)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/04/2006)
137 RESPONSE to Motion re 134 Amended MOTION to Consolidate Cases filed by Grant Walker, Richard W. Drake, Edward Zeringue. (Marker, Michael) (Entered: 08/14/2006)
138 ORDER GRANTING 134 Defendants' Amended Motion to Consolidate Cases and thereby FINDING AS MOOT 123 Defendants' Motion to Consolidate Cases. See text of Order for specific instructions and briefing schedule. Signed by Judge David R Herndon on 9/1/20006. (seg) (Entered: 09/01/2006)
139 AMENDED COMPLAINT CONSOLIDATED against Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Monsanto Company Pension Plan, The, Monsanto Company, The, filed by Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Grant Walker, Richard W. Drake, Edward Zeringue.(Armstrong, Matthew) (Entered: 09/04/2006)
140 Joint MOTION for Protective Order by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Armstrong, Matthew) (Entered: 09/19/2006)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 23 of 40

09/20/2006 09/21/2006 09/22/2006 09/22/2006
09/25/2006 09/25/2006 09/25/2006 09/25/2006 09/25/2006 09/25/2006 09/25/2006 09/27/2006
10/10/2006 10/19/2006

141 NOTICE of Appearance by Robert J. Golterman on behalf of Solutia Inc Employees' Pension Plan (Golterman, Robert) (Entered: 09/20/2006)
142 NOTICE of Appearance by Thomas P. Berra, Jr on behalf of Solutia Inc Employees' Pension Plan (Berra, Thomas) (Entered: 09/21/2006)
143 NOTICE of Appearance by Neal F. Perryman on behalf of Solutia Inc Employees' Pension Plan (Perryman, Neal) (Entered: 09/22/2006)
144 MOTION to Stay Counts VII, VIII and IX by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Attachments: # 1 Exhibit 1 − Declaration of Matthew H. Armstrong)(Armstrong, Matthew) (Entered: 09/22/2006)
145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party by Solutia Inc Employees' Pension Plan. Responses due by 10/30/2006 (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Golterman, Robert) (Entered: 09/25/2006)
146 MEMORANDUM in Support re 145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party filed by Solutia Inc Employees' Pension Plan. (Golterman, Robert) (Entered: 09/25/2006)
147 MOTION to Dismiss for Failure to Exhaust Administrative Remedies by Solutia Inc Employees' Pension Plan. Responses due by 10/30/2006 (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(Golterman, Robert) (Entered: 09/25/2006)
148 MEMORANDUM in Support re 147 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Solutia Inc Employees' Pension Plan. (Golterman, Robert) (Entered: 09/25/2006)
149 MOTION to Dismiss For Failure to Join A Party Needed for Just Adjudication by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 10/30/2006 (Flowe, Carol) (Entered: 09/25/2006)
150 MEMORANDUM in Support re 149 MOTION to Dismiss For Failure to Join A Party Needed for Just Adjudication filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A)(Flowe, Carol) (Entered: 09/25/2006)
151 ANSWER to Amended Complaint by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation.(Sallerson, Dawn) (Entered: 09/25/2006)
152 ORDER DENYING AS MOOT 109 Motion to Certify Class and 130 Motion for Hearing on Class Certification, in light of the consolidated class action complaint, which may lead to a different configuration of proposed classes. This Order also disposes of several motions pending in the Davis and Hammond cases, pre−consolidation. Specifically, in Davis, No. 05−cv−736, the Court DENIES AS MOOT (18) Motion for Class Certification, DENIES (21) Motion to Dismiss for Failure to Join a Necessary and Indispensible Party, and DENIES (23) Motion to Dismiss for Failure to Exhaust Administrative Remedies. Further, in Hammond, No. 06−cv−139, the Court DENIES AS MOOT (53) Join Motion for Stay, DENIES (10) Motion to Dismiss for Failure to Exhaust Administrative Remedies and DENIES (12) Motion to Dismiss for Failure to Join a Necessary and Indispensible Party.Signed by Judge David R Herndon on 09/27/2006. (seg) (Entered: 09/27/2006)
153 RESPONSE in Opposition re 144 MOTION to Stay Counts VII, VIII and IX filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 10/10/2006)
154 MOTION for Extension of Time of Deadlines in the Scheduling Order by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Eugene Brombolich, Edward Zeringue. (Armstrong, Matthew) (Entered: 10/19/2006)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 24 of 40

10/20/2006 10/20/2006 10/23/2006 10/25/2006 10/26/2006
10/30/2006
10/30/2006 10/30/2006
10/30/2006
11/01/2006 11/02/2006 11/03/2006

155 MOTION for Reconsideration re 152 Order on Motion to Certify Class, Order on Motion for Hearing,,,,,, Motion to Reconsider Order Regarding Indispensable Party Issue by Solutia Inc Employees' Pension Plan. (Golterman, Robert) (Entered: 10/20/2006)
156 MEMORANDUM in Support re 155 MOTION for Reconsideration re 152 Order on Motion to Certify Class, Order on Motion for Hearing,,,,,, Motion to Reconsider Order Regarding Indispensable Party Issue filed by Solutia Inc Employees' Pension Plan. (Golterman, Robert) (Entered: 10/20/2006)
157 ORDER granting 154 Motion for Extension of Time and the schedule controlling this case 138 is amended. See order for specifics. Signed by Judge Clifford J. Proud on 10/23/06. (myz ) (Entered: 10/23/2006)
158 ORDER GRANTING 144 Motion to Stay Counts VII, VIII and IX of Plaintiffs' Consolidated Class Action Complaint. Signed by Judge David R Herndon on 10/25/2006. (seg) (Entered: 10/25/2006)
159 RESPONSE in Opposition re 155 MOTION for Reconsideration re 152 Order on Motion to Certify Class, Order on Motion for Hearing,,,,,, Motion to Reconsider Order Regarding Indispensable Party Issue filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Armstrong, Matthew) (Entered: 10/26/2006)
160 MEMORANDUM in Opposition re 149 MOTION to Dismiss For Failure to Join A Party Needed for Just Adjudication, 145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Armstrong, Matthew) (Entered: 10/30/2006)
161 MEMORANDUM in Opposition re 147 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Armstrong, Matthew) (Entered: 10/30/2006)
162 REQUEST for Admissions to Pharmacia Corporation by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit 1 part 1# 2 Exhibit 1 part 2# 3 Exhibit 2 part 1# 4 Exhibit 2 part 2# 5 Exhibit 2 part 3# 6 Exhibit 2 part 4# 7 Exhibit 2 part 5# 8 Exhibit 3 part 1# 9 Exhibit 3 part 2# 10 Exhibit 3 part 3# 11 Exhibit 3 part 4# 12 Exhibit 3 part 5# 13 Exhibit 4)(Flowe, Carol) (Entered: 10/30/2006)
163 REQUEST for Admissions to Pharmacia Cash Balance Pension Plan by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit 1 part 1# 2 Exhibit 1 part 2# 3 Exhibit 2 part 1# 4 Exhibit 2 part 2# 5 Exhibit 2 part 3# 6 Exhibit 2 part 4# 7 Exhibit 2 part 5# 8 Exhibit 3 part 1# 9 Exhibit 3 part 2# 10 Exhibit 3 part 3# 11 Exhibit 3 part 4# 12 Exhibit 3 part 5# 13 Exhibit 4)(Flowe, Carol) (Entered: 10/30/2006)
164 REPLY to Response to Motion re 155 MOTION for Reconsideration re 152 Order on Motion to Certify Class, Order on Motion for Hearing,,,,,, Motion to Reconsider Order Regarding Indispensable Party Issue filed by Solutia Inc Employees' Pension Plan. (Golterman, Robert) (Entered: 11/01/2006)
165 REPLY to Response to Motion re 145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party, 149 MOTION to Dismiss For Failure to Join A Party Needed for Just Adjudication filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A# 2 Exhibit B Part 1# 3 Exhibit B Part 2)(Flowe, Carol) (Entered: 11/02/2006)
166 MOTION to Certify Class by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Siegel, Norman) (Entered: 11/03/2006)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 25 of 40

11/03/2006 11/03/2006 11/06/2006 11/07/2006 11/29/2006 11/29/2006 11/30/2006 12/04/2006 12/05/2006 12/18/2006
12/18/2006

167 MEMORANDUM in Support re 166 MOTION to Certify Class filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (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)(Siegel, Norman) (Entered: 11/03/2006)
168 REPLY to Response to Motion re 145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party filed by Solutia Inc Employees' Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit Exhibit B (Continuation))(Perryman, Neal) (Entered: 11/03/2006)
169 NOTICE OF ERRORS AND/OR DEFICIENCIES re 162 Request for Admissions, filed by Monsanto Company, Monsanto Company Pension Plan, 163 Request for Admissions, filed by Monsanto Company, Monsanto Company Pension Plan. See attached document for specifics. (trb ) (Entered: 11/06/2006)
170 NOTICE OF ERRORS AND/OR DEFICIENCIES re 168 Reply to Response to Motion, filed by Solutia Inc Employees' Pension Plan,. See attached document for specifics (trb ) (Entered: 11/07/2006)
171 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS re 163 by Pharmacia Cash Balance Pension Plan. (Sallerson, Dawn) (Entered: 11/29/2006)
172 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS re 162 by Pharmacia Corporation. (Sallerson, Dawn) (Entered: 11/29/2006)
173 MOTION for Extension of Time of Class Briefing Deadlines in the Scheduling Order by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Flowe, Carol) (Entered: 11/30/2006)
174 ORDER GRANTING 173 Motion for Extension of Time. Defendants' Response to the 166 Motion for Class Certification shall be due by December 18, 2006. Plaintiffs' Reply shall be due by January 12, 2007. Signed by Judge David R Herndon on 12/04/2006. (seg) (Entered: 12/04/2006)
175 ORDER denying 140 Motion for Protective Order. Signed by Judge Clifford J. Proud on 12/5/06. (amv) (Entered: 12/05/2006)
176 MEMORANDUM in Opposition re 166 MOTION to Certify Class filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Exhibit A − Deposition of Grant Walker# 2 Exhibit B − Deposition of Edward Zeringue# 3 Exhibit C − Deposition of Richard Drake# 4 Exhibit D − Walker Release# 5 Exhibit E − Zeringue Release# 6 Exhibit F − Declaration of Wilma K. Schopp# 7 Exhibit G − Employee Benefits and Compensation Allocation Agreement between Monsanto and Solutia# 8 Exhibit H Part 1 − Pharmacia Cash Balance Pension Plan# 9 Exhibit H Part 2 − Pharmacia Cash Balance Pension Plan# 10 Exhibit I Part 1 − Employee Benefits and Compensation Allocation Agreement between Pharmacia and Monsanto# 11ENTRY STRICKEN− (Exhibit I Part 2 − Employee Benefits and Compensation Allocation Agreement between Pharmacia and Monsanto) # 12 Exhibit J Part 1 − Monsanto Company Pension Plan# 13 Exhibit J Part 2 − Monsanto Company Pension Plan# 14 Exhibit J Part 3 − Monsanto Company Pension Plan# 15 Exhibit J Part 4 − Monsanto Company Pension Plan# 16 Exhibit K Part 1 − Separation Agreement by and between Pharmacia and Monsanto# 17 Exhibit K Part 2 − Separation Agreement by and between Pharmacia and Monsanto# 18 Exhibit L Part 1 − Monsanto Company Medical Benefits Plan# 19 Exhibit L Part 2 − Monsanto Company Medical Benefits Plan# 20 Exhibit L Part 3 − Monsanto Company Medical Benefits Plan# 21 Exhibit M − Deposition of Eugene J. Forneris)(Flowe, Carol) Modified on 12/20/2006 (trb, ). (Entered: 12/18/2006)
177 RESPONSE in Opposition re 166 MOTION to Certify Class filed by Solutia Inc Employees' Pension Plan. STRICKEN: (Attachments: # 1 Brief −− Part 2# 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18)(Golterman, Robert) Modified on 12/19/2006 (trb, ). (Entered: 12/18/2006)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 26 of 40

12/18/2006
12/18/2006
12/19/2006 12/20/2006 12/20/2006 01/03/2007 01/04/2007 01/04/2007 01/05/2007 01/05/2007
01/05/2007 01/05/2007 01/05/2007 01/09/2007

178 EXHIBIT by Solutia Inc Employees' Pension Plan. Exhibit to 177 Response in Opposition to Motion,. (Attachments: # 1 Opposition Brief − Part 2# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C − Part 1# 5 Exhibit C − Part 2# 6 Exhibit C − Part 3# 7 Exhibit C − Part 4# 8 Exhibit C − Part 5# 9 Exhibit C − Part 6# 10 Exhibit D# 11 Exhibit E − Part 1# 12 Exhibit E − Part 2# 13Entry Stricken: Exhibit F# 14Entry Stricken: Exhibit G# 15 Exhibit H − Part 1# 16 Exhibit H − Part 2# 17 Exhibit I − Part 1# 18 Exhibit I − Part 2)(Golterman, Robert) Additional attachment(s) added on 1/5/2007 (trb, ). Modified on 1/5/2007 (trb, ). (Entered: 12/18/2006)
179 RESPONSE to Motion re 166 MOTION to Certify Class filed by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Attachments: # 1 Exhibit A−Pharmacia Cash Balance Pension Plan# 2 Exhibit B−Separation Agreement# 3 Exhibit C−Employee Benefits)(Sallerson, Dawn) (Entered: 12/18/2006)
180 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking attachments to 177 Response in Opposition to Motion, filed by Solutia Inc Employees' Pension Plan,. See attached document for specifics (trb) (Entered: 12/19/2006)
181 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 176 Exhibit I part 2 to the Memorandum in Opposition to Motion, filed by Monsanto Company, The, Monsanto Company Pension Plan, The,. See attached document for specifics (trb ) (Entered: 12/20/2006)
182 EXHIBIT by Monsanto Company Pension Plan, The, Monsanto Company, The. Exhibit to 176 Memorandum in Opposition to Motion,,,,,, Exhibit I Part 2. (Flowe, Carol) (Entered: 12/20/2006)
183 ENTRY STRICKEN: MOTION for Leave to File Reply to the Pharmacia Defendants' Response to Plaintiffs' Motion For Class Certification by Monsanto Company Pension Plan, The, Monsanto Company, The. (Attachments: # 1 Attachment)(Flowe, Carol) Modified on 1/4/2007 (trb, ). (Entered: 01/03/2007)
184 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 183 Motion for Leave to File filed by Monsanto Company, Monsanto Company Pension Plan, See attached document for specifics (trb ) Modified on 1/4/2007 (trb, ). (Entered: 01/04/2007)
185 MOTION for Leave to File Reply to the Pharmacia Defendants' Response to Plaintiffs' Motion for Class Certification by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 01/04/2007)
186 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 178 Exhibit's F &G, filed by Solutia Inc Employees' Pension Plan. See attached document for specifics (trb ) (Entered: 01/05/2007)
187 ORDER GRANTING 185 the Monsanto Defendants' Motion for Leave to File Reply. The Monsanto Defendants have until 1/10/2007 to file said Reply. Signed by Judge David R Herndon on 01/05/2007. (seg)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 01/05/2007)
188 REPLY to Response to Motion re 166 MOTION to Certify Class filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 01/05/2007)
189 EXHIBIT by Solutia Inc Employees' Pension Plan. Exhibit to 178 Exhibit,, Replacement Exhibit F. (Golterman, Robert) (Entered: 01/05/2007)
190 EXHIBIT by Solutia Inc Employees' Pension Plan. Exhibit to 178 Exhibit,, Replacement Exhibit G (Parts 1 &2). (Attachments: # 1 Exhibit Exhibit G − Part 2)(Golterman, Robert) (Entered: 01/05/2007)
191 NOTICE by Monsanto Company Pension Plan, The, Monsanto Company, The (Flowe, Carol) (Entered: 01/09/2007)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 27 of 40

01/10/2007
01/11/2007 01/16/2007 01/17/2007 01/23/2007
02/21/2007 02/28/2007 02/28/2007 05/03/2007 05/08/2007 05/11/2007
05/14/2007 05/15/2007 05/16/2007 05/16/2007

192 MOTION for Extension of Time to File Response/Reply In Support of Their Consolidated Motion for Class Certification by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Marker, Michael) (Entered: 01/10/2007)
193 RESPONSE in Opposition re 192 MOTION for Extension of Time to File Response/Reply In Support of Their Consolidated Motion for Class Certification filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Flowe, Carol) (Entered: 01/11/2007)
194 ORDER GRANTING IN PART AND DENYING IN PART 192 Plaintiff's Motion for Extension of Time to File Reply re 166 Motion to Certify Class. Reply due by 1/23/2007. See text of Order for specific instruction. Signed by Judge David R Herndon on 01/16/2007. (seg) (Entered: 01/16/2007)
195 MOTION for Leave to File Response to the Monsanto Brief on Class Certification Issues by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Sallerson, Dawn) (Entered: 01/17/2007)
196 REPLY to Response to Motion re 166 MOTION to Certify Class filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Attachments: # 1 Exhibit 1−Susan Reimann Deposition# 2 Exhibit 2−Hammond Pension Election Authorization Form)(Marker, Michael) (Entered: 01/23/2007)
197 ORDER GRANTING 195 Pharmacia Defendants' Motion for Leave to File a Response to the Monsanto Brief on Class Certification. Brief shall be filed no later than five (5) days from the date of this Order. Signed by Judge David R Herndon on 02/21/2007. (seg) (Entered: 02/21/2007)
198 NOTICE of Hearing on Motion 166 MOTION to Certify Class: Motion Hearing set for 7/12/2007 at 9:30 AM in East St. Louis Court House before Judge David R Herndon. (pab )THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/28/2007)
199 RESPONSE to 188 Reply to Response to Motion for Class Certification filed by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Sallerson, Dawn) (Entered: 02/28/2007)
200 ORDER OF RECUSAL. Judge David R Herndon recused. Case reassigned to Judge William D. Stiehl for all further proceedings. Signed by Judge David R Herndon on 5/3/07. (pab ) (Entered: 05/03/2007)
201 ORDER OF RECUSAL. Judge William D. Stiehl recused. Case reassigned to Judge J. Phil Gilbert for all further proceedings. Signed by Judge William D. Stiehl on 05/08/07. (jkb) (Entered: 05/08/2007)
202 ELECTRONIC ORDER by Judge J. Phil Gilbert. Defendants failed to file corporate disclosure as required by F.R.Civ.P. 7.1. Requisite filings must be made on or before 6/1/2007. Failure to do so may result in the striking of all pleadings and motions. (tlp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/11/2007)
203 Corporate Disclosure Statement by Monsanto Company, The. (Flowe, Carol) (Entered: 05/14/2007)
204 STRICKEN PURSUANT TO DOC. 205 − NOTICE by Grant Walker NOTICE OF CHANGE OF FIRM NAME AND ADDRESS (Siegel, Norman) Modified on 5/16/2007 (bkl). (Entered: 05/15/2007)
205 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 204 Notice (Other) filed by Grant Walker. See attached document for specifics. (bkl) (Entered: 05/16/2007)
206 Corporate Disclosure Statement by Solutia Inc Employees' Pension Plan. (Perryman, Neal) (Entered: 05/16/2007)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 28 of 40

05/21/2007 05/23/2007 06/01/2007 06/08/2007
06/11/2007
06/11/2007 06/27/2007 07/20/2007 07/23/2007 07/25/2007 08/06/2007 08/06/2007 08/06/2007 08/06/2007 08/06/2007 08/06/2007

207 Corporate Disclosure Statement by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Sallerson, Dawn) (Entered: 05/21/2007)
208 ORDER that Magistrate referral is reassigned from Judge Proud to Judge Philip M. Frazier for all further proceedings. Signed by Judge J. Phil Gilbert on 5/23/07. (bkl) (Entered: 05/23/2007)
Set/Reset Hearings: Bench Trial set for 11/19/2007 at 09:00 AM in Benton Court House before Judge J. Phil Gilbert.,Final Pretrial Conference set for 11/2/2007 at 09:30 AM in Benton Court House before Judge J. Phil Gilbert. (by:kjr) (Entered: 06/01/2007)
209 STRICKEN PURSUANT TO DOC. 210 − STIPULATION Regarding Class Definitions by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Flowe, Carol) Modified on 6/11/2007 (bkl). (Entered: 06/08/2007)
210 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 209 Stipulation, filed by Solutia Inc Employees' Pension Plan, Pharmacia and Upjohn Company, The Monsanto Company Pension Plan, Pharmacia Corporation, Pfizer Inc, Pharmacia Cash Balance Pension Plan, The Monsanto Company. See attached document for specifics. (bkl) (Entered: 06/11/2007)
211 STIPULATION Regarding Class Definitions by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Flowe, Carol) (Entered: 06/11/2007)
212 MINUTE ORDER (kjr)In−person Status Conference set for 7/25/2007 01:30 PM in Benton Court House before Judge J. Phil Gilbert.(bkl) (Entered: 06/27/2007)
213 NOTICE of Appearance by A. Courtney Cox on behalf of Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Eugene Brombolich (Cox, A.) (Entered: 07/20/2007)
214 STATUS REPORT (Joint) by Grant Walker, Glynn Davis, Fred Donaldson, Juanita Hammond. (Armstrong, Matthew) (Entered: 07/23/2007)
215 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Status Conference held on 7/25/2007. Motion for Class Certification Hearing set for 9/12/2007 01:30 PM in Benton Court House before Judge J. Phil Gilbert. (Court Reporter Jane McCorkle.) (bkl) (Entered: 07/25/2007)
216 Plaintiffs' REQUEST for Admissions to the Monsanto Defendants by Grant Walker, Albert Walter, III, Edward Zeringue.(Armstrong, Matthew) (Entered: 08/06/2007)
217 Plaintiffs' REQUEST for Admissions to the Solutia Defendant by Glynn Davis, Eugene Forneris, Juanita Hammond.(Armstrong, Matthew) (Entered: 08/06/2007)
218 Plaintiffs' REQUEST for Admissions to the Pharmacia Defendants by Sandra Bellon, Fred Donaldson.(Armstrong, Matthew) (Entered: 08/06/2007)
219 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Solutia Inc Employees' Pension Plan. Related document: 217 Request for Admissions filed by Juanita Hammond, Eugene Forneris, Glynn Davis.(Perryman, Neal) (Entered: 08/06/2007)
220 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. Related document: 218 Request for Admissions filed by Fred Donaldson, Sandra Bellon.(Meyer, Chris) (Entered: 08/06/2007)
221 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Monsanto Company Pension Plan, The, Monsanto Company, The. Related document: 216 Request for Admissions filed by Albert Walter, III, Edward Zeringue, Grant

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 29 of 40

08/10/2007 08/10/2007 08/10/2007 08/13/2007 08/13/2007 08/13/2007
08/14/2007 08/14/2007 08/14/2007 08/15/2007 08/15/2007
08/27/2007
08/28/2007

Walker.(Cohen, Carol) (Entered: 08/06/2007)
222 STRICKEN PURSUANT TO Doc. 223 − Joint MOTION for Judgment on the Pleadings And/or To Dismiss Counts VII, VIII and IX by Solutia Inc Employees' Pension Plan.Responses due by 9/12/2007 (Perryman, Neal) Modified on 8/10/2007 (bkl). (Entered: 08/10/2007)
223 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 222 Motion for Judgment on the Pleadings filed by Solutia Inc Employees' Pension Plan. See attached document for specifics. (bkl) (Entered: 08/10/2007)
224 Joint MOTION for Judgment on the Pleadings And/or To Dismiss Counts VII, VIII and IX by Solutia Inc Employees' Pension Plan.Responses due by 9/12/2007 (Perryman, Neal) (Entered: 08/10/2007)
225 MEMORANDUM in Opposition re 224 Joint MOTION for Judgment on the Pleadings And/or To Dismiss Counts VII, VIII and IX filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Armstrong, Matthew) (Entered: 08/13/2007)
226 MOTION for Protective Order − Amended by Monsanto Company Pension Plan, The, Monsanto Company, The, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Cohen, Carol) (Entered: 08/13/2007)
227 MEMORANDUM in Support re 226 MOTION for Protective Order − Amended filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Attachments: # 1 Exhibit 1 Devine Declaration# 2 Exhibit 2 − Savis Declaration# 3 Exhibit 3 − Misertino Declaration# 4 Exhibit 4 − Wooton Declaration)(Cohen, Carol) (Entered: 08/13/2007)
228 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS (Amended Responses) by Solutia Inc Employees' Pension Plan. Related document: 217 Request for Admissions filed by Juanita Hammond, Eugene Forneris, Glynn Davis.(Golterman, Robert) (Entered: 08/14/2007)
229 RESPONSE to 216 Request for Admissions (Amended Responses) filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Cohen, Carol) (Entered: 08/14/2007)
230 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS (Amended Responses) by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. Related document: 218 Request for Admissions filed by Fred Donaldson, Sandra Bellon.(Meyer, Chris) (Entered: 08/14/2007)
231 RESPONSE to Motion re 226 MOTION for Protective Order − Amended filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Armstrong, Matthew) (Entered: 08/15/2007)
232 REPLY to Response to Motion re 226 MOTION for Protective Order − Amended filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Attachments: # 1 Exhibit A − e−mail dated August 9, 2007# 2 Exhibit B − e−mail dated August 10, 2007# 3 Exhibit C − e−mail dated August 14, 2007)(Cohen, Carol) (Entered: 08/15/2007)
233 NOTICE of Hearing:Discovery Dispute Conference set for 8/29/2007 11:00 AM via telephone before Judge Philip M. Frazier. Counsel for The Monsanto Company Pension Plan and The Monsanto Company shall place the conference call. The telephone number for the Court is 618−439−7750.(krm) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/27/2007)
234 MINUTE ORDER (NGJ/kjr) by Judge J. Phil Gilbert resetting Class Certification Hearing (Status Conference) for 9/12/2007 09:30 AM in Benton Court House

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 30 of 40

08/29/2007
08/29/2007 09/03/2007 09/03/2007 09/03/2007 09/04/2007 09/12/2007
09/13/2007
09/17/2007 09/17/2007 09/27/2007 09/27/2007 09/27/2007 10/02/2007

before Judge J. Phil Gilbert. (vlm, ) (Entered: 08/28/2007)
235 MEMORANDUM AND OPINION denying 145 MOTION to Dismiss for Failure to Join a Necessary and Indispensable Party filed by Solutia Inc Employees' Pension Plan, denying 147 MOTION to Dismiss for Failure to Exhaust Administrative Remedies filed by Solutia Inc Employees' Pension Plan, denying 155 MOTION for Reconsideration re 152 Order on Motion to Certify Class, Order on Motion for Hearing Motion to Reconsider Order Regarding Indispensable Party Issue filed by Solutia Inc Employees' Pension Plan and denying 149 MOTION to Dismiss For Failure to Join A Party Needed for Just Adjudication filed by Monsanto Company Pension Plan and The Monsanto Company. Signed by Judge J. Phil Gilbert on August 29, 2007. (vlm, ) (Entered: 08/29/2007)
239 Minute Entry for proceedings held before Judge Philip M. Frazier: Discovery Dispute Conference held on 8/29/2007. Protective Order to be entered. (Court Reporter None.) (krm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/04/2007)
236 Plaintiffs' Second REQUEST for Admissions Directed to the Monsanto Defendants by Grant Walker, Richard W. Drake, Edward Zeringue.(Armstrong, Matthew) (Entered: 09/03/2007)
237 Plaintiffs' Second REQUEST for Admissions Directed to Solutia Inc. Employees' Pension Plan by Glynn Davis, Juanita Hammond.(Armstrong, Matthew) (Entered: 09/03/2007)
238 Plaintiffs' Second REQUEST for Admissions Directed to the Pharmacia Defendants by Fred Donaldson.(Armstrong, Matthew) (Entered: 09/03/2007)
240 AMENDED PROTECTIVE ORDER. Signed by Judge Philip M. Frazier on 8/29/2007. (krm) (Entered: 09/04/2007)
241 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Matter called for Motion for Class Certification on 9/12/2007. Mr. Siegel advises Court parties have reached an agreement as to the motion. Plaintiff will submit an agreed Order within 7 days to the Court. Court Orders parties to work on a discovery schedule and summary judgment motions and agreed Order. (Court Reporter Jane McCorkle.) (bkl) (Entered: 09/12/2007)
242 MEMORANDUM AND OPINION, Granting 224 Joint MOTION for Judgment on the Pleadings And/or To Dismiss Counts VII, VIII and IX filed by Solutia Inc Employees' Pension Plan. Counts VII, VIII and IX of the complaint are Dismissed with prejudice. Signed by Judge J. Phil Gilbert on 9/13/07. (bkl) (Entered: 09/13/2007)
243 ANSWER to Amended Complaint (Consolidated) by Monsanto Company Pension Plan, The, Monsanto Company, The.(Cohen, Carol) (Entered: 09/17/2007)
244 ANSWER to Amended Complaint by Solutia Inc Employees' Pension Plan.(Golterman, Robert) (Entered: 09/17/2007)
245 STIPULATION of Dismissal Without Prejudice of Counts IV−VI by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Armstrong, Matthew) (Entered: 09/27/2007)
246 MOTION to Withdraw as Attorney by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Eugene Brombolich. (Cox, A.) (Entered: 09/27/2007)
247 TRANSCRIPT of Class Certification held on 9/12/07 before Judge J. Phil Gilbert. Court Reporter: Jane McCorkle. Modified on 1/30/2017 (lmt). (Entered: 09/28/2007)
248 ORDER GRANTING 246 Motion to Withdraw as Attorney for The Monsanto Company Pension Plan; The Monsanto Company; The Pfizer, Inc.; Pharmacia and Upjohn Company; Pharmacia Cash Balance Pension Plan; Pharmacia Corporation;

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 31 of 40

10/09/2007
10/09/2007 10/09/2007
10/18/2007 10/18/2007 10/18/2007 10/30/2007 11/06/2007 11/06/2007 11/06/2007 11/20/2007
11/20/2007
11/20/2007
11/27/2007 11/27/2007

Solutia Inc. Employees' Pension Plan, and Eugene Brombolich. Attorney A. Courtney Cox terminated. Signed by Judge Philip M. Frazier on 10/2/07. (mta)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/02/2007)
249 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. Related document: 238 Request for Admissions filed by Fred Donaldson.(Meyer, Chris) (Entered: 10/09/2007)
250 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Solutia Inc Employees' Pension Plan. Related document: 237 Request for Admissions filed by Juanita Hammond, Glynn Davis.(Golterman, Robert) (Entered: 10/09/2007)
251 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS Directed to the Monsanto Defendants by Monsanto Company Pension Plan, The, Monsanto Company, The. Related document: 236 Request for Admissions filed by Edward Zeringue, Grant Walker, Richard W. Drake.(Cohen, Carol) (Entered: 10/09/2007)
252 Plaintiffs' Third REQUEST for Admissions Directed to the Monsanto Defendants by Grant Walker, Richard W. Drake, Edward Zeringue.(Armstrong, Matthew) (Entered: 10/18/2007)
253 Plaintiffs' Third REQUEST for Admissions Directed to the Solutia Defendant by Glynn Davis, Eugene Forneris, Juanita Hammond.(Armstrong, Matthew) (Entered: 10/18/2007)
254 Plaintiffs' Third REQUEST for Admissions Directed to the Pharmacia Defendants by Fred Donaldson.(Armstrong, Matthew) (Entered: 10/18/2007)
255 MINUTE ORDER (kjr). Final pretrial setting of 11/2/07 and trial setting of 11/19/07 stricken. (bkl) (Entered: 10/30/2007)
256 Fourth REQUEST for Admissions Directed to Pharmacia Defendants by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue.(Armstrong, Matthew) (Entered: 11/06/2007)
257 Fourth REQUEST for Admissions Directed to Monsanto Defendants by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue.(Armstrong, Matthew) (Entered: 11/06/2007)
258 Fourth REQUEST for Admissions Directed to Solutia Defendant by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue.(Armstrong, Matthew) (Entered: 11/06/2007)
259 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS − Third by Monsanto Company Pension Plan, The, Monsanto Company, The. Related document: 252 Request for Admissions filed by Edward Zeringue, Grant Walker, Richard W. Drake.(Cohen, Carol) (Entered: 11/20/2007)
260 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS by Solutia Inc Employees' Pension Plan. Related document: 253 Request for Admissions filed by Juanita Hammond, Eugene Forneris, Glynn Davis.(Golterman, Robert) (Entered: 11/20/2007)
261 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS Third by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. Related document: 254 Request for Admissions filed by Fred Donaldson.(Meyer, Chris) (Entered: 11/20/2007)
262 NOTICE by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue of Proof of Service of Subpoena on Michael D. McGilligan (Armstrong, Matthew) (Entered: 11/27/2007)
263 NOTICE by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue of Proof of Service of Subpoena on Herschel V. Sellers (Armstrong, Matthew) (Entered: 11/27/2007)

Case: 3:04-cv-00436-JPG-PMF As of: 03/20/2017 12:09 AM CDT 32 of 40

11/27/2007 12/10/2007 12/10/2007 12/10/2007 01/10/2008 01/22/2008 02/01/2008 02/04/2008 02/07/2008 05/15/2008 05/22/2008 05/27/2008
05/28/2008

264 NOTICE by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue of Proof of Service of Subpoena on Nicholas L. Reding (Armstrong, Matthew) (Entered: 11/27/2007)
265 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS − Fourth by Monsanto Company Pension Plan, The, Monsanto Company, The. Related document: 257 Request for Admissions filed by Juanita Hammond, Edward Zeringue, Grant Walker, Fred Donaldson, Richard W. Drake, Glynn Davis.(Cohen, Carol) (Entered: 12/10/2007)
266 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS Fourth by Solutia Inc Employees' Pension Plan. Related document: 258 Request for Admissions filed by Juanita Hammond, Edward Zeringue, Grant Walker, Fred Donaldson, Richard W. Drake, Glynn Davis.(Golterman, Robert) (Entered: 12/10/2007)
267 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS Fourth by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. Related document: 256 Request for Admissions filed by Juanita Hammond, Edward Zeringue, Grant Walker, Fred Donaldson, Richard W. Drake, Glynn Davis.(Meyer, Chris) (Entered: 12/10/2007)
268 REVISED SCHEDULING AND DISCOVERY ORDER: Revised Joint Proposed Scheduling Order submitted on 12/20/07 is adopted. Discovery to be completed by 5/13/2008. Dispositve Motions to be filed by by 3/14/2008. Bench Trial is set for 10/27/2008 9:00 AM before Judge J. Phil Gilbert. Signed by Judge Philip M. Frazier on 1/10/2008. (krm) (Entered: 01/10/2008)
269 Joint MOTION to Strike Plaintiffs' Expert Reports, Joint MOTION Motion for Expedited Briefing by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Meyer, Chris) (Entered: 01/22/2008)
270 MEMORANDUM in Opposition re 269 Joint MOTION to Strike Plaintiffs' Expert ReportsJoint MOTION Motion for Expedited Briefing filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Siegel, Norman) (Entered: 02/01/2008)
271 REPLY to Response to Motion re 269 Joint MOTION to Strike Plaintiffs' Expert ReportsJoint MOTION Motion for Expedited Briefing filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Meyer, Chris) (Entered: 02/04/2008)
272 ORDER denying 269 Motion to Strike Expert Reports and for Expedited Briefing. Signed by Magistrate Judge Philip M. Frazier on 2/7/08. (mta) (Entered: 02/07/2008)
273 Joint MOTION for Protective Order Second Amended by Grant Walker, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Armstrong, Matthew) (Entered: 05/15/2008)
276 ORDER Granting 166 MOTION to Certify Class filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Sandra Bellon, Richard W. Drake. See order for details.. Signed by Judge J. Phil Gilbert on 5/22/08. (bkl) (Entered: 05/28/2008)
274 Eugene Brombolich, plaintiff in Case No. 05−736, had incorrectly been listed on the docket sheet as a defendant since that case was joined in the consolidation of cases herein On 5/27/08, Party Brombolich modified to correctly reflect party plaintiff status. Attorney Cox, counsel for defendants, had been incorrectly designated as counsel for Brombolich and has been removed as this party's counsel. (bkl) (Entered: 05/27/2008)
275 ORDER GRANTING 273 Joint Motion for a Second Amended Protective Order and Protective Order (see Order for specifics). Signed by Magistrate Judge Philip M. Frazier on 5/28/08. (mta) (Entered: 05/28/2008)

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06/03/2008 06/06/2008 06/26/2008 07/09/2008 07/10/2008 07/11/2008
07/11/2008 07/11/2008

277 Joint MOTION for Extension of Time Joint Motion to Amend Scheduling Order by Monsanto Company Pension Plan, The, Monsanto Company, The, Grant Walker, Glynn Davis, Fred Donaldson, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Edward Zeringue. (Meyer, Chris) (Entered: 06/03/2008)
278 ORDER granting 277 Joint Motion to Amend Scheduling Order. Scheduling Order amended as follows: Deadline for completion of all act discovery is 6/6/2008. Dispositive motions to be filed by 6/27/08 and limited to 50 pages; responses due 8/8/08 and limited to 50 pages, replies, if any, in support of dispositive motions due 8/29/08 and limited to 25 pages. Signed by Magistrate Judge Philip M. Frazier on 6/6/2008. (krm) (Entered: 06/06/2008)
279 Joint MOTION to Amend/Correct Scheduling Order by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Armstrong, Matthew) (Entered: 06/26/2008)
280 ORDER DENYING 279 the parties' Joint Motion to Amend Scheduling Order. Signed by Magistrate Judge Philip M. Frazier on 7/9/08. (mta) (Entered: 07/09/2008)
281 Joint MOTION to Amend/Correct Scheduling Order, or in the alternative, Motion for Leave to File Out of Time by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Armstrong, Matthew) (Entered: 07/10/2008)
282 MOTION for Summary Judgment on Count X of the Consolidated Complaint by Monsanto Company Pension Plan, The, Monsanto Company, The. Responses due by 8/13/2008 (Attachments: # 1 Exhibit 1 − Rule 56 Statement of Undisputed Material Facts in Support of Monsanto Defendants Motion for Summary Judgment on Count X of the Consolidated Complaint, # 2 Exhibit 1A − Schopp Declaration, # 3 Exhibit 1B−Part 1 − AR Vol. 1 TAB 2 A−I, # 4 Exhibit 1B − Part 2 − AR Vol. 1 TAB 2 J− P, 3−4, # 5 Exhibit 1B − Part 3 − AR Vol. 1 TAB 5−7, # 6 Exhibit 1B − Part 4 − AR Vol. 1−2 TAB 8−13, # 7 Exhibit 1B − Part 5 − AR Vol. 2 TAB 14 A, # 8 Exhibit 1B − Part 6 − AR Vol. 2 TAB 14 B, # 9 Exhibit 1B − Part 7 − AR Vol. 2 TAB 14 C, # 10 Exhibit 1B − Part 8 − AR Vol. 2 TAB 14 D, # 11 Exhibit 1B − Part 9 − AR Vol. 2 TAB 14 E, # 12 Exhibit 1B − Part 10 − AR Vol. 3 TAB 14 F, # 13 Exhibit 1B − Part 11 − AR Vol. 3 TAB 14 G, # 14 Exhibit 1B − Part 12 − AR Vol. 3 TAB 14 H−I, # 15 Exhibit 1B − Part 13 − AR Vol. 4 TAB 14 J−K, # 16 Exhibit 1B − Part 14 − AR Vol. 4 TAB 14 L, # 17 Exhibit 1B − Part 15 − AR Vol. 4 TAB 14 M, # 18 Exhibit 1B − Part 16 − AR Vol. 5 TAB 14 N−O, # 19 Exhibit 1B − Part 17 − AR Vol. 5 TAB 14 P−Q, # 20 Exhibit 1B − Part 18 − AR Vol. 6 TAB 14 R−V, 15−25, # 21 Exhibit 2 − Proposed Order)(Cohen, Carol) (Proposed Order deleted by Clerk's Office − Modified on 7/14/2008 (bkl). (Attachments 3−20 deleted by Clerk's Office (See Doc 289) − Modified on 7/14/2008 (djs). (Entered: 07/11/2008)
283 MEMORANDUM in Support re 282 MOTION for Summary Judgment on Count X of the Consolidated Complaint filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Cohen, Carol) (Entered: 07/11/2008)
284 Joint MOTION for Summary Judgment As To Counts I − III by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. Responses due by 8/13/2008 (Attachments: # 1 Exhibit 1 − Rule 56 Statement of Material Facts, # 2 Exhibit 1A − Schopp Declaration, # 3 Exhibit 1B − IRS Determination Letter, # 4 Exhibit 1C − Reagan Declaration, # 5 Exhibit 1D − Part 1 − 1997 Monsanto Cash Balance Pension Plan, # 6 Exhibit 1D − Part 2 − 1997 Monsanto Cash Balance Pension Plan, # 7 Exhibit 1E − 1997 Monsanto Summary Plan Description, # 8 Exhibit 1F − McGilligan Letter, # 9 Exhibit 1G − HR Leadership Team Presentation, # 10 Exhibit 1H − Presentation, # 11 Exhibit 1I − HR Training Presentation, # 12 Exhibit 1J − Benefits Bulletin (Aug. 1996), # 13 Exhibit 1K − Benefits Bulletin (Sept. 1996), # 14 Exhibit 1L − Benefits Bulletin (Special Edition), # 15 Exhibit 1M − Towers Perrin Presentation, # 16 Exhibit 1N − Poulin Deposition Transcript, # 17 Exhibit 1O − Turpin Deposition Transcript, # 18 Exhibit 1P − Poulin Supplemental Deposition Transcript, # 19 Exhibit 1Q − Turpin Supplemental Deposition

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07/11/2008 07/11/2008 07/11/2008
07/14/2008 07/14/2008 07/14/2008
07/15/2008 08/04/2008

Transcript, # 20 Exhibit 1R − Bellon Deposition Transcript, # 21 Exhibit 1S − Davis Deposition Transcript, # 22 Exhibit 1T − Donaldson Deposition Transcript, # 23 Exhibit 1U − Drake Deposition Transcript, # 24 Exhibit 1V − Forneris Deposition Transcript, # 25 Exhibit 1W − Thomas Deposition Transcript, # 26 Exhibit 1X − Walker Deposition Transcript, # 27 Exhibit 1Y − Walter Deposition Transcript, # 28 Exhibit 1Z − Zeringue Deposition Transcript, # 29 Exhibit 1AA − McGilligan Deposition Transcript, # 30 Exhibit 2 − Proposed Order)(Cohen, Carol) (Proposed Order deleted by Clerk's Office − Modified on 7/14/2008 (bkl, ). (Entered: 07/11/2008)
285 MOTION for Summary Judgment by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. Responses due by 8/13/2008 (Siegel, Norman) (Entered: 07/11/2008)
286 MEMORANDUM in Support re 284 Joint MOTION for Summary Judgment As To Counts I − III filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Cohen, Carol) (Entered: 07/11/2008)
287 MEMORANDUM in Support re 285 MOTION for Summary Judgment filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Attachments: # 1 Exhibit 1−A (Part 1), # 2 Exhibit 1−A (Part 2), # 3 Exhibit 1−B (Part 1), # 4 Exhibit 1−B (Part 2), # 5 Exhibit 1−C (Part 1), # 6 Exhibit 1−C (Part 2), # 7 Exhibit 1−D (Part 1), # 8 Exhibit 1−D (Part 2), # 9 Exhibit 2−A, # 10 Exhibit 2−B (Part 1), # 11 Exhibit 2−B (Part 2), # 12 Exhibit 2−C, # 13 Exhibit 3−A (Part 1), # 14 Exhibit 3−A (Part 2), # 15 Exhibit 4, # 16 Exhibit 5, # 17 Exhibit 6, # 18 Exhibit 7, # 19 Exhibit 8, # 20 Exhibit 9)(Siegel, Norman) (Entered: 07/11/2008)
288 NOTICE OF ERRORS AND/OR DEFICIENCIES re 282 Motion for Summary Judgment, filed by The Monsanto Company Pension Plan, The Monsanto Company, 284 Motion for Summary Judgment, filed by Solutia Inc Employees' Pension Plan, Pharmacia and Upjohn Company, The Monsanto Company Pension Plan, Pharmacia Corporation, Pfizer Inc, Pharmacia Cash Balance Pension Plan, The Monsanto Company. See attached document for specifics. (bkl) (Entered: 07/14/2008)
289 NOTICE OF ERRORS AND/OR DEFICIENCIES re 282 Motion for Summary Judgment filed by Monsanto Company Pension Plan, Monsanto Company. See attached document for specifics (djs) (Entered: 07/14/2008)
290 Sealed Document. (Attachments: # 1 Exhibit B−1 − AR Vol. 1 TAB 2 A−1, # 2 Exhibit B−2 − AR Vol. 1 TAB 2 J− P, 3−4, # 3 Exhibit B−3 − AR Vol. 1 TAB 5−7, # 4 Exhibit B−4 − AR Vol. 1−2 TAB 8−13, # 5 Exhibit B−5 − AR Vol. 2 TAB 14 A, # 6 Exhibit B−6 − AR Vol. 2 TAB 14 B, # 7 Exhibit B−7 − AR Vol. 2 TAB 14 C, # 8 Exhibit B−8 − AR Vol. 2 TAB 14 D, # 9 Exhibit Ex. B−9 − AR Vol. 2 TAB 14 E, # 10 Exhibit B−10 − AR Vol. 3 TAB 14 F, # 11 Exhibit B−11 − AR Vol. 3 TAB 14 G, # 12 Exhibit B−12 − AR Vol. 3 TAB 14 H−I, # 13 Exhibit B−13 − AR Vol. 4 TAB 14 J−K, # 14 Exhibit B−14 − AR Vol. 4 TAB 14 L, # 15 Exhibit B−15 − AR Vol. 4 TAB 14 M, # 16 Exhibit B−16 − AR Vol. 5 TAB 14 N−O, # 17 Exhibit B−17 − AR Vol. 5 TAB 14 P−Q, # 18 Exhibit B−18 − AR Vol. 6 TAB 14 R−V, 15−25)(Cohen, Carol) (Entered: 07/14/2008)
291 ORDER Granting 281 Joint MOTION to Amend/Correct Scheduling Order, or in the alternative, Motion for Leave to File Out of Time filed by Juanita Hammond, Edward Zeringue, Grant Walker, Fred Donaldson, Richard W. Drake, Glynn Davis. Order 278 is amended. Signed by Judge J. Phil Gilbert on 7/15/08. (bkl) (Entered: 07/15/2008)
292 Joint MOTION to Bifurcate by Monsanto Company Pension Plan, The, Monsanto Company, The, Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Edward Zeringue. (Attachments: # 1 Exhibit A)(Meyer, Chris) (Entered: 08/04/2008)

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08/15/2008 08/15/2008 08/15/2008 08/15/2008
08/29/2008 08/29/2008 08/29/2008 09/25/2008 09/29/2008 09/29/2008
10/08/2008 10/15/2008
10/17/2008

293 MEMORANDUM in Opposition re 285 MOTION for Summary Judgment filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Cohen, Carol) (Entered: 08/15/2008)
294 MEMORANDUM in Opposition re 284 Joint MOTION for Summary Judgment As To Counts I − III filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Siegel, Norman) (Entered: 08/15/2008)
295 MEMORANDUM in Opposition re 282 MOTION for Summary Judgment on Count X of the Consolidated Complaint filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Attachments: # 1 Exhibit 1)(Siegel, Norman) (Entered: 08/15/2008)
296 MEMORANDUM in Opposition re 285 MOTION for Summary Judgment As To Counts I − III filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Attachments: # 1 Exhibit BB, # 2 Exhibit CC)(Cohen, Carol) (Entered: 08/15/2008)
297 REPLY to Response to Motion re 285 MOTION for Summary Judgment filed by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. (Siegel, Norman) (Entered: 08/29/2008)
298 REPLY to Response to Motion re 282 MOTION for Summary Judgment on Count X of the Consolidated Complaint filed by Monsanto Company Pension Plan, The, Monsanto Company, The. (Cohen, Carol) (Entered: 08/29/2008)
299 REPLY to Response to Motion re 284 Joint MOTION for Summary Judgment As To Counts I − III filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Perryman, Neal) (Entered: 08/29/2008)
300 MOTION for Oral Argument by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Meyer, Chris) (Entered: 09/25/2008)
301 RESPONSE to Motion re 300 MOTION for Oral Argument filed by Grant Walker, Glynn Davis, Fred Donaldson. (Armstrong, Matthew) (Entered: 09/29/2008)
302 ORDER granting in part and denying in part 292 the parties' Joint Motion to Bifurcate Proceedings, as follows: Within 30 days after the summary judgment motions are decided, the parties may contact Judge Frazier's chambers to schedule a status conference. At the status conference, the parties may present oral requests to reopen discovery and further bifurcate the remaining proceedings. Signed by Magistrate Judge Philip M. Frazier on 9/29/08. (mta) (Entered: 09/29/2008)
303 NOTICE of Appearance by Rex Carr on behalf of Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue (Carr, Rex) (Entered: 10/08/2008)
304 Joint MOTION to Continue Trial Date by Monsanto Company Pension Plan, The, Monsanto Company, The, James E Mueller, Grant Walker, Richard W. Drake, Jeffrey Scharringhausen, Doug Strahm, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan, Eugene Brombolich, Edward Zeringue. (Perryman, Neal) (Entered: 10/15/2008)
305 MINUTE ORDER (kjr) Granting 304 Joint MOTION to Continue Trial Date. Final Pretrial Conference reset for 3/6/2009 09:30 AM in Benton Court House before Judge J. Phil Gilbert; Jury Trial reset for 3/16/2009 09:00 AM in Benton Court House before Judge J. Phil Gilbert. (bkl) (Entered: 10/17/2008)

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02/20/2009 02/24/2009 03/02/2009 03/02/2009 03/04/2009 03/06/2009
04/08/2009 04/10/2009 04/29/2009 04/29/2009 04/30/2009 05/06/2009

306 MOTION to Continue Trial Date by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Perryman, Neal) (Entered: 02/20/2009)
307 RESPONSE to Motion re 306 MOTION to Continue Trial Date filed by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Marker, Michael) (Entered: 02/24/2009)
308 REPLY to Response to Motion re 306 MOTION to Continue Trial Date filed by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Perryman, Neal) (Entered: 03/02/2009)
309 MINUTE ORDER (kjr) Final Pretrial Conference RESET for 3/6/2009 09:30 AM in Benton Courthouse by telephone before Judge J. Phil Gilbert. Motion hearing set for 3/6/2009 09:30 AM in Benton Courthouse by telephone before Judge J. Phil Gilbert re 306 MOTION to Continue Trial Date. Plaintiff is responsible for place the call to all parties. (bkl) (Entered: 03/02/2009)
310 Docket Annotation−−Attorney record for Neal F. Perryman edited. Docket Sheet showed Attorney Perryman as attorney of record for all plaintiffs and all defendants. Correction made to reflect his representation for Defendant Solutia Inc. Employees' Pension Plan only. (djs, ) (Entered: 03/04/2009)
311 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Final Pretrial Conference held on 3/6/2009, Granting 300 MOTION for Oral Argument, Granting 306 MOTION to Continue Trial Date; Motion Hearing set for 4/29/2009 01:30 PM in East St. Louis Courthouse before Judge J. Phil Gilbert as to 282 MOTION for Summary Judgment on Count X of the Consolidated Complaint, 284 Joint MOTION for Summary Judgment As To Counts I − III, and 285 MOTION for Summary Judgment. Trial setting of 3/16/09 is stricken from the court's docket.(Court Reporter N/A.) (bkl) (Entered: 03/11/2009)
312 MOTION to Continue Unopposed Motion to Reschedule Hearing by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. (Meyer, Chris) (Entered: 04/08/2009)
313 MINUTE ORDER (kjr); granting 312 MOTION to Continue Unopposed Motion to Reschedule Hearing; hearing on 282 MOTION for Summary Judgment, 284 Joint MOTION for Summary Judgment and 285 MOTION for Summary Judgment reset for 5/6/2009 09:30 AM in Benton Courthouse before Judge J. Phil Gilbert.(dka, ) (Entered: 04/10/2009)
314 SUPPLEMENT by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. Requested Submissions In Support Of Defendants' Motion For Summary Judgment. (Attachments: # 1 Exhibit A)(Meyer, Chris) (Entered: 04/29/2009)
315 EXHIBIT by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. Illustrating Plan Participant's Accrued Benefit. (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)(Armstrong, Matthew) (Entered: 04/29/2009)
316 MOTION for Leave to File Defendant Solutia Inc. Employees' Pension Plan's Unopposed Motion for Leave to Supplement Rule 56 Statement of Undisputed Facts Filed with Defendants' Joint Motion for Summary Judgment by Solutia Inc Employees' Pension Plan. (Attachments: # 1 Exhibit A part 1 Decl of K. Wooten, # 2 Exhibit A part 2, # 3 Exhibit a part 3, # 4 Exhibit a part 4, # 5 Exhibit A part 5, # 6 Exhibit A part 6)(Perryman, Neal) (Entered: 04/30/2009)
317 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Motion Hearing held on 5/6/2009 re 282 MOTION for Summary Judgment, 284 Joint

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05/07/2009 05/12/2009 05/26/2009 05/28/2009 06/01/2009
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MOTION for Summary Judgment, and 285 MOTION for Summary Judgment. Granting 316 MOTION for Leave to File Defendant Solutia Inc. Employees' Pension Plan's Unopposed Motion for Leave to Supplement Rule 56 Statement of Undisputed Facts Filed with Defendants' Joint Motion for Summary Judgment filed by Solutia Inc Employees' Pension Plan. Court will review argument and cases presented by counsel and will issue a written order within 30 to 45 days. (Court Reporter Jane McCorkle.) (bkl) (Entered: 05/06/2009)
318 EXHIBIT by Grant Walker, Richard W. Drake, Glynn Davis, Fred Donaldson, Juanita Hammond, Edward Zeringue. Plaintiffs' Presentation Slides Submitted to the Court for Hearing on Cross−Motions for Summary Judgment May 6, 2009. (Armstrong, Matthew) (Entered: 05/07/2009)
319 EXHIBIT by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. Defendants' Presentation Submitted to the Court for May 6, 2009 Hearing on Parties' Cross−Motions for Summary Judgment. (Attachments: # 1 Exhibit A)(Meyer, Chris) (Entered: 05/12/2009)
320 MOTION to Withdraw as Attorney by Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation. (Sallerson, Dawn) (Entered: 05/26/2009)
321 Exhibit List re: Doc. 317 − Hearing on Motions for Summary Judgment. (bkl) (Entered: 05/29/2009)
322 Transcript of Motion held on 05/06/09, before Judge Gilbert. Court Reporter/Transcriber Jane McCorkle, Telephone number 618−439−7725.
NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. ( Redaction Request due 6/22/2009., Redacted Transcript Deadline set for 7/2/2009., Release of Transcript Restriction set for 8/31/2009.) (jam, ) Modified on 6/2/2009 (bkl). (Entered: 06/01/2009)
323 DOCKET ANNOTATION. Text of entry for Doc. 322 edited. Deleted "Costs Taxed". Event was inadvertently added at the time of entry for Transcript. (bkl) (Entered: 06/02/2009)
324 EXHIBIT by Monsanto Company Pension Plan, The, Monsanto Company, The, Pfizer Inc, Pharmacia and Upjohn Company, Pharmacia Cash Balance Pension Plan, Pharmacia Corporation, Solutia Inc Employees' Pension Plan. Defendants' Supplemental Submission of Exhibits Used at the May 6, 2009 Hearing on Parties' Cross−Motions for Summary Judgment. (Attachments: # 1 Exhibit A: Plaintiffs' Handwritten Exhibit 2)(Meyer, Chris) (Entered: 06/02/2009)
325 ORDER, Granting 320 MOTION to Withdraw as Attorney filed by Pharmacia and Upjohn Company, Pharmacia Corporation, Pfizer Inc, Pharmacia Cash Balance Pension Plan. Attorney Dawn A. Sallerson terminated. Signed by Judge J. Phil Gilbert on 6/9/09. (bkl) (Entered: 06/09/2009)
326 MEMORANDUM AND OPINION, Granting 284 Joint MOTION for Summary Judgment As To Counts I − III filed by Solutia Inc Employees' Pension Plan, Pharmacia and Upjohn Company, Monsanto Company Pension Plan, The, Pharmacia Corporation, Pfizer Inc, Pharmacia Cash Balance Pension Plan, Monsanto Company, The; Denying in Part 285 MOTION for Summary Judgment filed by Juanita Hammond, Edward Zeringue, Grant Walker, Fred Donaldson, Richard W. Drake, Glynn Davis to the extent it seeks judgment on Counts I, II and III. Clerk of Court to enter judgment accordingly at the close of the case. Signed by

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06/11/2009
06/24/2009 06/24/2009 07/01/2009 07/27/2009 08/13/2009 08/14/2009 08/24/2009 08/25/2009 08/27/2009

Judge J. Phil Gilbert on 6/11/09. (bkl) (Entered: 06/11/2009)
327 MEMORANDUM AND OPINION, Denying 282 MOTION for Summary Judgment on Count X of the Consolidated Complaint filed by Monsanto Company Pension Plan, The, Monsanto Company, The; Granting in part 285 Motion for Summary Judgment to the extent it seeks judgment on Count X. Clerk of Court to enter judgment accordingly at the close of the case. Telephone Status Conference set for 8/13/2009 09:00 AM in Benton Courthouse before Judge J. Phil Gilbert. Plaintiffs are responsible for placing the conference call. Signed by Judge J. Phil Gilbert on 6/11/09. (bkl) (Entered: 06/11/2009)
328 MINUTE ORDER &NOTICE: (Upon the Court's own motion, a Status Conference is set VIA TELEPHONE for 7/1/2009 @ 9:30 AM before Magistrate Judge Philip M. Frazier. Matthew H. Armstrong, Attorney for plaintiffs, is responsible for placing the conference call between the parties and the Court. Telephone Number for Chambers is: 618/439−7750.) Signed by Magistrate Judge Philip M. Frazier on 6/24/09. (mta) (Entered: 06/24/2009)
329 AMENDED MINUTE ORDER &NOTICE: (Upon the Court's own motion, a Status Conference, with lead trial attorneys only, is set VIA TELEPHONE for 7/1/2009 @ 9:30 AM before Magistrate Judge Philip M. Frazier. Matthew H. Armstrong, Attorney for plaintiffs, is responsible for placing the conference call between the parties and the Court. Telephone Number for Chambers is: 618/439−7750.) Signed by Magistrate Judge Philip M. Frazier on 6/24/09. (mta) (Entered: 06/24/2009)
330 Minute Entry for proceedings held before Magistrate Judge Philip M. Frazier: Status Conference held on 7/1/2009. Further Status Conference set for 7/27/2009 9:00 AM via telephone before Judge Frazier. Attorney Carol Connor Cohen will place the conference call. The telephone number for the Court is 618−439−7750. Counsel for the Pharmacia and Solutia defendants are not required to participate in the conference. (krm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/01/2009)
331 Minute Entry for proceedings held before Magistrate Judge Philip M. Frazier: Status Conference held on 7/27/2009. Further Status Conference set for 8/24/2009 9:00 AM via telephone before Judge Frazier. Counsel for plaintiffs to place the conference call. The telephone number for the Court is 618−439−7750. Counsel for the Pharmacia and Solutia defendants are not required to participate in the conference. (krm) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/27/2009)
332 Minute Entry for proceedings held before Judge J. Phil Gilbert (dka): Telephone Status Conference held on 8/13/2009. Parties advise that they would like to negotiate a settlement or agree on a judgment amount. Counsel will advise Magistrate Judge Frazier of outcome of negotiations.(Court Reporter N/A.) (dka, ) (Entered: 08/13/2009)
333 Letter from Clerk SD/IL to Atty. Patrick J. Stueve re: Electronic Filing Registration. (bkl) (Entered: 08/14/2009)
334 Minute Entry for proceedings held before Magistrate Judge Philip M. Frazier: Status Conference held on 8/24/2009. Settlement Conference set for 9/28/2009 9:30 AM before Judge Frazier in Benton. A separate order will be entered. (krm) (Entered: 08/24/2009)
335 ORDER FOR AND NOTICE OF SETTLEMENT CONFERENCE: Settlement Conference set for 9/28/2009 @ 9:30 AM in U.S. Courthouse, Courtroom No. 2, 301 West Main St., Benton, Illinois, before Magistrate Judge Philip M. Frazier. Settlement Statements are to be submitted to Judge Frazier on or before 9/21/09 (see instructions for submission in this order). Signed by Magistrate Judge Philip M. Frazier on 8/25/09. (mta) (Entered: 08/25/2009)
336 ORDER re 335 Order for Settlement Conference: As agreed by the parties, the Settlement Conference set for 9/28/2009 9:30 AM is reset for 9/14/2009 9:15 AM in Benton Courthouse before Magistrate Judge Philip M. Frazier. Settlement statements shall be submitted to the Court on or before 9/8/2009. Refer to the

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09/14/2009 09/25/2009 09/25/2009 09/25/2009 09/29/2009
10/20/2009 10/20/2009 10/27/2009
10/27/2009 10/27/2009

Order at Doc. 335 for instructions on submitting the settlement statements. Signed by Magistrate Judge Philip M. Frazier on 8/27/2009. (krm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/27/2009)
337 Minute Entry for proceedings held before Magistrate Judge Philip M. Frazier: Settlement Conference held on 9/14/2009; case settled; stipulated judgment to enter; no 60−day Order to enter. (Court Reporter N/A.) (mta) (Entered: 09/14/2009)
338 STRICKEN PURSUANT TO Doc. 339 − STIPULATION Regarding Judgment on Count X by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Siegel, Norman) Modified on 9/25/2009 (bkl). (Entered: 09/25/2009)
339 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 338 Stipulation, filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Richard W. Drake, Sandra Bellon. See attached document for specifics. (bkl) (Entered: 09/25/2009)
340 STIPULATION Regarding Judgment on Count X by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Siegel, Norman) (Entered: 09/25/2009)
341 CLERK'S JUDGMENT (JF/djs) on Counts I, II, &III entered in favor of defendants and against plaintiffs; Counts IV, V &VI are dismissed without prejudice; Counts VII, VIII &IX are dismissed with prejudice; that settlement in Count X defendants Monsanto Company Pension Plan and Monsanto Company shall pay compensation to Monsanto Defendants' Late Lump Sum Class &attorney's fees; Count X dismissed with prejudice. Approved by Judge J. Phil Gilbert on 9/29/09. (djs) (Entered: 09/29/2009)
342 MOTION to Withdraw as Attorney for Plaintiffs in the Certified Classes by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Carr, Rex) (Entered: 10/20/2009)
343 MOTION Michael B. Marker's Motion for Leave to Change His Entry of Appearance by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. (Marker, Michael) (Entered: 10/20/2009)
344 ORDER, Granting 342 MOTION to Withdraw as Attorney for Plaintiffs in the Certified Classes filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Sandra Bellon, Richard W. Drake. Attorney Rex Carr terminated. Denying as Moot 343 MOTION Michael B. Marker's Motion for Leave to Change His Entry of Appearance filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Richard W. Drake, Sandra Bellon. Clerk of Court to update Marker's ECF account. Signed by Judge J. Phil Gilbert on 10/27/09. (bkl) (Entered: 10/27/2009)
345 NOTICE OF APPEAL as to 341 Clerk's Judgment, 326 Memorandum &Opinion, Terminate Motions,,,, by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue. Filing fee $ 455, receipt number 07540000000000983813. (Siegel, Norman) (Entered: 10/27/2009)
346 DOCKETING STATEMENT by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue

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10/27/2009 10/28/2009 10/29/2009 10/30/2009 11/09/2009 03/25/2010 03/26/2010 03/30/2010 09/22/2010
09/22/2010 09/24/2010 07/16/2014
07/16/2014
09/30/2014

re 345 Notice of Appeal, (Siegel, Norman) (Entered: 10/27/2009)
347 Transmission of Short Record to US Court of Appeals re 345 Notice of Appeal, Appeal Record due to be prepared by 11/10/2009. (bkl) (Entered: 10/27/2009)
348 USCA Case Number 09−3637 for 345 Notice of Appeal, filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Richard W. Drake, Sandra Bellon. (bkl) (Entered: 10/28/2009)
349 DESIGNATION of Record on Appeal by Grant Walker, Richard W. Drake, Sandra Bellon, Mary Clawson, Glynn Davis, Fred Donaldson, Eugene Forneris, Juanita Hammond, Audrey Sokoloski, Carol Thomas, Albert Walter, III, Edward Zeringue re 345 Notice of Appeal, (Siegel, Norman) (Entered: 10/29/2009)
350 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET re 345 Notice of Appeal, (bkl) (Entered: 10/30/2009)
Record on Appeal Prepared (electronic) re 345 Notice of Appeal (31 volumes pleadings, 19 sealed documents, 1 transcript) (bkl) (Entered: 11/09/2009)
351 Request from USCA to transmit Record on Appeal re 345 Notice of Appeal. (bkl) (Entered: 03/26/2010)
352 Certified and Transmitted Record on Appeal to US Court of Appeals re 345 Notice of Appeal (31 volumes electronic pleadings, 2 volumes transcripts (1 electronic, 1 paper), 1 sealed electronic document and 2 Exhibits (paper in expando folders). (bkl) (Entered: 03/26/2010)
353 Acknowledgment of receipt of Record on Appeal by USCA 7 re 345 Notice of Appeal (20 vol pleadings): (Attachments: # 1 11 vol pleadings, # 2 1 Sealed doc in 19 files, # 3 1 electronic transcript, # 4 1 paper transcript, 2 exhibits (bkl) (Entered: 03/30/2010)
354 MANDATE of USCA as to 345 Notice of Appeal, filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Richard W. Drake, Sandra Bellon affirming decision of district court. (dka, ) (Entered: 09/22/2010)
355 ORDER of USCA as to 345 Notice of Appeal, filed by Audrey Sokoloski, Mary Clawson, Albert Walter, III, Grant Walker, Fred Donaldson, Eugene Forneris, Glynn Davis, Carol Thomas, Juanita Hammond, Edward Zeringue, Richard W. Drake, Sandra Bellon denying petition for rehearing. (dka, ) (Entered: 09/22/2010)
356 Appeal Record Returned: one paper transcript, two expando folders of exhibits. (jdh, ) (Entered: 09/24/2010)
357 EXHIBIT Letter to Norman E. Siegel, Attorney for Plaintiff, regarding return of exhibits from Clerk; Notice is hereby given to you pursuant to Local Rule 79.1(b) that these exhibits may be destroyed or otherwise disposed of unless arrangements are made within 30 days to remove these exhibits from the Clerks office. (kek) (Entered: 07/16/2014)
358 EXHIBIT Letter to Neal F. Perryman, Attorney for Defendant Solutia Inc Employees' Pension Plan, regarding return of exhibits from Clerk; Notice is hereby given to you pursuant to Local Rule 79.1(b) that these exhibits may be destroyed or otherwise disposed of unless arrangements are made within 30 days to remove these exhibits from the Clerks office. (kek) (Entered: 07/16/2014)
359 ORDER DISPOSING OF EXHIBITS. Signed by Judge J. Phil Gilbert on 9/30/2014. (lmm) (Entered: 09/30/2014)

 
 General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 09-3637 Nature of Suit: 3791 Employee Retirement Fred Donaldson, et al v. Monsanto Company Pension Plan, et al Appeal From: Southern District of Illinois Fee Status: Paid

Docketed: 10/27/2009

Case Type Information: 1) civil 2) private 3) -

Originating Court Information: District: 0754-3 : 3:04-cv-00436-JPG-PMF Court Reporter: Jane McCorkle, Court Reporter Trial Judge: J. Phil Gilbert, District Court Judge Date Filed: 06/23/2004 Date Order/Judgment: 09/29/2009

Date NOA Filed: 10/27/2009

Prior Cases: None

Current Cases: None

FRED DONALDSON, individually and on behalf of all other similarly situated
Plaintiff - Appellant
GRANT M. WALKER, individually and on behalf of all other similarly situated
Plaintiff - Appellant

Matthew H. Armstrong, Attorney Direct: 314-621-6115 [COR LD NTC Retained] SCHLICHTER, BOGARD & DENTON Suite 280 100 S. Fourth Street St. Louis, MO 63102-0000
Norman E. Siegel, Attorney Direct: 816-714-7100 [COR LD NTC Retained] STUEVE SIEGEL HANSON LLP Suite 200 460 Nichols Road Kansas City, MO 64112-0000

GLYNN DAVIS, individually and on behalf of Michael Barry Marker, Attorney

all other similarly situated

Direct: 618-274-0434

Plaintiff - Appellant

[COR LD NTC Retained]

412 Missouri Avenue

East St. Louis, IL 62201-0000

v.

MONSANTO COMPANY PENSION PLAN Defendant - Appellee

Carol Connor Cohen, Attorney Direct: 202-857-6054 [COR LD NTC Retained] ARENT, FOX, KINTNER, PLOTKIN & KAHN 1050 Connecticut Avenue N.W. Washington, DC 20036-5339

Mark B. Blocker, Attorney Direct: 312-853-7000 [NTC Retained] SIDLEY AUSTIN Suite 5200 One S. Dearborn Street Chicago, IL 60603-0000

SOLUTIA INCORPORATED EMPLOYEES PENSION PLAN
Defendant - Appellee

Neal F. Perryman, Attorney Direct: 314-444-7661 [COR LD NTC Retained] LEWIS, RICE & FINGERSH Suite 2000 600 Washington Avenue St. Louis, MO 63101

Mark B. Blocker, Attorney Direct: 312-853-7000 [NTC Retained] (see above)

PHARMACIA CASH BALANCE PENSION PLAN
Defendant - Appellee

Robert N. Hochman, Attorney Direct: 312-853-7000 [COR LD NTC Retained] SIDLEY AUSTIN One S. Dearborn Street Chicago, IL 60603-0000

Mark B. Blocker, Attorney Direct: 312-853-7000

[NTC Retained] (see above)

GRANT M. WALKER, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants
v.
MONSANTO COMPANY PENSION PLAN, et al., Defendants - Appellees
___________________________________________________________
GLYNN DAVIS, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants
v.
SOLUTIA INCORPORATED EMPLOYEES PENSION PLAN, Defendant - Appellee
___________________________________________________________
FRED DONALDSON, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants
v.
PHARMACIA CASH BALANCE PENSION PLAN, et al., Defendants - Appellees

10/27/2009

1
90 pg, 713.14 KB

10/27/2009

10/27/2009

Private civil case docketed. Fee paid. Docketing statement filed. Transcript information sheet due by 11/10/2009. Appellant's brief due on or before 12/07/2009 for Glynn Davis, Fred Donaldson and Grant M. Walker. [1] [09-3637]
THIS CAUSE CONSISTS OF MORE THAN 3 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: APPELLEES: Monsanto Company, Pharmacia Corporation, Pharamacia and Upjohn Company and Pfizer Incorporated. [6171594][6171594-1] [09-3637]
THIS CAUSE CONSISTS OF MORE THAN 3 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the

11/05/2009

2

1 pg, 62.53 KB

11/06/2009

3

1 pg, 54.7 KB

11/09/2009

6

1 pg, 57.74 KB

11/10/2009

4

3 pg, 55.45 KB

11/10/2009

5

2 pg, 83.43 KB

11/13/2009

7

1 pg, 58.18 KB

12/03/2009

8

2 pg, 83.61 KB

01/12/2010

9

43 pg, 117.29 KB

Appellate docket/caption for administrative purposes: APPELLANTS: Edward Zeringue, Richard W. Drake, Eugene Forneris Juanita Hammond, Albert Walker III, Mary Clawson, Sandra Bellon, Audrey Sokoloski and Carol Thomas. [6171591][6171591-1] [09-3637]
Disclosure Statement filed by Attorney Norman E. Siegel for Appellant Grant M. Walker. [6173928][2] [09-3637]
Disclosure Statement filed by Attorney Neal F. Perryman for Appellee Solutia Incorporated Employees Pension Plan. [6174271][3] [09-3637]
Disclosure Statement filed by Attorney Carol Connor Cohen for Appellee Monsanto Company Pension Plan. [6174906][6] [093637]
Notification of Circuit Rule 33 conference issued. The conference will be conducted by phone, Wednesday, December 2, 2009 at 2:00 p.m. JNS. [4] [09-3637]
ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: Appellants' brief due on or before 01/04/2109 for Glynn Davis, Fred Donaldson and Grant M. Walker. Appellees' brief due on or before 02/03/2010 for Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Incorporated Employees Pension Plan. Appellants' reply brief, if any, is due on or before 02/17/2010 for Appellant Glynn Davis, Appellant Fred Donaldson and Appellant Grant M. Walker [5] JNS [09-3637]
Attorney Anne E. Rea for Pharmacia Cash Balance Pension Plan in 09-3637 terminated and added Attorney(s) Robert N. Hochman for party(s) Appellee Pharmacia Cash Balance Pension Plan, in case 09-3637 per disclosure statement. Disclosure statement filed by Attorney(s) Robert N. Hochman for party(s) Appellee Pharmacia Cash Balance Pension Plan, in case 09-3637. [09-3637]
ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: Appellant's brief due on or before 01/11/2010 for Glynn Davis, Fred Donaldson and Grant M. Walker. Appellee's brief due on or before 03/12/2010 for Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Incorporated Employees Pension Plan. Appellant's reply brief, if any, is due on or before 04/12/2010 for Appellant Glynn Davis, Appellant Fred Donaldson and Appellant Grant M. Walker. [8] JNS [09-3637]
15 copies Appellant's brief filed by Appellants Glynn Davis, Fred Donaldson and Grant M. Walker. [6189517] [9] Electronically Transmitted. [09-3637]

01/12/2010

10

Filed 10 copies Appendix by Appellants Glynn Davis, Fred Donaldson and Grant M. Walker. [6189519] [09-3637]

03/12/2010

11

3 pg, 87.52 KB

Brief deficiency letter sent to Appellees Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Incorporated Employees Pension Plan. [6205096] [09-3637]

03/12/2010

12

64 pg, 233.81 KB

15 copies Appellee's brief filed by Appellees Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Incorporated Employees Pension Plan. [6205477] [12] Electronically Transmitted. [09-3637]

03/25/2010

13

2 pg, 82.71 KB

Argument set for Tuesday, April 20, 2010, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes. [09-3637]

03/30/2010

14
4059 pg, 135.04 MB

Original record on appeal filed electronically. Contents of record : 20 vol. of pleadings. [14] [09-3637]

03/30/2010

15

1961 pg, 63.88 MB

Original record on appeal filed electronically. Contents of record : 11 vol. of pleadings. [15] [09-3637]

03/30/2010

16

19 pg, 753.99 KB

Original record on appeal filed electronically. Contents of record : 19 sealed documents. [16] [09-3637]

03/30/2010

17

Filed electronic transcript of proceedings held on 5/6/09. [17] THIS TRANSCRIPT IS FOR INTERNAL COURT USE ONLY. Remote electronic access to the transcript is ONLY available through the District Court's PACER system. [09-3637]

03/30/2010

18

Original paper record on appeal filed. Contents of record : 1 vol. of transcripts; 2 vol. of exhibits. [18] [09-3637]

03/31/2010

19

2 pg, 82.02 KB

ORDER: This Court has received 19 envelopes under seal from the district court. All documents filed in this Court, except those required to be sealed by statute or rule are considered public. Pursuant to 7th Circuit Operating Procedure 10(b), documents sealed in the district court will be maintained under seal in this Court for 14 days, to afford time to request the approval required by section (a) of this operating procedure. Absent a motion from a party these sealed documents will be placed in the public record on 04/15/2010. Motion shall be filed by 04/14/2010 [09-3637]

04/09/2010

Received argument confirmation per argument card for Attorney Norman E. Siegel for Appellant Grant M. Walker. [6212156-1] [09-3637]

04/13/2010

20

35 pg, 103.14 KB

15 copies Appellant's reply brief filed by Appellants Glynn Davis, Fred Donaldson and Grant M. Walker. DIST. [6213135] [20]

Electronically Transmitted. [09-3637]--[Edited 04/13/2010 by JIR]

04/14/2010

21

1 pg, 59.27 KB

04/14/2010

22

5 pg, 179.93 KB

04/16/2010

23

2 pg, 85.69 KB

04/19/2010

04/20/2010

24

04/20/2010

25

Disclosure Statement filed by Attorney Mark B. Blocker for Appellee Pharmacia Cash Balance Pension Plan, (Pharmacia Corporation; Pharmacia & Upjohn LLC; Pfizer Inc). [21] [09-3637]
Motion filed by Appellees Monsanto Company Pension Plan, Pharmacia Cash Balance Pension Plan and Solutia Incorporated Employees Pension Plan to exclude sealed documents from the appellate record and return them to the district court. [22] [09-3637]
Order issued GRANTING motion to seal the record on appeal . The clerk of this court shall return the 19 sealed documents in this appeal to the district court to be maintained under seal in that court. [22] SCR [23] [09-3637]
Received argument confirmation per argument card for. Mark B. Blocker for Solutia Incorporated Employees Pension Plan Pharmacia Cash Balance Pension Plan Monsanto Company Pension Plan, in case 09-3637 [6214295-1] [09-3637]
Case heard and taken under advisement by panel: William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and Terence T. Evans, Circuit Judge. [6214946] [09-3637]
Case argued by Norman E. Siegel for Appellant Grant M. Walker and Mr. Mark B. Blocker for Appellees Monsanto Company Pension Plan, Solutia Incorporated Employees Pension Plan and Pharmacia Cash Balance Pension Plan. [6214947] [09-3637]

 
 2010 WL 1789186 (C.A.7)

Page 1

For Dockets See 09-3637
United States Court of Appeals, Seventh Circuit. Grant M. WALKER, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. MONSANTO COMPANY PENSION PLAN, et al., Defendants - Appellees. Glynn Davis, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. Solutia Incorporated Employees Pension Plan, Defendant - Appellee. Fred Donaldson, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants,
v. Pharmacia Cash Balance Pension Plan, et al., Defendants - Appellees.
No. 09-3637. April 13, 2010.
Appeal from the United States District Court for the Southern District of Illinois, Case No. 3:04-cv00436-JPG-PMF, The Honorable Judge J. Phil Gilbert
Reply Brief of Plaintiffs - Appellants
Stueve Siegel Hanson LLP, Norman E. Siegel, 816-714-7112 (tel)/816-714-7101 (fax), siegel@stuevesiegel.com, 460 Nichols Road, Suite 200, Kansas City, Missouri 64112, Attorney for Plaintiffs Appellants.
*i TABLE OF CONTENTS
TABLE OF AUTHORITIES ... iii
ARGUMENT ... 1
I. Plaintiffs Have Established that Defendants' Plan Violates ERISA as a Matter of Law ... 2
A. Section § 1054(b)(1)(H)(i) Prohibits the Plan from Terminating the Interest Credits to a Participant's Prior Plan Account Because of the Attainment of Any Age ... 2
1. Section 1054(b)(1)(H)(i)'s Protective Scope Extends to Any Right, Benefit or Feature Under a Cash Balance Plan that Results in an Increase to a Participant's Stated Account Balance ... 2
2. Defendants' Remaining Arguments to Remove the PPA Interest Credits from the Protective Scope of Section 1054(b)(1)(H)(i) Are Flawed and Misplaced ... 6
a. Defendants' Discussion of the Prior Plan Account and the Function of Its Interest and Pay Credits Is Inaccurate and Misleading ... 6
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2010 WL 1789186 (C.A.7)

Page 2

b. The Eighth Circuit's Decision in Atkins Does Not Preclude Scrutiny of the Plan's PPA Interest Credits ... 13 B. The PPA Interest Credits Cease Under the Plan's Plain Terms Solely Because a Participant Attains the Age of 55 ... 14 C. Section 1054(b)(1)(H)(v) Does Not Foreclose Plaintiffs' Claims Because There Is No Early Retirement Subsidy to Disregard ... 16 D. The Plan's Failure to Project the PPA Interest Credits to Normal Retirement Age Also Results in an Impermissive Forfeiture ... 18 *ii II. Plaintiffs Timely Filed Their Claims Within the Applicable Ten-Year Statute of Limitations ... 19 A. Plaintiffs' Claims Are Governed by Missouri's Ten-Year Limitations Period Applicable to All Actions for Breach of a Written Contract for the Payment of Money ... 20 B. Defendants Cannot Avoid Application of Missouri's Ten-Year Limitations Period to Plaintiffs' Claims ... 21 C. Plaintiffs' Claims Were Timely Filed ... 24 CONCLUSION ... 26 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS ... 28 CIRCUIT RULE 31(e) CERTIFICATION ... 29 PROOF OF SERVICE ... 30
*iii TABLE OF AUTHORITIES
CASES Amara v. CIGNA Corp., 534 F. Supp. 2d 288 (D. Conn. 2008) ... 22 Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992) ... 13, 15, 16 Coffin v. Bowater, Inc., 501 F.3d 80 (1st Cir. 2007) ... 8 Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006) ... 3, 4 Baill v. Sheet Metal Workers' Local 73 Pension Fund, 100 F.3d 62 (7th Cir. 1996) ... 21, 25 Eaton v. Onan Corp., 117 F. Supp. 2d 812 (S.D. Ind. 2000) ... 11, 15 Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644 (7th Cir. 2009) ... 9 Green v. UPS Health & Welfare Package for Retired Employees, 595 F.3d 734 (7th Cir. 2010) ... 8 Harris v. The Epoch Group, LC, 357 F.3d 822 (8th Cir. 2004) ... 20, 21, 23
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2010 WL 1789186 (C.A.7)

Page 3

Jenkins v. Local 705, 713 F.2d 247 (7th Cir. 1983) ... 26 Johnson v. State Mut. Life Assur. Co., 942 F.2d 1260 (8th Cir. 1991) ... 21, 23 Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008) ... 15 Laurenzano v. Blue Cross & Blue Shield, 134 F. Supp. 2d 189 (D. Mass. 2001) ... 25, 26 *iv May Dep't Stores Co. v. Federal Ins. Co., 305 F.3d 597 (7th Cir. 2002) ... 23, 24 Register v. PNC Financial Services Group, Inc., 477 F.3d 56 (3d Cir. 2007) ... 4 Rossetto v. Pabst Brewing Co., 217 F.3d 539 (7th Cir. 2000) ... 8 Williams v. Rohm & Haas Pension Plan, 497 F.3d 710 (7th Cir. 2007) ... 9 STATUTES 29 U.S.C. § 1054 ... passim 29 U.S.C. § 1132 ... 20, 21, 26 Mo. Rev. Stat. § 516.110(1) ... 19, 21, 23 Mo. Rev. Stat. § 516.120(1) ... 23 REGULATIONS AND OTHER ADMINISTRATIVE GUIDANCE Notice 96-8, 1996-6 I.R.B. 23, 1996-1 C.B. 359, 1996 WL 17901 ... 10 Rev. Rule. 2008-7, 2008-7 I.R.B. 419, 2008 WL 274325 ... 2 53 Fed. Reg. 11,876 (Apr. 11, 1988) ... 4 67 Fed. Reg. 76123 (Dec. 11, 2002) ... 4
*1 ARGUMENT The issue before this Court is whether Defendants' cash-balance defined benefit plan (“the Plan”) violates ERISA's prohibition against ceasing or reducing the rate of an employee's benefit accrual because of the attainment of any age and causes an impermissive forfeiture. Plaintiffs explained in their opening brief that Defendants' Plan violates ERISA because (1) the Plan includes an unambiguous provision that on its face ceases a participant's benefit accrual (in the form of Interest Credits to the participant's Prior Plan Account) solely because the participant attains the age of 55; and (2) in determining a participant's accrued benefit, the Plan expressly projects these Interest Credits only through age 55, as opposed to the Plan's normal retirement age of 65. Defendants have responded to Plaintiffs' arguments and sought to defend the Plan's legality by shifting the Court's focus away from the dispositive terms of the Plan itself and towards the features of the pension plans
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2010 WL 1789186 (C.A.7)

Page 4

that existed prior to the Plan (and no longer exist) and other extrinsic evidence of their subjective intent and motivation for adopting the challenged Plan provision - all of which is irrelevant to Plaintiffs' claims. Defendants' proffered defense of the Plan's legality contravenes the plain language of ERISA's relevant statutory text as well as applicable law and regulatory guidance with respect thereto - all of which condemn Defendants' Plan as unlawful.
*2 Defendants also challenge the timeliness of Plaintiffs' claims and ask this Court to radically depart from settled law holding that Plaintiffs' claims were timely filed under the applicable ten-year statute of limitations.
I. Plaintiffs Have Established that Defendants' Plan Violates ERISA as a Matter of Law.
ERISA prohibits the Plan in this case from terminating the Interest Credits to a participant's Prior Plan Account because of the attainment of any age and requires the Plan, when determining the minimum accrued pension benefit mandated by ERISA, to project these Interest Credits to normal retirement age to avoid an impermissive forfeiture. See 29 U.S.C. § 1054(b)(1)(H)(i); Revenue Ruling 2008-7. The Plan violates ERISA because the Plan terminates the Interest Credits to the Prior Plan Account when the participant attains age 55 (Plan § 6.2(d) (JA34)) and only projects these Interest Credits to age 55, as opposed to the Plan's Normal Retirement Age of 65, when determining the accrued benefit (Plan §§ 3.2 (JA13), 3.36 (JA23)).
A. Section § 1054(b)(1)(H)(0 Prohibits the Plan from Terminating the Interest Credits to a Participant's Prior Plan Account Because of the Attainment of Any Age.
1. Section 1054(b)(1)(H)G)'s Protective Scope Extends to Any Right, Benefit or Feature Under a Cash Balance Plan that Results in an Increase to a Participant's Stated Account Balance.
Defendants first argue that ERISA's prohibition against ceasing or reducing an employee's benefit accrual because of the attainment of any age does not even apply to the Plan's Interest Credits to a participant's Prior Plan Account (also referred to herein as the “PPA Interest Credits”). See, e.g., Response Brief at 16 *3 (“ERISA § 204(b)(1)(H)'s prohibition against ceasing ‘benefit accruals' because of age does not apply.”). If accepted by this Court, Defendants' argument stands for the proposition that the Plan was free to terminate or reduce the PPA Interest Credits “because of . . . age,” and that neither the IRS nor Plan participants could legally challenge the Plan's age-based termination or reduction of these Interest Credits under ERISA (or its parallel provision in the Internal Revenue Code). Defendants' suggested interpretation of section 1054(b)(1)(H)(i) leads to an absurd statutory result and reflects an indefensible attempt by Defendants to significantly restrict ERISA's broad protective scope.
Defendants conflate the concepts of accrued benefit and benefit accrual by asserting that this Court in Cooper restricted the protective scope of section 1054(b)(1)(H)(i) by interpreting ERISA's undefined phrase “benefit accrual” as limited to only those rights, benefits or features under a plan that increase a participant's accrued benefit or, in Defendants' words, reflect “a new benefit accrual.” See Response Brief at 20. Plaintiffs disagree that this Court's opinion in Cooper or that of any other court (or any regulatory guidance from the Treasury Department) supports limiting ERISA's protective scope in the manner proposed by Defendants.
Indeed, as Plaintiffs explained in their opening brief, the case law (including aspects of this Court's decision in Cooper ignored by Defendants) as well as regulatory guidance from the Treasury Department do not attach section 1054(b)(1)(H)(i) to the protection of the accrued benefit, but rather make clear that *4 the protective scope of section 1054(b)(1)(H)(i) extends to any right, benefit or feature under a cash balance plan that results in an in-
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crease to a participant's stated account balance. See Plaintiffs' Opening Brief at 13-15 (citing Cooper v. IBM Personal Pension Plan, 457 F.3d 636, 638-39 (7th Cir. 2006) (stating that “benefit accrual” is “a phrase dealing with inputs (either in absolute terms or as a rate of change)” and should be read “as a reference to what the employer puts in” or “imputes to the account”); id. at 649 (quoting 67 Fed. Reg. 76123, 76125-26 (Dec. 11, 2002) (explaining that an interpretation of “benefit accrual” as a reference to the employer's contribution to a participant's account has the support of regulations proposed by the Treasury Department, which define the phrase “benefit accrual” as “ ‘the additions to the participant's hypothetical account for the plan year’ ”); Register v. PNC Financial Services Group, Inc., 477 F.3d 56, 68-69 (3d Cir. 2007) (“[C]ash balance plans define the benefit in terms of a stated account balance .... Thus, the ‘benefit’ as used in the phrase ‘benefit accrual’ refers to the stated account balance as that is how the benefit is defined by cash balance plans. Once this proposition is grasped, it becomes clear that the ‘accrual’ of ‘benefit’ in section 1054(b)(1)(H)(i) refers to the credits deposited into the participant's cash balance accounts, i.e., the inputs.”); 53 Fed. Reg. 11,876, 11,877 (Apr. 11, 1988) (explaining that a plan violates ERISA “if optional forms of benefits, ancillary benefits or other benefits, rights or features under a plan that are provided with respect to benefits or allocations prior to such age are not provided (on terms that are at least as favorable to employees) with respect to benefits or allocations after such age”).
*5 Defendants concede that the PPA Interest Credits at issue in this case are a right, benefit or feature under the Plan that result in an increase to a participant's stated account balance. See Response Brief at 20 (“The credits surely add to the yearly account balance . . . .”). Defendants also concede that “[m]easuring benefit accrual by additions to an account [is] the standard way for determining age discrimination when dealing with a typical cash balance plan account . . . .” See Response Brief at 24 n.7.
Notwithstanding these dispositive admissions, Defendants still try to advance the notion that they established a pension plan of an undefined and legally unrecognized third type that is neither a traditional defined benefit plan nor a cash balance plan, and that even though the Prior Plan Account is actually an account balance within a cash balance plan, that for some reason ERISA does not apply to it. Defendants' argument that the Prior Plan Account and its Interest Credits are immune from scrutiny under section 1054(b)(1)(H)(i) is not supported by the case law, by the statute itself or by any pronouncement of the Treasury or the Internal Revenue Service through regulation, revenue ruling or otherwise.
The Prior Plan Account is one of the defined Accounts that forms the cash balance plan at issue in this case. (Plan § 3.1 (JA13) (defining “Accounts” as “A Participant's Cash Balance Account and Prior Plan Account.”)). It has a stated account balance that increases monthly through employer contributions in the form of Interest Credits (at an annual rate of 8.5%) and Pay Credits (at an annual rate of 4%). These credits are traditional features of any cash balance plan and are *6 governed by rules generally applicable to any defined benefit, cash balance plan. As such, the Interest Credits to a participant's Prior Plan Account fall within the protective scope of section 1054(b)(1)(H)(i) and cannot be terminated or reduced because of the attainment of any age.
2. Defendants' Remaining Arguments to Remove the PPA Interest Credits from the Protective Scope of Section 1054(b)(1)(H)G) Are Flawed and Misplaced.
Besides being premised on an incorrect interpretation of the protective scope of section 1054(b)(1)(H)(i), Defendants' ancillary arguments are also flawed and misplaced.
a. Defendants' Discussion of the Prior Plan Account and the Function of Its Interest and Pay Credits Is
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Inaccurate and Misleading.
First, Defendants' characterization of the PPA Interest Credits as merely restoring an “early retirement discount” finds no support in the Plan itself. The Plan does not include a definition of “early retirement,” as one would surely find in the Plan if such a benefit feature was actually part of its terms. The Plan also does not define any “special” pension status for any form of early retirement. The Plan essentially provides for distribution of vested benefits at any age following a participant's separation of employment (i.e., retirement, death or termination of employment). (See Plan § 3.47 (JA25), § 7.2 (JA39)). Thus, in terms of pension status, the Plan only delineates between those that are actively employed and those that are not.
*7 Defendants' inability to identify an early retirement benefit feature within the actual Plan is not surprising because the early retirement discount discussed by Defendants only existed in the old traditional defined benefit plans. Once these prior benefit plans were converted to the new cash balance plan on January 1, 1997, the features of the old plans disappeared, including any early retirement benefit feature. What exists after any conversion is a cash balance plan with an opening account balance subject to all of ERISA's requirements. The fact that the Plan labels a participant's opening account balance a “Prior Plan Account” has no bearing on this conclusion. What matters is that the Prior Plan Account is an account balance and, therefore, it must comply with all requirements applicable to any defined benefit, cash balance plan.
Second, Defendants cannot escape their pre-litigation admission in the form of a sworn statement to the IRS that confirms the Plan contains no early retirement benefit formula. (JA217). Defendants only response is a footnote in their brief asserting that this sworn statement should only be considered a statement that there is no early retirement benefit formula “separate from the basic formula.” Response Brief at 27 n.8. But that is not at all what this sworn statement actually says. The IRS asked for the disclosure of any “Benefit formula at early retirement age” and the Plan's response was true to the plain language of the Plan: “NO EARLY RETIREMENT BENEFIT FORMULA.” (JA217).[FN1]
FN1. Defendants supplemented the summary judgment record with a compilation of documents that included this sworn statement to the IRS. (See Doc. 316; Doc. 322 at 103). At the hearing on the parties' motions in the district court, Plaintiffs directed the court to the Plan's sworn statement and emphasized its significance to the issues before the court. (See Doc. 322 at 96; Doc. 318 at 32).
*8 Third, Defendants cannot rely, as the district court erroneously did, upon the very narrow extrinsic ambiguity doctrine to erase the Plan's admission to the IRS or contravene the plain meaning of the Plan's unambiguous terms. Defendants themselves assert that the Plan's terms are unambiguous. See Response Brief at 17. Plaintiffs agree. The mere fact that the parties here disagree on the meaning of the Plan's terms does not create an ambiguity or open the door to admission of evidence outside the Plan's four corners. See Green v. UPS Health & Welfare Package for Retired Employees, 595 F.3d 734, 738-39 (7th Cir. 2010). In addition, the extrinsic ambiguity doctrine does not permit “self-serving testimony of one party to the contract as to what the contract, clear on its face, ‘really’ means, contrary to what it seems to mean.” Rossetto v. Pabst Brewing Co., 217 F.3d 539, 546 (7th Cir. 2000); Coffin v. Bowater, Inc., 501 F.3d 80, 97-99 (1st Cir. 2007) (relying on cases from the Seventh Circuit in rejecting party's attempt to invoke extrinsic ambiguity doctrine to contravene plain language of a plan).
Moreover, Defendants have never been able to explain how the extrinsic evidence of their intent underlying the challenged Plan provision is relevant to the interpretation of any term in the Plan itself. Defendants' extrinsic evidence, therefore, should not be considered. See Plaintiffs' Opening Brief at 16-17.
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This Court in Green also recently emphasized the narrowness of the extrinsic ambiguity doctrine and limited the use of the doctrine to instances where the objective extrinsic evidence shows that a literal interpretation would lead to an unreasonable or absurd result. Green, 595 F.3d at 738-39. While Defendants make *9 a feeble attempt to satisfy this element presumably in an effort to support their reliance on extrinsic evidence (see Response Brief at 34-35), their argument falls far short of the showing necessary for admission of such evidence under the extrinsic ambiguity doctrine. This Court should readily conclude there is nothing unreasonable or absurd about holding a Plan responsible for complying with the dictates of ERISA and ensuring plan participants receive a calculation of their benefits that fully complies with those aspects of plan design that ERISA makes immutable. See Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644, 646 (7th Cir. 2009) (“Employers are entitled to vary by contract those aspects of pension plans ERISA makes variable, and they may act in their own interest when doing so, just as participants are entitled to the benefit of terms . . . that the law makes immutable.”).[FN2]
FN2. Defendants' “unwarranted windfall” defense is no defense at all. While it is certainly true that benefits would be higher for participants if the Plan complies with the law, such additional benefits can in no way be considered a “windfall.” Faced with a similar argument to that advanced by Defendants here, this Court responded: Employers are not required to provide pension benefits, but when they do, their plans must comply with ERISA, and the promises they make can in no way be considered mere gratuities ..... The Plan cannot avoid that which is dictated by the terms of ERISA. While ERISA generally allows each plan to select the monetary amount of benefits provided, it remains a paternalistic statute designed to restrict the freedom of contract. Williams v. Rohm & Haas Pension Plan, 497 F.3d 710, 714 (7th Cir. 2007).
*10 Fourth, Plaintiffs' claims in this case are based on a challenge to the clear and unambiguous terms set forth in the Plan document itself. The Plan at issue in this case adopted and utilized generally accepted terminology for describing its features, including the Plan's specific use of the term “Interest Credits” to refer to the monthly increase at an annual rate of 8.5% to the Prior Plan Account balance. The rules applicable to cash balance plans, including the requirement that the balance in a cash balance account must be projected with interest credits to normal retirement age to avoid an impermissive forfeiture (see Notice 96-8), were presumably known at the time Defendants converted their prior traditional defined benefit plans to the new cash balance plan at issue in this case. To the extent Defendants now claim they adopted a plan design that did not affect their underlying intent, Defendants should be looking to their plan advisors, not this Court, for relief from the liability associated with having adopted an unlawful plan provision. Also, the fact that Defendants can now articulate an alternative plan design that may achieve their stated objective in a legally defensible manner (see Response Brief at 30-32) is completely irrelevant to whether Defendants' Plan, as written, complies with ERISA and merely underscores the strength of Defendants' professional malpractice claim against the Plan's architects.[FN3]
FN3. Indeed, Defendants' own proffered ERISA expert has never seen or even heard of a cash balance plan that terminates any type of interest credit in the same manner as this Plan. (See Plaintiffs' Opening Brief at 8).
Finally, it is Defendants, not Plaintiffs, that are mischaracterizing the Prior Plan Account and distorting the function of the PPA's Interest and Pay Credits. Defendants' repeated characterization of the Prior Plan Account as merely *11 preserving the age-65 benefits that employees had already earned under the prior benefit plans at the time of the conversion is inaccurate and contrary to the Plan's terms. The Prior Plan Account is not a frozen accrued benefit. For example, the Pay Credits to the Prior Plan Account (at an annual rate of 4%) are conditioned
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on continued employment and, therefore, cannot be part of a participant's accrued benefit calculated as of the January 1, 1997 conversion date. Any discounting used to calculate the supposed accrued benefit as of January 1, 1997 simply does not apply to these Pay Credits. The Pay Credits are an additional benefit earned for each subsequent month of employment after January 1, 1997, and represent, using Defendants' terminology, a “new benefit accrual.” See Eaton v. Onan Corp., 117 F. Supp. 2d 812, 832 (S.D. Ind. 2000) (explaining that a credit to a cash balance plan that is conditioned on continued employment accrues year by year as the participant continues to work).
Moreover, the Interest Credits to the Prior Plan Account (at an annual rate of 8.5%) apply to the total balance of the Prior Plan Account on the first day of each month, plus the Pay Credit for that month. The portion of the Interest Credit attributable to the Pay Credit earned each month, like the Pay Credit itself, constitutes a new benefit accrual as it also accrues month to month as the participant continues to work. See Eaton, 117 F. Supp. 2d at 832.
*12 For illustration purposes, consider a plan participant (like Defendants' Mary Doe example) who was age 50 at the time of conversion on January 1, 1997, with a Prior Plan Account opening balance of $83,131 (or the equivalent of a $125,000 “accrued benefit,” at least according to the Plan's conversion methodology)[FN4] discounted by 8.5% for five years from age 55 to the participant's age of 50 at the time of conversion. Assuming this participant works from age 50 to age 55, the Pay Credits (including the Interest Credits on the Pay Credits) will increase the balance of the participant's Prior Plan Account by almost $26,900. The $26,900 in “new benefit accrual” attributed to the Pay Credits consists of $22,800 from the actual Pay Credits and $4,100 from the Interest Credits on the Pay Credits.
FN4. Contrary to Defendants' assertion, Plaintiffs have never conceded that the Plan's calculation of the “accrued benefit” at the time of conversion properly preserved the value of each participant's accrued benefit under the prior plans. (Doc. 294-2 at 16-19). The 125 factor used by the Plan to convert existing accrued benefits on January 1, 1997 is based on an interest rate of 8.5%, a very high rate at that time. The IRC 417(e) lump sum rate (i.e., the 30-year Treasury Rate) available at the time of conversion was only 6.81% (October, 1996).
As explained in Plaintiffs' opening brief (and not disputed by Defendants), if this Plan participant continued to work after age 55, Pay Credits would continue to accrue and be added each month to the participant's Prior Plan Account, but solely because the participant attains age 55, the Interest Credits on the Pay Credits cease.
As the above discussion and illustration establish, it is inaccurate under the Plan's plain terms for Defendants to assert that the Prior Plan Account merely represents a frozen accrued benefit or that the PPA Interest Credits do nothing more than reverse an early retirement discount (even assuming the Plan actually *13 includes an early retirement discount - which it does not). The Pay Credits, and Interest Credits on the Pay Credits, reflect the fiction of Defendants' Mary Doe example (see Response Brief at 21) and present further reason why Defendants cannot wriggle free of the plain language of the Plan by parsing the Prior Plan Account.
b. The Eighth Circuit's Decision in Atkins Does Not Preclude Scrutiny of the Plan's PPA Interest Credits.
Contrary to Defendants' assertion, the Eighth Circuit's decision in Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992), does not preclude scrutiny of the Prior Plan Account's Interest Credits for compliance with ERISA's requirement that a plan not cease or reduce an employee's benefit accrual because of the attainment of any age. In fact, Atkins says nothing about whether an interest credit that increases an account balance within a
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cash balance plan is a “benefit accrual” within the meaning of section 1054(b)(1)(H)(i). Atkins also does not address the effect of the Plan's ongoing accrual of Pay Credits during a participant's continued employment and the Interest Credits on those Pay Credits, which cease under the Plan's terms solely because the participant attains age 55.
The decision in Atkins deals with the “because of . . . age” element of the factually distinguishable claim at issue in that case and has no application here. See Plaintiffs' Opening Brief at 27-29. Ultimately, the Eighth Circuit's unremarkable decision in Atkins turned on that case's traditional defined benefit plan's twenty-five year service cap and an undisputed and express early retirement subsidy that ceased at the plan's normal retirement age, both of which federal law *14 permits and neither of which is present in the cash balance plan at issue in the case before this Court.
This Court should reject Defendants' attempt to shield the PPA Interest Credits from scrutiny and proceed to declare the Plan unlawful for explicitly ceasing these Interest Credits solely because a participant attains the age of 55.
B. The PPA Interest Credits Cease Under the Plan's Plain Terms Solely Because a Participant Attains the Age of 55.
Once this Court concludes that the Interest Credits to a participant's Prior Plan Account must be scrutinized for compliance with section 1054(b)(1)(H)(i), the Plan's illegality is conclusively demonstrated by the facial nature of the Plan's exclusive use of the attainment of a specified age (i.e., because “the Participant attains age 55”) to terminate the PPA Interest Credits. Because the Plan on its face defines a participant's eligibility for PPA Interest Credits solely in terms of the participant's attainment of a specified age, the discrimination is facial and Defendants' reasons for adopting the challenged Plan provision are irrelevant to the Plan's legality. See Plaintiffs' Opening Brief at 20-24.
Notwithstanding the Plan's plain language, Defendants argue that the Plan actually terminates the PPA Interest Credits because of “pension status,” not age. Defendants' argument fails under scrutiny.
First, Defendants' so-called “pension status” argument finds no support in the Plan itself. Essentially, the only pension status under the Plan is one based on whether or not there has been a separation of employment (regardless of age). If a separation of employment occurs at any age (whether by retirement, death or *15 termination), a participant is entitled to a distribution of his or her vested benefits. (See Plan § 3.47 (JA25), § 7.2 (JA39)). There is no “special” pension status under the Plan for “early retirement” because the Plan does not actually include an early retirement benefit feature. Thus, Defendants' attempt to define a “pension status” based on a non-existent early retirement benefit feature fails as a matter of law.
Accordingly, there is no “pension status” under the Plan that correlates with any age to which Defendants can point in their effort to bring this case within the Supreme Court's Kentucky Retirement exception or the analysis employed by the Eighth Circuit in Atkins. This case remains governed by the well-established traditional rule that declares unlawful any policy or provision that on its face discriminates on the basis of age (or other protected trait) and finds the employer's reasons for adopting the challenged policy or provision to be irrelevant to its legality. See Plaintiffs' Opening Brief at 23-24.
Second, even if Defendants were permitted to maintain their “pension status” argument through extrinsic evidence - which they should not for the reasons outlined above - Defendants remain unable to defend the aspect of
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the Prior Plan Account's operation that ceases the accrual of Interest Credits on the Pay Credits solely because “the Participant attains age 55.” The portion of the Interest Credit attributable to the Pay Credit earned each month, like the Pay Credit itself, constitutes a new benefit accrual as it also accrues month to month as the participant continues to work. See Eaton, 117 F. Supp. 2d at 832. There is no pension status or other basis to which Defendants can point to defend the *16 termination of this benefit accrual solely because “the Participant attains age 55.” Thus, at a minimum, this aspect of the Prior Plan Account's operation is unlawful under ERISA.
C. Section 1054(b)(1)(H)(v) Does Not Foreclose Plaintiffs' Claims Because There Is No Early Retirement Subsidy to Disregard.
Defendants' reliance on subsection (v) of section 1054(b)(1)(H) is also misplaced. Subsection (v), much like the Eighth Circuit's decision in Atkins, unremarkably confirms that ERISA does not require an accrued benefit to include the value of early retirement subsidies. Defendants eliminated any early retirement subsidy as of January 1, 1997 (the effective date of the conversion of their prior traditional defined benefit plans to the cash balance plan at issue in this case). Thus, there is no early retirement subsidy to disregard under subsection (v) that would impact the analysis of whether the Plan unlawfully terminates the PPA Interest Credits because of the attainment of any age in violation of section 1054(b)(1)(H)(i).
Also fatal to Defendants' subsection (v) argument is Defendants' inability to establish through any supporting record citation the validity of the underlying discount rate assumption for the supposed “illustration” upon which Defendants' argument rests. Defendants bury in a footnote the dispositive admission that their subsection (v) argument is based on an undisclosed statutory discount rate from February, 2009. There is no basis in the Plan or elsewhere in the record to validate Defendants' arbitrarily selected and self-serving use of apparently one of multiple February, 2009 IRC § 417(e) segment discount rates to determine the actuarial *17 equivalence of Mary Doe's or any actual participant's normal retirement benefit at any given age.
Defendants also have not established as a matter of undisputed fact that their subsection (v) illustration and corresponding argument is even representative of the participants that comprise the certified classes. Indeed, Defendants' subsection (v) illustration fails to reflect the increase in a participant's accrued benefit from the accrual of Pay Credits and Interest Credits on those Pay Credits for those participants that continued to be employed after January 1, 1997.
Therefore, in addition to being premised on a non-existent early retirement subsidy, which alone is fatal, Defendants' subsection (v) argument rests on an unsupported rate assumption and otherwise fails to establish as a matter of undisputed fact a valid defense to the claim of any actual plan participant within the certified classes.
Moreover, even if Defendants' subsection (v) argument had some merit - which it does not - this argument has no application to Plaintiffs' challenge to that aspect of the Prior Plan Account's operation that ceases the ongoing accrual of Interest Credits on the Pay Credits during a participant's continued employment solely because “the Participant attains age 55.” This aspect of the Plan's operation has nothing to do with any alleged “early retirement subsidy,” which renders subsection (v) irrelevant to that aspect of Plaintiffs' claims.
*18 D. The Plan's Failure to Project the PPA Interest Credits to Normal Retirement Age Also Results in an Impermissive Forfeiture.
Defendants assert that the impermissive forfeiture aspect of Plaintiffs' claims lacks sufficient explanation. Defendants (and this Court) need to look no further than the operation of the Plan's Cash Balance Account for an
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ideal illustration of how the Plan's Prior Plan Account runs afoul of ERISA's requirements.
Under the Plan's express terms, Interest Credits on a participant's Cash Balance Account continue each month prior to a participant's Annuity Starting Date and are projected through Normal Retirement Age (which the Plan defines as age 65) when calculating a participant's Accrued Benefit. (See Plan §§ 6.3(d) (JA37), 3.2 (JA13)). The operation of the Plan's Cash Balance Account thus complies with ERISA's requirements that (1) a benefit accrual not cease because of the attainment of any age; and (2) in determining the accrued benefit of a participant under a cash balance plan at any time prior to normal retirement age, the balance in the cash balance plan must be projected with interest credits to normal retirement age to avoid an impermissive forfeiture.
In stark contrast, Interest Credits on a participant's Prior Plan Account cease when a participant attains age 55 and are only projected through age 55 (as opposed to the Plan's normal retirement age of 65) when calculating a participant's Accrued Benefit. (See Plan §§ 6.2(d) (JA34), 3.2 (JA13)).
To comply with ERISA's requirements, the Prior Plan Account's age 55 cut-off must be eliminated and the Plan reformed to provide that the PPA Interest Credits continue each month prior to a participant's Annuity Starting Date and are *19 projected to Normal Retirement Age (i.e., age 65) when calculating a participant's Accrued Benefit to avoid an impermissive forfeiture. Class members would then be entitled to a recalculation of their benefits based on the lawful operation of the Prior Plan Account.
II. Plaintiffs Timely Filed Their Claims Within the Applicable Ten-Year Statute of Limitations.
There is no merit to Defendants' statute of limitations argument. Even assuming Defendants' analysis regarding when the claims accrued is correct, Plaintiffs' claims were timely filed within the applicable ten-year statute of limitations provided under Missouri law for all actions upon written contracts for the payment of money. Mo. Rev. Stat. § 516.110(1) (“Within ten years: (1) An action upon any writing . . . for the payment of money or property”).
Notwithstanding the clear applicability of this ten-year limitations period (as confirmed by a decision of the en banc panel of the Eighth Circuit, which Defendants fail to even mention), Defendants ask this Court to radically depart from settled law in this area and apply the shorter two-year limitations period from the Missouri Human Rights Act or Missouri's alternative five-year limitations period applicable to those limited contract actions not otherwise governed by Missouri's ten-year limitations period. Defendants do not cite a single case in which any court has ever applied in an ERISA action either of the shorter limitations periods that Defendants urge upon this Court.
*20 A. Plaintiffs' Claims Are Governed by Missouri's Ten-Year Limitations Period Applicable to All Actions for Breach of a Written Contract for the Payment of Money.
As set forth in Plaintiffs' Consolidated Class Action Complaint and admitted by Defendants in their Answers, Plaintiffs' claims at issue on this appeal were brought pursuant to 29 U.S.C. § 1132(a)(3) and 29 U.S.C. § 1132 (a)(1)(B). (See Doc. 139 at ¶¶ 21-24, 69-94; Doc. 243, Doc. 244, Doc. 151 at H 21-24). The essence of Plaintiffs' claims is a suit for additional pension benefits (i.e., the payment of money) arising from a contract action that challenges whether the written Plan complies with the “plan requirements” enumerated in ERISA, 29 U.S.C. § 1054(b), including the requirement that a participant's benefit accrual not cease or be reduced under the Plan because of the attainment of any age, 29 U.S.C. § 1054(b)(1)(H)(i). In terms of the relief requested, Plaintiffs allege they are entitled to: (1) additional pension benefits that mathematically flow from reformation
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of the Plan to comply with ERISA's plan requirements; and/or (2) a judgment clarifying and recalculating the benefits that participants should have been paid had the Plan complied with ERISA. (See Doc. 139 at ¶¶ 21-24, 69-94 & pp. 36-38).
Where, as here, the essence of the action is a suit for benefits under ERISA, the Eighth Circuit has held that the suit should be characterized as a contract action and governed by Missouri's ten-year statute of limitations applicable to all actions for breach of a written contract for the payment of money. Harris v. The Epoch Group, LC , 357 F.3d 822, 825 (8th Cir. 2004) (holding that “the en banc court has already done our work” in “deciding the ten-year period under *21Mo. Rev. Stat. 516.110(1) is the most analogous statute of limitations under Missouri law for a claim for ERISA benefits,” citing Johnson v. State Mut. Life Assur. Co., 942 F.2d 1260, 1263-66 (8th Cir. 1991) (en banc) (holding that a suit for benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B) should be characterized as a contract action and governed by Missouri's ten-year statue of limitations)).
The Eighth Circuit's characterization of a claim for benefits under ERISA as a contract action governed by Missouri's ten-year limitations period is consistent with this Circuit's characterization of these types of ERISA claims for purposes of selecting the limitations period applicable under Illinois law. See, e.g., Daill v. Sheet Metal Workers' Local 73 Pension Fund, 100 F.3d 62, 65 (7th Cir. 1996) (holding that for cases filed under 29 U.S.C. § 1132(a)(1)(B), “the court applies the most analogous state statute of limitations. . . . Both parties are correct that the most analogous Illinois statute limitation is the 10-year limitations period for suits pertaining to written contracts.”).
This Court should follow the settled law in this area and conclude that Plaintiffs' claims for benefits under ERISA are governed by Missouri's ten-year limitations period applicable to all actions upon written contracts for the payment of money.
B. Defendants Cannot Avoid Application of Missouri's Ten-Year Limitations Period to Plaintiffs' Claims.
This Court should reject Defendants' invitation to displace settled law in this area and apply the shorter two-year limitations period from the Missouri Human Rights Act or Missouri's alternative five-year limitations period applicable to those *22 limited contract actions not otherwise governed by Missouri's ten-year limitations period. The two-year and five-year limitations periods identified by Defendants have no application to Plaintiffs' claims.
Defendants' argument that the Missouri Human Rights Act's two-year limitations period should apply to Plaintiffs' claims is directly at odds with established law from the Eighth Circuit and elsewhere. In fact, a recent district court decision from Connecticut aptly illustrates the flawed nature of Defendants' argument. In Amara v. CIGNA Corp., 534 F. Supp. 2d 288 (D. Conn. 2008), the plaintiffs' claims focused on whether “CIGNA's cash balance plan discriminates against workers on the basis of age.” Id. at 312. Just like Defendants here, the defendant in Amara seized upon the word “age” and asked the court to apply Connecticut's 180-day statute of limitations for age discrimination. Id. The court rejected the defendant's arguments, stating: “Indeed, colleagues in this District have expressly rejected both Connecticut's 180-day statute of limitations for age discrimination claims and its two-year statute of limitations for actions to collect on unpaid wages in favor of the six-year limit for written contracts.” Id. at 312. Despite canvassing decisions from across the country, the court found no support for the defendants' contention that Connecticut's age discrimination limitation period should apply to the plaintiffs' claims. Id. at 313. Ultimately, the court refused to “depart from the considerable weight of authority which holds that ERISA actions to recover unpaid employee welfare benefits should be governed by state statutes of limitations governing contract actions.” Id. at 312. This Court should follow *23 established law in this
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area and reject Defendants' effort to apply a limitations period from the Missouri Human Rights Act to Plaintiffs' claims.
Defendants' argument that Missouri's five-year limitation period applicable to those limited contract actions not otherwise governed by Missouri's ten-year limitations period is also misguided.[FN5] Once again, Defendants' argument is directly at odds with Harris and Johnson, which provide that Missouri's ten-year limitations period governs a plaintiff's claims for ERISA benefits. Tellingly, Defendants do not even mention (let alone try to distinguish) the Eighth Circuit's settled resolution of this question. Moreover, Defendants have not identified a single case that has ever characterized an ERISA claim for benefits as an action upon a contract implied by law subject to Missouri's five-year limitations period.
FN5. Compare Mo. Rev. Stat. § 516.110(1) (“Within ten years: (1) An action upon any writing, whether sealed or unsealed, for the payment of money or property . . . .”), with Mo. Rev. Stat. § 516.120(1) (“Within five years: (1) All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110, and except upon judgments or decrees of a court of record, and except where a different time is herein limited . . . .”).
Defendants' citation to this Court's decision in May Department Stores Co. v. Federal Ins. Co., 305 F.3d 597 (7th Cir. 2002) does nothing to improve their argument. In fact, the reasoning employed by this Court in May supports Plaintiffs' characterization of their claims as seeking benefits under the Plan subject to Missouri's tenyear limitations period applicable to all actions upon written contracts for the payment of money.
The issue in May was whether there was insurance coverage for the benefits May agreed to pay in settlement of two ERISA class actions brought on behalf of *24 plan participants. Id. at 598. The policy at issue excluded coverage for any liability that “constitutes benefits due or to become due under the terms of [May's pension plan].” Id. at 600. May argued that the policy's exclusion did not apply because the legal basis of the class action claims against May was not language in the plan itself but provisions of ERISA. Id. at 600-01. This Court rejected May's attempt to separate the plan's terms from the requirements of ERISA in characterizing the class action claims upon which liability was based. Id. at 601. Just like it did in May, this Court should reject Defendants' attempt here to separate the Plan's terms from the requirements of ERISA in characterizing Plaintiffs' claims for benefits.
C. Plaintiffs' Claims Were Timely Filed.
This Court should follow settled law in this area and hold that Plaintiffs' claims for ERISA benefits are governed by Missouri's ten-year statute of limitations for all actions upon written contracts for the payment of money. Once the ten-year limitations period is held to govern, there is no dispute that Plaintiffs' claims were timely filed. Defendants concede that the earliest possible accrual of Plaintiffs' claims occurred sometime in “mid-1996” or January 1, 1997. See Response Brief at 11, 47. Therefore, by Defendants' own calculation, Plaintiffs had until at least mid-2006 (or January 1, 2007) to file their claims under Missouri's ten-year limitations period. As Defendants' acknowledge, Plaintiffs' complaint was filed on June 23, 2004 against Monsanto, on October 12, 2005 against Solutia, and on January 3, 2006 against Pharmacia. See Response Brief at 4. Thus, even assuming Defendants' accrual analysis is correct, Plaintiffs' claims were timely filed under the *25 applicable ten-year limitations period.
Contrary to Defendants' unsupported claim (see Response Brief at 47), Plaintiffs have never conceded that Defendants' analysis regarding when the claims accrued is correct. Rather, Plaintiffs have argued that Defendants'
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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own accrual analysis confirms the timeliness of Plaintiffs' claims under the applicable ten-year limitations period. In any event, Plaintiffs do assert (just as Plaintiffs did in the district court, see Doc. 322 at 87-88) that Defendants' accrual analysis (which focuses on the date on which Defendants began providing notice to employees in “mid-1996” concerning the plan conversion effective January 1, 1997) is incorrect.
For instance, the Monsanto Defendants argued in the district court that Plaintiffs' claims were not ripe when filed because Plaintiffs had not exhausted their administrative remedies available under the Plan. (Doc. 11; Doc. 58). Pursuant to an agreement of the parties and upon order of the district court (Doc. 81; Doc. 82), Plaintiffs then pursued the Plan's administrative remedies, which did not result in a final determination by the Plan until November 8, 2005. (Doc. 290-19 at 324; Doc. 290-19 at 301-10). Thus, Plaintiffs' claims against the Monsanto Defendants did not accrue until November 8, 2005, and are timely under any limitations period identified by the parties. See, e.g., Daill, 100 F.3d at 66 (holding that claim did not accrue until final denial of administrative appeal); Laurenzano v. Blue Cross & Blue Shield, 134 F. Supp. 2d 189, 208-11 (D. Mass. 2001) (“In summary, under federal law, a cause of action under ERISA § 502(a)(3) [29 U.S.C. § 1132(a)(3)] to recalculate benefits accrues upon distribution of the benefits, unless *26 the participant chooses to seek internal remedies, in which case the cause of action accrues upon exhaustion of the internal remedies.”).
With respect to the claims against the Pharmacia and Solutia Defendants (which did not involve the exhaustion of administrative remedies), Plaintiffs' claims did not accrue until, at the earliest, the date of each participant's distribution of benefits (or denial of benefits). See Jenkins v. Local 705, 713 F.2d 247, 254 (7th Cir. 1983) (“A cause of action under Section 502 of ERISA, 29 U.S.C. § 1132, arose when the trustees of the pension plan denied applicant's benefit application.”); Laurenzano, supra. Defendants have no evidence in this record of any benefit distribution dates (or denial dates) sufficient to establish a viable statute of limitations defense under this accrual analysis for any individual class member.
Ultimately, it is not necessary for this Court to resolve the parties' competing views on the accrual of Plaintiffs' claims because, as noted above, even under Defendants' accrual analysis, all of Plaintiffs' claims were timely filed within the applicable ten-year limitations period.
CONCLUSION
Plaintiffs respectfully urge this Court to rule that the district court erred in granting summary judgment to Defendants and in denying summary judgment to Plaintiffs. Accordingly, the district court's judgment in favor of Defendants on Plaintiffs' Age 55 Cut-Off claims (Counts I, II and III of the Consolidated Class Action Complaint) should be reversed, and judgment entered in favor of Plaintiffs on those claims.
Grant M. WALKER, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants, v. MONSANTO COMPANY PENSION PLAN, et al., Defendants - Appellees. Glynn Davis, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants, v. Solutia Incorporated Employees Pension Plan, Defendant - Appellee. Fred Donaldson, individually and on behalf of all other similarly situated, et al., Plaintiffs - Appellants, 2010 WL 1789186 (C.A.7 ) (Appellate Brief )
END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3637 GRANT M. WALKER, individually and on behalf of all others similarly situated, et al.,
Plaintiffs-Appellants, v.
MONSANTO COMPANY PENSION PLAN, et al., Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Illinois.
No. 3:04 C 00436—J. Phil Gilbert, Judge.
ARGUED APRIL 20, 2010—DECIDED JULY 30, 2010
Before BAUER, FLAUM, and EVANS, Circuit Judges. FLAUM, Circuit Judge. This is a class action lawsuit challenging the manner in which certain credits accrue in the Monsanto Company’s pension plan as inconsistent with a provision of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1054(b)(1)(H)(i), which prohibits defined benefit plans from ceasing or reducing an employee’s benefit accrual because of the

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attainment of any age. Finding that the employees’ rate of benefit accrual does not decrease because of age, we affirm the district court’s grant of summary judgment to the defendants.

I. Background
This case has its origins in a 1997 restructuring of Monsanto Company’s pension plan.1 Monsanto converted its classic defined benefit plan into a “cash balance plan.” In a typical defined benefit plan, participants’ benefits are described as an annuity to be paid at regular retirement age. Under a cash balance plan, each participant has a hypothetical account that represents the value of his or her pension benefit as a lump sum (some, but not all, plans give participants the option of taking this lump sum at retirement rather than receiving annuity payments). The account is hypothetical because plan participants do not actually have individual accounts. Instead, all of the plan’s assets are held in trust for all participants, and the employer is responsible for ensuring that the assets are sufficient to pay the promised benefits. ERISA treats cash balance plans as a type of defined benefit plan.

1 After the pension plan was restructured, Monsanto split into three separate corporations: Pharmacia Corporation, Solutia Inc., and a newly-created Monsanto Company. The district court certified three separate classes, one for each of the corporate spin-offs. Because the plans remain identical in all relevant respects, we do not distinguish among the plans or defendants, and refer to the defendants collectively as “Monsanto.”

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3

As part of the 1997 conversion, Monsanto established two different cash balance accounts for each of its employees. One account was intended to reflect only new benefits earned after conversion. The second was intended to preserve the age-65 benefits that employees had already earned at the time of conversion. Only the second account, called the “Prior Plan Account” or “PPA,” is at issue in this case.
Prior to conversion, the Monsanto retirement plan was not wholly standardized, meaning that the retirement options of individual employees varied. First, all employees earned an age-65 retirement benefit, which was expressed as a monthly annuity beginning at age 65. For example, an employee who retired at age 55 might be entitled to receive a $1,000 monthly annuity beginning at age 65 until she died. Second, some of the prior plans provided a discounted early retirement option to employees. These employees could begin receiving annuity payments as early as age 55, although the payments would be discounted by 3% for each year that the employee’s age was less than 65 to reflect the longer time of payment. Finally, some of the prior plans provided for a subsidized early retirement option. Eligible employees could begin receiving their full age-65 benefit as early as age 55, without taking a discounted monthly payment.
The new PPA accounts were designed to preserve each employee’s age-65 accrued balances, while standardizing the early retirement options of Monsanto employees. First, the PPA extended to all employees the right to begin receiving full age-65 payments as early

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as age 55 (the most generous of the old early retirement options). Second, the new plan gave all employees the opportunity to begin receiving benefits even before age 55. If an employee chose this option, his or her benefit would be discounted by 8.5% per year for each year the participant was younger than age 55. It is the mechanism through which this discount was implemented that is at the center of this lawsuit.
To calculate the opening balance of each participant’s PPA, Monsanto applied a conversion formula by which the account was “credited with an amount equal to the Actuarial Equivalent lump sum value of the Participant’s Predecessor Plan Accrued Benefit . . . discounted using an interest rate of eight and one-half percent per annum for each month, if any, by which the Participant’s age as of January 1, 1997 precedes age 55.” (Plan § 6.2(b)). In other words, each employee’s benefit under the old plan, which had been expressed as an annuity, would be converted to a lump sum equivalent to the cost of that annuity. That lump sum would then be discounted by 8.5% per year for each year younger than 55 the employee was at the time of conversion.
Once established, each individual’s PPA increases by way of two monthly “credits”: “pay credits” and “interest credits.” Pay credits, which are intended to reward employees for the length of their service, are equal to the current PPA balance multiplied by the monthly equivalent of 4% per annum. Employees continue to receive pay credits as long as they work for Monsanto, regardless of age. Interest credits are equal to the current PPA

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balance multiplied by the monthly equivalent of 8.5% per annum. Interest credits cease once “the Participant attains age 55.” (Plan § 6.2(d)).
In mid-1996, before the effective date of the plan conversion, Monsanto distributed literature to employees to explain the new plan. These communications explained that the 8.5% discount applied to the initial balance of employees younger than 55 and the corresponding 8.5% credits then applied until age 55. Each of these communications described the 8.5% discount as an early retirement benefit and the 8.5% interest credits as necessary to restore the full previously accrued benefit to employees.
On June 23, 2004, plaintiffs filed Walker v. Monsanto Company Pension Plan, No. 04-436, in the Southern District of Illinois. On September 1, 2006, the district court entered an order consolidating the Walker action with three related actions: Davis v. Solutia, Inc. Employees’ Pension Plan, No. 05-736 (filed October 12, 2005); Donaldson v. Pharmacia Pension Plan, No. 06-3 (filed January 3, 2006); and Hammond v. Solutia, Inc. Employees’ Pension Plan, No. 06-139 (filed February 15, 2006). The consolidated complaint alleges, among other things, that the substantively identical cash balance defined benefit plans violate ERISA’s prohibition on ceasing or reducing an employee’s benefit accrual because of the attainment of any age.
On May 22, 2008, the district certified three identical “Age 55 Cut-off claims.” On June 11, 2009, the district court granted defendants’ motion for summary judgment

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on the Age-55 Cut-off claims and denied plaintiffs’ crossmotion for summary judgment on those same claims. After additional proceedings in which the plaintiffs prevailed on an unrelated claim (not challenged on appeal), the district court entered final judgment disposing of all claims with respect to all parties on September 29, 2009. Plaintiffs timely appealed.

II. Discussion
Plaintiffs’ argument is that the plan violates ERISA on its face. First, they argue that the interest credits are part of a participant’s “benefit accrual” because they are an input credited by the employer to the participant’s stated account balance. Second, they argue that the express terms of the plan terminate this benefit when a participant reaches age 55.
ERISA prohibits defined benefit plans from reducing “an employee’s rate of benefit accrual . . . because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H)(i). As an initial matter, then, we must address whether interest credits, which are intended to reverse the 8.5% per annum discount applied to employees’ opening balances, constitute “benefit accrual.”
ERISA does not define the phrase, “benefit accrual.” However, we have considered its meaning previously. See Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006). In Cooper, the defendant, IBM, ran a cash balance pension plan that operated in a manner similar to a defined contribution plan. Each employee received a 5% pay credit (based on the employee’s current salary)

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and an interest credit (equal to 1% above the Treasury rate multiplied by the account’s balance) each year. Interest credits continued to accrue until retirement age, whether or not the participant ceased working for the company. At retirement, an employee could either take the balance as cash or roll it over into an annuity. Id. at 637. The plaintiffs in Cooper alleged that this plan discriminated against older workers. Because a younger worker would receive more years of interest before retirement, a year of service at age 35 would increase an employee’s total accrued benefit more than a year of service (at the same salary) at age 55. We rejected the Cooper plaintiffs’ arguments, noting that it “treats the time value of money as age discrimination.” Id. at 638. Instead, we held that “benefit accrual” addresses “the rate at which value is added (or imputed) to an account, rather than the annual pension at retirement age.” Id. at 639. In reaching this decision, we relied on the fact that IBM’s method of crediting retirement accounts would certainly have been permissible for a defined contribution plan. Id. at 638; see also 29 U.S.C. § 1054(b)(2)(A) (requiring that, for defined contribution plans, “allocations to the employee’s account are not ceased, and the rate at which amounts are allocated to the employee’s account is not reduced, because of the attainment of any age.”). Finally, we noted that a draft Treasury regulation acknowledged that for cash balance plans that operated in a manner similar to a defined contribution plan, “benefit accrual” should be treated as “the additions to the participant’s hypothetical account for the plan year.” Cooper, 457 F.3d at 639; see also 67 Fed. Reg. 76,123, 76,125 (Dec. 11, 2002).

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Plaintiffs argue that in Cooper, we adopted a bright-line rule that any credit to a participant’s cash balance account amounts to benefit accrual. Since the interest credits here increase the stated cash balance, they argue, they must be benefit accruals. Defendants, on the other hand, argue that the interest credits cannot be benefit accruals because they do not increase the total “accrued benefit”—the amount of the annuity to which the employee is entitled at normal retirement age. See Cooper, 457 F.3d at 638; 29 U.S.C. § 1002(23)(A).
The disagreement stems from the flexible nature of cash balance plans. The most common type of cash balance plan operates in a manner similar to a defined contribution plan, as did the plan at issue in Cooper. See also Berger v. Xerox Corp. Retirement Income Guarantee Plan, 338 F.3d 755, 757 (7th Cir. 2003) (describing a cash balance plan that “resembles” a defined contribution plan). For these cash balance plans, which pay participants a yearly interest rate on their plan balances, we must look to “the additions to the participant’s hypothetical account for the plan year” to avoid treating compound interest as age discrimination. See Cooper, 457 F.3d at 639 (quoting 67 Fed. Reg. at 76,126). But plaintiffs point to no requirement that a cash balance plan operate in this way. The plan at issue in this case instead mimics a defined benefit plan (likely because it was intended to preserve the benefits already earned by employees under Monsanto’s old defined benefit plan). Participants are promised a certain benefit at retirement, which is described as a lump-sum cash balance. Because this is not an “eligible cash balance plan,” see 67 Fed. Reg. at

No. 09-3637

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76,125, the general mechanism for determining benefit accrual applies—“the increase in the participant’s accrued normal retirement for the benefit year.” Cooper, 457 F.3d at 639 (quoting 67 Fed. Reg. at 76,125). The draft Treasury Regulation makes clear that this general method may be used by all defined benefit plans (including cash balance plans); it is only the method used in Cooper that is limited to certain qualifying cash balance plans. 67 Fed. Reg. at 76,125 (stating that the general rule “may be used by all defined benefit plans” while the “second approach may be used only by an eligible cash balance plan”).
One might wonder how these two mechanisms can coexist. The reason is that while retirement plans are prohibited from discriminating against older workers, they are not prohibited from favoring them. Traditional defined benefit plans and the cash balance plans that mimic them treat younger workers less favorably than older workers. These plans do not address the fact that an employer will have to save more to pay out a particular accrued retirement benefit for an older worker (who is close to retirement, giving the employer less compound interest on the savings) than to pay that same benefit to a younger worker (who is further from retirement, allowing the employer to earn more compound interest on the savings). See Cooper, 457 F.3d at 639 (noting that traditional defined benefit plans favor older workers). Imagine two workers who, for a given year, both earn an identical increase in their monthly annuity at retirement. If one worker is at retirement age, the employer will have to set aside the full value of that annuity immediately. But for a young worker, the present value of the annuity

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No. 09-3637

is significantly less, because setting aside a smaller amount of money to earn interest for several years will suffice to pay the benefit. Because a plan that increases the accrued benefit at retirement equally for young and old workers actually favors the older workers, treating the “rate of benefit accrual” as “the increase in the participant’s accrued normal retirement benefit for the year” will never mask age discrimination where it exists.
Looking at the rate of increase in the participant’s accrued normal retirement benefit, it becomes clear that the interest credits here are not benefit accruals. This is because they never increase the accrued benefit at retirement. Imagine, for example, a 50-year-old employee who accrued prior to conversion a retirement benefit worth $1,000 per month at normal retirement age. Further assume the value of this benefit as a lump sum is $125,000. Under the new plan, the employee would be entitled to collect this benefit at age 55. This $125,000 lump sum is discounted at the rate 8.5% for the five years left before the worker reaches age 55. In 1997, at age 50, her account balance would be $83,131.2 But if she retired at age 50 and waited to receive her benefits until age 55, she would receive five years of interest on that

2 Assuming that interest is compounded annually, the discounted opening balance is arrived at by dividing the lump-sum accrued benefit by 1.085 (one plus the interest rate) raised to the fifth power (the number of years of discounting).

No. 09-3637

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balance, resulting in a lump sum of $125,000.3 At age 51, her account balance would increase by 8.5%, or $7,066, to $90,197. But if she retired at age 51 and waited until normal retirement age to collect her benefit, she would receive four more years of interest credits, again resulting in a balance of $125,000. And if she worked beyond age 55, her accrued benefit would remain at $125,000 (in the PPA account—remember that she would continue to earn new benefits, but these are tracked in a separate account). Viewed as the increase in her accrued benefit at normal retirement age, the hypothetical employee’s rate of benefit accrual is zero, both before and after reaching age 55.4 The only time the value of the

3 The value of the age 50 balance at age 55 is arrived at by multiplying the discounted opening balance by 1.085 (one plus the interest rate) raised to the fifth power (the number of years remaining until she reaches age 55 and is eligible for the full retirement benefit).
4 This hypothetical is a simplification, because it ignores the 4% annual “pay credit,” which continues to accrue as long as the plan participant works for Monsanto. Plaintiffs argue that even if the 8.5% interest credits would not otherwise be benefit accruals, they become benefit accruals because they also apply to the 4% pay credit. This argument fails as a matter of mathematics. The 4% pay credit applies to balance of the PPA account, which for workers under age 55, has already been discounted at a rate of 8.5% per year. Applying the 4% pay credit for each new year of service to the discounted cash balance is equivalent to applying the pay credit for each new year of service to the accrued benefit and then
(continued...)

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No. 09-3637

account at retirement would be different than $125,000 is if the employee began receiving payments before age 55—in other words, if she took advantage of the discounted early retirement option provided by Monsanto. Plaintiffs’ argument, if adopted, would treat all discounted early retirement programs as violations of § 1054(b)(1)(H)(i).
In this respect, plaintiffs’ argument is quite similar to the argument rejected by the Eighth Circuit in Atkins v. Northwest Airlines, Inc., 967 F.2d 1197 (8th Cir. 1992). In Atkins, the defendant airline’s retirement plan offered a normal retirement benefit to pilots at age 60 and an early retirement benefit that was discounted for pilots younger than 60. Because of the discounting, the monthly

4 (...continued) discounting the accrued benefit to a cash balance. An example may be helpful. If we include the pay credits, at age 51 our hypothetical employee’s cash balance account will have increased to $93,805: $83,131 (the initial balance) plus $3,325 (the pay credit) plus $7,349 (the interest credit on the sum of the initial balance and the pay credit). This results in an age-55 benefit of $130,000 ($93,805 times 1.085 to the fourth power). Alternately, one could apply a 4% pay credit to the age-55 balance of $125,000. This equals an accrued benefit of $130,000; discounted by the four years remaining until age 55, this yields a cash balance of $93,805 ($130,000 divided by 1.085 to the fourth power). Thus, at any time, the only increase in the value of an employees’ cash balance or accrued benefit is solely attributable to the 4% pay credits, which do not cease upon reaching any age.

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benefit of pilots who did not take early retirement would appear to increase each year that they postponed receipt of their benefits (as each passing year meant one less year of discounting for early payment); but at age 60, the increases ceased, as the pilot was then entitled to the full retirement benefit.5 The pilots argued that when the airline ceased giving them increases to reverse the early retirement discount, it had ceased their benefit accrual on account of age and thereby violated 29 U.S.C. § 1054(b)(1)(H)(i). The Eight Circuit rejected this argument, noting that ERISA permits early retirement discounts and holding that because they do not affect the pension payment a retiree receives at normal retirement age, the reversal of early retirement discounts are not “accrued benefits” under ERISA. 967 F.2d at 1201.
Plaintiffs’ attempts to distinguish Atkins are unavailing. They argue that unlike Atkins, this case involves neither a service cap nor an early retirement feature. They do not explain why the presence of a service cap makes any difference, and we see none. Their claim that the plan at issue here does not include an early retirement benefit is misleading. We have already explained why the mecha-

5 The perceived inequality was exacerbated in Atkins because the airline also had a service cap of 25 years (which is permitted under ERISA). A pilot who reached 25 years of service before age 60 would see his “benefit” increase each year until he reached 60 as the early retirement discount phased out, but a pilot who reached 25 years of service after 60 would see no increase after the 25th year (because no early retirement discount would apply to his payment).

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nism of discounting the opening cash balance of employees under age 55 and then crediting back that discount until the employee reaches age 55 functions like an early retirement discount, never changing the accrued benefit at normal retirement age but reducing the benefit if employees choose to receive payment early. Plaintiffs object to the characterization of the 8.5% interest credits as a reversal of the earlier 8.5% discounting; they dismiss it as “mathematically convenient” but unfounded because there is no cross-reference between Section 6.2(b) of the plan, which discounts the opening balance, and Section 6.2(d), which describes the interest credits. This argument is spurious. Whether or not there is a crossreference, the concrete result of applying the two formulas is that a participant’s accrued benefit never changes. Moreover, it is undisputed that this mechanism was described to employees as the way the discounted early retirement feature was being implemented. The only evidence plaintiffs cite in support of their claim that the 8.5% interest credits were not part of a discounted early retirement option is an excerpt from a 2002 submission to the IRS in which Monsanto indicated that there is no early retirement benefit formula in the plan. This statement was correct—because the early retirement discount was built into the opening balance of the PPA accounts, there is no separate early retirement formula in the plan. In any event, it is irrelevant to this appeal whether the discount and subsequent credits are described as an early retirement discount or not. The applicable statute makes no mention of early retirement discounts but rather asks whether a participant’s rate of

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benefit accrual ceases or is reduced on account of reaching a certain age. 29 U.S.C. § 1054(b)(1)(H)(i). Like the credits to reverse the early retirement discounts in Atkins, the interest credits here have no impact on the accrued benefit at normal retirement age and therefore have no effect on an employee’s rate of benefit accrual.
Plaintiffs’ final argument is that the Monsanto plan works an “impermissible forfeiture” by not extending the interest credits to age 65. Citing IRS Notice 96-8 and Revenue Ruling 2008-7, they argue that all cash balance plans must add any “interest” through a plan’s normal retirement age. See Rev. Rule 2008-7, 2008-7 I.R.B. 419, 2008 WL 274325 (“[I]n determining the accrued benefit of a participant under a cash balance plan at any time prior to normal retirement age, the balance in the cash balance plan must be projected with interest credits to normal retirement age.”); Notice 96-8, 1996-8 I.R.B. 23, 1996 WL 17901 (“Under a cash balance plan, the retirement benefits payable at normal retirement age are determined by reference to the hypothetical account balance as of normal retirement age, including benefits attributable to interest credits to that age.”) These regulations do not help plaintiffs’ cause. The notice and revenue ruling provide only that when a plan promises interest credits prior to normal retirement age that are not conditioned on future employment, then the plan must include the value of the interest credits when converting an employee’s accrued benefit to an immediately payable lump sum. See Cooper, 457 F.3d at 640 (Notice 96-8 requires that “a plan must . . . add all the interest that would accrue through age 65, then . . . discount the resulting sum to its

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present value.”); see also Fry v. Exelon Corp. Cash Balance Pension Plan, 571 F.3d 644, 645 (7th Cir. 2009) (in calculating lump-sum distributions, pension plans were required to “start with the current balance and add any contractually promised interest (or any other form of guaranteed increase in benefits) through the employee’s ‘normal retirement age’ ” before discounting them to a present value). These regulations follow from the principle that a lump-sum substitute for an accrued pension benefit must be the “actuarial equivalent” of that benefit. See 29 U.S.C. § 1054(c)(3); Berger, 338 F.3d at 759. Thus, promised future interest credits that increase the accrued benefit must be included when calculating the lump sum paid to someone who chooses to take their benefit before regular retirement age. Id. at 760. We have already explained that the interest credits here, unlike those at issue in Berger, do not increase the accrued benefit at normal retirement age. But plaintiffs’ argument also fails at a more fundamental level. They are not arguing that the plan forfeits retirement-age benefits when a participant elects to take a lump-sum payment early; rather, they seek to increase the retirement-age benefit by requiring interest credits through age 65.6 But

6 In particular, plaintiffs do not claim that the 8.5% early retirement discount rate from age 55 works an impermissible forfeiture by understating that present value of the participant’s accrued benefit at normal retirement age. Cf. Berger, 338 F.3d at 759 (“[Plaintiffs] contend that the amount they received was not the actuarial equivalent of what they would
(continued...)

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the regulations do not prescribe what benefit a plan must promise a participant at retirement age. They only require that a participant receive the actuarial equivalent of that benefit if the participant takes a lump-sum payment early. Notice 96-8 and Revenue Ruling 2008-7 are thus wholly irrelevant to plaintiffs’ claims.

III. Conclusion
We AFFIRM the district court’s grant of summary judgment to the defendants.

6 (...continued) have received either as an annuity or a lump sum had they waited until age 65.”); see also 29 U.S.C. § 1053(f) (no impermissible forfeiture when the present value of the accrued benefit is, under the terms of the plan, equal to the amount expressed as the balance in the cash balance account).
7-30-10