UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and On behalf of others similarly situated,
Plaintiff,
v.
FLEETBOSTON FINANCIAL CORP., FLEETBOSTON FINANCIAL PENSION PLAN, and BANK OF AMERICA CORPORATION
Defendants.

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No. 3:04CV1638 (JCH)

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December 12, 2006

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SECOND AMENDED COMPLAINT

1. This Complaint is about the FleetBoston Pension Plan’s cash balance retirement

plan. It asserts that in adopting and administering the FleetBoston Pension Plan the defendants

violated the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29

U.S.C. §1001, et seq. in one or more of the following ways: (1) when it amended its pension

plan to a cash balance approach, FleetBoston’s predecessor bank, Fleet Financial Group Inc.

(“Fleet”), failed to notify plan participants that the amendment was significantly reducing their

benefits under the plan; (2) FleetBoston, its predecessor, and its successor bank have failed to

provide plan participants with an adequate summary plan description that alerts plan participants

that their pension benefits have been reduced, that apparently accruing benefits might never

actually be paid, that the rate of benefit accruals decreased with age, and that the annuity and

lump sum forms of payment under the plan are not equal in value; (3) the company, its

predecessor, and its successor have concealed from plan participants the amount of their accrued

benefits, the relative values of the annuity lump sum forms of payment, and the application of

“the Rule of 85” to certain Class Members pension calculations; (4) the pension plan reduces the rate of benefit accruals on account of age. Plaintiff seeks appropriate declaratory and injunctive relief to enforce the rights she enjoyed under the plan prior to the cash balance amendment and/or the elimination and/or reformation of unlawful plan provisions.
JURISDICTION, VENUE, AND SERVICE OF PROCESS 2. Plaintiff invokes the jurisdiction of this Court pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §1001, et seq. 3. Venue in this Court is proper under ERISA Section 502(e)(2), 29 U.S.C. §1132(e)(2), in that Defendants may be found in this District and the breach took place in this District. 4. Service of process is authorized in any other district where a defendant resides or may be found. ERISA Section 502(e)(2), 29 U.S.C. §1132(e)(2).
THE PARTIES 5. Plaintiff Donna C. Richards (“Richards”) resides in Glastonbury, Connecticut. 6. Richards at all relevant times was a participant in the FleetBoston Plan and the predecessor plan sponsored by Fleet as the term "participant" is defined in ERISA Section 3(7), 29 U.S.C. §1002(7). 7. Defendant FleetBoston Financial Pension Plan (“the Plan” or “FleetBoston Plan”) is an employee benefit plan as defined in Section 3(3) of ERISA, 29 U.S.C. §1002(3), and an “employee pension benefit plan” as defined in Section 3(2)(A), 29 U.S.C. §1002(2)(A). The FleetBoston Plan may be found in Connecticut because participants earn and receive benefits in Connecticut.
2

8. Defendant FleetBoston Financial Corp. ("FleetBoston") is a business corporation organized and existing under the laws of the State of Delaware. On April 1, 2004, FleetBoston was acquired by Bank of America Corporation. FleetBoston is qualified to do business and does business in Connecticut.
9. At all relevant times, FleetBoston has been an employer within the meaning of 29 U.S.C. §1002(5), a "plan sponsor" as defined in Section 3(16)(B) of ERISA, 29 U.S.C. §1002(16)(B), a "plan administrator" as defined in Section 3(16)(A) of ERISA, 29 U.S.C. §1002(16)(A), and a fiduciary within the meaning of Section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A).
10. Defendant Bank of America Corporation is a business corporation organized and existing under the laws of the State of Delaware. On April 1, 2004, Bank of America acquired FleetBoston. Bank of America is qualified to do business and does business in Connecticut.
11. At all relevant times after April 1, 2004, Bank of America has been an employer within the meaning of 29 U.S.C. §1002(5) and a fiduciary within the meaning of Section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A).
CLASS ACTION ALLEGATIONS 12. Richards brings this action as a class action in accordance with Federal Rule of Civil Procedure 23 to resolve disputes under the Employee Retirement Income Security Act of 1974. Judicial economy dictates that the issues be resolved in a single action. 13. The proposed class is defined as any and all persons who:
(a) Are former or current Fleet employees who on December 31, 1996 were not at least age 50 with 15 years of vesting service, and (b) Participated in the Fleet Pension Plan before January 1, 1997, and
3

(c) Have participated in the Fleet Pension Plan at any time since January 1, 1997. 14. The proposed class covers all participants who have been harmed by the ERISA breaches set forth below. 15. On information and belief the proposed class covers well over 1,000 individuals. The class is so numerous that joinder of all members is impracticable. 16. There are common questions of law and fact affecting the rights of the members of the class. The claims of the named class representative are typical of the claims of the class. The named representative will fairly and adequately protect the interests of the class. 17. This action is maintainable as a class action under Rule 23 (b)(1) because the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. 18. This action is maintainable as a class action under Rule 23(b)(2) because Defendant has acted and/or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and other equitable relief in favor of the class.
STATEMENT OF FACTS 19. Richards was born on May 15, 1948. 20. Richards was hired by Hartford National Bank on February 5, 1973. 21. Following a series of mergers she became a participant in the Shawmut Retirement Plan.
4

22. When Fleet Financial Group acquired Shawmut National Corporation in 1995, it acquired Richards as an employee and merged the Shawmut Retirement Plan into the Fleet Pension Plan, which following a merger between Fleet and Bank Boston became, known as the defendant, FleetBoston Financial Pension Plan (the "Plan" or the "FleetBoston Plan"). On April 1, 2004 Bank of America acquired FleetBoston and Richards is now an employee of Bank of America.
23. Richards’s present job title is Senior Vice President in Bank of America's Private Clients Group.
24. Prior to January 1, 1997, FleetBoston’s predecessor Fleet had provided its employees with a defined pension plan under which retiring employees received a percentage of their final average pay for life (the "Traditional Plan Terms").
25. Under the Traditional Plan Terms, as employees got older, the rate of their benefit accruals increased. The Traditional Plan Terms rewarded Fleet's longest serving and presumably most loyal employees by tying their retirement benefit amount to years of service and to salary, numbers which are higher in an employee’s last years of service. Under the Traditional Plan Terms, as a Fleet employee got closer to retirement and enjoyed a higher salary, Fleet was obliged to put away increasingly larger sums of money so that funds were available to pay the promised benefit at retirement. Employees with less service and more years until retirement correspondingly cost Fleet less, especially because, given potential investment earnings over time, the longer Fleet had before having to pay a dollar, the smaller the amount of money Fleet had to put aside to provide the dollar in the future. For this reason, the Traditional Plan Terms were “backloaded” -- an employee’s last years of service under a plan --- close to collecting,
5

with a high salary and many years of service --- were the most profitable to a Fleet employee and

most expensive to Fleet.

26. Effective January 1, 1997, Fleet amended the Fleet Pension Plan to convert the

Traditional Plan Terms to: (1) for new employees a “cash balance” benefit; (2) for employees

over age 50 with 10 years of service, a benefit computed based on a percentage of their final

average pay, and (3) for employees under 50 or age 50 with less than 10 years of service, the

greater of benefits accrued under the Traditional Plan Terms through December 31, 1996 and

benefits earned under the new cash balance formula.

27. The cash balance retirement benefit provided under the FleetBoston Plan is

calculated based upon an annual payment to a hypothetical account of a percentage of an

employee's pay (the "pay credit") together with a payment of interest on the annual hypothetical

account (the "interest credit").

Benefit Accrual Rates Decreasing with Age.

28. As with many cash balance benefits, pay credits under the FleetBoston Plan cash

balance benefit are determined by "points" equal to the sum of an employee's age and vesting

service. Subject to adjustment for social security integration, the pay credits are as follows:

POINTS

CREDIT

age +service

Under 40

3%

40 to 49

3.5%

50-59

4.5%

60-69

5.5%

70-79

6.5%

6

80 or more

7.5%

29. Interest credits under the FleetBoston Plan cash balance benefit are based on the

average annual yield of one-year U.S. Treasury constant maturities for the month preceding the

calendar quarter in which the pay period begins.

30. If a Plan participant's employment terminates before age 65, the Plan ceases to

make hypothetical pay credit payments but continues through age 65 to make hypothetical

interest credits.

31. To determine on any given day the age-65 value of a participant's cash balance

benefit, interest credit payments on the cash balance are projected each year from the date of

determination through the participant's 65th birthday. That balance (and the annuity that can be

created from it) is the cash balance benefit provided under the cash balance terms of the

FleetBoston Plan.

32. Unlike the benefits under the Traditional Plan Terms, the FleetBoston Plan's cash

balance benefits accrue in relatively stable percentages throughout an employee’s career. The

benefits do not start out accruing in small amounts and then significantly balloon in the final

years like benefits do under the Traditional Plan Terms. The net effect of this difference is that

younger employees' pensions relatively gain under the FleetBoston Plan's cash balance benefit

and older employees' pensions relatively lose. Under the FleetBoston Plan's cash balance

benefit, an older worker with the same rate of pay and years of service as a younger worker,

receiving the same dollar amount of contribution to her cash balance account, buys an

increasingly smaller age-65 pension annuity with that money because the closer the older worker

gets to retirement age the less time the money contributed has to earn annual interest credits

under the plan. The rate of benefit accrual thus decreases as a direct result of increases in the

7

employee’s age. As the employee gets one year older, the amount of the interest credits to be earned through age-65 is reduced. Therefore, the FleetBoston cash balance benefit accrues benefits that steadily decrease with advancing age, with the effects partially mitigated, but not eliminated, by the Plan's "points" approach to pay credits. The Wear-Away Effect.
33. Like many cash balance plans the FleetBoston Plan's cash balance benefit terms converted the benefits employees earned under the Traditional Plan Terms into a hypothetical opening cash balance account.
34. When Plan administrators calculated the opening account, however, they ignored Plan participants’ valuable rights to subsidized early retirement benefits and instead the opening account balance was derived by computing the benefit under the Traditional Plan Terms as a single life annuity commencing at age 65. They also applied a pre-retirement mortality discount (providing for the possibility of death prior to normal retirement) but provided no mechanism for crediting this discount back as participants grow older and the risk of pre-retirement mortality steadily shrinks. They also used a 7% interest rate but provided no mechanism to adjust the balance when, as they have over the last five years, interest rates have fallen below the 7% rate used in the conversion.
35. The combination of these factors yielded an opening account balance for Richards that was substantially less than the value of the benefits she had accrued under the Traditional Plan Terms on December 31, 1996.
36. This difference has significant consequences under the FleetBoston Plan's new cash balance benefit terms because Richards’s accrued benefit under the FleetBoston plan is a
8

“greater of benefit,” creating a critical role for the previously accrued benefits in calculating the new benefit accruals under the Amended Plan:
“Accrued Benefit” means, as of any determination date, (a) for a Cash Balance Participant for whom an Opening Account Balance is
calculated based on his accrued benefit under the Plan and/or a predecessor plan, the greater of (1) the monthly benefit, payable in the form of a Single Life Annuity, commencing on the Participant’s Normal Retirement Date, or, as applicable, any later determination date, which is the Actuarial Equivalent of the Participant’s Cash Balance Account, and (2) the Participant’s accrued benefit under the Plan and/or, if applicable, under a predecessor plan, as of the date the Participant’s Opening Account was determined. Richards cannot receive her previously accrued benefits and simply add the new cash balance benefits to them. Instead the Fleet Plan promises her the greater of the two benefits. 37. Because the difference between Richards’s opening account balance and her frozen benefit is substantial, Richards hasn’t earned any new retirement benefits in the nine years she has worked under the cash balance benefit terms. This phenomenon is known as the “wearaway effect”. Fleet's Failure to Explain Benefit Cuts and Continuing Misrepresentations. 38. Because benefit accruals decline with age under the FleetBoston Plan and because of the wear-away effect, the amendment of the FleetBoston Plan that added the cash balance terms, significantly reduced the rate of future benefit accruals for many plan participants, including Richards. 39. Despite this impact, prior to the effective date of the change, Fleet gave no notice to plan participants, explaining to them the existence and the extent of a significant reduction of their benefits. 40. Despite this impact, Fleet did not explain the full import of the cash balance plan terms in a summary plan description distributed to plan participants, including but not limited to
9

an explanation of the wear-away effect and a disclosure that benefit accruals under the plan are reduced by advancing age.
41. Instead, despite the totally hypothetical character of the cash balance accounts and the wear-away effect's elimination of years of benefit accruals, Fleet falsely promised plan participants "your cash balance benefit builds steadily throughout the time you work at Fleet. Each quarter Fleet makes pay credits and interest credits into an account in your name."
42. Despite the plan's significant reduction in plan benefits, Fleet answered a hypothetical employee question: "Can my pension benefit decrease under the new Fleet Pension Plan?", with the answer "No.", by disingenuously observing: "Whether you participate in the cash balance benefit or the traditional benefit, you will never receive less than the benefit you earned as of December 31, 1996", omitting to mention that the amendment caused many plan participants to lose substantial plan benefits to the wear-away effect and the benefit accruals that decline with age. Instead, Fleet explained that a key reason it was adopting the cash balance benefit was because, "The New Plan makes good sense for our employees".
43. Even though the cash balance terms say Richards is entitled to receive the greater of her cash balance account or her frozen benefits, Fleet plan administrators and their successors have routinely concealed the amount of their frozen benefits from Richards and other similarly situated plan participants when providing them with statements of their accrued benefits. Quarterly, Fleet and its successors have given Richards and every similarly situated cash-balance plan participant a statement of benefits earned under the FleetBoston Plan that is materially misleading because, while it lists the balance in participants’ hypothetical cash balance accounts, it conceals the amount of their frozen benefits even when these benefits are greater than the cash balance benefits. Furthermore, upon information and belief, when plan participants have asked
10

administrators for statements of the retirement benefits they have earned, the administrators give them materially misleading documents that list the balance in participants’ hypothetical accounts as their “accrued benefits” while concealing their frozen benefits even when these benefits are greater than the cash balance benefits. Richards received such a statement dated July 2, 2004 showing her “accrued benefit” as $161,177.49 but concealing that the frozen benefit that was her actual accrued benefit on that date was $232,244. Richards and other similarly situated plan participants receiving these materially misleading statements and documents were likely harmed by the false information in them because the false information likely caused them to believe that their retirement benefits were substantially less than they actually were, thus adversely affecting their retirement planning, their understanding of the terms and conditions under which they continue employment, and their knowledge at retirement of whether they are receiving the right amount of benefits.
44. Fleet and its successors have failed to supply Richards and other plan participants receiving benefit estimates and benefit election forms with accurate benefit calculations reflecting the “Rule of 85” which limits benefit reductions for early retirement for most employees converted to the cash balance formula whose age and years of service added together equal at least 85. December 24-28, 2004 emails between Fleet officials and their third party administrators at Fidelity shows that plan administrators were not properly applying the Rule of 85 to Richards and other plan participants.
45. In violation of C.F.R. 1.401(a)-20, Q&A 36 which implements ERISA §205 (g), Fleet and its successors have also failed to supply Richards and other plan participants receiving benefit estimates and benefit election forms with an explanation of the relative value of the optional forms of benefits available under the plan even though the lump sum and annuity forms
11

of payment are not equally valuable. Richards received a July 2, 2004 estimate without the

required information.

46. Prior to April 1, 2004, the plan administrators who prepared and distributed the

misleading statements and documents set forth were agents and employees of Fleet or

FleetBoston. After April 1, 2004 the plan administrators who prepared and distributed the

misleading statements and documents set forth were agents and employees of Bank of America.

COUNT ONE:

Violation of ERISA §204(b)(1)(H): Decreasing Benefit Accrual Rates with Advancing Age.

47. The cash balance terms of the Fleet Plan violate the prohibition in ERISA Section

204(b)(1)(H) against an employer establishing or maintaining plan rules that reduce “the rate of

an employee’s benefit accrual . . . because of the attainment of any age.”

48. Accordingly, Richards is entitled to appropriate equitable relief under ERISA

§502 (a)(3) and/or additional benefits under ERISA §502 (a)(1)(B).

COUNT TWO:

Violation of ERISA §204 (h): Failure to Supply Advance Notice of a Significant Benefit Decrease.

49. Fleet’s failure to notify Richards and other plan participants of a significant

reduction in the rate of future benefit accrual 15 days prior to the January 1, 1997 effective date

violated the ERISA §204 (h) prohibition on such plan amendments in the absence of such notice.

50. Accordingly, Richards is entitled to appropriate equitable relief under ERISA

§502 (a)(3) and/or additional benefits under ERISA §502 (a)(1)(B).

COUNT THREE: Violation of ERISA §102: Failure to Provide an Adequate Summary Plan Description (SPD).

51. Fleet and its successors’ failure to explain the full import of the cash balance plan

terms in a summary plan description distributed to plan participants, including but not limited to

12

a complete explanation of the wear-away effect violates the minimal requirements for SPDs set

forth in ERISA §102 and its implementing regulations found in 29 C.F.R. 2520.102.

52. Fleet and its successors’ failure to explain the relative value of the optional forms

of benefit available under the plan violates the minimal requirements for SPDs set forth in

ERISA §102 and its implementing regulations found in 29 C.F.R. 2520.102.

53. Accordingly, Richards is entitled to appropriate equitable relief under ERISA

§502 (a)(3) and/or additional benefits under ERISA §502 (a)(1)(B).

COUNT FOUR: Violation of ERISA §404: Breach of Fiduciary Duty.

54. By intentionally, recklessly or negligently making the materially false statements

described in paragraphs 41-45, above, and by failing to comply with ERISA §102 and ERISA

§204 (h) Fleet, FleetBoston Financial Corp., and/or Bank of America have breached the fiduciary

duties they owe to Plan participants under ERISA §404.

55. Accordingly, Richards is entitled to additional benefits under ERISA §502

(a)(1)(B) and/or appropriate equitable relief under ERISA §502 (a)(3).

COUNT FIVE:

Violation of ERISA §204(c)(3): Failure to Provide an Actuarially Equivalent Lump Sum.

56. When Fleet and its successors apply the pre-retirement mortality discounts

described in paragraph 34 to lump sums paid prior to age 65, they violate ERISA §204 (c)(3)

because they are discounting the participants’ accrued benefits for the probability of dying before

normal retirement age even though the plan would pay the same lump sum to the beneficiaries of

any participants who die before age 65. This affects Richards because she is likely to retire with

a lump sum before age 65.

57. Accordingly, Richards is entitled to additional benefits under ERISA §502

(a)(1)(B) and/or appropriate equitable relief under ERISA §502 (a)(3).

13

Prayer for Relief. WHEREFORE, the Plaintiff prays that this Court for:
1. A declaration that the cash balance amendment to the Fleet Pension Plan which purportedly took effect on January 1, 1997 was ineffective for, and that the plan in place prior thereto is still in force and effect for, any participants who suffered a reduction of future benefit accruals because of the amendment;
2. A declaration that a participant’s rate of benefit accrual under the FleetBoston Plan and its predecessor plan must be measured at all times in terms of the increase in a participant’s annual benefit commencing at normal retirement age;
3. An injunction prohibiting the application of the FleetBoston Plan and its predecessor plan’s reductions in the rate of benefit accruals because of age;
4. An order for appropriate equitable relief, including but not limited to, an accounting to determine plan participant losses caused by Fleet and its successors’ violations of ERISA as alleged in this Second Amended Complaint and requiring the payment of additional benefits as appropriate under the Court's ruling;
5. An injunction ordering the FleetBoston Plan and Bank of America to cease publishing misleading information concerning benefits under the FleetBoston Plan and ordering the FleetBoston Plan and/or Bank of America to distribute to plan participants an accurate summary plan description, an accurate statement of FleetBoston Plan participants’ accrued benefits and ordering the FleetBoston Plan and/or Bank of America to take such other steps as the Court may deem just to ensure that FleetBoston Plan participants receive truthful, accurate and complete descriptions of the benefits due to them under the FleetBoston Plan.
6. Attorney's fees pursuant to ERISA §502 (g);
14

7. Interest; 8. Costs; 9. An order for appropriate equitable and remedial relief to ensure that relief granted hereunder is implemented on a class-wide basis, 10. Such other equitable and remedial relief as the Court deems appropriate.
THE PLAINTIFF: DONNA C. RICHARDS
By /s/ Thomas G. Moukawsher Thomas G. Moukawsher ct08940 Ian O. Smith ct24135 Moukawsher & Walsh, LLC 21 Oak Street, Suite 209 Hartford, CT 06106 T: (860) 278-7000 F: (860) 548-1740 E: tmoukawsher@mwlawgroup.com E: ismith@mwlawgroup.com
ATTORNEYS FOR PLAINTIFF
15

CERTIFICATE OF SERVICE

I hereby certify that on December 12, 2006, the foregoing SECOND AMENDED

COMPLAINT was filed electronically with the Court and served by mail on anyone unable to

accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of

the Court’s electronic filing system or by mail to anyone unable to accept electronic filing.

Parties may access this filing through the Court’s system.

William F. Conlon wconlon@sidley.com Scott E. Gross sgross@sidley.com Brian P. Guarraci bguarrac@sidley.com Julie A. Koca jkoca@sidley.com Anne E. Rea area@sidley.com Sidley Austin Brown & Wood 10 S. Dearborn St. Chicago, IL 60603

George J. Kelly, Jr. Siegel, O'Connor, Zangari, O'Donnell & Beck 150 Trumbull St. Hartford, CT 06103 gkelly@siegeloconnor.com
Keith P. Carroll Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. One Financial Center Boston, MA 02111 617-542-6000 617-542-2241 (fax) kpcarroll@mintz.com

/s/ Thomas G. Moukawsher Thomas G. Moukawsher ct08940 Moukawsher & Walsh, L.L.C. 21 Oak Street, Suite 209 Hartford, CT 06106 T: 860-278-7000 F: 860-548-1740 E: tmoukawsher@mwlawgroup.com

16

 
 427 F.Supp.2d 150

FOR EDUCATIONAL USE ONLY

427 F.Supp.2d 150, 37 Employee Benefits Cas. 1449

(Cite as: 427 F.Supp.2d 150)

Page 1

Richards v. FleetBoston Financial Corp. D.Conn.,2006.
United States District Court,D. Connecticut. Donna C. RICHARDS, individually, and on behalf of
others similarly situated, Plaintiff v.
FLEETBOSTON FINANCIAL CORP. et. al., Defendants.
No. Civ.A.3:04CV1638(JCH).
March 31, 2006.
Background: Employee brought class action against her employer and administrators of employer's cash value pension plan, alleging violations of the Employee Retirement Income Security Act (ERISA). Defendants moved to dismiss.
Holdings: The District Court, Janet C. Hall, J., held that: (1) employee stated claim under ERISA provision prohibiting reductions in the rate of benefit accrual because of the attainment of any age; (2) pension plan did not require a forfeiture of an accrued benefit or make receipt of accrued benefits conditional, in violation of ERISA; (3) alleged “wear-away” effect of plan did not violate ERISA's anti-backloading provision; (4) employee's allegations were sufficient to allege “likely prejudice” necessary to state claim under ERISA provision establishing requirements for summary plan descriptions (SPD); (5) employee failed to alleged injury-in-fact necessary for Article III standing in connection with her ERISA breach of fiduciary duty claim; and (6) employee was not required to exhaust administrative remedies with plan administrators before bringing action based on alleged statutory ERISA violations.
Motion granted in part and denied in part.
West Headnotes

[1] Federal Civil Procedure 170A 103.2
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases
Federal Courts 170B 30
170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk29 Objections to Jurisdiction, Determ-
ination and Waiver 170Bk30 k. Power and Duty of Court.
Most Cited Cases District court must generally resolve material factual disputes and establish that it has federal constitutional jurisdiction, including a determination that the plaintiff has Article III standing, before deciding a case on the merits. U.S.C.A. Const. Art. 3, § 1 et seq.
[2] Labor and Employment 231H 562
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(H) Coverage and Benefits of Particular
Types of Plans 231Hk557 Pension and Retirement Plans 231Hk562 k. Anti-Discrimination Provi-
sions. Most Cited Cases ERISA provision prohibiting reductions in the rate of benefit accrual “because of the attainment of any age” applied to employees of any age; provision did not protect only plan participants who were age 65 or above. Employee Retirement Income Security Act of 1974, § 204(b)(1)(H)(i), 29 U.S.C.A. § 1054(b)(1)(H)(i).
[3] Statutes 361 188
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction

© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

427 F.Supp.2d 150

FOR EDUCATIONAL USE ONLY

427 F.Supp.2d 150, 37 Employee Benefits Cas. 1449

(Cite as: 427 F.Supp.2d 150)

Page 2

361k187 Meaning of Language 361k188 k. In General. Most Cited Cases
Statutes 361 190
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k187 Meaning of Language 361k190 k. Existence of Ambiguity. Most
Cited Cases
Statutes 361 212.7
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k212 Presumptions to Aid Construction 361k212.7 k. Other Matters. Most Cited
Cases Preeminent canon of statutory interpretation requires courts to presume that legislature says in a statute what it means and means in a statute what it says there; thus inquiry begins with the statutory text, and ends there as well if the text is unambiguous.
[4] Statutes 361 190
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k187 Meaning of Language 361k190 k. Existence of Ambiguity. Most
Cited Cases
Statutes 361 205
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k204 Statute as a Whole, and Intrinsic
Aids to Construction 361k205 k. In General. Most Cited Cases
Statutes 361 208
361 Statutes

361VI Construction and Operation 361VI(A) General Rules of Construction 361k204 Statute as a Whole, and Intrinsic
Aids to Construction 361k208 k. Context and Related Clauses.
Most Cited Cases Plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
[5] Statutes 361 211
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k204 Statute as a Whole, and Intrinsic
Aids to Construction 361k211 k. Title, Headings, and Marginal
Notes. Most Cited Cases Statutory heading alone is not sufficient to compel a reading of the statute not indicated by its unambiguous text.
[6] Statutes 361 219(1)
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k213 Extrinsic Aids to Construction 361k219 Executive Construction 361k219(1) k. In General. Most Cited
Cases While proposed regulations themselves are not authoritative until finalized, an interpretation of a statute by the agency charged with its administration, when not promulgated as a regulation, is nevertheless entitled to respect to the extent it has the power to persuade.
[7] Labor and Employment 231H 562
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(H) Coverage and Benefits of Particular
Types of Plans 231Hk557 Pension and Retirement Plans

© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

427 F.Supp.2d 150

FOR EDUCATIONAL USE ONLY

427 F.Supp.2d 150, 37 Employee Benefits Cas. 1449

(Cite as: 427 F.Supp.2d 150)

Page 3

231Hk562 k. Anti-Discrimination Provisions. Most Cited Cases Employee's allegations regarding cash balance terms of employer's pension plan were sufficient to state claim under ERISA provision prohibiting reductions in the rate of benefit accrual because of the attainment of any age; employee alleged that an older worker with same rate of pay and years of service as a younger worker, receiving same dollar amount of contribution to her cash balance account, would buy an increasingly smaller age-65 pension annuity with that money because the closer the older worker got to retirement age, the money contributed had less time to earn annual interest credits under the plan. Employee Retirement Income Security Act of 1974, § 204(b)(1)(H)(i), 29 U.S.C.A. § 1054(b)(1)(H)(i).
[8] Labor and Employment 231H 422
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(B) Plans in General 231Hk419 Pension Plans 231Hk422 k. Defined Benefit Plans. Most
Cited Cases ERISA has a binary structure, under which defined benefit plans face significantly different requirements from those applicable to defined contribution plans. Employee Retirement Income Security Act of 1974, § 2 et seq., 29 U.S.C.A. § 1001 et seq.
[9] Statutes 361 212.7
361 Statutes 361VI Construction and Operation 361VI(A) General Rules of Construction 361k212 Presumptions to Aid Construction 361k212.7 k. Other Matters. Most Cited
Cases When the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.
[10] Labor and Employment 231H 562
231H Labor and Employment

231HVII Pension and Benefit Plans 231HVII(H) Coverage and Benefits of Particular
Types of Plans 231Hk557 Pension and Retirement Plans 231Hk562 k. Anti-Discrimination Provi-
sions. Most Cited Cases Term “rate of benefit accrual,” as used in ERISA provision prohibiting reductions in the rate of benefit accrual because of the attainment of any age refers to rate measured as a change in the annual benefit commencing at normal retirement age. Employee Retirement Income Security Act of 1974, § 204(b)(1)(H)(i), 29 U.S.C.A. § 1054(b)(1)(H)(i).
[11] Labor and Employment 231H 559
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(H) Coverage and Benefits of Particular
Types of Plans 231Hk557 Pension and Retirement Plans 231Hk559 k. Accrued Benefit. Most Cited
Cases Employer's cash balance pension plan did not require a forfeiture of an accrued benefit or make receipt of accrued benefits conditional, in violation of ERISA provision requiring an employee's right to his normal retirement benefit to be nonforfeitable upon the attainment of normal retirement age; plan permitted employees who previously participated in employer's traditional defined benefit plan prior to its conversion to cash balance plan to receive the greater of the balance in their hypothetical cash balance accounts and the frozen benefit derived from the traditional plan. Employee Retirement Income Security Act of 1974, § 203(a), 29 U.S.C.A. § 1053(a).
[12] Labor and Employment 231H 542
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(G) Eligibility, Participation, and Cover-
age 231Hk541 Service Credit for Participation or
Vesting; Minimum Term 231Hk542 k. In General. Most Cited Cases
“Wear-away” effect of employer's cash balance pension

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plan, under which employees who previously participated in its traditional defined benefits plan allegedly would not accrue new benefits until amount in their cash value account exceeded value of frozen benefits they had already accrued at time traditional plan was converted into cash balance plan, did not violate ERISA's anti-backloading provision; hypothetical employees who would have started accruing benefits under the cash balance formula from start of their employment would suffer no backloading of benefits. Employee Retirement Income Security Act of 1974, § 204(b)(1)(B), 29 U.S.C.A. § 1054(b)(1)(B).
[13] Labor and Employment 231H 634
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)1 In General 231Hk634 k. Pleading. Most Cited Cases
Employee's allegations that employer's summary plan description (SPD) for its cash balance pension plan failed to explain terms such as the “wear-away” effect and the manner in which the plan reduced the rate of benefit accrual as participants aged were sufficient to allege “likely prejudice” necessary to state claim under ERISA provision establishing requirements for SPDs. Employee Retirement Income Security Act of 1974, § 102, 29 U.S.C.A. § 1022; 29 C.F.R. § 2520.
[14] Labor and Employment 231H 646
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)3 Actions to Enforce Statutory or
Fiduciary Duties 231Hk646 k. Parties in General; Standing.
Most Cited Cases Employee failed to alleged injury-in-fact necessary for Article III standing in connection with her ERISA breach of fiduciary duty claim against administrators of employer's cash value pension plan; employee alleged that the administrators “frequently” failed to inform retirees of the greater benefits they were owed under the frozen benefit derived from employer's prior traditional

defined benefits plan, but did not allege when she planned to retire or whether her own frozen benefit derived from the traditional plan would exceed the value of her hypothetical cash balance account as of her retirement date. U.S.C.A. Const. Art. 3, § 1 et seq.;Employee Retirement Income Security Act of 1974, § 404, 29 U.S.C.A. § 1104.
[15] Federal Civil Procedure 170A 103.5
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.5 k. Pleading. Most Cited Cases (Formerly 170Ak103.2)
Article III standing, like other jurisdictional inquiries, cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record; to that end, it is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. U.S.C.A. Const. Art. 3, § 1 et seq.
[16] Federal Civil Procedure 170A 103.2
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases
Federal Civil Procedure 170A 103.5
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.5 k. Pleading. Most Cited Cases
Although Article III standing is a fundamental jurisdictional requirement, it is still subject to the same degree of proof that governs other contested factual issues; thus, at the pleading stage, standing allegations need not be crafted with precise detail, nor must the plaintiff

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prove his allegations of injury. U.S.C.A. Const. Art. 3, § 1 et seq.
[17] Federal Civil Procedure 170A 103.7
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.7 k. Class Actions. Most Cited
Cases
Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class; Typ-
icality. Most Cited Cases Class representative must have Article III standing at the time of class certification. U.S.C.A. Const. Art. 3, § 1 et seq.
[18] Federal Civil Procedure 170A 103.2
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases
Federal Civil Procedure 170A 103.3
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.3 k. Causation; Redressability.
Most Cited Cases To satisfy Article III's standing requirement, a plaintiff generally must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. U.S.C.A. Const. Art. 3, § 1 et seq.
[19] Federal Civil Procedure 170A 103.2

170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases To qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be concrete and particularized as well as actual or imminent, not conjectural or hypothetical. U.S.C.A. Const. Art. 3, § 1 et seq.
[20] Federal Civil Procedure 170A 103.2
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases To support Article III standing, the plaintiff's injury must be actual or imminent to ensure that the court avoids deciding a purely hypothetical case in which the projected harm may ultimately fail to occur. U.S.C.A. Const. Art. 3, § 1 et seq.
[21] Federal Civil Procedure 170A 103.2
170A Federal Civil Procedure 170AII Parties 170AII(A) In General 170Ak103.1 Standing 170Ak103.2 k. In General; Injury or In-
terest. Most Cited Cases Temporal remoteness of an injury can prevent it from meeting the imminence standard for Article III standing. U.S.C.A. Const. Art. 3, § 1 et seq.
[22] Injunction 212 114(2)
212 Injunction 212III Actions for Injunctions 212k114 Parties 212k114(2) k. Complainants. Most Cited
Cases With regard to injunctive relief, actual or threatened injury required by Article III may exist solely by virtue of

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statutes creating legal rights, the invasion of which creates standing. U.S.C.A. Const. Art. 3, § 1 et seq.
[23] Labor and Employment 231H 635
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)1 In General 231Hk635 k. Exhaustion of Remedies.
Most Cited Cases Employee was not required to exhaust administrative remedies with administrators of her cash value pension plan before bringing action based on alleged statutory ERISA violations, where employee's claims required review of whether the plan conformed with the substantive guarantees of ERISA, rather than review of the denial of benefits under the terms of the plan. Employee Retirement Income Security Act of 1974, § 2 et seq., 29 U.S.C.A. § 1001 et seq.
[24] Labor and Employment 231H 680
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)5 Actions to Recover Benefits 231Hk680 k. Pleading. Most Cited Cases
Determination of whether employee was entitled to recover benefits on her ERISA claims or whether she was entitled to equitable relief was premature on motion to dismiss; rule that employee could only obtain one remedy applied only at the end of the case. Employee Retirement Income Security Act of 1974, § 502(a)(1)(B), (a)(3), 29 U.S.C.A. § 1132(a)(1)(B), (a)(3).
[25] Labor and Employment 231H 632
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)1 In General 231Hk632 k. Parties in General; Standing.
Most Cited Cases Although corporate employer that was not named as a plan administrator of cash value pension plan could not

be sued under ERISA for recovery of benefits, it could be sued for equitable relief under ERISA. Employee Retirement Income Security Act of 1974, § 502(a)(1)(B), (a)(3), 29 U.S.C.A. § 1132(a)(1)(B), (a)(3).
*153 Thomas G. Moukawsher, Ian O. Smith, Moukawsher & Walsh, Hartford, CT, for Plaintiff. Anne E. Rea, Brian P. Guarraci, Erin E. Kelly, Julie A. Koca, Scott E. Gross, William F. Conlon, Sidley, Austin, Brown & Wood LLP, Chicago, IL, George J. Kelly, Jr., Siegel, O'Connor, O'Donnell & Beck, Hartford, CT, for Defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS [Doc. No. 30]
HALL, District Judge.
I. INTRODUCTION
The lead plaintiff, an employee of the defendant corporation, complains that this corporation and its pension plan violated her rights under various sections of the Employee Retirement Income Security Act (ERISA). The defendants move to dismiss all six counts of the plaintiff's Complaint as failing to state a claim upon which relief may be granted.
II. FACTS FN1
FN1. See Part IV, infra, for a discussion of the pleadings and other documents the court considers and the inferences it draws in ruling on the present motion.
The lead plaintiff, Donna C. Richards (“Richards”), is an employee of defendant FleetBoston Financial Corp. (“Fleet Financial”) and a participant in the defendant FleetBoston Pension Plan (“Fleet Amended Plan”). Richards was born on May 15, 1948.
*154 Richards was hired by Hartford National Bank in 1973. Following a series of mergers, she became a participant in the Shawmut Retirement Plan. In 1995, Fleet Financial Group acquired Shawmut, and Richards became a Fleet Employee participating in the Fleet Plan.

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Prior to January 1, 1997, Richards was a participant in a traditional defined benefits pension plan (“Traditional Plan”), under which retiring employees received a percentage of their final average pay for life. Effective January 1, 1997, Fleet amended the Traditional Plan such that it became a “cash balance” benefit.FN2 The new plan (“Amended Plan”) calculates an employee's retirement benefits as follows. It first adds the employee's age plus years of vesting service to arrive at a number of “points.” Pay credits to be added to an employee's hypothetical account each quarter are then calculated by multiplying the employee's compensation for

Points

Pay Credit Rate

Number of Points:

ApplicableApplicable

to

to

CompensatCioonmpensation

Below Above

the

the

Social Social

Security Security

Wage Wage

Base Base

less

3%

6%

than

39

40

3.5% 7%

but

less

than

50

50

4.5% 9%

but

less

than

60

60

5.5% 11%

that quarter by certain percentages, as indicated in the following chart, copied from the Amended Plan:
FN2. For a general overview of cash balance plans, see Esden v. Bank of Boston, 229 F.3d 154, 158-59 (2d Cir.2000). See alsoEaton v. Onan Corp., 117 F.Supp.2d 812, 816-18 (S.D.Ind.2000) (discussing history of cash balance plans).

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but less than 70

70

6.5% 13%

but

less

than

80

80 or more

7.5% 15%

Defs.' Mem. Supp. Mot. Dismiss, Ex. A [Doc. No. 32]. The employee also receives quarterly interest credits. The interest rate is uniform for all participants and is based on the average annual yield of one-year U.S. Treasury constant maturities for the month preceding the calendar quarter in which the pay period begins. The size of a participant's interest credit in a given quarter depends upon the interest rate, the participant's account balance, and the participant's pay credit for that quarter.

When it adopted the Amended Plan in 1997, Fleet converted the benefits that Richards and other employees in her situation had earned under the Traditional Plan into an opening hypothetical cash balance.FN3 It arrived at this opening balance by computing the lump sum, actuarially equivalent value of the benefit payable at age 65 that the employee had accrued under the prior pension plans as of December 31, 1996. Amended Plan Summary Plan Description (SPD), Plf.'s Mem. Ex.1 at 22 [Doc. No. 40]. As the defendants admitted at oral argument on this motion, this opening balance did not include the value of a Traditional Plan participant's right to subsidized early retirement benefits. See Compl. ¶ 31. In calculating the opening balance, the Amended Plan applied a pre-retirement mortality discount, providing for the possibility of death prior to normal retirement, but provided no mechanism for crediting this discount back to participants' accounts as they grow older and the risk of pre-retirement mortality shrinks. Compl. ¶ 35. It employed a 7% interest rate in calculating the value of

the frozen benefit derived from the Traditional Plan as an age-65 annuity, for purposes of arriving at *155 an opening balance under the Amended Plan, but it provided no mechanism to adjust this balance when interest rates fall below 7%, as they have over the last five years. Id.
FN3. All references to employees' cash balance accounts in this opinion refer to hypothetical accounts that are used to calculate the employees' pension benefits upon termination of employment. Fleet does not actually maintain separate accounts for individual employees, but uses the hypothetical accounts to keep track of the benefits employees have accrued.
The Amended Plan provided that, upon termination of employment with Fleet, an employee who had participated in both the Traditional Plan and the Amended Plan FN4 would receive the greater of her Cash Balance Account, under the Amended Plan, or her benefit under the Traditional Plan terms, frozen as of January 1, 1997 (“frozen benefit”). Id. at ¶ 32. This rule, combined with the fact that the Amended Plan converted less than the full value of the benefits that Richards and other former Traditional Plan participants had accrued under the Traditional Plan to opening account balances under the Amended Plan terms, meant that the value of retirement benefits available to such participants did not increase past the frozen benefit that they had already accrued as of December 31, 1996, until the amount in the cash bal-

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ance account reached and then exceeded that amount. Id. at ¶ 33. This phenomenon, which Richards refers to as the “wear-away” effect, caused Richards and other employees to work for many years following 1997 without actually accruing any new benefits, despite the existence of a hypothetical cash balance account that showed benefits being added each quarter. Id. at ¶ 34. The use of the pre-retirement mortality discount and the 7% interest rate exacerbated this wear-away effect. Id. at 35.
FN4. Employees who had been active participants in the Traditional Plan as of December 31, 1996, and were not age 50 with at least 15 years of vesting service as of that date, became participants in the Amended Plan. Amended Plan Summary Plan Description, Plf.'s Mem. Opp. Defs.' Mot. Dismiss, Ex. 1 at 21 [Doc. No.40]. The court's discussion of the wearaway effect refers to the rules governing the benefits of individuals in this group.
Prior to January 1, 1997, Fleet gave no notice to plan participants that they would be experiencing a significant reduction in benefits as a result of the plan amendment. Moreover, the Amended Plan summary plan description (“SPD”), which was distributed to participants, does not mention the wear-away effect, nor state that that participants' benefit accruals under the Amended Plan would be reduced by advancing age.FN5 It told participants, “your cash balance benefit builds steadily throughout the time you work at Fleet. Each quarter Fleet makes pay credits and interest credits into an account in your name.” Id. at ¶ 40.
FN5. The plaintiff's theory of age discrimination is based on the argument that employees' cash balance accounts grow at a decreasing rate as participants age, when the value of the participants' accounts is calculated as that of an annual benefit commencing at age 65. This claim is discussed in more detail in Part IV.A, infra.
Fleet also answered a hypothetical plan participant question, “Can my pension benefit decrease under the new Fleet Pension Plan?,” by saying “No.” Id. at ¶ 41. It

continued, “Whether you participate in the cash balance benefit or the traditional benefit, you will never receive less than the benefit you earned as of December 31, 1996,” and did not mention the wear-away effect. Id. Similarly, it did not state that the rate of benefit accruals would decline with age. It stated it was adopting the Amended Plan because it “makes good sense for our employees.” Id.
The plaintiff alleges that, in practice, Amended Plan administrators frequently have informed retiring plan participants only of the value of their cash balance accounts, and not of the greater benefits to which they are entitled under the frozen *156 benefit derived from the Traditional Plan terms. Id. at ¶ 36.
III. CAUSES OF ACTION
Richards asserts a number of different claims against the defendants. In Count I, she alleges that the cash balance terms of the Fleet Amended Plan violate ERISA § 204(b)(1)(H), prohibiting an employer from establishing or maintaining plan rules that reduce “the rate of an employee's benefit accrual ... because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H). In Count II, she alleges that, by conditioning Richards' receipt of cash balance benefits on her foregoing early retirement benefits earned prior to the adoption of the cash balance amendment, the cash balance terms violate ERISA § 203(a), 29 U.S.C. § 1053(a), which requires that benefits are not forfeitable. In Count III, she alleges that, by causing participants who had begun to earn retirement benefits under the Traditional Plan prior to its amendment to experience years in which they accrue zero benefits followed by years in which they accrue actual benefits, the Amended Plan violates the “anti-backloading” rule in ERISA § 204(b)(1)(B), 29 U.S.C. § 1054(b)(1)(B). In Count IV, she alleges that the defendants failed to notify her and other participants of a significant reduction in the rate of future benefit accrual 15 days prior to the effective date of the Amended Plan, thereby violating ERISA § 204(h), 29 U.S.C. § 1054(h). In Count V, she alleges that the defendants failed to provide an adequate Summary Plan Description (“SPD”), in violation of ERISA § 102, 29 U.S.C. §

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1022. Finally, in Count VI, she alleges that the defendants breached their fiduciary duty by failing to fully inform retiring plan participants of the funds they are owed under the frozen benefit derived from the Fleet Traditional Plan terms. See ERISA § 404, 29 U.S.C. § 1104.
For each of these counts, she seeks relief under ERISA § 502(a)(3), which provides that, “A civil action may be brought ... by a participant ... (A) to enjoin any act or practice which violates any provision of this subchapter [which includes all of the substantive provisions of ERISA upon which Richards bases her claims] or the terms of the plan, or (B) to obtain other appropriate equitable relief (I) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan,”29 U.S.C. § 1132(a)(3), and, alternatively or additionally, under ERISA § 502(a)(1)(B), which states that a participant may bring suit “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,”29 U.S.C. § 1132(a)(1)(B).
The defendants have moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of all counts.
IV. STANDARD OF REVIEW
In deciding a rule 12(b)(6) motion to dismiss, the court takes the allegations of the Complaint as true, and construes them in a manner favorable to the pleader. Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984); seeGrandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds byDavis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In this case, the court also considers the 1997 FleetBoston Plan document, the Summary Plan Description, and the predecessor (“Traditional”) Plan document. It may do so because these documents are integral to the complaint and the plaintiff relies upon them in her complaint. *157Rothman v. Gregor, 220 F.3d 81, 88

(2d Cir.2000); Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991), cert. denied,503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).
A Rule 12(b)(6) motion to dismiss tests the adequacy of the complaint. United States v. City of New York, 359 F.3d 83, 87 (2d Cir.2004). Thus, such a motion can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A Rule 12(b)(6) motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. (quotation omitted). “[W]hile bald assertions and conclusions of law will not suffice to state a claim, the district court, before granting a motion to dismiss, must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally.” Tarshis v. Riese Org., 211 F.3d 30 (2d Cir.2000) (internal citations omitted); seeScheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds,Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).
[1] Although the defendants state that their motion to dismiss the plaintiff's complaint is brought pursuant to Rule 12(b)(6), Defs.' Mot. Dismiss [Doc. No. 30], they argue in part that Richards lacks constitutional standing to bring the claim in Count VI. “[A] district court must generally resolve material factual disputes and establish that it has federal constitutional jurisdiction, including a determination that the plaintiff has Article III standing, before deciding a case on the merits.” Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82 (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Therefore, the court will treat the defendants' motion to dismiss Count VI as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See, e.g.,Franchi v. Manbeck, Civ. No. 90cv517 (PCD),

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1991 WL 137276, at *3 n. 2 (D.Conn.1991) (“Inasmuch as this court could not consider the sufficiency of the complaint under Rule 12(b)(6), unless jurisdiction is established under Rule 12(b)(1), the motion will be treated first as one for dismissal for lack of subject matter jurisdiction.”).
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (internal citations omitted).
V. DISCUSSION
A. Age Discrimination Claim (Count I)
1. Statutory Standing to Bring Claim Under ERISA § 204(b)(1)(H)
[2] The defendants argue that Richards may not bring her Count One claim under ERISA § 204(b)(1)(H) because this subsection protects only plan participants *158 who are age 65 or above, and Richards has not yet reached this age.FN6 In order to address this argument, the court must construe that Section.
FN6. Richards is currently age 58. See Part I, supra.
[3] As the Supreme Court has instructed, “[t]he preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal citation omitted); seeNicolaou v. Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir.2005) (citing BedRoc ). “Thus, our in-

quiry begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc, 541 U.S. at 183, 124 S.Ct. 1587 (internal citations omitted).
The plain language of section 204(b)(1)(H)(i) prohibits reductions in the rate of benefit accrual “because of the attainment of any age.” 29 U.S.C. § 1054(b)(1)(H)(i).FN7 The inclusion of the *159 word “any,” when given “its ordinary, common meaning,” In re Caldor Corp., 303 F.3d 161, 168 (2d Cir.2002) (internal citation omitted), renders this language unambiguous with respect to the question of whether it protects only employees who have reached age 65. By its own terms, this subsection applies to employees of any age. SeeWells v. Gannett Retirement Plan, 385 F.Supp.2d 1101, 1102 (D.Co.2005) (“The term is unambiguous, and there is no need to resort to legislative history or other sources for its interpretation. This provision applies to the attainment of ‘any age’ and not just to the attainment of normal retirement age”).
FN7. This subsection states in full:
(i) Notwithstanding the preceding subparagraphs, a defined benefit plan shall be treated as not satisfying the requirements of this paragraph [discussing benefit accrual requirements for pension plans] 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.
(ii) A plan shall not be treated as failing to meet the requirements of this subparagraph solely because the plan imposes (without regard to age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan.
(iii) In the case of any employee who, as of the end of any plan year under a defined benefit plan, has attained normal retirement age

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under such plan-
(I) if distribution of benefits under such plan with respect to such employee has commenced as of the end of such plan year, then any requirement of this subparagraph for continued accrual of benefits under such plan with respect to such employee during such plan year shall be treated as satisfied to the extent of the actuarial equivalent of inservice distribution of benefits, and
(II) if distribution of benefits under such plan with respect to such employee has not commenced as of the end of such year in accordance with section 1056(a)(3) of this title, and the payment of benefits under such plan with respect to such employee is not suspended during such plan year pursuant to section 1053(a)(3)(B) of this title, then any requirement of this subparagraph for continued accrual of benefits under such plan with respect to such employee during such plan year shall be treated as satisfied to the extent of any adjustment in the benefit payable under the plan during such plan year attributable to the delay in the distribution of benefits after the attainment of normal retirement age. The preceding provisions of this clause shall apply in accordance with regulations of the Secretary of the Treasury. Such regulations may provide for the application of the preceding provisions of this clause, in the case of any such employee, with respect to any period of time within a plan year.
(iv) Clause (i) shall not apply with respect to any employee who is a highly compensated employee (within the meaning of section 414(q) of title 26) to the extent provided in regulations prescribed by the Secretary of the Treasury for purposes of precluding discrimination in favor of highly compensated employees within the meaning of subchapter D of chapter 1 of title 26.

(v) A plan shall not be treated as failing to meet the requirements of clause (i) solely because the subsidized portion of any early retirement benefit is disregarded in determining benefit accruals.
(vi) Any regulations prescribed by the Secretary of the Treasury pursuant to clause (v) of section 411(b)(1)(H) of title 26 shall apply with respect to the requirements of this subparagraph in the same manner and to the same extent as such regulations apply with respect to the requirements of such section 411(b)(1)(H).
29 U.S.C. § 1054(b)(1)(H).
[4] “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The court has reviewed the other provisions of ERISA cited by the defendants, and none create ambiguity as to whether “attainment of any age,” ERISA § 204(b)(1)(H)(i), means what it says, or whether it means, as defendants suggest, “attainment of any age over 65.” The court has considered all of the defendants' arguments and is not persuaded to read the statute other than as its plain meaning suggests.
Because the text of the statute is not ambiguous, the court need not look beyond it. SeeBedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”) (considering the statutory text but declining to consider legislative history) (internal citations omitted). The defendants argue that “courts regularly look to legislative history to interpret statutory language that might appear unambiguous on its face,” Defs.' Reply Br. Supp. Mot. Dismiss at 7 [Doc. No. 45-1], but the only precedential opinion they cite for this proposi-

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tion actually held that the court did not have to consider administrative rules and advisory committee notes because Congress's intent was clear from the face of the statute in question. SeeIn re Caldor Corp., 303 F.3d 161, 171 (2d Cir.2002). Only in dicta did the Court of Appeals “add that we find no tension between our reading of § 1109(b) and the rules and notes relied on by the Joint Liquidators.” Seeid.
[5] Moreover, even if the court did take into account the legislative history and the statutory heading, it does not find that any of the defendants' arguments in those regards present “rare and exceptional circumstances” that would require the court to disregard the plain language of the statute. SeeRubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). Although the current language of section 204(b)(1)(H)(i) derives from a section of the Omnibus Budget Reconciliation Act of 1986 (“OBRA 1986”) whose statutory heading reads, “Benefit Accrual Beyond Normal Retirement Age,” the statutory heading alone (which is not in the codified statutory provision) is not sufficient to compel a reading of the statute not indicated by its unambiguous text. SeePennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (“[T]he title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, [it is] of use only when [it] shed[s] light on some ambiguous word or phrase.”) (internal citation omitted) (ellipses and brackets *160 in Yeskey ); Cheung v. United States, 213 F.3d 82, 90 (2d Cir.2000) (“Although mindful of the limited role of statutory headings in textual interpretation, this Court has recognized that statutory headings may be used to resolve ambiguities in the text.”) (internal citation and quotation marks omitted).
Similarly, the legislative history is not as clear as the defendants would make it out to be, and could lend some support to both sides. The defendants focus primarily on the statement in the OBRA 1986 Conference Report that:
Under the conference agreement, the rules preventing the reduction or cessation of benefit accruals on account of attainment of any age are not intended to ap-

ply in cases in which a plan satisfies the normal benefit accrual requirements for employees who have not attained normal retirement age.
H.R. Conf. Rep. No. 99-1012, at 379 (1986), reprinted in 1986 U.S.C.C.A.N. 3868, 4024. However, the Report immediately continues by explaining, beginning in the same paragraph:
Under the benefit accrual rules, the rate of benefit accrual for an employee may vary depending on the number of years of service an employee may complete between date of hire and the attainment of normal retirement age.
For example, under the fractional benefit accrual rule, an employee may accrue a benefit ratably for each year of service between the employee's date of hire and the employee's attainment of normal retirement age. If a plan has a normal retirement age of 65, under this fractional rule, an employee who is hired at age 45 would accrue the normal retirement benefit between age 45 and age 65 (normal retirement age). Thus, the employee would accrue the benefit over 20 years. On the other hand, an employee with the same salary hired at age 55 would accrue the same normal retirement benefit over 10 years (the number of years between date of hire and normal retirement age). In this example, when both employees have completed five years of service, they will have different accrued benefits because of the different rate of benefit accrual for each year of service. The conferees do not intend that the plan is to be treated as violating the general rule that benefit accruals cannot be reduced or ceased on account of the attainment of age merely because a younger employee has a lower accrued benefit than an older employee with the same number of years of service.
Id. In light of this explanation and example, the sentence the defendants have quoted may at least arguably be stating a much different proposition than that urged by them. It is quite possible that the report used the phrase “for employees who have not attained normal retirement age” merely to modify the phrase “normal benefit accrual requirements,” and not to limit the application of the new age discrimination provisions. This is

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consistent with the fact that the particular example of a “normal benefit accrual requirement” used in the second paragraph above, “the fractional benefit accrual rule,” is a rule used to determine the required rate of benefit accrual for the years prior to normal retirement age. See id.; ERISA § 204(b)(1)(c), 29 U.S.C. § 1054(b)(1)(c).FN8
FN8. A defined benefit plan satisfies the requirements of this paragraph if the accrued benefit to which any participant is entitled upon his separation from the service is not less than a fraction of the annual benefit commencing at normal retirement age to which he would be entitled under the plan as in effect on the date of his separation if he continued to earn annually until normal retirement age the same rate of compensation upon which his normal retirement benefit would be computed under the plan, determined as if he had attained normal retirement age on the date any such determination is made (but taking into account no more than the 10 years of service immediately preceding his separation from service). Such fraction shall be a fraction, not exceeding 1, the numerator of which is the total number of his years of participation in the plan (as of the date of his separation from the service) and the denominator of which is the total number of years he would have participated in the plan if he separated from the service at the normal retirement age. For purposes of this subparagraph, social security benefits and all other relevant factors used to compute benefits shall be treated as remaining constant as of the current year for all years after such current year.
29 U.S.C. § 1054(b)(1)(C).
*161 Additionally, the court finds that the floor statements the defendants have cited, by of individual legislators who sponsored the bill, do not override the meaning arising from the clear statutory text.FN9
FN9. It bears noting that, merely because the Conference Report or a member of Congress

noted a purpose for the legislation, it does not mean that was the only purpose.
[6] Finally, the IRS's recent interpretation of section 411(b)(1)(H) of Title 26 of the United States Code, which was passed into law at the same time as ERISA § 204(b)(1)(H) and uses exactly the same language, supports the court's reading of the latter statutory section. In an explanatory section in a 2002 notice of proposed rulemaking under section 411(b)(1)(H), the IRS stated,
Section[ ] 411(b)(1)(H)... prohibit[s] cessation of accruals or allocations, and reduction in the rate of benefit accrual or allocation, because of the attainment of any age. Under th[is] section[ ], attainment of any age means a participant's growing older. Accordingly, these regulations, like the 1988 proposed regulations, would apply regardless of whether the participant is older than, younger than, or at normal retirement age.
Some commentators have suggested that only cessations or reductions after attainment of normal retirement age are prohibited by these sections. This interpretation is not consistent with the language of the statute, which does not specify any minimum age at which the rule applies, and is not adopted under these proposed regulations.
67 Fed.Reg. 76, 123-01, 76, 124 (Dec. 11, 2002). While proposed regulations themselves “are not authoritative until finalized,” Greenhalgh v. Putnam Sav. Bank, 140 F.3d 427, 430 n. 4 (2d Cir.1998), an interpretation of a statute by the agency charged with its administration, when not promulgated as a regulation, is nevertheless “entitled to respect” to the extent it has the “power to persuade.” SeeChristensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481 (2d Cir.2001) (quoting Christensen ). The court finds this interpretation to be persuasive, although the court's holding would be the same even in the absence of this notice of proposed rulemaking.
Therefore, while recognizing that its decision on this is-

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sue is contrary to that of several other courts, seeTootle v. ARINC, Inc., 222 F.R.D. 88 (D.Md.2004); Engers v. AT & T Corp., No. 98-3660(NHP), 2001 U.S. Dist. LEXIS 25889, at *8-*13 (D.N.J. June 6, 2001); Eaton v. Onan Corp., 117 F.Supp.2d 812, 825-29 (S.D.Ind.2000); see alsoCampbell v. BankBoston, N.A., 327 F.3d 1, 10 (1st Cir.2003) (noting in dicta that “the ERISA age discrimination provision*162 may not even apply to workers younger than the age of normal retirement”),FN10 the court concludes that Richards' age does not bar her from asserting a claim for age discrimination pursuant to ERISA § 204(b)(1)(H).
FN10. In both Eaton and Engers, the courts reasoned that the language reading, “rate of an employee's benefit accrual,” was ambiguous, but that issue is separate from the issue of age. Neither of these courts, nor the court in Tootle, offered any specific reason for treating the language pertaining to age as ambiguous. Eaton stated only that, “although the statutory language does not expressly limit the prohibitions to benefit accruals occurring after an employee reaches normal retirement age, there are unusually strong indications in the legislative history that Congress intended they be so limited.” 117 F.Supp.2d at 825. Tootle did not address at all the question of whether the statute was ambiguous as to the age of protected employees. The court respectfully disagrees with the Tootle court's decision to inquire into the legislative history without first fully addressing the question of whether the plain language of the statute was unambiguous as to the specific issue of the age of employees protected by the statute.
The court also notes that it does not consider an additional case cited by the defendants, Hurlic v. S. California Gas Co., No.CV05-5027 (C.D.Cal. Oct. 18, 2005), to be persuasive, because that case was dismissed without opinion. The defendants have not provided this court with any record of the court's reasoning in Hurlic.
2. Age Discrimination Theory

[7] The court now turns to the question of whether Richards has stated a claim upon which relief may be granted in Count I of her complaint. She alleges in this count that, “the cash balance terms of the Fleet Plan” violate the age discrimination provision of ERISA § 204(b)(1)(H), as quoted above. The defendants argue that this claim should be dismissed, even if the court reaches its merits, because the Amended Plan does not discriminate on the basis of age.
Cash balance plans are a form of pension that have become increasingly prevalent in recent years. SeeEaton, 117 F.Supp.2d at 816-18 (defining and discussing the history of cash balance plans). Thus, the issue of whether cash balance plans violate ERISA's age discrimination provision is one that courts have only recently begun to address.
a. Meaning of “Rate of Benefit Accrual.” The parties' main dispute, like that of other parties to have litigated this issue, centers on the meaning of the phrase “the rate of an employee's benefit accrual,” as it is used in ERISA Section 204(b)(1)(H)(i).FN11 If section 204(b)(1)(H) permits a participant's rate of benefit accrual to be “measured in terms of the change in the balance of each participant's hypothetical account,”Eaton, 117 F.Supp.2d at 824, then the Amended Plan does not discriminate on the basis of age. In a particular quarter, given two employees who are identically situated except for their ages, the Amended Plan never allocates a smaller cash value to the older employee's hypothetical account than that allocated to the younger employee's hypothetical account. On the other hand, as the defendants conceded at oral argument, if section 204(b)(1)(H) requires “a participant's rate of benefit accrual to be measured solely in terms of an annuity payable at normal retirement age,”Eaton, 117 F.Supp.2d at 823, then the Amended Plan does add a greater value to the younger *163 employee's hypothetical account than to the older employee's account. Seeid.; Cooper, 274 F.Supp.2d at 1016. Under the Amended Plan's cash balance terms, an older employee receiving the same dollar amount of contribution to her cash balance account in a given quarter as that received by a younger employee buys a smaller age-65 pension annuity with that money.

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This phenomenon occurs because the older worker is closer to retirement, so the money contributed to her hypothetical account has less time to earn annual interest credits under the plan than does the money contributed to the younger worker's account. The Amended Plan's method of including age and years of service in the determination of quarterly pay credits, such that older employees tend to receive increasingly higher additions of cash value to their hypothetical accounts, mitigates this disparity in age-65 annuity value. See Compl. ¶ 25, 29. However, the pay credits do not increase quickly enough to eliminate the disparity, so employees experience an increasingly lower rate of benefit accrual as they age, if that rate is defined as the change in the value of their accrued benefit measured as an annual benefit commencing at normal retirement age. See id. at ¶ 29.
FN11. Although Richards also asserts other claims more specific to the Amended Plan, particularly with regard to the manner in which the Amended Plan affects those employees who had accrued benefits under the Traditional Plan, but who were not permitted to continue to accrue new benefits under the Traditional Plan after its amendment, she does not press these claims as the basis for Count I.
The Second Circuit has not yet ruled on the manner in which ERISA requires courts to calculate the rate of benefit accrual, and district courts who have addressed it are divided. CompareRegister v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268, at *4-*8 (E.D.Pa. Nov.21, 2005); Tootle v. ARINC, Inc., 222 F.R.D. 88 (D.Md.2004); Eaton v. Onan Corp., 117 F.Supp.2d 812 (S.D.Ind.2000); withCooper v. IBM Personal Pension Plan, 274 F.Supp.2d 1010 (S.D.Ill.2003); see alsoCampbell v. BankBoston, N.A., 327 F.3d 1, 10 (1st Cir.2003) (noting in dicta that “it is by no means clear that the annuity method is the only permitted method in this context”). The former group of district court opinions are not consistent with the Second Circuit's opinion in Esden v. Bank of Boston, 229 F.3d 154 (2d Cir.2000), which provides an important guide to the court in determining the meaning of the terms Congress

used in ERISA § 204(b)(1)(H)(i).
The Esden court held that, even though cash balance plans “are designed to imitate some features of defined contribution plans, they are nonetheless defined benefit plans under ERISA.” 229 F.3d at 158. “However ‘hybrid’ in design a cash balance plan may be, it remains subject to a regulatory framework that is in many respects rigidly binary.” Id. at 159 n. 6. Indeed, the defendants concede that the Amended Plan, as a cash balance plan, must comply with ERISA provisions applicable to defined benefit plans. Defs.' Reply Br. Supp. Mot. Dismiss at 10 [Doc. No 45].
In Esden, the Second Circuit held that the classification of cash balance plans as defined benefit plans has “wide-reaching” “regulatory consequences.” It specifically recognized that the appropriate definition of “accrued benefit” to use in regard to cash balance plans is that for defined benefit plans: “the individual's accrued benefit determined under the plan and ... expressed in the form of an annual benefit commencing at normal retirement age.” ERISA § 3(23)(A), 29 U.S.C. § 1002(23)(A). “Only for a defined contribution plan is ‘accrued benefit’ defined as simply ‘the balance of an individual's account.’ ” Esden, 229 F.3d at 158 (citing ERISA § 3(23), 29 U.S.C. § 1002(23)(B)). It also held that cash balance plans, as defined benefit plans, “are subject to a series of parallel statutory constraints-under ERISA and I.R.C. [Internal Revenue Code]-from which defined contribution plans are exempted.” *164Esden, 229 F.3d at 158; seeid. at 159 (citing several examples).
The Esden court recognized that “the governing statutes [including ERISA] and regulations were developed with traditional final-pay defined benefit plans in mind; they do not always fit in a clear fashion with cash balance plans and they sometimes require outcomes that are in tension with the objectives of those plans.” Id. at 159. Nevertheless, it enforces the regulatory consequences that arise from the classification of cash balance plans as defined benefit plans. Seeid. at 158-59.
The Eastern District of Pennsylvania, in a holding that conflicts with that of several other courts to have addressed this issue, held that “rate of benefit accrual” is

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the grammatically correct way of saying “the rate of accrued benefit,” the phrase that is defined in ERISA § 3(23), and that the term “rate of benefit accrual” is therefore unambiguous. Cooper, 274 F.Supp.2d at 1016. This court concurs with the Cooper court's ultimate reading of the phrase “rate of benefit accrual,” although the grammatical relationship between the terms “rate of benefit accrual” and “accrued benefit” is not the only reason for its holding.
[8][9] “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). As the Second Circuit emphasized in Esden, ERISA has a binary structure, under which defined benefit plans face significantly different requirements from those applicable to defined contribution plans. 229 F.3d at 158 & n. 6, 159. The structure of section 204(b) itself is binary. Whereas section 204(b)(1) states requirements for defined benefit plans, section 204(b)(2) states parallel requirements for defined contribution plans. Section 204(b)(2)(A) contains an age discrimination provision parallel to that of section 204(b)(1)(H). Whereas the latter prohibits a reduction in “the rate of an employee's benefit accrual,” the former prohibits a reduction in “the rate at which amounts are allocated to the employee's account.” “[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (citing 2A N. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed.2000)). The court finds that Congress did not intend that “the rate of an employee's benefit accrual,” as used in section 204(b)(1)(H)(i), to be measured as “the rate at which amounts are allocated to the employee's account.” Congress' use of the latter phrase, which explicitly requires measurements involving an increase in account balances, in ERISA § 204(b)(2) demonstrates that Congress could have used the same phrase in the age discrimination provision governing defined benefit plans had it intended to apply the same measurement

rule to defined benefit plans. Instead, it used a completely different phrase, “rate of benefit accrual.” ERISA § 204(b)(1)(H)(i).
[10] In light of the great similarity that this phrase bears to the statutorily defined term “accrued benefit,” and the fact that ERISA requires accrued benefit to be measured as an annual benefit commencing at normal retirement age for defined benefit plans, but requires accrued benefit to be measured as the balance of an individual's account for defined contribution plans, the term “rate of benefit accrual,” as used in section 204(b)(1)(H)(i), refers to rate measured as a change in the *165 annual benefit commencing at normal retirement age.FN12 The statute is unambiguous in this respect, and the court need not inquire further into its meaning.
FN12. Although not necessary to this holding, the following observations lend further support to the plaintiff's interpretation of Section 204(b)(1)(H)(i). First, in its commentary accompanying final regulations issued in 2003, the IRS has interpreted the phrase “rate of future benefit accrual,” as used in the notice provision of section 204(h), as follows: “an amendment to a defined benefit plan reduces the rate of future benefit accrual only if it is reasonably expected that the amendment will reduce the amount of the future annual benefit commencing at normal retirement age (or at actual retirement age, if later) for benefits accruing for a year.” 68 F.R. 17277, 17282 (2003) (emphasis added). Although the IRS has not issued final regulations on ERISA § 204(b)(1)(H)(i), its interpretation of the phrase “rate of future benefit accrual” suggests that it would similarly interpret the phrase “rate of benefit accrual” as requiring measurement using “the amount of the future annual benefit commencing at normal retirement age (or at actual retirement age, if later).” Id.The IRS has jurisdiction over the interpretation of ERISA § 204, Greenlaugh v. Putnam Sav. Bank, 140 F.3d 427, 428 n. 1 (2d Cir.1998), and its interpretations are entitled to deference, Esden, 229 F.3d

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at 169.
Second, section 204(b)(1)(G) states that “a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if the participant's accrued benefit is reduced on account of any increase in his age or service.” By using the statutorily defined term “accrued benefit” here, Congress clearly indicated that the question of whether an employee's pension benefits were reduced is to be answered with reference to an annual benefit commencing at normal retirement age. The fact that section 204(b)(1)(G) requires the overall value of the accrued benefit to be measured as an annual benefit commencing at normal retirement age, in the context of determining whether age discrimination is occurring, lends further support to the court's reading of “rate of benefit accrual” in the age discrimination provision of section 204(b)(1)(H)(i) to mean the rate of increase in this annual benefit commencing at normal retirement age.
The defendants argue that measuring the rate of benefit accrual as the rate of change in the annual benefit a participant would receive commencing at age 65 is incorrect because it would invalidate section 204(c)(2)(B). Section 204(c)(2)(B) reads:
In the case of a defined benefit plan, the accrued benefit derived from contributions made by an employee as of any applicable date is the amount equal to the employee's accumulated contributions expressed as an annual benefit commencing at normal retirement age, using an interest rate which would be used under the plan under section 1055(gg)(3) of this title (as of the determination date).
29 U.S.C. § 1054(c)(2)(B). The defendants argue that this rule permits a plan to give equal cash amounts of interest to two parti-

cipants of different ages who made equal contributions to their accounts, and that the plaintiff's reading of section 204(b)(1)(H) would invalidate this treatment. However, section 204(c)(2)(B) appears to address only that part of accrued benefit that is derived from employee contribution, and does not impose any requirement as to the total rate of benefit accrual.
Defendants' primary arguments in support of measuring the “rate of benefit accrual” as the rate of change in hypothetical account balances, adopted from the reasoning in Eaton, focus on the practical consequences of the contrary interpretation or on the legislative history. In light of this court's holding that the meaning of this phrase is clear from ERISA itself, and the fact that Esden requires this court to apply ERISA's defined benefit plan rules to cash balance plans even if they result in apparently unintended consequences, the court finds that inquiring any further into the practical consequences of the application of the section 3(23) “accrued benefit” definition would be inappropriate. SeeEsden, 229 F.3d at 159.
None of the arguments advanced by the defendants or the cases they have cited would suggest “rare and exceptional circumstances,” Rubin, 449 U.S. at 430, 101 S.Ct. 698, as to overcome the presumption *166 that Congress “says in a statute what it means and means in a statute what it says there,”BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal citation omitted); seeNicolaou v. Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir.2005) (citing BedRoc ), and permit the court to disregard the plain meaning of the statutory text. For example, the defendants argue that requiring the rate of benefit accrual to be measured as a rate of increase in an annual benefit commencing at age 65 would not make sense if applied to employees over 65. However, the plaintiff's interpretation of “rate of benefit accrual,” applied to employees older than 65, does not necessarily lead to results that would contradict the Congressional intent expressed in the statutory text. Because the definition of “accrued benefit” for defined benefit plans is not explicitly limited

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to employees under 65, see ERISA § 3(23), it is reasonable to assume that Congress intended that “accrued benefits” be “expressed in the form of an annual benefit commencing at normal retirement age,” even for employees older than 65. In applying this rule to the calculation of the “rate of benefit accrual” for an employee older than 65, one possibility would be that which the defendants suggest-to refer to an annuity projected backwards in time to age 65. This result would not necessarily be absurd. Congress' intent was to assure a benefit measured as of normal retirement age. The value of that benefit does not change, regardless of whether the employee is younger or older than normal retirement age. What it costs to provide the benefit may change depending on an employee's age. However, that was not Congress' concern when it prohibited the dimunition of the rate of accrual of the benefit expressed as an annual benefit commencing at normal retirement age.
The court will not delve into the legislative history to seek a meaning for language that is unambiguous. It does note that it disagrees with the Eastern District of Pennsylvania's holding with respect to the OBRA 1986 Conference Report language. SeeRegister v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268, at *7 (E.D.Pa. Nov.21, 2005) (quoting general statement in OBRA 1986 Conference Report statement that “[p]resent law specifies certain requirements with respect to the rate at which benefits are accrued (i.e., earned) under a pension plan”) (quoting H.R. Conf. Rep. No. 99-1012, at 375 (1986)). The conference report does not clearly address the issue of how the “rate of benefit accrual” should be measured, and certainly does not create “rare and exceptional circumstances” to ignore the plain language of the statute by reading in words that are not there.
The defendants' additional argument that a court may not find age discrimination in the fundamental effects of the time value of money and that this effect is inherent in all cash balance plans is simply a restatement of the dispute between the parties. The defendants cite only two authorities for this argument, Eaton and Lunn v. Montgomery Ward & Co., 166 F.3d 880, 883 (7th Cir.1999). The court has already discussed the reasons

for its disagreement with Eaton. The Lunn court did observe that, “no one supposes ... that defined benefit plans violate ERISA, or any other statute, merely because, depending on the age of the employee and his choice of whether to retire, the actuarial value of his retirement benefits may be less than if he had retired at the normal retirement age” and that it is “unlikely that ERISA would require a subsidy for older workers.” 166 F.3d at 883. However, Lunn did not specifically consider the meaning of the phrase “rate of benefit accrual.” In light of the Second *167 Circuit's reasoning in Esden and the language and structure of ERISA itself, the court adheres to its conclusion regarding the reading of section 204(b)(1)(H).
The court respectfully disagrees with the reasoning of the Eastern District of Pennsylvania in Register v. PNC Financial Svcs. Group, No. 04-CV-6097, 2005 WL 3120268 (E.D.Pa. Nov.21, 2005), with respect to the manner in which cash balance plans are treated under ERISA:
Cash balance plans accrue benefits differently than traditional defined benefit plans. Under a traditional defined benefit plan, the benefits are defined in terms of the age 65 annuity. Therefore, it follows logically that the rate of benefit accrual is the change in the accrued benefit. Cash balance plans are not defined in terms of an age 65 annuity, rather they are defined in terms of an account balance that grows with pay credits and interest. Therefore, it follows logically that the rate of benefit accrual is determined by the change in account balance.
2005 WL 3120268, at *7. This reasoning conflicts with Esden because it effectively treats cash balance plans as if they are defined contribution plans, when they ought to be treated as defined benefit plans. SeeEsden, 229 F.3d at 158-59.
In sum, the court has considered all of the defendants' arguments, but finds them unpersuasive. ERISA itself requires the court to compare annual benefits commencing at normal retirement age when considering age discrimination in a cash balance plan under section 204(b)(1)(H). The court may not pick a different out-

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come, even one that may appear more sensible to some, when Congress has not chosen that course.
b. Hazen Argument. The defendants argue further that Richards has failed to state a claim even if section 204(b)(1)(H) does require that the “rate of benefit accrual” be measured in terms of an annual benefit commencing at age 65. They argue that changes in the value of benefits that correlate with age, but are not caused by age, cannot constitute unlawful age discrimination. Their argument in this respect relies on the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), which held that a disparate treatment claim under the related Age Discrimination in Employment Act (ADEA) must fail if the employer's adverse employment action was solely motivated by factors other than age, even if these factors were correlated with age. Id. at 611, 113 S.Ct. 1701. However, Hazen Paper left open the question of whether the ADEA permitted suits on a theory of disparate impact. Id. at 610, 113 S.Ct. 1701. The recent decision in Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), held that section 4(a)(2) of the Age Discrimination in Employment Act does permit disparate impact claims, albeit in more narrow circumstances than Title VII. In light of City of Jackson,Hazen does not support the defendants' position, and they cite no authority to suggest that a claim under ERISA § 204(b)(1)(H) in particular would require a showing of improper motivation.
The defendants cite as support for their argument the Eaton court's observation that,
in OBRA 1986, Congress expressly permitted the rate of benefit accrual (however it is measured) to decline over time as long as the decline is tied to the participant's years of service rather than the participant's age (and despite the one-to-one correlation of age and years of service). Those pension age discrimination provisions all make clear that a defined benefit plan can even completely *168 stop benefits from accruing to an employee if the plan has a dollar or percentage cap on benefits, or if the plan limits the number of years of service that will be counted in calculating benefits.

117 F.Supp.2d at 831-32 (citing 29 U.S.C. §§ 623(I)(2), 1054(b)(1)(H)(ii); 26 U.S.C. § 411(b)(1)(H)(ii)). The cited ERISA provision, section 1054(b)(1)(H)(ii) of Title 29 of the United States Code, reads:
A plan shall not be treated as failing to meet the requirements of this subparagraph solely because the plan imposes (without regard to age) a limitation on the amount of benefits that the plan provides or a limitation on the number of years of service or years of participation which are taken into account for purposes of determining benefit accrual under the plan.
Section 411(b)(1)(H)(ii) of Title 26 is the parallel provision from the Internal Revenue Code, identical to that of ERISA. This provision does permit a pension plan to take into account years of service or participation in determining benefits, and perhaps to place an absolute ceiling on the total benefits available under a plan. Richards, however, does not allege that the Amended Plan violates section 204(b)(1)(H) for these reasons. She alleges that “an older worker with the same rate of pay and years of service as a younger worker, receiving the same dollar amount of contribution to her cash balance account, buys an increasingly smaller age-65 pension annuity with that money because the closer the older worker gets to retirement age the less time the money contributed has to earn annual interest credits under the plan.” Compl. ¶ 29. Years of service or participation and the value of previously accrued benefits may tend to correlate with age, but they are not perfectly correlated therewith. An older employee may have fewer years of service and participation than a younger employee and may have accrued fewer benefits than a younger employee with more years of service. In contrast, the number of years between an individual's age and age 65 is always perfectly correlated with age.
The defendant presents no authority that persuades the court that Richards has failed to make out a claim in Count I.FN13 The court finds that Count I states a claim upon which relief may be granted. It denies the defendants' motion to dismiss insofar as it is premised on the substantive claim in Count I.
FN13. The court notes that the other authority that the defendants cite for their Hazen argu-

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ment, Campbell v. BankBoston, N.A., 206 F.Supp.2d 70, 78 (D.Mass.2002), did not address any claim under ERISA. On appeal, the First Circuit Court of Appeals did express some doubt on the theory of liability that Richards advances here, but it refused to decide the issue because it had not been presented to the lower court. Campbell v. BankBoston, N.A., 327 F.3d 1, 9-10 (1st Cir.2003).
B. Violation of ERISA § 203(a) Non-Forfeitability Provision (Count II): Wear-Away
[11] In Count II, Richards asserts a claim under ERISA § 203(a), which requires that “[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age” and sets forth specific requirements for determining whether a benefit satisfies the requirements of this paragraph. 29 U.S.C. § 1053(a). ERISA § 3(19) states in relevant part,
The term “nonforfeitable” when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under *169 a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan.
29 U.S.C. § 1002(19).
Richards claims that the Amended Plan's cash balance terms violate section 203(a) because they “condition Richards' receipt of cash balance benefits on her foregoing the early retirement benefits she earned prior to the adoption of the cash balance amendment.” Compl. ¶ 44. Although the defendants did not raise a substantive challenge to this Count in their initial memorandum, they do raise a substantive challenge in responding to arguments in the plaintiff's opposition brief. The defendants argue that the plaintiff has failed to allege facts that would state that the Amended Plan requires a forfeiture. They argue that the Amended Plan does not require a choice between alternative benefits, because “participants who accrued a benefit prior to the conver-

sion to a cash balance formula receive one benefit which is always the greater of (1) their cash balance account benefit and (2) their benefit accrued under the Traditional Plan as of December 31, 1996.” Defs.' Reply Br. at 14 [Doc. No. 45-1]. They further argue that, “because the only benefit that participants are entitled to under the cash balance formula is the greater of their benefit under the old plan or under the cash balance formula, there is never a ‘forfeiture of any accrued benefit.” Id. at 14-15.
The Supreme Court has held that defining the “content of the benefit that, once vested, cannot be forfeited” is a “threshold issue” that must be resolved in order to determine if a plan violates section 203(a). Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981):
[W]hat defines the content of the benefit that, once vested, cannot be forfeited? ERISA leaves this question largely to the private parties creating the plan. That the private parties, not the Government, control the level of benefits is clear from the statutory language defining nonforfeitable rights as well as from other portions of ERISA. ERISA defines a “nonforfeitable” pension benefit or right as “a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan.” 29 U.S.C. § 1002(19). In construing this definition last Term, we observed: “[T]he term ‘forfeiture’ normally connotes a total loss in consequence of some event rather than a limit on the value of a person's rights. Each of the examples of a plan provision that is expressly described as not causing a forfeiture listed in [§ 1053(a)(3) ] describes an event-such as death or temporary re-employment-that might otherwise be construed as causing a forfeiture of the entire benefit. It is therefore surely consistent with the statutory definition of ‘nonforfeitable’ to view it as describing the quality of the participant's right to a pension rather than a limit on the amount he may collect.” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. [359,] 372-373, 100 S.Ct.

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1723, 64 L.Ed.2d 354.... Similarly, the statutory definition of “nonforfeitable” assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit. As we explained last Term, “it is the claim to the benefit, rather than the benefit itself, that must be ‘unconditional’ and ‘legally *170 enforceable against the plan.’ ” Id., at 371, 100 S.Ct. 1723....
Id. at 511-12, 101 S.Ct. 1895; seeWilliams v. Caterpillar, Inc., 944 F.2d 658, 664 (9th Cir.1991) (“[C]ourts have uniformly relied on Alessi to uphold the formulas by which employers compute the amount of their employees' benefits, so long as the pension plans in question satisfy ERISA's guidelines”). The terms FN14 of the Amended Plan itself state that an employee in Richards' position, upon termination of employment, will receive the greater of the balance in her hypothetical cash balance account and the frozen benefit derived from the Traditional Plan. Thus, the Amended Plan terms give Richards no claim to benefit accrual during the years in which her hypothetical account balance is below the value of her frozen Traditional Plan benefit. Section 203(a) gives Richards a non-forfeitable claim to her accrued benefit, but the balance of the hypothetical cash account does not become part of her accrued benefit until it surpasses the value of the frozen Traditional Plan benefit. Thus, the plan does not require a forfeiture of an accrued benefit, nor is the receipt of accrued benefits conditional.
FN14. The plaintiff does allege that the plan administrators frequently fail to follow the plan terms, which specify that a retiring employee receives the greater of the frozen Traditional Plan benefit and the amount in the hypothetical cash balance account. She alleges that “many plan administrators frequently inform retiring plan participants only of the value of their cash balance accounts and fail to inform them of the greater benefits they are owed under the frozen benefit derived from the Traditional Plan Terms.” Compl. ¶ 36. However, Richards' nonforfeiture claim in Count II is premised solely

on the plan terms themselves. Com pl. ¶ 44-45.
Therefore, the court grants the motion to dismiss with respect to Count II. Particularly because the court's decision rests on an argument raised after plaintiff opposed the motion to dismiss, the court will reconsider this ruling if the plaintiff moves within two weeks. The plaintiff is also granted leave to replead if the court has misconstrued the terms of the Amended Plan and she can accurately allege that the Amended Plan requires forfeiture of accrued benefits.
C. Violation of ERISA § 204(b)(1)(B)'s AntiBackloading Provision (Count III): Substantive Argument
[12] In Count III, Richards alleges that the wear-away effect violates ERISA § 204(b)(1)(B) because it causes Richards and other participants “to face years where they accrue zero benefits followed by years where they accrue actual benefits.” Compl. ¶ 46. Section 204(b)(1)(B), which applies to the Amended Plan, prohibits defined benefit plans from backloading benefits such that they increase by more than 33 1/3% from one year to another.
The defendants did not make any substantive arguments with respect to Count III in their memorandum in support of the motion to dismiss. In their reply to the plaintiff's opposition to the motion to dismiss, the defendants for the first time argued that plans involving a wear-away effect do not violate ERISA. However, they cited no authority that has addressed the question of whether the wear-away effect violates section 204(b)(1)(B) in particular, nor did they present any substantive argument on section 204(b)(1)(B).
In November 2005, two days after the Eastern District of Pennsylvania dismissed a claim that a wear-away provision similar to that in the Amended Plan violated the anti-backloading rule, the defendants submitted a supplemental memorandum alerting*171 the court to that decision. SeeRegister v. PNC Financial Svcs. Group, Inc., No. 04-CV-6097, 2005 WL 3120268 (Nov. 21, 2005). The Register court cited ERISA §

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204(B)(1)(B)(i), which states that, for the purposes of the anti-backloading provision, “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years.” Relying on this provision, it reasoned that the plaintiff had not stated a claim because the rate at which benefits accrued in the hypothetical cash balance accounts, viewed in isolation, did not violate the anti-backloading rule.
The Second Circuit has held that the section 204(b)(1)(B) “test applies to how a given plan operates at a given time and prevents it from being unfairly weighted against shorter-term employees; but it is irrelevant to across-the-board increases in benefit rates made at some future time on behalf of all current employees regardless of period of service.” Langman v. Laub, 328 F.3d 68, 71 (2d Cir.2003); seeAllen v. Honeywell Retirement Earnings Plan, 382 F.Supp.2d 1139, 1160 (D.Ariz.2005) (“[I]n determining whether a new benefit formula violates the 133 1/3 rule, one does not compare the new formula with the old formula; rather, the backloading question must be answered by considering the new formula on a stand-alone basis.”).
In light of the text of section 204(b)(1)(B)(i) and Langman, the court holds that the plaintiff has failed to state a claim under section 204(b)(1)(B). If the Amended Plan is treated as having been in effect for all plan years, employees such as Richards would never have accrued a benefit under the Traditional Plan, and would have started accruing benefits under the cash balance formula from the start of their employment. Assuming such a scenario, such employees would suffer no backloading of benefits. The court grants the defendants' motion to dismiss on Count III. However, because the plaintiff has not had an opportunity in writing to address the bases for the court's decision in this regard, the court will reconsider this part of its decision if the plaintiff so requests within two weeks of this ruling.
D. Violation of ERISA § 204(h) (Count IV): Failure to Supply Advance Notice of a Significant Benefit Decrease: Defendants' argument that they provided sufficient notice

In Count IV, Richards claims that the defendants' failure to notify her and other plan participants of the significant reduction in the rate of future benefit accrual that the Amended Plan would cause for them violated ERISA § 204(h). At the time of the 1997 plan amendment, this section provided,
A single-employer plan may not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless, after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice, setting forth the plan amendment and its effective date, to-(1) each participant in the plan....
Consolidated Omnibus Budget Reconciliation Act of 1985, Title XI, § 11006, 100 Stat. 82 (1986) (current version at 29 U.S.C. § 1054(h)). The alleged reduction in the rate of future benefit accrual, as asserted in this claim, results not only from the use of a cash balance plan, but also the “wear-away” effect, the pre-retirement mortality discount, and the use of the 7% interest rate.
The defendants argue, for the first time in their Reply Brief in Support of Summary Judgment, that they provided notice that satisfied the version of section 204(h) *172 in effect in 1997, as interpreted by the regulations in effect at that time. Specifically, they argue that an Employee Reference Guide, a copy of which they attach to their Reply Brief, provided the required notice. However, the plaintiff has not alleged that this Guide was provided to employees at least 15 days before the effective date of the plan amendment, and the court cannot assume that was so provided. It therefore may not consider the Guide for purposes of Count IV. The defendants point to no other communication in which they provided the required advance notice to plan participants. Therefore, the court finds no basis for the defendants' argument that it provided notice that would comply with section 204(h). It denies the defendants' motion to dismiss Count IV on this ground.
E. Prejudice (Counts IV and V) FN15

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FN15. Aside from their prejudice argument, the defendants do not argue that Count V fails to state a claim for any substantive reason (i.e., any reason aside from failure to exhaust, requesting the wrong remedy, and improperly naming the corporate employer as a defendant). Although the Eastern District of Pennsylvania dismissed a section 102 claim in Register, the defendants do not make any specific argument that the Fleet Amended Plan SPD gave adequate notice.
[13] The defendants argue that Counts IV and V fail to state a claim because Richards did not allege prejudice. The court has already summarized the claim asserted in Count IV, see Part IV.D., supra. Count V claims that the defendants violated ERISA § 102, 29 U.S.C. § 1022, and its implementing regulations, 29C.F.R. § 2520.102, by failing to explain terms such as the wear-away effect and the manner in which the cash balance plan reduces the rate of benefit accrual as participants age.
In Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir.2003), the Court of Appeals adopted the “likely prejudice” standard for claims alleging that SPDs do not meet the requirements of ERISA. To show “likely prejudice,” a plaintiff must show that she was “ ‘likely to have been harmed’ by the faulty SPD.”Frommert v. Conkright, 433 F.3d 254, 267 (2d Cir.2006) (quoting Burke, 336 F.3d at 112).
In light of Frommert, which addressed a section 204(h) claim, the defendants concede that Richards' ERISA § 204(h) claim “cannot be dismissed for her failure to allege actual prejudice.” Defs.' Mem. Re: 3rd Supplemental Authority in Support of Dismissal at 2 [Doc. No. 92-1]. They argue that this claim should fail because she has not pled “likely prejudice.” Id. The parties agree that a claim under section 102 is subject to the “likely prejudice” standard. See Defs.' Mem. Supp. Mot. Dismiss at 32 [Doc. No. 31]; Plf.'s Mem. Opp. Mot. Dismiss at 32 [Doc. No. 40].FN16
FN16. Richards argues that the Second Circuit does not require her to plead “likely prejudice,” but only to prove it at subsequent stages in the

litigation. The court need not address this argument in light of its Ruling.
The Burke court, which reviewed a summary judgment ruling, held that a plaintiff had made an initial showing that he was likely to have been harmed because the “conspicuous absence of the domestic partnership affidavit requirement in [a self-contained section of the SPD] likely led the Burkes to believe that an affidavit was unnecessary” for certain benefits, for which the plan actually required an affidavit. 336 F.3d at 114. It held that this showing gave rise to a presumption of prejudice, and that the defendants had not presented sufficient rebuttal evidence to show that the plaintiffs were actually aware of the requirement that had been omitted from the SPD. Frommert held *173 that a defendant's failure to notify participants of a significant reduction in the rate of future benefit accrual for up to five years after the reduction began was sufficient to establish likely prejudice because it “likely, and quite reasonably, led plan participants to believe it was not a component of the Plan.”433 F.3d at 267.
As relevant to Count IV, Richards has pled that, “Fleet did not explain the full import of the cash balance terms in a summary plan description distributed to plan participants, including but not limited to an explanation of the wear-away effect and a disclosure that benefit accruals under the plan are reduced by advancing age.” Compl. ¶ 39. She has pled that it failed to notify her and other plan participants “of a significant reduction in the rate of future benefit accrual 15 days prior to the January 1, 1997 effective date” of the Amended Plan, in violation of section 204(h). Id. at ¶ 48. Although the Complaint does not specify when Richards actually learned of the manner in which the Amended Plan would significantly reduce the rate of her future benefit accrual, the Complaint, read in light of the SDP at issue, could support a finding that the defects in notice “likely, and quite reasonably, led plan participants to believe” that the wear-away effect and decreasing rate of benefit accrual were not components of the plan. Frommert, 433 F.3d at 267. Neither the complaint nor the plan documents present any basis for the court to infer that Richards was aware that the Amended Plan would sig-

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nificantly reduce the rate of her future benefit accrual despite the defendants' failure to disclose this information. Therefore, the court denies the defendants' motion to dismiss Count IV for a failure to plead likely prejudice.
In Count V, Richards alleges that Fleet failed to “explain the full import of the cash balance plan terms in a summary plan description distributed to plan participants, including but not limited to a complete explanation of the wear-away effect and an explicit explanation of how benefit accruals under the plan are reduced by advancing age.” Compl. ¶ 50. For the same reasons stated in the preceding paragraph, the court finds that she has sufficiently alleged “likely prejudice” for purposes of this motion. It denies the motion to dismiss Count V insofar as it is premised on a failure to allege likely prejudice.
F. Constitutional Standing to Bring Claim for Violation of ERISA § 404: Breach of Fiduciary Duty (Count VI)
[14] In Count VI, Richards alleges that the defendants breached their fiduciary duty to plan participants because, “Plan administrators frequently inform retiring plan participants only of the value of their cash benefit accounts and fail to inform them of the greater benefits they are owed under the frozen benefit derived from the Traditional Plan Terms.” Compl. ¶ 52. Defendants concede that Richards is a plan “participant.” However, they argue that she has failed to satisfy Article III's standing requirements as to this claim because she has not alleged any injury-in-fact. Richards admits that she has not yet suffered any harm as a result of the alleged breach of fiduciary duty. In her responses to the motion to dismiss, she does not discuss the legal standard for constitutional standing or its application to her claim. Rather, she argues that she has statutory standing, an issue the defendants have not contested.
The Second Circuit has made clear that “statutory standing under ERISA ... will not suffice to substitute for Article III standing.” *174Central States Southeast & Southwest Areas Health & Welfare Fund v. Merck-

Medco Managed Care, L.L.C., 433 F.3d 181, 201 (2d Cir.2005). Constitutional standing is a jurisdictional prerequisite to the court's consideration of her claim. SeeAlliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir.2006) (“An important component of the Article III jurisdictional limit of federal courts to deciding ‘cases' or ‘controversies' ”); 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3531 at 345.
[15][16] “Standing ... like other jurisdictional inquiries, cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record. To that end, it is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir.1994) (internal citation and quotation marks omitted). However, “[a]lthough standing is a fundamental jurisdictional requirement, it is still subject to the same degree of proof that governs other contested factual issues. Thus, at the pleading stage, standing allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of injury.” Baur v. Veneman, 352 F.3d 625, 631 (2d Cir.2003) (internal citations omitted).
[17] The Second Circuit has described the application of the standing requirement in a class action as follows:
The Supreme Court has held that if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendant[ ], none may seek relief on behalf of himself or any other member of the class. Moreover, the named class plaintiffs must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.
Central States, 433 F.3d at 199 (internal citations and quotation marks omitted). A class representative must have standing at the time of class certification.FN17
FN17. However, he or she may subsequently

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continue to represent the class even if his or her individual claim becomes moot. Id.
[18][19][20] To satisfy Article III's standing requirement, a plaintiff generally “must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir.2005). One of the most important constitutional standing requirements is “injury-in-fact.” “To qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be concrete and particularized as well as actual or imminent, not conjectural or hypothetical.” Baur, 352 F.3d at 633 (internal citations and quotation marks omitted). “[T]o support standing, the plaintiff's injury must be actual or imminent to ensure that the court avoids deciding a purely hypothetical case in which the projected harm may ultimately fail to occur.” Id. (internal citation omitted).
[21] Therefore, the court must determine whether the plaintiff has alleged an imminent injury. “Although ‘imminence’ is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is certainly impending.”*175 Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 112 S.Ct. 2130, 119 L.Ed.2d 351 n.2 (1992); seeMcConnell v. Federal Election Com'n, 540 U.S. 93, 226, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)) (“A threatened injury must be certainly impending to constitute injury in fact”); seealsoid.(quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)) (“A plaintiff seeking injunctive relief must show he is ‘immediately in danger of sustaining some direct injury as [a] result’ of the challenged conduct).” Temporal remoteness of an injury can prevent it from meeting the imminence standard. SeeMcConnell, 540 U.S. at 157-58, 124 S.Ct. 619 (holding that an injury that could not occur earlier than 2008 was “too remote temporally” to give a plaintiff standing to sue in 2003).
In the particular case of ERISA fiduciary duty claims,

the Second Circuit recently cited with approval a Third Circuit holding that “a plan participant may have Article III standing to obtain injunctive relief related to ERISA's disclosure and fiduciary duty requirements without a showing of individual harm to the participant.”Central States, 433 F.3d at 199 (citing Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450 (3d Cir.2003) and Gillis v. Hoechst Celanese Corp., 4 F.3d 1137 (3d Cir.1993)). On the other hand, a showing of “individual loss” by the plaintiff is required for claims seeking restitution or disgorgement, even when the plaintiff premises such claims on violations of section 404. Id. at 200 (quoting Horvath v. Keystone Health Plan East, Inc., 333 F.3d 450 (3d Cir.2003) and citing Bollig v. Christian Comm. Homes and Servs., 2003 WL 23200362, at *2 (W.D.Wis. July 10, 2003)).
[22] “[W]ith regard to injunctive relief, it is wellestablished that [t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Horvath, 333 F.3d at 456 (internal citations omitted). Horvath had brought a claim under ERISA § 404 alleging that the defendant company breached its fiduciary duty to plan participants by failing to inform them of certain cost-saving incentives that were offered to physicians providing care under the HMO used by employees. The Third Circuit held, in language subsequently quoted in Central States, that
Here, the disclosure requirements and fiduciary duties contained in ERISA create in Horvath certain rights, including the rights to receive particular information and to have Keystone act in a fiduciary capacity. Thus, Horvath need not demonstrate actual harm in order to have standing to seek injunctive relief requiring that Keystone satisfy its statutorily-created disclosure or fiduciary responsibilities.
Central States, 433 F.3d at 199 (quoting Horvath).
In Count VI, Richards seeks relief under the same section of ERISA as Horvath. However, she fails to allege that the Plan administrators have committed, or imminently are going to commit, a breach of their statutory fiduciary obligations as to her. She alleges only that the

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plan administrators “frequently inform retiring plan participants only of the value of their cash benefit accounts and fail to inform them of the greater benefits they are owed under the frozen benefit derived from the Traditional Plan Terms.” These facts might demonstrate a breach of that fiduciary duty that the administrators owed to the retiring plan participants, but they do not support a conclusion that the administrators*176 breached their fiduciary duty to Richards. She makes no averment as to the age at which she plans to retire, or whether her own frozen benefit derived from the Traditional Plan will exceed the value of her hypothetical cash balance account as of the date on which she intends to require. Moreover, she does not allege that the Fleet plan administrators invariably, or even usually, misinform retiring participants, but rather that they do so “frequently.” The Complaint therefore does not allege an imminent breach of the defendants' fiduciary duty as to Richards.
In contrast, Horvath had alleged that the plan administrators breached their fiduciary duty to plan participants generally, because they failed to disclose information about the only health plan available to the participants, including Horvath. Similarly, Central States involved a pharmaceutical benefits manager's breaches of fiduciary duty as to an entire pension plan. See 433 F.3d at 187-88 (describing claims that included misleading statements about the defendant's ability to control costs, self-dealing in management of pension plan pharmacy benefit, and failures to disclose management practices or their costs to the pension plan); see alsoFinancial Insts. Retirement Fund v. Office of Thrift Supervision, 964 F.2d 142 (2d Cir.1992) (holding in dicta that participants who had been transferred from a multi-employer pension fund to the Office of Thrift Supervision had Article III standing where they had alleged that fund directors breached their fiduciary duties in allocating a portion of the fund's surplus to the banks that had previously employed the participants, rather than the Office of Thrift Supervision).
Richards cites Mullins v. Pfizer, 23 F.3d 663 (2d Cir.1994) in support of her argument that she has standing. In that case, however, only the issue of statutory

standing appears to have been at issue. Mullins alleged that Pfizer, his former employer, had deliberately misled him as to its decision to offer its employees a new voluntary severance agreement that would provide additional benefits above normal early retirement benefits to employees who volunteered to retire early. Mullins retired shortly before Pfizer announced that it would be offering this severance agreement. He alleged that he suffered great financial loss as a result of Pfizer's fraudulent misrepresentation. Thus, he clearly alleged injury; the only question was whether he was a “participant” for purposes of statutory standing.
Because Richards has not alleged any injury-in-fact, even considering the generous manner in which this Article III requirement has been applied to ERISA fiduciary duty claims, she lacks constitutional standing to pursue the claims in Count VI of the Complaint. The court grants the motion to dismiss Count VI.
At oral argument, Richards' counsel admitted that Richards had not alleged that she ever asked about her own benefits, nor that she planned to retire at any particular time. However, he represented that Richards did ask the Plan administrators what her benefits were, and they told her only the value of her frozen benefit derived from the Traditional Plan. Richards is granted leave to replead, within two weeks of this Ruling, should she be able to allege additional facts that would establish that she has constitutional standing. However, the court notes that the facts that her counsel represented at oral argument would not establish that she has standing for the claim alleging that the Plan administrators gave misinformation and diminished benefits to retiring class members.
G. Exhaustion (Counts IV & V)
[23] The defendants further contend that the surviving claims of the Complaint *177 fail to state a claim upon which relief may be granted because Richards has failed to plead that she exhausted administrative remedies by pressing her claims with plan administrators before filing the present suit.FN18 Richards' principal response to this argument is that the court should not require ex-

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haustion of her claims because they allege that the terms of the Amended Plan violate ERISA, rather than that the administrators have incorrectly denied her benefits owed under the terms of the Amended Plan.
FN18. The defendants argued that Richards did not exhaust Counts II-VI but concede Richards did, in fact, exhaust the claim in Count I of the Complaint.
The Third, Fourth, Fifth, Sixth, Ninth, and Tenth Circuits have all held that exhaustion is not a prerequisite to suits alleging statutory ERISA violations. SeeSmith v. Sydnor, 184 F.3d 356, 362 (4th Cir.1999) (holding that claim for breach of fiduciary duty in violation of ERISA § 404 does not have an exhaustion requirement unless “the resolution of the claim rests upon an interpretation and application of an ERISA-regulated plan rather than upon an interpretation and application of ERISA.” ) (emphasis in original); id. at 364 (reasoning that, while ERISA mandates administrative review procedures for denial of benefits under a plan, it mandates no administrative review procedures for claims that the plan terms violate ERISA, and that interpretation of the statute, unlike that of the plan terms, is within the special expertise of the courts); Chailland v. Brown & Root, Inc., 45 F.3d 947 (5th Cir.1995) (reasoning that complaint involved termination by employer, rather than the plan administrator, and therefore, did not involve an ERISAcovered plan, and that presenting claim to administrator would be futile); Richards v. General Motors Corp., 991 F.2d 1227 (6th Cir.1993) (holding that retaliatory discharge claim need not be exhausted because it was not a claim covered by plan review provisions but asserted other rights under ERISA); Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1204-05 (10th Cir.1990) (relying upon Ninth and Third Circuit cases cited below to conclude that exhaustion of claim alleging termination in violation of ERISA § 510 was unnecessary and holding that “[r]equiring appellant to press this claim with [the employer] would serve little purpose.”); Zipf v. Am. Telephone & Telegraph Co., 799 F.2d 889, 891-92 (3d Cir.1986) (reviewing legislative history and limited administrative review procedure required by ERISA and concluding that Congress did not intend to

require administrative exhaustion for claims of discrimination in violation of ERISA § 510); Amaro v. Continental Can Co., 724 F.2d 747 (9th Cir.1984) (holding that exhaustion of arbitration procedure was not required for ERISA § 510 discrimination claim, based upon the fact that ERISA neither mandates nor recommends any internal appeal procedure for such claims, that statutory interpretation “is a task for the judiciary,” and a review of Supreme Court cases on arbitrability of rights provided by other statutes).
In contrast, the Eleventh Circuit requires exhaustion of statutory ERISA claims, although it recognizes that courts have discretion to waive this requirement if exhaustion would be futile or the remedy inadequate, seeMason v. Continental Group, Inc., 763 F.2d 1219, 1224-27 (11th Cir.1985), and the Seventh Circuit holds that the decision of whether to require exhaustion falls within the district court's discretion, seeLindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996); Kross v. Western Elec. Co., Inc., 701 F.2d 1238, 1243-45 (7th Cir.1985);
*178 Although the Second Circuit Court of Appeals has not addressed the question of whether plaintiffs asserting statutory claims must exhaust administrative remedies before bringing suit in federal court, it has noted that, “[d]istrict courts in the Second Circuit have routinely dispensed with the exhaustion prerequisite where plaintiffs allege a statutory ERISA violation.” Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 102 (2d Cir.2005) (quoting DePace v. Matsushita Elec. Corp. of Am., 257 F.Supp.2d 543, 557-58 (E.D.N.Y.2003) (collecting cases); see, e.g.,Campanella v. Mason Tenders' District Council Pension Plan, 299 F.Supp.2d 274, 281 (2005); Blessing v. J.P. Morgan Chase & Co., No. 02 Civ. 3874(LMM), 2003 WL 470338, 2003 U.S. Dist. LEXIS 2604 (S.D.N.Y.2003) (citing Hoodack v. IBM, 202 F.Supp.2d 109, 113-15 (S.D.N.Y.2002), Gray v. Briggs, No. 97 CIV. 6252(DLC), 1998 WL 635545, 1998 U.S. Dist. LEXIS 10057 (S.D.N.Y.1998) (agreeing with Lawford, although lack of exhaustion requirement not in dispute), Molina v. Mallah Org., Inc., 804 F.Supp. 504, 511-12 (S.D.N.Y.1992); Lawford )); Novak v. TRW, Inc., 822

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F.Supp. 963, 969 (E.D.N.Y.1993) (relying on Lawford v. New York Life Ins. Co., 739 F.Supp. 906 (S.D.N.Y.1990) and Zipf ); Lawford (relying on Zipf and Bird v. Shearson Lehman/Am. Express, Inc., 871 F.2d 292 (2d Cir.1989)).
The Second Circuit has also held, in the context of discussing a plan governed by the Federal Employee Health Benefits Act, that “[t]he exhaustion requirement may arise from explicit statutory language or from an administrative scheme providing for agency relief.” Kennedy, 989 F.2d at 593. ERISA contains neither an explicit exhaustion requirement nor any suggestion that plan administrators provide a review procedure for claims other than those contesting denial of benefits under the plan. Seeid. at 594 (“ERISA does not provide for OPM review, but instead requires that all benefit plans provide for carrier review.”). Moreover, the legislative history analyzed in Zipf persuades the court that Congress did not intend to impose an exhaustion requirement on employees' claims that pension plan terms violated the substantive guarantees of ERISA, in contrast to an employee's claim that she had a right to benefits under the terms of a particular plan. SeeZipf, 799 F.2d at 891-92; see alsoLawford, 739 F.Supp. at 912 (citing Zipf with approval).
As the Third Circuit explained further:
When a plan participant claims that he or she has unjustly been denied benefits, it is appropriate to require participants first to address their complaints to the fiduciaries to whom Congress, in Section 503, assigned the primary responsibility for evaluating claims for benefits. [See 29 U.S.C. § 1133.] This ensures that the appeals procedures mandated by Congress will be employed, permits officials of benefit plans to meet the responsibilities properly entrusted to them, encourages the consistent treatment of claims for benefits, minimizes the costs and delays of claim settlement in a nonadversarial setting, and creates a record of the plan's rationales for denial of the claim. SeeWolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir.1984); Grossmuller v. International Union, 715 F.2d 853, 856-57 (3d Cir.1983); Amato v. Bernard, 618 F.2d 559, 567 (9th Cir.1980); see

Barrowclough[ v. Kidder, Peabody & Co., Inc.], 752 F.2d [923,] 939.
However, when the claimant's position is that his or her federal rights guaranteed by ERISA have been violated, these considerations are simply inapposite. Unlike a claim for benefits brought pursuant to a benefits plan, a Section 510 claim asserts a statutory right which *179 plan fiduciaries have no expertise in interpreting. Accordingly, one of the primary justifications for an exhaustion requirement in other contexts, deference to administrative expertise, is simply absent. Indeed, there is a strong interest in judicial resolution of these claims, for the purpose of providing a consistent source of law to help plan fiduciaries and participants predict the legality of proposed actions. Moreover, statutory interpretation is not only the obligation of the courts, it is a matter within their peculiar expertise. Alexander v. Gardner-Denver Co., 415 U.S. 36, 57, 94 S.Ct. 1011, 1024, 39 L.Ed.2d 147 (1974).
Zipf, 799 F.2d at 891-92.
The Seventh and Eleventh Circuit decisions that have permitted district courts to impose an exhaustion requirement in cases not involving benefits allegedly required by a plan reason that an exhaustion requirement for statutory claims serves several useful purposes. These include compilation of a factual record and a reasoned decision before the case reaches the courts, minimizing frivolous lawsuits, promoting nonadversarial dispute resolution, decreasing the cost and time of settling claims, and avoiding premature judicial intervention that could prevent plan trustees from effectively and efficiently carrying out their duties. Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996); Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir.1985). The Second Circuit has recognized that similar purposes lie behind the wellsettled exhaustion requirement for traditional denials of benefits claims.FN19
FN19. The Second Circuit has held, in the context of considering whether it would be futile for a plaintiff to administratively exhaust a

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claim for benefits owed under a particular pension plan, that:
[t]he primary purposes of the exhaustion requirement are to: (1) uphold Congress' desire that ERISA trustees be responsible for their actions, not the federal courts; (2) provide a sufficiently clear record of administrative action if litigation should ensue; and (3) assure that any judicial review of fiduciary action (or inaction) is made under the arbitrary and capricious standard, not de novo.
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 133 (2d Cir.2001) (quoting Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 594 (2d Cir.1993)). The Second Circuit has also stated, in a similar context, that the exhaustion requirement is intended to “help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all concerned.” Kennedy, 989 F.2d at 595 (quoting Denton v. First Nat'l Bank of Waco, Texas, 765 F.2d 1295 (5th Cir.), reh'g denied,772 F.2d 904 (5th Cir.1985) (quoting Amato v. Bernard, 618 F.2d 559, 567 (9th Cir.1980))); Barnett v. IBM, 885 F.Supp. 581, 587 (S.D.N.Y.1995) (quoting language from Kennedy ).
However, the court finds that not all of these purposes apply in the present situation. In particular, it agrees with the Third Circuit's reasons as to why courts should not accord deference to private plan administrators in the area of statutory interpretation. Similarly, it finds that judicial intervention in the present case is not premature and would not interfere with plan administrators' abilities to perform their duties because the present case does not involve claims for which ERISA requires administrators to operate a routine review procedure. Moreover, neither the Seventh nor the Eleventh Circuit opinions persuade the court that the Zipf court's view of

the legislative history and congressional intent is incorrect.
Because all of Richards' surviving claims will require review of whether the Amended Plan conforms with the substantive guarantees of ERISA, rather than review of the denial of benefits under the terms of *180 the plan, the court finds that the plaintiff need not have exhausted her claim in order to bring the present suit.
The defendants' argument to the contrary assumes that the category into which a claim falls for purposes of exhaustion-that is, whether they have alleged a “plan-based” claim, such that the Second Circuit requires exhaustion, or a “statutory violation,” such that the Second Circuit has not addressed the issue of whether exhaustion is required, seeNechis v. Oxford Health Plans, Inc., 421 F.3d 96, 102 (2d Cir.2005)-depends upon under which section of ERISA the plaintiffs seek relief. They argue that all claims seeking relief under ERISA § 502(a)(1)(B), which permits suits by a participant “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,”29 U.S.C. § 1132(a)(1)(B), require exhaustion under settled Second Circuit law.FN20 Although most claims appropriately seeking relief under this subsection are likely to be “plan-based,” the case law suggests that the court should look at the substance of the claims, rather than the remedy sought, in order to categorize them. SeeNechis, 421 F.3d at 102-03 (discussing possibility that claims at issue might not have an exhaustion requirement while also observing with respect to one of the same claims that the plaintiff “could have pursued an alternative and effective remedy under § 502(a)(1)(B) of ERISA to recover the value of benefits wrongly denied”). Here, the plaintiff's surviving claims all seek relief for statutory violations, rather than violations of the terms of the Amended Plan. Therefore, the court denies the motion to dismiss insofar as it is premised on a failure to exhaust administrative remedies.
FN20. Richards seeks relief on each count under ERISA § 502(a)(1)(B) “and/or” § 502(a)(3).

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H. § 502(a)(3) Claims for Equitable Relief (Counts IV and V) FN21
FN21. The defendants raised the same argument with respect to Counts II and III. However, the court will not address Counts II and III here because they have already been dismissed. See Parts IV.B & IV.C, supra.
[24] Richards seeks relief on each count under ERISA § 502(a)(1)(B) “and/or” § 502(a)(3). Section 502(a)(1)(B) provides that “a civil action may be brought ... by a participant ... to recover benefits due to him under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Section 502(a)(3) provides that a participant may bring suit “to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan.” Id. at § 1132(a)(3). The Supreme Court has held that “ § 502's structure suggests that Congress intended the general ‘catchall’ provisions of subsections (3) and (5) to act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996). The defendants argue that the section 502(a)(3) claims for equitable relief in Counts IV and V should be dismissed because Richards seeks benefits under section 502(a)(1)(B) in the same counts, and she cannot ultimately prevail on claims for relief under both sections 502(a)(3) and 502(a)(1)(B).
However, at oral argument, the defendants acknowledged that the rule that Richards can only obtain a remedy under one of the two subsections applies only at the end of the case. The court finds that *181 determining which remedy is more appropriate would be premature at the motion to dismiss stage. It therefore denies the motion to dismiss Richards' claims for equitable relief pursuant to ERISA § 502(a)(3) in Counts IV and V.
I. Claims Against the Corporate Employer
[25] The defendants also argue that Fleet Financial Corporation (“Fleet Financial,” or “corporate employer”) is

not a proper defendant in this action, and that only the Fleet Amended Plan itself can be a proper defendant. It is undisputed that Fleet Financial is not itself named as a plan administrator on the Amended Plan, whereas its co-defendant, Fleet Amended Plan, is so named.
The court agrees with the defendants that Richards cannot maintain any of her actions pursuant to section 502(a)(1)(B) against the corporate employer. SeeCrocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir.1998) (holding that an employer not named as a plan administrator may not be liable “as a de facto co-administrator [ ] in a suit brought under § 502(a)(1)(B), where the employer has designated a plan administrator in accordance with 29 U.S.C. § 1002(16)(A)” FN22).
FN22. The term “administrator” means-
(i) the person specifically so designated by the terms of the instrument under which the plan is operated;
(ii) if an administrator is not so designated, the plan sponsor; or
(iii) in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified, such other person as the Secretary may by regulation prescribe.
29 U.S.C. § 1002(16)(A).
However, Crocco left open the possibilities that a plan participant might sue a corporate employer who was not a named plan administrator as a fiduciary, where the participant is bringing a breach of fiduciary duty claim, and that a participant might be able to sue the corporate employer for equitable relief under section 502(a)(3). 137 F.3d at 107 n. 2. The defendants do not advance any arguments as to why Richards' claims pursuant to section 502(a)(3) may not be brought against the corporate employer.
The court therefore grants the Motion to Dismiss all claims pursuant to section 502(a)(1)(B) against Fleet Financial Corporation only, and denies the Motion to Dismiss claims pursuant to section 502(a)(3) in Counts

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I, IV, and V against Fleet Financial Corporation.
VI. CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part the defendants' Motion to Dismiss the plaintiff's Complaint [Doc. No. 30]. The court grants the Motion to Dismiss Counts II, III, and VI in their entirety, with the right to replead, including on the ground discussed herein. It further grants the Motion to Dismiss as to all claims pursuant to ERISA § 503(a)(1)(B) against Fleet Financial Corporation. The court denies the Motion to Dismiss as to the remaining claims in Counts I, IV, and V.
SO ORDERED.
D.Conn.,2006. Richards v. FleetBoston Financial Corp. 427 F.Supp.2d 150, 37 Employee Benefits Cas. 1449
END OF DOCUMENT

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Richards v. FleetBoston Financial Corp. D.Conn.,2006.
United States District Court,D. Connecticut. Donna C. RICHARDS, individually, and on behalf
of others similarly situated, Plaintiff v.
FLEETBOSTON FINANCIAL CORP. et al., Defendants.
No. Civ.A. 304CV1638JCH.
March 31, 2006.
Background: Employee brought class action against her employer and administrators of employer's cash value pension plan, alleging violations of Employee Retirement Income Security Act (ERISA). Defendants moved to dismiss. The District Court, 2006 WL 980565, granted motion in part and denied it in part. Employee moved for class certification as to remaining claims.
Holdings: The District Court, Hall, J., held that: (1) named plaintiff could adequately represent the proposed class; (2) commonality requirement for certification was met; (3) typicality requirement for certification was met; and (4) injunctive and declaratory relief sought would be both reasonably necessary and appropriate, and all members of proposed class had statutory standing.
Motion granted in part and denied in part.
West Headnotes
[1] Federal Civil Procedure 170A 172
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings

170Ak172 k. Evidence; Pleadings and Supplementary Material. Most Cited Cases Party seeking to certify class bears burden of showing that class she has proposed meets requirements for class certification. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.
[2] Federal Civil Procedure 170A 172
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak172 k. Evidence; Pleadings and
Supplementary Material. Most Cited Cases In ruling on motion for class certification following dismissal of certain claims and nondismissal of others, court accepts factual allegations of complaint as true; it may also consider affidavits that plaintiff has submitted in support of her motion for class certification, and affidavits defendant has submitted in opposition to motion for class certification. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.
[3] Federal Civil Procedure 170A 171
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak171 k. In General; Certification
in General. Most Cited Cases Before certifying class, court must conduct rigorous analysis and be persuaded that prerequisites of numerosity, commonality, typicality and adequacy of representation have been met. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
[4] Federal Civil Procedure 170A 161
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak161 k. In General. Most Cited

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Cases Class certification rule is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.
[5] Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class;
Typicality. Most Cited Cases
Federal Civil Procedure 170A 165
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak165 k. Common Interest in Sub-
ject Matter, Questions and Relief; Damages Issues. Most Cited Cases The adequacy of representation requirement for class certification tends to merge with commonality and typicality criteria, which serve as guideposts for determining whether maintenance of class action is economical and whether named plaintiff's claim and class claims are so interrelated that interests of class members will be fairly and adequately protected in their absence. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.
[6] Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class;
Typicality. Most Cited Cases To satisfy “adequacy of representation” requirement for class certification, class representative must be part of class and possess the same interest and suffer the same injury as class members.

Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
[7] Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class;
Typicality. Most Cited Cases Disagreement as to type of damages sought does not mean that representation is inadequate for class certification purposes. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
[8] Federal Civil Procedure 170A 172
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak172 k. Evidence; Pleadings and
Supplementary Material. Most Cited Cases In ruling on motion to certify class in ERISA litigation against administrators of cash value pension plan, it would be unfair for district court to consider affidavit of actuary who had reviewed documents concerning some subset of plan participants, offered by defendants in support of argument that named plaintiff had interests antagonistic to those of some putative class members, where defendants did not disclose any data underlying actuary's conclusions until one week before oral argument and as of four days before court's ruling still had not disclosed all the underlying data. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
[9] Federal Civil Procedure 170A 184.5
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen-
ted 170Ak184 Employees 170Ak184.5 k. In General. Most

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Cited Cases Named plaintiff could adequately represent proposed class in ERISA litigation; surviving claims were based solely on plan terms and plan documents applicable to all class members. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.; Employee Retirement Income Security Act of 1974, §§ 102, 204(b)(1)(H)(i), (h), 29 U.S.C.A. §§ 1022, 1054(b)(1)(H)(i), (h).
[10] Federal Civil Procedure 170A 173
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak173 k. Hearing and Determina-
tion; Decertification; Effect. Most Cited Cases As part of its continuing duty to assure adequacy of representation in class action suit, district court may decide to modify or decertify class in the future. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
[11] Federal Civil Procedure 170A 165
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak165 k. Common Interest in Sub-
ject Matter, Questions and Relief; Damages Issues. Most Cited Cases The “commonality” requirement for class certification is met if plaintiff's grievances share common question of law or fact with potential class members. Fed.Rules Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.
[12] Federal Civil Procedure 170A 184.5
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen-
ted

170Ak184 Employees 170Ak184.5 k. In General. Most
Cited Cases Commonality requirement for class certification was met in ERISA litigation alleging, inter alia, that defendants failed to notify pension plan participants of significant reduction in rate of future benefit accrual 14 days prior to effective date of amended plan and failed to provide adequate Summary Plan Description (SPD); claims did not require showing of actual prejudice or individualized harm but only “likely prejudice,” which might be satisfied by terms of plan itself, and even if notice had to be issued only to participants whose of significant reduction in future benefit accrual was reasonably expected, such a reduction was reasonably expected for all class members, at least for purposes of class certification. Fed.Rules Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.; Employee Retirement Income Security Act of 1974, §§ 102, 204(h), 29 U.S.C.A. §§ 1022, 1054(h).
[13] Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class;
Typicality. Most Cited Cases The “typicality” requirement for class certification requires that claims of class representatives be typical of those of class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
[14] Federal Civil Procedure 170A 184.5
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen-
ted 170Ak184 Employees

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170Ak184.5 k. In General. Most Cited Cases Typicality requirement for class certification was satisfied in ERISA litigation alleging that amended plan, as cash balance account plan, violated ERISA section prohibiting plans that reduced rate of employee's benefit accrual because of any attainment of age, that defendants failed to notify pension plan participants of significant reduction in rate of future benefit accrual 14 days prior to effective date of amended plan and failed to provide adequate Summary Plan Description (SPD) each class member's claim arises from the same course of events and that each makes similar legal arguments to prove the defendants' liability. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.; Employee Retirement Income Security Act of 1974, §§ 102, 204(b)(1)(H)(i), (h), 29 U.S.C.A. §§ 1022, 1054(b)(1)(H)(i), (h).
[15] Federal Civil Procedure 170A 164
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak164 k. Representation of Class;
Typicality. Most Cited Cases While mere existence of individualized factual questions with respect to class representative's claim will not bar class certification, class certification is inappropriate where putative class representative is subject to unique defenses which threaten to become focus of litigation. Fed.Rules Civ.Proc.Rule 23(a)(3), 28 U.S.C.A.
[16] Declaratory Judgment 118A 305
118A Declaratory Judgment 118AIII Proceedings 118AIII(C) Parties 118Ak305 k. Representative or Class Ac-
tions. Most Cited Cases
Federal Civil Procedure 170A 165

170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak165 k. Common Interest in Sub-
ject Matter, Questions and Relief; Damages Issues. Most Cited Cases For class action to be maintainable on ground that party opposing class has acted or refused to act on grounds generally applicable to class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to class as whole, relief sought need not be solely equitable in nature: when both equitable and monetary relief are sought, the district court may still certify class under that subsection if it determines that certification is appropriate in light of relative importance of remedies sought, given all facts and circumstances of case. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
[17] Declaratory Judgment 118A 305
118A Declaratory Judgment 118AIII Proceedings 118AIII(C) Parties 118Ak305 k. Representative or Class Ac-
tions. Most Cited Cases
Federal Civil Procedure 170A 184.5
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen-
ted 170Ak184 Employees 170Ak184.5 k. In General. Most
Cited Cases For purposes of determining maintainability of ERISA class action involving cash value pension plan, injunctive and declaratory relief sought by plaintiff would be both reasonably necessary and appropriate, should plaintiff class succeed on merits of ERISA claims; all the putative class members would benefit from at least some injunctive relief if

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plaintiff prevailed, and injunctive relief sought could benefit retired employees even if they took a lump sum payment. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.; Employee Retirement Income Security Act of 1974, §§ 102, 204(b)(1)(H)(i), (h), 29 U.S.C.A. §§ 1022, 1054(b)(1)(H)(i), (h).
[18] Federal Civil Procedure 170A 165
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)1 In General 170Ak165 k. Common Interest in Sub-
ject Matter, Questions and Relief; Damages Issues. Most Cited Cases Injunction requiring payment of monies unlawfully withheld in the past may be considered “injunctive relief” within meaning of class certification rule. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.
[19] Labor and Employment 231H 646
231H Labor and Employment 231HVII Pension and Benefit Plans 231HVII(K) Actions 231HVII(K)3 Actions to Enforce Stat-
utory or Fiduciary Duties 231Hk646 k. Parties in General; Stand-
ing. Most Cited Cases In determining whether employee has ceased to be “participant” in ERISA plan as required to pursue certain claims under civil enforcement provision, court considers whether employee in question may become eligible to receive benefit in the future. Employee Retirement Income Security Act of 1974, §§ 3(7), 502(a)(1)(B), (a)(3), 29 U.S.C.A. §§ 1002(7), 1132(a)(1)(B), (a)(3).
[20] Federal Civil Procedure 170A 184.5
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)3 Particular Classes Represen-

ted 170Ak184 Employees 170Ak184.5 k. In General. Most
Cited Cases Plaintiff in ERISA litigation established that all members of proposed class had statutory standing, based on record before court, to pursue surviving claims; while premised on terms of plan and failures of disclosure, surviving claims stated claims for benefits to which retired class members who received lump sums were entitled prior to their retirement. Fed.Rules Civ.Proc.Rule 23(b)(2), 28 U.S.C.A.; Employee Retirement Income Security Act of 1974, §§ 102, 204(b)(1)(H)(i), (h), 29 U.S.C.A. §§ 1022, 1054(b)(1)(H)(i), (h).
[21] Federal Civil Procedure 170A 175
170A Federal Civil Procedure 170AII Parties 170AII(D) Class Actions 170AII(D)2 Proceedings 170Ak175 k. Time for Proceeding and
Determination. Most Cited Cases Request to certify proposed class on ground that prosecution of separate actions by or against individual members would create risk of inconsistent or varying adjudications was timely even though it was not pled in complaint, where motion for class certification was filed only three months after complaint. Fed.Rules Civ.Proc.Rule 23(b)(1), 28 U.S.C.A.
*167 Thomas G. Moukawsher, Ian O. Smith, Moukawsher & Walsh, Hartford, CT, for Plaintiff. Anne E. Rea, Brian P. Guarraci, Erin E. Kelly, Julie A. Koca, Scott E. Gross, William F. Conlon, Sidley, Austin, Brown & Wood LLP, Chicago, IL, George J. Kelly, Jr., Siegel, O'Connor, O'Donnell & Beck, Hartford, CT, for Defendants.
RULING ON DEFENDANTS' MOTION TO CERTIFY CLASS [Doc. No. 19]
HALL, District Judge.

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I. INTRODUCTION
Plaintiff Donna C. Richards is an employee of defendant FleetBoston Financial Corp. (“Fleet”), a participant in the defendant FleetBoston Pension Plan (“Amended Plan”), and a former participant in Fleet's former *168 pension plan, a traditional defined benefits plan (“Traditional Plan”). This ruling presumes familiarity with the court's ruling on the defendants' motion to dismiss, 2006 WL 980565 issued earlier today. The earlier ruling describes the terms of the Amended Plan that are at issue in this case and the ways in which they are alleged to have violated ERISA. In that earlier ruling, the court dismissed Counts II, III, VI, and all claims against Fleet Financial Corporation that were asserted pursuant to ERISA § 502(a)(1)(B).FN1 It denied the motion to dismiss with respect to the remaining claims.
FN1. Therefore, the court does not consider the arguments for and against class certification with respect to these counts.
In Count I, Richards alleges that the Amended Plan, as a cash balance account plan, violates ERISA § 204(b)(1)(H)(i), which prohibits plan rules that reduce “the rate of an employee's benefit accrual ... because of the attainment of any age,”29 U.S.C. § 1054(b)(1)(H)(i). In Count IV, she alleges that the defendants failed to notify her and other participants of a significant reduction in the rate of future benefit accrual 15 days prior to the effective date of the Amended Plan, thereby violating ERISA § 204(h), 29 U.S.C. § 1054(h). In Count V, she alleges that the defendants failed to provide an adequate Summary Plan Description (“SPD”), in violation of ERISA § 102, 29 U.S.C. § 1022. Richards moves the court to certify a class consisting of any and all persons who:
(a) are former or current Fleet employees who on December 31, 1996 [the day before the Amended Plan's effective date] were not at least age 50 with 15 years of vesting service, and

(b) participated in the Fleet Pension Plan before January 1, 1997, and
(c) have participated in the Fleet Pension Plan at any time since January 1, 1997.
The Amended Plan uses hypothetical cash balance accounts to calculate retirement benefits for its participants. Each quarter, a certain amount is added to an employee's hypothetical cash balance account, calculated as the sum of a certain percentage of the portion of that employee's compensation that falls below the social security wage base, a higher percentage of the employee's compensation above the social security wage base, and an interest credit. For participants who had participated in the Traditional Plan before its amendment and who were not at least age 50 with 15 years of vesting service as of December 31, 1996, the Amended Plan calculates retirement benefits using a “greater of” formula. A retiring participant receives the greater of the “frozen” benefit derived from the Traditional Plan terms and the hypothetical cash balance account balance The frozen benefit is often larger than the opening hypothetical cash balance account, because the opening balance for the cash balance account is calculated as the frozen Traditional Plan benefit minus early retirement subsidies. The idea that an employee covered by these terms does not actually accrue any new benefits under the Amended Plan until the value of the hypothetical cash balance account exceeds that of the frozen Traditional Plan benefit is known as the “wear-away” effect. It is allegedly exacerbated by an actuarial assumption and interest rate used in calculating the opening balance of the cash balance account. See Compl. ¶ 35.
II. STANDARD OF REVIEW
[1][2] Richards bears the burden of showing that the class she has proposed meets the requirements for class certification. SeeCaridad v. Metro-North Commuter Railroad, 191 F.3d 283, 291 (2d Cir.1999); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 484 (2d Cir.1995). In ruling on a

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motion for class certification at the present stage of the litigation, the court accepts the factual allegations of the Complaint as true. Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978) (internal citations omitted). It may also consider affidavits that a plaintiff has submitted in support of her motion for class certification, seeid., and affidavits a defendant has submitted in opposition to the motion for class certification, see, e.g.,Panzirer v. Wolf, 663 F.2d 365, 368-69 (2d Cir.1981), vacated *169 as moot,Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982).
[3][4] Before certifying a class, the court must conduct a “rigorous analysis” and be “persuaded that the prerequisties of Rule 23(a) have been met.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
Nevertheless, a motion for class certification is not an occasion for examination of the merits of the case. SeeSirota v. Solitron Devices, Inc., 673 F.2d 566, 570-72 (2d Cir.1982). As the Supreme Court has stated, “[N]othing in either the language or history of Rule 23... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). The Second Circuit has held that “Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility.” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997) (internal citation omitted).
III. DISCUSSION
A. Rule 23(a)
Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following prerequisites to class certi-

fication:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions 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 an adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). These requirements are commonly referred to as “numerosity,” “commonality,” “typicality,” and “adequacy.” See, e.g.,Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d. Cir.2000).
[5] The defendants do not contest that Richards has met her burden of proving numerosity. However, they argue that she has failed to meet her burden of showing adequacy, commonality, and typicality. “The adequacy-of-representation requirement tends to merge with the commonality and typicality criteria of Rule 23(a), which serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal citation, quotation marks, ellipses, and brackets omitted). The court begins by considering adequacy, but many of the conclusions reached in that analysis will inform its holdings on typicality and commonality.
1. Adequacy of Representation
[6][7] “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal citation omitted). “[A] class representative

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must be part of the class and possess the same interest and suffer the same injury as the class members.” Id. at 625-26, 117 S.Ct. 2231 (internal citation and quotation marks omitted). Rule 23(a)(4)“requires courts to ask whether plaintiff's interests are antagonistic to the interest of other members of the class.” FN2 In re Visa Check/ MasterMoney Antitrust Litig., 280 F.3d 124, 142 (2d Cir.2001) (internal citation and quotation marks omitted).*170 Disagreement as to the type of damages sought, however, does not mean representation is inadequate. See, e.g.,Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 447 (E.D.N.Y.1995) (quoting Robertson v. National Basketball Ass'n, 389 F.Supp. 867 (S.D.N.Y.1975) (holding that, even though different plaintiffs sought different types of damages, “all players, past and present, seek damages for the same acts”)); Ouellette v. Int'l Paper Co., 86 F.R.D. 476, 480 (D.Vt.1980) (holding that the contention that “issues going to proof of damages” would create antagonism among class members was “easily disposed of by noting that there is no necessity that all issues be tried in one proceeding. The class aspects may be tried before the individual damage claims, if that should prove necessary.”).
FN2. Rule 23(a) also requires that the lead plaintiff's attorney “be qualified, experienced, and generally able to conduct the proposed litigation.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968) [hereinafter Eisen II]; see alsoWeber v. Goodman, 9 F.Supp.2d 163, 171 (E.D.N.Y.1998) (citing Eisen II); Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 447 (E.D.N.Y.1995) (same). The defendants do not dispute that Attorney Moukawsher meets this standard, and the court finds that he satisfies the requirements for class counsel.
The defendants argue that Richards has interests antagonistic to those of some putative class members. The argue, first, that “[t]he source of the con-

flict comes from the primary remedy Plaintiff seeks: ‘A declaration that the cash balance amendment to the FleetBoston Financial Pension Plan which purportedly took effect on January 1, 1997 was ineffective and that the plan in place prior thereto is still in force and effect.’ ” Defs.' Mem. Opp. Plf.'s Mot. Class Cert. at 8 [Doc. No. 68] (quoting Compl. Prayer for Relief ¶ 1 [Doc. No. 1]). They argue that some members of the proposed class are better off under the Amended Plan than they would be under the Traditional Plan and that it would be improper to bind them to a non-opt-out class.
[8] In support of this argument, the defendants have submitted a declaration by Christopher Bone, an actuary who has reviewed documents concerning some subset of plan participants. Although Rule 26 of the Federal Rules of Civil Procedure is concerned with preparation for trial and does not contemplate the use of experts to oppose a motion for class certification at the motion to dismiss stage, the defendants are effectively submitting expert testimony in support of their position on class certification. Based upon representations made by counsel for both sides at oral argument, it appears that the defendants did not disclose any data underlying Bone's conclusions to the plaintiff until approximately a week before oral argument on this motion, and that, as of March 27, they still had not disclosed all of the underlying data. Although the court is generally permitted to consider affidavits submitted by a defendant, see, e.g.,Panzirer v. Wolf, 663 F.2d 365, 368-69 (2d Cir.1981), vacated as moot,Price Waterhouse v. Panzirer, 459 U.S. 1027, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982), in the present situation it finds that it would be unfair to the plaintiff to consider the Bone Affidavit in this ruling.
[9] The court finds that Richards can adequately represent the interests of the class as she has proposed it. So far as the court can determine at the present stage in the litigation, based upon the terms of the Amended Plan and Richards' complaint and

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affidavit, Richards' surviving claims allege violations of statutory ERISA rights held by all of the putative class members. The surviving claims in Richards' Complaint are based solely on plan terms and plan documents applicable to all class members. The claim, in Count I, that the cash balance terms violate ERISA section 204(b)(1)(H)(I), states a violation of all putative class members' rights because all are subject to the challenged cash balance account system merely by virtue of their participation in the plan. The claims in Counts IV and V allege illegal failures to disclose the same elements of the Amended Plan that form the factual basis for Count I, as well as the wear-away effect. Richards' complaint, read alongside the plan terms themselves, gives rise to a reasonable inference that all members of the putative class would experience at least some wear-away effect, because they are all subject to the “greater of” formula. See Compl. ¶ 30-33; Amended Plan SPD, Plf.'s Mem. Opp. Mot. Dismiss, Ex. A at 21 [Doc. No. 40]. This is so regardless of whether their overall benefits have grown faster than they otherwise would have as a result of the 1997 plan amendment. Moreover, Richards has not alleged disclosure failures specific to her, but rather failures that would affect all putative class members. For the reasons discussed in Part IV.E. of this court's ruling on the defendants' motion to dismiss, the defects in disclosure*171 themselves are significant enough to establish a presumption of likely prejudice, common to all members of the class, and this presumption has not been rebutted. SeeFrommert v. Conkright, 433 F.3d 254, 267 (2d Cir.2006) (quoting Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 112 (2d Cir.2003)).
For these reasons, the members of the proposed class share Richard's claims. Even if the court were to accept the defendants' allegation that some class members would prefer to receive the greater benefits afforded them by the Amended Plan, with its alleged violations of ERISA, than to receive benefits that they would have received had Fleet kept the Traditional Plan in place, does not mean that the

court should exclude those individuals from a class that is created to vindicate their ERISA-created rights. SeeJ. John Jacobi v. Bache & Co., Inc., 16 Fed. R. Serv.2d 71 (S.D.N.Y. Feb.8, 1972) (Callahan) (holding, in denying a challenge to certification of a Rule 23(b)(1) class, that “the object of an anti-trust action is the restoration of competition to the injury involved: the fact that some members of the class may differ as to the desirability of a particular remedy for the anti-trust violation, or even desire the maintenance of the status quo, does not preclude their being included within the class bringing the action”), cited in Alba Conte & Herbert B. Newberg, 1 Newberg on Class Actions § 3:30 (4th ed.2005); see alsoNorwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir.1968) (holding that, where a complaint alleged discrimination against particular races by city housing relocation program and questions of fact common to all members, the “fact that some members of the class were personally satisfied with the defendants' relocation efforts is irrelevant.”), cited in1 Newberg on Class Actions § 3:30; Groover v. Michelin N. Am., Inc., 192 F.R.D. 305, 306, 307 n. 1 (M.D.Ala.2000) (holding that “the fact that some class members may be satisfied with the welfare benefits they are currently receiving, notwithstanding any alleged contractual violation, and would prefer to maintain the status quo and leave violations of their rights, if violations exist, unremedied is not dispositive under Rule 23(a),” but not reaching merits of defendant's argument that some class members' benefits actually increased under the “current system”).FN3
FN3. Even if the court found that Richards could not adequately represent class members who wanted to maintain the Amended Plan as it currently operates, which is not its holding, this would not necessarily prevent class certification. There is some precedent for the proposition that the dissenting class members' interests could be adequately represented by the defendants in this case, who share the same goal of pre-

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serving the Amended Plan. SeeCurley v. Brignoli, Curley & Roberts Assoc., L.P., 915 F.2d 81, 85 (2d Cir.1990) (citing with approval Lefebvre v. Kelly, No. 83 CV 3211(ERK), 1987 WL 12036 (E.D.N.Y. May 21, 1987) (“When the interests of antagonistic class members are adequately represented by the class' opponents, the requirements of due process are satisfied such that a class can be certified.”)). Although Curley and Lefebvre dealt with Rule 23.1 rather than Rule 23, Lefebvre cited solely Rule 23(a) cases as support for this holding. See1987 WL 12036, at *4 (citing Horton v. Goose Creek Independent Sch. Dist., 690 F.2d 470, 487 (5th Cir.1982); Dierks v. Thompson, 414 F.2d 453 (1st Cir.1969); Stolz v. United Bhd. of Carpenters & Joiners, 620 F.Supp. 396 (D.Nev.1985)).
The defendants assert that the Seventh Circuit held that “class certification should be denied when members of the proposed class benefit from different ERISA plan formulas.” Defs.' Mem. Opp. Plf.'s Mot. Class Cert. at 13 [Doc. No. 68] (citing United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1274 (7th Cir.1985)). However, the cited case does not state such a broad proposition. United did state that “[a]t least some class members oppose the benefit changes for which plaintiffs sue.” Id. at 1284. However, the decision it was reviewing rested also on several other potential conflicts. Moreover, the case it was reviewing was at the summary judgment stage, meaning that the court likely had far more information about potential conflicts of interest than is available to this court at the motion to dismiss stage. Finally, the Court of Appeals was reviewing a district court judge's denial of class certification under the deferential abuse of discretion standard. Id. at 1283-84.
In addition to the adequacy argument discussed above, the defendants argue that Richards cannot adequately represent any *172 class members' in-

terests because “all putative class members, regardless of their circumstances, have derived a significant advantage from” the provision in the Amended Plan that permits them to take their benefits as a lump sum upon termination of employment. Def.'s Mem. Opp. Plf.'s Mot. Class Cert. at 12 [Doc. No. 68] (citing Ex. B, Sahakian Decl. at ¶ 5 (stating that vast majority of retirees in class took lump-sum distribution)) (emphasis in original). The Traditional Plan did not have this feature. Even if the court could assume at this stage in the litigation that class members do prefer a lump-sum distribution, a question it does not decide, this conclusion would go only toward the question of which remedy class members would seek, which does not affect the viability of the class at this stage in the litigation. See, e.g.,Walsh, 162 F.R.D. at 448.
Another court in this district confronted a case factually similar to the present case in Amara v. CIGNA Corp. No. 3:01CV2361 (DJS), 2002 WL 31993224, at *2, 2002 U.S. Dist. LEXIS 25947, at *6-*7 (D.Conn. Dec. 20, 2002). While recognizing that “providing the relief requested in the complaint on a class-wide basis may actually harm some members of the class,” he concluded that “this problem can be addressed when the court determines what remedy should be provided if plaintiff prevails on the merits of her claims.” Id.
[10] This court reaches the same conclusion as a result of its adequacy analysis. The question of remedies is not appropriate for resolution at this stage in the litigation, and the court is not required to impose the particular remedy requested by Richards even if she prevails on the merits of her claims. Moreover, as part of its continuing duty to assure adequacy of representation in a class action suit, seeKey v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986), the court may always decide to modify or decertify the class in the future. These possibilities help to assure that no subset of the class would be deprived of due process as this case goes forward, even though Richards asks the court to certify a class that would not permit members to opt out.

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2. Commonality
[11] The commonality requirement is met if the plaintiff's grievances share a common question of law or fact with potential class members. “The commonality requirement is met if plaintiffs' grievances share a common question of law or fact.” Marisol A., 126 F.3d at 376. Because Richards' surviving claims allege that the terms of the plan, in which all class members participate, violate ERISA, the court finds that she has shown common questions of law.
[12] The court is unpersuaded by the defendants' argument that Counts IV and V require individualized assessments. First, these claims do not require a showing of actual prejudice or individualized harm, but only “likely prejudice,” which may be satisfied by the terms of the plan itself. SeeFrommert v. Conkright, 433 F.3d 254, 267 (2d Cir.2006); Amara, 2002 WL 31993224, at *3, 2002 U.S. Dist. LEXIS 25947, at *9 (“The second count of the class complaint also turns upon a common legal question generally applicable to all members of the class: whether CIGNA's SPD is misleading.”).FN4 All defendants were participants in the same plan.
FN4. The reasoning behind this conclusion is discussed in more detail in the court's ruling on the defendants' motion to dismiss. The defendants have not argued that they intend to raise individualized defenses that would rebut the presumption of likely prejudice that may arise from the plan terms.
The defendants' remaining argument on Counts IV and V would require the court to reach the merits of Richards' claims, which is inappropriate in the present ruling. SeeCaridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). The defendants argue that the defendants are obligated to issue an ERISA § 204(h) notice only to participants whose significant reduction in future benefit accrual is reasonably expected. Even if this is true, an issue the court does not reach, the plaintiff has

adequately alleged facts giving rise to an inference that such a reduction would be reasonably expected for all class members, at least for purposes of the present stage of the litigation. Under the standard for deciding a motion for class *173 certification made at the motion to dismiss stage, the court is persuaded that the proposed class satisfies the commonality requirement.
3. Typicality
[13][14] “Typicality ... requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.” Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 63 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997)). “Minor conflicts, however, do not make a plaintiff's claims atypical; it is when the conflict goes to the very subject matter of the litigation that the conflict will defeat the claim of representative status.” Walker, 214 F.R.D. at 63-64 (quoting Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 445 (E.D.N.Y.1995)) (internal quotation marks omitted). “Differences in the degree of harm suffered, or even in the ability to prove damages, do not vitiate the typicality of a representative's claims.” Ouellette, 86 F.R.D. at 480 (citing Sanders v. Faraday Laboratories, Inc., 82 F.R.D. 99, 101 (E.D.N.Y.1979)) (holding that “[p]roof of defendant's liability ... will benefit all members of the proposed classes, Eisen [II]; that the damages, if any, may reach a de minimis level at some point among the class members does not make the named plaintiffs' claims atypical”). Therefore, it is unnecessary to determine whether Richards' damages are the same as those suffered by others in the class. In light of the reasoning discussed in the preceding sections, the court finds that each class member's claim arises from the same course of events and that each makes similar legal arguments to prove the defendants' liability.

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[15] The defendants argue that Richards is subject to individual defenses not applicable to other class members. “While it is settled that the mere existence of individualized factual questions with respect to the class representative's claim will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.” Walker, 214 F.R.D. at 64 (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir.2000)). The defendants argue that Richards has failed to exhaust administrative remedies, but the court has held, in its ruling on the defendants' motion to dismiss, that exhaustion is unnecessary. The defendants do not point to any other individualized defenses that would threaten to become a focus of the litigation.
The court finds, for the foregoing reasons, and on the basis of her asserted knowledge of the issues at stake in the litigation, that Richards has satisfied the requirements of Rule 23(a).
B. Rule 23(b)
In addition to showing that the proposed class satisfies all four of the Rule 23(a) requirements, the plaintiff must show that the class fits within one of the categories in Rule 23(b). See, e.g.,Consol. Rail Corp., 47 F.3d at 484. Rule 23(b) delineates three types of class actions. Richards seeks certification of a class under subsection (b)(1) and (b)(2) of Rule 23. These two subsections outline two of the three types of cases in which class certification is appropriate: first, in Rule 23(b)(1), where the rights of either potential class members or the party opposing the class would be harmed by piecemeal adjudication, and second, in (b)(2), where the class seeks injunctive or declaratory relief against a party who has itself treated the class as a group in the context of its own acts or admissions.
[16] The court begins by considering the request for certification under Rule 23(b)(2). Rule 23(b)(2) provides for class litigation where “the party oppos-

ing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The relief sought need not be solely equitable in nature: when both equitable and monetary relief are sought, the district court may still certify the class under subsection (b)(2) if it determines that certification is appropriate*174 “in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case.” Parker v. Time Warner Cable, 331 F.3d 13, 20 (2d Cir.2003) (internal quotations omitted). As the Second Circuit explained in Parker, when making a determination about subsection (b)(2) certification, the district court must first determine whether, “even in the absence of possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought.” Id. (quoting Robinson v. Metro-North Commuter R.R., 267 F.3d 147 (2d Cir.2001)). Next, the court must also consider whether “the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.” Id.
As the defendants admit, Richards seeks injunctive and declaratory relief. See Compl. Prayer for Relief; FN5 Defs.' Mem. Opp. Mot. Class Cert. at 35 [Doc. No. 68]. The court finds that reasonable plaintiffs would bring this suit to obtain injunctive and declaratory relief even in the absence of monetary relief. SeeAmara v. CIGNA Corp., No. 3:01CV2361 (DJS), 2002 WL 31993224, 2002 U.S. Dist. LEXIS 25947 (Dec. 20, 2002) (holding that claims including those similar to Counts I and V of Richards' Complaint, seeking equitable relief pursuant to ERISA § 502(a), 29 U.S.C. § 1132(a), “fall squarely within the purview” of Rule 23(b)(2)“because they seek injunctive relief, pursuant to ERISA, generally applicable to the entire class.”).
FN5. Her Prayer for Relief requests:
1. A declaration that the cash balance

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amendment to the FleetBoston Financial Pension Plan which purportedly took effect on January 1, 1997 was ineffective and that the plan in place prior thereto is still in force and effect;
2. A declaration that Donna C. Richard's benefit accruals under the FleetBoston Financial Plan must be unconditional and not reduced because of age;
3. An injunction prohibiting the application of the FleetBoston Financial Plan's reductions in the rate of benefit accruals because of age and its conditioning of benefits due under the plan;
4. An injunction ordering appropriate equitable relief to determine plan participant losses caused by Fleet's payment of benefits under the unlawful cash balance terms of the Fleet Plan and requiring the payment of additional benefits as appropriate under the Court's ruling;
5. An injunction ordering appropriate equitable relief to determine plan participant losses caused by Fleet's failure to inform plan participants when their frozen accrued benefits under the Traditional Plan Terms exceed the amount of their cash balance accounts and requiring the payment of any benefits unpaid by reason thereof;
6. Attorney's fees pursuant to ERISA § 502(g);
7. Interest;
8. Costs;
9. An order for appropriate equitable and remedial relief to ensure that relief granted hereunder is implemented on a classwide basis,

10. Such other equitable and remedial relief as the Court deems appropriate, and award attorneys' fees and expenses.
Request 5 is no longer at issue in light of the court's ruling on the motion to dismiss.
[17] The defendants argue that some putative class members would not want the injunctive relief that Richards seeks because it would disadvantage them financially to revert to coverage under the Traditional Plan terms. However, the court may infer from the complaint and plan documents that all of the putative class members would benefit from at least some injunctive relief if the plaintiff prevails.
[18] The defendants argue further that the relief Richards seeks could not be effected for a subset of plaintiffs who have retired and taken a lump-sum distribution, because they could not benefit from solely prospective relief. The defendants argue that “the only real interest of these former participants is the possibility of obtaining monetary relief.” These objections do not prevent (b)(2) certification. For purposes of subsection (b)(2), an injunction requiring the payment of monies unlawfully withheld in the past may be considered injunctive relief. SeeWalsh, 162 F.R.D. at 448 (holding that claim was for injunctive relief, not monetary damages, for 23(b)(2) purposes, where plaintiffs asked the court to restore them to their positions prior to a merger, with restitution of benefits and back pay); cf. Morgan, 222 F.R.D. at 236 (holding that former employees in proposed race discrimination suit class would not pursue a claim for purely injunctive relief, where they could not have benefitted from any of *175 the injunctive relief requested, and where the plaintiffs had made claims for compensatory and punitive damages, in addition to lost wages). Moreover, Richards seeks an injunction requiring “appropriate equitable relief to determine plan participant losses caused by Fleet's payment of benefits under the unlawful cash balance terms of the Fleet Plan and requiring the payment of additional benefits as appropriate under the Court's ruling.”

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235 F.R.D. 165, 37 Employee Benefits Cas. 1472

(Cite as: 235 F.R.D. 165)

Page 14

Compl. Prayer for Relief ¶ 4. This relief could benefit retired employees, even if they took a lump sum payment. Finally, other courts have held that injunctive relief may be available under ERISA § 502(a)(3) to retired employees no longer entitled to benefits under the terms of their former pension plan. SeeVarity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); Broga v. Northeast Utilities, 315 F.Supp.2d 212, 256 (D.Conn.2004).
For all of the foregoing reasons, the court concludes that the injunctive and declaratory relief sought by the plaintiff would be both reasonably necessary and appropriate, should the plaintiff class succeed on the merits. SeeParker, 331 F.3d at 20.
The defendants argue further that retirees lack statutory standing to pursue claims for equitable relief under ERISA, and therefore would be improperly included in a(b)(2) class. As relevant here, a plaintiff must be a “participant” to pursue a claim under ERISA § 502(a)(1)(B) or (a)(3). 29 U.S.C. § 1132(a)(1)(B), (a)(3).
The term ‘participant’ means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.
Id. at § 1002(7). “The Supreme Court has construed § 502 narrowly to allow only the stated categories of parties to sue for relief directly under ERISA.” Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 101 (2d Cir.2005) (citing Franchise Tax Board v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The defendants' argument that some putative class members lack standing relies on the Second Circuit's holding in Nechis that, “[p]articipants can lose standing to sue if, despite their having suffered an alleged ERISA violation,

their participant status has been terminated before suit is filed.” 421 F.3d at 101 (internal citations omitted).
[19] However, in determining whether an employee has ceased to be a “participant,” the court considers whether the plaintiff in question “may become eligible” to receive a benefit in the future. “In order to establish that she may become eligible for benefits, [a plaintiff] must have a colorable claim that (1) she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future.” Id. at 102 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). The Firestone court held that employees who “have a colorable claim to vested benefits” may be considered participants because they may become eligible to receive benefits. The plaintiff in Nechis had no such claim, because her claim involved welfare benefits, which, unlike pension benefits, do not vest. SeeFrommert v. Conkright, 433 F.3d 254, 264 (2d Cir.2005) (internal citations omitted). In contrast, the members of the putative class who have already taken lump sum benefits do appear to have colorable claims that the Amended Plan violated ERISA in such a manner as to deprive them of vested benefits.
Although the Tenth Circuit has held that employees who took lump-sum distributions upon the termination of their employment were not “participants” within the meaning of ERISA, Raymond v. Mobil Oil Corp., 983 F.2d 1528, (10th Cir.1993), the Second Circuit has expressed disagreement with this holding. Mullins v. Pfizer, Inc., 23 F.3d 663, 667-68 (2d Cir.1994). The Mullins court held that, “Congress intended the statutory scheme [in ERISA], in conjunction with state law, to afford broad protection,” and that statutory standing should be determined by asking whether the plaintiff fell within the “zone of interests” of the statute. Id. at 668. It concluded that it would be unfair to prohibit*176 the plaintiff, who had allegedly taken early retirement and terminated participation

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FOR EDUCATIONAL USE ONLY

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(Cite as: 235 F.R.D. 165)

Page 15

in his pension plan in reliance on misleading statements by plan administrators, from pursuing a claim for fraudulent misrepresentation under ERISA. Id. at 667-68. Mullins could not have brought suit before retirement because he was not then aware of the misrepresentation. Similarly, Richards alleges that the plan participants had no notice that the cash balance plan was age discriminatory, nor notice of the wear-away effect. In light of Mullins, a participant who took a lump sum distribution upon retirement and claims that some vested benefit was illegally denied to her because of an administrator's miscalculation or breach of fiduciary duty remains a participant under ERISA. SeeO'Connell v. Kenney, No. 3:03CV0845 (DJS), 2003 WL 22991732, at *2 (D.Conn. Dec.15, 2003); Gray v. Briggs, No. 97 CIV. 6252(DLC), 1998 WL 386177 (S.D.N.Y. July 7, 1998). “Where ... the plaintiffs allege that the distributions they received were less than they were entitled to on account of the defendants' wrongful conduct during the term of the plaintiffs' employment, the plaintiff's claim is for ‘vested benefits.’ ” Gray, 1998 WL 386177, at *4.“In other words, the plaintiffs seek benefits to which they were entitled at or before the time of their termination, but which they did not receive because of the defendants' wrongdoing. It would defeat the purposes of ERISA to deny standing in this context.” Id. (citing Mullins v. Pfizer, Inc., 23 F.3d 663, 666-68 (2d Cir.1994)).
[20] The court concludes that the surviving claims, while premised on the terms of the plan and failures of disclosure rather than the breach of fiduciary duty in the investment of funds at issue in Gray, similarly state claims for benefits to which the retired class members who received lump sums were entitled prior to their retirement. Therefore, the court holds that the plaintiff has established that all members of the proposed class have statutory standing, based on the record currently before the court. It finds certification of the proposed (b)(2) class to be appropriate.
[21] Richards also seeks certification of a class un-

der Rule 23(b)(1). Richards did not plead a Rule 23(b)(1) class in her complaint. See Compl. ¶ 15. Although another court in this district has denied a motion to certify a Rule 23(b)(1) class as untimely where a plaintiff had failed to state in her complaint that she was seeking to certify a class under this particular subsection, Morgan v. Metropolitan District Comm'n, 222 F.R.D. 220, 235 n. 8 (D.Conn.2004), Richards filed her motion for class certification only three months after her complaint, and the court does not find that this request is untimely.FN6 Nevertheless, in light of its decision to certify a(b)(2) class, and the failure to plead a(b)(1) class, the court does not reach the merits of whether the proposed class could be certified under Rule 23(b)(1) at this time. Should Richards wish to amend her complaint to seek Rule 23(b)(1) certification, she may do so within two weeks of this ruling and reclaim the relevant portion of the instant motion for class certification or file a renewed motion for class certification under 23(b)(1). The court notes that additional briefing focused specifically on whether she seeks a class under Rule 23(b)(1)(A) or Rule 23(b)(1)(B), or both, would be appropriate in the event that Richards chooses to pursue a Rule 23(b)(1) certification.
FN6. No local rule in this district governs the time within which motions for class certification must be filed, cf., e.g.,Bragg v. Perales, No. Civ.-90-602E, 1991 WL 37844, at *2 n. 4 (W.D.N.Y. Mar.8, 1991), and the plaintiff filed the motion for class certification under Rule 23(b)(1) soon after the commencement of this litigation. The court finds no prejudice to the defendants or potential class members in permitting Richards to move for (b)(1) class certification three months after she filed her complaint, particularly when she alerted these parties that she intended to move for some type of class certification at the time she filed her Complaint. Cf.La Bonte v. Gates, 406 F.Supp. 1227, 1229 (D.Conn.1976) (holding that “it would turn the theory of

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FOR EDUCATIONAL USE ONLY

235 F.R.D. 165, 37 Employee Benefits Cas. 1472

(Cite as: 235 F.R.D. 165)

class representation on its head and open the door to potential serious abuse to allow a plaintiff or a defendant to fully present his case and then, after weighing the strength of his own case or the weakness of his opponent's, to convert his individual action into a class representation,” because of notice concerns).
*177 IV. CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part the plaintiff's Motion for Class Certification and certifies the proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.
SO ORDERED.
D.Conn.,2006. Richards v. FleetBoston Financial Corp. 235 F.R.D. 165, 37 Employee Benefits Cas. 1472
END OF DOCUMENT

Page 16

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 Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, :

and on behalf of others similarly

:

situated,

:

Plaintiff

:

:

v.

:

:

FLEETBOSTON FINANCIAL CORP. :

et. al.,

:

Defendants.

:

CIVIL ACTION NO. 3:04-cv-1638 (JCH)
OCTOBER 16, 2006

RULING ON DEFENDANTS’ MOTIONS FOR CERTIFICATE OF APPEALABILITY OR RECONSIDERATION [DOC. NOS. 157 & 159]

I. INTRODUCTION Plaintiff Donna C. Richards is an employee of defendant FleetBoston Financial
Corp. (“Fleet”), a participant in the defendant FleetBoston Pension Plan (“Amended Plan”), and a former participant in Fleet’s former pension plan, a traditional defined benefits plan (“Traditional Plan”).1 Fleet moves again to modify the court’s March 31, 2006 Ruling [Doc. No. 112] pursuant to 28 U.S.C. § 1292(b).2 In the alternative, Fleet moves the court to reconsider its previous Ruling as it relates to Count I, in which Richards alleges that FleetBoston Amended Plan’s cash balance formula reduces the rate of benefit accrual on account of age in violation of § 204(b)(1)(H) of the

1Unless otherwise indicated, the defendants will be collectively referred to as “Fleet.” Bank of America is also a defendant in this action.
2On May 26, 2006, this court denied defendants’ first Motion to Modify March 31 Order Pursuant to 28 U.S.C. § 1292(b), because that motion did not present “one of those ‘rare’ or ‘exceptional’ circumstances that justifies an interlocutory appeal” [Doc. No. 138].
1

Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 2 of 6
Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1054(b)(1)(H). The court will assume familiarity with its prior Ruling, which contains an in-depth analysis of the Count I claim. See Ruling on Defendants’ Motion to Dismiss (“Ruling”), at 9-28 [Doc. No. 112]. II. DISCUSSION
A. Section 1292(b) Standards for Motion for Certificate of Appealability The district court’s order certifying an interlocutory appeal under § 1292(b) must state that it is “of the opinion” that the order satisfies three requirements: (1) it “involves a controlling question of law,” (2) “as to which there is substantial ground for difference of opinion,” and (3) “that an immediate appeal may materially advance the ultimate termination of the litigation.” 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3930 415 (2d ed. 1996). The first factor does not require that the case have precedential value for a large number of suits. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990). “[T]he resolution of an issue need not necessarily terminate an action in order to be controlling.” Id. (citations omitted). As for the second factor: The mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion. Rather, ‘it is the duty of the district judge . . . to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is substantial ground for dispute. Flor v. Bot Financial Corp., 79 F.3d 281, 284 (2d Cir. 1996) (citations omitted). The third requirement is “closely tied to the requirement that the order involve a controlling
2

Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 3 of 6
question of law.” Wright, Miller & Cooper § 3930 at 432. The Second Circuit has noted that courts have tended to consider the first and third requirements as a single requirement. In re Duplan Corp., 591 F.2d 139, 148 n.11 (2d Cir. 1978).
According to Wright, Miller & Cooper, “[t]he three factors should be viewed together as the statutory language equivalent of a direction to consider the probable gains and losses of immediate appeal.” Wright, Miller & Cooper § 3930 at 415-16.
All of these determinations . . . are compatible with the conclusion that § 1292(b) is designed to permit interlocutory appeals only for the purpose of minimizing the total burdens of litigation on parties and the judicial system by accelerating or at least simplifying trial court proceedings. Interlocutory appeals, however, might serve the additional purposes of avoiding hardship that does not result from the length of the proceedings alone, or of providing a vehicle for appellate review of issues that characteristically evade review on appeal from a final judgment.” Id. at 439. However, the Second Circuit has cautioned that “‘the power [to grant an interlocutory appeal] must be strictly limited to the precise conditions stated in the law.’” Klinghoffer, 921 F.2d at 25 (brackets in original, citation omitted). “[U]se of this procedure should be strictly limited because ‘only exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of final judgment.’” Flor, 79 F.3d at 284 (quoting Klinghoffer) (citations omitted). “The use of §1292(b) is reserved for those cases where an immediate appeal may avoid protracted litigation.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-66 (2d Cir. 1996) (citations omitted). In light of the Second Circuit’s cautioning against interlocutory appeals, the court denies Fleet’s motion for certificate of appealability, for it does not view this as one of those “rare” or “exceptional” circumstances that justifies an interloctory appeal. It finds that, despite the recent Seventh Circuit and Southern District of New York decisions
3

Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 4 of 6
that conflict with this court’s previous Ruling, circumstances have not changed sufficiently to warrant this court modifying its previous Ruling.3 This court does not find a contrary decision by a circuit court to present “exceptional circumstances” justifying an interlocutory appeal. Flor, 79 F.3d at 284. This court continues to believe, even in face of the Seventh Circuit opinion, that an interlocutory appeal would not avoid protracted litigation in this case.
B. Motion for Reconsideration Fleet requests in the alternative that, in light of recent decisions by the Seventh Circuit and the Southern District of New York that rejected plaintiff’s theory regarding her age discrimination claim, the court reconsider its March 31, 2006 Ruling denying the motion to dismiss on this Count. Under Local Rule 7(c)(1)4 of the District of Connecticut, "motions for reconsideration shall be filed and served within ten (10) days of the filing of the decision or order from which such relief is sought.” D. Conn. L. Civ. R. 7(c)(1). A failure to timely file a motion for reconsideration may constitute sufficient grounds for denying the motion; however, courts have exercised their discretion to address even untimely motions. See Lopez v. Smiley, 375 F. Supp. 2d 19, 21-22 (D. Conn. 2005); see also Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) (“[A] district court is vested with the power to revisit its decisions before the entry of final
3In the court’s previous Ruling, it already recognized that there is an conflict among the federal courts on this issue. See Ruling at 16, 17-18.
4In their Memorandum in Support of Motion for Certificate of Appealability or Reconsideration, Fleet refers to Local Rule 9(e)(1), but that Rule does not exist.
4

Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 5 of 6
judgment and is free from the constraints of Rule 60 in so doing.”). The standard for granting a motion for reconsideration is strict. See Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Such a motion “will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked – matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Id. A “motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided.” Id.
In light of Fleet’s introduction of additional relevant case law, the court will exercise its discretion to consider defendants’ alternative motion for reconsideration at this time. In Cooper v. IBM Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006), the Seventh Circuit reversed the district court’s decision, which found that the “rate of benefit accrual” is the grammatically correct way of saying “the rate of accrued benefit,” the phrase that is defined in ERISA § 3(23), and that the term “rate of benefit accrual” is therefore unambiguous. See Cooper v. IBM Personal Pension Plan, 274 F.Supp.2d 1010, 1016 (S.D. Ill. 2003). Although this court concurred with the Cooper court’s ultimate reading of the phrase “rate of benefit accrual,” it did so to support its holding that the meaning of this phrase is clear from ERISA itself. See Ruling at 20.
While recognizing that its decision is contrary to several other courts, including now the Seventh Circuit and the Southern District of New York, this court continues to adhere to its previous statutory interpretation of the terms Congress used in ERISA § 204(b)(1)(H). In light of the great similarity that “rate of benefit accrual” bears to the statutorily defined term “accrued benefit,” and the fact that ERISA requires accrued benefit to be measured as an annual benefit commencing at normal retirement age for
5

Case 3:04-cv-01638-JCH Document 174 Filed 10/16/06 Page 6 of 6 defined benefit plans, but requires accrued benefit to be measured as the balance of an individual’s account for defined contribution plans, in this court’s opinion, the term “rate of benefit accrual,” as used in § 204(b)(1)(H)(i), refers to rate measured as a change in the annual benefit commencing at normal retirement age. The statute is unambiguous in this respect, and the court need not inquire further into its meaning. IV. CONCLUSION
For the foregoing reasons, the court DENIES Fleet’s Motion for Certificate of Appealability or, in the alternative, for Reconsideration. SO ORDERED.
Dated at Bridgeport, Connecticut this 16th day of October, 2006. /s/ Janet C. Hall Janet C. Hall United States District Judge
6

 
 Case 3:04-cv-01638-JCH Document 278 Filed 10/15/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and on behalf of others similarly situated,

No. 3:04CV1638 aCH)

Plaintiff,
v.
FLEETBOSTON FINANCIAL CORP., FLEETBOSTON FINANCIAL PENSION PLAN, and BANK OF AMERICA CORPORAnON:

United States District Court District of Connecticut
FIl.ED J BRIDGEPORT

()

20

lerk

Defendants.

Order on Class Counsel Fees and Expenses

This matter having come to the Court for determination of Class Counsel's Motion for an Award of Fees and Expenses, the Court having considered the motion and supporting documents it is HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. The Court finds and awards Class Counsel Thomas G. Moukawsher $17,250,000 as a reasonable attorneys' fee in the abovecaptioned matter, such sum to be paid as an administrative expense of the Plan defined in paragraph 1.35 of the Settlement Agreement.

Case 3:04-cv-01638-JCH Document 278 Filed 10/15/08 Page 2 of 2
2. The Court finds and awards Class Counsel $325,000 as reasonable expenses in the above-captioned matter, such sum to be paid as an administrative expense of the Plan defined in paragraph 1.35 of the Settlement Agreement.
3. The sums awarded hereunder for fees and expenses shall be due and payable as provided in paragraph 7.1 of the Settlement Agreement.

BY THE COURT

Date:------'--=---:.~

tates District Court Judge

2

 
 Case 3:04-cv-01638-JCH Document 279 Filed 10/15/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and on behalf of others similarly situated,
Plaintiff,
v.
FLEETBOSTON FINANCIAL CORP., FLEETBOSTON FINANCIAL PENSION PLAN, and BANK OF AMERICA CORPORAnON:

No. 3:04CV1638 aCH)

United States District.Court District of connecticut
FILED J RIDGEPORT

o of

20

lerk

Defendants.

Order on Incentive Payment

This matter having come to the Court for determination of Plaintiff's Motion for Incentive Payment, having considered the motion and supporting documents it is HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1. The Court finds and awards the Class Representative Donna C. Richards $15,000 as a reasonable incentive payment in the above-captioned matter, such sum to be paid as an administrative expense of the Plan defined in paragraph 1.35 of the Settlement Agreement.

Case 3:04-cv-01638-JCH Document 279 Filed 10/15/08 Page 2 of 2
2. The sum awarded hereunder for an incentive payment shall be due and payable as provided in paragraph 8.1 of the Settlement Agreement.
BY THE COURT
-_.---- -,--.~.-.
frJ! Jamrt C. ~?'t USD,'
Jan C. Hall U ited States District Court Judge
2

 
 Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, :

and on behalf of others similarly

:

situated,

:

Plaintiff

:

:

v.

:

:

FLEETBOSTON FINANCIAL CORP. :

ET. AL.,

:

Defendants.

:

CIVIL ACTION NO. 3:04-cv-1638 (JCH)
JULY 21, 2006

RULING ON DEFENDANTS’ SECOND MOTION TO DISMISS [Doc. No. 128]

I. INTRODUCTION

Following this court’s ruling granting in part and denying in part the defendants’

first motion to dismiss, the plaintiff, Donna C. Richards, filed an Amended Complaint

[Doc. No. 124]. Richards has withdrawn her claim that the Plan requires a forfeiture in

violation of ERISA § 203(a) (Count II of the original Complaint). Thus, the Amended

Complaint, and this ruling, refer to the alleged violation of ERISA § 204(b)(1)(B), as

Count II, although it was Count III of the original Complaint. Similarly, the Amended

Complaint, and this ruling, refer to the alleged violation of ERISA § 204(h) (“Failure to

Supply Advance Notice of a Significant Benefit Decrease”) as Count III, the alleged

violation of ERISA § 102 (“Failure to Provide an Adequate Summary Plan Description

(SPD)”) as Count IV, and the alleged violation of ERISA § 404 (“Breach of Fiduciary

Duty”) as Count V.

The defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure to dismiss Counts II and V of the Amended Complaint.

1

Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 2 of 19
II. FACTUAL BACKGROUND1 The Amended Complaint alleges facts that are substantially identical to those in
the original Complaint, with only a few exceptions. The court assumes readers’ familiarity with the facts of the original Complaint as summarized in the court’s ruling on the defendant’s first motion to dismiss.
Richards is an employee of Bank of America and participant in the FleetBoston Financial Pension Plan (“Amended Plan”), now administered by Bank of America. She had been a member of the FleetBoston Financial Corporation’s (Fleet’s) and predecessor banks’ pension plans for years prior to January 1, 1997, when Fleet amended its traditional defined benefit plan (“Traditional Plan”) to adopt the Amended Plan, a cash balance plan. These terms are defined, and the Traditional and Amended Plan terms are described in more detail, in the court’s ruling on the first motion to dismiss.
The Amended Plan provides that, upon termination of employment with Fleet, an employee who had participated in both the Traditional Plan and the Amended Plan2 would receive the greater of her Cash Balance Account, under the Amended Plan, or her benefit under the Traditional Plan terms, frozen as of January 1, 1997 (“frozen benefit”). Id. at ¶ 32. This rule, combined with the fact that the Amended Plan converted less than the full value of the benefits that Richards and other former
1
See Part III, infra, for a discussion of the pleadings and other docum ents the court considers and the inferences it draws in ruling on the present motion.
2
Em ployees who had been active participants in the Traditional Plan as of December 31, 1996, and were not age 50 with at least 15 years of vesting service as of that date, becam e participants in the Am ended Plan. Amended Plan Summary Plan Description (“SPD”), Defs.’ Mem. Supp. Mot. Dismiss, Ex. B at 21 [Doc. No. 32].
2

Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 3 of 19
Traditional Plan participants had accrued under the Traditional Plan to opening account balances under the Amended Plan terms, meant that the value of retirement benefits available to Richards and similarly situated participants will not increase past the frozen benefit that they had already accrued as of December 31, 1996, until the amount in the cash balance account reaches and then exceeds that amount. The Amended Complaint alleges that Richards has not earned any new retirement benefits in the nine years she worked under the cash balance benefit terms.
The Amended Complaint further alleges that the Plan administrators failed to give participants advance notice that the Amended Plan terms would cause a significant decrease in their rates of future benefit accrual, that the SPD failed to adequately explain the wear-away effect or the way benefit accruals under the Amended Plan are reduced as participants age, and that the administrators concealed the value of participants’ frozen benefits when issuing personal account statements.3 III. STANDARD OF REVIEW
In deciding a Rule 12(b)(6) motion to dismiss, the court takes the allegations of the Complaint as true, and construes them in a manner favorable to the pleader. Hoover v. Ronwin, 466 U.S. 558, 587 (1984); see Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overrruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). In this case, the court may also consider the 1997 Amended Plan document, the Amended Plan SPD, the Traditional Plan document, and the 1998 and 2004 personal plan statements that
3The specific statements that Richards alleges to be inadequate and misleading are discussed in further detail in Part IV, infra.
3

Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 4 of 19
Richards has submitted. The court may do so because these documents are integral to the complaint and Richards relies upon them in her complaint. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992).
A Rule 12(b)(6) motion to dismiss tests the adequacy of the complaint. United States v. City of New York, 359 F.3d 83, 87 (2d Cir. 2004). Thus, such a motion can be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A Rule 12(b)(6) motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. (quotation omitted). "[W]hile bald assertions and conclusions of law will not suffice to state a claim, the district court, before granting a motion to dismiss, must accept as true all of the factual allegations set out in plaintiff's complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Tarshis v. Riese Org., 211 F.3d 30 (2d Cir. 2000) (internal citations omitted); see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). IV. DISCUSSION
A. 133 1/3 Percent Rule (Count II) The benefit accrual requirement at issue in Count II is set forth in ERISA section
4

Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 5 of 19
204(b)(1)(B). That paragraph reads, A defined benefit plan satisfies the requirements of this paragraph of a particular plan year if under the plan the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 1331/3 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.
In its ruling on the defendants’ previous motion to dismiss, the court dismissed Richards’ claim that the wear-away effect created by the “greater of” formula described above violated this rule. The court ruled that, if the Amended Plan is treated as having been in effect for all plan years as required by ERISA § 204(B)(1)(B)(i), employees such as Richards would never have accrued a benefit under the Traditional Plan, and would have started accruing benefits under the cash balance formula from the start of their employment. Richards v. FleetBoston Financial Corp., 427 F.Supp.2d 150, 170-71 (D.Conn. Mar. 31, 2006).
Richards’ amended Count II does not allege that the plan terms differed from those described in the court’s previous ruling. Rather, it alleges that, “[e]ven if the amendment that introduced the cash balance terms into the Plan language is deemed to have been in effect for every plan year . . . , the current plan language also includes the use of the Traditional Plan Terms and thus the Traditional Plan Terms must be treated as being in effect for every plan year too.” Richards argues that the Traditional Plan terms are “integral” to the Amended plan. However, it would be impossible to treat all terms in both the Traditional and Amended Plans as having been in effect for all plan years, because some of the terms conflict.
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To find that the Amended Plan terms violated the 133 1/3 percent rule with respect to employees who had participated in the Traditional Plan prior to the amendment and then transitioned to participation in the Amended Plan, the court would have to take into account the fact that the Amended Plan was not in effect prior to 1997. Conversely, none of the allegations in the Amended Complaint change the fact that, if the court assumes that the Amended Plan has always been in effect, no employees would be subject to the wear-away effect, because all employees would have started their employment when the cash balance plan was already in place.
The court recognizes that the plan feature that Richards challenges here is not an “across-the-board increase[] in benefit rates made at some future time on behalf of all current employees regardless of period of service,” which the Second Circuit identified as a type of amendment that did not violate the anti-backloading rule. It also recognizes that Richards has alleged she was seriously disadvantaged by the “greater of” formula, and that Congress may not have considered this particular type of formula in drafting ERISA. However, the court cannot ignore the clear instruction of ERISA § 205(b)(1)(B)(i) that “any amendment to the plan which is in effect for the current year shall be treated as in effect for all other plan years.” ERISA § 205(b)(1)(B)(i); see Langman, 328 F.3d at 71.4 Therefore, it grants the defendants’ motion to dismiss
4The cases that Richards cites as support of her backloading argument do not persuade the court otherwise. Neither of the district court cases that she cites addressed the question of how to treat a plan amendment. See Carollo v. Cement & Concrete Workers District Council Pension Plan, 964 F.Supp. 677, 683 (E.D.N.Y. 1997); Devito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F.Supp. 258, 269 (S.D.N.Y. 1997). Similarly, IRS Revenue Ruling 78252, which found that a plan that offset employees’ accrued benefits by social security benefits in the first twenty-five years of employment but not thereafter would violate the 133 1/3 percent rule, did not address the effect of a plan amendment. Richards also cites Esden v. Bank of Boston, 229 F.3d 154, 167 (2d Cir. 2000) for the general proposition that the defendants cannot
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Count II of the Amended Complaint. B. Breach of Fiduciary Duty (Count V) In Count V, Richards alleges that the defendants breached the fiduciary duty
required by ERISA § 404: ERISA § 404(a)(1)(B) imposes a duty on fiduciaries (which include plan administrators) to ‘discharge [their] duties with respect to a plan solely in the interest of the participants and . . . with the care, skill, prudence, and diligence under circumstances then prevailing that a prudent man acting in a like capacity and familiarity with such matters would use in the conduct of an enterprise of a like character and with like aims.’
Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 579 (2d Cir. 2006) (quoting 29 U.S.C. § 1104(a)(1)(B)). Richards alleges that the defendants intentionally, recklessly, or negligently made several materially false statements, and further alleges that they failed to provide advance notice of a significant benefit decrease and to provide an adequate SPD.
1. Reliance The defendants argue that the court should dismiss Richards’ claims for breach of fiduciary duty because she has failed to plead detrimental reliance. They cite the Third Circuit’s ruling in Burstein v. Ret. Account Plan for Employees of Allegheny Health Educ. & Research Fdn., which held that plaintiffs must plead detrimental reliance in any section 404 breach of fiduciary duty claim based on misrepresentation. 334 F.3d 365, 387 (3d Cir. 2003). In 1995, the Second Circuit found a failure to allege detrimental
ignore the “mechanics of the plan,” which include the “greater of” formula and frozen traditional plan benefits. However, Esden similarly did not address the effect of a plan amendment, and the court does not find that the language Richards has quoted therein addresses the question of whether the court can consider the wear-away effect that Richards has experienced in determining whether the plan complies with the 133 1/3 percent rule.
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reliance fatal to a breach of fiduciary duty claim, although the claim in question was not premised on misrepresentations or omissions in plan documents. Siskind v. Sperry Ret. Program, 47 F.3d 498 (2d Cir. 1995).
However, the Second Circuit’s more recent ruling in Burke v. Kodak Ret. Income Plan, which announced a likely prejudice standard for claims involving deficient SPDs, 336 F.3d 103 (2d Cir. 2003); see also Richards v. FleetBoston Financial Corp., 427 F.Supp.2d 150, 172 (D.Conn. 2006), controls all of the fiduciary duty claims asserted here.5 Although Burke involved the sections of ERISA dealing specifically with SPD requirements, its reasoning that a detrimental reliance rule “imposes an insurmountable hardship on many plaintiffs” and “hardly advances the Congressional purpose of protecting the beneficiaries of ERISA plans by insuring that employees are fully and accurately apprised of their rights under the plan” also applies generally to fiduciary duty claims. Although ERISA has more specific disclosure rules for SPDs than for other plan documents, section 404's general requirement that administrators discharge their duties “solely in the interest of the participants” shows a Congressional purpose to protect those participants, similar to the purpose behind the SPD rules. Although a 2001 summary judgment ruling from this District required detrimental reliance for a fiduciary duty claim, Danis v. Cultor Food Science, Inc., 154 F.Supp.2d 247 (D.Conn. 2001) (discussing claim not premised on SPD), Danis was decided prior to Burke. In the years following Burke, the Second Circuit has applied its likely prejudice standard to claims that a plan amendment violated sections 204(h) and 204(g)(1), Frommert v.
5The defendants do not argue that Richards has failed to plead likely prejudice in her breach of fiduciary duty claim.
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Conkright, 433 F.3d 254, 267 (2d Cir. 2006), and the Southern District of New York has applied the likely prejudice standard to a fiduciary duty claim, Weinreb v. Hospital for Joint Diseases Orthopaedic Institute, 285 F.Supp.2d 382, 388 (S.D.N.Y. 2003) (discussing claim premised on failure to provide SPD). The court is not persuaded that the Third Circuit cases requiring detrimental reliance accurately reflect Second Circuit law. Indeed, the Burke court specifically noted its disagreement with the Third Circuit over the issue of whether detrimental reliance or prejudice is required for recovery in cases involving deficient SPDs. The court will not dismiss Richards’ fiduciary duty claims for failure to plead detrimental reliance.
2. Alleged Misrepresentations “[W]hen a plan administrator affirmatively misrepresents the terms of a plan or fails to provide information when it knows that its failure to do so might cause harm, the plan administrator has breached its fiduciary duty to individual plan participants and beneficiaries.” Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76, 88 (2d Cir. 2001) (quoting In re Unisys Corp. Retiree Med. Benefit “ERISA” Litig., 57 F.3d 1255, 1264 (3d Cir.1995)); see also Varity Corp. v. Howe, 516 U.S. 489, 506 (1996) (“To participate knowingly and significantly in deceiving a plan’s beneficiaries in order to save the employer money at the beneficiaries’ expense is not to act ‘solely in the interest of the participants and beneficiaries.”). To support a claim for breach of fiduciary duty, the plaintiff must show that the misrepresentations at issue are material; that is, that “they would induce a reasonable person to rely upon them.” Ballone v. Eastman Kodak Co., 109 F3d 117, 122 (2d Cir. 1997). The defendants argue that the statements that Richards alleges to be false in
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paragraphs 41 to 43 of her Amended Complaint were actually true representations of the Amended Plan terms.
a. Paragraph 41. In paragraph 41 of the Amended Complaint, Richards alleges that Fleet “falsely promised plan participants ‘your cash balance benefit builds steadily throughout the time you work at Fleet. Each quarter Fleet makes pay credits and interest credits into an account with your name.’” The defendants state that Richards drew this quote from the 1996 Employee Reference Guide (“Guide”). This Guide is not mentioned in the Amended Complaint, but regardless of whether the court considers the statement in isolation or in the context of the Guide, it finds that Richards has adequately alleged that it is misleading.
The defendants argue that the statement is “completely accurate.” They argue that the cash balance benefits do “build steadily throughout the time that a participant works at FleetBoston, and that the “greater-of” formula “is a separate and distinct concept that the Plaintiff does not allege was misrepresented.” Defs.’ Mem. Supp. Mot. Dismiss Counts II & V [hereinafter “Defs.’ Mem. Supp. Mot. Dismiss”] (Doc. No. 129).
However, the statement in the Guide appears to misrepresent the Amended Plan terms governing those participants who, like Richards, are subject to the wear-away effect. The Guide’s description of the cash balance account as a “benefit” gives the impression that the employees’ accrued benefits grow steadily over the course of their employment. For employees subject to the wear-away effect like Richards, this is not the case. While the hypothetical cash balance accounts may grow steadily as described in the Guide, the Amended Complaint alleges, and the defendants do not dispute, that Richards and similarly-situated participants have actually accrued no new
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benefits in the nine years since the plan amendment. Neither the statement quoted in the Complaint nor surrounding language in the Guide alerts employees that the “cash balance benefit” is merely a hypothetical account, or that a wear-away effect exists. In light of these alleged facts, the court cannot say that “it appears beyond doubt that the plaintiff can prove no set of facts in support of [this] claim which would entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
b. Paragraph 42. Paragraph 42 alleges that Fleet “answered a hypothetical employee question: ‘Can my pension benefit decrease under the new Fleet Pension Plan?’, with the answer ‘No’, by disingenuously observing: ‘Whether you participate in the cash balance benefit or the traditional benefit, you will never receive less than the benefit you earned as of December 31, 1996,’ omitting to mention that the amendment caused many plan participants to lose substantial plan benefits to the wear-away effect and the benefit accruals that decline with age. Instead, Fleet explained that a key reason it was adopting the cash balance benefit was because, ‘The New Plan makes good sense for our employees.’” The language quoted in paragraph 42, like that in paragraph 41, is contained in the Guide.
The defendants argue that the statements quoted in paragraph 42 were truthful, because the plan amendment did not require a forfeiture of benefits previously accrued under the Traditional plan. Richards does not now argue that the amendment caused a forfeiture of benefits, but rather responds that Fleet’s statements could have deceived participants into believing that their retirement benefits would continue to accrue at a rate equal to or greater than that which would have existed under the Traditional Plan terms. The statement that a participant’s pension benefit would not decrease under the
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Amended Plan, and that a participant “will never receive less than the benefit [he or she] earned as of December 31, 1996," may correctly describe the Amended Plan terms, as described in the Amended Complaint, but only if one interprets the term “pension benefit” to refer to total accrued benefit, rather than to the rate of benefit accrual. The court cannot find, at this stage in the litigation, that Fleet’s statements would not have misled a reasonable participant into believing that his or her periodic benefit accruals would remain constant or increase under the Amended Plan, and Richards alleges that she and many other employees actually accrued zero new benefits following the plan amendment. Additionally, Richards has adequately pled that the assurance that the plan amendment “makes good sense” for the employees is materially misleading, because she has pled that the plan amendment “significantly reduced the rate of future benefit accruals for many plan participants, including Richards.” Am. Compl. ¶ 38 [Doc. No. 124]. Therefore, the court denies the motion to dismiss the breach of fiduciary duty claim insofar as it is premised on the allegations in paragraph 42 of the Amended Complaint.
c. Paragraph 43. Paragraph 43 of the Amended Complaint contains the allegations that administrators disclosed to Richards and similarly situated participants only the amount of their hypothetical cash balance account values, and not the amount of their frozen benefit derived from the Traditional Plan. See supra, Part II, ¶ 3. Richards has submitted a copy of a quarterly statement she received from the administrators, covering the period from July 1, through September 30, 1998, Plf.’s Mem. Opp. Defs.’ 2d Mot. Dismiss, Ex. E [Doc. No. 140-6] [hereinafter “1998 Statement”], and a benefits summary she received in July 2004, Id., Ex. F [Doc. No.
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140-7] [hereinafter “2004 Statement”]. Richards does not dispute the accuracy of the figures in either statement. She does, however, contend that certain language contained in each statement was inaccurate.
The 1998 statement informs Richards of the value of her cash balance account, but not her frozen benefit amount. The defendants argue that quarterly benefit statements “do not purport to state the amount of participants’ accrued benefits, but merely summarize the quarterly activity in participants’ 401(k) accounts (the “Savings Plus” accounts) and cash balance accounts,“ and that the administrators had no reason to include the frozen benefit value in the quarterly statements because it does not change over time. Defs.’ Mem. Supp. 2d Mot. Dismiss at 19-20 [Doc. No. 129-1]. While the omission of the frozen benefit amount might not be actionable in and of itself, Richards has adequately alleged that the statement that Richards’ cash balance account had a “Vested Balance” of $77,714.90 was a misrepresentation, because none of the funds in Richards’ hypothetical cash balance account had actually vested.
The administrators produced the 2004 statement in response to a request by Richards’ attorney. “ERISA fiduciaries must provide complete and accurate information in response to beneficiaries’ questions about plan terms and/or benefits.” Becker v. Eastman Kodak Co., 120 F.3d 5, 8 (2d Cir. 1997) (reviewing caselaw from other circuits). Her claim with respect to that statement appears to be premised on the fact that the phrase “Accrued Benefit” was used in the heading of the section of the statement that contained the value of the hypothetical cash balance account, which had not exceeded the value of Richards’ frozen benefit and had not actually accrued. The sentence containing this figure read, “Your current Cash Balance account value from
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the Plan is: Pension Benefit: $161,177.49.” 2004 Statement, Plf.’s Mem. Opp. Defs.’ 2d Mot. Dismiss, Ex. F [Doc. No. 140-7].
The defendants argue, and Richards does not dispute, that the same statement contained other figures reflecting the value of the frozen retirement benefit derived from the Traditional Plan terms. Nevertheless, Richards has adequately alleged that the use of the heading “Accrued Benefit Calculated as of July 2, 2004" misrepresents the nature of the cash balance account, which was not actually an accrued benefit.
Richards may have known, in light of other plan documents, that the cash balance account was hypothetical rather than a “vested” or “accrued” benefit. However, the court cannot say at this stage in the litigation that “it appears beyond doubt that the plaintiff can prove no set of facts” to support a finding that the misrepresentations in the 1998 and 2004 statements were material. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It therefore denies the motion to dismiss with respect to the breach of fiduciary duty claims premised on those misrepresentations.
In summary, the court denies the motion to dismiss with respect to the breach of fiduciary duty claims insofar as they are premised on (1) the statements in paragraph 41 of the Amended Complaint, (2) Fleet’s alleged statement that “The New Plan makes good sense for our employees,” Am. Compl. ¶ 42 [Doc. No. 124], (3) in Richards’ September 30,1998 Statement, the administrators’ representation that the “Vested Balance” of Richards’ cash balance account was $77,714.90; and (4) in the 2004 Statement, the administrators’ placement of Richards’ hypothetical cash balance account value under the heading “Accrued Benefit Calculated as of July 2, 2004.”
3. Failure to Comply with ERISA §§ 102 and 204(h) as violation of 14

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ERISA § 404 The defendants next urge the court to dismiss Richards’ claim that administrators breached their fiduciary duty in violation of ERISA § 404 “by failing to comply with ERISA §102 [setting forth specific requirements for SPDs] and ERISA §204 (h) [requiring advance notice of a significant benefit decrease],” Am. Compl. ¶ 53 [Doc. No. 124], arguing that Richards has not pled a violation of the latter two sections. The defendant, citing cases from other circuits, argues that section 404 may not be used to require the disclosure of information not required under the specific SPD and notice rules in sections 102 and 204(h). However, for the reasons below, the court need not reach the question of whether or not an employer may be found to have breached a fiduciary duty under section 404 where it disclosed all information required under the other sections of ERISA.
a. Inadequacies in SPD. With respect to section 102, the Second Circuit has recently stated,
As we have repeatedly observed, ERISA contemplates that the SPD is an employee's primary source of information regarding employment benefits, and employees are entitled to rely on the descriptions contained in the summary. Given their importance as a source of information for plan participants, SPDs are expected to “explain[ ] the full import” of the provisions affecting participants. Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572, 584 (2d Cir. 2006) (internal citations and quotation marks omitted). The Second Circuit recognizes “that an SPD need not ‘anticipate every possible idiosyncratic contingency that might affect a particular participant's or beneficiary's status.” Id. (internal citation and quotation marks omitted). An SPD “need not discuss every imaginable situation in
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which such events or actions might occur, but it must be specific enough to enable the ordinary employee to sense when there is a danger that benefits could be lost or diminished.” Stahl v. Tony's Bldg. Materials, Inc., 875 F.2d 1404, 1408 (9th Cir.1989), cited with approval in Wilkins, 445 F.3d at 584.
Richards has adequately alleged that the SPD failed to explain the full import of all provisions affecting participants. This is so particularly with respect to the wear-away effect, which is alleged to affect many participants and is not an “idiosycratic contingency.” Although the SPD does disclose that a participant who is similarly situated to Richards receives the greater of the cash balance benefit or the frozen Traditional Plan benefit upon retirement, its description of the manner in which the opening balance of a cash balance account is calculated is allegedly misleading. See SPD, Defs.’ Mem. Supp Mot. Dismiss, Ex. B at 22 [Doc. No. 32] (“Your December 31, 1996 pension benefit was converted to a cash value, which is your Opening Account Balance on January 1, 1997.”). The SPD does not alert such participants that, as Richards alleges, the administrators included less than the full value of the retirement benefit available to a participant under the Traditional Plan when calculating the opening balance of the cash balance account. See Am. Compl. ¶ 34 [Doc. No. 124]. Even if an employee, who is aware of the “greater of” formula, could reasonably be expected to infer that her opening cash balance account value could potentially be lower than her frozen benefit derived from the Traditional Plan, the SPD does not properly explain the manner in which Traditional Plan benefits are converted to cash balance accounts, let alone the “full import” of that term. Wilkins, 445 F.3d at 584. The court denies the defendants’ second motion to dismiss with respect to the claim for a
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breach of fiduciary duty premised on the SPD’s failure to explain the wear-away effect. With respect to Richards’ allegation that the SPD violates section 102 because it
fails to explain that the rate of benefit accrual, measured as an annual benefit commencing at age 65, declines with age under the cash balance terms, the court disagrees. The SPD explains the manner in which administrators calculate quarterly credits to the cash balance accounts. Although it describes these pay credits in terms of percentages of the value of quarterly compensation when paid, rather than percentages of compensation values expressed as age-65 annuities, this fact is reasonably clear from the language and example on pages 23-26 of the SPD. The court does not find this description to be incomplete or misleading in light of Richards’ factual allegations that describe the Amended Plan. Richards points to no authority suggesting that either section 102 or section 404 would require disclosure of whether or not a participant’s rate of benefit accrual declines with age. See Register v. PNC Financial Services Group, Inc., No. 04-CV-6097, 2005 WL 3120268, at *9 (E.D.Pa. Nov. 21, 2005) (“ERISA § 102 does not require that the SPD describe how the benefit accrual rates change as participants age.”). Indeed, as discussed in this court’s ruling on the first motion to dismiss, ERISA § 204(b)(1)(H)(i) specifically prohibits plans in which participants’ rate of benefit accrual is reduced “because of the attainment of any age.” 29 U.S.C. 1054(b)(1)(H)(i). The court therefore grants the defendants’ second motion to dismiss with respect to the SPD’s failure to explain that the rate of benefit accrual decreases with advancing age.
b. Failure to Supply Advance Notice of a Significant Benefit Decrease. At the time of the Plan Amendment, ERISA § 204(h) provided that a
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pension plan could “not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless, after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice, setting forth the plan amendment and its effective date . . . .” The court does not reach the defendants’ argument that this rule did not require them to disclose the manner in which the 1997 amendment would affect participants’ rates of future benefit accrual. Although the defendants’ argument on this issue refers to the SPD and a “§ 204(h) notice,” Defs.’ Mem. Supp. 2d Mot. Summ. J. at 20 [Doc. No. 129-1], there is no allegation in the Amended Complaint that the Plan administrators provided either of these documents 15 days or more before the effective date. Although the defendants may later provide evidence that they did so, the allegations in paragraphs 39, 40 and 49 of the Amended Complaint are sufficient to support an inference that they did not. Indeed, even if the court were to assume they did provide some documents in a timely fashion, it lacks information on this motion to dismiss record as to which specific documents they provided at least 15 days prior to the effective date of the plan amendment. Therefore, it denies the motion to dismiss with respect to a breach of fiduciary duty claim premised on a violation of section 204(h). V. CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part the defendants’ second Motion to Dismiss [Doc. No. 128]. The court grants the Motion to Dismiss with respect to Count II and that part of Count V premised on the SPD’s lack of
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Case 3:04-cv-01638-JCH Document 148 Filed 07/24/06 Page 19 of 19 “an explicit explanation of how benefit accruals under the plan are reduced by advancing age,” Id. at ¶ 51. It denies the motion with respect to the remaining parts of Count V, as discussed in greater detail in Part IV.B., supra. SO ORDERED.
Dated at Bridgeport, Connecticut this 21st day of July, 2006. /s/ Janet C. Hall Janet C. Hall United States District Judge
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, :

and on behalf of others similarly

:

situated,

:

Plaintiff

:

:

v.

:

:

FLEETBOSTON FINANCIAL CORP. :

et. al.,

:

Defendants.

:

CIVIL ACTION NO. 3:04-cv-1638 (JCH)
OCTOBER 16, 2006

RULING ON PLAINTIFF’S MOTION FOR AMENDED CLASS CERTIFICATION [DOC. NO. 155]

I. INTRODUCTION Plaintiff Donna C. Richards is an employee of defendant FleetBoston Financial
Corp. (“FleetBoston”), a participant in the defendant FleetBoston Pension Plan (“Amended Plan”), and a former participant in Fleet’s former pension plan, a traditional defined benefits plan (“Traditional Plan”).1 This Ruling presumes familiarity with the court’s previous Rulings on class certification [Doc. No. 111] and on the defendants’ motions to dismiss [Doc. Nos. 112 & 148]. The earlier Rulings described the terms of the Amended Plan that are at issue in this case and the ways in which they are alleged to have violated ERISA. In the Ruling on defendants’ second motion to dismiss [Doc. No. 148], the court dismissed Count II of plaintiff’s Amended Complaint [Doc. No. 124] and that part of Count V premised on the Summary Plan Description’s (“SPD”) lack of

1Unless otherwise indicated, the defendants will be collectively referred to as “Fleet.” Bank of America is also a defendant in this action.
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“an explicit explanation of how benefit accruals under the plan are reduced by advancing age.”2 Amended Complaint (“Am. Compl”.) at ¶ 51. It denied the second motion to dismiss with respect to the remaining parts of Count V.
Richards seeks to amend the class certification granted by this court on March 31, 2006 [Doc. No. 111], which certified the proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. With respect to Count V of her Amended Complaint alleging breach of fiduciary duty, Richards now wishes to also certify a class for this claim under Rule 23(b)(2). Additionally, she seeks to certify this lawsuit as a class action pursuant to Rule 23(b)(1)(A) and (B) as to all of those claims not previously dismissed by this court (Counts I (age discrimination), III (§ 204(h) notice), IV (SPD), and V (fiduciary duty)). Fleet not only objects to the plaintiff’s proposed expansion of certification, but also asks the court to amend its prior ruling so as to decertify the SPD class (Count IV) under Rule 23(b)(2).
As discussed in the court’s previous Rulings, the Amended Plan uses hypothetical cash balance accounts to calculate retirement benefits for its participants. Each quarter, a certain amount is added to an employee’s hypothetical cash balance account, calculated as the sum of a certain percentage of the portion of that employee’s compensation that falls below the social security wage base, a higher percentage of the employee’s compensation above the social security wage base, and an interest credit. For participants who had participated in the Traditional Plan before its amendment and who were not at least age 50 with 15 years of vesting service as of December 31, 1996,
2Therefore, the court does not consider the arguments for and against class certification with respect to these counts.
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the Amended Plan calculates retirement benefits using a “greater of” formula. A retiring participant receives the greater of the “frozen” benefit derived from the Traditional Plan terms and the hypothetical cash balance account balance The frozen benefit is often larger than the opening hypothetical cash balance account, because the opening balance for the cash balance account is calculated as the frozen Traditional Plan benefit minus early retirement subsidies. The idea that an employee covered by these terms does not actually accrue any new benefits under the Amended Plan until the value of the hypothetical cash balance account exceeds that of the frozen Traditional Plan benefit is known as the “wear-away” effect. It is allegedly exacerbated by an actuarial assumption and interest rate used in calculating the opening balance of the cash balance account. II. STANDARD OF REVIEW
An order certifying a class “may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). A district court also has the discretion to decertify a class by amending the order granting the certification, “if the court finds that certification should not have been granted or is no longer appropriate.” 5 Moore’s Federal Practice § 23.87(Matthew Bender 3d ed.). Richards bears the burden of showing that the class she has proposed meets the requirements for class certification. See Caridad v. MetroNorth Commuter Railroad, 191 F.3d 283, 291 (2d Cir. 1999); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 484 (2d Cir. 1995). In ruling on a motion for class certification at the present stage of the litigation, the court accepts the factual allegations of the Complaint as true. Shelter Realty Corp. v. Allied Maintenance Corp.,
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574 F.2d 656, 661 n.15 (2d Cir. 1978) (internal citations omitted). It may also consider affidavits that a plaintiff has submitted in support of her motion for class certification, see id., and affidavits a defendant has submitted in opposition to the motion for class certification, see, e.g., Panzirer v. Wolf, 663 F.2d 365, 368-69 (2d Cir. 1981), vacated as moot, Price Waterhouse v. Panzirer, 459 U.S. 1027 (1982).
Before certifying a class, the court must conduct a “rigorous analysis” and be “persuaded that the prerequisties of Rule 23(a) have been met.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
Nevertheless, a motion for class certification is not an occasion for examination of the merits of the case. See Sirota v. Solitron Devices, Inc., 673 F.2d 566, 570-72 (2d Cir.1982). As the Supreme Court has stated, “[N]othing in either the language or history of Rule 23. . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 . . . (1974). Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). The Second Circuit has held that “Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility.” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (internal citation omitted). III. DISCUSSION As discussed in detail in this court’s previous ruling on class certification [Doc. No. 111], in order to certify a class a litigant must satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure and demonstrate that the proposed class action fits into one of the three categories under Rule 23(b). Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968). In analyzing a class certification motion, “a judge must
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look somewhere between the pleading and the fruits of discovery.” Sirota v. Solitronn Devices, Inc., 673 F.2d 566, 571-72 (2d Cir. 1982). The court should accept the allegations in the complaint as true and should not conduct a preliminary inquiry into the merits of the case. Caridad v. Metro North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999). Nonetheless, the plaintiff still bears the burden of establishing each requirement for class certification. Id. The plaintiff cannot rely solely on the allegations of the complaint, but must provide sufficient information on which the court can make a determination. Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000) (“‘[c]ertification . . . is dependant on [the plaintiff’s] proof that each of the requirements of Rule 23(a) . . . has been met.’”)(quoting Lloyd v. Indus. Bia-Test Lab, Inc.,454 F. Supp. 807, 811-12 (S.D.N.Y. 1978)). Before certifying a class, the district court must conduct a “rigorous analysis” and be “persuaded that the prerequisites of Rule 23(a) have been met.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
A. Certification of Count V and Decertification of Count IV under Rule 23(b)(2) 1. Rule 23(a)
The court assumes familiarity with the court’s previous ruling which discussed in detail the four prerequisites to class certification under 23(a) of the Federal Rules of Civil Procedure. See Ruling on Def.’s Mot. to Cert. Class [Doc. 111] at 4-14. The four requirements under Rule 23(a) are commonly referred to as “numerosity,” “commonality,” “typicality,” and “adequacy.” See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d. Cir. 2000).
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With respect to Richards’ request to certify a class as to Count V of the Amended Complaint and Fleet’s request to decertify the class under Count IV, the defendants do not contest that Richards has met her burden of proving numerosity. However, they argue that she has failed to meet her burden of showing commonality, typicality, and adequacy.
The commonality requirement is met if a plaintiff’s grievances “share a common question of law or fact.” Marisol A., 126 F.3d at 376. Richards’ Count IV alleges that the terms of the plan violated ERISA and her Count V claims that Fleet breached its fiduciary duty in its drafting of universally-distributed plan descriptions, benefit statements, and an employee reference guide. Since all class members participated in the Amended Plan at issue, the court finds that Richards has shown common questions of law. As the court discussed in its previous rulings, both Counts IV and V require a showing of “likely prejudice.” See Ruling on Def.’s Second Motion to Dismiss [Doc. No. 148]; Ruling on Def.’s Mot. to Cert. Class [Doc. 111] at 11-12. Thus, the court remains unpersuaded by the defendants’ argument that these Counts require individualized assessments into each potential class member’s proof and defenses, as the “likely prejudice” showing may be satisfied by the terms of the plan itself. See id. Richards has not alleged disclosure failures specific to her, but rather failures that would affect all putative class members. For the reasons discussed in the court’s earlier Ruling, the defects in disclosure themselves are significant enough to establish a presumption of likely prejudice, common to all members of the class, and this presumption has not been rebutted. See Frommert v. Conkright, 433 F.3d 254, 267 (2d Cir. 2006) (quoting Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 112 (2d Cir. 2003)).
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Fleet cites Weinreb v. Hospital for Joint Diseases Orthopaedic Institute, 404 F.3d 167, 171-72 (2d Cir. 2005), for the proposition that it can rebut the inference of likely prejudice with evidence that the alleged misrepresentations were harmless. However, in Weinreb the Second Circuit focused on the fact that the Hospital had told Dr. Weinreb on at least three different occasions to complete the required Insurance Enrollment Form, and thus “‘no reasonable person in Dr. Weinreb’s position could disclaim knowledge’” of this requirement. Id. at 172 (quoting Weinreb, 285 F. Supp. 2d 382, 387 (S.D.N.Y. 2003). Unlike in Weinreb, there is no evidence that any of the putative class members had “actual knowledge” of the full impact of the cash balance plan prior to the effective date of change. See Am. Compl. at ¶¶ 39-43
Fleet further argues that Richards’ assertions that she was not sufficiently informed about the wear-away effect in the SPD and that she was further misled about it in an employee reference guide or participant benefit statement are “not the sort of easily addressed administrative matters that are the source of the disputes in the typical case involving the likely prejudice standard.” Def.’s Mem. in Opp. at 6. However, Fleet cites no case law that would support the proposition that the “likely prejudice” standard requires that the plaintiff suffer an injury attributable to some administrative failure. While the defendants may be correct in stating that the court cannot “presume” that all of FleetBoston’s employees would have terminated their employment “en masse,” such an argument is irrelevant at the class certification stage, where a court is not permitted to conduct an inquiry into the merits of the case. Caridad v. Metro North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999). At this stage, the court finds that the defects in disclosure are significant enough to establish a presumption of likely prejudice,
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common to all members of the class. The defendants’ emphasis on the need for an employee-by-employee analysis is
apparently explained by their assumption that some members of the proposed class are better off under the Amended Plan than they would be under the Traditional Plan and that it would be improper to bind them to a non-opt-out class. In support of this argument, the defendants have submitted a declaration by Christopher Bone, see Def.’s Mem. in Opp. at Ex. A, an actuary who has reviewed documents concerning some subset of plan participants. Bone looked at the pension plans and the employment records of “thousands, but not all, of the 25,000+ individuals who are members of the class that Plaintiff seeks to certify,” and concluded that over one thousand nine hundred employees have received greater benefits under the Amended Plan than they would have received in the absence of the 1997 plan amendment. He has provided profiles of thirteen such individuals. See Def.’s Mem. in Opp. at Ex. A, ¶ 4.
Fleet argues that because expert discovery is complete and both sides have completed their experts’ reports, Bone’s Declaration may be considered by the court in determining whether the class should be certified. The defendants rely on Heerwagen v. Clear Channel Communications, 435 F.3d 219, 232-33 (2d Cir. 2006), which allowed the consideration of expert testimony if it is directed toward determining whether the elements of Rule 23 have been met. However, Heerwagen also emphasized that a court cannot weigh evidence in determining Rule 23 certifications “to the extent those determinations are effectively identical to the merits issues.” Id. at 232. The Second Circuit stated that in that case the finding, based on expert testimony, that individual
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issues would likely predominate “did not depend on the validity of plaintiff’s claim or of the potential claims of other members of the putative class.” Id. Affirming the denial of class certification, the court stated that in the monopolization claim at issue the plaintiff was required to delineate specific (local) geographic markets, instead of a national market, and thus would have to “rely on market-specific evidence of Clear Channel’s power in particular markets that will vary from one putative class member to another.” Heerwagen, 435 F.3d at 229. Unlike Heerwagen, this case involves one particular retirement plan that was not affected by geographic or other employee-specific inquiries, and thus relying on the expert evidence in this case would lead too far toward an inquiry into determining the merits of Richards’ claim, which a court cannot do at the class certification stage. See id. at 231.
The court does note that Richards has not pled that every class member actually suffered financially from the effects of the alleged ERISA violations. However, Bone does not explain in any detail the calculations or assumptions he used to arrive at the conclusion that a number of participants benefitted financially under the Amended Plan, and the court cannot determine at this stage in the litigation whether or not all class members in fact experienced the wear-away effect for some period of time. The court reasonably can infer from the complaint and plan documents that the wear-away effect does apply to all putative class members, because the “greater of” benefit formula that Richards alleges to cause the wear-away effect applies to all putative class members. See Am. Compl. ¶¶ 33-37. Therefore, for purposes of the class certification motion, it finds that Counts IV and V allege a violation of the rights of all putative class members.
Moreover, in spite of Bone’s findings, and even if some class members would 9

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prefer to receive the greater benefits afforded them by the Amended Plan, with its alleged violations of ERISA, than to receive benefits that they would have received had Fleet kept the Traditional Plan in place, the court need not exclude those individuals from a class that is created to vindicate their ERISA-created rights. See Ruling on Def.’s Mot. to Cert. Class at 8-9 (discussing the adequacy requirement under Rule 23(a)) [Doc. No. 111]. Even if the court could assume at this stage in the litigation that some class members do prefer the benefits received under the Amended Plan, a question it does not decide, this conclusion would go only toward the question of which remedy class members would seek, which does not affect the viability of the class at this stage in the litigation. See Amara v. CIGNA Corp. No. 3:01CV2361 (DJS), 2002 U.S. Dist. LEXIS 25947, at*6-*7 (D.Conn. Dec. 20, 2002) (recognizing that “providing the relief requested in the complaint on a class-wide basis may actually harm some members of the class . . . this problem can be addressed when the court determines what remedy should be provided if plaintiff prevails on the merits of her claims”).
Fleet also argues that misrepresentations on Richards’ July 2, 2004 benefit statement cannot form the basis of a class-wide breach of fiduciary duty claim. However, even though this statement was prepared for Richards in response to a request by her attorney, the language in her Amended Complaint indicates that she is using her statement as an example of what other similarly situated plan participants received (“upon information and belief, when plan participants have asked administrators for statements of the retirement benefits they have earned, the administrators give them materially misleading documents that list the balance in participants’ hypothetical accounts as their ‘accrued benefits’ while concealing their
10

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frozen benefits even when these benefits are greater than the cash balance benefits”). See Am. Compl. at § 143.
As to the typicality requirement, it is satisfied “when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 63 (quoting Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997)). “Differences in the degree of harm suffered, or even in the ability to prove damages, do not vitiate the typicality of a representative’s claims.” Ouellette v. Int’l Paper Co., 86 F.R.D. 476, 480 (D.Vt. 1980) (citing Sanders v. Faraday Laboratories, Inc., 82 F.R.D. 99, 101 (E.D.N.Y. 1979)) (holding that “[p]roof of defendant’s liability . . . will benefit all members of the proposed classes, Eisen [v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968)]; that the damages, if any, may reach a de minimis level at some point among the class members does not make the named plaintiffs’ claims atypical”). The court finds that each class member’s claim arises from the same course of events and that each makes similar legal arguments to prove the defendants’ liability.
Finally, the adequacy inquiry under Rule 23(a)(4) “requires courts to ask whether plaintiff’s interests are antagonistic to the interest of other members of the class.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 142 (2d Cir. 2001) (internal citation and quotation marks omitted). The defendants argue that the plaintiff-specific nature of the SPD and fiduciary misrepresentation claims render Richards an inadequate class representative. They argue that the relief Richards is seeking is “either duplicative of relief for other claims or entirely pointless.” See Def.’s Mem. in Opp. at 11. They presented a declaration by their expert, Christopher M. Bone, that disputes
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Richards’ assumption that she has continued to experience wear-away continuously since 1997, as they maintain she only experienced it in short periods in 1999. Id. & n.7. Thus, they argue that Richards has not shown any need for requiring Fleet to provide different disclosures or to send a § 204(h) notice, especially considering that the Amended Plan has been in effect for nine years and the relief requested would “benefit no class member in any meaningful fashion.” Id. However, the court finds that these objections do not render Richards an inadequate class representative, for her claims are premised on the terms of the plan and failures of disclosure and misrepresentation, and she states claims for benefits to which the potential class members were entitled. As “[t]he adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (internal citation omitted), the fact that Richards or other class members may not meaningfully benefit from any remedy does mean that representation is necessarily inadequate.
Although Fleet is correct in pointing out that a judgment on the merits of the SPD or fiduciary duty claims is res judicata on all claims that could have been brought individually, the court does not agree that the decision to certify the class would foreclose any individual’s damages. Indeed, as the court emphasized in its prior ruling, the question of remedies is not appropriate for resolution at this stage in the litigation. Moreover, disagreement as to the type of damages sought does not mean that representation is inadequate. See, e.g., Walsh v. Northrop Grumman Corp., 162 F.R.D. 440, 447 (E.D.N.Y. 1995) (quoting Robertson v. National Basketball Ass’n, 389 F.Supp. 867 (S.D.N.Y. 1975) (holding that, even though different plaintiffs sought
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different types of damages, “all players, past and present, seek damages for the same acts”)); Ouellette v. Int’l Paper Co., 86 F.R.D. 476, 480 (D.Vt. 1980) (holding that the contention that “issues going to proof of damages” would create antagonism among class members was “easily disposed of by noting that there is no necessity that all issues be tried in one proceeding. The class aspects may be tried before the individual damage claims, if that should prove necessary.”). Furthermore, as part of its continuing duty to assure adequacy of representation in a class action suit, see Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986), the court may always decide to modify or decertify the class in the future, thus assuring that no subset of the class would be deprived of due process as this case goes forward, even though Richards asks the court to certify a class that would not permit members to opt out.
The court finds, for the foregoing reasons and on the basis of her asserted knowledge of the issues at stake in the litigation, that Richards has satisfied the requirements of Rule 23(a).
2. Rule 23(b)(2) As discussed in the court’s previous ruling, see Ruling on Def.’s Mot. to Cert. Class [Doc. 111] at 14-21, Rule 23(b)(2) provides for class litigation where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). While Richards seeks injunctive and declaratory relief, the defendants argue that such relief is duplicative or too late to be meaningful, and unjustifiably forecloses the
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potential ability of individuals to seek individual recoveries. See Def.’s Mem. in Opp. at 12. However, these are not persuasive arguments against certification under Rule 23(b)(2), especially as that subsection only requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). Thus, based on the defendant’s conduct described in the complaint, the court may infer that most of the putative class members would benefit from at least some injunctive relief if the plaintiff prevails.
For all of the reasons set forth in its prior Ruling on class certification, the court finds that certification of the proposed (b)(2) class as to Counts IV and V to be appropriate.
B. Certification of all Counts under Rule 23(b)(1) Richards also seeks to extend certification to a class under Rule 23(b)(1). Rule 23(b)(1)(A) covers cases in which multiple suits would create a risk of inconsistent adjudications or would possibly establish incompatible standards of conduct for the party opposing the class, and Rule 23(b)(1)(B) covers cases in which individual actions would, as a practical matter, conclude the interests of other members of the class or preclude their ability to protect their own interests. See Fed.R.Civ.P. 23 Advisory Committee’s Note to 1966 amendment, subdivision (b)(1). The proposed class is well-suited to be certified under Rule 23(b)(1)(A). Rule 23(b)(1)(A)'s language, addressing “inconsistent adjudications,” is broad. It could
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arguably encompass all class actions, but it has not been applied in that manner. See 2 Newberg on Class Actions, § 4.4, at 14 (4th ed. 2002). “The fact that some plaintiffs may be successful in their suits against a defendant while others may not is clearly not a ground for invoking Rule 23(b)(1)(A).” In Re Bendectin Prod. Liab. Litig., 749 F.2d 300, 305 (6th Cir. 1984).
Instead, courts generally apply Rule 23(b)(1)(A) restrictively, to classes where there is a statutory obligation to treat all class members alike, such as cases involving a statutory assessment or the duties of a riparian landowner to downriver property owners, where both injunctive and monetary damages are sought. 2 Newberg § 4.8, at 26; Ortiz v. Fibreboard Corp., 527 U.S. 815, 846-47 (1999). This court has also given as an example “a (b)(1)(A) ERISA suit involving the application of an ERISA-covered plan to a number of employees.” Petrolito v. Arrow Financial Servs., LLC, 221 F.R.D. 303, 313 (D. Conn. 2004); see also Piazza v. EBSCO Indus., Inc., 273 F.3d 1341 (11th Cir. 2001).
The proposed class members number in the thousands. Because all have allegedly suffered the same statutory violations, this class is well-suited to certification under Rule 23(b)(1)(A). Although their individual damages may differ, this fact would not prevent formation of a (b)(1) class where the underlying legal claims are the same.
In opposition, Fleet argues that there is no reason to believe that multiple claims will be brought for these violations in the absence of class certification. They argue that, in the past nine years, no claims have been brought by any of the putative class members for these alleged violations. See Def.’s Mem. in Opp. at 13. They also claim
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that the Pension Protection Act of 2006, which protects cash balance plans from possible liability for age discrimination, makes it highly unlikely that any lawsuits will be brought in the future. See id. However, the Act does not appear to apply retroactively. See 120 Stat. 780, at § 701; see also Landgraf v. Usi Film Prods., 511 U.S. 244, 280 (1994) (holding that “absent clear congressional intent," a statute enacted after the events at issue in a lawsuit would not apply to that lawsuit if "the new statute would have retroactive effect, i.e., [if] it would impair rights a party possesses when [it] acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed”). Moreover, courts, including “[t]he Second Circuit itself . . . [have] noted that the absence of other lawsuits is meaningless in determining the interest of absent class members in the controversy.” 2 Newberg § 4.6, at 21. Although it is true that some courts have indeed refused to certify a class under subsection (A) where no separate actions have been brought against the party opposing the class, see, e.g., Free World Foreign Cars, Inc. v. Alfa Romeo, S.p.A., 55 F.R.D. 26, 30 (S.D.N.Y. 1972) (antitrust), “speculation that other suits will not be filed is not generally supportable as a reason for denying a Rule 23(b)(1)(A) class.” 2 Newberg § 4.8, at 26.
Moreover, even if claims have not been brought in the past, Richards has adequately alleged that many similarly-situated individuals have suffered from the same statutory violations as she has, and it is quite likely that Richards’ suit could encourage other plan participants to commence litigation. Because Richards’ claims are premised on statutory violations caused by the plan terms themselves, and because she seeks
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injunctive relief, inconsistent rulings on these claims by different courts could create an untenable situation. Considering that “Rule 23 be given a liberal construction with error, if any, on the side of certification.” Robertson v. National Basketball Ass’n., 389 F. Supp. 867, 902 (S.D.N.Y. 1974), and as the class satisfies the Rule 23(a) requirements as well as the Rule 23(b)(1)(A) requirements, the court grants the motion to certify the class under Rule 23(b)(1)(A).
As for class certification under Rule 23(b)(1)(B), that subsection applies in any situation “where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter.” Fed. R. Civ. P. 23 Advisory Committee’s Note to (b)(1)(B). “Classic examples” of cases suitable for certification under Rule 23(b)(1)(B) include:
suits brought to reorganize fraternal-benefit societies, actions by shareholders to declare a dividend or otherwise to fix their rights, and actions charging a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of beneficiaries, requiring an accounting or similar procedure to restore the subject of the trust. In each of these categories, the shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members. Ortiz, 527 U.S. at 834 (internal citations, quotation marks, and brackets omitted). Rule 23(b)(1)(B) is typically applied in limited fund cases, see Dobson v. Hartford Life & Accident Ins. Co., 2006 U.S. Dist. LEXIS 14922, at *23 (D. Conn. 2006); there is no such allegation of limited defendant resources here. While limited fund cases are not the only cases that can be certified under this subsection, the court finds that plaintiff’s claims are not of the sort typically certified under Rule 23(b)(1)(B). Its
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decision in this regard is informed in party by its certification of a class under Rule 23(b)(1)(A) and Rule 23(b)(2).3
IV. CONCLUSION For the foregoing reasons, the court GRANTS in part and DENIES in part the
plaintiff’s Amended Motion for Class Certification and certifies the proposed class pursuant to Rule 23(b)(2) and Rule 23(b)(1)(A) of the Federal Rules of Civil Procedure. It also DENIES defendants’ request to decertify the SPD class (Count IV) under Rule 23(b)(2). SO ORDERED.
Dated at Bridgeport, Connecticut this 16th day of October, 2006.
/s/ Janet C. Hall Janet C. Hall United States District Judge
3“There is no real litigation significance whether the court certifies the class under Rule 23(b)(1)(A) or (b)(1)(B) or both. Certification under either of these two provisions will not trigger any special class provisions in other parts of Rule 23 relating to notice or right of exclusion, and each subsection will permit class suits seeking injunctive relief or damages or both. Court certification of a class under either Rule 23(b)(1)(A) or (b)(1)(B) makes no difference.” 2 Newberg § 4.8, at 30.
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 Case 3:04-cv-01638-JCH Document 68-1 Filed 09/19/2005 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS,

)

)

Plaintiff,

)

)

v.

)

)

FLEETBOSTON FINANCIAL

)

CORP. and the FLEETBOSTON

)

FINANCIAL PENSION PLAN,

)

)

Defendants.

)

CASE NO.: 3:04-CV-1638 (JCH) SEPTEMBER 19, 2005

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

George J. Kelly, Jr. ct06888 SIEGEL, O'CONNOR, O'DONNELL & BECK 150 Trumbull St. Hartford, CT 06103 Email: gkelly@siegeloconnor.com

William F. Conlon, ct26510 Anne E. Rea, ct26513 Erin Kelly, phv0041 Scott E. Gross, ct26514 Julie A. Koca, ct26511 Brian P. Guarraci, ct26512 SIDLEY AUSTIN BROWN & WOOD LLP
Bank One Plaza 10 S. Dearborn Street Chicago, IL 60603 (312) 853-7000 Email: sgross@sidley.com

Counsel for Defendants FleetBoston Financial Corporation and FleetBoston Financial Pension Plan

ORAL ARGUMENT REQUESTED

Case 3:04-cv-01638-JCH Document 68-1 Filed 09/19/2005 Page 2 of 44
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................3
ARGUMENT ...................................................................................................................................6
I. PLAINTIFF HAS NOT MET HER BURDEN OF PROVING THAT THE REQUIREMENTS OF RULE 23(a) ARE SATISFIED......................................................7
A. Plaintiff Has Not Met Her Burden Of Establishing The Adequacy Requirement Of Rule 23(a)(4) ...............................................................................7
1. Many Putative Class Members Are Receiving Greater Benefits Under The Cash Balance Formula ……………………………………………. 9
2. Plaintiff Is An Inadequate Representative As To Count VI For Additional Reasons ………………………………………………...….15
B. Plaintiff Has Not Met Her Burden Of Establishing The Commonality Requirement Of Rule 23(a)(2) .............................................................................16
1. Plaintiff’s “Wear-Away” Claims In Counts II And III............................17
2. Plaintiff’s ERISA § 204(h) And Summary Plan Description Claims In Counts IV And V. ....................................................................................19
3. Plaintiff’s Breach Of Fiduciary Claim In Count VI.................................22
C. Plaintiff Has Not Met The Typicality Requirement Of Rule 23(a)(3).................25
1. Plaintiff’s Claims Are Not Typical Of The Class Because There Are Unique Defenses Applicable To Her That Will Be A Focus Of The Litigation .....................................................................................25
2. Plaintiff’s Claims Are Not Typical Because Her Interests And Alleged Injuries Are Not Aligned With Members Of The Putative Class..........................................................................................27
3. Plaintiff’s Claims Are Not Typical Because Establishing Her Claims Does Not Necessarily Establish The Claims Of Other Members Of The Putative Class .............................................................27
II. PLAINTIFF HAS NOT MET HER BURDEN OF PROVING THAT THE PROPOSED CLASS CAN BE CERTIFIED UNDER RULE 23(b)................................28
A. Class Certification Is Not Appropriate Under Rule 23(b)(1)...............................28 i

Case 3:04-cv-01638-JCH Document 68-1 Filed 09/19/2005 Page 3 of 44 B. Class Certification Is Not Appropriate Under Rule 23(b)(2)...............................32
III. THE CLASS CANNOT INCLUDE FORMER PARTICIPANTS WHO RECEIVED LUMP-SUM PAYMENTS BECAUSE THEY HAVE NO RIGHT TO DECLARATORY OR INJUNCTIVE RELIEF ..............................................................34
CONCLUSION..............................................................................................................................36
ii

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TABLE OF AUTHORITIES

CASES

Page

Amchem Prods. v. Windsor, 521 U.S. 591 (1997) .........................................................................8

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2d Cir. 2000) ..........................25

Ballone v. Eastman Kodak Co., 109 F.3d 117, 122 (2d Cir. 1997) ..............................................23

Barnes v. American Tobacco Co., Inc., 161 F.3d 127 (3d Cir. 1998) ....................................25, 27 Boulware v. Crossland Mortgage Corp., 291 F.3d 261 (4th Cir. 2002) ..........................................7

Bowe Bell & Howe Co. v. Immco Employees Ass’n, No. 03 C 8010, 2005 WL 1139645 (N.D. Ill. May 11, 2005) ..........................................30, 31, 32

Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004) ..........................................19, 22

Clay v. American Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999) ...........................................13, 27

Coffin v. Bowater Inc., 228 F.R.D. 397 (D. Me. 2005) ................................................................23

Cohen v. Bloch, 507 F. Supp. 321 (D.C.N.Y. 1980) ....................................................................15

Colin v. Marconi Commerce Systems Employees’ Retirement Plan, 335 F. Supp. 2d 590 (M.D.N.C. 2004) ............................................................................. 19-20, 21

Dameron v. Sinai Hospital of Baltimore, Inc., 595 F. Supp. 1404 (D. Md. 1984) .........................8

Danis v. Cultor Food Science, Inc., 154 F. Supp. 2d 247 (D. Conn. 2001) ............................ 22-23

Eaton v. Onan Corp., 117 F. Supp. 2d 812 (S.D. Ind. 2000) ...................................................... 4-5

Engers v. AT&T Corp., No. 98-3660, 2001 U.S. Dist. LEXIS 25889 (D.N.J. June 6, 2001) ................................. 20, 26-27

Esden v. Bank of Boston, 229 F.3d 154 (2d Cir. 2000)...................................................................4

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1988)........................................................35

Fischer v. Tynan, No. 90 Civ. 7587 LBS, 1993 WL 213025 (S.D.N.Y. June 16, 1993) ............................................7

Flanagan v. Allstate Insurance Co., 223 F.R.D. 489, 495 (N.D. Ill. 2004), vacated on other grounds, In re Allstate Ins. Co., 400 F.3d 505 (7th Cir. 2005) ....................23, 24

Fotta v. Trustees of the United Mine Workers of Am., 319 F.3d 612 (3rd Cir. 2003), cert. denied, 540 U.S. 982 (2003) .................................................19

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Forbush v. J.C. Penney Pension Plan, 994 F.2d 1101 (5th Cir. 1993) ...........................................25 Frommert v. Conkright, 328 F. Supp. 2d 420 (W.D.N.Y. 2004) ............................................19, 21 Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176 (2d Cir. 1990) .................................................................................................... 25-26 General Telephone Co. of Southwest v. Falcon, 457 U.S. 1147 (1982) .......................................28 Goldchip Funding Co. v. 20th Century Corp., 61 F.R.D. 592 (M.D. Pa. 1974) ...........................15 Hudson v. Delta Airlines, Inc., 90 F.3d 451 (11th Cir. 1996) ................................................22, 23 Impress Communications v. Unumprovident Corp., 335 F. Supp. 2d 1053 (C.D. Cal. 2003) ....................................................................................... 35 In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996) .............................................8 In re Dennis Greenman Securities Litig., 829 F.2d 1539 (11th Cir. 1987) ...................................31 In re Drexel Burnham Lambert Group, 960 F.2d 285 (2d Cir. 1992) ......................................... 7-8 In re Initial Public Offering Securities Litig., 227 F.R.D. 65 (S.D.N.Y. 2004) ............................27 In re Joint Eastern and Southern District Asbestos Litigation, 78 F.3d 764 (2d Cir. 1996) ............................................................................................................13 In re Merrill Lynch & Co., Inc., 272 F. Supp. 2d 243 (S.D.N.Y. 2003) .........................................7 In re Quintus Sec. Litig., 148 F. Supp. 2d 967 (N.D. Cal. 2001) .................................................14 In re Visa Check/Master Money Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001) ..................6, 8 Key v. Gillette Co., 782 F.2d 5 (1st Cir. 1986) .............................................................................14 Maywalt v. Auburn Technology, No. 94-CV-352, 1996 WL 596547 (N.D.N.Y. October 15, 1996) .................................................7 Miller v. Pac. Shore Funding, 224 F. Supp. 2d 977 (D. Md. 2002) .............................................26 Morgan v. Metropolitan District Commission, 222 F.R.D. 220 (D. Conn. 2004) .........................................................................6, 7, 16, 25, 28, 33 Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Int’l Wire Group, Inc., No. 02 Civ. 10338, 2003 WL 21277114 (S.D.N.Y. June 2, 2003) .............................................. 35 Nechis v. Oxford Health Plans, Inc., No. 04-5100-CV, 2005 WL 2018630 (2d Cir. Aug. 24, 2005) .................................................... 35
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Novella v. Westchester County, No. 02 Civ. 2192, 2004 WL 3035405 (S.D.N.Y. Dec. 20, 2004) .................................................27 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ...........................................................................32 Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66 (E.D.N.Y. 2000) .......................6, 7 Petit v. Celebrity Cruises, Inc., 153 F. Supp. 2d 240 (S.D.N.Y. 2001) ..........................................7 Petrolito v. Arrow Financial Svcs., 221 F.R.D. 303 (D. Conn. 2004) ......................................7, 16 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) .......................................................................35 Scott v. New York City Dist. Council of Carpenters Pension Plan, 224 F.R.D. 353 (S.D.N.Y. 2004) ..............................................................................................8, 26 Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir. 1998) ................................ 16, 21-22, 27 Stevelman v. Alias Research, Inc., No. 5:91-CV-682, 2000 WL 888385 (D. Conn. June 22, 2000) ...................................................26 Tootle v. ARINC, Inc., 222 F.R.D. 88 (D. Md. 2004)................................................... 7, 23-24, 28 United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1274 (7th Cir. 1985) .......................................................................................................13 United Steelworks of Am., AFL-CIO-CLC v. Ivaco, Inc., 216 F.R.D. 693 (N.D. Ga. 2002) ...................................................................................................19 Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685 (11th Cir. 1987) .............................................31 Vengurlekar v. Silverline, 220 F.R.D. 222 (S.D.N.Y. 2003) ....................................................6, 32 Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58 (D. Conn. 2003) ......................................6, 26 Walling v. Brady, Civ. A. No. 94-410, 1995 U.S. Dist. LEXIS 10602 (D. Del. July 19, 1995) ...............................27 Wiseman v. First Citizens Bank & Trust Co., 212 F.R.D. 482 (W.D.N.C. 2003) ..................16, 25 Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507 (W.D.N.C. 2003) ........................24
STATUTES 29 U.S.C. § 1002(7) ..................................................................................................................... 35 29 U.S.C. § 1132(a)(3) ................................................................................................................. 35
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Case 3:04-cv-01638-JCH Document 68-1 Filed 09/19/2005 Page 7 of 44 60 Fed. Reg. 64,320 (Dec. 15, 1995) ............................................................................................20 FED. R. CIV. P. 23(a) .......................................................................................................................6 FED. R. CIV. P. 23(b) ...............................................................................................................29, 32 FED. R. CIV. P. 65(d) .................................................................................................................... 35 TREATISES Moore’s Federal Practice § 23.41[2] (3d Ed.) ..............................................................................29 Moore’s Federal Practice § 23.42[3][b] (3d Ed.) .................................................................... 30-31
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Defendants FleetBoston Financial Corporation (“FleetBoston”) and FleetBoston Financial Pension Plan (the “Plan”) submit this memorandum in opposition to Plaintiff Donna Richard’s Motion for Class Certification (“Motion”).
INTRODUCTION Plaintiff seeks to certify a class that consists of all individuals who as of December 31, 1996, ceased accruing benefits under the Plan’s various traditional defined benefit formulas (“Traditional Formulas”) and became participants in a new cash balance benefit formula (“Cash Balance Formula”). Plaintiff asks this to Court certify a “mandatory class” that would bind without exception all of these individuals to the remedy that Plaintiff seeks – the voiding of the Cash Balance Formula and reversion to the Traditional Formulas. Plaintiff’s motion, however, suffers from two basic, fundamental problems – problems that undercut her ability to satisfy virtually every element of Rule 23(a) and (b). First, Plaintiff’s goal of having the Cash Balance Formula declared void and a reversion to the Traditional Formulas is directly antagonistic to the interests of the many putative class members who indisputably are better off under the Cash Balance Formula than they would have been had the Traditional Formulas continued. This is a case where class members will be harmed should Plaintiff obtain the relief she requests. There can be no greater doubt as to Plaintiff’s adequacy as a class representative than the fact that the successful pursuit of her claims will result in financial detriment to other members of the putative class. Despite this, Plaintiff’s motion attempts to drag all other putative class members into this lawsuit without giving them the ability to opt out. Although Plaintiff apparently is comfortable ignoring the fact that she is wholly inadequate to represent these individuals, the Court cannot do so. Plaintiff is the only plan participant to file a lawsuit challenging the Cash Balance Formula
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in the nine years since it was adopted. There is no reason to presume that the absent class members support Plaintiff’s lawsuit or would elect to join the class if they had the opportunity. Because of the varying ways in which the putative class members were affected by the transition to the Cash Balance Formula, they must be allowed the opportunity to decide for themselves whether they want to challenge this formula. Binding the proposed class to one single remedy – a reversion to the Traditional Formulas – would be unconscionable and unjust.
The second flaw of Plaintiff’s motion for class certification is that five of the six counts of Plaintiff’s Complaint, Counts II through VI, by their very nature cannot be determined on a class-wide basis. Plaintiff seeks to certify the identical class for all six counts of her Complaint – all individuals who transferred from a Traditional Formula to the Cash Balance Formula on January 1, 1997. However, each of the claims in Counts II-VI is different, and each implicates a different group of participants within the putative class. For example, not all participants have experienced the “wear-away” effect alleged in Counts II and III. Similarly, not all participants were entitled to an ERISA § 204(h) notice (Count IV), were likely prejudiced by the allegedly inadequate SPDs (Count V), or relied on alleged misleading information (Count VI). In order to determine the appropriate class members for each claim and in order to determine liability for such class members, the Court would be required to conduct more than 25,000 individualized factual inquiries. Such a result would be contrary to the fundamental principles of judicial efficiency and economy that underlie the very purpose of the class action device.
Finally, even were this Court to certify the class Plaintiff requests, any such class must expressly exclude the more than 10,000 individuals who have ended their employment since January 1, 1997, and have received a payment of their benefits in the form of a lump-sum distribution. These 10,000-plus former Cash Balance Participants are no longer participants in
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the Plan and have no entitlement to any future benefits under the Plan. Accordingly, they are not entitled to declaratory or injunctive relief, which is all that Plaintiff seeks in this lawsuit.
For these reasons, as explained more fully below, the Court should deny Plaintiff’s Motion for Class Certification.
BACKGROUND On January 1, 1997, Fleet Financial Group, Inc. (“Fleet Financial”), a predecessor bank to FleetBoston, amended its pension plan. Among other things, the amendment prospectively changed the benefit formula for some, but not all, participants from a Traditional Formula to a new Cash Balance Formula. Cmplt. ¶ 23. Under the terms of the cash balance amendment, any participant who, as of December 31, 1996, had not attained age 50 with at least 15 years of service automatically became a participant in the Cash Balance Formula, i.e., a “Cash Balance Participant.”1 More than 25,000 such individuals became Cash Balance Participants after the amendment. Declaration of Gary Sahakian (attached as Exhibit A), at ¶ 4. Plaintiff’s Complaint consists of six counts which allege violations of various provisions of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (“ERISA”). In her Complaint and Motion for Class Certification, Plaintiff defines the single class that she seeks to certify for all six counts as any and all persons who:
1 Prior to the January 1, 1997 Plan amendment, the Cash Balance Participants had participated in a number of predecessor pension plans (hereafter, “legacy plans”), including (1) the “Fleet Financial Plan,” which covered Fleet Financial employees; (2) the “Shawmut Retirement Plan,” which covered Shawmut National Corporation employees prior to its merger into Fleet Financial in 1995; and (3) the “NatWest Retirement Plan,” which covered NatWest Bank N.A. employees prior to its merger with Fleet Financial. These legacy plans were defined benefit plans and each had traditional defined benefit formulas that took into account different factors in calculating participants’ pension benefits. See Defendants’ Memorandum of Law in Support of Motion to Dismiss (“Motion to Dismiss”) (Doc. 31), Ex. B at 2 and Ex. C, Spec. Sched. J, K.
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(a) Are former or current Fleet employees who on December 31, 1996, were not at least age 50 with 15 years of vesting service, and
(b) Participated in the Fleet Pension Plan before January 1, 1997, and (c) Have participated in the Fleet Pension Plan at any time since January 1, 1997. Cmplt. ¶ 11; Memorandum in Support of Motion for Class Certification (hereafter “Pl. Br.”) at 3. This group of individuals consists of those plan participants who had accrued benefits under the legacy Traditional Formulas until December 31, 1996, and who were then converted, effective January 1, 1997, to the Plan’s Cash Balance Formula. Benefits of the Cash Balance Design
FleetBoston’s Cash Balance Formula provides many advantages and benefits to plan participants that were not available under the Traditional Formulas.2 One advantage the Cash Balance Formula has is that it provides participants the opportunity to receive their pension benefits upon their termination of employment regardless of age or years of service, rather than waiting until they reach retirement age as the Traditional Formulas required. See Motion to Dismiss, Ex. B at 26-30. In addition, whenever participants begin receiving benefits, they can select either a lump-sum payment or a series of annuity payments. See id. This lump-sum option combined with the option to take an early distribution was not available under the Traditional Formulas.
The ability to receive a lump-sum distribution upon employment termination regardless of age or years of service makes the cash balance benefits more portable – and thus more beneficial to employees in today’s mobile workforce – than the benefits accrued under the Traditional Formulas. See Esden v. Bank of Boston, 229 F.3d 154, 158 n.5 (2d Cir. 2000); Eaton
2 For a detailed overview of defined benefit, defined contribution and cash balance plans, as well as a thorough explanation of the methods of accruing benefits and electing benefit distributions under the FleetBoston Plan’s Cash Balance Formula, see Motion to Dismiss at 4-10.
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v. Onan Corp., 117 F. Supp. 2d 812, 818 (S.D. Ind. 2000). Instead of having to wait until normal or early retirement age, participants can take their benefits upon leaving FleetBoston and invest the lump-sum amount, as they choose, to fit their own risk profile, coordinate with their other retirement planning and provide the opportunity for faster growth in the value of their retirement savings than if they were required to keep their benefits in a traditional plan. Under the Cash Balance Formula, if plan participants choose, they also can continue to take advantage of the tax deferral feature of the Plan by rolling over their distribution to an IRA or their next employer’s retirement plan.
There can be no doubt as to the popularity of the lump-sum feature of FleetBoston’s Cash Balance Formula. Since January 1, 1997, more than 11,000 of the 25,000-plus Cash Balance Participants that Plaintiff seeks to include in the class have ended their employment with Fleet Financial or its successors and commenced the receipt of their benefits. Of this 11,000-plus group, more than 7,000 were able to elect to receive their benefits in the form of a lump-sum payment or an annuity. Approximately 6,400 of this group of 7,000-plus selected a lump-sum distribution rather than an annuity. Ex. A, ¶ 5. In other words, more than 90% of the participants who had a choice as to which form of benefit to receive preferred to receive their benefits in the form of a lump-sum distribution.3
In addition to providing this lump-sum feature, the Cash Balance Formula has provided numerous participants a greater monetary benefit than the participants would have received had they continued to accrue benefits under the Traditional Formulas. See Declaration of
3 Approximately 4,000 of the 11,000-plus participants who have commenced the distribution of pension benefits since the date of their employment separation were required to, and did, receive a lump-sum distribution upon their employment separation because the value of their benefits fell below certain threshold figures set forth in the Plan. Ex. A, ¶ 5.
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Christopher Bone (attached as Exhibit B) at ¶¶ 5-9; see also Section I.A, infra. In short, and as will be discussed in greater detail below, there are many putative class members who have benefited financially from becoming Cash Balance Participants on January 1, 1997, and not remaining subject to the Traditional Formulas that Plaintiff seeks to re-impose on them.4
ARGUMENT The class action device is a powerful tool that is to be granted only in those extraordinary circumstances where representative litigation is appropriate. As with all parties moving for class certification, Plaintiff bears the burden of establishing that the proposed class clearly meets each requirement of Rule 23(a) of the Federal Rules of Civil Procedure: numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a); see also Morgan v. Metropolitan District Commission, 222 F.R.D. 220, 228 (D. Conn. 2004). Plaintiff also must establish that the proposed class is maintainable because it fits within one of the categories enumerated in Rule 23(b). See Walker v. Asea Brown Boveri, Inc., 214 F.R.D. 58, 62 (D. Conn. 2003). This Court should not grant Plaintiff’s Motion unless the Court is satisfied, after “rigorous analysis,” that the criteria set forth in Rule 23 have been met. Vengurlekar v. Silverline, 220 F.R.D. 222, 226 (S.D.N.Y. 2003) (internal quotation and citations omitted); see also In re Visa Check/Master Money Antitrust Litigation, 280 F.3d 124, 135 (2d Cir. 2001). Plaintiff’s failure to meet any one of Rule 23’s requirements defeats the alleged class action. See Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69-70 (E.D.N.Y. 2000). In
4 Defendants are only pointing out those benefits to plan participants that are pertinent to the issue of class certification. Cash balance plans benefit participants in other ways, and such plans also benefit the sponsoring employer in a number of ways.
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attempting to establish the requirements of Rule 23, “plaintiff cannot rely solely on the
allegations of the complaint, but must provide sufficient information on which the court can
make a determination” on class certification. Petrolito v. Arrow Financial Svcs., 221 F.R.D. 303,
307 (D. Conn. 2004) (citing Pecere, 194 F.R.D. at 69).
Here, Plaintiff has failed to meet her burden. Her Motion does little more than recite the bare allegations of her Complaint and falls far short of proving each of the Rule 23 elements.5
I. PLAINTIFF HAS NOT MET HER BURDEN OF PROVING THAT THE REQUIREMENTS OF RULE 23(a) ARE SATISFIED.
A. Plaintiff Has Not Met Her Burden Of Establishing The Adequacy Requirement Of Rule 23(a)(4).
Plaintiff offers no evidence to support her claim of adequacy other than the self-serving
statements in her affidavit that she is not aware of any conflicting interests. Her failure to
provide any evidence on which the Court can determine whether the adequacy element has been
met clearly does not meet Plaintiff’s burden under Rule 23. See Morgan, 222 F.R.D. at 228.
Under the adequacy requirement of Rule 23(a)(4), a plaintiff moving for class
certification must demonstrate: (1) that counsel for the prospective class is qualified,
experienced, and generally able to conduct the litigation, and (2) that the named plaintiff is an
5 In addition, Plaintiff’s Motion for Class Certification must be denied because Plaintiff has failed to state any claim upon which relief can be granted. See Tootle v. ARINC, Inc., 222 F.R.D. 88, 92 (D. Md. 2004) (concluding that plaintiff had failed to state a claim that defendant’s cash balance plan was age discriminatory in violation of ERISA, and consequently denying class certification on that claim). See also Boulware v. Crossland Mortgage Corp., 291 F.3d 261, 268 n.4 (4th Cir. 2002); Petit v. Celebrity Cruises, Inc., 153 F. Supp. 2d 240, 267 (S.D.N.Y. 2001); Maywalt v. Auburn Technology, No. 94-CV-352 RSP/GJD, 1996 WL 596547, at *9 (N.D.N.Y. Oct. 15, 1996); Fischer v. Tynan, No. 90 Civ. 7587 LBS, 1993 WL 213025, at *5 (S.D.N.Y. June 16, 1993). As noted in In re Merrill Lynch & Co., Inc., 272 F. Supp. 2d 243, 255 (S.D.N.Y. 2003), “[i]t is axiomatic that a putative class representative must be able to individually state a claim against [] defendants, even though he or she purports to act on behalf of a class.” For the reasons discussed in Defendants’ Motion to Dismiss, Plaintiff has failed to state a claim with respect to all six counts of her Complaint.
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adequate representative for the putative class. See In re Drexel Burnham Lambert Group, 960 F.2d 285, 291 (2d Cir. 1992). To be an adequate representative, the named plaintiff must not have interests that conflict with or are antagonistic to the interests of other class members. See id.; see also Amchem Prods. v. Windsor, 521 U.S. 591, 625-26 (1997) (“[t]he adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.”); In re Visa, 280 F.3d at 142 (noting that Rule 23(a)(4) “requires courts to ask whether plaintiff’s interests are antagonistic to the interest of other members of the class.”) (internal quotations and citation omitted). Class representatives must meet the requirements of adequacy “since a judgment in a class action binds absent class members whose due process rights would be thus imperiled.” Scott v. New York City Dist. Council of Carpenters Pension Plan, 224 F.R.D. 353, 355 (S.D.N.Y. 2004); see also In re American Medical Systems, Inc., 75 F.3d 1069, 1083 (6th Cir. 1996). Because of the important due process issues at stake with class certification, even potential antagonistic interests are enough to cause concern regarding adequacy of representation. See Dameron v. Sinai Hospital of Baltimore, Inc., 595 F. Supp. 1404, 1409 (D. Md. 1984).
In this case, Plaintiff cannot satisfy the adequacy requirement because her interests are in direct conflict with the interests of many members of the proposed class. The source of the conflict comes from the primary remedy Plaintiff seeks: “A declaration that the cash balance amendment to the FleetBoston Financial Pension Plan which purportedly took effect on January 1, 1997 was ineffective and that the plan in place prior thereto is still in force and effect[.]” Cmplt. Pr. for Relief ¶ 1. Plaintiff seeks this remedy for every count of her Complaint. See Plaintiff’s Interrogatory Answers (attached as Exhibit C) at 12-13, 17. She seeks this remedy for all putative class members. See Plaintiff’s June 30, 2005 supplement to her Interrogatory
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Answers (also attached as Exhibit C) at 2, ¶ 7. If Plaintiff is successful, FleetBoston’s cash
balance amendment will be voided prospectively, as well as retroactively to its adoption on January 1, 1997.6 For the reasons discussed below, many putative class members would
undoubtedly oppose such an action if they were aware of it and had the opportunity to do so.
1. Many Putative Class Members Are Receiving Greater Benefits Under The Cash Balance Formula.
There are thousands of Cash Balance Participants in the class that Plaintiff seeks to
certify who have received or will receive a greater benefit under the Cash Balance Formula than they would have received under the Traditional Formulas. Ex. B at ¶¶ 5-9.7 Set forth in Exhibit
B are numerous examples of individuals whose benefits actually are greater under the Cash
Balance Formula, including Cash Balance Participants who were covered under the same
Shawmut Traditional Formula that covered Plaintiff, as well as Cash Balance Participants who
were covered under the Fleet and NatWest Traditional Formulas; individuals who were as old as
71 and as young as 22 years of age at the time the Cash Balance Formula was adopted;
individuals who have retired; and individuals who are still employed with the bank and continue
to accrue benefits. Ex. B at ¶ 6. For example:
• Former Employee Who Was 52 Years Old On 1/1/97: Participant I is a member of the putative class who commenced employment with the Bank in 1988 and accrued benefits under the legacy NatWest plan until becoming a Cash Balance Participant at age 52. After terminating employment with the Bank, Participant I selected a lump-sum benefit distribution. Participant I received more benefits under the Cash Balance Formula than he/she would have received had the NatWest Traditional Formula remained in place. Specifically, Participant I accrued a benefit valued at $126,780 under the Cash Balance Formula, but would
6 This remedy is inappropriate under ERISA for many reasons which Defendants will not address here as that issue goes to the merits of Plaintiff’s requested remedy, not to class certification. 7 In his Declaration, Christopher Bone explained that he evaluated a subset of the 25,000-plus members of the putative class and identified nearly 2000 such individuals who have been better off under the Cash Balance Formula. He also stated that he would likely find more such individuals were all 25,000-plus putative class members evaluated. Ex. B at ¶¶ 5, 8-9.
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have accrued a benefit valued in lump-sum terms at only $84,502 had he/she continued under the Traditional Formula until terminating employment.
• Former Employee Who Was 58 Years Old On 1/1/97: Participant C is a member of the putative class who commenced employment with the Bank in 1988 and accrued benefits under the legacy Shawmut plan until becoming a Cash Balance Participant at age 58. After terminating employment with the Bank, Participant C selected a lump-sum benefit distribution. Participant C received more benefits under the Cash Balance Formula than he/she would have received had the Shawmut Traditional Formula remained in place. Specifically, Participant C accrued a benefit valued at $20,869 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at only $16,485 had he/she continued under the Traditional Formula until terminating employment.
• Active Employee Who Was 71 Years Old On 1/1/97: Participant F is a member of the putative class who commenced employment with the Bank in 1993 and accrued benefits under the legacy Shawmut plan until becoming a Cash Balance Participant at age 71. As of the beginning of 2005, Participant F has accrued more benefits under the Cash Balance Formula than he/she would have accrued had the legacy Shawmut plan remained in place. Specifically, Participant F has accrued a benefit valued at $17,099 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at $15,320 had he/she continued under the Traditional Formula.
• Active Employee Who Was 23 Years Old On 1/1/97: Participant J is a member of the putative class who commenced employment with the Bank in 1995 and accrued benefits under the legacy Shawmut plan until becoming a Cash Balance Participant at age 23. As of the beginning of 2005, Participant J has accrued more benefits under the Cash Balance Formula than he/she would have accrued had the legacy Shawmut plan remained in place. Specifically, Participant J has accrued a benefit valued at $8,892 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at $7,484 had he/she continued under the Traditional Formula.
• Former Employee Who Was 50 Years Old On 1/1/97: Participant A is a member of the putative class who commenced employment with the Bank in 1984 and accrued benefits under the legacy NatWest plan until becoming a Cash Balance Participant at age 50. After terminating employment with the Bank, Participant A selected a lump-sum benefit distribution. Participant A received more benefits under the Cash Balance Formula than he/she would have received had the NatWest Traditional Formula remained in place. Specifically, Participant A accrued a benefit valued at $63,526 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at only $47,242 had he/she continued under the Traditional Formula until terminating employment.
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• Former Employee Who Was 52 Years Old On 1/1/97: Participant B is a member of the putative class who commenced employment with the Bank in 1983 and accrued benefits under the legacy NatWest plan until becoming a Cash Balance Participant at age 52. After terminating employment with the Bank, Participant B selected a lump-sum benefit distribution. Participant B received more benefits under the Cash Balance Formula than he/she would have received had the NatWest Traditional Formula remained in place. Specifically, Participant B accrued a benefit valued at $40,695 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at only $31,022 had he/she continued under the Traditional Formula until terminating employment.
• Active Employee Who Was 28 Years Old On 1/1/97: Participant K is a member of the putative class who commenced employment with the Bank in 1994 and accrued benefits under the legacy Shawmut plan until becoming a Cash Balance Participant at age 28. As of the beginning of 2005, Participant K has accrued more benefits under the Cash Balance Formula than he/she would have accrued had the legacy Shawmut plan remained in place. Specifically, Participant K has accrued a benefit valued at $5,538 under the Cash Balance Formula, but would have accrued a benefit valued in lump-sum terms at $5,375 had he/she continued under the Traditional Formula.
These individuals (as well as thousands more) have been better off financially under the Cash
Balance Formula and, thus, would be financially harmed were Plaintiff to convince this Court to
force upon them the relief that she seeks.
Indeed, Plaintiff explicitly acknowledges a financial conflict between herself and some
members of the proposed class. In Paragraph 29 of her Complaint, she states that the “net effect”
of the change to the Cash Balance Formula “is that younger employees’ pensions relatively gain
under the FleetBoston Plan’s cash balance terms and older employees’ pensions relatively lose.”
Cmplt. ¶ 29. Yet Plaintiff ignores these concerns and attempts to certify a class that includes
such “younger” employees, and explicitly advocates taking away an advantageous benefit
formula from this group whose interests she purports to represent. Moreover, as the examples
above and in Exhibit B demonstrate, it is not only younger employees who will be harmed by the
prosecution of Plaintiff’s claims. There are older employees, such as Participants A, B, C, F and
I in the examples above, who are better off with the Cash Balance Formula. See also Ex. B at ¶¶
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6(l) and (m) (Cash Balance Participants who were 67 and 54 years of age, respectively, on January 1, 1997). They too should not be forcibly bound to Plaintiff’s representation and the relief she seeks.8
In addition to the increased pension benefits that many participants have experienced under the Cash Balance Formula, all putative class members, regardless of their circumstances, have derived a significant advantage from their ability to receive their benefits in the form of a lump-sum payment upon termination of their employment. As noted above, over 90% of those participants who have commenced benefits and have had a choice of a lump-sum or annuity have already elected to receive their benefit as a lump-sum payment. Ex. A at ¶ 5. By taking their benefits as a lump-sum, participants can invest their retirement savings in a manner that suits their particular stage in life and saving goals.
If the cash balance amendment were declared ineffective, putative class members will lose this highly beneficial and popular lump-sum feature. Plaintiff does not acknowledge this significant benefit she would be taking away from the thousands of current plan participants. Nor does Plaintiff’s motion contain any discussion of what will happen to the participants who have already left FleetBoston and taken a lump-sum distribution of their benefits. This presumably is because Plaintiff realizes she could not possibly adequately represent the interests of these individuals.
The relief that Plaintiff seeks – a declaration that the Cash Balance Formula is void and a reversion to the various pre-1997 Traditional Formulas – will, by its very nature, apply to all
8 Further evidencing her knowledge of existing conflicts, Plaintiff specifically identified in her deposition a putative class member who was financially better off under the Cash Balance Formula than he would have been had the Traditional Formulas continued after January 1, 1997. Richards Deposition Excerpt (attached as Exhibit D), at 46-48. That individual was 64 years of age at conversion. Ex. A at ¶ 6.
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putative class members. Plaintiff’s Motion offers no suggestion as to what should be done with the thousands of putative class members who – should she obtain her relief – have received lump-sum distributions that they, presumably, would be obligated to return to the Plan in order to put the parties in the status quo ex ante position that Plaintiff advocates.
Class members, and in particular the class representative, must not have interests antagonistic to one another. See In re Joint Eastern and Southern District Asbestos Litigation, 78 F.3d 764, 778 (2d Cir. 1996). “The election of a remedy that does not benefit the entire class… and that is not the remedy that would be chosen by the entire class… creates a conflict of interest. This conflict renders the plaintiffs’ representation of the class as a whole inadequate.” Clay v. American Tobacco Co., 188 F.R.D. 483, 493 (S.D. Ill. 1999). The Seventh Circuit’s decision in United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1274 (7th Cir. 1985), discusses this very point: class certification should be denied when members of the proposed class benefit from different ERISA plan formulas. In United, the Seventh Circuit upheld the denial of class certification on adequacy grounds where at least some class members would oppose the benefit changes for which the plaintiffs sued. See id. at 1284 (“differences among [class members] concerning their economic interests with regard to benefit plans represent a substantial conflict going to the subject matter of the litigation, thus rendering class certification inappropriate.”) (internal quotation and citation omitted)).
The same issues are present here. Members of the putative class who have already benefited or will benefit from the Cash Benefit Formula that Plaintiff seeks to declare “ineffective” have interests adverse to Plaintiff. But if the proposed class is certified, such class members will have no choice in the matter – they will be forced to stand by as Plaintiff argues on their so-called “behalf” for changes to the Plan that they would oppose.
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This is not an issue, as Plaintiff may attempt to argue, of a disparity in damages among the various class members. There is much more at stake in this case than class members benefiting in varying degrees from the sought-after relief. Nor is this a case where some class members will benefit from the Plaintiff’s remedy while others will remain monetarily unaffected. Rather, because Plaintiff seeks a declaration that the cash balance amendment was ineffective and a reversion to the Traditional Formulas, this is a case where some members of the putative class will actually be harmed should Plaintiff succeed. Such a conflict goes to the very heart of Plaintiff’s adequacy as a class representative.
While Plaintiff believes she was harmed when the Cash Balance Formula was adopted, her attempt to drag all other class members into this lawsuit and to certify them in a non-opt-out class is unjust. It would be improper and unconscionable to force the many putative class members who have benefited or will benefit from the cash balance amendment to join in a lawsuit that would take away these benefits. The Court cannot allow Plaintiff to sacrifice the interests of the putative class members in order to further her own. See In re Quintus Sec. Litig., 148 F. Supp. 2d 967, 970 (N.D. Cal. 2001) (“The court . . . owes a fiduciary duty to the class to ensure that the interests of every member of the class are adequately represented”); see also Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986) (opining that the district court has an ongoing obligation to ensure that the class representative fairly and adequately represents the class). Participants must be allowed to decide for themselves, on an individual basis, whether they want to challenge the Cash Balance Formula. Accordingly, this Court must deny Plaintiff’s Motion for Class Certification.
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2. Plaintiff Is An Inadequate Representative As To Count VI For Additional Reasons. In addition to these overriding shortcomings that apply to all six of the claims in
Plaintiff’s Complaint, with respect to Count VI, Plaintiff cannot possibly be certified as a class representative for the simple reason that she has absolutely no knowledge of this claim.
When asked about Count VI at her deposition, Plaintiff testified that she did not know who, as alleged in her Complaint, the “Fleet Plan Administrators” were who allegedly made misrepresentations to “retiring plan participants” by informing them only of the lesser value of the benefit they would receive under the Cash Balance Formula. Ex. D at 152; see Cmplt. ¶ 52. Plaintiff expressly deferred to her attorney for that information. Ex. D at 152. Plaintiff also had no knowledge of any “retiring plan participants” to whom these alleged misrepresentations were made. See id. She guessed that this count of her Complaint possibly referred to a specific individual because he was no longer employed with FleetBoston, but Plaintiff admitted she had no knowledge of what that person was or was not told about his benefits. She further admitted she had no knowledge of what any other individual was told about his or her specific benefits and admitted that she herself is not a “retiring a plan participant.” Ex. D at 153-155. It is plainly apparent that the true “plaintiff” with respect to this claim is class counsel, not Ms. Richards. Under such circumstances, class certification should be denied. See Goldchip Funding Co. v. 20th Century Corp., 61 F.R.D. 592, 594-95 (M.D. Pa. 1974) (“The class is entitled to more than blind reliance upon even competent counsel by uninterested and inexperienced representatives.”); Cohen v. Bloch, 507 F. Supp. 321, 325-26 (D.C.N.Y. 1980) (class representative was ill-informed of suit and thus inadequate).
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B. Plaintiff Has Not Met Her Burden Of Establishing The Commonality Requirement Of Rule 23(a)(2).
The burden is on Plaintiff to demonstrate that the requirement of commonality is satisfied. See Morgan, 222 F.R.D. at 234. “The plaintiff cannot rely solely on the allegations of the complaint, but must provide sufficient information on which the court can make a determination.” Id. (internal quotation and citation omitted). In her Motion, Plaintiff makes the conclusory assertion that, “[t]he only issues that have been identified in this litigation are issues common to all class members.” Pl. Br. 12-13. This statement simply is not true.
To establish the commonality requirement of Rule 23(a)(2), “‘[i]t is not every common question that will suffice… [because] at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality.’” Petrolito, 221 F.R.D. at 309 (quoting Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)). Rather, “the court looks for ‘a common issue the resolution of which will advance the litigation.’” Id. The court “should weigh the common issues with the need for individual analysis to determine whether a class action is appropriate. When a case requires extensive individualized inquiry, it will unduly burden the Court and will disserve the economy rationale that renders the class action device useful.” Wiseman v First Citizens Bank & Trust Co., 212 F.R.D. 482, 486 (W.D.N.C. 2003) (internal quotation and citation omitted).
Plaintiff seeks that the same class be certified with respect to all six counts of her Complaint. Counts II through VI, however, require the Court to conduct highly individualized inquiries with respect to every class member. A brief discussion of these claims illustrates the individualized analyses they require.
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1. Plaintiff’s “Wear-Away” Claims In Counts II And III. As Plaintiff herself states, both Counts II and III of her Complaint arise from what is termed the “wear-away” effect. Pl. Br. 1-2, ¶ 2. According to Plaintiff, some employees may undergo a period of time where, although their benefit under the Cash Balance Formula continues to grow, the frozen benefit they earned under the Traditional Formula remains the greater benefit. See Cmplt. ¶¶ 32, 33. In Count II, Plaintiff contends that there is no accrual of a participant’s cash balance benefit during this “wear-away” period because the frozen benefit under the Traditional Formula has the greater value, and this supposedly causes “prohibited benefit forfeitures” in violation of ERISA § 203(a). See Cmplt. ¶¶ 32-34, 46 and Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, p. 24. Similarly, in Count III, Plaintiff alleges that “[b]ecause the wear-away effect causes plan participants, including Richards, to face years where they accrue zero benefits followed by years where they accrue actual benefits, the cash balance terms violate the ‘anti-backloading’ rule in ERISA § 204(b)(1)(B) that requires that the value of the benefit accrued in any given year may not exceed the value of a benefit accrued in any previous year by more than 33 1/3%.” Cmplt. ¶ 46. The relevance of these claims for class certification purposes is that the Cash Balance Formula allegedly violates the “non-forfeiture” and “anti-backloading” rules of ERISA only when, as Plaintiff contends, a plan participant has, in fact, experienced the “wear-away” effect. See, e.g., Cmplt. ¶ 46. Establishing that the “wear-away” effect has actually occurred therefore is a necessary element of Plaintiff’s (or any other putative class member’s) claims in Counts II and III. Wear-away, however, cannot be determined on a class-wide basis. In order to determine whether any given putative class member experienced wear-away, the Court would need to
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compare the accrual of the frozen benefit and the cash balance benefit for each putative class member at all points in time since January 1, 1997. Among other factors, this analysis would require an individualized assessment of the particular Traditional Formula (e.g., Fleet, Shawmut, NatWest, etc.) under which the putative class member had been accruing benefits on December 31, 1996, as well as his or her age, salary, initial cash balance, years of service, pay progression since January 1, 1997, and amounts of any differences in service recorded by the Plan for purposes of vesting and benefit accrual. In addition, because the analysis must assess these factors at all points in time, the analysis must apply changing actuarial assumptions as those will differ from year-to-year. Ex. B at ¶ 17. Depending on these factors, some putative class members will have experienced the “wear-away” effect, while others will have not. Indeed, as the attached exhibit shows, many members of the putative class have not experienced the “wearaway” effect. Ex. B at ¶¶ 16-19. As set forth in the examples in Exhibit B, these include members of the putative class of various ages (including participants who were in their forties, fifties or sixties when they became Cash Balance Participants) and who had previously accrued benefits under the legacy Shawmut, legacy Fleet or legacy NatWest Traditional Formula. Ex. B at ¶¶ 16(a)-(f).
The fact that the putative class includes participants who indisputably have not experienced the “wear-away” effect – and that identifying these participants would require the Court to conduct a detailed analysis of the factors set forth above for every class member – is fatal to Plaintiff’s attempt to certify a class on Counts II and III. Resolving Plaintiff’s claims does not similarly resolve the claims of any other putative class member. Because of the individualized factors set forth above, even if Plaintiff could prove that she personally experienced the “wear-away” effect, it would not establish that other class members also
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experienced the “wear-away” effect – and, as the facts show, many did not. Ex. B at ¶¶ 16-19. Plaintiff’s claims thus fail to meet the commonality requirement and are inappropriate for class certification. See Fotta v. Trustees of the United Mine Workers of Am., 319 F.3d 612, 619 (3rd Cir. 2003), cert. denied, 540 U.S. 982 (2003) (“To decide whether each putative class member would be entitled to interest, the District Court would have to determine whether the Fund wrongfully withheld or wrongfully delayed payment for each class member. . . . Because both liability and the appropriate remedy must be determined for each plaintiff, no common issues of law or fact exist.”); United Steelworks of Am., AFL-CIO-CLC v. Ivaco, Inc., 216 F.R.D. 693, 697-98 (N.D. Ga. 2002) (concluding that plaintiffs’ claim lacked commonality because of the need for individualized analysis).
2. Plaintiff’s ERISA § 204(h) And Summary Plan Description Claims In Counts IV And V.
Counts IV and V of Plaintiff’s Complaint suffer from similarly fatal flaws. In Count IV, Plaintiff alleges that FleetBoston violated ERISA § 204(h) when it allegedly failed to notify Plaintiff of a significant reduction in the rate of her future benefit accrual 15 days prior to the January 1, 1997 effective date of the cash balance amendment. Cmplt. ¶ 48. To state a claim under ERISA § 204(h), a plaintiff must demonstrate: (1) that she actually suffered a significant reduction in the rate of her future benefit accrual (and thus was entitled to notice), and (2) that she was likely prejudiced by the employer’s failure to give her the notice to which she was entitled. See Frommert v. Conkright, 328 F. Supp. 2d 420, 436 (W.D.N.Y. 2004) (citing Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 113-14 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004)); see also Colin v. Marconi Commerce Systems Employees Retirement Plan, 335 F. Supp. 2d 590, 605 (M.D.N.C. 2004) (dismissing plaintiffs’ claim under another ERISA notice provision and noting that “[b]eneficiaries cannot recover under ERISA’s notice provisions absent
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a showing that they were harmed as a result of the notice failure.”). Establishing these elements will require an individualized analysis with respect to each class member.
First, like with the “wear-away” effect, whether any putative class member suffered a significant reduction in the rate of future benefit accrual depends on a variety of factors, including the Traditional Formula under which the putative class member accrued benefits, the current age of the putative class member, and the age, years of service and salary history of the putative class member as of January 1, 1997. Ex. B. at ¶¶ 13-14. As the discussion in Section 1.A above demonstrates, there are thousands of putative class members who did not suffer any reduction in their benefit accruals but actually gained financially from becoming Cash Balance Participants. None of these putative class members was entitled to any ERISA § 204(h) notice, and they have no claim under Count IV.
Moreover, even as to any members of the putative class who may have actually experienced a significant reduction in the rate of future benefit accrual since January 1, 1997, Defendants were legally obligated under the applicable standards in 1996 to issue an ERISA §204(h) notice only if the significant reduction the putative class member experienced was reasonably expected. See Notice of Significant Reduction in the Rate of Future Benefit Accrual, 60 Fed. Reg. 64,320, 64,321-23 (Dec. 15, 1995); see also Engers v. AT&T Corp., No. 98-3660, 2001 U.S. Dist. LEXIS 25889, at *5-6 (D.N.J. June 6, 2001).9 As explained in the attached declaration, there are thousands of putative class members who Defendants had no reason to believe would experience a significant reduction in the rate of future benefit accrual, and they therefore were not entitled to receive an ERISA § 204(h) notice. Ex. B at ¶¶ 12-15. As set
9 The Engers decision and all other unreported decisions published on either Westlaw or Lexis are included in the accompanying documents entitled “Attachment – Unreported Decisions”.
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forth in the examples in Exhibit B, these include members of the putative class of various ages (including participants who were in their twenties as well as participants who were in their fifties or sixties when they became Cash Balance Participants) and who had previously accrued benefits under the legacy Shawmut, legacy Fleet or legacy NatWest Traditional Formula. Ex. B at ¶¶ 12(a)-(f). Indeed, the examples in Exhibit B demonstrate that there were many individuals who, when evaluated for purposes of ERISA § 204(h), would have been expected to experience not a reduction, but an increase anywhere from 8% to 24% in their future rate of benefit accrual with the conversion to the Cash Balance Formula. Ex. B at ¶¶ 12(a)-(d), (f).
Thus, even if Plaintiff were able to establish that she herself suffered a significant reduction in the rate of her future benefit accrual and had been entitled to an ERISA § 204(h) notice, the Court still would need to determine for each other individual class member whether a significant reduction in the rate of future benefit accrual has occurred and whether it reasonably should have been anticipated by Defendants back in 1996.
Furthermore, the Court would need to conduct an individualized analysis for each putative class member as to the second element of Plaintiff’s claim in Count IV – whether each class member was likely prejudiced as a result of FleetBoston’s alleged failure to give notice of its cash balance amendment. See Frommert, 328 F. Supp. 2d at 436; Colin, 335 F. Supp. 2d at 605. Whether Plaintiff and any other putative class members can demonstrate they were likely harmed is not something that can be presumed on a class-wide basis. Rather, such findings only can be made by inquiring of each class member what prejudicial effect, if any, the alleged lack of notice likely had on him or her.
Because both elements of Count IV require individualized proof, Plaintiff’s claim cannot be certified under Rule 23(a)(2). See Sprague, 133 F.3d at 398 (reversing district court’s
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certification of class “[b]ecause each plaintiff’s claim depended upon facts and circumstances peculiar to that plaintiff . . . .”); Hudson v. Delta Airlines, Inc., 90 F.3d 451, 457 (11th Cir. 1996) (affirming denial of class certification on various ERISA claims because they were “not susceptible to class-wide proof.”).
Count V of Plaintiff’s Complaint – that FleetBoston did not provide adequate summary plan descriptions (“SPDs”) in connection with its adoption of a cash balance formula (see Cmplt. ¶ 50) – similarly requires the Court to conduct an individualized analysis into whether each putative class member was “likely prejudiced” or “likely to have been harmed” as a result of the inadequate, misleading or deficient SPDs. See Burke, 336 F.3d at 111-13. Whether or not each individual class member suffered “likely prejudice” from any allegedly deficient language is not something that can be decided on a class-wide basis. Accordingly, class certification is not appropriate.
3. Plaintiff’s Breach Of Fiduciary Claim In Count VI. In Count VI, Plaintiff alleges that [u]pon information and belief, because FleetBoston Plan administrators frequently inform retiring plan participants only of the value of their cash balance accounts and fail to inform them of the greater benefits they are owed under the frozen benefit derived from the Traditional Formula, FleetBoston has breached the fiduciary duty it owes to Plan participants…[.] Cmplt. ¶ 52.10 With this claim, Plaintiff and all other class members must establish, among other elements, that: (1) FleetBoston made material misrepresentations, and (2) they relied on those misrepresentations to their detriment. See Danis v. Cultor Food Science, Inc., 154 F. Supp. 2d
10 This claim is based “upon information and belief” because it did not happen to Plaintiff – she is not a member of this class. That alone is grounds enough not to certify a class on this claim. See infra Section I.C.1.
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247, 259 (D. Conn. 2001) (citing Ballone v. Eastman Kodak Co., 109 F.3d 117, 122, 126 (2d Cir. 1997)).
ERISA breach of fiduciary duty claims based on alleged misrepresentations are inherently unsuited for class resolution, and Plaintiff’s claim is no exception. Because of the need for individualized proof of detrimental reliance, courts routinely deny class certification on claims like the one alleged by Plaintiff. See Coffin v. Bowater Inc., 228 F.R.D. 397, 409 (D. Me. 2005) (denying certification of ERISA breach of fiduciary duty claim based on alleged failures to communicate properly to plan participants and concluding that “individual issues of reliance will be probative to [the] resolution of any ERISA fiduciary duty claim[.]” (emphasis added); see also Flanagan v. Allstate Insurance Co., 223 F.R.D. 489, 495-96 (N.D. Ill. 2004), vacated on other grounds, In re Allstate Ins. Co., 400 F.3d 505 (7th Cir. 2005).
In Hudson, 90 F.3d at 457, the Eleventh Circuit affirmed the denial of class certification for lack of commonality where the ERISA breach of fiduciary duty claim centered around reliance by retirees on representations regarding better retirement benefits. The court concluded that the question of detrimental reliance on the allegedly false information provided to the retiring employees “would necessarily have been highly individualized.” Id. In Tootle v. ARINC, Inc., 222 F.R.D. 88 (D. Md. 2004), the plaintiff, like Richards in this case, brought an ERISA breach of fiduciary duty claim in connection with the defendant’s amendment of its defined benefit pension plan from a traditional benefit formula to a cash balance formula. Noting that the claims stated by the plaintiff “rel[ied] heavily on alleged omissions [], that the defendants failed to share material information with employees,” the court concluded that the commonality requirement had not been satisfied because the plaintiff’s burden of proving reliance would necessarily require “an individualized showing regarding each plaintiff’s
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acquisition of information about the new cash balance plan and his reliance on that information.” Id. at 97; see also Flanagan, 223 F.R.D. at 495 (denying class certification of ERISA breach of fiduciary duty claim for lack of commonality because the trier of fact would need to examine what was said to each plaintiff before his or her departure from the company, and what effect this information had on each plaintiff); Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507, 510 (W.D.N.C. 2003) (affirming denial of class certification on plaintiffs’ ERISA breach of fiduciary duty misrepresentation claim because the element of detrimental reliance would require an individualized analysis).
These principles apply with even greater force in this case, where Plaintiff’s claim appears to be that communications made to plan participants regarding the Cash Balance Formula led them mistakenly to believe that their cash balance benefit included all the benefits that they earned from their predecessor plans, plus the cash balance pay and interest credits. There is no possible way a class could be certified on such a claim.
In order to determine whether liability exists for this claim, the Court would need to question each and every class member to determine: (1) what communications he or she received and reviewed regarding the Cash Balance Formula; (2) what these communications led him or her to believe; (3) whether he or she relied on any mistaken impressions created by these communications, and (4) how he or she was harmed by any such reliance. Making these determinations would require the Court to conduct thousands of mini-trials into each putative class member’s individual circumstances. Such a task is entirely contrary to the purposes of class certification. As the above discussion regarding Counts II through VI illustrates, each of these claims inherently requires individualized analyses in order to determine liability. If the class Plaintiff proposes is certified, both the Court and the parties will be unduly burdened in
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terms of time and expense in parsing through these various factual inquiries. Plaintiff’s motion for class certification consequently must be denied. See Wiseman, 212 F.R.D. at 486-87. 11
C. Plaintiff Has Not Met The Typicality Requirement Of Rule 23(a)(3). Together with the commonality requirement, typicality serves as a guidepost for the court
to determine “whether… the named plaintiff’s claim and the class claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence.” Morgan, 222 F.R.D. at 229 (internal quotation and citations omitted). The goal of the typicality requirement is to ensure that the interests of the class and the class representatives are aligned so that the work of the class representatives will benefit the class as a whole. See Barnes v. American Tobacco Co., Inc., 161 F.3d 127, 141 (3d Cir. 1998).
1. Plaintiff’s Claims Are Not Typical Of The Class Because There Are Unique Defenses Applicable To Her That Will Be A Focus Of The Litigation.
Courts have repeatedly held that class certification is inappropriate where a putative class representative is subject to unique defenses that threaten to become the focus of the litigation. See, e.g., Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59-60 (2d Cir. 2000) (citing Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d
11 Plaintiff’s reliance on Forbush v. J.C. Penney Pension Plan, 994 F.2d 1101, 1106 (5th Cir. 1993), for the proposition that she has satisfied the commonality requirement is misplaced. There was no issue in Forbush of whether every putative class member could satisfy the requirements necessary to establish liability on the ERISA claims in that case because the named plaintiff’s proposed class definition specifically limited the class only to participants whose pension benefits had actually been or would be reduced or eliminated because of defendant’s alleged unlawful conduct. 994 F.2d at 1103. By contrast, Plaintiff’s proposed class in this case is a global class consisting of everyone who did not remain covered by a Traditional Formula after the Cash Balance Formula was adopted, regardless of whether those class members actually experienced the wear-away or reduction in rate of future benefit accrual that are factual predicates for the claims Plaintiff alleges. Thus, unlike in Forbush, this Court would have to conduct determinations unique to each putative class member.
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176, 180 (2d Cir. 1990)); Walker, 214 F.R.D. at 64-65. Such defenses render the plaintiff both not typical under 23(a)(3) and an inadequate class representative under 23(a)(4). Gary Plastic, 903 F.2d at 180. The purpose of this rule is to protect absent class members who may suffer if their representative is preoccupied with defenses unique to her. See id.
In this case, Plaintiff is subject to several defenses that apply uniquely to her claims and threaten to become a focus of the litigation. See Motion to Dismiss §§ III and IV.C. Defendants highlight only two here. First, Plaintiff has failed to exhaust her administrative remedies under the Plan with respect to certain claims. See Motion to Dismiss § III; see also Scott, 224 F.R.D. at 354-55 (finding in a motion for class certification brought pursuant to ERISA that “determining whether [the plaintiff] has exhausted his administrative remedies would require an individualized assessment of the facts and circumstances surrounding his claim for benefits. Such an assessment constitutes a defense unique to [the plaintiff] that threatens to become the focus of the litigation.”). Plaintiff cannot adequately represent a class when a significant focus of the litigation will be on the preliminary issue of whether her claims are even viable in federal court.
Second, Plaintiff lacks standing to bring Count VI of her Complaint. See Motion to Dismiss at 33-34. The claim centers around what “retiring” class members were or were not told regarding their pension benefits. Plaintiff, however, was not told anything when she was “retiring” because she has not yet retired.12 It is well-established that a named plaintiff may only represent absent class members if she personally has standing to litigate her own claim. See e.g., Stevelman v. Alias Research, Inc., No. 5:91-CV-682, 2000 WL 888385, at *6-7 (D. Conn. June 22, 2000); Miller v. Pac. Shore Funding, 224 F. Supp. 2d 977, 996 (D. Md. 2002); cf. Engers,
12 Plaintiff further admits that she “is not presently a retiring plan participant.” Ex. D at 155.
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2001 U.S. Dist. LEXIS 25889 at *12-13; cf. Novella v. Westchester County, No. 02 Civ. 2192, 2004 WL 3035405, at *3 (S.D.N.Y. Dec. 20, 2004).
Plaintiff’s lack of standing is a defense unique to her that will sidetrack the litigation. See In re Initial Public Offering Securities Litigation, 227 F.R.D. 65, 120 (S.D.N.Y. 2004) (“a class representative’s lack of standing… qualifies as a ‘unique defense’ sufficient to defeat the typicality of a proposed class representative.”). Plaintiff therefore is not a typical representative of the class she seeks to represent and class certification should be denied.
2. Plaintiff’s Claims Are Not Typical Because Her Interests And Alleged Injuries Are Not Aligned With Members Of The Putative Class.
Plaintiff’s pursuit of her interests in this case will not benefit the class as a whole. See Barnes, 161 F.3d at 141. Contrary to Plaintiff’s claim, this is not a case like Walling v. Brady, Civ. A. No. 94-410, 1995 U.S. Dist. LEXIS 10602, at *10 (D. Del. Jul. 19, 1995), in which Plaintiff has “receive[d] the same lesser benefit as others in the putative class.” Pl. Br. 15. Here, members of the proposed class will be financially harmed if they are forced to return to the Traditional Formula. See Section 1.A., supra. Accordingly, Plaintiff’s motion for class certification must be denied. See Clay, 188 F.R.D. at 492 (S.D. Ill. 1999) (“a plaintiff with typical claims will pursue his or her own self-interest in the litigation and in so doing, will advance the interests of the class members[.]”) (internal quotation and citation omitted)).
3. Plaintiff’s Claims Are Not Typical Because Establishing Her Claims Does Not Necessarily Establish The Claims Of Other Members Of The Putative Class.
The premise behind the typicality requirement has been stated simply: “as goes the claim of the named plaintiff, so go the claims of the class.” Sprague, 133 F.3d at 399. As Plaintiff asserts, the typicality requirement of Rule 23(a)(3) requires that “the same unlawful conduct affects both the named plaintiff and the putative class” and that “other members of the class have
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the same or similar injury” as the named plaintiff. Pl. Br. 14-15; see also General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982) (“It is axiomatic that the class representatives must… suffer the same injury as the class members”) (internal quotations and citations omitted)).
Counts II through VI of the Complaint all require the Court to examine factual issues that must be resolved independently for each class member. Many of the putative class members were not affected by the same alleged unlawful conduct and have not suffered the same or similar injury as Plaintiff. For the same reasons these factual differences destroy commonality, Plaintiff’s claims are not typical of the class. See, e.g., Tootle, 222 F.R.D. at 97 (finding a lack of typicality where the element of detrimental reliance would require an individualized inquiry into the circumstances of each class member); see also Section I.B., supra.
II. PLAINTIFF HAS NOT MET HER BURDEN OF PROVING THAT THE PROPOSED CLASS CAN BE CERTIFIED UNDER RULE 23(b). If the prerequisites of Rule 23(a) have been satisfied, a plaintiff seeking class certification
must then demonstrate that the action is maintainable under one of the sections of Rule 23(b). Plaintiff has moved for class certification under Rule 23(b)(1) and (b)(2). She has not shown, and indeed cannot show, that this action is maintainable under either provision.
A. Class Certification Is Not Appropriate Under Rule 23(b)(1). As a preliminary matter, Plaintiff’s request for class certification pursuant to Rule
23(b)(1) for the first time in her Motion for Class Certification is untimely. Plaintiff’s Complaint did not include a request for certification under this provision; nor has her Complaint ever been amended to include one. Accordingly, her request should be denied. See Morgan, 222 F.R.D. at 235 n. 8 (denying as untimely plaintiffs’ request for Rule 23(b)(1) class certification where the complaint did not include such a request and request was raised for the first time in motion to dismiss).
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Even if this Court should find Plaintiff’s request for class certification under Rule 23(b)(1) to be timely, Plaintiff has not satisfied the substantive requirements of this provision. Under the two prongs of Rule 23(b)(1), class certification is appropriate if the moving party has established that “the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” Fed. R. Civ. P. 23(b)(1). Contrary to the requirements of Rule 23(b)(1)(A), there is no reason to believe separate actions might be brought regarding the claims in this action. Rule 23(b)(1)(A) requires that: a party seeking class certification . . . [to] establish that there is a realistic possibility that separate actions involving the same subject matter will be brought in the absence of a class action. This risk of separate actions must be substantial, and not merely hypothetical or speculative. Certification will be denied if separate adjudications are unlikely. Moore’s Federal Practice § 23.41[2] (3d Ed.). FleetBoston’s cash balance amendment went into effect on January 1, 1997. In the nearly nine years since, not a single plan beneficiary has filed a lawsuit challenging this amendment other than Plaintiff. Similarly, other than Plaintiff’s Counts IV and V in this case, not one lawsuit has been filed challenging the adequacy, or lack thereof, of any ERISA § 204(h) notice or of any of the Summary Plan Descriptions that have been issued since January 1, 1997. Now, nearly nine years since every member of the putative class first became subject to the Cash Balance Formula, the possibility of additional lawsuits being filed by individual members of the
29

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putative class – particularly in the many instances where they have no financial interests at stake – is unlikely and speculative at best.
Moreover, even if individual actions were to be brought in the absence of this class action, there is no reason to believe that any such actions would result in inconsistent outcomes, at least not with respect to all five of Counts II-VI of Plaintiff’s Complaint. As discussed in Section I.B above, these claims all involve individualized determinations that will vary from class member to class member. Because of the individual inquiries involved in these claims, any differing outcomes among the putative class members would not be inconsistent; they simply would be the result of the putative class members’ different factual circumstances. See Bowe Bell & Howell Co. v. Immco Employees’ Ass’n, No. 03 C 8010, 2005 WL 1139645, at *5 (N.D. Ill. May 11, 2005) (“inconsistent standards for future conduct are not created [simply] because a defendant might be found liable to some plaintiffs and not others.”) (internal quotation and citation omitted). Accordingly, certification under Rule 23(b)(1)(A) is not appropriate.
Similarly, these factual differences between the putative class members mean that class certification is not appropriate under Rule 23(b)(1)(B). With respect to Counts II-VI, an adjudication of one class member’s claims would not be dispositive of any other class member’s claim because the claims all turn individually on each class members’ individual circumstances. Nor is Plaintiff’s age discrimination claim (Count I) appropriate for certification under Rule 23(b)(1)(B). This is because the only possible impact of allowing this claim to proceed individually would be the stare decisis effect of a court ruling that FleetBoston’s pension plan does not violate ERISA. However, it is well-established that “stare decisis alone is not a reason to grant certification under Rule 23(b)(1)(B).” Bowe, 2005 WL 1139645 at *5 (citing cases). As noted in Moore’s Federal Practice,
30

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A majority of courts have held that the possible stare decisis effect… is insufficient to warrant certification under Rule 23(b)(1)(B). Those courts reason that stare decisis does not bind courts in subsequent cases involving other putative class members. Otherwise, Rule 23(b)(1)(B) would become a broad and unchallengeable route to class certification in many cases, an effect not intended by the drafters of the Rule. Moore’s Federal Practice § 23.42[3][b] (3d Ed.). Certification under Rule 23(b)(1)(B) is not appropriate merely because a decision in one case may establish precedent for other members of the putative class. See, e.g., Bowe, 2005 WL 1139645 at *5; In re Dennis Greenman Securities Litig., 829 F.2d 1539, 1546 (11th Cir. 1987), Vaughter v. Eastern Air Lines, Inc., 817 F.2d 685, 690 (11th Cir. 1987). Moreover, Plaintiff’s contention that a class should be certified because “the circumstances of injury are not varied within the class,” Pl. Br. 19, ignores the fact that, as discussed in Section I.A above, declaratory and injunctive relief would not be appropriate for the entire putative class. Many class members have benefited from the cash balance amendment and would not want to revert back to the Traditional Formulas. See Bowe, 2005 WL 1139645 at *6 (“When, though the suit is for declaratory relief, the effect of the declaration on individual class members will vary with their particular circumstances, they should be given notice of the class action so that they can decide whether they would be better off proceeding individually.”) (internal quotation and citation omitted). The Court cannot ignore the interests of these putative class members who are better off under the Cash Balance Formula: “[b]ecause class members are not provided notice or an opportunity to opt out of a class certified under 23(b)(1)(B), the rule is interpreted narrowly.” Id. at *5. Typically, class actions certified under Rule 23(b)(1)(B) include suits to reorganize fraternal benefit societies, actions by shareholders to declare a dividend, actions charging a breach of trust by a fiduciary which similarly affects a large class of beneficiaries such that an accounting is necessary, and limited fund class actions seeking to aggregate claims against a fund which is insufficient to satisfy the claims of all the class members.
31

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Id. (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999)). None of these circumstances are present in this case. While resolving Plaintiff’s claims
here may have a limited precedential effect, such a limited effect is not enough to allow for certification under Rule 23(b)(1)(B). Because resolution of Plaintiff’s claims would be neither dispositive of the interests of the putative class members nor substantially impair or impede their ability to protect their interests, class certification under this provision is not appropriate. For all of these reasons, class certification should not be granted under 23(b)(1)(B).
B. Class Certification Is Not Appropriate Under Rule 23(b)(2). Plaintiff alternatively seeks class certification pursuant to Rule 23(b)(2) which, like Rule
23(b)(1), does not allow for notice and an opportunity to opt out of the litigation. Rule 23(b)(2) permits certification when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Class actions under Rule 23(b)(2) are proper if injunctive or declaratory relief would be appropriate for an entire class. The Rule may be utilized if a party’s action or inaction affects an entire class seeking relief.” Vengurlekar, 220 F.R.D. at 227 (emphasis added).
As discussed in Section I.A above, because of the varying ways in which participants have been affected by the cash balance amendment, the relief Plaintiff seeks – a declaration that the cash balance amendment was ineffective and that the plan in place prior thereto is still in force and effect – is not appropriate for the entire class. Any putative class member who has already benefited from the cash balance amendment or who will benefit from the cash balance amendment should not be forced to return to the Traditional Formula. Nor is class-wide declaratory and injunctive relief appropriate when many members of the putative class have no
32

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claims under the various counts of Plaintiff’s Complaint (see supra Section I.B.) and thus are not entitled to seek any relief under such claims.
In addition to being inappropriate, class-wide declaratory or injunctive relief in this case simply is not possible. More than 10,000 members of the putative class have terminated their employment with FleetBoston and taken a lump-sum distribution of their pension benefits. Ex. A at ¶ 5. These individuals are no longer participants in the Plan and are no longer accruing benefits. Thus, any relief solely in the form of prospective changes to the FleetBoston pension plan would be meaningless to them. Rather, the only real interest of these former participants is the possibility of obtaining monetary relief. See Morgan, 222 F.R.D. at 236. That interest is directly contrary to the standards required for certification under Rule 23(b)(2). See id.
As explained in Morgan, the “critical issue” in a Rule 23(b)(2) analysis “is whether reasonable plaintiffs would pursue [the] case if monetary recovery would not be awarded.” Morgan, 222 F.R.D. at 236. For the more than 10,000 participants in this case who have already left the Plan and taken a lump-sum distribution, the answer to that question is “no.” Moreover, any declaratory or injunctive relief that could be granted to the class members could be obtained by Plaintiff alone, without need for a class action. See Morgan, 222 F.R.D. at 236. As concluded in Morgan,
[t]his would enhance efficiency by averting a potentially overwhelming and highly individualized damages phase that would threaten to convert the ostensibly unified class action into a series of mini-trials, thus defeating the likelihood that “class treatment would be efficient and manageable [and would] thereby achiev[e] an appreciable measure of judicial economy.” Id. (internal citations omitted). In this case, in addition to declaratory and injunctive relief, Plaintiff requests that this Court determine “participant losses” caused by Defendants’ unlawful cash balance terms and breaches of fiduciary duty, and that the Court award the payment of “additional benefits” to
33

Case 3:04-cv-01638-JCH Document 68-1 Filed 09/19/2005 Page 41 of 44
compensate for these alleged participant losses. Pr. for Relief ¶¶ 4, 5. Plaintiff’s request for monetary relief is not one that would be paid to the Plan as a whole. Rather the award of benefits that Plaintiff seeks would be paid out to the class members individually and according to those losses that each class member specifically has suffered. Determining any benefits to be awarded to the individual class members would involve individualized and complex factual determinations regarding each class members’ benefit accrual and rate of future benefit accrual under both the Cash Balance Formula and the Traditional Formulas. Such determinations are not appropriate under Rule 23(b)(2), and class certification under this provision cannot be granted. III. THE CLASS CANNOT INCLUDE FORMER PARTICIPANTS WHO RECEIVED
LUMP-SUM PAYMENTS BECAUSE THEY HAVE NO RIGHT TO DECLARATORY OR INJUNCTIVE RELIEF. Plaintiff’s class definition purports to include “former . . . Fleet employees” who were employed on and for some period after December 31, 1996. This includes persons who have terminated their employment with Fleet and accepted a lump-sum payment of all pension benefits, thereby severing their connection with the Plan. There are over 10,000 former Cash Balance Participants fitting that description in the putative class.13 Ex. A, ¶ 5. Plaintiff seeks certification under 23(b)(2), and says this is proper because she seeks only declaratory or injunctive relief. The Prayer for Relief in the Complaint, while not a model of clarity, seems to suggest this (b)(2) designation. It seeks various declarations and injunctions, followed by a catchall claim for “other equitable and remedial relief.” Pr. for Relief ¶¶ 4, 5, 9, 10.
13 To the extent that any of these individuals has subsequently been re-hired, such individuals may have a different status with respect to this issue in the event they became participants again.
34

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Only “a participant, beneficiary, or fiduciary” can pursue a claim for equitable relief under ERISA. 29 U.S.C. § 1132(a)(3). A former participant is a “participant” for purposes of a legal challenge only if still “eligible to receive a benefit of any type from an employee benefit plan.” 29 U.S.C. § 1002(7).14 A former participant – even one who suffered from an alleged ERISA violation – cannot pursue relief for that claimed violation if their participant status terminated prior to filing. Nechis v. Oxford Health Plans, Inc., No. 04-5100-CV, 2005 WL 2018630, at *4 (2d Cir. Aug. 24, 2005). This is especially true here, as Plaintiff seeks only declaratory or injunctive relief; remedies that are by their very nature prospective only. See Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993) (“[f]or a plaintiff to have standing to request injunctive or declaratory relief, the injury alleged must be capable of being redressed through injunctive relief at that moment”); see also Impress Communications v. Unumprovident Corp., 335 F. Supp. 2d 1053, 1060 (C.D. Cal. 2003) (former participants in disability plan had no claim under ERISA to seek injunction because they “would obtain no relief” thereby).
There is no “act or acts” to be restrained or compelled by Defendants as to the 10,000plus who have taken a lump-sum payment. FED. R. CIV. P. 65(d). Nor is there any existing legal or contractual relationship to give rise to disputed rights ripe for declaratory relief. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Int’l Wire Group, Inc., No. 02 Civ. 10338, 2003 WL 21277114, at *5 (S.D.N.Y. June 2, 2003) (because “declaratory relief is intended to operate prospectively,” it is not available “where only past acts are involved”). Remedies that act only prospectively cannot address parties who have ceased to have any legal relationship. Because former Cash Balance Participants who have accepted lump-sum benefits are not “participants,” and because
14 An ex-employee can pursue a claim for benefits – as opposed to injunctive or declaratory relief – if he or she has “‘a colorable claim’ to vested benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18 (1989). No claim of that sort is being asserted here.
35

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the relief sought can have prospective applicability only, the former participants are not members of the class.

CONCLUSION

For each and all of the foregoing reasons, Defendants respectfully request that Plaintiff’s

Motion for Class Certification be denied.

Dated: September 19, 2005 Respectf

ully submitted,

DEFENDANTS CORPORATION FINANCIAL

FLEETBOSTON FINANCIAL AND FLEETBOSTON
PENSION PLAN

By: /s/ Scott E. Gross

_

One

of their Attorneys

George J. Kelly, Jr. ct06888 SIEGEL, O'CONNOR, O'DONNELL & BECK 150 Trumbull St. Hartford, CT 06103 gkelly@siegeloconnor.com SIDLEY
Em

William F. Conlon, ct26510 Anne E. Rea, ct26513 Erin Kelly, phv0041 Scott E. Gross, ct26514 Julie A. Koca, ct26511 Brian P. Guarraci, ct26512
AUSTIN BROWN & WOOD LLP Bank One Plaza 10 S. Dearborn Street Chicago, IL 60603 (312) 853-7000
ail: sgross@sidley.com

36

 
 Case 3:04-cv-01638-JCH Document 280 Filed 10/15/08 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

United States District Court District of Connecticut
FILED AT BRIDGEPORT
o O~~~

DONNA C. RICHARDS,
Plaintiff,
vs.
FLEETBOSTON FINANCIAL CORP., FLEETBOSTON FINANCIAL PENSION PLAN, and BANK OF AMERICA CORPORATION,
Defendants.

) )
) ) ) ) Case No. 3:04-CV-1638 (JCH)
)
)
) )
) ) )

FINAL ORDER AND JUDGMENT This matter, having come to the Court for determination whether the Settlement Agreement executed on April 16, 2008 by Plaintiff, on behalf of the Class, and Defendants, should be approved as fair, reasonable and adequate, the Court having considered the submissions of the Parties, and the evidence and arguments at the Fairness Hearing, it is HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. Capitalized terms used in this Final Order and Judgment have the meaning ascribed to those terms in the Settlement Agreement, which is attached hereto. 2. This Court has jurisdiction over the subject matter of this action, the Parties and the Class. 3. This Court finds that the Class, as certified in this Court's Preliminary Approval Order of April 24, 2008 satisfies all requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(1 )(A) and (b)(2). Specifically, this Court finds that the Class is so numerous that joinder of all members is impracticable, that there are common questions of law and fact, that the claims

Case 3:04-cv-01638-JCH Document 280 Filed 10/15/08 Page 2 of 3
of Plaintiff are typical of the claims of the Class and that Plaintiff and Class Counsel have fairly and adequately protected the interests of the Class. This Court further finds that the prosecution of separate actions by the Class would create a risk ofinconsistent or varying adjudication with respect to individual members of the Class which would establish incompatible standards of conduct for Defendants and that Defendants have acted or refused to act on grounds generally applicable to the Class, making final injunctive or declaratory relief with respect to the Class appropriate.
4. This Court reaffirms its order appointing Plaintiff as representative of the Class and appointing Class Counsel to that role.
S. The Notice was properly mailed, as established by the affidavit of Eric W. Bishop dated October I, 2008. This Court finds that the Notice fairly and adequately informed the Class of the Settlement and their rights and was the best notice practicable, and fully complied with Federal Rule of Civil Procedure 23 and due process. The costs of Notice and the expenses of settlement administration shall be paid by the Plan as an administrative expense.
6. The Settlement Agreement is approved as fair, reasonable and ,adequate and in the best interests of the Class, and the Parties are directed to implement its terms. Upon the Effective Date, by virtue of this Final Order and Judgment, the Released Parties shall be released from the Released Claims, and the Class shall be bound by a covenant not to sue the Released Parties in connection with the Released Claims. Each member of the Class shall be entitled to (a) his or her Settlement Amount as calculated for the Class member and set forth on Schedule A hereto and, (b) where applicable, his or her Rule of 85 Guarantee or Rule of 85 Early Retirement Guarantee, calculated pursuant to the applicable early retirement factors, as set forth on Schedule B, and utilizing the applicable factors from Schedules C, D and E.
2

Case 3:04-cv-01638-JCH Document 280 Filed 10/15/08 Page 3 of 3

7. The Class is pennanentiy enjoined from instituting, asserting or prosecuting, in any capacity, any action or proceeding arising out of or related to the Released Claims against any Released Party.
8. This Action is dismissed with prejudice and without costs, except as provided in a separate order on Class Counsel's Fee and Expense Application.
9. This Court is awarding, by separate order of this date, fees and expenses to Class Counsel and an incentive award to Plaintiff, each of which shall be paid by the Plan as an administrative expense.
10. The Settlement Agreement is not, and shall not be construed to be, an admission of liability or wrongdoing by any Defendant, and this Court makes no such finding or detennination. Neither the Settlement Agreement nor any ofthe proceedings in connection therewith shall be offered or received in evidence for any purpose, except that Defendants may submit this Final Order and Judgment to support a claim of res judicata, collateral estoppel, release or any theory of claim or issue preclusion, or they may submit this Final Order and Judgment in any action to enforce the injunctive provisions of paragraph 7.
11. Without affecting the finality of this Judgment, this Court retains jurisdiction over the administration, interpretation, effectuation and enforcement of the Settlement.

-_ ..... _--..,..---

Date: Dc-k II:J..e.r /5, Zo()~

ENTE.~'y

-

181
---

Janet O.
------

Han. USDJ
--------

-

-

-

-

-

3

 
 Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS,
Plaintiff, v.
FLEETBOSTON FINANCIAL CORP. and the FLEETBOSTON FINANCIAL PENSION PLAN,
Defendants.

) ) ) CASE NO.: 3:04-CV-1638 (JCH) ) ) ) ) ) MARCH 28, 2005 ) ) )

REPLY BRIEF OF DEFENDANTS FLEETBOSTON FINANCIAL CORPORATION AND FLEETBOSTON FINANCIAL
PENSION PLAN IN SUPPORT OF THEIR MOTION TO DISMISS

Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 2 of 26
TABLE OF CONTENTS I. COUNT I FAILS TO STATE A CLAIM UNDER ERISA § 204(b)(1)(H)........................3
A. Plaintiff Has Presented No Basis To Reject The Overwhelming Case Law And Legislative History Holding That ERISA § 204(b)(1)(H) Does Not Apply Before Normal Retirement Age. ...................................................................3
B. Plaintiff’s Reliance On Other ERISA Provisions And Abandoned Regulations Is Misplaced.........................................................................................8
II. COUNT I FAILS TO STATE A CLAIM FOR THE ADDITIONAL REASON THAT THE FLEETBOSTON PLAN’S CASH BALANCE BENEFIT FORMULA DOES NOT DISCRIMINATE ON THE BASIS OF AGE......................................................................9 A. Esden Does Not Support Plaintiff’s Position...........................................................9 B. This Court Should Reject The Cooper Decision And Follow The WellReasoned Decisions Of The Courts In Eaton And Tootle. ....................................10 C. Plaintiff’s Position Makes No Sense When Applied To The Rate Of Benefit Accrual For Plan Participants Beyond Normal Retirement Age. .............12 D. The Other ERISA Provisions Plaintiff Cites Do Not Support Her Position..........13
III. COUNTS II THROUGH VI FAIL TO STATE A CLAIM...............................................14 A. Counts II Through VI Must Be Dismissed Because Plaintiff Has Failed To Allege Exhaustion Of Her Administrative Remedies............................................16 B. Counts IV-V Fail To Plead Prejudice or Likely Harm And Should be Dismissed. ..............................................................................................................17 C. Count VI Should Be Dismissed Because Plaintiff Lacks Standing To Sue On Behalf Of Retired Employees And Has Not Alleged Detrimental Reliance..................................................................................................................18 D. Plaintiff’s ERISA § 502(a)(3) Claims For Equitable Relief In Counts II, IV-V Fail................................................................................................................19
IV. PLAINTIFF’S ERISA § 502(a)(1)(B) CLAIMS FOR BENEFITS MAY NOT BE BROUGHT AGAINST THE CORPORATE EMPLOYER. ............................................19
i

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TABLE OF AUTHORITIES

CASES

Page Nos.

Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003) ......................................................................... 17

Brody v. Enhance Reinsurance Co., No. 00 Civ. 9660, 2003 U.S. Dist. LEXIS 3785 (S.D.N.Y. March 17, 2003) ............................. 15

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................. 7

Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir. 2003) ..................................... 17

Cooper v. IBM Personal Pension Plan, 274 F. Supp. 2d 1010 (S.D. Ill. 2003) ................. 2, 10-11

Corcoran v. Bell Atlantic, No. Civ. A 97-510, 1997 WL 602859 (E.D. Pa. Sept. 23, 1997), aff’d, 159 F.3d 1350 (3d Cir. 1998) ............................................................................................. 15

Crocco v. Xerox Corp., 137 F.3d 105 (2d Cir. 1998) .................................................................. 20

DeVito v. Local 553 Pension Fund, No. 02 Civ. 4686, 2005 WL 167590 (S.D.N.Y. Jan. 26, 2005) ................................................... 17

Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76 (2d Cir. 2001) ................................ 19

Disabled in Action of Metropolitan New York v. Hammons, 202 F. 3d 110 (2d Cir. 2000) .......................................................................................................... 7

Eaton v. Onan Corp., 117 F. Supp. 2d 812 (S.D. Ind. 2000) ........................................ 1-4, 7, 9-13

Engers v. AT&T Corp., No. 98-3660, 2001 U.S. Dist. LEXIS 25889 (D.N.J. June 6, 2001) ................................. 1, 3-4, 8

Esden v. Bank of Boston, 229 F. 3d 154 (2d Cir. 2000) ................................................ 2, 9-10, 15

Flanigan v. General Electric Co., 93 F. Supp. 2d 236 (D. Conn. 2000) ...................................... 17

Gerosa v. Savasta & Co., 329 F.3d 317 (2d Cir. 2003) ............................................................... 19

Glaxo Operations v. Quigg, 894 F.2d 392 (Fed. Cir. 1990) .......................................................... 7

Greenhalgh v. Putnam Savings Bank, 140 F. 3d 427 (2d Cir. 1998) ......................................... 2-4

Greifenberger v. Hartford Life Ins. Co., No. 03 Civ. 3238, 2003 WL 22990093 (S.D.N.Y. Dec. 18, 2003) .............................................. 16

Guiles v. Sea-Land Servs., 820 F. Supp. 744 (S.D.N.Y. 1993) ..................................................... 7

ii

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Hoffman v. Empire Blue Cross and Blue Shield, No. 96 Civ. 5448, 1999 WL 782518 (S.D.N.Y. Sept. 30, 1999) ........................................... 16-17 In re The Caldor Corp., 303 F.3d 161 (2d Cir. 2002) .................................................................... 7 Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588 (2d Cir. 1993) .......................... 17 Kross v. Western Electric Co., Inc., 701 F.2d 1238 (7th Cir. 1983) ............................................. 17 Leonelli v. Pennwalt Corp., 887 F.2d 1195 (2d Cir. 1989) ......................................................... 16 Levin v. Raynor, No. 03 Civ. 4697, 2004 WL 2937825 (S.D.N.Y. Dec. 17, 2004) .................... 18 Lyons v. Georgia Pacific Corp., 221 F.3d 1235 (11th Cir. 2000) ............................................... 15 Mason v. Continental Group, Inc., 763 F.2d 1219 (11th Cir. 1985) ............................................. 17 Mullins v. Pfizer, Inc., 23 F.3d 663 (2d. Cir. 1994) .................................................................... 18 Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786 (7th Cir. 1996) ........................................ 18 Railway Labor Executives Ass’n v. Interstate Commerce Comm’n, 735 F. 2d 691 (2d Cir. 1984) .......................................................................................................... 7 The Ravenswood Group v. Fairmont Assoc., 736 F. Supp. 1285 (S.D.N.Y. 1990) ...................... 9 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ................................................................... 18 Tedori v. United States, 211 F. 3d 488 (9th Cir. 2000) ................................................................. 9 Tootle v. ARINC, Inc., 222 F.R.D. 88 (D. Md. 2004) ...................................................... 1-4, 8-13
STATUTES & REGLATIONS ERISA § 204(b)(1)(A)-(C), 29 U.S.C. § 1054(b)(1)(A)-(C) ...................................... 5, 11, 13, 15 ERISA § 204(b)(1)(H), 29 U.S.C. § 1054(b)(1)(H) ............................................................. passim ERISA § 204(h), 29 U.S.C. § 1054(h) .................................................................................. 13, 17 ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) ......................................................... 16, 19-20 ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) .......................................................................... 17, 19 Pub. L. No. 99-272, 100 Stat. 82 (1986) ...................................................................................... 16 Pub. L. No. 107-16, 115 Stat. 38 (2001) ...................................................................................... 16
iii

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26 C.F.R. § 1.401(a)(4)-8(c) ........................................................................................................ 12 26 C.F.R. § 1.401(a)(4)-13(c) ...................................................................................................... 15 26 C.F.R. § 1.401(a)(17)-1(e)(5), Example 1 .............................................................................. 15 26 C.F.R. § 1.411(d)-6T, Q&A-10, Q&A-5 ................................................................................ 16 52 Fed. Reg. 45,360 (Nov. 27, 1987) ............................................................................................. 9 56 Fed. Reg. 47,524 (Sept. 19, 1991) .......................................................................................... 14 68 Fed. Reg. 17,277 (Q&A 6(b) and 8) (Apr. 9, 2003) (codified at 26 C.F.R. § 54.4980F-1) ... 14 Treas. Reg. §§ 1.411(b)-1 ............................................................................................................... 5 H.R. Conf. Rep. No. 99-1012 (1986), reprinted in 1986 U.S.C.C.A.N. 3868 ..................... 5-7, 12 S. Rep. No. 98-575 (1984), reprinted in 1984 U.S.C.C.A.N. 2547 ............................................. 15 132 Cong. Rec. H 11437 (daily ed. Oct. 17, 1986) .................................................................... 5, 7 Rev. Rul. 81-12, 1981-1 C.B. 228 ............................................................................................... 15 IRS Announcement 2003-22, I.R.B. 2003-17 (Apr. 7, 2003) ........................................................ 9 IRS Announcement 2004-57, I.R.B. 2004-27 (June 15, 2004) ...................................................... 9
OTHER CITATIONS Proposed Treas. Reg. §1.411(b)-2(b)(iii), 67 Fed. Reg. 76,123 (Dec. 11, 2002) ........................ 11 Shea, Francese, & Newman, Age Discrimination in Cash Balance Plans: Another View, 19 VA. TAX REV. 763, 768-773 (2000) ........................................................................................ 12
iv

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Plaintiff’s contention that the FleetBoston Plan’s cash balance benefit formula violates ERISA § 204(b)(1)(H)’s prohibition against age discrimination does not state a claim for two independent reasons. First, § 204(b)(1)(H) protects only participants who work beyond normal retirement age. The legislative history makes clear that § 204(b)(1)(H) applies only to such participants and that younger participants are already protected by ERISA’s existing benefit accrual rules. Three courts have also so concluded. See Eaton v. Onan Corp., 117 F. Supp. 2d 812, 832-33 (S.D. Ind. 2000); Tootle v. ARINC, Inc., 222 F.R.D. 88, 94 (D. Md. 2004); Engers v. AT&T Corp., No. 98-3660, 2001 U.S. Dist. LEXIS 25889, at *10 (D.N.J. June 6, 2001).
Second, even if § 204(b)(1)(H) did apply to participants who had not reached normal retirement age, the FleetBoston Plan’s cash balance benefit formula is not age discriminatory as a matter of law. Ms. Richards does not dispute that the Plan actually increases the pay credits to an employee’s cash balance account based on additional years of age and service (Cmplt. ¶ 25), and that the rate at which interest is credited to cash balance accounts is the same for all participants, regardless of age. Ms. Richards nevertheless claims that because an amount credited to a younger worker has more years to earn interest before the worker’s retirement than an amount credited to an older worker due to the time value of money, the Plan discriminates against the older worker. Both the Tootle and Eaton courts, however, rejected that theory regarding the interpretation of the phrase “rate of benefit accrual” in § 204(b)(1)(H).
Instead of addressing that case law and compelling legislative history, Ms. Richards attempts to deflect attention from it. She devotes substantial portions of her brief (“Pl. Br.”) to mischaracterizing the FleetBoston Plan and cash balance plans generally, as well as the reasons that companies adopt such plans. For example, she ignores the fact that the FleetBoston Plan favors older employees by increasing their pay credits. Ms. Richards also impugns employers’ motives in adopting cash balance plans, ignoring the many benefits to participants that contributed to FleetBoston’s and other employers’ decisions to adopt such plans.
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Even Ms. Richards’ attempts to address the substance of Defendants’ arguments are simply distractions. Because she cannot refute the authority that holds that § 204(b)(1)(H) applies only to participants who have reached normal retirement age, she misstates the holding of Greenhalgh v. Putnam Savings Bank, 140 F. 3d 427 (2d Cir. 1998), to create the false impression that the Second Circuit would support her position. The Second Circuit, however, has not addressed the application of § 204(b)(1)(H) to participants under normal retirement age, and Ms. Richard’s prediction as to how the Second Circuit might in the future rule on that issue is simply unfounded speculation. Ms. Richards also attempts to dismiss the clear expressions of legislative intent as a “vestige,” even though the Conference Report, issued four days before the statute was enacted, clearly supports Defendants’ position. Ms. Richards’ other arguments, such as her reliance on dormant, proposed regulations, cannot save her age discrimination claim.
In addition, the Tootle and Eaton courts provided numerous reasons why, even if § 204(b)(1)(H) were to apply prior to normal retirement age, Ms. Richards’ “time value of money” age discrimination theory does not state a claim. Rather than respond, Ms. Richards again distorts Second Circuit authority. Esden v. Bank of Boston, 229 F. 3d 154 (2d Cir. 2000), does not address § 204(b)(1)(H) and thus in no way indicates, as she argues, that the Second Circuit would reject the later-decided Tootle and Eaton decisions. Because the only decision that supports Ms. Richard’s position, Cooper v. IBM Personal Pension Plan, 274 F. Supp. 2d 1010 (S.D. Ill. 2003), was incorrectly decided and is contrary to the reasoning of Eaton and Tootle, this Court should follow those cases and reject the holding in Cooper.
Finally, Ms. Richards attempts to obscure the fatal pleading defects in her complaint by arguing the merits of Counts II through VI, even though the merits of those claims are beyond the scope of Defendants’ motion. Not only are Ms. Richards’ assertions regarding those claims demonstrably wrong, they cannot obscure the fact that she has not pleaded exhaustion of her administrative remedies, she has not pleaded she was harmed by the form of notice she received,
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and she is not entitled to equitable relief. The complaint should be dismissed in its entirety. I. COUNT I FAILS TO STATE A CLAIM UNDER ERISA § 204(b)(1)(H).
A. Plaintiff Has Presented No Basis To Reject The Overwhelming Case Law And Legislative History Holding That ERISA § 204(b)(1)(H) Does Not Apply Before Normal Retirement Age.
Three courts have already held that § 204(b)(1)(H) does not apply before normal retirement age. Tootle, 222 F.R.D. at 93; Engers, 2001 U.S. Dist. LEXIS 25889, at *10; Eaton, 117 F. Supp. 2d at 826-29. Ms. Richards does not even attempt to refute the compelling reasoning of these courts that have ruled directly on the issue. Instead, Ms. Richards relies on Greenhalgh, supra, even though the Second Circuit never ruled in that case whether § 204(b)(1)(H) applies before normal retirement age. In Greenhalgh, the defendant retroactively amended its plan to adopt a new benefit formula. Plaintiffs challenged the use of the new formula to calculate their benefits. The statute set forth a “remedial amendment period” and the “single question” presented for review was whether the amended plan was in “operational compliance,” such that the new benefit formula could be used to calculate plaintiffs’ benefits. 140 F.3d at 428. The district court and Second Circuit both ruled for defendants. Id. at 432-33.
Ignoring the limited scope of the holding in Greenhalgh, Ms. Richards focuses on the benefit formula prior to the retroactive amendment, which excluded compensation earned between age 60-65 and argues that this prior formula shows that § 204(b)(1)(H) applies before normal retirement age. However, neither the Second Circuit nor the district court held that ERISA § 204(b)(1)(H) applies before normal retirement age. Because defendants had properly amended the benefit formula, and because the parties did not dispute that the new formula fully complied with § 204(b)(1)(H), the courts never needed to address whether the old formula violated § 204(b)(1)(H). Ms. Richards wholly distorts Greenhalgh when she states that the district court and Second Circuit “found an ‘age-based distinction in violation of the Amended
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Act.’” Pl. Br. at 12 (emphasis added). Neither court made any such finding.1 The only ruling either court made was on whether the retroactive amendment could be applied in calculating plaintiffs’ benefits, and both courts held that it could.
Thus, Ms. Richards has no basis to argue that Greenhalgh shows that the Second Circuit “would likely reject” the Eaton, Tootle and Engers decisions. Pl. Br. at 12. The Second Circuit in Greenhalgh did not address any of the compelling reasons that support these decisions. In addition, because Greenhalgh was decided years before Eaton, Tootle and Engers, the Second Circuit did not have the benefit of these courts’ careful review of the legislative history supporting their holding that § 204(b)(1)(H) does not apply before normal retirement age. In short, Greenhalgh never assessed the meaning or reach of the “rate of benefit accrual” under § 204(b)(1)(H), and Ms. Richard’s suggestion that the Second Circuit would reject Eaton, Tootle and Engers is unsupported speculation.
Next, Ms. Richards raises a false alarm by contending that, were this Court to agree with Eaton and the other courts, participants who have not reached normal retirement age would be unprotected from age discrimination. As Eaton properly noted, however, “this interpretation [that § 204(b)(1)(H) protections begin at normal retirement age] does not leave employees between the ages of 40 and 65 unprotected from age discrimination. The more general terms of the ADEA continue to bar intentional age discrimination, and all the other complex benefit accrual rules for defined benefit plans continue to apply.” 117 F. Supp. 2d at 829.
As the Eaton court recognized, prior to the enactment of § 204(b)(1)(H), ERISA already had comprehensive requirements that protect the benefit accrual of participants before normal
1 Ms. Richards misreads these decisions when she quotes excerpts out of context. The district court merely suggested that the prior benefit formula “could” have been construed as a violation. 140 F.3d at 429. The Second Circuit did not agree or disagree with the district court on that point, but merely noted that the parties did not dispute this. Id.
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retirement age. For example, the “anti-backloading” rules of ERISA § 204(b)(1)(A)-(C) set forth
strict rules on how participants accrue benefits up to normal retirement age, but do not apply to
benefit accruals at or after normal retirement age. See Treas. Reg. §§ 1.411(b)-1(b)(1)(i),
(b)(2)(i), (b)(3)(ii)(A) (1977). When Congress enacted § 204(b)(1)(H) and its companion ADEA
amendment (§ 4(i)), it carefully considered this statutory framework and recognized that
participants were already adequately protected before normal retirement age and thus did not
need the new protections of § 204(b)(1)(H):
Under the conference agreement, the rules preventing the reduction or cessation of benefit accruals on account of attainment of any age are not intended to apply in cases in which a plan satisfies the normal benefit accrual requirements for employees who have not attained normal retirement age. Under the benefit accrual rules, the rate of benefit accrual for an employee may vary depending on the number of years of service an employee may complete between date of hire and the attainment of normal retirement age. H.R. Conf. Rep. No. 99-1012, at 379 (1986), reprinted in 1986 U.S.C.C.A.N. 3868, 4024
(emphasis added). Congress then gave an example to demonstrate this very point: 45- and 55-
year old participants are not covered by ERISA § 204(b)(1)(H), and need not be covered because
one of the anti-backloading rules (the so-called “fractional benefit accrual rule”) provides
adequate protections to such participants. Id.2 The statements of Representatives only four days
before the enactment of ERISA § 204(b)(1)(H) further confirm this interpretation:
The Conference Report on H.R. 5300 and the Statement of Managers makes it clear that, with respect to benefit accruals under normal retirement age, pension plans which conform with the existing benefit accrual rules under ERISA and the Internal Revenue Code are considered to meet the new requirements. This framework provides a safe harbor for prenormal retirement age accruals for all covered pension plans . . . . 132 Cong. Rec. H 11437 (daily ed. Oct. 17, 1986).3 In short, Congress concluded that existing
2 Ms. Richards completely misinterprets this example and incorrectly argues that it somehow shows that Congress intended that § 204(b)(1)(H) apply before normal retirement age. Pl. Br. at 16-17. In fact, the context in which the example was offered by the Conference legislators clearly demonstrates that Congress intended that the new provision apply only when participants reach normal retirement age. 3 The legislative history cited herein and not attached to Defendants’ opening brief, including the relevant portions of the Congressional Record and Senate Report No. 98-575 (see p. 15, infra), is included in the accompanying document entitled “Attachment – Additional Legislative History”.
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benefit accrual laws adequately protected participants before normal retirement age and it enacted § 204(b)(1)(H) solely to protect participants once they attained normal retirement age.
In another misinterpretation of the legislative history, Ms. Richards isolates the words “entire extent” from the following language in the OBRA 1986 Conference Report:
Age Discrimination in Employment Act. It is the intention of the conferees, in adopting amendments to the ADEA (new sec. 4(i)), that the requirements contained in section 4(i) related to an employee's rights to benefit accruals with respect to an employee benefit plan (as defined in sec. 3(2) of ERISA) shall constitute the entire extent to which ADEA affects such benefit accrual and contribution matters with respect to such plans on or after the effective date of such provisions (as described in the provision). H.R. Conf. Rep. No. 99-1012, at 382 (1986), reprinted in 1986 U.S.C.C.A.N. 3868, 4027 (emphasis added). Ms. Richards’ assertion that this language extended OBRA 1986’s protections to participants as early as age 40, when the ADEA’s other protections against age discrimination generally begin to apply, is clearly wrong. Instead, the excerpt on its face clearly provides that the new Section 4(i) in the ADEA “shall constitute the entire extent” to which the ADEA affects benefit accrual. Because the “rate of benefit accrual” protections of ERISA § 204(b)(1)(H) and ADEA § 4(i) are intended to begin only at normal retirement age, the above excerpt clarifies that Congress did not intend to extend the ADEA’s general protections that begin at age 40 to benefit accruals under ERISA-covered plans. This conclusion is entirely consistent with the Eaton, Tootle and Engers holdings that OBRA 1986 applies only when participants reach normal retirement age – even though the ADEA generally applies beginning at age 40. Indeed, Ms. Richards’ position that “attainment of any age” means any age whatsoever would essentially mandate a finding that participants are protected by § 204(b)(1)(H) long before they reach age 40, even as early as in their twenties. This, of course, would go way beyond the “entire extent” to which the ADEA protects against age discrimination in any context.
Ms. Richards also falsely labels the legislative history a mere “vestige” of an earlier intent that Congress supposedly abandoned. Pl. Br. at 15. However, the Conference Report, as
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well as the statements of the legislators clearly indicating Congress’ intent that the provision apply once a participant reaches normal retirement age, were issued on October 17, 1986, only four days before OBRA 1986 was enacted. H.R. Conf. Rep. No. 99-1012, at 374-382 (1986), reprinted in 1986 U.S.C.C.A.N 3868, 4019-4027; 132 Cong. Rec. H 11437 (daily ed. Oct. 17, 1986); see also Eaton, 117 F. Supp. 2d at 829 (discussing legislative history). Given their contemporaneous timing, it is no surprise that the Second Circuit considers conference reports a reliable means of understanding congressional intent in enacting legislation. Disabled in Action of Metropolitan New York v. Hammons, 202 F. 3d 110, 124 (2d Cir. 2000) (quoting Railway Labor Executives Ass’n v. Interstate Commerce Comm’n, 735 F. 2d 691, 701 (2d Cir. 1984)). In light of this contemporaneous legislative history, the fact that Congress expressly titled the legislation “Benefit Accrual Beyond Normal Retirement Age” in the ERISA section and “Continued Accrual Beyond Normal Retirement Age” in the Internal Revenue Code section cannot be deemed, as Ms. Richards portrays it, a mere “vestige.”
Ms. Richards is wrong when she asserts that this Court should ignore the overwhelming weight of the legislative history documenting that ERISA § 204(b)(1)(H) does not apply before normal retirement age. As the United States Supreme Court noted in Buckley v. Valeo, 424 U.S. 1, 51 n.57 (1976), a court should not adopt an interpretation of a statute where the conference report “expressly provides for a contrary interpretation.” Thus, courts regularly look to legislative history to interpret statutory language that might appear unambiguous on its face. See, e.g., In re The Caldor Corp., 303 F.3d 161, 171 (2d Cir. 2002) (although finding the text of the statute clear on its face, court analyzed legislative history to assure that there was no “tension” between the statute and its legislative history); Guiles v. Sea-Land Servs., 820 F. Supp. 744, 751 (S.D.N.Y. 1993) (court looked to legislative history to determine if there was a legislative intent contrary to clear statutory language); Glaxo Operations v. Quigg, 894 F.2d 392, 395 (Fed. Cir. 1990). In this case, reading “any age” in § 204(b)(1)(H) as any age at and after
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normal retirement age, as did the Eaton, Tootle and Engers courts, gives full recognition to Congress’s intent that participants who work past normal retirement age, no matter how long, continue to accrue benefits. That reading of the statute is both a reasonable application of the statutory language and fully consistent with and supported by the legislative history.
B. Plaintiff’s Reliance On Other ERISA Provisions And Abandoned Regulations Is Misplaced.
Ms. Richards also erroneously interprets ERISA § 204(b)(1)(H)(iii) and (v) and cites proposed regulations that have been rescinded. Section 204(b)(1)(H)(iii) does not support Ms. Richards’ position that § 204(b)(1)(H) applies before normal retirement age. Pl. Br. at 14-15. Rather, it simply provides that if a participant does not retire in the year he or she attains normal retirement age, the benefit must be increased to reflect the delay in payment. Subparagraph (iii) does not state or even suggest that § 204(b)(1)(H) applies before normal retirement age.
Likewise, Ms. Richards incorrectly asserts that the reference in § 204(b)(1)(H)(v) to “early retirement benefits” necessarily means that § 204(b)(1)(H) applies before normal retirement age. Pl. Br. at 14. However, subsection (v) is necessary to address the conflict that would exist if early retirement benefits were counted in measuring the rate of benefit accrual at and beyond normal retirement age. Defined benefit plans often provide an enhanced benefit to individuals who retire before normal retirement age. This enhanced benefit (or “subsidy”) is eliminated once the participant reaches normal retirement age. Viewed in terms of “rate of benefit accrual,” as § 204(b)(1)(H) requires, a participant’s benefit accrual will decrease at and after normal retirement age due to the loss of the subsidy that had been in place before normal retirement age. Subparagraph (v) provides that this reduction in benefit accrual at normal retirement age (the age that § 204(b)(1)(H)’s protections begin) does not violate § 204(b)(1)(H).
Finally, Ms. Richards’ attempt to rely on various proposed regulations that were never adopted or were rescinded should be rejected. Pl. Br. at 13. Courts do not afford any weight to
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proposed regulations. Tedori v. United States, 211 F. 3d 488, 492 (9th Cir. 2000) (“proposed regulations carry no more weight than a position advanced on a brief”); The Ravenswood Group v. Fairmont Assoc., 736 F. Supp. 1285, 1288 (S.D.N.Y. 1990) (affording no credence to proposed regulations because they are “prospective only and are subject to change in the rulemaking process”). The proposed regulations published by the EEOC in 1987 and the IRS in 1988 that Ms. Richards cites have never been finalized, but instead have sat dormant for over 17 years. Furthermore, the 2002 proposed IRS regulations she cites have been rescinded. See IRS Announcement 2003-22, I.R.B. 2003-17 (Apr. 7, 2003) and IRS Announcement 2004-57, I.R.B. 2004-27 (June 15, 2004). None of those proposed and then abandoned regulations provides any authority for Ms. Richards’ position here.4
II. COUNT I FAILS TO STATE A CLAIM FOR THE ADDITIONAL REASON THAT THE FLEETBOSTON PLAN’S CASH BALANCE BENEFIT FORMULA DOES NOT DISCRIMINATE ON THE BASIS OF AGE. Even if ERISA § 204(b)(1)(H) were applied before normal retirement age, Ms. Richards’
theory of age discrimination fails on the merits. Ms. Richards does not even attempt to refute the numerous compelling rationales that the Eaton and Tootle courts set forth in rejecting the contention that an annuity commencing at normal retirement age is the only proper measure of “rate of benefit accrual” under § 204(b)(1)(H). Nor does Ms. Richards address the additional reasons that reinforce the Eaton and Tootle holdings. See Defendants’ opening brief (“Def. Memo.”) at 21-25. Instead, she offers a series of unsupported arguments.
A. Esden Does Not Support Plaintiff’s Position. Ms. Richards’ assertion that the holding in Esden, 229 F.3d 154, shows that the Second
4 Even were these regulations to be given weight, Ms. Richards can hardly claim that they show that the EEOC and IRS support her position. For example, in its 1987 proposed regulations, the EEOC stated “OBRA added section 4(i)(1)(A) to the ADEA [the section comparable to ERISA § 204(b)(1)(H)] to provide rules for continued accruals under defined benefit plans beyond normal retirement age. . . .” 52 Fed. Reg. 45,360, 45,361 (Nov. 27, 1987) (emphasis added).
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Circuit will reject Eaton and Tootle and adopt her position stretches Esden far beyond its holding and logic. In Esden, the Second Circuit dealt with a particular issue involving how the cash balance plan in that case calculated the dollar amount paid to a participant who elected to take a lump-sum distribution before normal retirement age. Ms. Richards does not and cannot claim that the FleetBoston Plan has that same issue. Moreover, the Second Circuit did not address § 204(b)(1)(H) in Esden, nor did it address the concept of “rate of benefit accrual” at all. The most that the Second Circuit said that is applicable here is not in controversy – cash balance plans are defined benefit plans that must comply with the applicable ERISA provisions. 229 F.3d at 158. Defendants do not dispute that the FleetBoston Plan must comply with § 204(b)(1)(H). But that ignores the question at issue, which is how to measure “rate of benefit accrual.” Not only did the Second Circuit provide no guidance on that issue in Esden, it certainly did not call into question the compelling rationales set forth in Eaton and Tootle supporting Defendants’ position.
B. This Court Should Reject The Cooper Decision And Follow The Well-Reasoned Decisions Of The Courts In Eaton And Tootle.
The only decision that supports Ms. Richards’ position is Cooper, 274 F. Supp. 2d 1010. That decision is distinguishable from this case and its holding and rationale should not be followed. Def. Memo. at 25-27. The Cooper court did not even address the detailed reasoning of the court in Eaton. Nor is there any evidence that Congress intended that “rate of benefit accrual” be measured only in terms of an annuity payable at normal retirement age. Rather, the Cooper court’s decision to equate the term “rate of benefit accrual” with the defined term “accrued benefit” was based solely on the court’s analysis of proper grammar and the erroneous conclusion that there is no grammatically correct way to refer to the rate of change in a participant’s accrued benefit other than by using the term “rate of benefit accrual.” However, as Defendants demonstrated (and Ms. Richards does not dispute), if Congress had actually intended to refer to a participant’s accrued benefit, Congress easily could have used the term “accrued
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benefit” in ERISA § 204(b)(1)(H) without running afoul of proper grammar. See, e.g., Def. Memo. at 27. Rather than merely to avoid “clumsy” grammar, Cooper, 274 F. Supp. 2d at 1016, Congress did not use the term “accrued benefit” in § 204(b)(1)(H) because it did not intend to refer to a participant’s accrued benefit. In other statutory provisions where Congress did intend to refer to a participant’s accrued benefit, it expressly did so. See, e.g., ERISA § 204(b)(1)(B).
Indeed, there are strong reasons supporting Congress’ decision not to equate “rate of benefit accrual” under § 204(b)(1)(H) solely with the fixed and static concept of “accrued benefit.” No matter how benefits actually accrue under a defined benefit plan, the Cooper decision dictates that the courts look at the rate of accrual in only one way – as an annuity at normal retirement age. However, the plain meaning of “rate of benefit accrual” refers to the pace at which benefits are accrued, or earned, by a participant as the participant works additional years. The rate at which benefits accrue is determined by the plan’s benefit formula, which can vary from plan to plan. Thus, Congress could not define “rate of benefit accrual” because that rate is specific to each plan.
As the Eaton and Tootle courts observed, under cash balance plans such as the FleetBoston Plan, benefits are earned in the form of pay credits and interest credits. The rate at which those benefits are earned, i.e., the rate of benefit accrual, is the pace at which those credits are allocated to participants’ accounts.5 The mere fact that this rate of benefit accrual is similar in certain respects to the rate of benefit accrual under a defined contribution plan does not “[turn] the ERISA statute on its head” as Ms. Richards asserts. Pl. Br. at 18. Nothing in ERISA states or even implies that benefits in a defined benefit plan cannot be earned in the form of account credits. Indeed, the Treasury Department has recognized that defined benefit plans can be
5 In the 2002 proposed IRS regulations upon which Ms. Richards relies, Pl. Br. at 13, the IRS agreed with the Eaton and Tootle courts that “a participant’s rate of benefit accrual for a plan year is permitted to be determined as the addition to the participant’s hypothetical account for the plan year.” Prop. Treas. Reg. §1.411(b)-2(b)(iii), 67 Fed. Reg. 76,123, 76,126 (Dec. 11, 2002).
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measured for certain purposes like defined contribution plans. See 26 C.F.R. § 1.401(a)(4)-8(c)
(2001) (plan may be tested in terms of annual allocations as if it were a defined contribution
plan). Because benefits accrue to cash balance participants under the FleetBoston Plan as pay
credits and interest credits, the proper measure of the “rate of benefit accrual” is how credits are
allocated to participants’ accounts. Eaton and Tootle so held, and this Court should as well.
C. Plaintiff’s Position Makes No Sense When Applied To The Rate Of Benefit Accrual For Plan Participants Beyond Normal Retirement Age.
If § 204(b)(1)(H) protects participants before normal retirement age, as Ms. Richards
contends, it surely also protects participants at and after normal retirement age. This fact further
reveals the fallacy of her contention that “rate of benefit accrual” can only be measured in terms
of an annuity commencing at normal retirement age. In the legislative history, Congress
provided an example of a plan that complies with § 204(b)(1)(H) because it allows a participant
to continue to accrue an additional annuity of $10 per month for every year the participant works
after age 65. 1986 U.S.C.C.A.N. at 4026. However, if the court applied Ms. Richards’ theory
that “rate of benefit accrual” must refer to an annuity at age 65, the additional $10 benefit in the
Congressional example, recast as an annuity at age 65, would decline in value each year after age 65 for the simple reason that the benefit would have to be discounted back to age 65.6
Under Ms. Richards’ theory, the very plan that Congress set forth as compliant would result in a
reduction in the rate of benefit accrual on account of age, and thus become non-compliant, when
applied to participants working past normal retirement age – the very participants who were
6 For example, applying the same “time value of money” concept that Ms. Richards uses to project benefits forward to age 65, a $10 benefit received at age 66 would be valued at $8.90 when projected back to age 65, and an additional $10 benefit received at age 67 would be valued at the lesser amount of $7.90 when projected back to age 65 (using an assumed discount rate of 8.75%). The article that Ms. Richards cites in her brief (Pl . Br. at 12 n.10) explains in mathematical detail how this occurs. Shea, Francese, and Newman, Age Discrimination in Cash Balance Plans: Another View, 19 VA. TAX REV. 763, 768-773 (2000). This decrease in the rate of benefit accrual after normal retirement age would occur under Ms. Richards’ theory regardless of what discount rate (8.75% as above or otherwise) were applied.
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OBRA 1986’s intended beneficiaries. The Eaton court recognized this nonsensical result when it rejected the position Ms. Richards takes here. 117 F. Supp. 2d at 830.
Measuring rate of benefit accrual for purposes of a cash balance plan in terms of the amounts credited to cash balance accounts, as the Eaton and Tootle courts did, would not yield this absurd result. This Court should follow the decisions in Eaton and Tootle and hold that, because pay credits under the FleetBoston Plan increase as participants get older and interest credits are allocated at the same rate to all accounts regardless of age, the FleetBoston Plan’s cash balance formula does not violate ERISA § 204(b)(1)(H).
D. The Other ERISA Provisions Plaintiff Cites Do Not Support Her Position. Ms. Richards apparently contends that because ERISA §§ 204(b)(1)(B) and 204(h) refer
to benefit “accruals,” and an annuity commencing at normal retirement age is how “accruals” under those provisions have been measured, then ERISA § 204(b)(1)(H)’s “rate of benefit accrual” must be measured in the same way. This reasoning is flawed on a number of levels.
First, § 204(b)(1)(B) is one of ERISA’s anti-backloading provisions. Compliance with that provision is measured looking at an annuity commencing at normal retirement age for the simple reason that the provision specifically states that compliance must be measured in terms of an “accrued benefit payable at normal retirement age.” In stark contrast, § 204(b)(1)(H) nowhere uses the term “accrued benefit,” let alone sets forth any required method of measuring the rate of benefit accrual. This difference reinforces Defendants’ position: Congress did not intend that “rate of benefit accrual” be measured as an annuity commencing at normal retirement age because, where Congress did so intend, as in ERISA § 204(b)(1)(B), it expressly said so.
Similarly, the fact that the rate of accrual for purposes of an ERISA § 204(h) notice is measured under Treasury Department regulations in terms of an annuity commencing at normal retirement age says nothing about how to measure rate of accrual under § 204(b)(1)(H). The Treasury Department made clear that the regulation Ms. Richards cites only applies to ERISA §
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204(h). See 68 Fed. Reg. 17,277, 17,282-83 (Q&A 6(b) and 8) (Apr. 9, 2003) (codified at 26 C.F.R. § 54.4980F-1). The Treasury Department has never stated that “rate of benefit accrual” for § 204(b)(1)(H) purposes must be measured in the same way. Indeed, as explained in Def. Memo. at 23-24, the Treasury Department has expressly stated the contrary:
The fact that interest adjustments through normal retirement age are accrued in the year of the related hypothetical allocation will not cause a cash balance plan to fail to satisfy the requirements of section 411(b)(1)(H) [the IRC equivalent of ERISA § 204(b)(1)(H)], relating to age-based reductions in the rate at which benefits accrue under a plan. 56 Fed. Reg. 47,524, 47,528 (Sept. 19, 1991). The Treasury Department’s rejection of Ms. Richards’ position further establishes that the FleetBoston Plan is not age discriminatory. III. COUNTS II THROUGH VI FAIL TO STATE A CLAIM.
In order to distract this Court from the pleading defects in Counts II-VI, Ms. Richards argues the merits of those claims. These arguments are not only beyond the scope of the Motion to Dismiss, they also misstate the facts and law. For example, Ms. Richards speculates that the FleetBoston Plan can result in “prohibited benefit forfeitures” if participants “have to give up” their higher frozen traditional benefits as a “condition” to receiving lower cash balance benefits. Pl. Br. at 24. However, the Plan does not require an “either-or” choice between alternative benefits. Instead, participants who accrued a benefit prior to the conversion to a cash balance formula receive one benefit which is always the greater of (1) their cash balance account benefit and (2) their benefit accrued under the traditional plan as of December 31, 1996. Def. Memo. Ex. A at 3, Ex. B at 22, Ex. C at 1. Under this “greater-of” formula, participants always receive at least their full accrued benefit under the traditional plan. And, because the only benefit that participants are entitled to under the cash balance formula is the greater of their benefit under the
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old plan or under the cash balance formula, there is never a “forfeiture” of any accrued benefit.7 Ms. Richards’ “wear-away” complaint in Counts II and III is merely that benefits under
the new cash balance formula do not increase as quickly as she would like. Pl. Br. at 23. However, Congress, the Treasury Department, the IRS and the courts have all recognized that wear-away is lawful and have upheld plans like FleetBoston’s that pay a “greater-of” benefit. See, e.g., 26 C.F.R. § 1.401(a)(4)-13(c)(4)(ii) (allowing plans to use a “[f]ormula with wearaway”); 26 C.F.R. § 1.401(a)(17)-1(e)(5), Example 1; S. Rep. No. 98-575, at 28-29 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2574-75 (noting the legality of a plan with a “greater-of” formula even though “the participant’s accrued benefit . . . will not be increased by subsequent service or pay raises until the subsequent increase brings the participant’s accrued benefit to a level in excess of the accrued benefit as of [the amendment date]”); Brody v. Enhance Reinsurance Co., No. 00 Civ. 9660, 2003 U.S. Dist. LEXIS 3785, at ** 26-27, 37-38 (S.D.N.Y. March 17, 2003) (plan’s use of “greater-of” formula did not violate ERISA § 204(g); “the greater-of method . . . has been consistently approved by the IRS” (citing Rev. Rul. 81-12, 19811 C.B. 228)); Corcoran v. Bell Atlantic, No. Civ. A 97-510, 1997 WL 602859, at *3-4 (E.D. Pa. Sept. 23, 1997), aff’d, 159 F.3d 1350 (3d Cir. 1998) (“greater-of” formula used in transition from traditional defined benefit to cash balance formula did not violate § 204(g)).8
Likewise, Ms. Richards’ claim in Count IV that the notice participants received prior to the 1997 Plan amendment did not satisfy ERISA § 204(h) is clearly incorrect. Pl. Br. at 32. At that time, § 204(h) merely required a plan administrator to provide written notice “setting forth
7 Because the FleetBoston Plan does not offer participants a choice between their cash balance benefit and their frozen traditional benefit, Esden 229 F.3d 154, and Lyons v. Georgia Pacific Corp., 221 F.3d 1235 (11th Cir. 2000), in which participants were required to choose between certain benefits, are inapplicable. 8 Nor does FleetBoston’s Plan violate ERISA’s anti-backloading rule. Ms. Richards improperly compares the accrual rate under the prior traditional formula to the cash balance formula. Pl. Br. at 25. However, as set forth in ERISA § 204(b)(1)(B)(i), compliance is to be determined as if the cash balance formula were in effect for prior plan years, not by comparing it to the old formula.
15

Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 21 of 26
the plan amendment and its effective date.” Pub. L. No. 99-272, 100 Stat. 82 (1986); see also Pub. L. No. 107-16, 115 Stat. 38 (2001). The regulations then in effect provided that a summary or the text of the amendment itself constituted sufficient notice, and FleetBoston indisputably complied with this requirement. See Exhibit D (attached). Ms. Richards’ assertions that FleetBoston’s notice failed to disclose the “effect” or “magnitude” of any reductions in benefit accruals or early retirement benefits (Pl. Br. at 30-31) are undermined by the regulations, which at the time specifically provided that a plan administrator need not explain “how the individual benefit of each participant . . . will be affected by the amendment” and that “the rate of future benefit accrual is determined without regard to early retirement benefits . . . or retirement-type subsidies.” 26 C.F.R. § 1.411(d)-6T, Q&A-10, Q&A-5. In fact, Ms. Richards’ arguments are based on a later version of the statute and regulations that were not in effect when FleetBoston amended its plan. Pl. Br. at 31-32. Ms. Richards’ attempt to hold FleetBoston to notice standards that were not in effect until years later fails as a matter of law.
A. Counts II Through VI Must Be Dismissed Because Plaintiff Has Failed To Allege Exhaustion Of Her Administrative Remedies.
Ms. Richards concedes that she must exhaust her administrative remedies under the Plan before she can bring a claim in federal court for benefits under ERISA § 502(a)(1)(B). Pl. Br. at 34; see also Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989). The wellestablished exhaustion requirement and the policy it serves would be gutted if plaintiffs were not required to plead exhaustion before obtaining discovery. For this reason, district courts in this Circuit have consistently dismissed claims for benefits when plaintiffs fail to plead exhaustion. See, e.g., Greifenberger v. Hartford Life Ins. Co., No. 03 Civ. 3238, 2003 WL 22990093, at *4 (S.D.N.Y. Dec. 18, 2003) (“If [an ERISA] plaintiff fails to allege that he or she has exhausted administrative remedies, the claim must be dismissed”) (emphasis added); Hoffman v. Empire Blue Cross and Blue Shield, No. 96 Civ. 5448, 1999 WL 782518, at *13 (S.D.N.Y. Sept. 30,
16

Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 22 of 26
1999) (imposing same pleading requirement); DeVito v. Local 553 Pension Fund, No. 02 Civ. 4686, 2005 WL 167590, at *7 (S.D.N.Y. Jan. 26, 2005) (same). Ms. Richards’ position that she should not have to plead exhaustion is nothing more than a tacit admission that she failed to exhaust her remedies relating to Counts II through VI. These counts should be dismissed.9
These principles apply with equal force to Ms. Richards’ claims under ERISA § 502(a)(3). Ms. Richards acknowledges that the Second Circuit has not ruled on this issue, but offers no reason why this Court should not follow the Seventh and Eleventh Circuits that require plaintiffs to exhaust administrative remedies before seeking equitable relief under ERISA § 502(a)(3). Kross v. Western Electric Co., Inc., 701 F.2d 1238, 1245 (7th Cir. 1983); Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985). There are compelling reasons to require exhaustion of administrative remedies under § 502(a)(3), Def. Memo. at 30-31, many of which Second Circuit has recognized under ERISA and in other contexts. See Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993) (ERISA claim); see also Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003) (Immigration and Naturalization Act claim). Ms. Richards’ § 502(a)(3) claims in Counts II-VI should be dismissed.
B. Counts IV-V Fail To Plead Prejudice or Likely Harm And Should be Dismissed. Ms. Richards concedes that she must at a minimum establish “likely harm” to prevail on
her claims in Counts IV-V regarding an allegedly inadequate § 204(h) notice and deficient SPD.10 Pl. Br. at 32. Her refusal to plead this essential element of her claim is just another
9 Ms. Richards incorrectly claims that the Court in Flanigan v. General Electric Co., 93 F. Supp. 2d 236 (D. Conn. 2000), held that a plaintiff need not plead exhaustion of administrative remedies. Rather, the Court referenced a prior order in which the Court “did not consider the exhaustion issue as grounds for dismissal.” Id. at 269. The Court in Flanigan did not identify the grounds on which the defendant had sought dismissal. Flanigan is not inconsistent with the decisions cited above requiring plaintiffs to plead exhaustion of administrative remedies. 10 Contrary to Ms. Richards’ claim, the Second Circuit adopted a “prejudice standard” in Burke v. Kodak Retirement Inc. Plan as “more consistent with ERISA’s objective to protect the employee against inadequate SPDs.” 336 F.3d 103, 112 (2d. Cir. 2003).
17

Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 23 of 26
attempt to mask the fact that she cannot do so. Contrary to Ms. Richards’ assertions, courts that have addressed pleading requirements under ERISA’s notice provisions have required plaintiffs to plead prejudice or likely harm. See, e.g., Levin v. Raynor, No. 03 Civ. 4697, 2004 WL 2937825, at *10 (S.D.N.Y. Dec. 17, 2004) (dismissing claim under analogous notice provision, ERISA § 104(b)(1), in part because plaintiffs did not sufficiently allege prejudice). Indeed, a plaintiff must plead more than a conclusory allegation; she must plead specific facts describing the prejudice or harm. See, e.g., Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 792-94 (7th Cir. 1996) (affirming dismissal of inadequate SPD claim and rejecting plaintiff’s conclusory allegation of prejudice which failed to identify in the complaint the “harm [plaintiff] specifically . . . suffered as a result of [defendant’s] ERISA violations”) (italics in original).11
C. Count VI Should Be Dismissed Because Plaintiff Lacks Standing To Sue On Behalf Of Retired Employees And Has Not Alleged Detrimental Reliance.
Ms. Richards’ argument that she has standing under Count VI as a “participant” in the FleetBoston Plan is a red herring. First, Defendants did not challenge Ms. Richards’ status as a participant, but rather her failure to allege an injury-in-fact. Def. Memo. at 33-34. Second, Mullins v. Pfizer, Inc., 23 F.3d 663 (2d. Cir. 1994), Pl. Br. at 37, provides no basis to find that Ms. Richards suffered an injury-in-fact because the plaintiff in Mullins alleged that he was misled. The Second Circuit limited its discussion to a separate and distinct standing issue not in dispute here – whether plaintiff retained plan “participant” status under ERISA. Id. at 666-69.
Ms. Richards argues herself out of her claim when she admits that “she has suffered no harm yet” and that “she . . . will retire someday, and without relief [she] may face the same problem – FleetBoston may not tell [her] about the larger frozen benefit she may take.” Pl. Br. at 38 (emphasis added). These allegations – that she may someday have a greater frozen benefit
11 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002), cited in Pl. Br. at 33, only addressed pleading requirements in employment discrimination cases which have a unique burden-shifting framework. Nowhere did the Court address a plaintiff’s pleading obligations under ERISA.
18

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under the traditional plan when she retires and that she may someday then be misled about the existence of that benefit – utterly fail to demonstrate a concrete, actual injury-in-fact.
Even assuming Ms. Richards has standing, detrimental reliance is an essential element of her claim for breach of fiduciary duty, see Def. Memo. at 34, and her failure to allege it requires dismissal. Defendants do not contend, as Ms. Richards argues, that she must show a material misrepresentation as opposed to an omission. Pl. Br. at 38. Rather, she has not alleged that she detrimentally relied on a misrepresentation or an omission. Count VI should be dismissed.
D. Plaintiff’s ERISA § 502(a)(3) Claims For Equitable Relief In Counts II, IV-V Fail. To support her claim that Counts II, IV, and V can proceed under both ERISA §
502(a)(1)(B) and § 502(a)(3), Ms. Richards cites Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76 (2d Cir. 2001). However, Devlin solely involved a breach of fiduciary duty claim. Defendants are not challenging Ms. Richards’ attempt to bring her breach of fiduciary duty claim (Count VI) under both ERISA sections. Rather, Ms. Richards’ non-fiduciary claims under § 502(a)(3) in Counts II, IV, and V must be dismissed because she seeks benefits, not equitable relief. Def. Memo. at 35-38. Ms. Richards’ admissions further compel this result:
• Count II – “Richards suffers another major loss of benefits by virtue of [the conversion of her Traditional Benefits] into a new cash balance account.” Pl. Br. at 23; and
• Count IV – “No plan amendment significantly decreasing benefit accruals can be enforced unless the reduction of benefit accruals is explained . . . in an advance notice.” Id. at 30.
See also Gerosa v. Savasta & Co., 329 F.3d 317, 321 (2d Cir. 2003) (when “determining the propriety of a remedy, [courts] must look to the real nature of the relief sought, not its label”). IV. PLAINTIFF’S ERISA § 502(a)(1)(B) CLAIMS FOR BENEFITS MAY NOT BE
BROUGHT AGAINST THE CORPORATE EMPLOYER. Ms. Richards’ argument that FleetBoston is liable under Counts II, IV, and V because it acted in a fiduciary capacity in failing to disclose information (which itself is relevant only to Count VI) (Pl. Br. at 39-40) is contrary to Second Circuit law. The Second Circuit does not simply permit benefit claims to be brought against any entity that acted in a fiduciary capacity.
19

Case 3:04-cv-01638-JCH Document 45-1 Filed 03/28/2005 Page 25 of 26

Rather, in claims for benefits, the only entities that may be held liable are the plan, its trustees

and administrators. See Crocco v. Xerox Corp., 137 F.3d 105, 107-08 (2d Cir. 1998); see also

Def. Memo. at 38. The plan sponsor may not be held liable, even to the extent it acts in a

fiduciary capacity or as a “de facto co-administrator.” Crocco, 137 F.3d at 107-08. Ms.

Richards may not bring a claim for benefits under § 502(a)(1)(B) against FleetBoston.

Respectf

ully submitted,

AND

DEFENDANTS

FLEETBOSTON FINANCIAL CORP.

FLEETBOSTON FINANCIAL PENSION PLAN

By:

/s/ Scott E. Gross

One of their Attorneys

George J. Kelly, Jr. ct06888 SIEGEL, O'CONNOR, O'DONNELL & BECK 150 Trumbull St. Hartford, CT 06103 gkelly@siegeloconnor.com SIDLEY

William F. Conlon, ct26510 Anne E. Rea, ct26513 Scott E. Gross, ct26514 Erin E. Kelly, phv0041 Julie A. Koca, ct26511 Brian P. Guarraci, ct26512
AUSTIN BROWN & WOOD LLP Bank One Plaza, 10 S. Dearborn Street Chicago, IL 60603 (312) 853-7000 Email: sgross@sidley.com

20

 
 Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually,

:

and on behalf of others similarly situated, :

:

Plaintiff,

:

:

v.

:

:

FLEETBOSTON FINANCIAL

:

CORP. and the FLEETBOSTON

:

FINANCIAL PENSION PLAN,

:

:

Defendants.

:

:

No. 3:04CV1638 (JCH) MAY 28, 2008

Memorandum in Support of Incentive Payment
1. Summary.

If the Court approves the settlement in this case, Richards respectfully asks it to

approve this request for an incentive payment. If the Court approves this request, the

defendant Plan has agreed to pay Richards an incentive payment of $15,000 on top of

the benefits the Plan will pay to plan participants. This payment is reasonable under

the applicable law because of the large amount of time Richards spent working on the case and the risk she assumed by agreeing to be the sole Class Representative.

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 2 of 12
2. Facts.
Donna Richards holds masters degrees in business and library sciences.1 She has worked for 35 years as a trust officer for Bank of America and its predecessors. She is 60 years old. She began suspecting something was wrong with the Fleet cash balance plan after looking into her retirement figures and asking questions about how these plans worked. The more Richards learned about the plans, the more suspicious she became. No one seemed to understand how the cash balance plan worked. While others at FleetBoston also expressed concern about the plan, no one appeared willing to act on their concerns. For a time, Richards hoped a retiree would bring this lawsuit, but when it was obvious no one was going to, she decided to call an attorney. In 2003, Richards contacted Attorney Gregg Adler.
Ultimately, Attorney Adler challenged the calculation of Richards’ pension benefits in an administrative claim to Plan administrators. During the administrative phase, Richards helped Attorney Adler prepare the claim and appeal letters by providing plan documents, benefit statements, and personal information.
Attorney Adler and Richards discussed bringing a lawsuit in federal court. He told her that although it could be brought on behalf of a class, there was substantial risk involved, and that the chances of prevailing were not good. Attorney Adler suggested that Richards consult an attorney who specialized in ERISA matters.
1 All facts in this section are contained in Richards’ Declaration (Exhibit 1). 2

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 3 of 12
In April 2004, Attorney Adler introduced Richards to Class Counsel, a lawyer Attorney Adler knew to be a successful ERISA litigator. After several meetings and phone calls, in May 2004, she hired Class Counsel’s firm on a one-third contingency basis to bring a class action lawsuit against the bank and the cash balance plan. Richards would never have been able to hire Class Counsel to bring this suit on a billable hourly basis, and she does not know anyone who could have.
Between April and September 2004, through many meetings, telephone calls and emails, Richards helped Class Counsel investigate the factual basis for the allegations of the complaint, reviewed issues to be referred to an expert actuary, and communicated with other class members. Between October 2004 and March 2005, Richards read the complaint and the Bank’s March 2004 brief and exhibits in support of dismissing her lawsuit; she worked with Class Counsel to prepare an affidavit and brief supporting class certification, and she communicated with other class members.
From April 2005 to January 2007, Richards assisted Class Counsel with substantial discovery. She responded to four sets of written-discovery requests, one set of requests for written admissions, and she produced 738 pages of documents to the defendants. Some of the requests were personally intrusive examinations of her finances; they took considerable time to properly answer.
The defendants deposed Richards twice. Some of the questioning was again personally intrusive, including a request that she name colleagues and friends who had approached her privately about the negative effect the cash balance conversion had on
3

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their benefits, and she was asked more about her personal finances. Richards consulted many times with Class Counsel during the discovery phase on defendants’ discovery responses, depositions, and briefs, and she communicated with other class members regularly. During this time, she also read the Amended Complaint, Second Amended Complaint, and the Court’s Rulings on Class Certification and both Motions to Dismiss.
From January 2007 to the date of her declaration, Richards has worked with Class Counsel to settle the case. Over this period, she has consulted with Class Counsel by email, telephone and in person; she attended seven mediation sessions in Boston and actively participated in them; she read drafts of mediation documents; and she communicated with class members.
Because Richards has worked for 35 years as a trust officer, she understands what it means to be a fiduciary for other class members. She has taken her role seriously and has endured the stress and put in the time needed to bring the lawsuit and bring it to a successful close.
Because Richards still works for Bank of America, having her name on the caption of a 23,000 class member lawsuit against her employer was obviously uncomfortable; she will likely never know, whether it has affected or will affect any of her career opportunities. Richards attempted to keep the lawsuit separate from her employment. She used her vacation time to address any matter related to the lawsuit. And because Richards did not wish to use work resources, she used Staples or Kinkos
4

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 5 of 12
for copying and faxing documents for the lawsuit. When Richards received email at work or phone calls on the lawsuit, she attempted to return the emails from home and the calls from her cell phone after business hours.
Dealing with clients was also awkward, because many of them knew that Richards had originally planned to retire on her 55th birthday because she was working toward a Master of Library Science degree and intended to change careers. But Richards ultimately chose not to retire when she took on the lawsuit because her retirement income remained in doubt. In addition, Richards believed it would be better that she remain employed during the lawsuit so class members would be able to find her, and because she is still working she has had instant access to her benefit information. When asked by clients why she did not retire early as planned, Richards told clients “there was a problem with my pension.” Some of the explanation was ultimately provided when stories about the lawsuit appeared in the newspapers.
Although Class Counsel and Richards had discussed the hours she spent working on the case, Richards never discussed the possibility of an incentive bonus with Counsel until the end of all the settlement negotiations. To date, Richards calculates that she has spent at least 128.5 hours working on the lawsuit, not including the time during the administrative phase with Attorney Adler and any time she will spend after the date of this motion. In the process, Richards used 92.5 hours of work/vacation time. Her base salary (excluding bonus and benefits) is $130,000 ($62.50 for a 40-hour week). Based upon her experience, Richards believes the Bank
5

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 6 of 12
would bill her time at $250/hour. Calculating her time at $100.00 per hour—a conservative point between her base salary and billing rate— Richards 128.5 hours are worth $12,850.00 (128.5 x $100). Richards also spent $620.06 out of her own pocket for mileage and parking expenses traveling to and from the mediation sessions in Boston.2 Therefore, as of the date of this motion, the total value of Richards’ time and expense on this lawsuit is $13,470.06—nearly the entire value of the proposed incentive payment and including nothing for the intangible risks and burdens Richards assumed when she agreed to be the lone class representative in this case.
3. Argument.
A. Courts award incentive payments to compensate class representatives for the work done on behalf of the class and for the risks they take on. As the Eastern District of Pennsylvania said in 2000 in Cullen v. Whiteman Med
Corp., "Courts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation."3 They are an important function of the judicial system, particularly where the named plaintiffs participated actively in the litigation.
The amount of an incentive payments is often determined by whether the representatives’ actions resulted in a benefit to the class, what risks they faced when deciding to sue, and the actual time and effort spent throughout the duration of the
2 Each of Richards’ expenses are listed in Exhibit A to her Declaration (Exhibit 1). 3 Cullen v. Whitman Med. Corp., 197 F.R.D. 136, 145 (E.D. Pa. 2000).
6

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 7 of 12
litigation. As the Eastern District of Pennsylvania put it in 1994 in In re United States
Bioscience Sec. Litig.:
among the reasons courts cite for approving such awards are that representative plaintiffs (1) take on risks when commencing class action litigation (2) shoulder heavier workloads than the other plaintiffs and (3) help to secure substantial benefits to the class. 4
The risks courts should consider include the risk of subtle and not-so-subtle
retaliation resulting in personal or financial harm, discrimination, trouble finding
employment, and financial risk.5 The work courts should consider includes class
representatives’ work on discovery requests, depositions, reading briefs, answering
class counsel’s questions, or appearing as witnesses or at mediations.6
B. Donna Richards took significant risk, gave up vacation time, spent over 100 hours on this case and did what no one else was willing to do.
(1) Richards’ work for the class supports the request.
The incentive payment requested is reasonable in light of the time and effort
Richards has spent on this litigation considering the value of the work done. Not
including time spent during her administrative claim, or the time she will spend after
the date of this motion, Donna Richards has spent at least 128.5 hours working on
this lawsuit (92 hours of which were suppose to be her vacation). During this time
4 In re United States Bioscience Sec. Litig., 155 F.R.D. 116, 121 (E.D. Pa. 1994). 5 See, e.g., Cook, 142 F.3d at 1016 (workplace retaliation); Women's Comm for Equal Employment Opportunity v. Nat'l Broad. Co., 76 F.R.D. 173, 181 (S.D.N.Y. 1977) (discrimination); Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476, at *52 (N.D. Cal. Jan. 26, 2007) (trouble finding employment)(Exhibit 2); Enter. Energy Corp., 137 F.R.D. at 251 (significant financial risk). 6 In re United States Bioscience Sec. Litig., at 121. See also, In re Linerboard Antitrust Litig., 2004 U.S. Dist. LEXIS 10532, 57-58 (E.D. Pa. June 2, 2004)(Exhibit 3). In re Dun & Bradstreet Credit Services Customer Litigation, 130 F.R.D. 366, 374 (S.D. Ohio 1990).
7

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 8 of 12
she responded to four sets of discovery requests, requests for admission, produced 738 pages of documents, and was deposed twice. She was required to answer personally intrusive questions and name colleagues who approached her about the cash balance plan. She answered many inquiries from class members. And she was not just present during the mediation, she played an active role in it during her seven trips to the mediator’s Boston office.
Richards 128.5 hours added value. Her education (which includes an MBA), her experience as a bank trust officer, and 35 years working for the bank made her point of view particularly valuable. Richards is the only class representative. There were no others to share the burden with and there would be no lawsuit if Donna Richards had not been willing to allow it to proceed in her name. (2) Richards’ took a risk by agreeing to be class representative.
Donna Richards assumed a significant risk by agreeing to be class representative. She agreed to do it knowing the case raised many novel issues and was rated as risky. This meant that the normal notoriety that would attach to any employee suing her large corporate employer would be magnified and the chance for even subtle forms of retaliation would increase. That the lawsuit has succeeded and that she still holds her job is not to the contrary. Richards assumed a risk when she allowed her name to be used on this lawsuit. That she managed it and her job skillfully does not detract from this reality—and she may never know if it actually cost
8

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 9 of 12
her. The result of her decision to sue, now wise in retrospect, is the $83.4 million dollar settlement value. C. The incentive payment is reasonable compared to those awarded in
similar suits. Richards’ risks were similar to those assumed by the four named class representatives in Glass v. UBS Fin. Servs., a $45 million dollar, 13,000-member, class action settled in 2007 in the Northern District of California.7 As the Glass, Court described it, the “four representatives, all of whom were still currently employed in the securities industry, placed something at risk by putting their names on a complaint against one of the largest brokerage houses in America.”8 Richards, still a bank employee, was the only one who offered to put her name on the complaint against the second largest bank in America. In Glass, the Court found this risk sufficient to support the approval of the requested per person $25,000 incentive payment, $10,000 more than the single payment Richards requests.9 Richard’s work is similar to those assumed by the five class representatives in the 2004 case, In re Linerboard Antitrust Litig. Here, the Eastern District of Pennsylvania awarded $25,000 to each of five class representatives as a reward for their work on the case: [T]he five class representatives performed considerable work advancing the litigation. Each of the class representatives provided verified
7 Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal. Jan. 26, 2007)(Exhibit 2). 8 Id. at *52. 9 Id.
9

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 10 of 12
answers to interrogatories and produced documents in response to document requests. Each of them also expended time in preparing for depositions and gave testimony at depositions.”10 Richards took on similar tasks and also traveled to Boston and participated in seven mediation sessions without any other class representative to share the burden. Moreover, the incentive payments in In re Linerboard Antitrust Litig. were paid from the common fund, while the incentive payment here, if granted, will be paid by the defendant Plan on top of the settlement funds, not out of them.
4. Conclusion.
Donna Richards has spent significant time and expense representing herself and others and producing an $83.4 million result. Together with the risks she assumed by bringing this lawsuit, this means that the requested incentive payment of $15,000 is reasonable under the applicable law. It is particularly reasonable because it will be paid by the defendant Plan and will not reduce Class Members’ benefits. Therefore, Richards respectfully requests the Court approve the incentive payment.
10 In re Linerboard Antitrust Litig., 2004 U.S. Dist. LEXIS 10532, 57-58 (E.D. Pa. June 2, 2004)(Exhibit 3).
10

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 11 of 12
THE PLAINTIFF: Donna Richards
By /s/ Thomas G. Moukawsher Thomas G. Moukawsher ct08940 Ian O. Smith ct24135 Dale J. Morgado ct27586 Moukawsher & Walsh, LLC 21 Oak Street Suite 209 Hartford, CT 06106 T: (860) 278-7000 F: (860) 548-1740 tmoukawsher@mwlawgroup.com ismith@mwlawgroup.com dmorgado@mwlawgroup.com CLASS COUNSEL
11

Case 3:04-cv-01638-JCH Document 259 Filed 05/28/2008 Page 12 of 12
CERTIFICATE OF SERVICE I hereby certify that on May 28, 2008, a copy of foregoing memorandum was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. William F. Conlon Anne E. Rea David B. Johnson Sidley Austin One S. Dearborn St. Chicago, IL 60603 Stanley A. Twardy Thomas D. Goldberg Helen Harris Day Pitney LLP One Canterbury Green Stamford, CT 06901
/s/ Thomas G. Moukawsher Thomas G. Moukawsher Moukawsher & Walsh, LLC 21 Oak Street, Suite 209 Hartford, CT 06106 T: (860) 278-7000 F: (860) 548-1740 tmoukawsher@mwlawgroup.com
12

 
 Case 3:04-cv-01638-JCH Document 40-1 Filed 02/28/2005 Page 1 of 51

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and

:

On behalf of others similarly situated,

:

:

Plaintiff,

:

:

v.

:

:

FLEETBOSTON FINANCIAL

:

CORP. and the FLEETBOSTON

:

FINANCIAL PENSION PLAN,

:

:

Defendants.

:

:

No. 3:04CV1638 (JCH) FEBRUARY 28, 2005

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

FOR THE PLAINTIFF: DONNA C. RICHARDS
Thomas G. Moukawsher ct08940 Ian O. Smith ct24135 Moukawsher & Walsh, LLC 21 Oak Street Hartford, CT 06106 (860) 278-7000 tmoukawsher@mwlawgroup.com
ATTORNEYS FOR PLAINTIFF

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TABLE OF CONTENTS I. Introduction..........................................................................................................................1 II. ERISA Allows Two Types of Pension Plans.......................................................................4
1. The Basic ERISA Text.............................................................................................4 2. ERISA’s Differing Treatment of the Two Types of Plans ......................................5 3. Characteristics of Conventional Defined Benefit Plans...........................................6 4. Characteristics of Conventional Defined Contribution Plans..................................7 5. Characteristics of Cash Balance Plans.....................................................................8 III. Cash Balance Plans an d FleetBoston’s Plan in Particu lar Discriminate Based Upon Age. ........................................................................................................................... 9 1. Cash Balance Plans Generally .................................................................................9 2. FleetBoston’s Plan .................................................................................................10 IV. Richards’ Age Discrimination Claim Should Stand ..........................................................12 1. The Language of the Age Discrimination Statute..................................................12 2. The Definition of “Rate of Benefit Accrual”.........................................................17 V. FleetBoston’s Wear Away Problem, the Illegal Conditioning of Benefits and the Anti-Backloading Rules.....................................................................................................22 VI. FleetBoston’s Duty to Disclose Be nefit Reductions: ERIS A §204 (h) and the SPD Rules ..........................................................................................................................26 1. Introduction............................................................................................................26 2. The SPD Rules.......................................................................................................27 3. Section 204 (h).......................................................................................................30 4. FleetBoston’s Claim that Richards Must Allege Prejudice ...................................32 VII. FleetBoston’s Claims Concerning Exhaustion ..................................................................33 VIII. FleetBoston’s Claim Concerning Pleading under 502 (a)(1)(B) and 502 (a)(3) ...............35
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Case 3:04-cv-01638-JCH Document 40-1 Filed 02/28/2005 Page 3 of 51 IX. FleetBoston’s Claim Concerning the Breach of Fiduciary Duty Claim ............................36
1. Richards has Standing............................................................................................36 2. FleetBoston is Liable for Material Omissions .......................................................38 X. FleetBoston’s Claim Concerning Proper Parties under 502 (a)(1)(B)...............................39 XI. Conclusion .........................................................................................................................40
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TABLE OF AUTHORITIES CASES Abels v. Titan Int’l, 85 F. Supp.2d 924 (S.D. Iowa 2000).............................................................30 Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981)...........................................................21 Almendarez-Torres v. United States, 523 U.S. 224 (1994) ...........................................................15 Anweiler v. American Elec. Power Serv. Corp. , 3 F.3d 986, 17 EB Cases 1090 and 19 EB Cases 2963 (7th Cir. 1993) ..........................................................................................38 Amato v. Western Union Int’l, Inc., 773 F.2d 1402 (2d Cir. 1985) ........................................30, 31 Barker v. Ceridian Corp., 122 F.3d 628 (8th Cir. 1997)................................................................27 Barnett v. IBM Corp., 885 F.Supp. 581 (S.D.N.Y. 1995) .............................................................34 Berger v. Xerox, 338 F.3d 755 (7th Cir. 2003)................................................................................4 Blessing v. J.P. Morgan Chase & Co ., 2003 U.S. Dist. LE XIS 2604 (S.D.N.Y. 2003) ..............................................................................................................................................34 Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 25 EB Cases 1517 (7th Cir. 2000) ........................................................................................................................................28, 39 Brody v. Enhance Reinsurance Co. , 2003 U.S. Dist. LEXIS 3785 (SDNY March 14, 2003) ........................................................................................................................................30 Burke v. Kodak Retirement Income Plan, 336 F.3d 103 (2d Cir. 2003) ........................... 28, 32-34 Burstein v. Retirem ent Account Plan for Employees of Allegheny Health Education and Research Foundation, 334 F.3d 365 (3d Cir. 2003).........................................27, 29 Campanella v. Mason T enders’ Dist. Council Pension Plan , 299 F. Supp. 2d 274 (S.D.N.Y. 2004) .............................................................................................................................34 Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032 (2d Cir. 1985) ........................................................................................................................................................28 Clark v. Bank of New York, 801 F. Supp. 1182 (S.D.N.Y. 1992) ................................................29 Commissioner v. Keystone Consol. Indus., 508 U.S. 152, ___ (1993) .........................................20 Cooper v. IBM, 274 F. Supp. 2d 1010 (S.D. Ill.2003) ....................................................................4
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Davidson v. Canteen Corporation. 957 F.2d 1404 (7th Cir. 1992)................................................30 Depace v. Matsushita Elec. Corp., 257 F. Supp. 2d 543 (E.D. N.Y. 2003)...................................34 Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76 (2d Cir., 2001) ...................................35 Eardman v. Bethlehem Steel Corp., 607 F. Supp. 196 (1984).......................................................29 Eaton v. Onan, 117 F.Supp.2d 812 (S.D.Ind. 2000) .......................................................... 12, 14-19 Engers v. AT&T Corp, 2001 U.S. Dist. LEXIS 25889 (D. N.J. 2001) ...................................15, 17 Esden v. Bank of Boston, 229 F.3d 154 (2d Cir. 2000)............................... 5, 6, 8, 9, 19, 20, 24-26 Estate of Becker v. Eastman Kodak Co., 120 F.3d 5, 21 EB Cases 1384 (2d Cir. 1997) ..............................................................................................................................................38 Farr v. U.S. W est Communications, 151 F.3d 908, 22 EB Cases 1289 (9th Cir. 1998), as amended, 179 F.3d 1252 (9th Cir. 1999), cert. denied, 528 U.S. 1116, 120 S. Ct. 935, 23 EB Cases 2944 (2000) .....................................................................................39 Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)........................................................................................................................................37 Flanigan v. General Electric, 93 F. Supp. 2d 236, 269 (D. Conn., 2000)......................................34 Frommert v. Conkright, 328 F. Supp. 2d 420 (W.D.N.Y. 2004)...................................................33 Geller v. County Line Auto Sales, 86 F.3d 18 (2d Cir. 1996) .......................................................28 Gilbert v. Burlington Indus., Inc. , 765 F.2d 320 (2d Cir. 1985), aff' d, 477 U.S. 901, 106 S. Ct. 3267, 91 L. Ed. 2d 558 (1986) ..............................................................................29 Gray v. Briggs, 1998 U.S. Dist. LEXIS 10057 (S.D.N.Y. 1998) ..................................................34 Greenblatt v. Delta Plumbing & Heating, 68 F.3d 561 (2d Cir. 1995)..........................................20 Greenhalgh v. Putnam Savings Bank, 140 F.3d 427 (2d Cir. 1998)............................12, 13, 15, 17 Griggs v. E. I. DuPont de Nem ours & Co., 237 F.3d 371, 25 EB Cases 1641 (4th Cir. 2001) .......................................................................................................................................39 Harris Trust & Sav. Bank v. Salomon Smith Barney, 530 U.S. 238 (2000) ................................21 Harte v. Bethlehem Steel Corp., 214 F.3d 446, 28 EB Cases 1155 (3d Cir. 2000), cert. denied, 531 U.S. 1037, 121 S. Ct. 626 (2000).......................................................................39
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Heidgerd v. Olin Corp., 906 F.2d 903 (2d Cir. 1990)....................................................................27 Hillis v. Waukesha Title Co., Inc., 576 F. Supp. 1103 (E.D. Wis. 1983)......................................29 James v. New York City Dist. Council of Carpenters' Benefits Funds, 947 F. Supp. 622, (E.D.N.Y. 1996)...........................................................................................................27 Jensen v. SIPCO, Inc., 867 F.Supp. 1384 (N.D. Iowa 1993).........................................................29 Jordan v. Federal Express Corp., 116 F.3d 1005, 21 EB Cases 1209 (3d Cir. 1997)....................38 Koenig v. International Life Corp., 880 F. Supp. 372 (E.D. Pa. 1995) .........................................30 Lawford v. New York Life Ins. Co., 739 F.Supp. 906 (S.D.N.Y. 1990).......................................34 Layou v. Xerox Corp., 238 F.3d 205 (2d Cir. 2001) .....................................................................28 Leyda v. AlliedSignal, 322 F.3d 199 (2d Cir. 2003) .....................................................................29 Lyons v. Georgia Pacific Corp. Salaried Employees Retirement Plan, 221 F.3d 1235 (11th Cir. 2000), cert. denied, 532 U.S. 967 (2001) ........................................................16, 25 McNeese v. Health Plan Mktg. , 647 F. Supp. 981, 8 EB Cases 1154 (N.D. Ala . 1986) ..............................................................................................................................................39 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) .............................................................20 Moore v. Metropolitan Life Ins. Co., 856 F.2d 488 (2d Cir. 1988)...............................................27 Moriarity v. United Technologies Corp., 947 F. Supp. 43 (D.Conn. 1996) ..................................29 Mullins v. Pfizer, 23 F.3d 663 (2d Cir. 1994) ...............................................................................37 Normann v. Amphenol, 956 F.Supp. 158 (N.D.N.Y. 1997)..........................................................31 Novak v. TRW, Inc., 822 F. Supp. 963 (E.D.N.Y., 1993).............................................................34 Pocchia v NYNEX Corp., 81 F.3d 275 (2d Cir. 1996)..................................................................39 Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911 (2d Cir. 1982).................................28 Production and Maintenance Em ployees’ Local 504 , 954 F.2d 1397 (7th Cir. 1992) ..............................................................................................................................................30
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Rosen v. Hotel & Restaurant Em ployees & Bartenders Union of Phila., Bucks, Montgomery, & Delaware Counties , 637 F.2d 592, 2 EB Cases 1054 (3d Cir.) cert. denied, 454 U.S. 898, 102 S. Ct. 398 (1981).........................................................................38 Stewart v. Thorpe Holding Co. Profit Sharing P lan, 207 F.3d 1143, 24 EB Cases 1754 (9th Cir. 2000), cert. denied, 531 U.S. 1074, 121 S. Ct. 768, 25 EB Cases 2280 (2001)....................................................................................................................................39 Suozzo v. Bergreen, 2002 U.S. Dist LEXIS 11726 (S.D.N.Y. 2002) ...........................................30 Swierkiewicz v. Sorema, 534 U.S. 506 (2002)..............................................................................33 Varity Corp. v. Howe, 516 U.S. 489 (1996) ......................................................................21, 35, 36 Vartanian v. Monsanto, 14 F.3d 697 (1st Cir. 1994) .....................................................................37 Veilleux v. Atochem North Am. Inc., 929 F.2d 74 (2d Cir. 1991)................................................29 West Virginia Univ. Hospitals v. Casey, 499 U.S. 83 (1991) .......................................................13 CODE & REGULATIONS 29 U.SC. §623 (i)(1)(A)...................................................................................................................6 29 U.S.C. §623 (i)(4) .....................................................................................................................14 29 U.S.C. §631 (a) .........................................................................................................................14 29 U.S.C. §1022.............................................................................................................................28 29 U.S.C. §1022 (a) .......................................................................................................................27 29 U.S.C. §1022 (b) .................................................................................................................28, 29 29 U.S.C. §1001.............................................................................................................................28 ERISA §2 (21) ...............................................................................................................................39 ERISA §3 (19) ...........................................................................................................................5, 24 ERISA §3 (23) .......................................................................................................................5, 9, 19 ERISA §3 (23) (B) .........................................................................................................................19 ERISA §3 (34) ...........................................................................................................................4, 20 ERISA §3 (35) ...........................................................................................................................4, 20
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ERISA§102 ....................................................................................................................3, 27, 32, 33 ERISA §102 (7) .............................................................................................................................36 ERISA §104 ............................................................................................................................27, 33 ERISA §203 .....................................................................................................................................5 ERISA §203 (a)....................................................................................................................5, 24, 26 ERISA §203 (e)..............................................................................................................................19 ERISA §204 .....................................................................................................................................5 ERISA §204 (a)(1).........................................................................................................................22 ERISA §204 (b)(1).........................................................................................................................19 ERISA §204 (b)(1)(H) ...................................................................................................................14 ERISA §204 (h) ............................................................................................. 2, 6, 21, 22, 26, 30-33 ERISA §205 (g) .............................................................................................................................19 ERISA §502 (a)(1)(B)........................................................................................3, 21, 35, 26, 38, 39 ERISA §502 (a)(3).........................................................................................................3, 21, 36, 38 ERISA §204 (b)(1)(B) ...............................................................................................3, 6, 18, 22, 25 ERISA §204 (b)(1)(g) ..............................................................................................................18, 19 ERISA §204 (b)(1)(H) ......................................................................... 1, 2, 4, 10, 12, 17-19, 21, 22 ERISA §204 (b)(1)(H)(iii) .............................................................................................................15 ERISA §204 (c)(3)...........................................................................................................................5 ERISA §204 (g) ...............................................................................................................................5 ERISA §502 (a)(5).........................................................................................................................21 ADEA §4 (i)(1)(A) ........................................................................................................................10 ADEA § 4 (i)(4) .............................................................................................................................14
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I.R.C. §411.......................................................................................................................................5 I.R.C. §411 (b)(1)...........................................................................................................................19 I.R.C. §411 (a)(7)(A) .....................................................................................................................19 I.R.C. § 401 (a)(25)........................................................................................................................19 I.R.C. §411 (b)(1)(H) .................................................................................................................6, 10 I.R.C. § 411 (a)(11)(B) ..................................................................................................................19 I.R.C. § 417 (e) ..............................................................................................................................19 26 C.F.R. §1.411 (a)-4 ...................................................................................................................24 26 C.F.R. §1.411 (b)-2(i)(B)............................................................................................................6 29 C.F.R. §2520.102 (b) ................................................................................................................27 29 C.F.R. §2520.102-2 (a) .............................................................................................................28 29 C.F.R. §2520.102-2 (b) .............................................................................................................28 29 C.F.R. §2520.102-3 (l) .............................................................................................................28 52 F.R. 45360 (Nov. 27, 1987) ......................................................................................................13 53 F.R. 11876 (Apr. 11, 1988).......................................................................................................13 63 F.R. 68678 (Dec. 14, 1998) ......................................................................................................22 67 F.R. 76123 (Dec. 11, 2002) ......................................................................................................13 68 F.R. 17277 (Apr. 9, 2003).........................................................................................................22 IRS Notice 96-8, 1996-1 C.B. 359.................................................................................................24 Treas. Reg. 1.411(b)-1 (b)(2)(iii), Examples (2) and (3) ...............................................................21 Treas. Reg. 1.411(b)-1 (g)..............................................................................................................21 RULES Federal Rule of Civil Procedure 8 ...................................................................................................2
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Rule 12 (b)(6)...................................................................................................................................1 OTHER AUTHORITIES 131 Cong. Rec. 18868....................................................................................................................17 1986 U.S.C.C.A.N. at 4024 ...........................................................................................................16 1986 U.S.C.C.A.N. at 4026-27 ......................................................................................................15 P.L. 99-509, 100 Stat. 1874, §§ 9201-9204, with S. Amendment 2863, reprinted at 132 Cong. Rec. 25042-44 ..............................................................................................................15 H.R. Conf. Rep. 99-1012, at 382; 1986 U.S.C.C.A.N. 3868, 4027 ...............................................14 H. Conf. Rep. at 274, 3 ERISA Leg. Hist. 4541............................................................................21 Lawrence Sher, “Survey of Cash Bala nce Conversions” Benefits Quarterly , 1st Quarter 2001 ..................................................................................................................................26 Restatement (Second) of Trusts §§170(2) .....................................................................................39 Shea, Francese and Newm an, “Age Disc rimination in Ca sh Balance Plans: Another View”, 19 Va. Tax Rev. 763 (2000) ................................................................................12 S.Rep. No.127 (93d Cong.,2d Sess. (1974) ...................................................................................38 Sutherland Statutory Construction (6th ed.), §§46.05 and 46.06....................................................15 Sutherland Statutory Construction (6th ed.), §47.28 ......................................................................20 Zelinsky, “The Cash Balance Controversy” 19 Va.Tax Rev. 683 (2000) ......................................4
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I. Introduction. This proposed class action alleges that when FleetBoston converted its traditional defined
benefit pension plan to a “cash balan ce” formula, it violated the federal laws governing pensions in four ways:
(1) FleetBoston’s cash balance form ula illegally conditions em ployees’ rights to futu re benefits on their giving up benefits they earned in the past;
(2) FleetBoston’s cash balance for mula discriminates against older work ers in violation of ERISA by decreasing the rate of benefit accrual based upon an employee’s age;
(3) FleetBoston failed to a dequately disclose th at the new cash balanc e plan significantly reduced the benefits offered before the company amended the plan; and
(4) FleetBoston is breaching its fiduciary duties by telling retiring e mployees only about the balances in their cash balance accounts without telling them they may still retire with any larger benefit they earned under the pre-cash balance plan formula. FleetBoston has moved to dismiss under Rule 12(b)(6) raising eight issues: 1. Although ERISA §204(b)(1)(H) expressl y prohibits decreases in the rate of
employees’ benefit accruals because of the employees “attainm ent of any age ,” FleetBoston contends that Congress really in tended for this to m ean “attainment of normal retirement age”. Does ERISA §204(b)(1)(H) apply to e mployees who have not reached the plan’s norm al retirement age? Yes, the plain language of the statute says so. While earlier drafts in Congress contained a rule that applied after normal retirement age, the conference committee and the final conference report substituted the words “any age”. This is the law that Congress enacted. The case law and IRS interpretations further prove that ERISA §204(b)(1)(H) means what it says.
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2. Although ERISA §204(b)(1)(H) applies to decreases in “the rate of benefit accrual,” FleetBoston says that for cash balance p lans the “rate of benefit accrual” sh ould not be interpreted as the change in the “accrued benefit” from year to year, but should be the change in the hypothetical b alance of a participant’s cash balance account. Is FleetBoston’s definition of “the rate of benefit accrual” th e right one? No, FleetBosto n’s cash balance plan is a “defined benefit plan” under ERISA. By statute, the op erative benefit under any defined benefit plan, including a cash balance plan, is the annuity at norm al retirement age. The “rate of benefit accrual” under a defined benefit plan, includ ing a cash balance plan, is judged by the change in the annuity at norm al retirement age. FleetBo ston wrongly analogizes to defined contribution plan rules – such as those applicable to 401k plans.
3. FleetBoston next contends that the Cour t should dismiss Richards’ complaint because it does not allege she exhausted her adm inistrative remedies. Should the Court dism iss on this procedural ground? No, Richards can prove sh e exhausted administrative remedies. Moreover, exhaustion isn’t required because this is a cas e alleging statutory violations. In an y case, even where exhaustion must be shown, this Court has held it does not need to be pled.
4. ERISA §204(h) requires plan adm inistrators to notify participants 15 days in advance of a significant reduction in benefit accruals. Should the Court, as FleetBoston suggests, dismiss Richards’ Section 204(h) claim because sh e failed to allege in the com plaint that sh e was prejudiced by the lack of notice? No, a plan particip ant doesn’t need to show prejudice to prove that a plan administrator violated Section 204(h). The statute makes no mention of prejudice and this court should not read that requirem ent into it. Moreover, FleetBoston’s heightened pleading requirement is again not supported by Federal Rule of Civil Procedure 8.
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5. ERISA §102 requires plan administrators to give participants updated summary plan descriptions or summ aries of m aterial modification explaining how benefits m ay be lost or reduced as a result of plan changes. Should the Court di smiss Richards’ ERISA §102 claim because she didn’t allege how she was ind ividually prejudiced by the SPDs’ no ndisclosures? No, the Second Circuit has ruled th at the test is “likely prejudice, ” not individual prejudice or reliance. Regardless of the standard , no case h olds that prejudice needs to be alleged in the complaint.
6. In Count VI, Richards cla ims FleetBoston breaches its fiduciary duties by te lling retiring employees about the ba lances in their cash balanc e accounts, but not telling them they can still retire with any larger annuity benefit earned under the pre-cash balance formula. Should the Court dismiss Count VI for lack of standing because Richards did not allege this happened to her? No, Richards has not retire d. She is seeking declaratory and injunctive relief to ensure that this does not happen to her and others similarly situated. Under Second Circuit case law Richards has standing so long as she is w ithin the zone of inte rests ERISA seeks to protect. Richards can seek to enjoin the practice und er ERISA §502(a)(3) so she and others don’t fall prey to the practice when they retire.
7. The Suprem e Court has held that wh ere a plaintiff ca n obtain relief under ERISA §502(a)(1)(B), the courts need not grant relief unde r ERISA §502(a)(3). Should Richards’ complaint be dismissed because she seeks relief under both sections? No, Richards has m erely pled the two sections in the alternative.
8. The Second Circuit has held that only the plan and its fiduciaries are liable for failing to pay benefits due under ERISA or the term s of the plan. The plan sponsor may not be directly liable as such. Should the Cour t dismiss FleetBoston Financial Corporation from the lawsuit
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because it m aintains that it is the plan sponso r, but not the plan adm inistrator? No, Richard s claims FleetBoston was a plan fiduciary which br eached its duties. Whether it was an ERISA fiduciary is a question of fact based on the actual functioning of the plan which is inappropriate for the Court to resolve on a motion to dismiss. II. ERISA Allows Two Types of Pension Plans.
1. The Basic ERISA Text. ERISA says pension benefits can have just one of two for ms: defined benefit plans that describe a plan in terms of the thing an employee gets out of it and defined contribution plans that focus only on the money an employer puts into it and where what comes out of it depends on how much that money grows by the time the employee retires.1 Berger v. Xerox, 338 F.3d 755, 757 (7th Cir. 2003); Cooper v. IBM , 274 F.Supp. 2d 1010, 1020-21 (S.D. Ill. 2003); Zelinsky, “The Cash Balance Cont roversy” 19 Va.Tax Rev . 683, 687-93 (2000). Under ERISA, an “individual account plan” or “defined contribution” plan is defined in pertinent part as: a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant’s account, and any incom e, expenses, gains, and losses and any forfei tures of accounts of other participants which may be allocated to such participant’s account. ERISA §3 (34). A defined bene fit plan, in pertinent part, is described by ERISA more simply as: “a pens ion plan o ther than an individual acco unt plan.” ERISA §3 (35). Critical to the distinc tion between the two kinds of benefits and the claim s of the class herein, is ERISA’s definition of “accrued benefit”: The term “accrued benefit” means--
1 A traditional pension, paying a worker a percentage of his former salary every month for life is a classic defined benefit plan. A 401k is a prototypical defined contribution plan.
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(A) in the case of a defined benefit plan , the individual’s accrued benefit determined under the plan and except as provided in §204 (c)(3), expressed in the form of an annual benefit commencing at normal retirement age. (B) in the case of a plan which is an individual account plan, the balance of the individual’s account. ERISA §3 (23)(emphasis added).2 Under ERISA, every plan that is not an individual account (defined contribution) plan is a defined benefit plan, and the benefits under every defined benefit plan must be expressed “in the form of an annual benefit commencing at normal retirement age.” Id.3 “In brief, the rules governing distributions from defined benefit plans are framed in terms of the normal retirement benefit – typically a single life annuity payable at nor mal retirement age.” Esden v. Bank of Boston, 229 F.3d 154, 159 (2d Cir. 2000). 2. ERISA’s Differing Treatment of the Two Types of Plans. While the expression of bene fits under a defined benefit pl an in term s of an annu ity commencing at normal retirement is the m ost important difference for our purposes here, there are other important consequences of the distinction between the two typ es of plans that m atter here too. S ome important ERISA rules designed to ensure that plans deliver the benefits they promise and pertinent here, apply to all plans. No pension plan can be am ended in ways that reduce participants’ accrued benefits. ERISA §204 (g). ERISA also establishes m inimum vesting requirements for all p lans so that an employee’s right to theoretically accumulating pension benefits cannot be taken away. ER ISA §203, §204, Code §411. Once the benefits vest, they must be “nonforfeitable”. ERISA §203 (a ). A “nonforfeitable” right is one defined by ERISA as being “uncon ditional.” ERISA §3 (19). There are seve ral rules in add ition to the benefit accrual rules that apply only to defined benefit plans. Fi rst, to prevent em ployers from
2 IRC §411( a)(7)(A)(i) also require s that benefits under defined be nefit plans be calculated in terms of an annual benefit commencing at normal retirement age. 3 Alternative forms of payment such as a lump sum must be the actuarial equivalent of a norm al retirement annuity.
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excessively postponing the vesting of pension be nefits (“backloading”), ERISA regulates the pace at which benefits under a defined benefit pl an accrue, requiring that “the v alue of the benefit accrued in any year...not ex ceed the value of a benefit accrued in any prev ious year by more than 33%.” Esden, 229 F.3d at 169; ERISA §204 (b)(1)(B); 26 C.F.R. 1.411(b)-2(i)(B)(the so-called “133 1/3 percent” te st). Second, age discrim ination in defined benefit plans is prohibited by ERISA §204 (b)(1)(H) which provides in pertinent part:
a defined benefit plan shall be treated as not s atisfying the requirem ents of this paragraph if, under the plan, an em ployee’s benefit accrual is ceased, or the rate of an employee’s benefit accrual is reduced, because of the attain ment of any age. Id. (emphasis added). Sim ilarly, the Age Disc rimination in Em ployment Act provides in pertinent part: “It shall be unlawful for an em ployer... to establish or m aintain an em ployee pension benefit plan w hich requires or perm its–...in the case of a defined benefit plan...the reduction of an em ployee’s benefit accrual, beca use of age....” 29 U.S.C. §623 (i)(1)(A). The IRS Code further provides: ...a defined benefit plan shall be treated as not satisfying the requirem ents of this paragraph if, under the plan, an employee’ s benefit accrual is ceased, or the rate of an employee’s benefit accrual is reduced, because of the attainment of any age. Code §411 (b)(1)(H). Finally, when defined benefit plans are amended in ways that significantly reduce benefit accruals each participant must receive notice of the reduction 15 days prior to th e effective date of the change. ERISA §204 (h). 3. Characteristics of Conventional Defined Benefit Plans. Conventional defined benefit plans pay wo rkers an annuity based on the retiree’s earnings history and her com pleted years of service. Zelinsky, supra at 687. Typically such plans set th e annuity as a percentag e of the employee’s highest salary years m ultiplied by the
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employee’s years of service. Id. Formulas of this type tend to reward the longest serving and presumably the most loyal employees by tying their retirement benefit amount to years of service and to salary, which is usually hi gher in an employee’s last years of service. Under these p lans, as an employee gets closer to retirement and enjoys a higher salary, an employer must put away increasingly larger sum s of m oney so that funds are available to pay the prom ised benefit at retirement. Id. at 688. Em ployees with less servi ce and m ore years until retirem ent correspondingly cost employers less, especially because, given poten tial investment earnings over time, the longer an em ployer has before havi ng to pay a dollar, the s maller the amount of money the em ployer has to put aside to provide the dollar in the future. Id.4 For t his reason, traditional defined benefit plans a re described as “backloaded” -- an employee’s last years of service under a plan --- close to collecting, with a high salary and many years of service --- tend to be most profitable to the employee and most expensive to the employer. Id.5 Defined benefit plans benefit workers b ecause they require em ployers to contribu te to pension tru sts whatever amount of money is needed to m eet the plan’s obligation to m ake fixed payments to retirees, granting employers the risks and rewards of the trust investment experience.6
4. Characteristics of Conventional Defined Contribution Plans. Conventional defined contribution plans, by not prom ising anything other than the employer’s funding commit ment, do not focus on what an employee receives at retirem ent but only on the paym ents into the em ployee’s account. Id. at 691-2. W hat happens to the m oney after that is the employee’s risk. The money may provide a generous retirement if the employee’s
4 Thus, if an employer wants to reduce benefit expenses, reducing older workers pensions yields the highest returns. 5 The anti-backloading rules, supra are designed to prevent ex cesses of backloading that would prevent short service employees from realizing any benefits at all. 6 The m ore favorable the pension trust’s inve stment experience, the s maller the em ployer’s contributions to the trust can be and vice versa.
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investment experience with the co ntribution is favorable or a less comfortable retirement if the employee’s investment experience with the contribution is unfavorable. Id. In any case, the employer’s contribution to the fund is typically le vel (ie- 10% of salary annually) and need not increase as an e mployee nears retirem ent in or der to fund an annuity that comm ences at that point. Id. Defined contribution plans benefit employe rs because they fix em ployers’ obligations to retirement plan acco unts and place the risk s and the rewards asso ciated with investm ent experience on employees. See Zelinsky supra at 687-93.
5. Characteristics of Cash Balance Plans. Cash balance plans are essentially an attem pt to seek (principally for employers) the best of both worlds.7 Cash balance plans, m imicking defined contribution plans, typically feature the creation of hypothetical accoun ts for each em ployee to w hich a percentage of an em ployee’s salary (pay credit) and a minimum rate interest payment (interest credit) are made each year. Id. at 693-4; Esden v. Bank of Boston , 229 F.3d 154, 158 (2d Cir. 2000). The total amount of pay and interest credits in the hypothetical account at any given m oment is the em ployee’s cash balance account. Because of th e hypothetical accounts, cash balance plans look something like defined contribution plans. Id. However, because the output of the plans consist of the pay credit plus a fixed rate of interes t, with the em ployer accepting the actual risks an d rewards of investments, cash balance plan s are defined benefit plans. Esden, 229 F.3d at 158, 162 (2d Cir. 2000). Because they are defined benefit plan s, they are subject to the rules against ag e discrimination, against excessive backloadi ng, and requiring advance notice of benefit reductions.
7 Employers with defined benefit plans face d isincentives against simply terminating a defined benefit plan and establishing a defined cont ribution plan. Term ination vests previously forfeitable benefits, loses for employer’s the benefit of plan surp luses, and exposes employers to
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III. Cash Balance Plans and FleetBoston’s Plan in Particular Discriminate Based Upon Age. 1. Cash Balance Plans Generally. Unlike benefits under conventional defined be nefit plans, pension benefits under cash
balance plans accrue in relatively (or som etimes absolutely) stable percentages th roughout an employee’s career. The benefits do not start out accruing in small amounts and then significantly balloon in the final years like benefits do in conven tional defined benefit plans. The net effect of this difference is that younger em ployees relatively gain under cash balance plans and older employees relatively lose under cash balance plans. Zelinsky, supra at 706. Moreover, because younger employees do not gain as much as older em ployees’ lose, employers yield significant net savings by converting to cash balance plans. Id . Cash balance savi ngs thus come at th e expense of older workers.
The age impact of cash balance plans is made especially clear from the impact on benefit accrual rates that occurs as a cash balance plan builds benefits toward an annuity commencing at normal retirement age, the benef it lens throug h which all defined benefits m ust be viewed. 8 Thus, at any given date of determination, the rate of benefit accrual is determined by converting the contents of a cash balance a ccount into an annuity a t normal retirement-- in short answering the question: what size annuity comm encing at normal retirement age could be bought with the benefits earned to date? Under cash balance plans, an older work er with the same rate of pay and years o f service, receiv ing the sam e dollar am ount of contribu tion to her cash balance
tax surcharges. Zelinsky, supra at 712-15. It is thus far better for an employer to shed as many of the burdens of defined benefit plans while retaining as many of the benefits as possible. 8 Esden, supra at 159 (“In brief, the rules governing dist ributions from defined benefit plans are framed in term s of the norm al retirement benefit – typically a single life annuity payable at normal retirement age.”); ERISA §3 (23)(“accrue d benefit” m eans...the individual’s accrued benefit determined under the plan... expressed in the form of an annual benefit commencing at normal retirement age.)(emphasis added).
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account, buys an increasingly sm aller annuity with that money because the clo ser the old er worker gets to re tirement age th e less tim e the m oney contributed has to earn ann ual interest credits under the plan. Zelinsky, supra at 721-22. Thus:
Consider, for example, a participant who, at ages thirty-five, forty-five, and fiftyfive receives in each y ear a theoretical contribution of $1000 to her hyp othetical cash balance account. As of age sixty-f ive, the ear liest contribution will, in annuity terms, represent an annu al income of $1094 per year; the $1000 contributed ten years later at age forty-five will constitute at retirement an annuity of $507 per year; and the last $ 1000 contributed at ag e fifty-five will, at retirement, represent an annuity of $225 per year. Thus, even though the employee, in defined contribu tion terms, has been accru ing contributions at a steady pace (i.e., $1000 per year), the em ployee has been earning benefits at a decreasing rate in defined benefit term s. Since later contributions have less time for investment growth, they gener ate less annuity income at re tirement than earlier contributions, which have more time to grow from investment earnings. Id. at 722-23. Or as the Court in Cooper v. IBM , 274 F. Supp. 2d 1010 (S .D. Ill.2003), declared in finding age discrimination in IBM’s cash balance plan: “At this point in the analysis, the result is inevitable. In terms of age 65 annuity, the interest credit s will always be m ore valuable for a younger employee as opposed to an older em ployee.” Id. at 1021. Structured as they are m ost cash balance plans accrue benefits that steadily decrease with advancing age in direct contradiction of the ERISA §204 (b)(1)(H), the ADEA §4 (i)(1)(A), and the Code §411 (b)(1)(H) prohibitions against the rate of an employee’s defined benefit accrual being reduced because of the attainment of any age. 2. FleetBoston’s Plan. FleetBoston’s pension plan is no different. Prior to 1997 , FleetBoston pension plan participants received a traditional defined benefit formula consisting of an annuity for life that is a percentage of salary. Exhi bit “1” at 2, 7 (FleetBoston SPD)(FleetBoston calls this th e
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“Traditional Benefit”). Effective January 1, 1997, FleetBoston converted its traditional plan to a

cash balance plan. Id. at 2, 21 (FleetBoston calls this the Cash Balance Benefit).

Like most cash balance plans, FleetBoston’s Cash Balance Benefit is a combination of

pay credits and interest credits. Unlike some plans, FleetBoston’s plan partially anticipates the

correlation between increasing age and declining benefit accruals by in creasing pay credits with age. Id.9 The FleetBoston Cash Balance Benefit us es the f ollowing schedule to c alculate pay

credits:

POINTS age +service
Social

CRE

DIT Earnings Below
Security Wage Base

Earnings Above Social Security Wage Base

Under 40

3%

6%

40 to 49

3.5%

7%

50-59

4.5%

9%

60-69

5.5%

11%

70-79

6.5%

13%

80 or more

7.5%

15%

To calculate interest credits (which ar e paid quarterly on the hypoth etical accounts)

FleetBoston uses a variable rate s et as the av erage of the constant m aturity one-year Treasury

Bill for the month preceding the calendar quarter. Interest credits are paid until participants draw

their money out. Id. at 25. Richards will present expert testimony that despite FleetBoston’s pay

credit adjustment, age rem ains the central fact or in determ ining benefits and, like other cash

balance plans, employees’ rate of benefit accrual under the FleetBoston’s plan declines with age.

9 When employees’ income exceeds the Social S ecurity taxable wage base ($65,400 for 1997) employees get an additional Pay Credit. Id. at 24.
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FleetBoston defends against the anti-discr imination charge with a num ber of the arguments conventionally employed by cash balance advocates.10 IV. Richards’ Age Discrimination Claim Should Stand.
1. The Language of the Age Discrimination Statute. FleetBoston relies on the District Court’s holdings in Eaton v. Onan , 117 F.Supp.2d 812 (S.D.Ind. 2000). Adapting from Onan, FleetBoston’s first claim concerns the prohibition in ERISA §204 (b)(1)(H) against decreases in the rate of employees’ benefit accruals because of the employees “attainment of any age”. FleetBos ton says Congress m eant “attainment of any age” to mean “attainment of normal retirement age”. The Second Circuit woul d likely reject this claim. In 1998, the Second Circuit affir med a decision of this Court (Art erton, J.) in Greenhalgh v. Putnam Savings Bank, 140 F.3d 427, 429 (2d Cir. 1998), that found an “age-based distinction in violation of the a mended Act” when com pensation between ages 60 to 65 was excluded in computing pension benefits. In Greenhalgh , the Court ruled that Putnam Savings Bank “impermissibly” computed pension benefits under ERISA § 204(b)(1)(H) by excluding compensation in th e years before age 65. 140 F.3d at 431. The Second Circuit af firmed the Court’s decision and its further ru ling that Putnam Savings had modified its practices to comply with the amended Act on its ef fective date by excluding the last 5 years of compensation for all participants “regardless of the age of the em ployee.” 140 F.3d at 430. Accordingly, the Second Circuit has already recognized that the scope of the “attain ment of any age” langu age reaches ages below 65 (in Greenhalgh ages 60-65). The Greenhalgh Court’s application of the “attain ment of any age” language proceeds obviously from the plain language of the statute. An example shows the difference between the
10 See e.g. Shea, Francese and Newman, “Age Discrim ination in Cash Balance Plans: Another View”, 19 Va. Tax Rev. 763 (2000).
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statutory rule and the construc tion that FleetBoston now proposes . If the prohibition against decreases in rates of accrual were lim ited to decreases in rates “af ter age 65,” a com pany sponsoring a pension plan could decrease an employee’s rate of accruals at age 50, 55, 60, or even 64 from a benefit equal to 2% of pay to .1% of pay. As Fl eetBoston would construe it, the company would only violate ERIS A (and the ADEA for that m atter) if the reduction occurred after age 65. FleetBoston’s construction would make a mockery of the age discrimination laws. But, as the Supreme Court has said in West Virginia Univ. Hospitals v. Casey, 499 U.S. 83, 101 (1991), “It is our role to make sense rather than nonsense out of the corpus juris.”
The federal agencies with in terpretive responsibility for this statute have also rejected FleetBoston’s construction. In proposed regulations issued by the IRS in 1988 and by the EEOC in 1987, the statutory reference to “any age” has been interpreted to m ean what it says. 53 F.R. 11876 (Apr. 11, 1988) and 52 F.R. 45360 (Nov. 27, 1987) . Although the IRS did not m ake its proposed regulations final, it au thorized taxpayers to rely on the regulations for guidance pending issuance of final regulations. 53 F.R. at 11878; accord Greenhalgh v. Putnam Savings Bank, 140 F.3d at 430 n.4. On Decem ber 11, 2002, th e IRS issued a new set o f proposed regulations. 67 F.R. 76123. In those regulations , which contain several controversial new proposals for cash balance pension plans discussed infra, the IRS reiterated:
Under these sections, attainm ent of any age means a participant’s growing older. Accordingly, these regulations, like th e 1988 proposed regulations, would apply regardless of whether the participant is older than, younger than, or at norm al retirement age. Some commentators have suggested that only cessations or reductions after attainment of norm al retirement age ar e prohibited by these sections. This interpretation is not consistent with the language of the statute, which does not specify any minimum age at which the rule applies. 67 F.R. at 76124 (emphasis added).
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Moreover, contrary to the conclusion of the Onan Court, Congress’ intention to address

discrimination in rates of benef it accruals at “any age” is eviden t in both the 1986 Conference

Report and Section 4(i)(4) of the ADEA, 29 U.S. C. § 623(i)(4). The C onference Report states

that: “It is the in tention of the co nferees, in adopting am endments to ADEA . . . that the

requirements contained in section 4(i) related to an employee’s right to benefit accruals . . . shall

constitute the entire extent to which ADEA affects such bene fit accrual and contribution matters

with respect to such plans on or after the effect ive date of such provisions.” H.R. Conf. Rep. 99-

1012, at 382; 1986 U.S.C.C.A.N. 3868, 4027 (emphasis ad ded). Section 4(i)(4) codifies this by

providing that compliance with the prohibition on decreasing the rate of accruals at any age

constitutes compliance with the ADEA’s prohibition on age discrimination insofar as it relates to

benefit accruals. As this Court knows, the age discrim ination rules apply to workers “who are at

least 40 years of age.” 29 U.S.C. § 631(a). Unde r FleetBoston’s construction, the requirements

contained in section 4(i) would be limited to ind ividuals who are past age 65 , but they would

nevertheless constitute the “entire extent” to which ADEA affects rates of benefit accrua l for

individuals past age 40. This would make the statutory scheme nonsensical.

If this were not sufficient, Richards would also draw the Co urt’s attention to two r elated

subsections in the same act: First, a subsequent subsection provide s that an em ployee’s rate of

benefit accruals is no t considered decreased “solely because the subsidized portion of any early

retirement benefits is disregarded.” ERIS

A § 204(b)(1)(H)(v), 29 U.S.C. §

1054(b)(1)(H)(v)(emphasis added). This exception concerning early retirement would not be

necessary if the general rule only applied to employees who are past age 65 and were eligible for normal retirement.11 In addition, there are two referenc es in a subsequent subsection to

11 The Conference Report also discusses the exception for “subsidized early retirement benefits” and the agencies’ authority to make additional exceptions to the general rule for “other types of

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employees who have “attained norm al retirement age” in circum stances where Congress intended the rules to be limited in this manner. ERISA § 204(b)(1)(H)(iii). In addition to Onan, FleetBoston’s argument on this poin t relies on a ruling by Judge Nicholas Po litan in Engers v. AT&T Corp, 2001 U.S. Dist. LEXIS 25889 (D. N.J. 2001)(Exhibit “2”). The Engers decision was designated “not for publication. ” Judge Politan’s decision was a sua sponte dismissal in reliance solely on the d ecision in Onan.12 Judge Politan, who retired at the start of 2002, did not ask for briefs on this matter from the plaintiffs and his ruling has not been reviewed because it is interlocutory. Like the Onan decision, the Court in Engers never addressed the IRS’s interpretation of the statutory language and neither controls here in light of Greenhalgh.
Ultimately much of the ef fort to judicia lly rewrite “any age” to “ age 65" res ts on a vestigial heading. In the Internal R evenue Code, but not in ERISA or the ADEA, the statutory rules are preceded by a heading that read s “Continued accrual beyond norm al retirement age.” This heading originated with earlier ve rsions of the bill which had less comprehensive objectives. Compare S. Amendment 2863, reprinted at 132 Cong. Rec. 25042-44. In conference, the legislation was expanded to comprehensively pr ovide that the rate of benefit accruals m ay not cease or be decreased because of the attainment of “any age.”13
It is a b lack letter rule of statutory construction that a statute’s effect is not lim ited to earlier objectives. Instead, each word in th e statute is g iven its plain m eaning. See, e.g., Sutherland Statutory Construction §§ 46.05 and 46.06. St atutory headings can provide som e indication of the meaning of doubtful terms. Almendarez-Torres v. United States, 523 U.S. 224,
benefits, such as disability benef its or social s ecurity supplements, which are pay able before normal retirement age.” 1986 U.S.C.C.A.N. at 4026-27 (emph. added). 12 See Engers at *7-*13 (Exhibit “2”). 13 Along with the conferees’ expansion of the ge neral rule, several exceptions were added. Compare P.L. 99-509, 100 Stat. 1874, §§ 9201-9204, w ith S. Amendment 2863, reprinted at 132 Cong. Rec. 25042-44.
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234 (1994). But headings are not st rait jackets. As the Eleventh Circuit found in another ERISA case, “Congressional inaction regard ing an existing title” that originated with an ear lier bill “is far too thin a reed to support a statutory constr uction that would effe ctively write out of the statute the very changes that Congress amended the provision to include.” Lyons v. Georgia Pacific Corp. Salaried Employees Retirement Plan, 221 F.3d 1235, 1246 (11 th Cir. 2000), cert. denied, 532 U.S. 967 (2001). Here, the heading is not inaccurate; it is si mply an incom plete description of the final legislat ion. Forcing the final legislation to fit within a heading “would effectively write out of the statute the very changes” th at the conferees adopted to comprehensively address age discrimination in pension benefit accruals.
The Onan Court’s brief review of the Conferen ce Report as adopted here by FleetBoston skips over an example that shows how the “rules preventing the reduction of benefit accruals on account of the attainm ent of age” apply to “employees who have not attained normal retirement age.” 1986 U.S.C.C.A.N. at 4024. The exam ple compares the rates of accrual before normal retirement age for two em ployees hired at ag es 45 and 55. The Report states that the “general rule that benefit accruals cannot be reduced or ceased on account of the attainment of age” is not violated by application of ERISA’s “fraction al” rule “merely because a younger employee has a lower accrued benefit than an old er employee with the sam e number of years of service.” Id .
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(emph. added). The example cuts out any rem aining fabric from the argument that the statute is intended to apply only to workers who are past age 65.14
In summary, the IRS has expressly concluded that FleetBoston’s “i nterpretation is not
consistent with the language of the statute, which does not sp ecify any minimum age at which
the rule applies.” 67 F.R. at 76124. The unequivocal statutory language, the Conference Report,
and the Greenhalgh decision all show that Congress intende d to stop age discrim ination in rates
of accruals at “any age.”
2. The Definition of “Rate of Benefit Accrual.”
FleetBoston says that because the benefit formula does not change with the attainm ent of
any age (except to go up), no violat ion can exist and no further analys is is needed. It also says
that the words “rate of benefit accru al” in ERISA §204 (b)(1)(H) should be interpreted as it is in
defined contribution plans instead of with the o bvious reference to the definition of “accrued
benefit” that governs defined benefit plans. Ac cording to FleetBoston and other cash balance
advocates, because ERISA doesn’t explicitly define “rate of benefit accrual”, th e courts are free
to interpret it in a way convenient to cash bala nce advocates: by measuring only the growth in a
cash balance participant’s account each year -- the measure used for a defined contribution plan,
not the measure for a defined benefit plan. Flee tBoston also argues that the difference between
14 The Onan Court’s reliance on a floor statem ent by Senator Charles Grassley, who was one of 17 sponsors for the final Senate amendment, rests on an anachronism. In a prepared statement on July 11, 1985, Senator Grassley said his initia l bill on this subject (S. 1427) would require “continued pension accruals for workers who work past the norm al retirement age of 65.” Slip op. at 9 -10 (quoting 1 31 Cong. Rec. 18868). The legis lation with the p rohibition against decreasing rates of bene fit accrual at “any age” was not ad opted until over a year later. The Engers Court also quoted three stat ements from members of the House of Representatives who were conferees but not sponsors of the bill. Slip op. at 10. The special typeface in the Congressional Record shows that none of these statements were spoken on the floor of the House when the Conference agreem ent was approved. Moreover, read in full, two of those statem ents refer to the bill’s im pact on em ployees who have not reached age 65. See 132 Cong. Rec. 32963-64 (then-Cong. Jeffords) and 32974-75 (Cong. Roukema).
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older and younger workers under th e plans reflects nothing m ore than the time value of m oney: younger workers have to wait longer for their benefits . FleetBoston points out that the court in Eaton v Onan, supra largely adopted the arguments of cash balance plans proponents on these points.
FleetBoston’s reasoning, as adopted by the Onan Court is f lawed. This reasoning m ay suggest a way without legislation for cash balance plan advocates to get what they want, but it turns the ERISA statute on its head in the process. FleetBoston’s arguments depend on treating a defined benefit plan for rate of benefit accrual purposes as though it were a defined contribution plan. FleetBoston cannot deny that m easured like every other defined benefit plan, the rate of benefit accrual of its cash balan ce plan show s declining accruals w ith age. F leetBoston’s arguments depend upon ignoring th e definition of “accrued benefit” centra l to th e distinction between defined benefit plans and defined contribution plans when making the obviously related calculation of “rate of benefit accrual” used in the statute in close conjunction with its uses of the words “accrued benefit”.15 Understanding that “benefit accrual” should be calculated using the definition of “accrued benefits” is not among the many difficult jobs parsing the texts of ERI SA and the Code. It obviously should apply. Zelinsky, supra at 741.
Its application was obvious to the Court in the most widely noted cash balance decision as well. In Cooper v. IBM , 274 F . Supp. 2d 1010 (S.D. Ill. 2003) , the Court, addressed the argument that “‘benefit accrual’ means something different than the term ‘accrued benefit’” by focusing on simple grammatical construction of the words:
Defendants question wh y Congress would us e different language in succeeding subparagraphs (accrued be nefit and benefit accrual) unless it intended the subparagraphs to cover different types of benefits. The answer is sim ple. Congress chose to be gra mmatically correct. The term accrued benefit in §204 15 See e.g. §204 (b)(1)(g) and §204(b)(1)(H).
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(b)(1)(G) means an employee’s age 65 accumulated benefit. If Congress has used the term accumulated benefit in §204 (b)(1)(G), instead of the term accrued benefit, it would not have used the clumsy phrase “rate of accumulated benefit” in §204 (b)(1)(H). Presum ably, Congress would have opted for standard English and used th e phrase “rate of benefit accumulation,” even though it intended to cover the same type of benefit in both subparagraphs.n.2.
n.2. For a simpler example consider the word popcorn. Popcorn is the word used to describe the product created by exposing corn kernels to extreme heat. If asked to draft a phrase related to the speed of this process, one would not say “rate of popcorn.” Rather, to be gramm atically correct, one would sa y “the rate corn pops”.Id. at 1016.
Using the correct definition and facing the indisputable m athematics, the Cooper Court quickly
concluded the IBM cash balance plan violated ERISA §204 (b)(1)(H) by reducing a participant’s
rate of benefit accrual with increasing age. Id. at 1017.
In light of its reasoning in Esden v. Bank of Bos ton, it is hard to believe that the Second
Circuit would follow the view of FleetBoston and the Onan Court, rather than that of Richards,
the plain meaning of the statute and the Cooper Court. Esden , like the present c ase, turned on
recognition of the fact that, try as they m ight to carve out a different status between defined
contribution plans and defined benefit plans, cash balance plans are defined benefit plans and the
regulatory consequences of that can’t be ignored:
However, notwithstanding that cash balance plans are designed to im itate some features of defined contribution plans, they are nonetheless defined benefit plans under ERISA. n 6. The regulatory consequenc es of this classification are widereaching. First, ERISA § 3(23) provides diffe rent definitions of "accrued benefit" for defined benefit and defined contribution plans. Only for a defined contribution plan is "accrued benef it" defined as simply "the balance of the individual' s account." ERISA § 3(23)(B); I.R.C. § 411(a)(7)(A). Second, defined benefit plans are subject to a series of parallel stat utory constraints-- under ERISA and I.R.C.-from which defined contribution plans are exempted. Those relevant to this case include: limitations on "backload ing" of accruals, see ERISA § 204(b)(1); I.R.C. § 411(b)(1); the valuation rules of I.R.C. § 417(e) as made applicable by I.R.C. § 411(a)(11)(B), see also ERISA §§ 203(e), 205(g); and the definitely determinable benefits requirement of I.R.C. § 401(a)(25). n 6. Under ERISA the term s "defined contribution plan" and "individual account plan" are synonymous and are both defined as "a pension plan which provides for
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an individual account for each participant and for benefits b ased solely upon the amount contributed to th e participant's account, and any inco me, expenses, gains and losses . . . ." ERISA § 3(34) (em phasis added). A "defined benefit plan" is defined as any plan "other than an individual account plan." ERISA § 3(35). However "hybrid" in design a cash balance plan may be, it rem ains subject to a regulatory framework that is in m any regards rigidly binary. Because the individual accounts, and the e mployer contributions and the interest credits to those accounts, are all hypot hetical under a cash balance pl an, it is classified as a defined benefit plan. T he Plan does not (and cannot) dispute th is definition. Rather it resists--and has tried to draft around--its consequences. 229 F.3d at 158. Essential to the Esden decision and this decision are the consequences of measuring accrued benefits under a cash balance plan in term s of an annuity at norm al retirement age. “In brief, the rules governing distri butions from defined benefit plans are f ramed in term s of the normal retirement benefit--typically, a single-life annuity payable at normal retirement age.” Id at 159. It is a highly dubious proposition to suggest that having recognized employers’ desire to escape the consequences of de fined benefit pl an regulation of cash bal ance plans and having refused to submit to them in the fac e of the defined benefit statutory scheme, the Second Circuit would now succumb to them in a circum stance that is a n atural extension of the ruling m ade in Esden. Richards believes the Second Circuit would ru le that benefit accrual rates must be judged as are “accrued benefits”, through the lens of an age 65 annuity. Finally, FleetBoston’s argument overlooks the “presumption that similar language in two labor law statutes has a sim ilar meaning.” Metropolitan Life Ins. Co. v. Taylor , 481 U.S. 58, 61 (1987); accord Sutherland Statutory Construction (6th ed.), §47.28 (“when common term s are used, they should be given their common m eaning”); Commissioner v. Keystone Consol. Indus., 508 U.S. 152, ___ (1993) (“identical words used in different parts of the same act are intended to have the same meaning”; Congress was “presumptively aware” of the “settled meaning” of “sale or exchange” when it us ed the same phrase in ERISA). Accord Greenblatt v. Delta Plum bing &
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Heating, 68 F.3d 561, 576 (2d Cir. 1995) (argum ent that company was an “employer” for purposes of one section of ERIS A but not another discarded becau se the “statute makes no such distinction”). The presumption is particularly strong when pr ovisions are part of the same statutory section. See Harris Trust & Sav. Bank v. Salomon Smith Barney, 530 U.S. 238, 244-46 (2000) (holding that nonfiduciaries may be sued under ERISA § 502(a)(3) because it is sim ilarly worded to §502(a)(5)); Varity Corp. v. Howe , 516 U.S. 489 (1996) (ERISA §502(a)(3) authorizes individual relief fo r a breach of fiduciary duty be cause identical language in §502(a)(5) authorizes such relief).
In this instance, three subsections within the same section of ERISA – ERISA §§ 204(b)(1)(B), (b)(1)(H) and (h) – refer to benefit “accr uals.” The same words cannot have a different meaning in each subsection, particularly when the entire Section is titled “Benefit Accrual Requirements.” If Congress had to continually reiterate that the common term possesses the same meaning in each subsection, even the most careful draftsman would be hard-pressed to enact effective legislation.
The meaning of the “accrual rate” in ERIS A §§ 204(b)(1)(B) and 204(h) is settled and entirely consistent with Richards’ claim about what it m eans in §204(b)(1)(H). ERISA §204(b)(1)(B) refers to the “accr ual rate” in describing the 133 1/ 3% test for accrued benefits (the parallel Internal Revenue Code Section ev en names the test the “13 3 1/3% accrual rule”). The ERISA Conference Report also describes how the 133 1/3% rule tests the “rate of accrual” or “accrual rate” in different years. H. Conf. Rep. at 274, 3 ERISA Leg. Hist. 4541. The Treasury Department’s regulations on the 1331/3% rule, i ssued in 1977, com pare the “rate of benefit accrual” or the “rate of accrual” in earlier and later years. Treas. Reg. 1.411(b)-1 (b)(2)(iii), Examples (2) and (3) and 1.411(b)-1(g). A ccord Alessi v. Raybestos-Manhattan, Inc. , 451 U.S.
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504, 514 (1981) (under ERISA’s 133 1/3% rule “the accrual rate for a given year of service does not vary beyond a specified percentage from the accrual rate of any othe r year under the p lan”).
Similarly, ERISA Section 204(h) requires a pl an administrator to notify em ployees of a reduction in the “rate of future benefit accrual.” In promulgating regulations under this rule, the Treasury Department stated: “The statutory phrase “rate of future benefit accrual” implies, on its face, that section 204(h ) is lim ited to changes in the accrued benefits .” 63 F.R. 68678, 68680 (December 14, 1998). In April 200 3, the T reasury Department issued a set of regulations to implement amendments to section 204(h). Those regulations again provide that the “rate of future benefit accrual,” including under a cash b alance plan, is the “b enefit accruing for a year” in the form of a single life annuity commencing at normal retirement age. 68 F.R. 17277, 1728283, Q&A-6(b) and Q&A-8(b) (April 9, 2003).
FleetBoston essentially claims that the term “benefit accrual” does not really have to refer to the chan ge in the employee’s “accrued ben efit” – at least when that term is used under §204(b)(1)(H). It is clear th at Congress intended for its “accrued ben efit” definition to apply to §204(b)(1)(H) because this subsec tion is part o f the bro ader rules in E RISA §§ 204(a)(1 ) and (b)(1) which establish the “accrued benefit” requirements for defined benefit plans. Furthermore, as discussed above, the regulations implem enting ERISA §§ 204(b)(1)(B) and 204(h) establish that “benefit accrual” means “the change in the accrued benefit.” V. FleetBoston’s Wear A way Problem, the Illegal Conditioning of Benefits and th e
Anti-Backloading Rules. Although FleetBoston asks the Court to di smiss Counts Two and Three on technical grounds discussed below, the Court should unders tand the underlying cause of action when it considers those challenges. Richards explains them here.
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In addition to her losses from age discrimination, Richards suffers another m ajor loss of benefits by virtue of the term s and conditio ns under which her Traditional B enefits were converted into a new cash balance account. Like many cash balance plans FleetBoston’s converts the benefits of e mployees with existing pension benefits into opening cash balance accounts. When FleetBoston converted the original benef its to a cash balance account it ignored plan participants’ valuable rights to subsidized early retirement benefits and instead the benefit was expressed as a single life annuity commencing at age 65. Exhibit “1” at 22 (SPD). The plan then says that the employee’s accrued benefit is the gr eater of her benefit unde r the original benefit plan, frozen as of the c ommencement date of the cash balance plan, an d the value of the cash balance account. Id. Therefore, under FleetBoston’s Cash Balance Benefits, employees’ pension entitlements don’t grow until their hypothetical account balance under the cash balance plan equals (“wears away”) and is greater than th e value of the frozen original benefit. Id . See, Zelinsky, supra at 702. Richards can show that in many cases the “wear away” effect m akes participating in the Flee tBoston cash balance plan completely illusory because the cash balance account never exceeds the value of the frozen account . She will also show that even participants who accrue benefits under the cash balance plan lose b enefits because when FleetBosto n converted the orig inal benefits to cash balance benefits it applied a pre-retirem ent mortality discount (providing for the possib ility of death prior to norm al retirement) but provides no mechanism for creditin g this d iscount back as participants grow olde r and the risk of preretirement mortality s teadily shrinks. Such partic ipants also lose benefits when, as they hav e over the last five years, interest rates fall below the 7% ra te FleetBoston used in calculating th e conversion. Exhibit “1” at 22 (SPD)( showing 7% rate). Under thos e circumstances, participants can purchase even less of the an nuity than they had previously earned. The sm aller a
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participant’s cash balance account is, the longer the wear away on the participant’s benefits. The longer the wear away, the m ore years a participant m ust wait before accruing any new benefits under the plan.
The wear away effect has im portant legal im plications. First, it ille gally conditions participants’ right to collect benef its provided under its plans, cau sing prohibited benefit forfeitures. Second, the wear-away effect, whic h leaves employees w ith many years of no benefits followed by the sudden appearance of be nefits violates the anti-backloading prohibition on benefits increasing faster then 33.3% each year.
To prevent benefit pro mises from proving illusory, ERISA §203 (a) says th at benefit accruals must be “nonf orfeitable” once a participan t has the years of service req uired to be vested. ERISA §3 (19) defines a non-forfeitable right as a right that is “unconditional”. “A right which, at a particular tim e, is conditioned under the plan upon a subsequent event, subsequent performance, or subsequent forbearance which will cause loss of such right is a f orfeitable right at that time.” 26 C.F.R. 1.411(a)-4. IRS Notice 96-8, 1996-1 C.B. 359, further explains:
If benefits . . . have accrued [but] thos e benefits are disregarded when benefits commence before normal retirement age, the plan ha s effectively conditioned entitlement to the benefits . . . on the employee not taking a di stribution prior to retirement age. See also Esden v. Bank of Boston , 229 F.3d 154, 168 (2d Cir. 2000) (“by making part of [Lynn Esden’s] benefit conditional on the form of paym ent chosen, the P lan made that benefit forfeitable, in violation of ERISA”). FleetBoston employees who have higher frozen benefits than cash balance benefits can certainly get cash balance benefits. However, because FleetBoston does not permit them to get both, participants have to give up their higher frozen benefits as a condition of their collecting the lower cash balance benefits. The opposite is also true. FleetBoston employees can take their
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frozen benefits on condition that they give up th eir cash balance benefits . Moreover, even if someday participants’ cash balance accounts fina lly exceeds their frozen benefits, the cash balance benefits accrued will still be less then they ought to be because the cash balance benefits at conversion were set a rtificially low by virtue of its exclusion of early retirement benefits as well as the mortality assumptions and interest rate used.
Richards’ claim for relief for the condition al benefits violations is bu ilt on the Sec ond Circuit's September 2000 decision in Esden v. Bank of Boston and the authorities cited therein: Namely, ERISA’S "133 1/3%" accrual rule, ERISA’s anti- forfeiture rule, and the Treasury Department regulations on forfeitures. The Esden decision is one of only two circuit court decisions that have addressed a ccruals and vesting under cash ba lance pension plans; the other decision, Lyons v. Georgia Pacific, 221 F.3d 1235 (11th Cir. 2000), is discussed in Esden.
In Esden, Bank of Boston converted to a cash ba lance plan in 1989. In accordance with ERISA, Bank of Boston protected the benefits that Lynn Esden ha d earned with her 16 years of service before the change and offer ed her additi onal accruals for her se rvice after the change. However, Bank of Boston next offered Ms. Esden an option under which it would actually only pay part of the value of the benefits she wa s to have accrued after the change. The Second Circuit held that the "only test that [a cash ba lance pension plan like the Bank of Boston's] might satisfy is the so-called 133 1/3 percent test under ER ISA section 204(b)(l)(B)." Id . at 167. This accrual test requires that the p lan offer annual ra tes of benefit accrual which do no t escalate by more than 3 3%. Id. According to the Court, a plan sponsor "tries to have it both ways" if it claims compliance with ERISA’s benefit accrual rules, but then conditions the actual right to payment. Id. at 167 n.8 and 168. The Court relied on the Treasury Department's nonforfeitability regulation which prohibits conditions on entitlement to accrued benefits based upon subsequent
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events or forbearance. The Cour t concluded that "par t of [Lynn Esden' s] pension benefit was made conditional on the distribution option chosen, in violation of the anti-forfeiture provisions of ERISA § 203(a)." Id . at 158 and 168. The Second Circuit al so held that ERISA prohibits "allowing a plan to offer an em ployee" the "choi ce of a partial f orfeiture in exc hange for a particular form of payment." Id. at 173. VI. FleetBoston’s Duty to Disclose Bene fit Reductions: ERISA §204 (h) and the SPD
Rules. 1. Introduction. Whatever arguments FleetBoston may make about whether th e substance of its cash balance plan complies with the applic able federal laws, FleetBoston must admit that by amending the FleetBoston pension plan to create a cash balance plan, it significantly reduced employee benefits in com parison with those provided under FleetBoston’s prior plan. A principal purpose of cash balance plans is to cut defined benefit costs. A survey article found that among those adopting cash balance plans “benefit reductions of 20% or more were expected to arise for so me employees at ce rtain retirement ages in 59% of the cases responding to this question.” Lawrence Sher, “Survey of Cash Balance Conversions” Benefits Quarterly , 1st Quarter 2001. The question whether FleetBoston reduced benefits here is, of course, a question of fact the Court can’t decide on a motion to dismiss. If a com pany significantly reduces employee benefit accruals, ERISA at leas t wants to see that, apart from any othe r question, the com pany tells em ployees about it truthfully, completely, and in plain language. ERISA requir es this in two princi pal ways: (1) Through ERISA §204 (h) which prohibits pe nsion plan am endments providing for a sign ificant rate of future benefit accrual unless each participant is notified of the decreasing benefit accrual at least 15 days prior to the effective date of the change, and (2) th rough a summ ary plan description
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governed by ERISA §§102 and 104 which provide s complete plan in formation in ter ms calculated to be understood by the average plan participant.
2. The SPD Rules. Adequate disclosure to em ployees is the sole purpose of SPD’s and one of the major purposes of the ERISA statute as a whole. Burs tein v. Ret. Account Plan for Em ples. of Allegheny Health Educ. & Research Found., 334 F.3d 365, 378 (3d Cir. Pa. 2003)(citing Barke r v. Ceridian Corp., 122 F.3d 628, 633 (8th Cir. 1997) ("Summary plan descriptions are considered part of ERISA plan documents. . . . Adequate di sclosure to employees is one of ERISA' s major purposes. . . . Because of the importance of disclosure, in the event of a conflict between formal plan provisions and summ ary plan provisions, the summary plan description provisions prevail.")). “The prim ary method by which an employer communicates to its em ployees with respect to an ERISA welfare plan is through a summary plan de scription, Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir. 1988), which ‘m ust not have the effect of m isleading, misinforming or f ailing to inf orm participants and ben eficiaries’ with respec t to a p lan's provisions. 29 C.F.R. § 2520.102(b).” Jam es v. New York City Dist. Council of Carpenters' Benefits Funds, 947 F. Supp. 622, 628 (E.D.N.Y. 1996). The centrality of the SPD to the ERISA statutory scheme and the care with which an SPD must be crafted has been thoroughly explained by the Second Circuit: ERISA requires th at the participants and beneficiaries of any e mployee benefit plan be provided with a summary plan description ("SPD"), a thorough and easy to understand summary of the benefit pl an. 29 U.S.C. § 1022(a). The SPD m ust be "written in a m anner calculated to be understood by the average plan participant" and must "be sufficiently accurate and comprehensive to apprise such participants and beneficiaries of their rights and obligations under the plan." Id . ERISA "contemplates that the summary [ plan description] will be an employee' s primary source of information regarding employment benefits, and employees are entitled to rely on the d escriptions contained in the summ ary.” Heidgerd v. Olin Corp., 906 F.2d 903, 907-08 (2d Cir. 1990).
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Generally, for a SPD to m eet the disclosure requirem ents of 29 U.S.C. § 1022, "the limitation or elimination of technical jargon and of long, com plex sentences [and] the use of clarifying exam ples" is required. 29 C.F.R. § 2520.102-2(a). The SPD must include, among other things, a description of the "circumstances which may result in disqualification, ineligibilit y, or denial or loss of benefits." 29 U.S.C. § 1022(b); see also 29 C.F.R. § 2520.102-3(l) (a n SPD must contain "a statement clearly identifying circumstances which m ay result in disqualification, ineligibility, or den ial, loss, f orfeiture or suspension of any benefits that a participant or beneficiary m ight otherwise reasonably expect the plan to provide on the basis of the description of benefits") (emphasis added). R egulations promulgated under ERISA prescribe the fo rmat of a SPD. The for mat of the summary plan description must not have the effect [of] misleading, misinforming or failing to inform participants and beneficiaries. Any description of exceptions, limitations, reductions, [or] restrictions of plan benefits shall not be m inimized, rendered obscure or otherwise m ade to a ppear unimportant . . . [and] shall be described or summarized in a m anner not less prominent than the style, captions, printing type, and prominence used to desc ribe or summ arize plan benefits. 29 C.F.R. § 2520.102-2(b); see also Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032, 1040 (2d Cir. 1985) (requiri ng SPD to explain "full i mport" of provisions affecting em ployee); Pompano v. Michael Schiavone & S ons, Inc., 680 F.2d 911, 914 (2d Cir. 1982) (stating that the plan at issue "was written up in summary form in simple and unmistakable language easy enough for the average plan participant to be reasonably appraised of his rights and obligations under the Plan."). In analyzing Layaou' s claim, we are mindful that Congress intended that ERISA function as a com prehensive remedial statute designed to safeguard pension benefits. See Geller v. County Line Auto Sales , 86 F.3d 18, 22 (2d Cir. 1996) (citing 29 U.S.C. § 1001) (statem ent of Congressional purpose).Layou v. Xerox Corp., 238 F.3d 205, 209-10 (2d Cir. 2001).
SPD language that “obscures” or tends to “minimize” benefit limitations is prohibited by ERISA. Burke v. Kodak Retirem ent Income Plan , 336 F.3d 103, 110 (2d Cir. 2003). The "full import" of benefit-related consequences must be set forth or an SPD will be deemed out of compliance with E RISA. Chambless v. Masters, Mates & Pilots Pension Plan, 772 F.2d 1032, 1040 (2d Cir. 1985); Layou v. Xerox Corp., 238 F.3d at 211 (citing also, Bowe rman v. Wal-Mart Stores, Inc., 226 F.3d 574, 587 (7th Cir. 2000) (holding that becau se "the exp lanations provided in the SPD . . . did not provi de the critical in formation needed by employees in [plaintiff's] circumstances[,] . . . th e [ ] SPD lacked the clarity and completeness required by § 1022")).
Benefit reductions not adequately di sclosed in a SPD cannot be enforced. In Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 110 (2d Cir. 2003) the Second Circuit considered pension plan SPD language related to survivor benefits for domestic partners. The District Cour t held that Koda k’s reference to the required filing of domestic partner affidavits for other benefits, its inclusion of the requirement at issue in the plan document and its inclusion of the requirement in a company newsletter permitted the company to enforce the requirement against the
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plaintiff, depriving her of survivor benefits. Id .105-7. Reversing and directing

judgment for the plaintiff, the Second Circuit ruled that ERISA prohibited

enforcement of the affidavit requ irement because only a SPD disclosure can

satisfy the statute, and w hile contained in other sections of the SPD, the affidavi t

requirement was omitted from the section governing survivor benefits and failed,

in the alternative, to refer the reader to the other SPD sections where th

e

requirement was set forth. Id . at 110-11. Providing the m issing information, the

Court observed, would have require d minimal diligence and effort from the plan

administrator and would have elim inated guesswork by participants. Id . at 111.

Settling a long standing questi on, the Court also ruled that plan participants can

prevail in cases challenging flawed SPDs without proving reliance upon the flawed document. Id. at 112-14.16 See also Burstein v. Retirement Account Plan

for Employees of Allegheny Health Education and Research Foundation , 334

F.3d 365, 380 (3d Cir. 2003). In Leyda v. AlliedSignal , 322 F.3d 199 (2d Cir.

2003) the Court of Appeals considered a District of Connecticut decision (Hall, J.)

related to a plan’s failure to disclose a reduction in life insurance coverage. Id . at

201-3. The Court of Appeals upheld the District Court’s decision awarding a plan

participant’s widow the larger am ount of benefits she thought she would receive

based upon prior disclosures and refusi ng to enforce the new summary plan

description containing the reductio n because the com pany made inadequate

efforts to distribute the SPD to plan participan ts. Id . at 201. Other Courts have

routinely refused to enforce benefit re ductions and lim itations where they have

not been adequately disclosed in the a pplicable SPD. “The SPD does not inf orm

employees of the ‘ circumstances which m ay result in disqu alification,

ineligibility, or loss of benefits,’ 29 U.S.C. §1022(b) -- one of the prim ary

concerns sought to be rem edied by ERISA's disclosure requirem ents.

Accordingly, the SPD is inaccurate and inconsistent with the language of the Plan,

and Defendant is estopped to rely on th e Plan in denying Plaintiff benefits."

Moriarity v. United Technologies C orp., 947 F. Supp. 43, 52 (D.Conn. 1996)("It

is the em ployer, not the em ployee, who m ust bear the cost of a poorly drafted

SPD"); Jensen v. SIPCO, Inc. , 867 F.Supp. 1384, 1391 (N.D. Iowa 1993)(“If the

SPD does not contain a benefit forfeiture clause, then such a forfeiture will not be

enforced against a pa rticipant.”(Citing Hillis v. W aukesha Title Co., Inc., 576 F.

Supp. 1103, 1109 (E.D. W is. 1983); Eardm an v. Bethlehem Steel Corp. , 607 F.

Supp. 196, 209-214 (1984)). See also Veilleux v. Atochem North Am. Inc., 929

F.2d 74, 76 (2d Cir. 1991) (per curiam ) (quoting Gilbert v. Burlington Indus.,

Inc., 765 F.2d 320, 328-29 (2d Cir. 1985), aff'd, 477 U.S. 901, 106 S. Ct. 3267, 91

L. Ed. 2d 558 (1986)); Clark v. Bank of New York , 801 F. Supp. 1182, 1195-

1196 (S.D.N.Y. 1992)(inadequate disclosures make benefit denials arbitrary and

capricious).

16 Instead the Court merely requires a showing of prejudice, meaning "likely harm". Id. at 113.
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3. Section 204 (h).

Disclosures concerning plan amendments are also governed by ERISA §204 (h). No plan

amendment significantly decreasing benefit accruals can be enforced unless th e reduction of

benefit accruals is explained in lay terms in an advance notice. ERISA §204 (h) says:

that a plan ...m ay not be am ended so as to provide for a significant reduction in the rate of future benefit accrual, unless after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the p lan administrator provides a written notice, setting forth the plan and its effective date to ...each participant in the plan.

Id.; Davidson v. Canteen Corporation. 957 F.2d 1404 (7th Cir. 1992). W here a plan amendment

reduces future benefit accruals but has not be en preceded by a Sectio n 204 (h) notice, cou rts

have not he sitated to d eclare the a mendments ineffective and the prior plans as continuing in

force. Production and Maintenance Em ployees’ Local 504 , 954 F.2d 1397, 1404 (7th Cir.

1992)(generalized notice insufficient); Koenig v. Intercontinental Life Corp.

, (E.D.Pa.

1995)(plan merger declared ineffective); Suozzo v. Bergreen , 2002 U.S. Dist LEXIS 11726

(S.D.N.Y. 2002)(absent notice provisions of the amendment are ineffective)(Exhibit “3”); Abels

v. Titan Int’l, 85 F. Supp.2d 924 (S.D. Iowa 2000) (rejecting argum ent that employer complied

with “spirit” of the notice rule by giving notice of employer’s intent in collective bargaining);

Koenig v. International Life Corp., 880 F. Supp. 372 (E.D. Pa. 1995)(change which resulted in a

substantial decline in rate of benefit accrual w as amendment subject to 204(h); 1989 benefit

formula had to be continued in absence of required notice); Brody v. Enhance Reinsurance Co. ,

2003 U.S. Dist. LEXIS 3785, at * 34-36 (SDNY March 14, 2003)( Section 204(h) notice cannot

be avoided by announcing a short freeze and n ot telling participants that a benefit reduction

follows the freeze)(Exhibit “4 ”). Section 204 (h ) applies to reductions in all accrued benefits.

Early retirement benefits are accrued bene fits. Am ato v. Western Union Int’l, Inc. , 773 F.2d

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1402, 1410 (2d Cir. 1985). Accordingly, S ection 204 (h) applies to reductions in early retirement benefits. Normann v. Amphenol, 956 F.Supp. 158 (N.D.N.Y. 1997).
Faced with a m andate to tell em ployees that their Cash Balance Benefits would be less than their Traditional Benefits, FleetBoston responded in most cases with nothing m ore than a description of how the new plan operates, and, where it said m ore, Richards will show that the change was nothing but good news.
With all that plan participants lost by the conversion to a cash balanc e plan, it is hard to conceive of a way to find FleetBoston com plied with its paramount duty to tell plan participants the truth about com pany plans. It isn’t the cas e, as FleetB oston suggests that Richards didn’t know that the plan had been amended, the i ssue is that the SPD plainly does not warn participants of the circum stances, through wear away, etc., in whic h benefits can be lost. It contains no disclosures of: (1) Lo ss of early retirement subsidies; (2) Reductions in benefit rates compared to old plan; (3) Lower rates with age; (4) The age 65 benefit w as used as the basis for the Opening Account Balance (OAB), not th e age 55 b enefit; (5) the application of a preretirement mortality discount in computing the OA B; (6) and that pay and interest credits are conditional because of wear awa y. The com pany has never explaine d the relative value of the optional forms of benefit, i.e. the difference be tween taking the f rozen Traditional Benef it or accepting Cash Balance Benefits: indeed, Richards will show that sometimes the company never even tells retiring em ployees about their right to the hi gher benefits frozen under the traditional formula of t he prior company plan. Moreover, none of the reductions described above were contained in a §204 (h) notice, a fact which F leetBoston must admit. Nor can FleetBoston succeed with its alternative argum ent that a §204 (h ) notice need not disclose benefit reductions so long as it describes the term s of the new plan. This would, of course, directly contradict the
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language of the statute which calls not m erely for a disclosure of the new plan term s but “sufficient information...to allow app licable individuals to understand the effect of the plan amendment.” ERISA §204 (h). If a description of the effect of the plan am endment were the same thing as a description of the plan a mendment, the requirement to explain “the effect” of the plan amendment would be m ere surplusage. Mo reover, this v iew is cons istent with the implementing regulations for §204 (h) which require the magnitude of the reductions to be described. 68 F.R. 17277 (April 9, 2003). While the regulations are not retroactive, the regulating authority’s view of the words should be persuasive at least and, at best, is the only rational way to interpret a statute requiring “notice of significant reduction in benefit accruals.”
4. FleetBoston’s Claim that Richards Must Allege Prejudice. FleetBoston says the Court should dism iss Richards’ ERISA §204 (h) and ERISA §102 because Richards hasn’t claim ed that she was pr ejudiced by FleetBoston’s failure to disclos e. FleetBoston misinterprets the Secon d Circuit’s decision in Burke v. Eastm an Kodak, 336 F.3d 103 (2d Cir. 2003). Burke only addresses ERISA §102; it says nothing about im posing a prejudice requirement on cases brought under ERISA §204 (h). Also, the District Court in Burke granted the defendant summary judgment because the plaintiff didn’t prove reliance on the faulty disclosure; it didn’t d ismiss the case because th e plaintiff failed to plead anything. 336 F.3d at 106. What’s more, the Second Circu it not only reject ed the reliance standa rd the District Court imposed, it didn’t adopt the “actual prejudice” standard FleetBoston suggests it did. Instead, as the Court explained, a disclosure violation can be proved if har m to plan participants was “likely”. 336 F.3d 113-14. The question of “likely” harm in contrast to “actual” harm need not have anything to do with what actually happened to the plaintiff. Requiring Richards to plead she was prejudice thus isn’t required by Fed.R.Civ. P. 8. As the Suprem e Court reaffirmed in 2002
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in Swierkiewicz v. Sorem a, 534 U.S. 506, 513-14 (2002), under Ru le 8(a)’s sim plified notice pleading standard a party doesn’t have to engage in “technical forms of pleading” or plead each factual or legal elem ent of a claim in order to give “fair notice” of a claim . Under the standard Burke set, Richards has given FleetBoston ample notice of her claims under ERISA §204 (h) and ERISA §102.
Frommert v. Conkright , 328 F. Supp. 2d 420 (W .D.N.Y. 2004) requires no different result. At best, Frommert suggests that the “likely harm” standard adopted in Burke should apply to §204 (h) cases. Id . at 436. It says nothing about requiring likely harm to be pled. Moreover, while it m entions that under the facts of that case applying §204(h) w ouldn’t advance the statute’s purpose of giving notice in advance so participants can act before the change’s effective date, it didn’t say that giving advance notice was §204 (h)’s only purpose. Clearly the principal purpose of §204(h) is giving employees notice of significant decreases in benefits without regard to whether the notice is given in advance or on the effective date of the change. Frommert doesn’t suggest §204(h) can’t apply to the facts of this case, nor does it say anything about what has to be pled to give fair notice of a §204(h) claim. Accordingly, the Court should let Richards continue her claims against FleetBoston under ERISA §204 (h), ERISA §102 and ERISA §104. VII. FleetBoston’s Claims Concerning Exhaustion.
FleetBoston says this entire case should be dismissed because Richards didn’t allege she exhausted her adm inistrative remedies. FleetBoston is wrong to do so, however, because plan participants suing for statutory violations don’t have to exhaust adm inistrative remedies. Even where they do have to exhaust administrative remedies they don’t need to plead exhaustion, even though Richards could plead it because she did exhaust her administrative remedies.
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Although the Second Circuit hasn’t specifically addressed th is issue, ERISA doesn’t require plan participants to exha ust administrative remedies before to going to court in statutory violation cases. ERISA requires pa rticipants to dem and relief from plan adm inistrators only when they claim benefits due under the plan terms. See e.g. Burke v. Kodak Ret. Incom e Plan, 336 F.3d 103, 107 (2d Cir. 2003)(“We require the e xhaustion of administrative remedies for the denial of ERISA benefits.”). T hose are the on ly cases ERISA says ad ministrators must set u p administrative claims procedures for under ERISA §503: that is, in the la nguage of the statute, claims procedures have to be set up for any participant “whose claim for benefits under the plan has been denied.” ERISA doesn’t require this st ep in statutory violation cases because statutory interpretation and enforcement is exclusively the judiciary’s job. The Third, Fourth, Fifth, Sixth, Ninth and Tenth Circuits all agree, and have held plan participants need not make demand before filing suit in statutor y violation cases. See Depace v. Matsushita E lec. Corp., 257 F. Supp. 2d 543, 557 (E.D. N.Y. 2003)(collecting cases). So have at least seven district courts in this circuit. Campanella v. Mason Tenders’ Dist. Council Pension Plan, 299 F. Supp. 2d 274, 281 (S.D.N.Y. 2004); Depace v. Matsushita Elec. Corp. , 257 F. Supp. 2d 543, 557 (E.D. N.Y. 2003); Blessing v. J.P. Morgan Chase & Co ., 2003 U.S. Dist. LEXIS 2604 *5-*6 (S.D.N.Y. 2003)(Exhibit “5”); Gray v. Briggs, 1998 U.S. Dist. LEXIS 10057 *19-20 (S.D.N .Y. 1998)(Exhibit “6”); Barnett v. IBM Corp., 885 F.Supp. 581, 592 (S.D.N.Y. 1995); Novak v. TRW , Inc., 822 F. Supp. 963, 969 (E.D.N.Y., 1993); Lawford v. New York Life Ins. Co. , 739 F.Supp. 906, 912 (S.D.N.Y. 1990). Accordingly, because ERISA doesn’t requ ire Richards to ex haust FleetBoston’s ad ministrative remedies, FleetBoston’s motion should be denied. In any case, this Court has already held that even where plain tiffs must exha ust administrative remedies, they need not allege they did so, even where as here Rich ards could prove she did. Flanigan v. General Electric , 93 F. Supp. 2d
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236, 269 (D. Conn., 2000)(“while a showing of exha ustion or futility is needed, it is not a
technical pleadings requirement, but implicates fact-dependent issues.”)
VIII. FleetBoston’s Claim Concerning Pleading under 502 (a)(1)(B) and 502 (a)(3).
FleetBoston says that the Court should dismiss Richards’ claim s under ERISA §502
(a)(3) in Counts II, IV, and V b ecause she also claim s alternative remedies under both ERISA
§502 (a)(3) and ERISA §502 (a)(1)(B). FleetBoston claims that ERISA §502 (a)(3) only applies
where there is no rem edy under ERISA §502 (a)(1)(B), so with Richards claiming there is a
remedy under ERISA §502 (a)(1)(B ), she can’t si multaneously claim under ERISA §502 (a)(3).
The Second Circuit considered and rejected this claim in Devlin v. Empire Blue Cross & Blue
Shield, 274 F.3d 76, 89-90 (2d Cir., 2001):
Finally, we disagree with Em pire's contention that "there is no private action for breach of fiduciary duty under ERISA when another remedy is available under 29 U.S.C. § 1132. Appellee' s Br. at 41 . Plaintiffs' cause of action for their breach o f fiduciary duty claim s arises from ERISA §502(a)(3), which allows plan participants, beneficiaries or fiduciaries to bring a civi l action "to enjoin any act or practice which violates any provision of this subchapter or terms of the plan, or . . . obtain other appropriate equitable re lief." 29 U.S.C. § 1132 (a)(3). In Varity Corp., the Supreme Court held that such claims alleging breach of fiduc iary duty could be b rought by in dividual plaintiffs because ERISA § 502(a)(3) "acts as a safety net, offering appropriate equitabl e relief for injuries caused by [ERISA] violations that § 502 does not elsewher e adequately remedy." Varity Corp., 516 U.S. at 512. The Suprem e Court further noted that, given ERISA' s requirement that fiduciaries act "solely in the interest of the participants and beneficiaries," 29 U.S.C. § 1104 (a)(1), "it is hard to imagine why Congress would want to immunize breaches of fiduciary o bligation that harm individuals by denying injured beneficiaries a rem edy." Id. at 513. We note that should plaintiffs' claim under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132 (a)(1)(B), to enforce their rights under the plan fail, p laintiffs' breach of fiduciary du ty claim is their only remaining remedy. Varity Corp. clearly provides that, where a plan participant has no remedy under another section of ERISA, she can assert a claim for breach of fiduciary duty under § 502(a)(3). Id. at 515 (noting that ERISA' s purposes would be furthered by granting a rem edy where no other remedy is available); see also Strom, 202 F.3d at 149 ("[V arity Corp.] evidences a clear intention to avoid construing ERISA in a m anner that would leave beneficiaries . . . without any remedy at all.").
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Varity Corp. further explained, howev er, that "where Congress elsewhere provided adequate relief for a beneficiary' s injury, there will likely be no need for further equitable relief, in which case such relief norm ally would not be 'appropriate.'" Varity Corp., 516 U.S. at 515 (em phasis added). The Suprem e Court in Varity Corp. did not elim inate the possibility of a plaintiff successfully asserting a claim under both § 502(a)(1)(B), to enforce the terms of a plan, and § 502 (a)(3) for breach of fiduciary duty; instead, the Court indicated that equitable relief under § 502(a)(3) would "norm ally" not be appropriate. Ultimately, we believe that the determination of "appropr iate equitable relief" rests with th e district court should plaintiffs succeed on both claims. This determination must be based on ERISA policy and the "special nature and purpose of em ployee benefit plans." Id. (internal quotation marks omitted). We therefore hold that Varity Corp. did not elim inate a private cause of ac tion for breach of fiduciary d uty when another potential rem edy is available; in stead, the district court' s remedy is limited to s uch equitable relief as is co nsidered appropriate. If the plain tiffs ultimately prevail on this claim upon remand, the district court must then fashion appropriate relief.
Accordingly, FleetBoston’s challenge to Richards’ alternative pleading under ERISA
§502 (a)(3) and ERISA §502 (a)(1)(B) must fail.
IX. FleetBoston’s Claim Concerning the Breach of Fiduciary Duty Claim.
1. Richards has Standing.
Richards brings this action under ERISA §502 (a)(1)(B) and §502 (a)(3) which authorizes
a civil action to be brought by:
(1) by a participant or beneficiary—(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the term s of the plan, or to clarify his rights to future benefits under the terms of the plan;
…
(3) by a participant, beneficiary or fiduc iary…(A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to re dress such violations or (ii) to enforce any provisions of this title or the terms of the plan.
Id. Under ERISA §102 (7) the term “participant” means:
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any employee or former em ployee of an e mployer…who is or may become eligible to r eceive a benefit of any type form an em ployee benefit plan which covers employee of such employer… Id. (emphasis added). On the definition of "participant" The Supreme Court has ruled: an employee may demonstrate th at she “m ay become eligible” for benefits by showing a “colorable claim that(1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future." Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 117-18, 109 S.Ct. 948, 958, 103 L.Ed.2d 80 (1989). In Mullins v. Pfizer, 23 F.3d 663 (2d Cir. 1994) the Second Circuit took a broad view of Firestone at odds with FleetBoston’s m otion. Mullins was a form er Pfizer em ployee who missed his chance to participate in a voluntary separation benefit because plan fiduciaries misled him into retiring shortl y before its adoption. Id . at 665. The District of Connecticut (Nevas, J.) granted Pfizer summ ary judgment ruling, inter alia, that as a f ormer employee Mullins lacked "participant" standing. Id. On appeal the Second Circuit reversed, noting that "Congress intended the statutory schem e, in conjunction with st ate law, to afford broad protection". Id . On the narrow issue of Mullins' standing the Court he ld Mullins was a partic ipant because he was a former employee of defendant and had a colorable claim to plan benefits under a plan concerning which he would have been a participant, but for Pfizer’s wrongdoing. Id . at 667-8. On the basic standing question under ERISA, the Court adopted th e broadest possible view, holding that: “the basic standing issue is whether the plaintiff is ‘within the zone of interest ERISA was intended to protect’” Id. at 668 (quoting Vart anian v. Monsanto , 14 F.3d 697, 701 (1st Cir. 1994). Explaining the Second Circuit’s view, the Mullins Court cited a rem inder from the legislative history that ERISA was supposed to remove obstacles to claims, not create them: The intent of the [Senate Labor and Public Welfare] Committee is to provide the full range of legal and equitable rem edies available in b oth state and federal
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courts and to rem ove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law or recovery of benefits due to participants.
S.Rep. No.127 (93d Cong.,2d Sess. (1974).
23 F.3d at 668.
At a m inimum, Richards is in the zone of interests ERISA protects because she and
others like her will retire som eday, and with out relief they may face the s ame problem –
FleetBoston may not tell them about the larger fr ozen benefits they m ay take. At a m inimum,
Richards may seek to clarify her rights under the terms of the plan under ERISA §502 (a)(1)(B)
or enjoin a violation of ERISA under ERISA §502 (a)(3). Either way she is putting a stop to
something that otherwise would harm people like her. Accordingly, even though she has suffered
no harm yet, she can bring this action to see that she doesn’t.
2. FleetBoston is Liable for Material Omissions.
FleetBoston also says that to succeed on this claim Richards m ust allege and p rove
misrepresentations as opposed to nondisclosure. That is not so. Avoiding misrepresentations is
not the limit of fiduciary duty under ERISA. With respect to current plan terms, fiduciaries have
a duty to voluntarily disclose inform ation they ha ve that they know plan participants need to protect their f inancial interests. The S econd Circuit and m any other courts agree. 17
17 Estate of Becker v. Eastm an Kodak Co. , 120 F.3d 5, 9–10, 21 EB Cases 1384 (2d Cir. 1997)(ambiguous and incom plete summary plan desc ription may alone create duty to inform ); Jordan v. Federal Express Corp. , 116 F.3d 1005, 1015–16, 21 EB Cases 1209 (3d Cir. 1997)(when fiduciary knows silenc e would be harm ful, there is affirm ative duty to inform participant of material information that participant m ust know for his or her own protection); Anweiler v. American Elec. Power Serv. Corp. , 3 F.3d 986, 991, 17 EB Cases 1090 and 19 EB Cases 2963 (7th Cir. 1993)(“Fiduc iaries must also comm unicate material facts affecting the interests of the beneficiaries . . . . This duty exists when a beneficiary asks fiduciaries for information, and even when he or she does not.”); Rosen v. Hotel & Restaurant E mployees & Bartenders Union of Phila., Bucks, Montgomery, & Delaware Counties, 637 F.2d 592, 599–600, 2 EB Cases 1054 (3d Cir.)(failure to warn participant that em ployer had not m ade required
38

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Accordingly, Richards need not allege a m isrepresentation to succeed with her breach of
fiduciary duty claim.
X. FleetBoston’s Claim Concerning Proper Parties under 502 (a)(1)(B).
FleetBoston also claims FleetBoston Financial Corporation shouldn’t be a party because
benefit claims can only be brought against the benefit plan, not its corporate sponsor and because
Richards wrongly claims FleetBoston Financial Corporation is the plan administrator. The Court
can easily dispense with th is claim. The Com plaint alleges that Flee tBoston Financial
Corporation is a fiduciary of the Plan and that it breached its fiduciary duties concerning p lan
administration when it and its agents failed to tell plan participants that their frozen benefits were
greater than their largely illusory cash balance b enefits. Complaint ¶¶9, 52, 53. ERISA §2(21)
defines “fiduciary” functionally; any person who exercises discretion or control over the plan is a
contributions to fund, which resu lted in loss of benefits, co nstituted breach), cert. denied, 454 U.S. 898, 102 S. Ct. 398 (1981); McNeese v. Health Plan Mktg., 647 F. Supp. 981, 985–86, 8 EB Cases 1154 (N.D. Ala. 1986) (plan adm inistrator breached duties by failing to notify em ployees of financial problem s with plan); R ESTATEMENT (SECOND) OF TRUSTS §§170(2), 173, cm t. d;; Farr v. U.S. W est Communications, 151 F.3d 908, 915, 22 EB Case s 1289 (9th Cir. 1998), as amended, 179 F.3d 1252 (9 th Cir. 1999), cert. denied, 528 U.S. 1116, 120 S. Ct. 935, 23 E B Cases 2944 (2000)(liability for inadequate writte n disclosures regarding tax consequences of lump sum distributions). Harte v. Bethlehem Steel Corp., 214 F.3d 446, 448, 453, 28 EB Case s 1155 (3d Cir. 2000), cert. denied, 531 U.S. 1037, 121 S. Ct. 626 ( 2000)(fiduciary had a duty to clarify ambiguous plan language where a beneficiar y had relied on an inco rrect interpretation of the language to his detriment); Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 590–91, 25 EB Cases 1517 (7th Cir. 2000)(em ployer’s failure to clarify incom plete and inadequate information in an SPD regarding preexisting condition provisions in a medical plan constituted a fiduciary breach); Stewart v. Thorpe Holding Co. Profit Sharing P lan, 207 F.3d 1143, 1146, 1157, 24 EB Cases 1754 (9th Cir. 2000) (failure to inform beneficiary about written procedures for determining whether m arital dissolution or der was a QDRO would constitute a breach of fiduciary duty), cert. denied, 531 U.S. 1074, 121 S. Ct. 768, 25 EB Cases 2280 (2001); Griggs v. E. I. DuPont de Ne mours & Co. , 237 F.3d 371, 379–84, 25 EB Cases 1641 (4th Cir. 2001)(employer breached its fiduciary duty by failing to alert a participant in a tim ely manner to the tax consequences of a rollover). But note: th e Second Circuit and other courts have held tha t plan fiduciaries do not have to volunteer info rmation about future benefit changes being considered by plan sponsors. See e.g . Pocchia v NYNEX Corp. , 81 F.3d 275, 279 (2d Cir. 1996)(NYNEX “...did not have a duty to d isclose proposed changes in the absence of inquiry....”).
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fiduciary. Richards alleges Fl eetBoston Financial Corporation exercises discretion or control over the plan, so regardle ss of its status in claim s for bene fits under the term s of t he plan and even if its agent not it is the plan administrator, FleetBoston Financial Corporation belongs in the case because Richards claims it’s a fiduciary th at breached its duty. Accordingly, this challenge to Richards’complaint must also fail. XI. Conclusion.
For all the reasons given above, the Court should not dismiss any part of Richards’ Complaint.

By/s/ Thom Ian Moukawsher
Hartford, (860) tm

Respectfully submitted,
Thomas G. Moukawsher as G. Moukawsher ct08940
O. Smith ct24135 & Walsh, LLC
21 Oak Street CT 06106
278-7000 oukawsher@mwlawgroup.com
ATTORNEYS FOR PLAINTIFF

40

 
 Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and :

on behalf of others similarly situated,

:

:

Plaintiff,

:

:

v.

:

:

FLEETBOSTON FINANCIAL

:

CORP. and the FLEETBOSTON

:

FINANCIAL PENSION PLAN,

:

:

Defendants.

:

:

No. 3:04CV1638 (JCH) DECEMBER 28, 2004

PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION.

The named Plaintiff, Donna C. Richards, requests that this case be certified

as a class action under Rule 23(b)(1) and (b)(2) of th e Federal Rules of Civi l

Procedure. Richards alleges that when Flee t converted its pension plan t o a “cash

balance pension” design on January 1, 1997, it violated ERISA in that:

1. Fleet’s Plan unlawfully reduced “t he rate of an em ployee’s benefit

accrual . . . because of the attainment of any age.” in viola tion of ERISA Section

204 (b)(1)(H);

2. Fleet unlawfully conditi oned employees' receipt of cash balance

benefits on their giving up the retirem ent benefits they earned prior to the adoption

Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 2 of 25
of the cash balance amendment (a conseque nce of the plan’s “wear-away” effect) in violation of ERISA §203 (a) which requires benefits to be nonforfeitable, a term ERISA §3 (19) defines as “unconditional”.
3. Fleet’s Plan caused plan participan ts to face years where they accru e zero benefits followed by years where they accrue actual benefits, which violates the “anti-backloading” rule in ERISA §204(b)(1)(B) that says the value of the benefit accrued in any given year must not exceed the value of a benefit accrued in any previous year by more than 33 1/3%;
4. Fleet failed to notify plan particip ants of a significant reduction in the rate of future benefit accruals 15 days pr ior to the January 1, 1997 effective date in violation of ERISA §204 (h) which prohibi ts these kind of plan amendm ents without notice of the reduction;
5. Fleet’s summary plan description (SPD) violated ERISA §102 and 29 C.F.R. 2520.102 by failing to explain the full import of the cash balance plan terms, including but not lim ited to faili ng to completely explain the wear-away effect and failing to explicitly explain how benefit accruals under the plan are reduced by advancing age, and;
6. Fleet breached its fiduciary duty to plan participants under ERISA §404 because Fleet failed to t ell retiring plan participants of the greater benefits they were owed under the frozen benefit derived from the Traditional Plan Terms.
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II. PLAINTIFFS’ CLAIM FOR CLASS ACTION STATUS. 1. The Proposed Class. As set forth in the Co mplaint, the pr oposed class consis ts of any and all
persons who: (a) Are former or current Fleet employees who on December 31, 1996 were not at least age 50 with 15 years of vesting service, and (b) Participated in the Fleet Pension Plan before January 1, 1997, and (c) Have participated in the Fl eet Pension Plan at any ti me since January 1, 1997.
The proposed class covers all particip ants in the Fleet Pension Plan who have been harmed by the ERISA breach es set forth above. On information and belief the proposed class covers well over 1,000 individuals.
2. The Purposes of Rule 23 class actions. The U.S. Suprem e Court in i ts 1997 decision in Amchem Prods., Inc. v. Windsor explained that the Rule 23 class ac tion device is to be used to remedy widespread policies or practices that violate federal or state laws.1 Rule 23 strikes a balance between the need for and efficiency of a class action and the interests of class members in pursuing thei r claims individually. As Moore’s Federal Practice puts it, the class action rules aim “to prom ote judicial economy and ef ficiency by
3

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obviating the need for m ultiple adjudications of the same issues.” 2 Or as the Second Circuit said in In re Drexel Burnham Lambert Group in 1992, i t is appropriate where indivi dual adjudications would take ma ny years and would drastically increase the legal expenses for all parties -- where joinder of all claimants would be expensive, time consuming, and logistically unfeasible.3
Moore’s says the cl ass action rules “aff ord aggrieved persons a remedy” even when “it is not econo mically feasible to obtain relief through . . . m ultiple individual damage actions." 4 The Amchem Court agrees:
“[T]he very core of the class ac tion mechanism is to overcome the problem that sm all recoveries do not provide the incentive for any individual to bring a solo action pr osecuting his or her right s. A class action solves this problem by a ggregating the relatively paltry individual recoveries into someth ing worth someone’s (usually an attorney’s) labor.”5 The class action rules enhance access to the courts “by spreading litigation costs among num erous litigants with similar claims.” 6
3. Rule 23's structure. According to the Second Circui t in Drexel: “In determining whether a class should be certified, a district court must first consider each of the factors set forth

1 521 U.S. 591, 616, 117 S.Ct. 2231, 2246 (1997). 2 See Moore’s Federal Practice, vol. 5, sec. 23.02. 3 960 F.2d 285, 290 (2d Cir. 1992). 4 See Moore’s Federal Practice, sec. 23.02. 5 521 U.S. at 627, 117 S.Ct. at 2246. 6 Id.; accord Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979); Falcon, 457 U.S. 147, 155 (1982).
4

General Telephone Co. v.

Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 5 of 25
in Fed.R.Civ.P. 23(a).”7 Rule 23(a) of t he Federal Rules of Civil Procedure says that “one or more memb ers of a class ma y sue . . . as representative parties on behalf of all” if:
(1) “the class is so num erous that joinder of all m embers is impracticable,”
(2) “there are questions of law or fact common to the class,” (3) “the claims ... of the representativ e parties are typical of the clai ms ...
of the class,” and (4) “the representative parties will fairly and adequately protect the
interests of the class.” In 1994 the Second Circuit, in Comer v. Cisneros, said that Rule 23(b) also requires that a class action satisfy one of three subsections: Rule 23(b)(1), (b)(2) or (b)(3).8 However, in 1997, the D.C. Circuit i n Eubanks v. Billington that these three categories of class actions are not mutually exclusive, and a cl ass may be certified under more than one category. 9 As a practical matter, the Second Circuit said in 2001 i n In re Visa Check/Mastermoney Antitrust Litig. , “once a court ha s found that a class action is m aintainable under any single category of Rule 23(b), there is no necessity of showing that it may also be brought under any other.”10
7 960 F.2d at 290. 8 37 F.3d 775, 796 (2d Cir. 1994). 9 110 F.3d 87, 91 (D.C. Cir. 1997). 10 280 F.3d 124, 145 (2d Cir. 2001).
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In 1998, this Court determined in Messier v. Southbury Training School that there are “important procedural distinctions” between classes certified under Rule 23(b)(3) and classes certified under Rule 23(b)(1) and (2). 11 As explained by t his Court in 1998 in Flanigan v. General Electric , certifications under Rule 23(b)(1) and (b)(2) are described as “mandatory classes” because the class member may not opt out of the action and br ing separate litigation that m ight prejudice other class members or the defendant. 12 By contrast, as the Messier Court said, Rule 23(b)(3) allows class members an “absolute righ t to opt out” and pursue their clai ms individually.13 The 1998 D.C. Circuit in Thomas v. Albright said the drafters of Rule 23 did not provide that absolute right for Rule 23(b)(1) and (b)(2) because the group nature of the harm alleged and the broad character of the relief sought assure that the class is relatively cohesive and homogenous.14
The requirements for certification u nder Rule 23(b)(1) and (b)(2) are different from those for Rule 23(b)(3). Ru le 23(b)(1) covers cases, like this one, in which defendants are, according to Amchem “obliged by law,” including fiduciary responsibility, “to treat the members of the class alike; while Rule 23(b)(2) focuses on cases, also like this one, where class- wide injunctive or de claratory relief may
11 183 FRD 350, 353 (D.Conn. 1998). 12 1998 U.S. Dist. LEXIS 22873, *19 (D. Conn. 1998). 13 Messier, supra. 14 139 F.3d 227 (D.C. Cir. 1998).
6

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be needed to remed y a generally applicable policy or practice. 15 By comparison, Amchem says Rule 23(b)(3) covers cases “whe re class action treatment [is] not as clearly called for” but where a class ac tion could be convenient or desirable, including complex litigation for m oney damages, and where, under Rule 23(b)(3), the district court must find two additi onal factors--predominance and superiority-before certifying the class.16
4. Plaintiff’s Claim for Certification. In this instance, the plaintiff’s ac tion satisfies the criteria in all three subsections of Rule 23(b), but plaintiffs request certification under the first two because of the procedural co mplications of Rule 23(b)(3). As the Third Circuit held in Wetzel v. Liberty Mut. Ins. : “an action m aintainable under both (b)(2) and (b)(3) should be treated under (b)(2) to en joy its superior res judicata effect and to eliminate the procedural complications of (b)(3).”17 In its 1997 decision i n Marisol A. v. Guiliani, the Second Circuit stated that in moving for class certification, plaintiffs bear the burden of dem onstrating that the class satisfies the requirements of Rule 23. 18 This does not mean that plaintiffs have to prove their cases at t he class ce rtification stage. The Supreme Court in Eisen v. Carlisle & Jacquelin and the Second Circuit in Caridad v. Metro-North
15 521 U.S. at 614, 117 S.Ct. at 2245. 16 Id. 17 508 F.2d 239, 253 (3d Cir.), cert. denied, 421 U.S. 1011 (1975).
7

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Commuter R.R found that “nothing i n either the language or history of Rule 23 gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” 19 Rulings of the Second Circuit in Shayne v. Madison Square Garden in 1974 and the Southe rn District of New Yor k in Banyai v. Mazur in 2002 agree that as with a m otion to dismiss, the district court for class certification purposes is to accept the substantive allegations in the co mplaint as true. 20 The plaintiff may supplement the complaint as needed to show that the requirements of Rule 23 have been satisfied, e.g., by presenting evidence related to numerosity.
The Second Circuit said it favors a liberal construction of Rule 23 in its 1990 decision in Gary v. Merrill Lynch. 21 In Marisol A. the Court held “A district court’s decision to certify a class will be overturned only if the district court abused its discretion. A reviewing court must exercise even greater deference when the district court has certified a class than when it has declined to do so.” 22 Also it is clear from what the 1993 Second Circuit said in Lundquist v. Security Pacific Auto. Fin. Svcs that this circuit is “noticeably le ss deferential to t he district court
18 126 F.3d 372, 375 (2d Cir. 1997). 19 Eisan, 417 U.S. 156, 177 (1974); Caridad, 191 F.3d 283, 291 (2d Cir. 1999) cert. denied, 529 U.S. 1107 (2000)(quoting Eisan). 20 491 F.2d 397, 398 (2d Cir. 1974); 205 F.R.D. 160, 163 (S.D.N.Y. 2002). 21 903 F.2d 176, 179 (2d Cir. 1990), cert. denied, 498 U.S. 1025 (1991). 22 Marisol A., supra, 126 F.3d at 375 (citations omitted).
8

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when that court has denied class stat us than when it has certified a class.” 23 The Third Circuit, in 1985, likewise held in Eisenberg v. Gagnon that “the interests of justice require that in a doubtful case . . . any error, if there is to be one, should be committed in favor of allowing a class action.” 24
Although the district court has disc retion about when to determ ine class action status, the Second Circuit in i ts 2000 decision i n Philip Morris Inc. v. National Asbestos Workers Medical Fund instructed that the district court is to make the determ ination “as soon as prac ticable” after the commen cement of an action and rarely, if ever, after the decision on the merits.25
5. This action meets the Ru le 23(a) criteria of numerosity, commonality, typicality and adequate representation.
As described below, this action sa tisfies the Rule 23(a) criteria of numerosity, commonality, typicality, and adequate representation.
a. Numerosity. There is no “magic m inimum number” for a class according to this Court in its 2001 decision in Russo v. CVS Pharmacy, Inc. 26 But according to its 1995 ruling in Consolidated Rail Corp. v. Town of Hyde Park and its 1993 ruling in Robidoux v. Celani, the Second Circuit has generally held that a class is
23 993 F.2d 11, 14 (2d Cir. 1993). 24 766 F.2d 770, 785 (3d Cir.), cert. denied, 474 U.S. 946 (1985). 25 214 F.3d 132, 135 (2d Cir. 2000)(per curiam).
9

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sufficiently numerous when over 40 class m embers are invol ved; above that number, individual joinder of all members becomes “impracticable.”27 The

Robidoux Court said “impracti cable” simply means “difficult or inconvenient”; it does not mean im possible.28 In the 1992 Banyai decision discussed above, the

Southern District of New York said certification is appropriate when the number of

class members is “sufficiently large so that joinder of all m embers would m ake litigation needlessly complicated and inefficient.”29 As this Court said in Russo, the

court may make “comm on sense assu mptions” about num erosity: “Precise

quantification” of the size of the class is especially not required when the class is

obviously far in excess of the m impracticable.30

inimum number needed to make joinder

In this i nstance, there should be no argument about numerosity. The

complaint alleges that the proposed cl ass exceeds 1000 indivi duals and given the

size and history of Fleet, it is assumed that the large number of potentially affected

individuals will not be disputed.

26 201 F.R.D. 291 (D. Conn. 2001)(quoting Jones v. CCH-LIS Legal Information Servs. , 1998 U.S. Dist. LEXIS 15189 (SDNY 1998). 27 47 F.3d 473, 483 (2d Cir. 1995); 987 F.2d 931, 936 (2d Cir. 1993). 28 987 F.2d at 935. 29 Beryani, supra, 205 F.R.D. at 163.
10

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b. Commonality. Litigation involving statutory requireme nts applicable to large groups of individuals is perfectly ta ilored for class action treat ment because of the comm on legal issues. In 1994 the Third Circuit held in Baby Neal v. Casey: “[C]hallenges to . . . co mpliance with the m andates of . . . legislation” satisfy the commonality requirement “even where plaintiff benefi ciaries are differently impacted by the violations.”31 Marisol A. says where the “statut ory provisions invoked” are “properly understood” as “setting standards of conduct” that have been “violated in a manner common to the plaintiff class, ” class certification is appropriate.32 More specifically, the Southern District of New Yor k in Banyai observed that class actions are “well-suited to litigation brought pursuant to ERISA.” 33 According to the Second Circui t in Marisol A and its 1987 decision in In re Agent Orange Prod. Liab. Liti g., the co mmonality requirement is satisfied if the grievances of the named plaintiffs an d the proposed class “share a co mmon question of law or of fact” -- the em phasis is on “one” common question, not necessarily every question or element.34 A finding of commonality does not require that all class memb ers “share identical cl aims” – the Third Circ uit said so in its
30 See, e.g., Russo, supra, 201 F.R.D. at 295. 31 43 F.3d 48, 56 (3d Cir. 1994). 32 126 F.3d at 377. 33 205 FRD at 165 (SDNY 2002).
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Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 12 of 25
1998 ruling in In re Prudential Ins. Sales Practice Litig. 35 The commonality requirement will be satisfied, acco rding to the Third Circuit in Baby Neal, if the plaintiffs’ grievances share “at least one” question of fact or law.36
In Marisol A., the defendants argued that no questi ons of law or fact were common to the entire class because each named plaintiff cha llenged a different aspect of the child welfare system as pa rt of a lawsuit seeking system ic reform.37 The district court nevertheless identified the common question of law as “whether each child has a legal entitlement to the services of whic h that child has been deprived.”38 The Second Circuit held that alt hough the class was joined t ogether only at this “high level of abstraction, ” or what it called a “super-c laim,” the district court did not abuse its discre tion in certifying the class b ecause the plaintiffs alleged that their inj uries “derive from a unitary course of conduct by a single system” -- although this was “near the boundary of the class action device,” the Second Circuit held that it had not “crossed” over.39
Here, the plaintiff does not need to stretch the boundary a t all. The only issues that have been identified in this litigation are issues co mmon to all class
34 Marisol A., supra, 126 F.3d at 376; In re Agent Orange Prod. Liab. Litig. 818 F.2d 145, 16667 (2d Cir. 1987). 35 148 F.3d 283, 310 (3d Cir. 1998). 36 Baby Neal, supra, 43 F.3d at 56 (citing In re Agent Orange, supra). 37 126 F.3d at 377. 38 Id. 39 Id.
12

Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 13 of 25
members. Each mem ber of the class will share the co mmon legal questions of whether Fleet’s cash balance plan disc riminates based upon age and whether Fleet committed the other alleged d isclosure violations, the anti-backloading violation, etc.
The commonality test has been applied in analogous E RISA cases. In Forbush v. J.C. Penney Pension Plan , J.C. Penney adopted four different versi ons of a pension plan with a social security offset formula during the period covered by the class definition.40 The Fifth Circuit held that the threshold for comm onality is not high and concluded that Mary Jane Forbush met the co mmonality requirement because she alleged that each of the four plans presented a common legal issue: Whether the overestimation of social secur ity benefits violated ERISA’s statutory rules. J.C. Penney depicted a num ber of individual specific-issues that could arise in that litigation. 41 But the Fifth Circuit found that the plainti ff “has framed her challenge in term s of Penne y’s general practice of overe stimating social security benefits” -- accordingly, “the necessity for even somewhat co mplex individual calculations does not suppl y a basis for c oncluding that Forbush has not m et the commonality requirement.”42
40 994 F.2d 1101, 1106 (5th Cir. 1993). 41 Id. 42 994 F.2d at 1106. Injunctive relief can be fashioned to handle complex or numerous individual calculations by a variety of m eans, including contractors respons ible to one or more of the parties, and ultimately the cour t. See also Koch v. Dwyer , 2001 WL 289972, at *3, 2001 U.S.
13

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c. Typicality. As the Supreme Court in its 1982 ruling in General Telephone Co. v. Falcon said and the Second Circuit in Marisol, A. said the co mmonality and typicality requirements tend to m erge when the plain tiffs allege th at a co mmon policy has caused class wide harm, including harm to the plai ntiffs.43 According to Marisol, A. typicality is satisfied wh en “each clas s member’s claim arises from the same course of events, an d each class member makes similar legal arguments to prove the defendant’s liability.”44 In Baby Neal, when the same unlawful conduct affects both the named plaintiffs and the putative class, the Third Circuit said the case usually satisfies the typicality requirement.45 For the plaintiffs’ claims to be typical, the Southern District of New Yor k in Caridad found, the disputed issue of law or f act must “occupy essentially the same degree of centrality to the named plaintiffs ’ claim as to that of other mem bers of the proposed class.” 46 The same Court in a 1991 decision in Dura-Bilt Corp. v. Chase Manhattan Bank expressed it another way, “the proper inquiry is whether
Dist. LEXIS 4085, at *8-9 (S.D.N.Y. March 23, 2 001) (commonality requirement met by several common questions of law and fact under ERISA). 43 457 U.S. 147, 157 (1982); Marisol A, supra, 126 F.3d at 376. 44 126 F.3d at 376 (quoting In re Drexel Bu rnham Lambert Group, 960 F.2d 285, 291 (2d Cir. 1992)). 45 43 F.3d at 58. 46 supra, 191 F.3d at 293 (quoting Krueger v. New York Tel. Co. , 163 FRD 433, 442 (SDNY 1995)).
14

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other members of the class have the sam e or sim ilar injury” and “whether t he action is based on conduct not special or unique to the named plaintiffs.”47
Typicality is not destroyed m erely by factual variations between the named plaintiffs’ claims and the cl ass they seek to represent. Nam ed representatives do not have to be typical em ployees. As the Banyai Court said, this is especially true in cases where the claim s are not conne cted to job responsibilities. Because this case involves the application of statutory requirements to Fleet’s conduc t affecting all proposed class members equally, the named plaintiff’s employment setting, pay rate, supervisor, etc., are irrelevant for purposes of class certification.48
In this case, the named plaintiffs’ clai ms rest on the same issues and are not dissimilar from the class in any significant respect. As the District of Del aware said in 1995 i n Walling v. Brady, the named plaintiffs ha ve “receive[d] the sam e lesser benefit as others in the putativ e class” – they do not “exhi bit unique circumstances which will receive inordina te emphasis in the litigation and thus prevent [the common] claims from being pursued with equal vigor.”49
4789 F.R.D. 87, 99 (SDNY 1991). See also, Pecere v. Empire Blue Cross , 194 F.R.D. 66, 72 (EDNY 2000)(class certification denied because case would be “preoccupied with defenses unique” to the named plaintiffs’ physicians). 48 See, e.g., Banyai v. Mazur, supra, 205 F.R.D. 164 (“absent proof to contrary” nam ed plaintiff who was a former union officer who had gone on to become an officer in two corporations was a typical class member). 49 1995 U.S. Dist. LEXIS 10602, at *10 (D. Del. 1995).
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d. Adequate representation. The representative party in a class act ion should fairly and adequately protect the interests of the class. In the Drexel and General Telephone Co. cases discussed above, the courts said the ade quacy of representation inqui ry has two components: (1) whether there is a potentia l conflict between the named plaintiff and absent class mem bers, and (2) wh ether class counsel i s “qualified, experienced, and generally able to conduct the litigation.”50 To meet the lack of conflicts test, th e named representative m ust be part of the class and possess the same interest and suffer the same injury as the other class members, as the Supreme Court described in its 1977 decision in East Texas Motor Freight, Inc. v. Rodriguez .51 Certificati on is not de feated by “speculative” or “hypothetical” suggestions of potential conflicts; both the Second Circui t in In re Visa Check/Mastermoney Antitrust Litig. and the Southern District of New York in Gruby v. Brady emphasized this.52 As explained in the Manual for Complex Litigation, in addition to being free of conflicts, the named representatives s hould understand their responsibil ity to vigorously pursue the litigation in the interest of the class. 53 This does not require the plaintiffs to be steeped in the intri cacies of the litigation. More than 30 years
50 Drexel, supra, 960 F.2d at 291; General Telephone, 457 U.S. 147, 157-58. 51 431 U.S. 395, 403 (1977). 52 280 F.3d 124, 145 (2d Cir. 2001);838 F. Supp. 820, 828 (S.D.N.Y. 1993).
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ago, in the Supreme Court case of Surowitz v. Hilton Hotels , Hilton Hotels challenged whether a named representative in a shareholder derivative action could “fairly and adequately represent the intere sts” of all shareholders becau se she was a Polish i mmigrant with lim ited knowledge of English who relied on her son-i nlaw for explanations.54 The Supreme Court ruled that the named representative was interested in her investm ent and reasonably relied on the inve stigation of others.55 By the same token, this Dist rict, in its 2000 rul ing in Macarz v. Transworld Systems, where the named plaintiff was an attorney, rejected arguments that named plaintiffs are unfit because they happen to be more sophisticated in some respects than the average class member.56
Here, the proposed class representativ e, Donna C. Richar ds, is an em ployee of Fleet and has been employed at Fleet, its predecessors, and its successor Bank of America for 32 years. She is currently a Senior Vice President for the com pany’s Private Clients Group. 57 She is co mmitted to having the issues set forth in the complaint decided by bringing this suit while still an active employee.58 Richard’s interests are not antagonistic to other cla ss members, nor do they have conflicting

53 (3d ed. 1995), at 221. 54 383 U.S. 363 (1966). 55 Id. at 371-73. See also Koch v. Dwyer , 2001 WL 289972, 2001 U.S. Dist. LE

XIS 4085

(S.D.N.Y. March 23, 2001) (rejecting defense c ontention that plaintiff had an “alarm ing

unfamiliarity with the facts”). 56 193 F.R.D. 46, 51 (D. Conn. 2000). 57 Declaration of Richards. Exhibit “A”.

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interests.59 Like the memb ers of the clas s, she is interested in a speedy, classwid e resolution of these issues.60
Richards also has qualified counsel. Richards is represented by undersi gned counsel, Thomas G. Moukawsher of M oukawsher & Walsh, LLC, Hartford, Connecticut. Undersigned counsel has repres ented plaintiffs in a number of single and multi-party ERISA actions, including Caputo v. Pfizer,61 Mullins v. Pfizer, 62 and Hudson v. General Dynamics ,63 in this juri sdiction along with Bins v. Exxon, 64and Mathews v. Chevron ,65 in the Ninth Circuit and Adamczyk v. Lever Brothers,66 and Beach v. Commonwealth Edison ,67 in the Northern D istrict of Illinois. He is currently class counsel in certified class actions pending before the District of Connecticut in Amara v. CIGNA 68 (discussed below), Perry v. SBC 69, and Cashman v. Dolce.70
58 Id. 59 Id. 60 Id. 61 267 F.3d 181,188 (2d Cir. 2001). 62 23 F.3d 663 (2d Cir. 1994). 63 118 F.2d 226 (D.Conn 2000). 64 220 F.3d 1042 (9th Cir. 2000)(en banc). 65 773 U.S. Dist. Lexis (N.D. Cal. 2002). 66 991 F.Supp. 931 (N.D. Ill. 1997). 67 2002 U.S. District Lexis, 14663 (N.D. Ill. 2002). 68 No. 3:01-CV-2361 (DJS). 69 No. 3:04 CV 128 (JBA).
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6. The class should be certified under Rule 23(b)(1) and (b)(2) because Defendant has acted on gr ounds generally applicable to the proposed class.
As indicated before, this action ma y be certified under both Rule 23(b)(1) and (b)(2). As in Amchem, Rule 23(b)(1) covers cases like this one in which defendants are “obli ged by la w to treat class memb ers alike.”71 The Advisory Committee Notes give the following exam ple of litigation that is appropriate for class action treat ment under Rule 23(b)(1): “an action which charges a breach of trust by a[] . . . fiduciary sim ilarly affecting the members of a large class of . . . beneficiaries, and which re quires an accounti ng or like measures to restore the subject of the trust.” 72 Here, as contem plated in the Advisory Co mmittee Notes, the circumstances of injury ar e not varied within the cla ss. Instead, injury is base d on a uniform set of facts that support in vocation of the sam e ERISA sections on age discrimination, nonforfeitability and disclosure.
There should be no dispute that the de fendants have acted or refused to act on grounds generally applicable to class members, making certification under Rule 23(b)(2) appropriate. If this case is succes sful, class members will receive benefits and appropriate equitable relief. While the calculation of benefits may differ based
70 No. 3:04CV00106(MRK). 71 supra, 521 U.S. at 614, 117 S.Ct. at 2245. 72 Advisory Committee Notes to 1966 Amendments to Rule 23(b)(1).
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on the plan’s form ula, the ben efits will be the result of injunctive and equitable
relief common to all class members.
The Advisory Committ ee Notes state t hat Rule 23(b)(2): “is intended to
reach situations where a party has taken action . . . with respect to a class, and final
relief of an injunctive nature . . . settling the legality of the behavior with respect to the class as a whole is appropriate.”. 73 As the Third Circuit said in Baby Neal:
“[T]his requirement is almost automatically satisfied in actions prim arily seeking
injunctive relief” -- “what is important under Rule 23(b)(2) is that the relief sought by the named plaintiffs should benefit the entire class.”74
In Engers v. AT&T, the District of New Jersey certified the plaintiffs’ cash
balance claims under Rule 23(b)(2) “i nasmuch as Plaintiffs here are seeking various injunctive and declaratory relief” for statutory violations.75 In Forbush v.
J.C. Penney, the Fifth Circuit found that the distri ct judge had erred in applying
Rule 23(b)(2) by holding that the individualized calculations that could result from injunctive relief made the case unmanageable.76 The Fifth Circuit directed that the
73 Advisory Committee Notes to 1966 Am endments to Rule 23(b)(2). The text of Rule 23(b)(2) provides that a representative pa rty may maintain a class action if “the party opposing the class has acted or refused to act on grounds generall y applicable to the cl ass, thereby m aking appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” 74 Baby Neal, supra, 43 F.3d at 58-9. 75 C.A. 98-3660 (D.N.J. Nov. 19, 20 01). On January 30, 2002, the Third Circuit denied AT&T’s petition for permission to appeal the Engers certification decision pursua nt to Rule 23(f). C.A. No. 01-8045. 76 supra, 994 F.2d at 1105.
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class be certified as requested by For bush because “the question of whether common issues “predominat e” over individual ones ha s no place in deter mining whether a class should be certified” under 23(b)(2).77
Rule 23(b)(2) classes have also been certified in a num ber of ERISA cases within this circuit. In 1995, in Walsh v. Northrop Grumman Corp. the East ern District of New York certifi ed a cl ass action under R. 23(b)(2) based on a complaint that fiduciaries failed to adequately inform participants of the effect of a planned corporate merger on their pensions. 78 In 1996, the same Court, in Becher v. Long Island Lighting , considered a case where the plaintiffs received Plan booklets describing t heir retirement benef its which they claimed never explained that withdrawals of contributi ons would have a seriously detr imental impact on their retirement benefits.79 The court certifi ed the action under both Rule 23(b)(1) and (b)(2).80 In Devine v. Combustion Eng’g , this Court (Cabranes, J.) certified a class of persons at a Windsor, Connect icut plant who had received misleadin g written communications about their retiree health benefits under all three
77 Id. See also Dameron v. Sinai Hospital of Baltim ore, 595 F. Supp. 1404, 1409 (D. Md. 1984), aff’d, 815 F.2d 975 (4 th Cir. 1987) (violation of ERISA’s accrual rules wa s appropriate for Rule 23(b)(2) certification “b ecause defendants have acted on g rounds generally applicable to th e class”); Collins v. PBGC, 12 Empl. Ben. Cas. (BNA) 1427, 1431 (D.D.C. 1990) (interpretation of ERISA s ection on guarantee of vested pension benefits “fit the archetype set out by Rule 23(b)(2)”). 78 162 FRD 440, 448 (E.D.N.Y. 1995). 79 164 FRD 144, 153 (E.D.N.Y. 1996). 80 Id.
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subsections of Rule 23(b). 81 Most recently and m ost importantly, in 2002, this Court (Squatrito, J.) certified a cla ss action in a cash balan ce claim indistinguishable from this one in Amara v. CIGNA. 82 In Amara CIGNA’s cash balance pension plan was being challenged for all the same reasons as Fleet is here. The Court considered the appli cation of Fed. R. Civ. P. 23(b)(2) and certified t he requested class, holding: “Plaintiffs' claims fall squarely within the purview of this provision because they seek injunctive relief, pursuant to ERISA, generally applicable to the entire class.”83
Following the Fifth Circuit’s decision in Allison v. Citgo Petroleum ,84 considerable attention has been given to the issue of whether a request for compensatory or punitive damages in add ition to injunctive a nd declaratory relief means that Rule 23(b)(2) certification is un available or available only wit h an optout right. In Robinson v. Metro-North Railroad Co., the Second Circuit considered Allison and reaffirmed that cer tifications of suits for injunctive relief and equitable monetary relief, such as backpay, rema in appropriate under Rule 23(b)(2) without an opt-out.85
81 760 F.Supp. 989, 996 (D. Conn. 1991). 82 2002 U.S. Dist. LEXIS 25947 (D. Conn. 2002)(Exhibit “B”). 83 Id. at *10. 84 151 F.3d 402, 414-15 (5th Cir. 1998). 85 267 F.3d 147, 164 and 168-69 (2d Cir. 2001). See also Walsh v. Northrop Grumman Corp ., supra, 162 FRD at 448 (relief sought was injunctive and declaratory despite defendants’ “attempt
22

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This is in short a classic Rule 23(b)(1) and (b)(2) class action: plaintiffs seek to certify a class to collectivel y enforce common statutory ri ghts regarding their former employer’s benefit plans. Because compensatory and punitive damages are not available under ERISA, plaintiffs s eek only injunctive relief and equita ble monetary relief. The Eighth Circuit felt this is “precisely what the Rule intended” as they found in Lindquist v. Bowen in 1987. 86 As t he Fifth Circuit conc luded in Forbush, “We are aware of the sometime abuse of the class device; but that unfortunate reality makes all the more important that we not reflexively reject its use in appropriate cases.”87 III. Conclusion.
For all of the foregoing reasons, Rich ards requests that this Court certify the litigation as a class action under Rule 23(b)(1) and (b)(2) of the Federal Rules.
to twist” the court’s reference to “damages” in denying plaintiffs’ motion for prelim inary injunction). 86 633 F. Supp. 846, 861 (W.D. Mo. 1986), aff’d, 813 F.2d 884 (8th Cir. 1987). 87 994 F.2d at 1105.
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Case 3:04-cv-01638-JCH Document 20-1 Filed 12/28/2004 Page 24 of 25
THE PLAINTIFF

By/s/ Thomas Ian Moukawsher
Hartford, (860)
ATTORNEYS

Thomas G. Moukawsher G. Moukawsher ct08940
O. Smith ct24135 & Walsh, LLC
21 Oak Street CT 06106
278-7000 tmoukawsher@mwlawgroup.com
FOR PLAINTIFF

24

 
 Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and :

On behalf of others similarly situated,

:

:

Plaintiff,

:

:

v.

:

:

FLEETBOSTON FINANCIAL

:

CORP. and the FLEETBOSTON

:

FINANCIAL PENSION PLAN,

:

:

Defendants.

:

:

No. 3:04CV1638 (JCH) APRIL 17, 2006

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR RECONSIDERATION OF MOTION TO DISMISS

1. Introduction

The Court has held that ERISA §204 (b)(1)(B)(i) requires it to treat the

Amended Plan as having been in effect for all plan years, and that doing so

requires it to ignore the benefits accrued under the Tr aditional Plan in favor of

considering only the accrual of the cash balance benefits under the Amended Plan.

But, while the original Co mplaint didn’t say so, he re as pleaded in the proposed

Amended Complaint, the language of the Amended Plan itself explicitly provides a

new role for the ol d benefits. The old benef its are one of two sets of be nefits that

are the “accrued benefits” under the Ame nded Plan: (1) the cash balance benefit s

typically go to participants with little or no prior servic e, and (2) for some

Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 2 of 11
participants, for all or some of the time, they get the Traditional Plan benefits as their accrued benefits under the new pl an language. Thus to apply ERISA §204 (b)(1)(B)(i), the Court m ust also treat the Traditional Plan Term s as being in existence for all plan years. They are integral to the FleetBoston benefit form ula and not mere vestiges of a superannuated plan. 2. Register is Wrong: The Traditional Benefits can’t be Ignored When
Measuring Accrual Rates Because They are a Living Part of Calculating Newly Accruing Benefits Under the Amended Plan. The accrual rate holding in Register v. PNC Financial Service Group, Inc. 1 is based on two m istaken assumptions. The Register Court says that the PNC plan mentions the frozen accrued benefits u nder the prior plan “to comply with ERISA’s anti-cutback provisions”. 2 This assumes , however, that the inclusion of the language is largely superfluous. Like the Amended Plan he re, the Amended Plan in Register didn’t have to mention the frozen benefits at all to give plan participants a right to them -- ERISA §204(g) gives them that right when it prohibits cutbacks of accrued benefits. Indeed, had PNC or FleetBoston terminated their traditional plans and started new cash balance plans, i t is unlikely either of them would have mentioned the old benefits in their new plans; si milarly there is no actual need to mention them here
1 2005 U.S. Dist. LEXIS 29678 (D. Pa. 2005)(Exhibit A). 2 Id. at *10-*11.
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Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 3 of 11
if the onl y reason i s to prom ise participants that their legally protected benefits won’t be cut.3
But things here aren ’t as the Register Court suggested. Neither PNC nor FleetBoston were merely bei ng punctilious when they incorporated the benefits accrued under the old form ula into t heir new form ulas: the two com panies incorporated the traditional plan term s into their amended plans for a reason fa r more important to them – they incorporat ed them so they c ould save m oney by creating a wear-away effect. After all, the FleetBoston plan doesn’t merel y guarantee Richards her previously accrued benefits. Instead, Rich ards’s accrued benefit under the FleetBoston plan is a “g reater of benefit,” creating a critical current role for the previously accrued benefits in calculat ing the new ben efit accruals under the Amended Plan:
“Accrued Benefit” means, as of any determination date, (a) for a Cash Balance Participant for whom an Opening Account
Balance is calculated based on his accr ued benefit under the Plan and/or a predecessor plan, the greater of (1) the monthl y benefit, payable in the form of a Singl e Life Annuity, commencing on the Participant’s Normal Retirement Date, or, as appli cable, any later determination date, which is th e Actuarial Equivalent of the Participant’s Cash Bal ance Account, and (2) t he Participant’s accrued benefit under the Plan and/or, as of the date the Participant’s Opening Account was determined.4
3 Not to suggest that plans don’t fr equently do so just to m ake clear that the plans will protect accrued benefits. 4 Excerpt of FleetBoston Plan (Exhibit B)(emphasis added).
3

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Had FleetBoston wanted merely to be conscientious and confine itself to protecting Richards’s previously accrued benefits, it could have used the words “the sum of” where it used the words “the great er of”. Instead it used the words “the greater of” to achieve savings from the wear-away effect, making the impact of the Traditional Benefit Terms integral to understanding Richards’s new benefit accruals. 3. If She Ever Gets Them, Richards ’s New Benefits Will Be Severely
Backloaded. Having chosen to i nclude the “great er of” form ula for its own purposes, FleetBoston can’t now demand that Richards’s December 31, 1996 accrued benefit be disregarded when it com es to judging compliance with the 133 1/3% Rule. As the Seventh Circuit noted in 1994 i n Jones v. UOP , Congress enacted ERISA’s anti-backloading rules to prevent emplo yers from saving money at the expense of the employees who term inate their em ployment long before the backloaded benefits accrue.5 The wear-away effect FleetBo ston built into the Amended Plan , sets in motion the very backloaded be nefit accruals the rules were meant to prevent. Richards’s new benefits are ba dly backloaded. In the nine years she has participated in the Amended Plan, Richards hasn’t earned a nickel of new benefits.6 After 33 years of ser vice, she is 58 years old, and has just se ven more years until
5 16 F.3d 141, 143 (7th Cir. 1994) (citing Jeffrey D. Ma morsky, Employee Benefits Handbook § 18.16 (3d ed. 1992)). See H.R. Rep. No. 93-807 ( 1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4688. 6 Complaint at ¶37.
4

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she reaches normal retirement age. If Richar ds ever earns benefits under the cash balance formula, they will be loaded as far back in her career as FleetBoston can make them. If she stays and gets any new benefits, doubtless she will be one of a small minority -- many otherwise sim ilarly situated employees will have left their jobs voluntarily or involuntarily long befo re Richards. The result will be financial savings for the FleetBoston Plan achieved entirely by backloading benefits through the wear-away effect.
4. Backloaded Accruals Like Rich ards’s Have Been Struck Down Before.
Most important for purposes of the 133 1/3% Rule, if Richards earns thes e backloaded cash balance benef its, the “greater of” formula mean s that those years in which she will finally accrue new benefits will be preceded by at least nine years where she accrued zero new benefits. Here, the “greater of” formul a works something like the “greater of” form ula struck down in 1997 by the Southern District of New York in Devito v. Pension Plan of Local 819 I.B.T Pension Fund .7 In Devito the accrued benefit provided under the plan was the greater of a formul a using social security payments as an o ffset and $2.00 x years of service up t o 20 years.8 The social security offset left th e plan participant accruing very small benefits for eight years under the $2.00 form ula until the other factors in the social
7 975 F. Supp. 258 (S.D.N.Y. 1997). 8 Id. at 262.
5

Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 6 of 11
security offset formula finally exceeded the offset. Once this happened, the plan participant got a significant bum p in her benefit accrual -- a bum p making the benefit accrued in one year more than 133 1/3% of the accrual in the prior year. 9 Rejecting, the plan sponsor’s description of the violation as “purely academic”, the Devito Court declared the plan violated th e 133 1/3% rule and ultimately ordered the plan sponsor to retroactively reform the plan.10
The backloading at issue here is cau sed by FleetBoston’s de cision to write the “greater of” formul a into the plan , not by an amend ment increasing plan benefits “across the board” which under ERISA §204 (B)(1)(b)(i) must be deemed to apply to all plan years. Indeed, this case is no more like the “across the board” benefit changes covered by ERISA §204 (B)(1)(b)(i) than was the benefit increase formula struck down by the Eastern District of New York in 1997 in Carollo v. Cement and Concrete Workers District Council Pension Plan. 11 The plan in Carollo set accrued benefits at 2% of career average pay for participants’ first 24 years of service and then, in the 25th year of service, switched to a more generous formula using 2% of final ave rage earnings.12 Arguably, the se pension increases were caused by across the board salary incr eases and the plan sponsor could claim that the accrual rat e never rose over 2% . But instead of allowing permissibl e
9 Id. at 268-9. 10 Id. at 269, 273. 11 964 F. Supp. 677 (E.D.N.Y. 1997). 12 Id. at 682.
6

Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 7 of 11
increases in benefits attributable to normal salar y increases, the Carollo plan sponsor wrote a salary base shift into the plan. The Carollo Court decl ared this plan language invalid because it viol ated the 133 1/3% Rule, dramatically increasing pension benefits late in partic ipants’ careers based on one extra year of service, thus backloading and reserving special benefits for the “favored few” wh o worked at the company more than 25 years.13
Because FleetBoston wrote the “greater of” formula into the Amended Plan, the circumstances here are also similar to those discussed in IRS Reven ue Ruling 78-252.14 In this Ruling, the IRS considered a s cenario where a plan participant who entered the plan prior to age 40 will ac crue a benefit each year of the first 25 years of participation equal to 2.4% of average com pensation minus two percent of the participants’ social security benefit. For each year of participation after 24 years, the participant will accrue a b enefit equal to 2.4 percent of average compensation. The IRS ruled that such a formula would violate the 133 1/3% Rule because it would produce years of zero bene fit accruals for low paid participants followed by significant accruals in participants’ 26th year of service.15
FleetBoston uses Richards’s frozen benefit much like other plans use offsets. Social security payments, workers compensation payments, and even other pension
13 Id. at 683. 14 Rev. Rul. 78-252 (Exhibit C). 15 Rev. Rul. 78-252 (Exhibit C).
7

Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 8 of 11

incomes are sometimes used as offsets, and offsets are perfectly legal so long a s

they comply with t he accrual rules in ERISA §204. The problem here is that

FleetBoston’s use of the frozen benefits as an offset against any cas h balance

benefits she might receive results in imp ermissible backloading, and there is no

reason to treat FleetBoston’s backloading violation any different t

han other

backloading violations mer ely because it chose Richards’s frozen benefit as the

instrumentality rather than something else.

5. Esden Says FleetBoston Can’t Avoid Legal Implications Caused by the Mechanics of the Plan.

As alleged in the Co mplaint, Richards will suffer years of zero benefit

accrual until her cash balance benefits ar e greater than her frozen benefits.Th e

Court in its opini on on the m otion to di smiss appears to agree: “Thus, the

Amended Plan terms give Richards no cl aim to benefit accrual during the years in

which her hypothe tical account balan ce is below the value of her frozen Traditional Plan benefit.”16
As the Second Circuit point ed out in Esden v. Bank of Boston ,17 cash

balance sponsors can’t avoid a violation fr om this accrual pattern by trying to have

it both ways: Here FleetBoston can’t include the Traditional Plan Ter ms as part of

the new pension form ula to reap the savings of including a wea r- away effect, but

16 Slip Op. at 30-31. 17 229 F.3d 154, 167 (2d Cir. 2000).
8

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then ignore the im pact of the Traditional Plan Terms when it co mes time to test rates of benefit accrual under ERISA §204 (B)(1)(b). The FleetBoston Traditional Benefits are part of what Esden called, the “mechanics of the plan”. 18 They can’t be ignored, nor can FleetBoston disreg ard the years of zero benefit accruals Richards has suffered and the backloading of benefits that occurs if she hangs on to her job until she is alm ost 65 and at last earns some new m oney for the retirement she has worked 33 years to earn.
The Esden Court didn’t i gnore the potential accrual rate problem s in the Bank of Boston plan. The Bank of Bost on plan had backload ed pay credits and frontloaded interest credits based on a variab le rate. As a consequence, in order for the overall rate of accrual to com ply with the 133 1/3% rule, the plan provi ded a minimum interest guarantee of 5%. 19 The Court noted that with interest credits at a lesser rate, the overall formula (pay plus interest credits projected to NRA) would have been impermissibly backloaded.20
The problem in Esden was that, if a participant took his m oney before normal retirement age, the plan calculate d interest credits to norm al retirement using the plan’s 4% projection rate, ra ther than the 5% m inimum interest guarantee. The Court noted that the plan could not have it both ways. Since 5%
18 Id. 19 Id. 20 Id.
9

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was the minimum interest guarantee used to show compliance with the 133 1/3%

formula to normal retirement age, that s ame rate h ad to be u sed to calculate the pre-normal retirement age ben efit.21 FleetBoston can’t pretend that cash balance

credits are accruing to demonstrate the cash balance formula’s compliance with the

133 1/3% Rule and then use the “greater of” language to take the benefits away. As

this Court pointed out, benefits aren’t accruing while the frozen benefi t is greater

than the cash balance benefit. FleetBoston can’t have it both ways.

6. Conclusion.

In light of FleetBoston’s decision to gi ve a living and vital role to the frozen

benefits when calculating new benefit accr uals under the Amended Plan, the Court

should allow Richards to pursue her claim against the benefit backloading this new

role produces.

THE PLAINTIFF: DONNA RICHARDS

Thomas Ian Moukawsher
Hartford, (860) tm

By /s/ Thomas G. Moukawsher G. Moukawsher ct08940
O. Smith ct24135 & Walsh, LLC
21 Oak Street CT 06106
278-7000 oukawsher@mwlawgroup.com

ATTORNEYS

FOR PLAINTIFF

21 Id..
10

Case 3:04-cv-01638-JCH Document 118-1 Filed 04/17/2006 Page 11 of 11
CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2006, the foregoing PLAINTIFF’S
MEMORANDUM OF LAW I N SUPPORT OF MOTION FOR
RECONSIDERATION OF MOTION TO DISM ISS was filed electronically with
the Court and served by mail on anyone una ble to accept electronic fili ng. Notice
of this filing will be sent by e-mail to all parties by operation of t he Court’s
electronic filing system or by mail to a nyone unable to accept electronic filing.
Parties may access this filing through the Court’s system.
Scott E. Gross Sidley Austin Brown & Wood 10 S. Dearborn St. Chicago, IL 60603 sgross@sidley.com
George J. Kelly, Jr. Siegel, O'Connor, Zangari, O'Donnell & Beck 150 Trumbull St. Hartford, CT 06103 gkelly@siegeloconnor.com
Dated this 17th day of April, 2006.
/s/ Thomas G. Moukawsher Thomas G. Moukawsher, Esq. Moukawsher & Walsh, L.L.C. 21 Oak Street, Suite 209 Hartford, CT 06106 Fed. Bar No. CT08940 860-278-7000 Fax: 860-548-1740 Email: tmoukawsher@mwlawgroup.com
11

 
 Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

DONNA C. RICHARDS, individually, and :

on behalf of others similarly situated,

:

:

Plaintiff,

:

:

v.

:

:

FLEETBOSTON FINANCIAL

:

CORP. and the FLEETBOSTON

:

FINANCIAL PENSION PLAN,

:

:

Defendants.

:

:

No. 3:04CV1638 (JCH) NOVEMBER 2, 2005

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Thomas G. Moukawsher ct08940 Ian O. Smith ct24135 Moukawsher & Walsh, LLC 21 Oak Street Hartford, CT 06106 (860) 278-7000 tmoukawsher@mwlawgroup.com
ATTORNEYS FOR PLAINTIFF

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 2 of 28
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii I. Introduction......................................................................................................1 II. The Class is the Right Size and Richards is a Good Representative...............2 III. Class Members Don’t Have to Prove Individual Issues to Prove Liability ....7 IV. Retirees Should be Included in the Class ......................................................14
1. Introduction .........................................................................................14 2. Injunctive Relief ..................................................................................15 3. Standing...............................................................................................17 V. Richards is Neither Underinformed Nor Overwhelmed................................20 VI. Conclusion .....................................................................................................22
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TABLE OF AUTHORITIES Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972).................................10 Amara v. CIGNA, 2002 U.S. Dist. LEXIS 2 5947 (D.Conn. December 20, 2002) ..........................................................................................................1, 2, 15 Amara v. CIGNA Corp. , 2004 U.S. Dist. LEXIS 21116 (D. Conn. 2004) .......................................................................................................................22 Broga v. Northeast Utilities 315 F. Supp. 2d 212 (D.Conn. 2004) .........................16 Burke v. Kodak, 336 F.3d 103 (2d Cir. 2003) , cert. denied, 540 U.S. 1105 (2004) .................................................................................................. 10, 12-14 Christopher v. Mobil Oil Corp., 950 F.2d 1209 (5th Cir.), cert. denied, __ U.S.__(1992).......................................................................................................19 Coan v. Kaufman 333 F. Supp. 2d 14, appeal docketed, No. 04-5173 (D. Conn. 2004) .......................................................................................................17 Firestone Tire & Rubber Co. v. Bruch 489 U.S. 101 (1989)..................................18 Frommert v. Conkright, 328 F.Supp.2d 420 (W.D.N.Y. 2004) ..............................13 Gray v. Briggs, 1998 U.S. Dist. LEXIS 10057 (S.D.N.Y. July 7, 1998) ................20 Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968).......................................... 4, 9-10 Herbst v. IT&T Corp ., 65 F.R.D. 13 (D. Conn. 1973), aff' d, 495 F.2d 1308 (2d Cir. 1974)....................................................................................................9 In re Coordinated Pretrial Pr oceedings in A ntibiotic Antitrust Actions, 333 F. Supp. 278 (S. D.N.Y.), mandamus denied, 449 F.2d 119 (2d Cir. 1971)......................................................................................................6 In re Williams, No. 02-153 TCK (N.D.Okl. August 19, 2005) ...............................20 Kaufman v. Coan, 333 F. Supp. 2d 14 (D. Conn. 2004)..........................................20
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Layaou v. Xerox, 330 F.Supp.2d 297 (W.D.N.Y. 2004) .........................................13 Long v. Trans World Airlines, Inc., 761 F. Supp. 1320 (D. Ill. 1991) .................. 6-7 Mathews v. Chevron. 362 F.3d 1172 (9th Cir. 2004) ........................................ 16-17 Moriarity v. United Technol ogies Corp. 947 F. Supp. 43 (D.Conn. 1996) .......................................................................................................................20 Mullins v. Pfizer 23 F.3d 663 (2d Cir. 1994) ..................................................... 18-19 Nechis v. Oxford Health Plans, Inc. 421 F.3d 96 (2d Cir. 2005) ............................20 Parry v. SBC, 375 F. Supp. 2d 31 (D. Conn. 2005).................................................13 Seidman, et al v. Stauffer Chemical , 1986 U.S. Dist. LEXI S 30264 (D.Conn. January 17, 1986)...................................................................................4, 9 Simpson v. Fireman’s Fund Ins. Co., No. C 05-00225 CW (N.D. Cal. September 27, 2005) .............................................................................................. 4-5 Varity Corp. v. Howe, 516 U.S. 489 (1996)....................................................... 15-17 Vartanian v. Monsanto, 14 F.3d 697 (1st Cir. 1994)...............................................19 STATUTES ERISA §502 (a)(3) .............................................................................................15, 17 ERISA §102 (7) .......................................................................................................17
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I. Introduction. Donna Richards’s com plaint is well- suited for class action certification.
Courts permit class actions because they are efficient way s of handling claims concerning common practices or polic ies that affect large num bers of peopl e. Richards is covered by pensi on plan l anguage that affects thousands of ot her FleetBoston employees; the question is wh ether this common language violates various provisions of federal law. In Amara v. CIGNA , a virtually identical cas e, this Court has certified a cl ass action on the same issues. 1 Still FleetBoston says the Court shouldn’t certify a cl ass action in this case becaus e: (1) class actions aren’t appropriate where the challenged common language doesn’t hurt all of a companies’ employees; (2) in it’s view, lie s told t o large num bers of people are essentially immune from suit – they are t oo unwieldy t o try individually and t oo individual to t ry as class actions; (3) if a class is certified it must exclude the 10,000 employees who already retired unde r the Plan because the Court is powerless to right any wrong done to the m, and; (4) Richards is unfit because she is under-informed and because with her as class representati ve this case will be “overwhelmed” by defenses unique to Richar ds. Because remedies that help don’t have to hurt, because common lies are judged on a common basis of “likely harm”, because the Court can grant those who left appropriate relief, and because Richards
1 2002 U.S. Dist. LEXIS 25947 (D.Conn. December 20, 2002)(Exhibit 1).
1

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is well-suited to represent this class, the company is wrong and the Court should certify this case as a class action. II. The Class is the Right Size and Richards is a Good Representative.
Richards asks the Court to include all the cash balance plan participants in the class because they are all equally subject to the plan’s term s. FleetBoston says certifying a class here would be wrong because some of its employees were helped by the conversion to a cash balance plan a nd therefore the class is too broad and includes people who have interests at odds with Richards’s interest in receiving benefits under the traditional pension plan. FleetBoston points to the assumption – illustrated by a few exam ples Richards hasn ’t tested – that some em ployees who are either young or have s hort service can benefit from a cash balance plan even though middle-aged employees with substantial service m ay be badly disadvantaged.
FleetBoston’s concern about the relative me rit of Richards’s chosen form of relief is ill-conceived. Merely becau se Richards asks that she be given the Traditional Benefits doesn’t mean that she would insist that they be given to employees who would be di sadvantaged by them. While Richards asks for Traditional Benefits as one form of relief she knows would benefit her, she also asks in t he fourth paragraph of her Comp laint’s prayer for re lief for an order to determine and provide extr a benefits for participan t losses and in the tenth
2

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paragraph for other appropriate equitable and remedial relief. While it is too early to know who is advantaged and disadv antaged by allegedly illegal cash balan ce provisions, Richards has asked that this i ssue be determined as part of t he lawsuit. When Richards told FleetBoston she didn’t know of any different relief appropriate for other class members, she intended to reflect nothing more. That question m ust wait until the remedy stage of these pro ceedings. The r emedy here may be as simple as the Court declaring the conve rsion ineffective for those em ployees injured by it, but, depending upon furthe r inquiry into the impact of any rem edy, this may not be enough. Employees appa rently unharmed by the plan provisi ons today may prove harmed by it s provisions in the future especially since all plan participants’ accrual rates decrease with advancing age; ye t if the court redrew the class to exclude plan participa nts not ye t injured, those individuals would get no relief. That’s why Judge Squatr ito, writing for this Court in Amara v. CIGNA , correctly separated the co mmon issue of whether the plan provi sions violate ERISA from the more nuanced question of relief:
CIGNA claims that providing the relief requested in the co mplaint on a class-wide basis may actually ha rm some members of the class. Specifically, CIGNA argues that provision of this relief could actually reduce benefit allocations to mem bers of the class. If CIGNA is correct, this proble m can be addr essed when t he court determ ines what remedy should be provi ded if plaintiff prevails on the merits of her claims. Further, this problem could also be addressed by mem bers of the class asserting these ar guments once the class has been
3

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certified. At any rate, cer tification of the class is the first step toward fashioning a solution to this problem, if the problem indeed exists.2

In 1986 in Seidman, et al v. Stauffer Chemical , Magistrate Judge Margolis, writing

for this Court, also rejected a claim that damages differences among class members

destroy a case’s suitability as a class action:

Likewise, the Court finds t hat possible individual questions on damages do not preclude class certification. As the Nint h Circuit observed in Blackie v. Barrack, supra:

[C]ourts have generally dec lined to consider conflicts, particularly as they regard damages, sufficient to defeat class action status at the out set, unless the conflict is apparent, imminent, and on an issue at the very heart of the suit.

524 F.2d at 909. T he Court perceive s no such conflict in this case

where plaintiffs share an overriding com mon interest in establishi ng

the existence and materiality of

misrepresentations made in

furtherance of an inflationary scheme to defraud. As with the issue of

reliance, the Court is always free to hold separate trials on damages.

See Green v. Wolf Corp., supra , 406 F.2d at 301; Dura-Bilt Corp. v. Chase Manhattan Corp., supra, 89 F.R.D. at 98.3

Other courts have also refused to allow differences among class members with respect to relief to prevent class certif ication on a co mmon issue of whether a defendant has vi olated a statute. In an as yet unpublishe d September 25, 2005 opinion in Simpson v. Fireman’s Fund Ins. Co. , the Northern District of California certified an ERISA class act ion despite the defendant’s argum ent that current
2 2002 U.S. Dist. LEXIS 25947 *6-*7 (D. Conn. December 20, 2002)(Exhibit 1). 3 1986 U.S. Dist. LEXIS 30264, * 15 (D.Conn. January 17, 1986)(Exhibit 2).
4

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employees had suffered no harm from a challenged employment termination policy
and thus didn’t ha ve common interest with m embers of the proposed class
terminated under the policy. 4 Quoting a prior Ninth Circuit decision, the Court
confirmed that disparate remedies don’t dictate denial of class certification for lack
of commonality:
“A class has sufficient commonality ‘if there are questions of fact and law which are common to the class.’” Hanlon v. Chrysler Co rp., 150 F.3d 1011, 1019 (9 th Cir. 1998)(quoti ng Fed. R. Civ. P. 23 (a)(2)). “All questions of fact and law need not be common to satisfy this rule. The existence of shared legal i ssues with divergent factual pr edicates is sufficient, as is a comm on core of salient facts coupled with disparate legal remedies within the class.”5
The Court further confirmed that proposed class representatives who allege present
injury can still meet the typicality test even where they seek to represent other class
members without a present injury:
“The typicality prerequisite of Rule 23 (a) is fulfilled if ‘the claim s or defenses of the representative par ties are typical of the cl aims or defenses of the class .’” Hanlon, 150 F.3d at 1020 (quot ing Fed. R. Civ. P. 23 (a)(3)). “[R]epresentativ e claims ar e ‘typical’ if they are reasonably co-extensive with those of absent class mem bers; they need not be substantially ide ntical.” Id. In det ermining whether typicality is met, the focus should be “on the defendants’ conduct and the plaintiff’s legal theory”, not th e injury caused to the plaintiff. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Typicality does not require that “all class mem bers suffer the same injury as the named class representative.” Id.6
4 Simpson v. Fireman’s F und Ins. Co. No. C 05-00225 CW (Order Granting Plaintiff’s Motion for Class Certification) (N.D. Cal. September 27, 2005)(Exhibit 3). 5 Id. at 6-7. 6 Id.
5

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Similarly, the Northern District of Ill inois in its 1991 decision in Long v. Trans World Airlines, Inc. rejected a defendant's argument that differences am ong individual class members with respect to damages made a class action unwieldy.7 The class action was brought by 3,000 flight atte ndants against their em ployer, TWA, challenging t he company's refusal to provide them with designated rights letters pursuant to the Airline Deregulation Act, after plaintiffs went on strike and were not re-hired. 8 The Court granted plaintiffs' motion for class certification, rejecting defendant's argument that an a bundance of individual issues wit h respect to damages made a class action unwieldy.9 The Court said a num ber of m ethods were available to manage these issues. 10 The Court went on to note that "in determining the specific remedies to be afforded, a district court is ' to fashion such relief as the particular circum stances of a case may require to effect restitution.' "11 The Long Court relied for its ruling on t he Southern District of New York’s 1971 ruling in In re Coordinated Pretrial Procee dings in Antibiotic Antitrust Actions 12 in which, according to Long, the Court:
“rejected arguments very similar to those raised here:
7 Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1322 (D. Ill. 1991) 8 Id. 9 Id. 10 Id. 11 Id. at 328 12 333 F. Supp. 278 (S.D.N.Y.), mandamus denied, 449 F.2d 119 (2d Cir. 1971)(cited in Long, at 761 F. Supp. At 324).
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The defendants contended that individual proof of damages at trial by the class memb ers would require so much time and creat e such complexities for the parties, courts and jury that the actions would be unmanageable. On the other hand, they contended that any ot her method of provi ng this issue at tr ial would subst antially prejudice them and violate their rights to a jury trial and due process.

333 F. Supp. at 287. The court rejected th ese arguments and certified the case as a

class action.”13

This Court should do the sa me. Even if FleetBoston can show some

participants with less service or year s than Richards benefit from having cash

balance benefits over Traditional Benefits, this doesn’t mean they will necessarily

be injured if Richards wins her suit. A single class action can accommod ate

different forms of remedies (or no reme dy) for different (or undam aged) class

members without becoming unwieldy, and without creating any conflict among the

class members where the proposed class re presentative seeks no harm t o any class

member.

III. Class Members Don’t Have to Liability.

Prove Individual Issues to Prove

FleetBoston says the Court shoul d also deny class certifi cation because

Counts II through VI “require the Court to conduct highly individualized inquiries with respect to every class member.”14 Without citing any authorit y, the company

says for instance that Rich ards can’t show FleetBoston is liable for violating

13 Long, 761 F. Supp. at 1325 (D. Ill. 1991). 14 FleetBoston Brief at 16.

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ERISA under Richards’s wear-away a llegations without exam ining all participants’ accounts to decide if they suffer from wear away. This argument fails because Richards can show that she suffe rs from wear away. If the Court agrees this is illegal under ERISA, it ’s illegal for any particip ant suffering from wear away, and the Court can craf t a relief order that identif ies the sufferers and relief appropriate for them. FleetBoston’s argument does little more than repeat its other arguments entangling the details of relie f with the question whether FleetBoston’s common practices violate ERISA.
FleetBoston also says that the claims about the summary plan descriptions in Counts IV and V shouldn’t be certified b ecause all class mem bers would have to prove individually that they were “likel y harmed.” This Court and the Second Circuit, however, have already decided this issue against FleetBoston.
The defendants in Amara v. CIGNA argued that Judge Squatrito should deny class certification on the count about w hether the “SPD was m isleading” because each plaintiff in t he over 24,000 mem ber class would have to “mak e an individualized showing of detrimen tal reliance upon th e misleading SPD provision” in order to obtain relief. In CIGNA’s words:
“if this case were certified as a class action, every one of the estimated (by Plaintiff) 25,000 class members would be called upon to
8

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present evidence, as to, inter alia, the extent, if any, of hi s or her detrimental reliance on the SPD.”15 In ruling in favor of class certification, Judge Squatrito held that the “threshold inquiry” is “whether the SPD is misleading,” which “is a legal question common to each class member.” Judge Squatrito observed that the Second Circuit “ha[d ] not yet decided” the issue of detrimental reliance.16 FleetBoston’s argument that each class member will individually have to pr ove “likely harm” fails here for the same reason the detrimental reliance argument fa iled to prevent class certification in Amara – the common question is still whether the SPD is misleading. Magistrate Judge Margolis’s ruling in Seidman, et al v. Stauffe r Chemical is also instructive on this issue. It rejected a similar claim that the harm caused is too individualized to be managed in a class action: Generally, in this context, the requi rement of reliance has not been a bar to a class action suit. See, e.g., Herbst v. IT&T Corp., 65 F.R.D. 13, 19 (D. Conn. 1973), aff' d, 495 F.2d 1308 (2d Ci r. 1974). In any event, should the issue of reliance become an element of proof, the Court could order separate trials on this particular issue. Green v. Wolf Corp., supra, 406 F.2d at 301; Dura-Bilt Corp. v. Chase Manhattan Corp., supra, 89 F.R.D. at 98.
The cases cited by Magistrate Judge Margolis are instructive too. In Herbst v. IT&T Corp. Judge Blumenfeld, writing for this Court in a securities case noted that individualized issues like reliance ar e always present in securities cases, but
15 2002 U.S. Dist. LEXIS 25947 (D.Conn. December 20, 2002). Opp. Br. filed June 1 0, 2002 at 12 (dkt. #30)(Exhibit 4) . 16 2002 U.S. Dist. LEXIS 25947 at *9 n.4 (Exhibit 1).
9

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where uniform misrepresentati ons are invol ved, it is “beyond dispute” that these

issues are no bar to the designation of a class action:

“Where the activities allegedly giving rise to liability are standardized,

as where uniform misrepresentations are made to al l members of the

group, proof of individual reliance as well as individual damages may

effectively be severed a

nd treated in subsequent

proceedings…..Substantively, it may be relatively immaterial once the

form of fraud ] giving rise to li ability is determ ined.” 3B Moore’s Federal Practice, para. 23.45(2), at 23-762-764.17

Judge Blumenfeld also noted that the Second Circuit in Green v. Wolf Corp.,18 said that because reliance could be an issue in every securities case, the

reliance argument, carried to its logical extreme, would ne gate every securities class action.19 In Affiliated Ute Citizens v. United States, the Supreme Court solved

the reliance problem in securities cases by holding reliance on a misrepresentation

need not be shown, substituting an inqu iry of w hether “a reasonable investor” might have considered the misrepresentations important.20

The Second Circuit has now solved the reliance problem in ERISA SPD

cases in a way sim ilar to the way in wh ich reliance was settled in the securities cases. As FleetBoston knows, the Second Circuit, in Burke v. Kodak , 21 resolved

the issue by holdi ng that plan participants can prevail in cases challenging flawed

SPDs by showing “likely harm” and w ithout proving i ndividual reliance on
17 65 F.R.D. 13, 19 (D.Conn. 1973). 18 406 F.2d 291 (2d Cir. 1968). 19 Id. at 18-19. 20 406 U.S. 128, 153-54 (1972). 21 336 F.3d 103 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004)

10

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inadequate disclosures in an SPD. 22 FleetBoston ignores, how ever, that the likely harm standard is an objective standard like the reasonable investor standard adopted for securities cases. Indeed, the Second Circuit echoed judicial concerns about the impossibility of class actions if any other approach were adopted. Specifically, in adopting the likely harm standard the Court noted that “‘A rule requiring . . . detri mental reliance . . . imposes an insurmountable hardship on many plaintiffs.’"23 The Court held that the consequences of deficient SPDs should be placed on the employers who drafted th em and that obstacl es like individual reliance are inconsistent with this and with ERISA’s purposes.24
The Second Circuit found that the prejudi ce standard had been applied with “varying degrees of stringency.” C onsequently, instead of an “amorphous” prejudice standard, the Second Circuit es tablished an objective one, requiri ng an “initial” showing of “likely prejudice, ” meaning that the participant “was likely to have been harmed as a result of a deficient SPD.” 25 The em ployer can rebut by offering evidence s howing that the i nadequate description was “in effect a harmless error.”26 The “likely prejudice” standard thus “avoi ds the use of harsh
22 336 F.3d at 112-14. 23 336 F.3d at 112. 24 Id. at 112-113. 25 Id. (emphasis in original). 26 Id. at 113.
11

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common law principles to defeat emp loyees’ claims based on a federal law designed for their protection.”27
Applying this standard, Burke decided that ERISA prohibited enforcement of an affi davit requirement for dom estic partners that was contained i n Kodak’s Plan document but was not adequately disclosed in the SPD. Although the affidavit requirement was set out in the Plan document, and was even described in certai n sections of the SPD, it was om itted from the section of the SPD describing preretirement survivor’s benefits, which also failed to cross-reference the reader to other sections of t he SPD wher e the req uirement was des cribed.28 In Burke, the Second Circuit found likely prejudice on an objective basis, noting t hat because “[t]he conspicuous absence of the domestic partnership affidavit requirement in the self-contained [preretirement Survivor Income Benefits] section [of the SPD] likely led the Burkes to believe that an affidavit was unnecessary for SIB benefits.”29 The Court rejected the employer’s rebuttal because it was based on “the same evidence used by the district court to find a lack of detrimental reliance,” namely, the Burkes’ conscious decision not to apply for Kodak’s health benefit s because of unrelated concerns about whet her expenses from a pre-existing stroke would be covered.30
27 Id. 28 Id. at 110-11. 29 Id. at 114. 30 Id. at 114.
12

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The Western District of New York used a sim ilarly objective test in 2004 in Layaou v. Xerox where the district court found that the SPD contained “no reference whatsoever” to the offset of a “ phantom account,” either expressly or by description of its application and effect.” A participant “would not know” from the SPD “how or to what extent the benefit would be reduced.” 31 The Court determined that:
“the conspicuous a bsence of any re ference to or explanation of the phantom offset, coupled with the a nnual benefit statements that had been provided to Layaou, would clearly have misled him into believing that his monthly benefit would be considerably hi gher than it turned out to be. That mist aken belief would li kely have affected plaintiff’s financial planning for his upcom ing retirement, and defendants have not presented any ev idence to show that plaintiff was in fact aware of the phantom account offset prior to his retirement.”32 330 F.Supp.2d at 304. The Court concluded that “plaintiff has established “likely prejudice” as a result of the faulty SPD, and that defendants have not rebutted that showing.” Id.33 Most recently, in 2005 in Parry v. SBC Communications, Judge Arterton, writing for this Court, applied the Burke likely harm standard in an ERISA SPD case and held that plaintiffs’ showing of prejudice was “clear” where differences in
31 330 F.Supp.2d 297, 303 (W.D.N.Y. 2004), on remand from 238 F.3d 205 (2001) 32 Id. at 304. 33 Judge Larimer distinguished his earlier decision in Frommert v. Conkright, 328 F.Supp.2d 420 (W.D.N.Y. 2004), on the basis that Fromm ert’s claims were not based on a faulty SPD. 330 F.S.2d at 303 n.6.
13

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 18 of 28
benefits were “so si gnificant” and parti cipants were aware of confli cting benefit “estimates.” She held that the employer “has not rebutted this showing.” 34
The likely harm standard adopted in Burke is an objective standard similar to the reasonable investor standard the cour ts developed for securities cases. The misrepresentations alleged here are in communications common to all members of the class. Consequently, no in dividual inquiries will have to be made on the issue of likely harm. But even before the courts adopted objective standards to cover the reliance issue in m isrepresentation cases, the courts still didn ’t deny class action status in cases of common misrepresentations, they simply bifurcated the proceedings. Accordingly, the plaintiffs’ misrepresentations claims present no bar to this action being certified as a class action. IV. Retirees Should be Included in the Class.
1. Introduction. Retirees should be included in the class as the Complaint provides. Retirees are just as concerned as other memb ers of the class as des cribed in the central common issue of whether the cash balan ce provisions violate ERISA and whether FleetBoston deceived its em ployees about them . Fleet Boston’s claim that t he Court should determine on class certificati on the form of relief it can grant retirees is another instance of it putting the cart before the horse. Richards believes the
34 375 F. Supp. 2d 31 (D. Conn. 2005).
14

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 19 of 28
Court should reserve judgm ent on the entir e relief issue unti l after it decides the liability issue. Nevertheless, to the exte nt the Court considers now whether it ha s the power to grant retirees injunctive or d eclaratory relief, it should be confident that it can. Even assuming, without con ceding, that the Cou rt could only award injunctive and declaratory relief, the C ourt has the pow er here to issue an injunction ordering changes to the plan a nd reinstating the retirees into the plan with rights to receiv e the difference between what they got under the old plan and what they are owed under the plan as refo rmed. This ki nd of injunctive relief in the form of a reinstatement was approved under ERISA §502 (a)(3) by the Supreme Court in 1996 in Varity Corp. v. Howe.35
2. Injunctive Relief. The plaintiffs in Varity claimed their employer, acting in its fiduciary capacity, misled them concerning the likely future of the company’s benefit plans, causing them to make an ill-informed and ultimately damaging decision regarding their employment st atus. Th e Supreme Court upheld the Eighth Circuit Court of Appeals’ ruling that ERISA Section 502 (a )(3) provided indi vidual relief to the plan participants and let stand the unchallenged form of injunctive relief crafted by the Eighth Circuit.36 That relief consisted of a kind of reinstatement, ordering the plaintiffs’ former employer t o permit their participation in t he company benefit
35 516 U.S. 489 (1996). 36 516 U.S at 515.
15

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 20 of 28
program during retirement in the face of both their departure from the co mpany and their failure to qualify under the terms of the plan at issue.37
In 2004 the Ninth Circuit consi dered Mathews v. Chevron.38 The Mathews plaintiffs were retir ee plan participants suing a plan fiduciary for breaching its ERISA fiduciary dut ies by m isleading them about a pending severance offer the company was considering.39 The District Court enjoined the breaching fiduciary to instate the six prevailing plaintiffs into th e severance plan at i ssue and to modify the plan records to put them in the position they would have been in had the breach never occurred.40 The Ninth Circuit rejected Chev ron’s claim that in substance th e order was nothing m ore than an order to pay m oney. The Court hel d that t he District Court’s order merely placed the pl aintiffs in the position they would have been in if the breach hadn’t occurred. 41 According to the Court, it was the plan terms and the parties’ agreement that th e plaintiffs qualified under them that provided benefits, not the Court’s order.42
This Court has the power to grant si milar injunctive relief in ERISA cases and did so in 2004 i n Broga v. Northeast Utilities where Judge Squatrito, writing for the Court in an ERISA misrepresentation case brought by retirees, adopted the
37 Howe v. Varity Corp., 36 F.3d 746, 754-55 (8th Cir. 1994). 38 362 F.3d 1172 (9th Cir. 2004). 39 Id. at 1176-78. 40 Id. at 1185-86. 41 Id. at 1186. 42 Id.
16

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 21 of 28

same injunctive relief as the Mathews Court, ordering a modification of plan

records that would create an entitlement

to new benefits for the retired

employees.43 FleetBoston’s claim that retirees should be excluded from the class

because they can’t get relief is meritless.

3. Standing.

Equally meritless is FleetBoston’s suggestion that the re tirees have no standing

to sue. The Court should i gnore FleetBoston’s slender discussion of thi s complex

issue, but if it decides to take it up, it should decide it in Richards’s favor.

Richards brings this action under §502 (a)(3) which authorizes a civil action

to be brought by:

(2) …a participant, beneficiary, or fiduciary for appropria te relief under section 409;

(3) by a participant, beneficiar y or fiduciary…to obtain other appropriate equitable relief

Under ERISA §102 (7) “participant” means:

any employee or former empl oyee of an em ployer…who is or may become eligible to receive a benefit of any type form an employee benefit plan which covers employee of such employer…

43 315 F. Supp. 2d 212, 256 (D.Conn. 2004). Judge Kravit z’s ruling that injunctive relief wasn’t appropriate in Coan v. Kaufman 333 F. Supp. 2d 14, 27, appeal docketed, No. 04-5173 (D. Conn. 2004) is distinguished by the fact that, in that case, the Cour t relied on the fact that the plan had terminated: “Thus, in contrast to th is case, the pla n into which the plaintif fs in Varity Corp. sought reinstatement was extant when plaintiffs filed their suit, as was the em ployer who administered the plan.” Id. at 27.
17

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 22 of 28
Considering the definition of "particip ant" the Supreme Court, in 1989 in Firestone Tire & Rubber Co. v. Bruch ruled:
(a) the definition of pa rticipant includes “former employees…who have a ‘colorable claim’ to vested benefits”, and (b) an employee may demonstrate that she “may become eligible” for benefits by showing a “colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future."44 In Mullins v. Pfizer45, the Second Circuit t ook a broad view of Firestone at odds with the FleetBoston’s view here. Mullins was a former Pfizer employee who missed his chance to participate in a vo luntary separation benefit because plan fiduciaries misled him into retir ing shortly before its adoption. 46 Judge Nevas, writing for the District of Connecticut, granted Pfizer summary judgment ruli ng, among other things, that as a former employee Mullins lacked "participant" standing.47 On the narrow issue of Mullins' standing, the Court held Mulli ns was a participant because he was a former employee of the defendant and had a colorable claim to plan benefits under a plan c oncerning which he would have been a participant but for Pfizer’s wrongdoi ng.48 On the broader i ssue of t he basic standing question under ERISA, the Cour t adopted the broadest possible view, holding that: “the basic standing issue is whether the plaintiff is ‘within the zone of
44 489 U.S. 101, 117-18 (1989). 45 23 F.3d 663 (2d Cir. 1994). 46 Id. at 665. 47 Id. 48 Id. at 667-8.
18

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 23 of 28
interest ERISA was intended to protect ’”.49 The Mullins Court cited a reminder from the legislative history t hat ERISA was supposed to rem ove obstacles to claims, not create them:
The intent of the [Senate Labor a nd Public Welfare] Co mmittee is to provide the full range of legal and equitable remedies available in both state and federal court s and to rem ove jurisdictional and procedural obstacles which in the past appear to have ham pered effective enforcement of fiduciary responsibilities under state law or recovery of benefits due to participants. S.Rep. No.127 (93d Cong.,2d Sess. (1974).50 Like other courts, the Mullins Court believed the altern ative view led to "unj ust and arbitrary" result s unintended by Co ngress including enabling employers to defeat an employee’s standing merely by keeping breaches of fiduciary duty secret until the employee receives h is benefits or by "terminating benefits before the employee can file suit.”51 FleetBoston apparently hopes to defeat retirees’ standing because the illegality of the plan prov isions and the comp any’s breaches of fiduciary duty didn’t co me to light until after they received their benefits. In Mullins, the Second Circuit made clear that under such a circum stance standing should be afforded.
49 Id. at 668 (quoting Vartanian v. Monsanto, 14 F.3d 697, 701 (1st Cir. 1994))(emphasis added). 50 23 F.3d at 668. 51 Id. at 667; See also Vartanian supra; Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1220-23 (5th Cir.), cert. denied, __ U.S.__(1992).
19

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 24 of 28

The Second Circuit’s 2005 decision in Nechis v. Oxford Health Plans, Inc.52

requires no different result. Nechis holds only that a welfare plan participant loses

her standing in a di spute over health insurance after losi ng her job be cause no

relief the court could grant could reinstate her benefits. Unlike the pension benefits

at issue here, welfare benefits such as h ealth insurance benefits don’t vest , and the

plaintiff didn’t and couldn’t ask the Court to restore her job so she could sue; accordingly the Court denied standing.53

Retiree members of the class have standing and shouldn’t be dropped.

The Second Circuit, this Court, and m any others have held th at denying standing

under circumstances like this frustra tes the core purposes of ERISA.

54

Accordingly, the Court should reject FleetBoston’s standing claim.

V. Richards is Neither Underinformed Nor Overwhelmed.

Finally, FleetBoston says that Richards is an unfit representative because she

didn’t answer one of the com pany’s questions at her deposition about Count VI to

its satisfaction and because the litigati on will be “overwhe lmed” by defenses

unique to Richards. FleetBoston com plains that Richards doesn’t know enough

52 421 F.3d 96 (2d Cir. 2005). 53 Id. at 101-2. 54 See also, Kaufman v. Coan, 333 F. Supp. 2d 14, 19-23 (D. Conn. 2004)(form er participant’s claim within the zone of interests); Moriarity v. United Technologies Corp. 947 F.Supp. 43, 4546 (D.Conn. 1996)(“the requirement of a colorable claim is not stringent”); Gray v. Briggs, 1998 U.S. Dist. LEXIS 10057 at *2 (S.D.N.Y. July 7, 1998)(Exhibit 5)(claim for larger distribution for violations is claim for vested benefits); In re Williams, No. 02-153 TCK (N.D.Okl. August 19, 2005)(Exhibit 6)(colorable claim includes claim for greater benefits as a rem edy for ERISA violation).

20

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 25 of 28
about the Count VI claim that the com pany is misrepresenting benefits to retiring plan representatives. FleetBoston’s complaint, however, boils down to an attack on Richards’s uncertainty about the indi vidual names of retirees who had their benefits misrepresented to them as refe rred to in Count VI. Richards named three individuals she beli eved may have enc ountered the problem, and Fl eetBoston knows that it has already taken the depos ition of a fourth person who made this precise complaint, Peter Rogan.55 Ms. Richards has three masters degrees and is a trust officer and senior vice president at the bank. 56 FleetBoston’s half-hearted niggling over Richards’s deposition is pl ainly inadequate to show that she is too ignorant to represent the proposed class of employees.
This case will also not be “overwhe lmed” by FleetBoston’s assertion that Richards hasn’t exhausted her administrative remedies and the claim that she lacks standing under Count VI. First , the exhaustion issue has already been briefed as a small part of the di spute over the m otion to dism iss. It can hardly be said to be overwhelming the litigation. Second, Fleet Boston bullheadedly ignores Richards’s obvious stake under Count VI in seeking to stop Fl eetBoston from misinforming retiring employees about their benefits when they seek to retire. As someone who will retire someday, she and ot her current employees have a vital interest in seeing that when they do they will be given accurate information.
55 Exhibit 7 (Deposition of Donna Richards Excerpt). 56 Id.
21

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 26 of 28
There is no evidence to suggest that either of FleetBoston’s supposed defenses against Richards will overwhelm the litigation. Indeed, this Court has rejected more significant defenses as likely to overwhelm litigation in the past. 57 It should easily reject the claim under these circumstances. VI. Conclusion.
This case is well-suited to be certif ied as a clas s action. The Co mplaint focuses on the legality of FleetBoston’s plan and thus its claims affect all the class members in a common way. Most of FleetBoston’s brief in opposition recycles the same claim about how Richards’s personally desired relief won’t work for all class members. Other clai ms are similarly focused on the issue of relief. All of the company’s relief claims are premature and are, on their merits, insufficient grounds to deny class certification. FleetBoston’ s claim about standing ignores the ready availability of injunctive relief for curren t employees and retirees. Its claim s about Richards personally are thin and wholly insufficient to block class action certification. Accordingly, Fleet Boston has presented no com pelling reasons to deny class action certification and the Court should grant Richards’s motion.
57 Amara v. CIGNA Cor p., 2004 U.S. Dist. LEXIS 21116 (D. Conn. 2004)(Court refused to decertify a class on unique defense grounds where class representative had signed a release defendant claims committed her to arbitrate her claim)(Exhibit 8).
22

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 27 of 28

Thomas Ian Moukawsher
Hartford, (860) tm
ATTORNEYS

THE PLAINTIFF: Donna Richards
By/s/ Thomas G. Moukawsher G. Moukawsher ct08940
O. Smith ct24135 & Walsh, LLC
21 Oak Street CT 06106
278-7000 oukawsher@mwlawgroup.com
FOR PLAINTIFF

23

Case 3:04-cv-01638-JCH Document 76-1 Filed 11/10/2005 Page 28 of 28

CERTIFICATE OF SERVICE

I hereby certify that on Novem ber 2, 2005, a copy of foregoing

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR

CLASS CERTIFICATION was filed electroni cally. Notice of this filing will be

sent by e-mail to all partie s by operation of the Court’s electronic fili ng system.

Parties may access this filing through the Court’s system.

William F. Conlon Sidley Austin Brown & Wood Bank One Plaza 10 S. Dearborn St. Chicago, IL 60603 wconlon@sidley.com
Scott E. Gross Sidley Austin Brown & Wood 10 S. Dearborn St. Chicago, IL 60603 sgross@sidley.com
Brian P. Guarraci Sidley Austin Brown & Wood Bank One Plaza 10 S. Dearborn St. Chicago, IL 60603 bguarrac@sidley.com
George J. Kelly, Jr.

Siegel, O'Connor, Zangari, O'Donnell & Beck 150 Trumbull St. Hartford, CT 06103 gkelly@siegeloconnor.com
Julie A. Koca Sidley Austin Brown & Wood - CH, IL Bank One Plaza 10 S. Dearborn St. Chicago, IL 60603 jkoca@sidley.com
Anne E. Rea Sidley Austin Brown & Wood - CH, IL Bank One Plaza 10 S. Dearborn St. Chicago, IL 60603 area@sidley.com

Thomas

/s/ Thomas G. Moukawsher G. Moukawsher

24

 
 Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

FILED
Z008 APR 2W A 10: 2q

)

DONNA C. RICHARDS,

)

)

·.S. OISTRICT
: >3EPORL

CcmOUmRT

Plaintiff, vs.

)
) ) Case No. 3:04-CV-1638 (JCH)

)

FLEETBOSTON FINANCIAL CORP.,

)

FLEETBOSTON FINANCIAL PENSION )

PLAN, and BANK OF AMERICA

)

CORPORATION,

)

)

Defendants.

)

PRELIMINARY APPROVAL ORDER This matter, having come to the Court for hearing on the motion of Plaintiff and Defendants for Preliminary Approval of the Class Action Settlement Agreement ("Settlement Agreement") executed on April 17, 2008 by Plaintiff, on behalf of herself and the Class, and Defendants, and for related relief, including to establish a schedule with respect to a hearing to determine, by way of a final judgment, whether the Settlement is fair, reasonable and adequate, the Court having considered the motion and supporting materials, hereby finds and orders as follows: 1. The terms that are capitalized in this Order shall have the meaning ascribed to those terms in the Settlement Agreement. 2. On March 31, 2006, the Court certified a class. For purposes of the proposed Settlement, the Court hereby amends and supersedes its prior certification order. The Court certifies a class comprised of all persons who satisfy the following requirements:

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 2 of 14

(a) prior to January 1, 1997 the person was an active participant in the Shawmut National Corporation, National Westminster Bank or Fleet Financial Group, Inc. final average pay pension plan;
(b) after January 1, 1997 the person was an active participant in the Fleet Financial Group, Inc. or FleetBoston Financial Corporation pension plan;
(c) on December 31, 1996 the person was not at least 50 years old with at least 15 years of past service; and
(d) the person was vested in his or her pension benefits either as of December 31, 2006 or, for a person with multiple dates of termination, was vested under the Plan as of the first date of termination that post-dates January 1, 1997.
In addition, the Class includes any person who is the Beneficiary of a person satisfying the above

criteria and, as Beneficiary, has a current legal entitlement to receive some or all ofthe

Participant's benefits. This Court's March 31, 2006 certification order provided that the Class

was certified for certain claims in Plaintiffs Amended Complaint. For purposes of the proposed

Settlement, the certification order is further amended and superseded to provide that the Class is

certified for all claims that were or could have been brought in this Action, and not merely the

claims identified in the Court's certification order of March 31, 2006.

3. The Settlement was negotiated at arms-length and is sufficiently fair, reasonable

and adequate and it is in the best interests of the Plaintiff and the Class for this Court to grant

Preliminary Approval and to order the distribution of Notice to the Class. A hearing to

determine whether to give Final Approval to the Settlement (the "Fairness Hearing") is

Oc.-r. scheduled on

/S:l~~at A::>.'Q)a.m.~ At the Fairness Hearing, the Court will

consider

(a) whether to approve the Settlement as fair, reasonable and adequate, and whether to enter the Final Order and Judgment;

M'1f (b) an award ofreasonable attorneys' fees, considering, inter alia, the Fee and

Expense Application of Class Counsel to be filed on

3.1, ZOO <; ;

2

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 3 of 14

(c) an incentive award to Plaintiff;

(d) any timely and proper objections to the Settlement and to the Fee and Expense Application or request for incentive award; and

(e) any other matters the Court may deem appropriate.

The Court reserves the right to continue or adjourn the Fairness Hearing without any further

notice other than an announcement (which may be made by docket entry) at or in advance of the

Fairness Hearing and, specifically, without further notice to the Class. The Court further

reserves the right to approve the Settlement with modifications, as may be agreed upon by the

Parties, and without further notice to the Class.

4. Notice in the form of Exhibit 1 to this Preliminary Approval Order is approved for

distribution. The Notice and manner of giving notice, as set forth below, comply with the

requirements of Rule 23(c) of the Federal Rules of Civil Procedure and due process and is the

best notice practicable under the circumstances.

5. Defendants shall cause the Notice to be sent to the last known address of each

r

}/member of the Class by first class mail, with such mailing to be completed by ~ 3e>I a~ Defendants shall engage in reasonable efforts to locate any Class

member whose Notice is returned as undeliverable and to make a second mailing to such Class

member.

6. Defendants shall file, at least 14 days prior to the Fairness Hearing, an affidavit

establishing compliance with the provisions of paragraph 5.

J..I4A( 7. Class Counsel shaH file, on

2$', 200~, a Fee and Expense Application.

Ntut Plaintiff shaH file, on

;;g, 'Zt:;;t:) ~ , a request for an incentive award.

8. Any member of the Class may, subject to the following conditions, object to the

Settlement, to the Fee and Expense Application, or to the request for an incentive award to

3

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 4 of 14

Plaintiff, and may appear at the Fairness Hearing in person or through counsel, and present his or

her objections. To have any objection considered, the member of the Class must, no later than

k6JA.s.,.', ~

'1a:>~ , file with the Clerk of the Court and serve on the Parties the following:

(a) the objector's full name and address, along with an appearance of counsel if the objector is so represented~

(b) a written statement of all grounds for the objection, including any evidence supporting the objection;

(c) any supporting memorandum;

(d) a list of all persons to be called to testify, including experts; and

(e) a statement whether the objector intends to appear at the Fairness Hearing and, if such appearance will be through counsel, the identity of all counsel.

Any member of the Class who does not satisfy these requirements shall waive his or her right to

appear at the Fairness Hearing and shall waive any right to object to the approval of the

Settlement, either before the Court or on appeal.

9. The Parties may file written responses to any objection and any memorandum

supporting approval of the Settlement on or before the date 14 days prior to the Fairness Hearing.

10. Pending the final determination ofthe fairness, reasonableness and adequacy of

the proposed Settlement, all Participants are enjoined from instituting or commencing any action

against Defendants based on the Released Claims and all proceedings in this action, except those

related to approval of the Settlement, are stayed.

11. This Court approves the appointment of Rust Consulting, Inc. as Settlement

Administrator to assist Plaintiff and Defendants in the administration of this Settlement,

including but not limited to the distribution of Notice.

4

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 5 of 14
12. All Parties and the Settlement Administrator may respond to inquiries from the Class regarding the Settlement, except that counsel for Defendants may not communicate directly with the Class without the prior approval of Class Counsel.
13. Should the Settlement not be finally approved, or should the Effective Date not occur, this Preliminary Approval Order, including the modifications to the Court's March 31, 2006 order certifying a class, shall be null and void and of no further force and effect, and the parties shall be restored to their respective positions prior to the execution ofthe Settlement Agreement. Upon such nullification, neither this Preliminary Approval Order nor the Settlement Agreement shall be used or referred to for any purpose in this Action or any other proceeding, and the Settlement Agreement and all negotiations related thereto shall be inadmissible. The Settlement Agreement and this Preliminary Approval Order are not an admission of liability by Defendants.

r Date: ~oZ?, ;ZO/J

,/sl Jairet q~-H8", usoj
OS

!
5

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 6 of 14

..I
"
UNITED STATES DISTRICT CO~T FOR THE DISTRICT OF CONNECTI¢UT
.' NOTICE OF PROPOSED SETTLEMENT OF~'i SS ACTION INVOLVING FLEETBOSTON FlNANCIALPE SION PLAN (FORMERLY KNOWN AS FLEET FINANCIAL GRO ,P PENSION PLAN)

DONNA C. 'RICHARDS,
Plaintiff,
VB.
FLEETBOSTON FINANCIAL CORP., FLEETBOSTON FINANCIAL PENSION PLAN, aud BANK. OF AMERICA CORPORATION,
Defendants.

~ Case No. 3:04-cV-1638 (JCH)
j IMPORTANT EGAL DOCUMENT: TIDS DESC ES THE TERMS OF A ) PROPOSED S TTLEMENT THAT ) AFFECTS TH RIGHTS AND BENEFITS ) OF CERTAIN ARTICIPANTS IN THE ) PENSION PL FORMERLY KNOWN
~ AS THE FLEE BOSTON FINANCIAL PENSIONPL ) )

YOU ARE RECEIVING THIS NOTICE BECAUSE IT APPE~ THAT YOU ARE A MEMBER OF THE CLASS. A PROPOSED SETTLEMENT qF TIDS CLASS ACTION
MAY AFFECT YOUR RIGHTS.}
• The parties to the lawsuit have proposed a Settlement.
• The Court will decide whether to approve the Settlement.
• If the Settlement is approved, you will receive an amount pay_ble under the Settlement and you will release the Defendants from certain claims.

. Receive benefits under the Settlement if the Settlement is approved.
Write to the Court to explain why you obj
Follow the instructions below to ask to be
about the fairness of the Settlement.

to the Settiement. to speak in Court

• These options - and the procedures for each - are explained in thisl Notice.

THE CLASS
1. Am I a member of the Class? You are a menlber of the Class in this lawsuit if you meet the following requirements: (1)
prior to January I, 1997 you were an active participant in the ShaWmut National Corporation, National Westminster Bank or Fleet Financial Group, Inc. final averag~ pay pension plans; (2) after
I

(
"

1 The full Settlement Agreement is words in this Notice are capitaliZed

abveacialaubsleetahtoWseWwWor.dlesg'aarCe ysfpleeectipallalyn~rLefoilunteidonin.cothme.

Certain Settlemen

t,

.

Agreement.

'

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 7 of 14

January 1, 1997 you were an active participant in the Fleet Financm' Group, Inc. or FleetBoston

Financial Corporation pension plan; (3) on December 31, 1996 you ere not at least 50 years old

(

with at least 15 years ofpast service; and (4) you vested, as defined' the Settlement Agreement, in
your pension benefits; or (5) you are the Beneficiary of a person satis ing the above criteria and, as

beneficiary, have a current legal entitlement to receive some or all 0 the Participant's benefits. If

you have any questions as to whether you meet these requirements, Yfu can call (877) 465-4819 for

more information.

,

2. What is a class action?

i

A class action is a legal proceeding in which one ~'r more people act as the

representatives ofa group of people. Here, Donna Richards is repr senting herself and all of the

members oftlle Class. The Court resolves the claims of all Class m mbers in one proceeding.

THE LAWSIDT AND THE PROPOSED SfTTLEMENT

3. 'What is the lawsuit about?

On January 1, 1997 the pension plan covering employees f Fleet Financial Group, Inc.

("Fleet"), including at the time former employees of Shawm National Corporation and

National Westminster Bank, which were each acquired by Fleet, w converted to a cash balance

fonnula for Participants who were J?ot then 50 years old with 15 y ars of service. The Plaintiff,

suing on behalf of all Participants converted to the cash balance ormula on January 1, 1997,

claims that the notice provided in connection. with the conversi n was inadequate under the

Employee Retirement Income Security Act of 1974 ("ERISA"), at certain provisions in the

cash balance formula violate provisions of ERISA prohibiti g age discrimination and

backloading of benefits, that Summary Plan Descriptions pr vided to Participants were

inadequate and that the Plan and its. fiduciaries violated ERI A in connection with the

calculation and payment ofbenefits. The Defendants have denied of these claims.

c

4. .Why is there a proposed Settlement? The Settlement is proposed by the parties. The Court has ot decided in favor of either

side. The Plaintiff and Class Counsel, who have each been appoint by the Court to represent the

Class, believe the claims to have merit. However, they recognize t there is risk that they may

not prevail on some or all of the claims and that any final judgment :6 r the Class may not occur for

years. The proposed Settlement provides certain and immediate ben fits. Defendants believe their

positions to be meritorious and deny any liability to the Class. ' They favor the Settlement,

however, because it puts the matter to rest for the Defendants and for rarticipants in the Plan.

THE SETTLEMENT BENEFITS - WHAT 110u GET

5. What will I get if the Settlement is approved? Each Class member is entitled to a Settlement Amount. ifferent Class members will

receive different amounts. This is because of the nature of the clai s being settled. The Plaintiff
alleged that certain Participants experienced a decline in the value of the cash balance formula
benefits they received and the benefits they would have rec 'ved had the cash balance amendment not o~curred and the prior plan had continued. Plainti alleged that the decline was
greater for older, longer service Participants. The amounts availab through this Settlement are
greater for those who were alleged to have experienced greater di erences between the benefits
they would have received under tlle prior plan had it continued an their cash balance benefits.

Participants who experienced less of a difference, or who benefit from the change to a cash

balance formula, and certain Participants who were not employe 011 January I, 1997 or for

whom the parties have very limited information, will receive sma11e amounts in the Settlement.

•

!

6.

Al HSeotwtlewmaesntmcyalScuetlatlteiomnesnwt Aerme omuandt~cuaslcinuglattwedo? formulas.

: Participant will receive the

(_

greater of the two calculations or a minimum paY111ent, described bflow. The Parties performed

2

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 8 of 14

calculations using a method that was intended to approximate th benefit that Class members

would have earned had the Plan never been amended to adopt th cash balance fonnula. The

,/ -.

estimated benefits that would have been earned lIInder the plan h it not been amended were

measured at the earlier of a Participant's first date of tenninati n after January 1, 1997 or

December 31, 2006. This estimated calculation of the Participant» Ongoing Prior Plan Amount

was used for both Settlement formula calculations.'

A. The First Calculation.

i

Ongoing

Prior

For the first calculation, the Plan Amount, depending on

pthaertiPeasrttoicoikpaanpt'esrcaegnetaagnd~

from years

70% to 85% of service at

o f the

December 31,2006, as shown by this chart:

!

A~e and Service Points > 91 90 89
88
87 <86

Percen age
85~ 82~ 79~ 76~ 73~ 70~

The Parties then subtracted from this amount the Participant's ben~fits under the cash balance fonnula, also valued at the earlier ofthe first date oftermination after ~anuary 1, 1997 or December 31,2006. The amount calculated was credited with interest at 6.5% u ~til December 31,2007.

B. The Second Calculation.

(

I
The Parties then calculated a second amount, kno as the Floor Amount. For

most Participants the floor is 25% of the difference between the e timated Ongoing Prior Plan

Amount (not multiplied by the age and service-baSed percentages ave) and the cash balance

benefits calculated at the earlier of date of first termination after J uary 1, 1997 or December

31, 2006. Certain older, longer service employees who (1) te . ated employment before

December 31, 2006, (2) were at termination eligiblie for early retire ent, (3) had age plus years

of credited service of between 65 and 75 at January 1, 1997, and (4) elected a lump sum, will get

a floor of 35% of the difference between their estimated Ongoing rior Plan Amount at date of

tennination and their cash balance benefits. The Floor Amount as credited with interest at

6.5% from the date of determination (the earlier of the first date of ermination after January 1,

1997 or December 31, 2006) until December 31, 2007.

'

C. The Settlement Amount.

Participants will receive the greater of the two calculations, measured at December 31, 2007, or a minimum amount of $199.99. Typically, articipants who receive the $199.99 minimum amount benefited from the change to a cash b _ ce formula. Other Class members will receive larger amounts. Plaintiff's actuary, Claude Po in, has determined that the Settlement, including the Settlement Amounts, the Rule of 85 G arantees (see below), and Defendants' agreement to pay Class Counsel's reasbnable fees and xpenses at the agreed limit along with an incentive bonus for the class representative provides total value to the Class of $83,401,000. The Defendants, after consulting With their exp actuary, agree that this determination-is reasonable.

c

3

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 9 of 14

D. You Can Learn Your Settlement Amount.

/

Sett11: The Parties have calculated the

Amount fur my member ofthe a88S. It is

important that you review your Settlement Amount. lass members learn their Settlement Amount

by visiting www.legacyfleetplanresolution.comor·g(877)465819.This Notice contains a

unique identification number for you which is the I five digits on age 1 of the Notice appearing

directly above your name and address. You will n to provide this identification number to learn

your Settlement Amount. If you have questions abo how your Sett1 ent Amount was calculated,

you may contact Class Counsel, whose address and lephone number are in paragraph 16, for more

infonnation. Once this Settlement becomes effective, ou will not be e to challenge your Settlement

Amount Depending on the timing and fonn of any ture benefit elec on that you make and whet11er

you are a Rule of 85 Participant (see below), this Se ement may be 0 greater value for you than the

Settlement Amount currently calculated.

7. Are there any additional payments other Ithan the Settle ent Amount?

The Settlement Amount is intended to com~ensate Class mel bel'S for any claims they had

from the implementation of the cash balance pl~. However, articipants whose (i) age at

December 31, 2006, plus (ii) years of credited setvice, as defined in their Legacy Plan, at the

earlier of their first date oftennination after Jan~ 1, 1997 or De ber 31,2006 totaled at least

85, are provided some additionaIrights in the Seti1lement. These p sons are called "Ru1e of 85

Participants." They are provided a guarantee, called the ''Rule of 85 Guarantee." This Guarantee

assures a Rule of 85 Participant that their benefit, atTtheir Nonnal Re ement Date, will not be less

than the applicable percentage from the age and s~ce chart in par aph 6A, multiplied by the

estimated nonnal retirement benefit that they would ve received if e Cash Balance Amendment

had not happened and the prior plan had continu in effect thro gh December 31, 2006. In

addition, if a Rule of 85 Participant was early retir~ent eligible, as efined in their Legacy Plan,

at December 31, 2006 or date of tennination, if earl~er, and commen s benefits prior to his or her

(

Nonnal Retirement Date, he or she can electani,early retirement annuity on the Rule of 85 Guarantee amount, calculated using the early retire~ent factors of the Legacy Plan. If a Rule of 85

Participant has already received benefits, either in a l(ump sum or ann 'ty, the Rule of 85 Guarantee

or Rule of 85 Early Retirement Annuity will be $uarially adjust to re:tlect the distributions

taken. For most eligible Participants, the Rule ot1 85 Early Retir ent Guarantee will have a

greater actuarial value than other available benefit~. A small group of Participants who already

received all of the benefits of their Legacy Plan anq the Cash Balan Amendment, or for whom

the Parties have very limited infonnation, cannot q$.alify as Rule of 85 Participants, even if they

otherwise meet the above requirements.

.

"

8. When willI get my Settlement Amount? .

~

.

The Settlement Amounts will be distributetl only if the se*ement is approved by the Court and that approval is not appealed, or if it ~s appealed, aft it has been affinned. In

addition, the Settlement is conditioned on Intemal Rjevenue Service proval of an amendment to

the Plan implementing the Settlement. No Settlemeht Amounts can e distributed until the Court

and the IRS have given their approvals. Updates I on the progress toward completion will be

published at www.legacy:tleetplanresolution.com.

9.

How will I get my Settlement Amount? . The method of distribution depends upon

. whether

you

•. ha~e

a

current

Cash

Balance

Account and the amount to which you are entitled. !Participants whd have current Cash Balance

Accounts on the date of distribution of the Settlement Amounts ill receive their Settlement

Amount tl1fough a credit to their Cash Balance rtccount. If, at at date, you have already

commenced benefits, you do not have a current C Balance Acco t and you are entitled to a

Settlement Amount of $200 or more, a New Cash. alance Account will be created for you. It

will be governed by the same Plan tenns as other :,accounts, includ ng rollover provisions and

(

distribution of small amounts. It is cUlTently intend~ that Particip ts who already commeliced

4

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 10 of 14

I I

benefits and are entitled to $1,000 or less in cash shall receive a Slgle lump sum cash payment

pursuant to the tenns of section 6.3 of the Plan. If you have alre dy commenced benefits and

/

your Settlement Amount is $199.99, you will, ifp¢rmitted by law, eceive a check. If this is not pennissible, a New Cash Balance Account will be created for yo , subject to the terms of the

~m

•

'

10. Will I need to do anything to get my Settlement Amount?

'

If you received this Notice in the mail at your current add ess, then tlle parties have all

the information necessary to implement this Settlement for you and you will receive your

Settlement Amount if the Settlement is approve. You can go to

'wwvv.legacyfleetplanresolution.com or call (877) 465-4819 to get u dates on the progress of the

Settlement. If you have a Cash Balance A~count,the credit for th Settlenlent Amount to your

account will be reflected on your statement. If you previously recei ed pension benefits and you

are entitled to a payment of $200 or more, the settlement amount w' I be credited to a new Cash

Balance Account created for you. Finally, if yotl are to receive ash, after the Settlement is

approved you will receive a check. There may be tax conseque ces in cOlmection with this

payment which are discussed in the Addendum at the end of this n tice. If one of these events

does not occur within 60 days of the time that the Parties ann unce the Settlement to be

effective, as shown on the website, or if you believe you are am er of the Class and you did

not receive this Notice in the mail but got it from some other so ce, you should contact the

Settlement Administrator at (877) 465-4819.

nm OBJECTING TO SETTLEMENt

11. How do I raise any objection I have to the Settlement? i,

The Court will hold a Fairness Hearing to <iletermine wheth r to approve the Settlement.

The Court needs to determine whether the Settlement is fair, re onable and adequate to the

Class. You have a right to object if you do not believe this to be the ase. To do so you must, by

(

yourself or through counsel, file with the Court and serve on the la ers for Defendants and the

\.

Class, at the addresses shown in paragraph 16, below, on or before [ 5-day period] the following

information: (a) your full name and address and the name d address of any counsel

representing you, (b) a written statement of all grOUnds for the objec 'on, including any evidence

supporting it, (c) any supporting memorandum or brief, (d) a list of y persons who will testify

at the Fairness Hearing, and (e) a statement whethelr you intend to a pear, personally or through

counsel, at the Fairness Hearing. If you do not do this, you will wai e your right to object at the

Fairness Hearing or on appeal.

.

You do not have to attend the Fairness Heating. You only nbed' attend if you wish to be

heard and you have satisfied the above requirements.

!;

THE PETITION FORATTORl'{EY'S FEES ~COSTS

12. Who is representing the Class? '

!

The Court has appointed Thomas G. Moukawsher to represent the Class.

13. How will the lawyer for the Class be paid?

;

Under the proposed Settlement, the attorney's fees and exp~ses of the counsel for tlle

Class will be paid by the Plan as an administrative' expense. The fi es and expenses will be an

amount to be set by the Court but not to exceed $11,250,OQO in fees and $325,000 in expenses.

The payment of fees and expenses will not decrease the amount av 'lable for the Class, Class

Counsel's Fee and Expense Application is available at www.1egacyfletplanresolution.com.

In addition, because Plaintiff represented the Class t~1oughout the litigation, the

(

Plan will pay, as an administrative expense, an incentive award to P aintiff, in an amount to be set by the Court not to exceed $15,000, ,Plaintiffwill also receive a S ttlement Amount.

5

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 11 of 14

14. Can I object to the request for attorney's fees and expenses? Yes, you can object to the request for attomey's fees and expenses or the incentive award
in the same manner as you would use to object to the Settlement.

THE SETTLEMENT \VILLINCLUDE A ~LEASE

15. Will I release any claims against the defendants?

.

If the Settlement is approved, by virtue of the Final Order and Judgment all Class

members will Release Defendants and all companies and persons related to them from all of the

claims in the lawsuit and any other claims about the 1997 Cash Ballance Amendment that could

have been brought. The lawsuit wiIJ also be dismissed with prejudice.

ADDITIONAL INFORMATION
16. Bow can I get additional information about the lawsuit ot the Settlement? You can get a full copy of the Settlement Agreement, along with answers to additional,
frequently asked questions, at www.legacyfleetplanresolution.com. You can also call (877) 465· 4819 for more information. In addition, you can call or write to Class Counsel at:

Thomas G. Moukawsher Moukawsher & Walsh LLC 21 Oak Street, Suite 219 Hartford, CT 06106 (860-278·7000) tmoukawsher@mwlawgroup.com

Do not contact counsel for Defendants, except to serve on thetn any objections. Do not

contact the Clerk of the Court.

(

The addresses for service of objections to the Settlement or to the Fee and Expense Application

on counsel for Defendants are:

Stanley A. Twardy, Jr. Day Pitney LLP One Canterbury Green Stamford, CT 06901

AnneE. Rea Sidley Austin LLP One South Dearborn Street Chicago,TIl 60603

The address of the Clerk of Court for purposes of filing objections or other pleadings is:

Clerk, United States District Court for the District of Connecticut Brien McMahon Federal Building 915 Lafayette Boulevard Bridgeport, CT 06604

You may also be able to file any objection through 1>ACER, the Court's on·line filing system. If
you file electronically; you need not serve any of the attorneys by mail. They will receive copies of your filings automatically.·

Dated: -------------------

By Order of the United States District Court for the District of Connecticut

/ (
'-

6

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 12 of 14
SPECIAL TAX NOTICE REG ING PLAN l-AYMENTS
As explained in paragraph 10 of the accompanyin Notice of Propdsed Settlement, certain Class members who have already commenced benefits ill receive a $19~.99 cash settlement payment from the Plan if the Settlement is approved. 's Special Tax Notice provides important information about the federal income tax conseque lces of that $199.99 cash settlement payment, including how you can defer federal income tax 0 the payment by rolling it over to an IRA or an eligible employer plan. Please note that this ecial Tax Notice applies to you only if you receive the $199.99 cash settlement payment. It oes not apply ifyou receive a credit to your cash balance account. All references in this speci Tax Notice to a "section" are references to sections of the U.S. Internal Revenue Code (title 2 of the United States Code).
Tax Consequences
The federal income tax consequences of the $1 9.99 cash payment depend on whether the payment is rolled over:
• Payment not rolled over. The amount of our payment will be taxed to you in 2008 unless you roll it over. If you receive the p ent before age 59~ and do not roll it over, you may also have to pay an additional tax qual to 10% of 1lhe payment. The additional 10% tax generally does not apply to (1) pa ents that are paid after you separate from . service with your employer during or after e year you reaGh age 55, (2) payments that are paid because you retire due to disabili , (3) payments that are paid to an alternate payee under a qualified domestic relations order, (4) payml:mts that do not exceed the amount of your deductible medical expense or (5) qualified reservist distributions. See IRS Form 5329 for more information on the ditional10% tax.
• Payment rolled over. You can roll over all or part of the payment by contributing it to your IRA or to an eligible employer plan th t accepts your rollover. See below for lJ10re information regarding rollovers.
A rollover is the payment of all or part of the $199 99 cash settlemeht payment to an IRA or to an eligible employer plan. If you decide to roll 0 er, you must 2Qntribute the amount of the
a ent to an IRA or to an eli 'ble em 10 er Ian ithin 60 da s aft ou receive the a ent. The.portion of your payment that is rolled over will not be taxed untO you take it out of the IRA or the eligible employer plan.
The rollover may be made to a traditional IRA or to a Roth IRA, but may not be made to a SIMPLE IRA or to a Coverdell Education Savings Account (fonnetly known as an education IRA). The rollover may be made to an eligible emp oyer plan that willI accept your rollover. An "eligible employer plan" includes a plan qualified der section 401(a), including a 401(k) plan, profit-sharing plan, defined benefit plan, stock bon s plan, and money purchase plan; a section 403(a) annuity plan; a section 403(b) tax-sheltered uity; and an eligible section 457(b) plan maintained by a governmental employer (governmen al 457 plan).
(
7

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 13 of 14

An eligible employer plan is not legally required 0 accept a rollover. Before you decide to roll

over your payment to another employer plan, y u should find out whether the plan accepts

"

rollovers and, if so, the types of distributions it a cepts as a rollover. You should also find out

about any documents that are required to be com leted before the receiving plan will accept a

rollover. If an employer plan accepts your ollover, the plan may restrict subsequent

distributions of the rollover amount or may requ re your spouse's consent for any subsequent

distribution. A subsequent distribution from the plan that accepts your rollover may also be

subject to different tax treatment than distributions from this Plan. Check with the administrator

of the plan that is to receive your rollover prior to aking the rollover.

In most cases the entire $199.99 can be rolled ov . However, if you have reached age 70Yl IDld
have retired, the tax laws may not permit a cert n portion of your payment to be rolled over because the portion is a "required minimum payme t" that must be paid to you.

Surviving Spouses, Alternate Pa ees And Other Beneficiaries

In general, the rules summarized above also app y to persons who receive the $199.99 cash

settlement payment as surviving spouses of Class embers or as spouses or former spouses of

Class members because such spouses or former pouses are "alternate payees." You are an

alternate payee if your interest in the Plan results from a "qualified domestic relations order,"

which is an order issued by a court, usually in co ection with a divorce or legal separation. If

you are a surviving spouse or an alternate payee, y u may keep the cash settlement payment, in

which case the payment will be taxed to you in 20 8, or you may roll it over to an IRA or to an

eligible employer plan. Thus, you have the same choices as the employee. If you are a non~

(

spouse beneficiary or alternate payee, you may not 011 over the payment.

If you are a surviving spouse, an alternate paye , or another beneficiary, your payment is

generally not subject to the additional 10% tax de cribed on the fitst page of this Special Tax

Notice, even if you are younger than age 59Yl.

This Special Tax Notice summarizes only the fed al (not state or local) tax rules that might apply to your $199.99 cash settlement payment. e rules described above are complex and contain many conditions and exceptions that are not included in this Special Tax Notice. Therefore, you may wantto consult with a profes 'onal tax advisor. Also, you can fmd more
specific infonnation on the tax treatment of payI ents from qualified employer plans in IRS
Publication 575, Pension and Annuity Income, and IRS Publication 590, Individual Retirement
Arrangements. These publications are available fro your local IRS office, on the IRS's Internet Web Site at www.irs.gov, or by calling 1~800~TAX- ORMS.

8

Case 3:04-cv-01638-JCH Document 256 Filed 04/24/08 Page 14 of 14

BANK OF AMERICA SEITLEMENT ADMINISTRATOR C/O RUST CONSULTING, INC. P.O. BOX 130 MINNEAPOLIS, MN 55440·0130
IMPORTANT LEGAL NOTICE

*1~345678*
I

PRESORTED FIRST·ClASS W
U.S. POSTAGE PAID
RUII ConIlfing, IrK

,
1234~78 - 000·99999
JOHN JOHNSON
123 S REET AVE
LOS NGELES, CA 12345

(

 
 EFILE, STAYED
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:04−cv−01638−JCH

Richards v. Fleetboston Financial Corp et al Assigned to: Judge Janet C. Hall Cause: 29:1132 E.R.I.S.A.−Employee Benefits
Plaintiff Donna C. Richards

Date Filed: 09/30/2004 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question
represented by Dale James Morgado Moukawsher &Walsh 328 Mitchell St., PO Box 966 Groton, CT 06340 860−445−1809 Fax: 860−446−8161 Email: dmorgado@mwlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Moukawsher Moukawsher &Walsh − Htfd Capitol Place 21 Oak St., Suite 209 Hartford, CT 06106 860−278−7000 Fax: 860−548−1740 Email: tmoukawsher@mwlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ian O. Smith Moukawsher &Walsh − Htfd 21 Oak St., Suite 209 Hartford, CT 06106 860−278−7000 Fax: 860−548−1740 Email: ismith@mwlawgroup.com ATTORNEY TO BE NOTICED

V. Defendant Fleetboston Financial Corp

represented by Anne E. Rea Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7156 Fax: 312−853−7036 Email: area@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian P. Guarraci Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7917 Fax: 312−853−7036 Email: bguarrac@sidley.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Johnson Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7107 Fax: 312−853−7036 Email: djohnson@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin E. Kelly Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7272 Fax: 312−853−7036 Email: ekelly@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen Harris Day Pitney LLP−Stmfd−CT One Canterbury Green Stamford, CT 06901−2047 203−977−7418 Fax: 203−977−7301 Email: hharris@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie A. Koca Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7155 Fax: 312853−7036 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott E. Gross Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7011 Fax: 312−853−7036 Email: sgross@wildman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley A. Twardy, Jr. Day Pitney LLP−Stmfd−CT One Canterbury Green Stamford, CT 06901−2047 203−977−7368 Fax: 203−977−7301 Email: satwardy@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Goldberg Day Pitney LLP−Stmfd−CT One Canterbury Green

Defendant FleetBoston Financial Pension Plan

Stamford, CT 06901−2047 203−977−7383 Fax: 203−977−7301 Email: tdgoldberg@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7384 Fax: 312−853−7036 Email: wconlon@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
George J. Kelly, Jr. Siegel, O'Connor, O'Donnell &Beck 150 Trumbull St. Hartford, CT 06103 860−727−8900 Fax: 860−527−5131 Email: gkelly@siegeloconnor.com ATTORNEY TO BE NOTICED
represented by Anne E. Rea (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian P. Guarraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie A. Koca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott E. Gross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Bank of America Corp

Stanley A. Twardy, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
George J. Kelly, Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Anne E. Rea (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David B. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott E. Gross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley A. Twardy, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian P. Guarraci

Witness
Fidelity Investments Institutional Services Co., Inc.

(See above for address) ATTORNEY TO BE NOTICED
George J. Kelly, Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Kevin M. McGinty Mintz, Levin, Cohn, Ferris, Glovsky &Popeo, P.C.−MA One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: kmcginty@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith P. Carroll Mintz, Levin, Cohn, Ferris, Glovsky &Popeo, P.C. One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: kpcarroll@mintz.com ATTORNEY TO BE NOTICED

Date Filed # 09/30/2004 09/30/2004 09/30/2004 10/22/2004 10/22/2004 11/24/2004 11/30/2004
11/30/2004
12/10/2004

Docket Text
1 COMPLAINT against FleetBoston Financial Pension Plan, Fleetboston Financial Corp ( Filing fee $ 150 receipt number H013773.), filed by Donna C. Richards.(Ferguson, L.) (Entered: 10/06/2004)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 12/30/04. Amended Pleadings due by 11/29/2004. Discovery due by 4/1/2005. Dispositive Motions due by 5/1/2005. (Ferguson, L.) (Entered: 10/06/2004)
3 ELECTRONIC FILING ORDER . Signed by Judge Janet C. Hall on 9/30/04. (Ferguson, L.) (Entered: 10/06/2004)
4 NOTICE of Appearance by Ian O. Smith on behalf of Donna C. Richards (Smith, Ian) (Entered: 10/22/2004)
5 WAIVER OF SERVICE Returned Executed by Donna C. Richards. Fleetboston Financial Corp waiver sent on 10/18/2004, answer due 12/17/2004. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 10/22/2004)
6 First MOTION for Extension of Time to File Petition for Class Certification until December 29, 2004 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/24/2004)
7 WAIVER OF SERVICE Returned Executed by Donna C. Richards. FleetBoston Financial Pension Plan waiver sent on 10/12/2004, answer due 12/11/2004. (Attachments: # 1 Waiver of Service)(Moukawsher, Thomas) (Entered: 11/30/2004)
8 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDER granting 6 Motion for Extension of Time to file petition for class certification . Signed by Judge Janet C. Hall on 11/30/04. (Boroskey, C.) (Entered: 11/30/2004)
9 First MOTION for Extension of Time until January 18, 2005 To file responsive pleadings to Plaintiff Donna Richards Complaint. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 12/10/2004)

12/10/2004 12/10/2004 12/13/2004 12/13/2004 12/13/2004 12/13/2004 12/13/2004 12/14/2004
12/17/2004
12/17/2004 12/28/2004 12/28/2004 01/04/2005 01/04/2005 01/05/2005 01/07/2005 01/10/2005 01/10/2005

10 Corporate Disclosure Statement by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 12/10/2004)
11 NOTICE of Appearance by George J. Kelly Jr. on behalf of all defendants (Kelly, George) (Entered: 12/10/2004)
13 MOTION for Leave to Appear Pro Hac Vice Attorney Brian P. Guarraci. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
14 MOTION for Leave to Appear Pro Hac Vice re: Attorney Julie A. Koca. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
15 MOTION for Leave to Appear Pro Hac Vice re: Attorney Scott E. Gross. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
16 MOTION for Leave to Appear Pro Hac Vice re: Attorney Anne E. Rea. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
17 MOTION for Leave to Appear Pro Hac Vice re: Attorney William F. Conlon. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
12 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDERED ACCORDINGLY 9 Motion for Extension of Time to 1/18/05 to respond to 1 Complaint. Signed by Clerk on 12/14/04. (Candee, D.) (Entered: 12/14/2004)
18 ORDERED ACCORDINGLY 13 Motion to Appear Pro Hac Vice re: Brian P. Guarraci, ORDERED ACCORDINGLY 14 Motion to Appear Pro Hac Vice re: Julie A. Koca, ORDERED ACCORDINGLY 15 Motion to Appear Pro Hac Vice re: Scott E. Gross, ORDERED ACCORDINGLY 16 Motion to Appear Pro Hac Vice re: Anne E. Rea, ORDERED ACCORDINGLY 17 Motion to Appear Pro Hac Vice re: William F. Conlon. Signed by Clerk on 12/17/04. (Candee, D.) Modified on 12/17/2004 (Candee, D.). (Entered: 12/17/2004)
Docket Entry Correction re 18 Order on Motion to Appear Pro Hac Vice. Docket entry modified to include attorney names. (Candee, D.) (Entered: 12/17/2004)
19 MOTION to Certify Class by Donna C. Richards.Responses due by 1/18/2005 (Moukawsher, Thomas) (Entered: 12/28/2004)
20 Memorandum in Support re 19 MOTION to Certify Class filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Moukawsher, Thomas) (Entered: 12/28/2004)
21 NOTICE of Appearance by Julie A. Koca on behalf of all defendants (Koca, Julie) (Entered: 01/04/2005)
22 NOTICE of Appearance by Brian P. Guarraci on behalf of all defendants (Guarraci, Brian) (Entered: 01/04/2005)
25 MOTION for Leave to Appear Pro Hac Vice re: Attorney Erin E. Kelly. Filing Fee $25.00. Receipt Number B009420 by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 01/10/2005)
23 NOTICE of Appearance by Scott E. Gross on behalf of all defendants (Gross, Scott) (Entered: 01/07/2005)
24 Second MOTION for Extension of Time until 01/25/2005 to File Responsive Pleading 1 Complaint by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 01/10/2005)
26 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDERED ACCORDINGLY re: 25 Motion to Appear Pro Hac Vice for Erin E. Kelly. Signed by Clerk on 1/10/05. (Candee, D.) Modified on 1/18/2005 (Candee, D.). (Entered: 01/10/2005)

01/13/2005
01/13/2005
01/13/2005 01/18/2005 01/24/2005 01/25/2005 01/25/2005
01/25/2005 01/28/2005
02/08/2005 02/14/2005 02/15/2005 02/18/2005 02/18/2005
02/18/2005 02/28/2005 02/28/2005

27 MOTION to Stay Unopposed Motion of Defendants to Stay Briefing on Plaintiff's Motion for Class Certification by FleetBoston Financial Pension Plan, Fleetboston Financial Corp.Responses due by 2/3/2005 (Koca, Julie) (Entered: 01/13/2005)
28 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDER granting 24 Motion for Extension of Time to 1/25/05 to respond to complaint . Signed by Judge Janet C. Hall on 1/13/05. (Boroskey, C.) (Entered: 01/13/2005)
Answer deadline updated for FleetBoston Financial Pension Plan to 1/25/2005; Fleetboston Financial Corp to 1/25/2005. (Boroskey, C.) (Entered: 01/13/2005)
Docket Entry Correction re 26 Order on Motion to Appear. Docket entry modified to include "Notice of electronic order. This is the only notice to Court will issue". (Candee, D.) (Entered: 01/18/2005)
29 REPORT of Rule 26(f) Planning Meeting. (Kelly, George) (Entered: 01/24/2005)
30 MOTION to Dismiss by FleetBoston Financial Pension Plan, Fleetboston Financial Corp.Responses due by 2/15/2005 (Guarraci, Brian) (Entered: 01/25/2005)
31 Memorandum in Support re 30 MOTION to Dismiss filed by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Attachments: # 1 Attachment − Unreported Decisions# 2 Attachment − Legislative History)(Guarraci, Brian) (Entered: 01/25/2005)
32 EXHIBITS A, B and C submitted in paper form in support of 30 MOTION to Dismiss filed by FleetBoston Financial Pension Plan, Fleetboston Financial Corp (Cody, C.) (Entered: 01/26/2005)
33 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC RULE 16 CONFERENCE set for 2/18/2005 12:00 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 01/28/2005)
34 NOTICE of Appearance by Erin E. Kelly on behalf of Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Kelly, Erin) (Entered: 02/08/2005)
35 MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss until March 1, 2005 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/14/2005)
36 ORDER granting 35 Motion for Extension of Time to File Response/Reply re 30 MOTION to Dismiss Responses due by 3/1/2005. Signed by Judge Janet C. Hall on 2/15/05. (Boroskey, C.) (Entered: 02/15/2005)
37 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Rule 16 Status Conference held on 2/18/2005. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 02/23/2005)
38 ORDER granting 27 Motion to Stay Unopposed Motion of Defendants to Stay Briefing on Plaintiff's Motion for Class Certification by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. Signed by Judge Janet C. Hall on 2/18/05. (Boroskey, C.) (Entered: 02/23/2005)
ReSet Deadlines: Discovery due by 2/15/2006. Dispositive Motions due by 3/31/2006. (Boroskey, C.) (Entered: 02/23/2005)
39 RESPONSE re 30 MOTION to Dismiss filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/28/2005)
40 Memorandum in Opposition re 30 MOTION to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit 1 (part 1 of 3)# 2 Exhibit 2 (part 2 of 3)# 3 Exhibit 1 (part 3 of 3)# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Errata 5# 8

03/09/2005 03/11/2005 03/11/2005 03/28/2005 03/28/2005 04/18/2005 04/19/2005 05/06/2005 05/09/2005 05/27/2005 05/27/2005 06/01/2005 06/02/2005 06/08/2005
06/09/2005

Exhibit 6)(Moukawsher, Thomas) (Entered: 02/28/2005)
41 MOTION for Extension of Time until March 28, 2005 to File Reply in Support of 30 MOTION to Dismiss by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/09/2005)
42 ORDER granting 41 MOTION for Extension of Time until March 28, 2005 to File Reply in Support of 30 MOTION to Dismiss by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. . Signed by Judge Janet C. Hall on 3/11/05. (Boroskey, C.) (Entered: 03/11/2005)
43 Reset Deadlines as to 30 MOTION to Dismiss. Responses due by 3/28/2005 (Boroskey, C.) (Entered: 03/11/2005)
44 MOTION for Leave to File Excess Pages for Reply Brief by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/28/2005)
45 REPLY to Response to 30 MOTION to Dismiss filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit D# 2 Attachment − Additional Unreported Decisions# 3 Attachment − Additional Legislative History)(Guarraci, Brian) (Entered: 03/28/2005)
46 MOTION for Leave to File Surreply Brief re: 30 Motion to Dismiss by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) Modified on 4/19/2005 (Candee, D.). (Entered: 04/18/2005)
47 Docket Entry Correction re 46 MOTION for Leave to File Surreply Brief. Docket entry modified to include link to document # 30. (Candee, D.) (Entered: 04/19/2005)
48 RESPONSE re 46 MOTION for Leave to File Surreply Brief filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A: Response to Plaintiff's Surreply Brief)(Guarraci, Brian) (Entered: 05/06/2005)
49 REPLY to Response to 46 MOTION for Leave to File Surreply Brief filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/09/2005)
50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/27/2005)
51 Memorandum in Support re 50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL filed by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 05/27/2005)
52 MOTION for Extension of Time of Briefing Schedule on 19 MOTION to Certify Class by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 06/01/2005)
53 ORDER granting 50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL (document filed − #51). Signed by Judge Janet C. Hall on 6/2/05. (Boroskey, C.) (Entered: 06/02/2005)
54 RESPONSE re 51 Memorandum in Support of 50 Motion re: for Leave to file Supplemental Authority in Opposition to Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 6/13/2005 to create link to document #50. (Candee, D.). (Entered: 06/08/2005)
55 ORDER granting 52 Agreed MOTION for Extension of Time of Briefing Schedule on 19 MOTION to Certify Class; defendants have until 9/19/05 to file response to Plaintiff's motion to certify class . Signed by Judge Janet C. Hall on 6/9/05. (Boroskey, C.) (Entered: 06/09/2005)

06/09/2005 07/01/2005
07/06/2005
07/20/2005 08/04/2005 08/16/2005 08/22/2005
08/22/2005 08/30/2005 09/08/2005
09/15/2005 09/19/2005 09/19/2005
10/03/2005

56 Reset Deadlines as to 19 MOTION to Certify Class. Responses due by 9/19/2005 (Boroskey, C.) (Entered: 06/09/2005)
57 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC CONFERENCE set for 7/12/2005 4:00 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/01/2005)
58 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC CONFERENCE set for 7/19/2005 4:30 PM (rescheduled from 7/12/05) before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/06/2005)
59 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 7/20/2005. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 07/20/2005)
60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 8/25/2005 (Attachments: # 1 Exhibit A − Stipulated Protective Order)(Guarraci, Brian) (Entered: 08/04/2005)
61 ORDER granting 60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan with except re paragraph 16. . Signed by Judge Janet C. Hall on 8/16/05. (Boroskey, C.) (Entered: 08/16/2005)
62 ORDER vacating 61 ORDER granting 60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan with except re paragraph 16 signed by Judge Hall on 8/16/05. Court will issue Protective Order. Signed by Judge Janet C. Hall on 8/18/05. (Boroskey, C.) (Entered: 08/22/2005)
63 Motion for Protective Order 60 is granted. PROTECTIVE ORDER filed except for paragraph 16. Signed by Judge Janet C. Hall on 8/18/05. (Boroskey, C.) (Entered: 08/22/2005)
64 First MOTION for Extension of Time of two weeks on all expert deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 08/30/2005)
65 ORDER granting 64 First MOTION for Extension of Time of two weeks on all expert deadlines; Plaintiff's disclosure of expert to 9/15/05, plaintiff's expert deposition due 11/15/05; defendant's disclosure of experts due by 2/15/06; defendant's expert depositions due 4/17/06 . Signed by Judge Janet C. Hall on 9/8/05. (Boroskey, C.) (Entered: 09/08/2005)
66 Second MOTION for Extension of Time of 30 days for all Expert Deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/15/2005)
67 ORDER granting 66 Second MOTION for Extension of Time of 30 days for all Expert Deadlines . Signed by Judge Janet C. Hall on 9/16/05. (Boroskey, C.) (Entered: 09/19/2005)
68 Memorandum in Opposition re 19 MOTION to Certify Class filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Unreported Decisions, Part I;# 2 Unreported Decisions, Part II;# 3 Unreported Decisions, Part III;# 4 Exhibit A;# 5 Exhibit B;# 6 Exhibit C;# 7 Exhibit D)(Guarraci, Brian) (Entered: 09/19/2005)
69 First MOTION for Extension of Time to File Response/Reply Unopposed as to 19 MOTION to Certify Class until November 2, 2005 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/03/2005)

10/05/2005 10/17/2005 10/19/2005
11/02/2005
11/07/2005 11/07/2005 11/10/2005 11/15/2005 11/15/2005
11/17/2005
11/21/2005 11/23/2005 11/23/2005

70 ORDER granting 69 Motion for Extension of Time to File Response/Reply re 19 MOTION to Certify Class Responses due by 11/2/2005. Signed by Judge Janet C. Hall on 10/5/05. (Boroskey, C.) (Entered: 10/05/2005)
71 Third MOTION for Extension of Time of 30 days for all expert deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/17/2005)
72 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC STATUS CONFERENCE set for 11/7/2005 3:15 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 10/19/2005)
73 MOTION for Leave to File Excess Pages in Reply Brief in Support of Plaintiff's Motion for Class Certification by Donna C. Richards. (Attachments: # 1 Exhibit A Reply Brief# 2 Exhibit 1 of Reply Brief# 3 Exhibit 2 of Reply Brief# 4 Errata 3 (part 1) of Reply Brief# 5 Exhibit 3 (part 2) of Reply Brief# 6 Exhibit 4 of Reply Brief# 7 Exhibit 5 of Reply Brief# 8 Exhibit 6 of Reply Brief# 9 Exhibit 7 of Reply Brief# 10 Exhibit 8 of Reply Brief)(Moukawsher, Thomas) (Entered: 11/02/2005)
74 ORDER granting 73 MOTION for Leave to File Excess Pages in Reply Brief in Support of Plaintiff's Motion for Class Certification . Signed by Judge Janet C. Hall on 11/7/05. (Boroskey, C.) (Entered: 11/07/2005)
75 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 11/7/2005. 15 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 11/09/2005)
76 REPLY to Response to 19 MOTION to Certify Class filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3 part 1# 4 Exhibit 3 part 2# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Moukawsher, Thomas) (Entered: 11/10/2005)
77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 11/15/2005)
78 Memorandum in Support re 77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A − Order of Dismissal# 2 Exhibit B − Complaint# 3 Exhibit C − Defendants' Memorandum in Support of Motion to Dismiss)(Guarraci, Brian) (Entered: 11/15/2005)
79 ORDER granting as modified in part 71 Third MOTION for Extension of Time of 30 days for all expert deadlines; Plainitt's expert disclosure− 11/16/05; deposition of plaintiff's expert− 1/18/06; defendant's expert dislcosure− 3/1/06; depostion of defendant's expert − 4/1/06 . Signed by Judge Janet C. Hall on 11/14/05. (Boroskey, C.) (Entered: 11/17/2005)
80 ORDER granting 77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal. Signed by Judge Janet C. Hall on 11/18/05. (Boroskey, C.) (Entered: 11/21/2005)
81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 11/28/2005 to include link to document # 30 (Candee, D.). (Entered: 11/23/2005)
82 Memorandum in Support re 81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A − Memorandum Opinion)(Guarraci, Brian) Modified on 11/28/2005 (Candee, D.). Modified on 11/28/2005 to include link to document # 30 (Candee, D.). (Entered: 11/23/2005)

11/30/2005
12/06/2005 12/06/2005 12/08/2005
12/09/2005 12/16/2005 01/16/2006 01/16/2006 01/18/2006 01/18/2006 01/18/2006 01/19/2006 01/20/2006 01/20/2006

83 MOTION for Leave to File MEMORANDUM IN RESPONSE TO DEFENDANTS? SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS by Donna C. Richards. (Attachments: # 1 Exhibit A: Memorandum# 2 Memorandum Exhibit A# 3 Memorandum Exhibit B# 4 Memorandum Exhibit C# 5 Memorandum Exhibit D)(Moukawsher, Thomas) Modified to include link to document # 30 on 12/5/2005 (Candee, D.). (Entered: 11/30/2005)
84 ORDER granting 81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal . Signed by Judge Janet C. Hall on 12/6/05. (Boroskey, C.) (Entered: 12/06/2005)
85 REPLY to Response to 87 MEMORANDUM IN RESPONSE TO DEFENDANTS SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/20/2005 (Candee, D.). (Entered: 12/06/2005)
86 ORDER granting 83 MOTION for Leave to File MEMORANDUM IN RESPONSE TO DEFENDANTS? SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS by Donna C. Richards. (Attachments: # Exhibit A: Memorandum# Memorandum Exhibit A# Memorandum Exhibit B# Memorandum Exhibit C# Memorandum Exhibit D)(Moukawsher, Thomas) Modified to include link to document # 30 on 12/5/2005. Counsel shall electronically file MEMORANDUM IN RESPONSE TO DEFENDANT'S SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS . Signed by Judge Janet C. Hall on 12/8/05. (Boroskey, C.) (Entered: 12/08/2005)
87 RESPONSE re 30 MOTION to Dismiss Supplemental Authority filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Moukawsher, Thomas) (Entered: 12/09/2005)
88 REPLY to Response to 30 MOTION to Dismiss / Supplemental Authority in Support of Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 12/16/2005)
89 MOTION to Compel Production by Donna C. Richards.Responses due by 2/6/2006 (Moukawsher, Thomas) (Entered: 01/16/2006)
90 Memorandum in Support re 89 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Moukawsher, Thomas) (Entered: 01/16/2006)
91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 1/19/2006 (Simpson, T.). (Entered: 01/18/2006)
92 Memorandum in Support re 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) Modified on 1/19/2006 (Simpson, T.). (Entered: 01/18/2006)
93 Letter from George J. Kelly, Jr. dated 1/11/06 Re: Substituting redacted versions of Exhibits A &C, document 32 . (Cody, C.) (Entered: 01/19/2006)
Docket Entry Correction re 92 Memorandum in Support of Motion, 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of Dismissal MODIFIED TO CREATE DOCKET ENTRY RELATIONSHIP TO DOC #30 (Simpson, T.) (Entered: 01/19/2006)
94 ORDER allowing request in 93 Letter re: #32 exhibits A &C. Signed by Judge Janet C. Hall on 1/20/06. (Cody, C.) (Entered: 01/20/2006)
REDACTED VERSIONS OF EXHIBIT A &C submitted in paper form and substituted per Order #94 re 32 Response, 30 MOTION to Dismiss. (Cody, C.)

01/24/2006 01/25/2006 01/30/2006 02/06/2006 02/06/2006 02/10/2006 02/14/2006
02/14/2006 02/14/2006 02/17/2006 02/24/2006 03/01/2006 03/27/2006

(Entered: 01/20/2006)
95 ORDER granting 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal. Counsel will electronically file the memorandum . Signed by Judge Janet C. Hall on 1/24/06. (Boroskey, C.) (Entered: 01/24/2006)
96 MOTION for Leave to File Memorandum in Response to Defendants' Third Supplemental Authority in Support of Their Motion to Dismiss by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 01/25/2006)
97 ORDER granting 96 MOTION for Leave to File Memorandum in Response to Defendants' Third Supplemental Authority in Support of Their Motion to Dismiss . Signed by Judge Janet C. Hall on 1/30/06. (Boroskey, C.) (Entered: 01/30/2006)
98 RESPONSE re 92 Memorandum in Support of Motion, to file 3rd Supplemental Authority in Support of Defendants 30 Motion to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit 1)(Moukawsher, Thomas) Modified on 2/13/2006 to create link to document # 30 (Candee, D.). (Entered: 02/06/2006)
99 RESPONSE re 89 MOTION to Compel Production filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 02/06/2006)
100 MOTION for Extension of Time (unopposed) Discovery 5/1/06, Defendant's expert disclosure 4/15/06, Depositions of Defendant's expert(s) 5/15/06, Dispositive Motions 7/1/06, Joint Trial Memorandum 10/1/06, Trial Ready 12/1/06 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/10/2006)
101 ORDER granting 100 MOTION for Extension of Time (unopposed) Discovery 5/1/06, Defendant's expert disclosure 4/15/06, Depositions of Defendant's expert(s) 5/15/06, Dispositive Motions 7/1/06, Joint Trial Memorandum 10/1/06, Trial Ready 12/1/06; The Court does not expect any further Motions to Extend Time. If a party is dilatory in discovery, the Court expects a prompt Motion to Compel. So Ordered . Signed by Judge Janet C. Hall on 2/14/06. (Boroskey, C.) (Entered: 02/14/2006)
Set Deadlines/Hearings: Discovery due by 5/1/2006. Dispositive Motions due by 7/1/2006. Trial Brief due by 10/1/2006. Trial Ready Date 12/1/2006. (Boroskey, C.) (Entered: 02/14/2006)
102 NOTICE TO COUNSEL RE: E−FILE CALENDAR. ORAL ARGUMENT RE: Motion to Certify Class and Motion to Dismiss set for 3/27/2006 01:00 PM, U.S. District Court, 915 Lafayette Blvd.,Courtroom 2, Bridgeport, CT before Judge Janet C. Hall. All persons entering the courthouse must present photo identification.(Szczygiel, G.) (Entered: 02/14/2006)
103 First MOTION for Extension of Time to File Response/Reply (unopposed) as to 89 MOTION to Compel Production until March 6, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/17/2006)
104 ORDER granting 103 Motion for Extension of Time to File Response/Reply re 89 MOTION to Compel ProductionResponses due by 3/6/2006. Signed by Judge Janet C. Hall on 2/24/06. (Boroskey, C.) (Entered: 02/24/2006)
105 REPLY to Response to 89 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Moukawsher, Thomas) (Entered: 03/01/2006)
106 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 3/27/2006 re 46 MOTION for Leave to File Surreply Brief, 44 MOTION for Leave to File Excess Pages for Reply Brief Total Time: 2 hours and 30 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 03/30/2006)

03/27/2006 03/31/2006 03/31/2006 03/31/2006
03/31/2006 03/31/2006 04/07/2006 04/10/2006 04/12/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006
04/18/2006

107 ORDER granting 44 MOTION for Leave to File Excess Pages for Reply Brief and 46 MOTION for Leave to File Surreply Brief re: 30 Motion to Dismiss . Signed by Judge Janet C. Hall on 3/27/06. (Boroskey, C.) (Entered: 03/30/2006)
108 NOTICE by Fleetboston Financial Corp, FleetBoston Financial Pension Plan of Filing of ERISA 204(h) and its Regulations as in Effect on January 1, 1997 (Attachments: # 1 Exhibit A;# 2 Exhibit B)(Guarraci, Brian) (Entered: 03/31/2006)
109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/31/2006)
110 Memorandum in Support re 109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 03/31/2006)
111 RULING granting in part and denying in part Plaintiff's 19 Motion to Certify Class and certifies the proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Signed by Judge Janet C. Hall on 3/31/08. (Candee, D.) (Entered: 04/03/2006)
112 ORDER granting in part and denying in part 30 Motion to Dismiss. Signed by Judge Janet C. Hall on 3/31/06. (Candee, D.) (Entered: 04/03/2006)
113 ORDER granting nunc pro tunc 109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing . Signed by Judge Janet C. Hall on 4/6/06. (Boroskey, C.) (Entered: 04/07/2006)
114 TRANSCRIPT of Proceedings held on 3/27/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Candee, D.) (Entered: 04/11/2006)
115 MOTION for Extension of Time until May 8, 2006 to Answer or Otherwise Plead and until June 1, 2006 to Serve Expert Disclosures (Unopposed) by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 04/12/2006)
116 MOTION to Amend/Correct 1 Complaint by Donna C. Richards.Responses due by 5/8/2006 (Attachments: # 1 Exhibit A: Amended Complaint)(Moukawsher, Thomas) (Entered: 04/17/2006)
117 MOTION for Reconsideration re 30 MOTION to Dismiss by Donna C. Richards.Responses due by 5/8/2006 (Moukawsher, Thomas) (Entered: 04/17/2006)
118 Memorandum in Support re 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Moukawsher, Thomas) (Entered: 04/17/2006)
119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) (Unopposed) by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 04/17/2006)
120 Memorandum in Support re 119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) (Unopposed) filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Guarraci, Brian) (Entered: 04/17/2006)
121 Second MOTION for Extension of Time (unopposed) all case deadlines by 90 ninety days to: Discovery 7/31/06, Dispositive Motions 9/29/06, Joint Trial Memo 12/30/06, Trial Ready 3/28/07 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 04/18/2006)

04/26/2006
04/26/2006 04/26/2006 04/27/2006 05/01/2006 05/03/2006
05/08/2006 05/08/2006 05/08/2006 05/08/2006
05/09/2006 05/09/2006 05/09/2006 05/09/2006 05/09/2006

122 ORDER granting 115 MOTION for Extension of Time until May 8, 2006 to Answer or Otherwise Plead and until June 1, 2006 to Serve Expert Disclosures by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. granting 121 second Motion for Extension of Time (unopposed) all case deadlines by 90ninety days to: Discovery 7/31/06, Dispositive Motions 9/29/06, Joint Trial Memo12/30/06, Trial Ready 3/28/07 by Donna C. Richards . Signed by Judge Janet C. Hall on 4/25/06. (Boroskey, C.) (Entered: 04/26/2006)
Set Deadlines/Hearings: Discovery due by 7/31/2006. Dispositive Motions due by 9/29/2006. Trial Brief due by 12/30/2006. Trial Ready Date 3/28/2007. (Boroskey, C.) (Entered: 04/26/2006)
Answer deadline updated for Fleetboston Financial Corp to 5/8/2006; FleetBoston Financial Pension Plan to 5/8/2006. (Boroskey, C.) (Entered: 04/26/2006)
123 ORDER granting 116 MOTION to Amend/Correct 1 Complaint by Donna C. Richards. Responses due by 5/8/2006 . Signed by Judge Janet C. Hall on 4/26/06. (Boroskey, C.) (Entered: 04/27/2006)
124 AMENDED COMPLAINT against Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan, filed by Donna C. Richards.(Moukawsher, Thomas) (Entered: 05/01/2006)
125 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 5/11/2006 at 3:30 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 05/03/2006)
126 ANSWER to Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.(Guarraci, Brian) (Entered: 05/08/2006)
127 Memorandum in Opposition re 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 05/08/2006)
128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 5/29/2006 (Guarraci, Brian) (Entered: 05/08/2006)
129 Memorandum in Support re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit C# 2 Exhibit D# 3 Exhibit E# 4 Exhibit F# 5 Exhibit G# 6 Exhibit H# 7 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 05/08/2006)
130 NOTICE of Appearance by George J. Kelly, Jr on behalf of Bank of America Corp (Kelly, George) (Entered: 05/09/2006)
131 NOTICE of Appearance by William F. Conlon on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Conlon, William) (Entered: 05/09/2006)
132 NOTICE of Appearance by Anne E. Rea on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Rea, Anne) (Entered: 05/09/2006)
133 NOTICE of Appearance by Erin E. Kelly on behalf of Bank of America Corp (Kelly, Erin) (Entered: 05/09/2006)
134 NOTICE of Appearance by Scott E. Gross on behalf of Bank of America Corp (Gross, Scott) (Entered: 05/09/2006)

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135 NOTICE of Appearance by Brian P. Guarraci on behalf of Bank of America Corp (Guarraci, Brian) (Entered: 05/09/2006)
136 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 5/11/2006 re 89 MOTION to Compel Productionfiled by Donna C. Richards, 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Donna C. Richards. 40 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 05/16/2006)
137 ORDER terminating 89 Motion to Compel; terminated as moot inlight of agreement of parties and further order of the court, as stated on the record; denying as moot in light of amended complaint and pending motion to dismiss 117 Motion for Reconsideration (on the record at telephone conference on 5/11/06) . Signed by Judge Janet C. Hall on 5/16/06. (Boroskey, C.) (Entered: 05/16/2006)
138 ORDER denying 119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b): The Court does not view this as one of those "rare" or "exceptional" circumstances that justifies an interloctory appeal. So Ordered . Signed by Judge Janet C. Hall on 5/26/06. (Boroskey, C.) (Entered: 05/26/2006)
139 RESPONSE re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/30/2006)
140 Memorandum in Opposition re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Moukawsher, Thomas) (Entered: 05/30/2006)
141 MOTION for Extension of Time until July 17, 2006 to Produce Expert Reports and Extend Other Case Deadlines by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Guarraci, Brian) (Entered: 05/31/2006)
142 TRANSCRIPT of Proceedings held on 5/11/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Candee, D.) (Entered: 06/05/2006)
143 ORDER granting 141 MOTION for Extension of Time until July 17, 2006 to Produce Expert Reports and Extend Other Case Deadlines; However, the Court will grant no further extensions and suggest defendants retain a different expert if they do not wish to rely on the recovery of their current expert in time to complete his report by the new deadline . Signed by Judge Janet C. Hall on 6/6/06. (Boroskey, C.) (Entered: 06/06/2006)
144 MOTION for Leave to File Excess Pages for Reply Brief by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 06/13/2006)
145 REPLY to Response to 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit I;# 2 Exhibit J;# 3 Exhibit K;# 4 Exhibit L;# 5 Attachment − Additional Unreported Decisions)(Guarraci, Brian) (Entered: 06/13/2006)
146 ORDER granting 144 MOTION for Leave to File Excess Pages for Reply Brief by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. Defendant is to file chambers copy, if not already filed . Signed by Judge Janet C. Hall on 6/14/06. (Boroskey, C.) (Entered: 06/15/2006)
147 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 7/26/2006 at 11:30 AM (RE:Plaintiff's letter regarding Rule 23(b)(1) class certification), before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/20/2006)

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08/25/2006

148 Ruling granting in part and denying in part 128 Motion to Dismiss . Signed by Judge Janet C. Hall on 7/21/2006. (Sanders, C.) (Entered: 07/26/2006)
150 Minute Entry for proceedings held before Judge Janet C. Hall : Telephonic Status Conference held on 7/26/2006. 10 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 08/01/2006)
149 TRANSCRIPT of Proceedings held on 7/27/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (S−Candee, D.) (Entered: 07/31/2006)
151 MOTION for Extension of Time until August 16, 2006 to Answer Count Five of Plaintiff's Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 08/07/2006)
152 ORDER granting 151 MOTION for Extension of Time until August 16, 2006 to Answer Count Five of Plaintiff's 124 Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan . Signed by Judge Janet C. Hall on 8/15/06. (Boroskey, C.) (Entered: 08/16/2006)
Answer deadline updated for Bank of America Corp to 8/16/2006; Fleetboston Financial Corp to 8/16/2006; FleetBoston Financial Pension Plan to 8/16/2006. (Boroskey, C.) (Entered: 08/16/2006)
153 ENTERED IN ERROR − RESPONSE re 124 Amended Complaint Answer to Count V of Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 8/17/2006 (Candee, D.). (Entered: 08/16/2006)
154 RESPONSE re 124 Amended Complaint − Answer to Count V of Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. Correcting document # 153 originally docketed as response to motion. (Candee, D.) (Entered: 08/17/2006)
155 MOTION to Amend/Correct 111 Order on Motion to Certify Class by Donna C. Richards.Responses due by 9/8/2006 (Moukawsher, Thomas) (Entered: 08/18/2006)
156 Memorandum in Support re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 08/18/2006)
157 ENTERED IN ERROR − MOTION for Certificate of Appealability To Modify March 31, 2006 112 Order Pursuant to 28 U.S.C. 1292(b) or, In The Alternative, To Reconsider That Order As It Relates to Count I by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 8/28/2006 to create link to document # 112 (Candee, D.). (Entered: 08/25/2006)
158 Memorandum in Support re 157 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) or, In The Alternative, To Reconsider That Order As It Relates to Count I filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (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 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 08/25/2006)
159 MOTION for Reconsideration re 112 Order on Motion to Dismiss by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 9/15/2006 (Attachments: # 1 Memorandum in Support; # 2 Exhibit A; # 3 Exhibit B; # 4 Exhibit C; # 5 Exhibit D; # 6 Exhibit E; # 7 Exhibit F; # 8 Exhibit G; # 9 Exhibit H; # 10 Exhibit Unreported Cases). Originally docketed in error as document # 157 , redocketed to properly identify as a two part motion.(Candee, D.) (Entered: 08/28/2006)

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160 Memorandum in Opposition to Plaintiff's Motion for Amended Class Certification re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B − Part 1# 3 Exhibit B − Part 2# 4 Exhibit B − Part 3# 5 Exhibit B − Part 4# 6 Exhibit C# 7 Appendix 1)(Guarraci, Brian) (Entered: 09/08/2006)
161 MOTION for Leave to File Supplemental Authority by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1)(Guarraci, Brian) (Entered: 09/08/2006)
162 ORDER granting 161 MOTION for Leave to File Supplemental Authority by Bank of America Corp, FleetBoston Financial Corp, FleetBoston Financial Pension Plan. The parties are to E−file the Supplemental Authority. Signed by Judge Janet C. Hall on 9/11/06. (Szczygiel, G.) (Entered: 09/12/2006)
163 NOTICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan of E−Filing of Supplemental Authority in Support of 159 Motion to Modify March 31, 2006 Order Pursuant to 28 U.S.C. Section 1292(b) (Gross, Scott) Modified on 9/15/2006 to create link to document # 159 (Candee, D.). (Entered: 09/14/2006)
164 First MOTION for Extension of Time to File Response/Reply (unopposed) as to 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class until October 6, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/22/2006)
165 MOTION to Compel Production by Donna C. Richards.Responses due by 10/13/2006 (Moukawsher, Thomas) (Entered: 09/22/2006)
166 Memorandum in Support re 165 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Moukawsher, Thomas) (Entered: 09/22/2006)
167 MOTION for Extension of Time until 60 days after the Court's Ruling on Plaintiff's Motion to Compel of all Case Deadlines (Unopposed) by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/22/2006)
168 ORDER granting 164 Motion for Extension of Time to File Response/Reply re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class Responses due by 10/6/2006. So Ordered. Signed by Judge Janet C. Hall on 10/3/06. (Boroskey, C.) (Entered: 10/05/2006)
169 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 10/11/2006 at 2:00 PM, before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 10/05/2006)
170 MOTION to Amend/Correct 124 Amended Complaint by Donna C. Richards.Responses due by 10/27/2006 (Attachments: # 1 Exhibit A: Second Amended Complaint)(Moukawsher, Thomas) (Entered: 10/06/2006)
171 Memorandum in Support re 170 MOTION to Amend/Correct 124 Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/06/2006)
172 REPLY to Response to 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/06/2006)
191 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 10/11/2006 re 167 MOTION for Extension of Time until 60 days after the Court's Ruling on Plaintiff's Motion to Compel of all Case Deadlines (Unopposed) filed by Donna C. Richards. 20 minutes(Court Reporter Corriette.) (Boroskey, C.) (Entered: 11/13/2006)

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11/01/2006 11/02/2006

192 ORDER denying 167 Motion for Extension of Time for deadlines . Signed by Judge Janet C. Hall on 10/11/06. (Boroskey, C.) (Entered: 11/13/2006)
173 Memorandum in Opposition to Plaintiff's Motion to Compel Production re 165 MOTION to Compel Production filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Appendix 1 − Unreported Cases)(Guarraci, Brian) (Entered: 10/13/2006)
174 RULING denying 157 Motion for Certificate of Appealability, denying 159 Motion for Reconsideration. Signed by Judge Janet C. Hall on 10/16/06. (Candee, D.) (Entered: 10/17/2006)
175 RULING granting in part and denying in part 155 Motion to Amend Class Certification. Signed by Judge Janet C. Hall on 10/16/06. (Candee, D.) (Entered: 10/17/2006)
176 ORDER TO DEFENDANTS, Set Deadlines as to Response to Order due by 10/31/2006. Signed by Judge Janet C. Hall on 10/18/06. (Candee, D.) (Entered: 10/19/2006)
177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order by Fidelity Investments Institutional Services Co., Inc..Responses due by 11/16/2006 (Carroll, Keith) (Entered: 10/26/2006)
178 Memorandum in Support re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc.. (Carroll, Keith) (Entered: 10/26/2006)
179 AFFIDAVIT re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order, 178 Memorandum in Support of Motion, Signed By Laura Tholen filed by Fidelity Investments Institutional Services Co., Inc.. (Attachments: # 1 Exhibits A−D# 2 Exhibits E−H)(Carroll, Keith) (Entered: 10/26/2006)
180 AFFIDAVIT re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order, 178 Memorandum in Support of Motion, Signed By Keith P. Carroll filed by Fidelity Investments Institutional Services Co., Inc.. (Carroll, Keith) (Entered: 10/26/2006)
181 REPLY to Response to 165 MOTION to Compel Production filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/26/2006)
182 Memorandum in Opposition re 170 MOTION to Amend/Correct 124 Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (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 Appendix of Unreported Cases)(Guarraci, Brian) (Entered: 10/27/2006)
183 RESPONSE re: 176 ORDER To Defendants filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Errata B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Guarraci, Brian) Modified on 11/1/2006 to creaate link to document # 176 (Candee, D.). (Entered: 10/31/2006)
Set Deadlines/Hearings: Motion Hearing as to (177) Motion For Protective Order of Third Party Witness set for 11/6/2006 05:00 PM by telephone in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Boroskey, C.) (Entered: 11/01/2006)
184 CERTIFICATE OF SERVICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan re 183 Response, (Guarraci, Brian) (Entered: 11/02/2006)

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185 Memorandum in Opposition re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Donna C. Richards. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(Moukawsher, Thomas) (Entered: 11/03/2006)
186 RESPONSE re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order and Update on Production of Participant Data filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Guarraci, Brian) (Entered: 11/05/2006)
187 MOTION for Leave to Appear Pro Hac Vice for Attorney Kevin M. McGinty. Filing Fee $25.00. Receipt Number B013147 by Fidelity Investments Institutional Services Co., Inc.. (Attachments: # 1 Affidavit of Kevin McGinty) (Candee, D.) Modified on 11/7/2006 (Candee, D.). (Entered: 11/07/2006)
Docket Entry Correction − Docket entry modified to indicate correct fililng date of 11/6/06 re 187 MOTION for Leave to Appear Pro Hac Vice Attorney Kevin M. McGinty. Filing Fee $25.00. Receipt Number B013147. (Candee, D.) (Entered: 11/07/2006)
189 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 11/6/2006 by telephone re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc. 45 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 11/08/2006)
188 ORDERED ACCORDINGLY 187 Motion to Appear Pro Hac Vice for Attorney Kevin M. McGinty. Signed by Clerk on 11/7/06. (Candee, D.) (Entered: 11/07/2006)
190 ORDER re defendants are ordered to produce for in camera inspection all the documents provided in their privilege list which are still being withheld on privilege grounds &parties are requested to file a supplemental memorandum re 165 MOTION to Compel Production. Signed by Judge Janet C. Hall on 11/8/06. (Beverley, T.) (Entered: 11/13/2006)
193 First MOTION for Extension of Time to File Response/Reply as to 170 MOTION to Amend/Correct 124 Amended Complaint until November 27, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/13/2006)
194 ORDER granting 193 Motion for Extension of Time until 11/27/06 to File Response/Reply re 170 MOTION to Amend/Correct 124 Amended Complaint Responses due by 11/27/2006. SO ORDERED. Signed by Judge Janet C. Hall on 11/15/2006. (Sanders, C.) (Entered: 11/15/2006)
195 Supplemental Memorandum in Support re 165 MOTION to Compel Production filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/15/2006)
196 Supplemental RESPONSE re 190 Order, filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 11/15/2006)
197 Joint MOTION for Extension of Time of 60 Days to File Dispositive Motions and Remaining Case Deadlines by Donna C. Richards, Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Moukawsher, Thomas) (Entered: 11/16/2006)
198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 12/8/2006 (Gross, Scott) (Entered: 11/17/2006)
199 Memorandum in Support re 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A − Revised CV# 2 Exhibit B − Original CV# 3 Exhibit C − Maiorana Dep# 4 Exhibit D − 2005

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Scheduling Order# 5 Exhibit E − Bosley CV# 6 Exhibit F − 2006 Scheduling Order# 7 Exhibit G − Rebuttal Report# 8 Exhibit G − Part 2# 9 Exhibit G − Part 3# 10 Exhibit G − Part 4# 11 Exhibit G − Part 5# 12 Exhibit H − Response to First Set of Interrogatories# 13 Exhibit I − Motion for Two Week Extension# 14 Exhibit J − Second Motion for Extension# 15 Exhibit K − Third Motion for Extension# 16 Exhibit L − Unreported Cases)(Gross, Scott) (Entered: 11/17/2006)
202 ORDER granting 197 Motion for Extension of Time of 60 Days to File Dispositive Motions and Remaining Case Deadlines; SO ORDERED . Signed by Judge Janet C. Hall on 11/21/2006. (Sanders, C.) (Entered: 11/28/2006)
Reset Deadlines: Dispositive Motions due by 2/1/2007. Trial Brief due by 4/30/2007. Trial Ready Date 7/30/2007. (Sanders, C.) (Entered: 11/28/2006)
200 REPLY to Response to 170 MOTION to Amend/Correct 124 Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/27/2006)
201 CALENDAR ENTRY:Motion Hearing set for 12/8/2006 10:30 AM for 165 MOTION to Compel in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. PLEASE READ AND COMPLY WITH THE ATTACHED DISCOVERY HEARING INSTRUCTIONS. THERE ARE 4 CASES AND 8 MOTIONS CURRENTLY ON THE CALENDAR FOR DECEMBER 8, 2006. COUNSEL ARE ENCOURAGED TO DISCUSS THE PENDING MATTERS IN AN ATTEMPT TO NARROW THE ISSUES IN DISPUTE. COUNSEL SHALL REPORT TO THE COURTROOM DEPUTY PRIOR TO THE OPENING OF COURT WHICH ISSUES ARE STILL OUTSTANDING. THE COURT WILL HEAR AGREEMENTS FIRST. (DeRubeis, B.) (Entered: 11/28/2006)
203 ORDER granting in part and denying in part as stated on the record on 10/26/06 177 Motion for Protective Order . Signed by Judge Janet C. Hall on 11/28/06. (Boroskey, C.) (Entered: 11/28/2006)
204 ORDER re Defendants have failed to provide chambers copies of 199 Memorandum in Support of Motion 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana, including attachments, in violation of court's 3 Electronic Filing Order. Defendants are ordered to file chambers copies of this Memorandum no later than Friday, DECEMBER 1, 2006. Signed by Judge Janet C. Hall on 11/30/06. (Candee, D.) (Entered: 11/30/2006)
205 Memorandum in Opposition re 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Donna C. Richards. (Attachments: # 1 Exhibit A, Rebuttal Report# 2 Exhibit B, Vita# 3 Exhibit C, Deposition)(Moukawsher, Thomas) (Entered: 12/08/2006)
209 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 12/8/2006 re 165 MOTION to Compel Production filed by Donna C. Richards, 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp, 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc.. Total Time: 2 hours and 55 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 12/16/2006)
206 AMENDED COMPLAINT (SECOND) against Bank of America Corp, Fleetboston Financial Corp, Fidelity Investments Institutional Services Co., Inc., FleetBoston Financial Pension Plan, filed by Donna C. Richards.(Moukawsher, Thomas) (Entered: 12/12/2006)
207 Supplemental AFFIDAVIT re 173 Memorandum in Opposition to 165 Motion, submitted in connection with Defendants' Opposition to Plaintiff's Motion to Compel Signed By Robert J. King, Jr. filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/18/2006 to create link to document # 165 (Candee, D.).

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(Entered: 12/15/2006)
208 AFFIDAVIT re 173 Memorandum in Opposition to 165 Motion, submitted in connection with Defendants' Opposition to Plaintiff's Motion to Compel Signed By James E. Earle filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/18/2006 to create link to document # 165 (Candee, D.). (Entered: 12/15/2006)
210 ORDER granting in part and denying in part on the record 165 Motion to Compel; granting 170 Motion to Amend/Correct − parties will file amended complaint; taking under advisement 198 Motion to Strike. Signed by Judge Janet C. Hall on 12/8/06. (Boroskey, C.) (Entered: 12/16/2006)
Set Deadlines at hearing on the record on 12/8/06: Discovery due by 1/31/2007,Dispositive Motions due by 2/28/2007. (Boroskey, C.) (Entered: 12/16/2006)
211 TRANSCRIPT of Discovery Hearing held on 12/8/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Simpson, T.) (Entered: 12/18/2006)
212 Second MOTION to Amend/Correct Class Certification by Donna C. Richards.Responses due by 1/12/2007 (Moukawsher, Thomas) (Entered: 12/22/2006)
213 Memorandum in Support re 212 Second MOTION to Amend/Correct Class Certification filed by Donna C. Richards. (Attachments: # 1 Exhibit A, October 16, 2006 Ruling on Class Certification)(Moukawsher, Thomas) (Entered: 12/22/2006)
214 REPLY to Response to 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 12/22/2006)
215 ANSWER to Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.(Kelly, Erin) (Entered: 12/27/2006)
216 Joint MOTION for Extension of Time until February 2, 2007 for Plaintiff to File Motion to Compel and for Defendants to File Opposition to 212 Second MOTION to Amend/Correct Class Certification by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 01/05/2007)
217 ORDER granting 216 Motion for Extension of Time until February 2, 2007 for Plaintiff to File Motion to Compel and for Defendants to File Opposition to 212 Second MOTION to Amend/Correct Class Certification by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.. SO ORDERED by Judge Janet C. Hall on 1/8/2007. (Sanders, C.) (Entered: 01/11/2007)
218 Reset Deadlines as to 212 Second MOTION to Amend/Correct Class Certification. Responses due by 2/2/2007 (Sanders, C.) (Entered: 01/11/2007)
219 MOTION for Leave to Appear Pro Hac Vice re Attorney David B. Johnson. Filing Fee $25.00. Receipt Number B013494. by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Candee, D.) (Entered: 01/16/2007)
220 ORDER granting 219 Motion to Appear Pro Hac Vice for David B. Johnson. Signed by Clerk on 1/16/07. (Candee, D.) (Entered: 01/16/2007)
221 NOTICE of Appearance by David B. Johnson on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Johnson, David) (Entered: 01/23/2007)
222 NOTICE of Appearance by Helen Harris on behalf of all defendants (Harris, Helen) (Entered: 01/23/2007)

01/23/2007 01/23/2007 02/02/2007
02/12/2007 02/13/2007 04/17/2007 04/18/2007 06/27/2007 06/29/2007
07/02/2007
07/02/2007 07/06/2007 07/09/2007 07/09/2007 07/09/2007

223 NOTICE of Appearance by Stanley A. Twardy, Jr on behalf of all defendants (Twardy, Stanley) (Entered: 01/23/2007)
224 NOTICE of Appearance by Thomas D. Goldberg on behalf of all defendants (Goldberg, Thomas) (Entered: 01/23/2007)
225 Memorandum in Opposition to Plaintiff's Motion for Second Amended Class Certification re 212 Second MOTION to Amend/Correct Class Certification filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Supplement 1)(Guarraci, Brian) (Entered: 02/02/2007)
226 Joint STIPULATION FOR REFERENCE TO ALTERNATIVE DISPUTE RESOLUTION by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 02/12/2007)
227 SO ORDERED re 226 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. Signed by Judge Janet C. Hall on 2/12/07. (Candee, D.) (Entered: 02/13/2007)
228 Amended STIPULATION re 226 Stipulation for Reference to Alternative Dispute Resolution by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 04/17/2007)
229 ORDER re 228 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. SO ORDERED by Judge Janet C. Hall on 4/18/07. (Klein, V.) (Entered: 04/18/2007)
230 Second STIPULATION Joint Second Amended Stipulation for Reference to Alternative Dispute Resolution by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 06/27/2007)
231 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 7/10/2007 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 06/29/2007)
232 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 7/6/2007 11:30 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203)579−5554 (Klein, V.) Modified on 7/2/2007 (Klein, V.). (Entered: 07/02/2007)
Docket Entry Correction re 232 Calendar Entry,, (MODIFIED TO EDIT TEXT) (Klein, V.) (Entered: 07/02/2007)
236 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 7/6/2007. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 07/09/2007)
233 ORDER re 230 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. SO ORDERED by Judge Janet C. Hall on 7/6/07. (S−Klein, V.) (Entered: 07/09/2007)
234 ORDER terminating 198 Motion to Strike in light of extended stay without prejudice to reclaim after 9/20/07. SO ORDERED by Judge Janet C. Hall on 7/6/07. (Klein, V.) (Entered: 07/09/2007)
235 ORDER terminating 212 Motion to Amend/Correct in light of extended stay without prejudice to reclaim after 9/20/07. SO ORDERED by Judge Janet C. Hall on 7/6/07. (Klein, V.) (Entered: 07/09/2007)

09/25/2007
09/27/2007 10/04/2007
11/19/2007 11/20/2007
12/21/2007 12/28/2007 12/28/2007 01/31/2008 02/07/2008 02/07/2008 02/25/2008 02/29/2008 03/03/2008 03/03/2008 03/31/2008 04/01/2008

237 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 9/27/2007 12:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 09/25/2007)
238 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 9/27/2007. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 10/04/2007)
239 ORDER the stay previously entered (See Doc. No. 227 &233) is extended for the reasons stated on the record 9/27/07, until Novemeber 30, 2007. The parties shall file a status report by November 19, 2007. SO ORDERED by Judge Janet C. Hall on 10/1/07. (Klein, V.) (Entered: 10/04/2007)
240 Joint STATUS REPORT by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Twardy, Stanley) (Entered: 11/19/2007)
241 ORDER re 240 Status Report filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. The case is continued stayed until 12/21/2007, at which time the parties will file a joint status report. SO ORDERED by Judge Janet C. Hall on 11/20/2007. (Sanders, C.) (Entered: 11/20/2007)
242 Second STATUS REPORT Joint by Fleetboston Financial Corp. (Goldberg, Thomas) (Entered: 12/21/2007)
243 ORDER re 242 Status Report filed by Fleetboston Financial Corp. Report noted. As requested, the parties are to file a further report on 1/31/08. SO ORDERED by Judge Janet C. Hall on 12/27/07. (Klein, V.) (Entered: 12/28/2007)
Set Deadlines: Status Report due by 1/31/2008 (Klein, V.) (Entered: 12/28/2007)
244 Joint STATUS REPORT by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 01/31/2008)
245 ORDER re 244 Third Joint Status Report. The relief requested in paragraph 7 is granted. SO ORDERED by Judge Janet C. Hall on 2/4/08. (Klein, V.) (Entered: 02/07/2008)
Set Deadlines: Status Report due by 2/29/2008 (Klein, V.) (Entered: 02/07/2008)
246 NOTICE of Appearance by Dale James Morgado on behalf of Donna C. Richards (Morgado, Dale) (Entered: 02/25/2008)
247 Fourth STATUS REPORT Joint by Donna C. Richards, Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 02/29/2008)
248 ORDER re 247 Status Report. The case is stayed until March 31, 2008, and the parties are to file a status report by that date. SO ORDERED by Judge Janet C. Hall on 3/2/08. (Klein, V.) (Entered: 03/03/2008)
Set Deadlines: Status Report due by 3/31/2008 (Klein, V.) (Entered: 03/03/2008)
249 Fifth STATUS REPORT by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 03/31/2008)
250 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 4/10/2008 10:00 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 04/01/2008)

04/10/2008

251 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 4/10/2008. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 04/10/2008)

 
 Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 1 of 27
CLOSED, EFILE, STAYED
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:04−cv−01638−JCH

Richards v. Fleetboston Financial Corp et al Assigned to: Judge Janet C. Hall Cause: 29:1132 E.R.I.S.A.−Employee Benefits
Plaintiff Donna C. Richards

Date Filed: 09/30/2004 Date Terminated: 10/15/2008 Jury Demand: None Nature of Suit: 791 Labor: E.R.I.S.A. Jurisdiction: Federal Question
represented by Dale James Morgado Gunster Yoakley &Stewart, P.A. Las Olas Centre 450 East Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 774−277−0211 Fax: 815−642−0198 Email: dale@morgado.us TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Moukawsher Moukawsher &Walsh 328 Mitchell St. Groton, CT 06340 860−445−1809 Fax: 860−446−8161 Email: tmoukawsher@mwlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ian O. Smith Saxe, Doernberger &Vita, PC 1952 Whitney Ave. Hamden, CT 06517 203−287−8890 Fax: 203−287−8847 Email: jos@sdvlaw.com TERMINATED: 08/06/2008 ATTORNEY TO BE NOTICED

V. Defendant Fleetboston Financial Corp

represented by Anne E. Rea Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7156 Fax: 312−853−7036 Email: area@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian P. Guarraci Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 2 of 27
312−853−7917 Fax: 312−853−7036 Email: bguarrac@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Johnson Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7107 Fax: 312−853−7036 Email: djohnson@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin E. Kelly Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7272 Fax: 312−853−7036 Email: ekelly@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen Harris Day Pitney LLP−Stmfd−CT One Canterbury Green Stamford, CT 06901−2047 203−977−7418 Fax: 203−977−7301 Email: hharris@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie A. Koca Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7155 Fax: 312853−7036 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott E. Gross Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7011 Fax: 312−853−7036 Email: sgross@wildman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley A. Twardy , Jr. Day Pitney LLP−Stmfd−CT One Canterbury Green Stamford, CT 06901−2047 203−977−7368 Fax: 203−977−7301 Email: satwardy@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 3 of 27

Defendant FleetBoston Financial Pension Plan

Thomas D. Goldberg Day Pitney LLP−Stmfd−CT One Canterbury Green Stamford, CT 06901−2047 203−977−7383 Fax: 203−977−7301 Email: tdgoldberg@daypitney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Conlon Sidley Austin LLP − CH, IL OneSouth Dearborn Street Chicago, IL 60603 312−853−7384 Fax: 312−853−7036 Email: wconlon@sidley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
George J. Kelly , Jr. Siegel, O'Connor, O'Donnell &Beck 150 Trumbull St. Hartford, CT 06103 860−727−8900 Fax: 860−527−5131 Email: gkelly@siegeloconnor.com ATTORNEY TO BE NOTICED
represented by Anne E. Rea (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian P. Guarraci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B. Johnson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin E. Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Helen Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie A. Koca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 4 of 27

Scott E. Gross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley A. Twardy , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas D. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

George J. Kelly , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant Bank of America Corp

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

David B. Johnson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Scott E. Gross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley A. Twardy , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas D. Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William F. Conlon

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 5 of 27

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Brian P. Guarraci (See above for address) ATTORNEY TO BE NOTICED

George J. Kelly , Jr. (See above for address) ATTORNEY TO BE NOTICED

Interested Party Francis A. Growczwicz

represented by Francis A. Growczwicz 187 Scott Road Apartment 1D Waterbury, CT 06705 PRO SE

V.
Witness
Fidelity Investments Institutional Services Co., Inc.

represented by Kevin M. McGinty Mintz, Levin, Cohn, Ferris, Glovsky &Popeo, P.C.−MA One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: kmcginty@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith P. Carroll Mintz Levin Cohn Ferris Glovsky &Popeo−Stmfd, CT 707 Summer St. Stamford, CT 06901 203−658−1700 Fax: 203−658−1701 Email: kpcarroll@mintz.com ATTORNEY TO BE NOTICED

Date Filed 09/30/2004
09/30/2004
09/30/2004 10/22/2004 10/22/2004

# Docket Text
1 COMPLAINT against FleetBoston Financial Pension Plan, Fleetboston Financial Corp ( Filing fee $ 150 receipt number H013773.), filed by Donna C. Richards.(Ferguson, L.) (Entered: 10/06/2004)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 12/30/04. Amended Pleadings due by 11/29/2004. Discovery due by 4/1/2005. Dispositive Motions due by 5/1/2005. (Ferguson, L.) (Entered: 10/06/2004)
3 ELECTRONIC FILING ORDER . Signed by Judge Janet C. Hall on 9/30/04. (Ferguson, L.) (Entered: 10/06/2004)
4 NOTICE of Appearance by Ian O. Smith on behalf of Donna C. Richards (Smith, Ian) (Entered: 10/22/2004)
5 WAIVER OF SERVICE Returned Executed by Donna C. Richards. Fleetboston Financial Corp waiver sent on 10/18/2004, answer due 12/17/2004. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 10/22/2004)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 6 of 27

11/24/2004 11/30/2004
11/30/2004
12/10/2004 12/10/2004 12/10/2004 12/13/2004 12/13/2004 12/13/2004 12/13/2004 12/13/2004 12/14/2004
12/17/2004
12/17/2004 12/28/2004 12/28/2004 01/04/2005

6 First MOTION for Extension of Time to File Petition for Class Certification until December 29, 2004 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/24/2004)
7 WAIVER OF SERVICE Returned Executed by Donna C. Richards. FleetBoston Financial Pension Plan waiver sent on 10/12/2004, answer due 12/11/2004. (Attachments: # 1 Waiver of Service)(Moukawsher, Thomas) (Entered: 11/30/2004)
8 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDER granting 6 Motion for Extension of Time to file petition for class certification . Signed by Judge Janet C. Hall on 11/30/04. (Boroskey, C.) (Entered: 11/30/2004)
9 First MOTION for Extension of Time until January 18, 2005 To file responsive pleadings to Plaintiff Donna Richards Complaint. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 12/10/2004)
10 Corporate Disclosure Statement by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 12/10/2004)
11 NOTICE of Appearance by George J. Kelly Jr. on behalf of all defendants (Kelly, George) (Entered: 12/10/2004)
13 MOTION for Leave to Appear Pro Hac Vice Attorney Brian P. Guarraci. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
14 MOTION for Leave to Appear Pro Hac Vice re: Attorney Julie A. Koca. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
15 MOTION for Leave to Appear Pro Hac Vice re: Attorney Scott E. Gross. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
16 MOTION for Leave to Appear Pro Hac Vice re: Attorney Anne E. Rea. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
17 MOTION for Leave to Appear Pro Hac Vice re: Attorney William F. Conlon. Filing Fee $25.00. Receipt Number B009324. by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 12/17/2004)
12 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDERED ACCORDINGLY 9 Motion for Extension of Time to 1/18/05 to respond to 1 Complaint. Signed by Clerk on 12/14/04. (Candee, D.) (Entered: 12/14/2004)
18 ORDERED ACCORDINGLY 13 Motion to Appear Pro Hac Vice re: Brian P. Guarraci, ORDERED ACCORDINGLY 14 Motion to Appear Pro Hac Vice re: Julie A. Koca, ORDERED ACCORDINGLY 15 Motion to Appear Pro Hac Vice re: Scott E. Gross, ORDERED ACCORDINGLY 16 Motion to Appear Pro Hac Vice re: Anne E. Rea, ORDERED ACCORDINGLY 17 Motion to Appear Pro Hac Vice re: William F. Conlon. Signed by Clerk on 12/17/04. (Candee, D.) Modified on 12/17/2004 (Candee, D.). (Entered: 12/17/2004)
Docket Entry Correction re 18 Order on Motion to Appear Pro Hac Vice. Docket entry modified to include attorney names. (Candee, D.) (Entered: 12/17/2004)
19 MOTION to Certify Class by Donna C. Richards.Responses due by 1/18/2005 (Moukawsher, Thomas) (Entered: 12/28/2004)
20 Memorandum in Support re 19 MOTION to Certify Class filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Moukawsher, Thomas) (Entered: 12/28/2004)
21 NOTICE of Appearance by Julie A. Koca on behalf of all defendants (Koca, Julie) (Entered: 01/04/2005)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 7 of 27

01/04/2005 01/05/2005 01/07/2005 01/10/2005 01/10/2005
01/13/2005 01/13/2005
01/13/2005 01/18/2005 01/24/2005 01/25/2005 01/25/2005
01/25/2005 01/28/2005
02/08/2005 02/14/2005 02/15/2005 02/18/2005

22 NOTICE of Appearance by Brian P. Guarraci on behalf of all defendants (Guarraci, Brian) (Entered: 01/04/2005)
25 MOTION for Leave to Appear Pro Hac Vice re: Attorney Erin E. Kelly. Filing Fee $25.00. Receipt Number B009420 by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Candee, D.) (Entered: 01/10/2005)
23 NOTICE of Appearance by Scott E. Gross on behalf of all defendants (Gross, Scott) (Entered: 01/07/2005)
24 Second MOTION for Extension of Time until 01/25/2005 to File Responsive Pleading 1 Complaint by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Kelly, George) (Entered: 01/10/2005)
26 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDERED ACCORDINGLY re: 25 Motion to Appear Pro Hac Vice for Erin E. Kelly. Signed by Clerk on 1/10/05. (Candee, D.) Modified on 1/18/2005 (Candee, D.). (Entered: 01/10/2005)
27 MOTION to Stay Unopposed Motion of Defendants to Stay Briefing on Plaintiff's Motion for Class Certification by FleetBoston Financial Pension Plan, Fleetboston Financial Corp.Responses due by 2/3/2005 (Koca, Julie) (Entered: 01/13/2005)
28 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDER granting 24 Motion for Extension of Time to 1/25/05 to respond to complaint . Signed by Judge Janet C. Hall on 1/13/05. (Boroskey, C.) (Entered: 01/13/2005)
Answer deadline updated for FleetBoston Financial Pension Plan to 1/25/2005; Fleetboston Financial Corp to 1/25/2005. (Boroskey, C.) (Entered: 01/13/2005)
Docket Entry Correction re 26 Order on Motion to Appear. Docket entry modified to include "Notice of electronic order. This is the only notice to Court will issue". (Candee, D.) (Entered: 01/18/2005)
29 REPORT of Rule 26(f) Planning Meeting. (Kelly, George) (Entered: 01/24/2005)
30 MOTION to Dismiss by FleetBoston Financial Pension Plan, Fleetboston Financial Corp.Responses due by 2/15/2005 (Guarraci, Brian) (Entered: 01/25/2005)
31 Memorandum in Support re 30 MOTION to Dismiss filed by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. (Attachments: # 1 Attachment − Unreported Decisions# 2 Attachment − Legislative History)(Guarraci, Brian) (Entered: 01/25/2005)
32 EXHIBITS A, B and C submitted in paper form in support of 30 MOTION to Dismiss filed by FleetBoston Financial Pension Plan, Fleetboston Financial Corp (Cody, C.) (Entered: 01/26/2005)
33 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC RULE 16 CONFERENCE set for 2/18/2005 12:00 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 01/28/2005)
34 NOTICE of Appearance by Erin E. Kelly on behalf of Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Kelly, Erin) (Entered: 02/08/2005)
35 MOTION for Extension of Time to File Response/Reply as to 30 MOTION to Dismiss until March 1, 2005 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/14/2005)
36 ORDER granting 35 Motion for Extension of Time to File Response/Reply re 30 MOTION to Dismiss Responses due by 3/1/2005. Signed by Judge Janet C. Hall on 2/15/05. (Boroskey, C.) (Entered: 02/15/2005)
37 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Rule 16 Status Conference held on 2/18/2005. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 02/23/2005)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 8 of 27

02/18/2005
02/18/2005 02/28/2005 02/28/2005
03/09/2005 03/11/2005
03/11/2005 03/28/2005 03/28/2005
04/18/2005 04/19/2005 05/06/2005 05/09/2005 05/27/2005 05/27/2005
06/01/2005 06/02/2005

38 ORDER granting 27 Motion to Stay Unopposed Motion of Defendants to Stay Briefing on Plaintiff's Motion for Class Certification by FleetBoston Financial Pension Plan, Fleetboston Financial Corp. Signed by Judge Janet C. Hall on 2/18/05. (Boroskey, C.) (Entered: 02/23/2005)
ReSet Deadlines: Discovery due by 2/15/2006. Dispositive Motions due by 3/31/2006. (Boroskey, C.) (Entered: 02/23/2005)
39 RESPONSE re 30 MOTION to Dismiss filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/28/2005)
40 Memorandum in Opposition re 30 MOTION to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit 1 (part 1 of 3)# 2 Exhibit 2 (part 2 of 3)# 3 Exhibit 1 (part 3 of 3)# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Errata 5# 8 Exhibit 6)(Moukawsher, Thomas) (Entered: 02/28/2005)
41 MOTION for Extension of Time until March 28, 2005 to File Reply in Support of 30 MOTION to Dismiss by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/09/2005)
42 ORDER granting 41 MOTION for Extension of Time until March 28, 2005 to File Reply in Support of 30 MOTION to Dismiss by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. . Signed by Judge Janet C. Hall on 3/11/05. (Boroskey, C.) (Entered: 03/11/2005)
43 Reset Deadlines as to 30 MOTION to Dismiss. Responses due by 3/28/2005 (Boroskey, C.) (Entered: 03/11/2005)
44 MOTION for Leave to File Excess Pages for Reply Brief by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/28/2005)
45 REPLY to Response to 30 MOTION to Dismiss filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit D# 2 Attachment − Additional Unreported Decisions# 3 Attachment − Additional Legislative History)(Guarraci, Brian) (Entered: 03/28/2005)
46 MOTION for Leave to File Surreply Brief re: 30 Motion to Dismiss by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) Modified on 4/19/2005 (Candee, D.). (Entered: 04/18/2005)
47 Docket Entry Correction re 46 MOTION for Leave to File Surreply Brief. Docket entry modified to include link to document # 30. (Candee, D.) (Entered: 04/19/2005)
48 RESPONSE re 46 MOTION for Leave to File Surreply Brief filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A: Response to Plaintiff's Surreply Brief)(Guarraci, Brian) (Entered: 05/06/2005)
49 REPLY to Response to 46 MOTION for Leave to File Surreply Brief filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/09/2005)
50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/27/2005)
51 Memorandum in Support re 50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL filed by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 05/27/2005)
52 MOTION for Extension of Time of Briefing Schedule on 19 MOTION to Certify Class by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 06/01/2005)
53 ORDER granting 50 Proposed MOTION for Leave to File MEMORANDUM RE: SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DISMISSAL (document filed − #51). Signed by Judge Janet C. Hall on 6/2/05. (Boroskey, C.) (Entered: 06/02/2005)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 9 of 27

06/08/2005 06/09/2005 06/09/2005 07/01/2005
07/06/2005
07/20/2005 08/04/2005 08/16/2005 08/22/2005 08/22/2005 08/30/2005 09/08/2005
09/15/2005 09/19/2005 09/19/2005

54 RESPONSE re 51 Memorandum in Support of 50 Motion re: for Leave to file Supplemental Authority in Opposition to Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 6/13/2005 to create link to document #50. (Candee, D.). (Entered: 06/08/2005)
55 ORDER granting 52 Agreed MOTION for Extension of Time of Briefing Schedule on 19 MOTION to Certify Class; defendants have until 9/19/05 to file response to Plaintiff's motion to certify class . Signed by Judge Janet C. Hall on 6/9/05. (Boroskey, C.) (Entered: 06/09/2005)
56 Reset Deadlines as to 19 MOTION to Certify Class. Responses due by 9/19/2005 (Boroskey, C.) (Entered: 06/09/2005)
57 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC CONFERENCE set for 7/12/2005 4:00 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/01/2005)
58 NOTICE TO COUNSEL RE: E−FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC CONFERENCE set for 7/19/2005 4:30 PM (rescheduled from 7/12/05) before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/06/2005)
59 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 7/20/2005. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 07/20/2005)
60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 8/25/2005 (Attachments: # 1 Exhibit A − Stipulated Protective Order)(Guarraci, Brian) (Entered: 08/04/2005)
61 ORDER granting 60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan with except re paragraph 16. . Signed by Judge Janet C. Hall on 8/16/05. (Boroskey, C.) (Entered: 08/16/2005)
62 ORDER vacating 61 ORDER granting 60 Consent MOTION for Protective Order by Fleetboston Financial Corp, FleetBoston Financial Pension Plan with except re paragraph 16 signed by Judge Hall on 8/16/05. Court will issue Protective Order. Signed by Judge Janet C. Hall on 8/18/05. (Boroskey, C.) (Entered: 08/22/2005)
63 Motion for Protective Order 60 is granted. PROTECTIVE ORDER filed except for paragraph 16. Signed by Judge Janet C. Hall on 8/18/05. (Boroskey, C.) (Entered: 08/22/2005)
64 First MOTION for Extension of Time of two weeks on all expert deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 08/30/2005)
65 ORDER granting 64 First MOTION for Extension of Time of two weeks on all expert deadlines; Plaintiff's disclosure of expert to 9/15/05, plaintiff's expert deposition due 11/15/05; defendant's disclosure of experts due by 2/15/06; defendant's expert depositions due 4/17/06 . Signed by Judge Janet C. Hall on 9/8/05. (Boroskey, C.) (Entered: 09/08/2005)
66 Second MOTION for Extension of Time of 30 days for all Expert Deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/15/2005)
67 ORDER granting 66 Second MOTION for Extension of Time of 30 days for all Expert Deadlines . Signed by Judge Janet C. Hall on 9/16/05. (Boroskey, C.) (Entered: 09/19/2005)
68 Memorandum in Opposition re 19 MOTION to Certify Class filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Unreported Decisions, Part I;# 2 Unreported Decisions, Part II;# 3 Unreported Decisions, Part III;# 4 Exhibit A;# 5 Exhibit B;# 6 Exhibit C;# 7 Exhibit D)(Guarraci, Brian)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 10 of 27

10/03/2005 10/05/2005 10/17/2005 10/19/2005
11/02/2005
11/07/2005 11/07/2005 11/10/2005 11/15/2005 11/15/2005
11/17/2005
11/21/2005 11/23/2005 11/23/2005

(Entered: 09/19/2005)
69 First MOTION for Extension of Time to File Response/Reply Unopposed as to 19 MOTION to Certify Class until November 2, 2005 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/03/2005)
70 ORDER granting 69 Motion for Extension of Time to File Response/Reply re 19 MOTION to Certify Class Responses due by 11/2/2005. Signed by Judge Janet C. Hall on 10/5/05. (Boroskey, C.) (Entered: 10/05/2005)
71 Third MOTION for Extension of Time of 30 days for all expert deadlines by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/17/2005)
72 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC STATUS CONFERENCE set for 11/7/2005 3:15 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 10/19/2005)
73 MOTION for Leave to File Excess Pages in Reply Brief in Support of Plaintiff's Motion for Class Certification by Donna C. Richards. (Attachments: # 1 Exhibit A Reply Brief# 2 Exhibit 1 of Reply Brief# 3 Exhibit 2 of Reply Brief# 4 Errata 3 (part 1) of Reply Brief# 5 Exhibit 3 (part 2) of Reply Brief# 6 Exhibit 4 of Reply Brief# 7 Exhibit 5 of Reply Brief# 8 Exhibit 6 of Reply Brief# 9 Exhibit 7 of Reply Brief# 10 Exhibit 8 of Reply Brief)(Moukawsher, Thomas) (Entered: 11/02/2005)
74 ORDER granting 73 MOTION for Leave to File Excess Pages in Reply Brief in Support of Plaintiff's Motion for Class Certification . Signed by Judge Janet C. Hall on 11/7/05. (Boroskey, C.) (Entered: 11/07/2005)
75 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 11/7/2005. 15 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 11/09/2005)
76 REPLY to Response to 19 MOTION to Certify Class filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3 part 1# 4 Exhibit 3 part 2# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(Moukawsher, Thomas) (Entered: 11/10/2005)
77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 11/15/2005)
78 Memorandum in Support re 77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A − Order of Dismissal# 2 Exhibit B − Complaint# 3 Exhibit C − Defendants' Memorandum in Support of Motion to Dismiss)(Guarraci, Brian) (Entered: 11/15/2005)
79 ORDER granting as modified in part 71 Third MOTION for Extension of Time of 30 days for all expert deadlines; Plainitt's expert disclosure− 11/16/05; deposition of plaintiff's expert− 1/18/06; defendant's expert dislcosure− 3/1/06; depostion of defendant's expert − 4/1/06 . Signed by Judge Janet C. Hall on 11/14/05. (Boroskey, C.) (Entered: 11/17/2005)
80 ORDER granting 77 MOTION for Leave to File Memorandum Regarding Supplemental Authority in Support of Dismissal. Signed by Judge Janet C. Hall on 11/18/05. (Boroskey, C.) (Entered: 11/21/2005)
81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 11/28/2005 to include link to document # 30 (Candee, D.). (Entered: 11/23/2005)
82 Memorandum in Support re 81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 11 of 27

11/30/2005
12/06/2005 12/06/2005 12/08/2005
12/09/2005 12/16/2005 01/16/2006 01/16/2006 01/18/2006 01/18/2006 01/18/2006 01/19/2006 01/20/2006

Exhibit A − Memorandum Opinion)(Guarraci, Brian) Modified on 11/28/2005 (Candee, D.). Modified on 11/28/2005 to include link to document # 30 (Candee, D.). (Entered: 11/23/2005)
83 MOTION for Leave to File MEMORANDUM IN RESPONSE TO DEFENDANTS? SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS by Donna C. Richards. (Attachments: # 1 Exhibit A: Memorandum# 2 Memorandum Exhibit A# 3 Memorandum Exhibit B# 4 Memorandum Exhibit C# 5 Memorandum Exhibit D)(Moukawsher, Thomas) Modified to include link to document # 30 on 12/5/2005 (Candee, D.). (Entered: 11/30/2005)
84 ORDER granting 81 MOTION for Leave to File Memorandum Regarding Second Supplemental Authority in Support of 30 Dismissal . Signed by Judge Janet C. Hall on 12/6/05. (Boroskey, C.) (Entered: 12/06/2005)
85 REPLY to Response to 87 MEMORANDUM IN RESPONSE TO DEFENDANTS SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/20/2005 (Candee, D.). (Entered: 12/06/2005)
86 ORDER granting 83 MOTION for Leave to File MEMORANDUM IN RESPONSE TO DEFENDANTS? SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS by Donna C. Richards. (Attachments: # 1 Exhibit A: Memorandum# 2 Memorandum Exhibit A# 3 Memorandum Exhibit B# 4 Memorandum Exhibit C# 5 Memorandum Exhibit D)(Moukawsher, Thomas) Modified to include link to document # 30 on 12/5/2005. Counsel shall electronically file MEMORANDUM IN RESPONSE TO DEFENDANT'S SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR 30 MOTION TO DISMISS . Signed by Judge Janet C. Hall on 12/8/05. (Boroskey, C.) (Entered: 12/08/2005)
87 RESPONSE re 30 MOTION to Dismiss Supplemental Authority filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Moukawsher, Thomas) (Entered: 12/09/2005)
88 REPLY to Response to 30 MOTION to Dismiss / Supplemental Authority in Support of Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 12/16/2005)
89 MOTION to Compel Production by Donna C. Richards.Responses due by 2/6/2006 (Moukawsher, Thomas) (Entered: 01/16/2006)
90 Memorandum in Support re 89 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Moukawsher, Thomas) (Entered: 01/16/2006)
91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 1/19/2006 (Simpson, T.). (Entered: 01/18/2006)
92 Memorandum in Support re 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) Modified on 1/19/2006 (Simpson, T.). (Entered: 01/18/2006)
93 Letter from George J. Kelly, Jr. dated 1/11/06 Re: Substituting redacted versions of Exhibits A &C, document 32 . (Cody, C.) (Entered: 01/19/2006)
Docket Entry Correction re 92 Memorandum in Support of Motion, 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of Dismissal MODIFIED TO CREATE DOCKET ENTRY RELATIONSHIP TO DOC #30 (Simpson, T.) (Entered: 01/19/2006)
94 ORDER allowing request in 93 Letter re: #32 exhibits A &C. Signed by Judge Janet C. Hall on 1/20/06. (Cody, C.) (Entered: 01/20/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 12 of 27

01/20/2006 01/24/2006 01/25/2006 01/30/2006 02/06/2006 02/06/2006
02/10/2006 02/14/2006
02/14/2006 02/14/2006
02/17/2006 02/24/2006 03/01/2006 03/27/2006

REDACTED VERSIONS OF EXHIBIT A &C submitted in paper form and substituted per Order #94 re 32 Response, 30 MOTION to Dismiss. (Cody, C.) (Entered: 01/20/2006)
95 ORDER granting 91 MOTION for Leave to File Memorandum Regarding 3rd Supplemental Authority in Support of 30 Dismissal. Counsel will electronically file the memorandum . Signed by Judge Janet C. Hall on 1/24/06. (Boroskey, C.) (Entered: 01/24/2006)
96 MOTION for Leave to File Memorandum in Response to Defendants' Third Supplemental Authority in Support of Their Motion to Dismiss by Donna C. Richards. (Attachments: # 1 Exhibit A)(Moukawsher, Thomas) (Entered: 01/25/2006)
97 ORDER granting 96 MOTION for Leave to File Memorandum in Response to Defendants' Third Supplemental Authority in Support of Their Motion to Dismiss . Signed by Judge Janet C. Hall on 1/30/06. (Boroskey, C.) (Entered: 01/30/2006)
98 RESPONSE re 92 Memorandum in Support of Motion, to file 3rd Supplemental Authority in Support of Defendants 30 Motion to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit 1)(Moukawsher, Thomas) Modified on 2/13/2006 to create link to document # 30 (Candee, D.). (Entered: 02/06/2006)
99 RESPONSE re 89 MOTION to Compel Production filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 02/06/2006)
100 MOTION for Extension of Time (unopposed) Discovery 5/1/06, Defendant's expert disclosure 4/15/06, Depositions of Defendant's expert(s) 5/15/06, Dispositive Motions 7/1/06, Joint Trial Memorandum 10/1/06, Trial Ready 12/1/06 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/10/2006)
101 ORDER granting 100 MOTION for Extension of Time (unopposed) Discovery 5/1/06, Defendant's expert disclosure 4/15/06, Depositions of Defendant's expert(s) 5/15/06, Dispositive Motions 7/1/06, Joint Trial Memorandum 10/1/06, Trial Ready 12/1/06; The Court does not expect any further Motions to Extend Time. If a party is dilatory in discovery, the Court expects a prompt Motion to Compel. So Ordered . Signed by Judge Janet C. Hall on 2/14/06. (Boroskey, C.) (Entered: 02/14/2006)
Set Deadlines/Hearings: Discovery due by 5/1/2006. Dispositive Motions due by 7/1/2006. Trial Brief due by 10/1/2006. Trial Ready Date 12/1/2006. (Boroskey, C.) (Entered: 02/14/2006)
102 NOTICE TO COUNSEL RE: E−FILE CALENDAR. ORAL ARGUMENT RE: Motion to Certify Class and Motion to Dismiss set for 3/27/2006 01:00 PM, U.S. District Court, 915 Lafayette Blvd.,Courtroom 2, Bridgeport, CT before Judge Janet C. Hall. All persons entering the courthouse must present photo identification.(Szczygiel, G.) (Entered: 02/14/2006)
103 First MOTION for Extension of Time to File Response/Reply (unopposed) as to 89 MOTION to Compel Production until March 6, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 02/17/2006)
104 ORDER granting 103 Motion for Extension of Time to File Response/Reply re 89 MOTION to Compel ProductionResponses due by 3/6/2006. Signed by Judge Janet C. Hall on 2/24/06. (Boroskey, C.) (Entered: 02/24/2006)
105 REPLY to Response to 89 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Moukawsher, Thomas) (Entered: 03/01/2006)
106 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 3/27/2006 re 46 MOTION for Leave to File Surreply Brief, 44 MOTION for Leave to File Excess Pages for Reply Brief Total Time: 2 hours and 30 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 03/30/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 13 of 27

03/27/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006 03/31/2006 04/07/2006 04/10/2006 04/12/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006 04/17/2006
04/18/2006 04/26/2006

107 ORDER granting 44 MOTION for Leave to File Excess Pages for Reply Brief and 46 MOTION for Leave to File Surreply Brief re: 30 Motion to Dismiss . Signed by Judge Janet C. Hall on 3/27/06. (Boroskey, C.) (Entered: 03/30/2006)
108 NOTICE by Fleetboston Financial Corp, FleetBoston Financial Pension Plan of Filing of ERISA 204(h) and its Regulations as in Effect on January 1, 1997 (Attachments: # 1 Exhibit A;# 2 Exhibit B)(Guarraci, Brian) (Entered: 03/31/2006)
109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 03/31/2006)
110 Memorandum in Support re 109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 03/31/2006)
111 RULING granting in part and denying in part Plaintiff's 19 Motion to Certify Class and certifies the proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Signed by Judge Janet C. Hall on 3/31/08. (Candee, D.) (Entered: 04/03/2006)
112 ORDER granting in part and denying in part 30 Motion to Dismiss. Signed by Judge Janet C. Hall on 3/31/06. (Candee, D.) (Entered: 04/03/2006)
113 ORDER granting nunc pro tunc 109 MOTION for Leave to File Memorandum re: Supplemental Authority in Response to Issues Raised by Court at the March 27, 2006 Hearing . Signed by Judge Janet C. Hall on 4/6/06. (Boroskey, C.) (Entered: 04/07/2006)
114 TRANSCRIPT of Proceedings held on 3/27/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Candee, D.) (Entered: 04/11/2006)
115 MOTION for Extension of Time until May 8, 2006 to Answer or Otherwise Plead and until June 1, 2006 to Serve Expert Disclosures (Unopposed) by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 04/12/2006)
116 MOTION to Amend/Correct 1 Complaint by Donna C. Richards.Responses due by 5/8/2006 (Attachments: # 1 Exhibit A: Amended Complaint)(Moukawsher, Thomas) (Entered: 04/17/2006)
117 MOTION for Reconsideration re 30 MOTION to Dismiss by Donna C. Richards.Responses due by 5/8/2006 (Moukawsher, Thomas) (Entered: 04/17/2006)
118 Memorandum in Support re 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Moukawsher, Thomas) (Entered: 04/17/2006)
119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) (Unopposed) by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 04/17/2006)
120 Memorandum in Support re 119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) (Unopposed) filed by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Guarraci, Brian) (Entered: 04/17/2006)
121 Second MOTION for Extension of Time (unopposed) all case deadlines by 90 ninety days to: Discovery 7/31/06, Dispositive Motions 9/29/06, Joint Trial Memo 12/30/06, Trial Ready 3/28/07 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 04/18/2006)
122 ORDER granting 115 MOTION for Extension of Time until May 8, 2006 to Answer or Otherwise Plead and until June 1, 2006 to Serve Expert Disclosures by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. granting 121 second Motion for Extension of Time (unopposed) all case deadlines by 90ninety

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 14 of 27

04/26/2006 04/26/2006 04/27/2006 05/01/2006 05/03/2006
05/08/2006 05/08/2006 05/08/2006 05/08/2006
05/09/2006 05/09/2006 05/09/2006 05/09/2006 05/09/2006 05/09/2006 05/11/2006

days to: Discovery 7/31/06, Dispositive Motions 9/29/06, Joint Trial Memo12/30/06, Trial Ready 3/28/07 by Donna C. Richards . Signed by Judge Janet C. Hall on 4/25/06. (Boroskey, C.) (Entered: 04/26/2006)
Set Deadlines/Hearings: Discovery due by 7/31/2006. Dispositive Motions due by 9/29/2006. Trial Brief due by 12/30/2006. Trial Ready Date 3/28/2007. (Boroskey, C.) (Entered: 04/26/2006)
Answer deadline updated for Fleetboston Financial Corp to 5/8/2006; FleetBoston Financial Pension Plan to 5/8/2006. (Boroskey, C.) (Entered: 04/26/2006)
123 ORDER granting 116 MOTION to Amend/Correct 1 Complaint by Donna C. Richards. Responses due by 5/8/2006 . Signed by Judge Janet C. Hall on 4/26/06. (Boroskey, C.) (Entered: 04/27/2006)
124 AMENDED COMPLAINT against Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan, filed by Donna C. Richards.(Moukawsher, Thomas) (Entered: 05/01/2006)
125 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 5/11/2006 at 3:30 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 05/03/2006)
126 ANSWER to Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.(Guarraci, Brian) (Entered: 05/08/2006)
127 Memorandum in Opposition re 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 05/08/2006)
128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 5/29/2006 (Guarraci, Brian) (Entered: 05/08/2006)
129 Memorandum in Support re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit C# 2 Exhibit D# 3 Exhibit E# 4 Exhibit F# 5 Exhibit G# 6 Exhibit H# 7 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 05/08/2006)
130 NOTICE of Appearance by George J. Kelly, Jr on behalf of Bank of America Corp (Kelly, George) (Entered: 05/09/2006)
131 NOTICE of Appearance by William F. Conlon on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Conlon, William) (Entered: 05/09/2006)
132 NOTICE of Appearance by Anne E. Rea on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Rea, Anne) (Entered: 05/09/2006)
133 NOTICE of Appearance by Erin E. Kelly on behalf of Bank of America Corp (Kelly, Erin) (Entered: 05/09/2006)
134 NOTICE of Appearance by Scott E. Gross on behalf of Bank of America Corp (Gross, Scott) (Entered: 05/09/2006)
135 NOTICE of Appearance by Brian P. Guarraci on behalf of Bank of America Corp (Guarraci, Brian) (Entered: 05/09/2006)
136 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 5/11/2006 re 89 MOTION to Compel Productionfiled by Donna C. Richards, 117 MOTION for Reconsideration re 30 MOTION to Dismiss filed by Donna C. Richards. 40 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 05/16/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 15 of 27

05/11/2006
05/26/2006
05/30/2006 05/30/2006 05/31/2006 06/05/2006 06/06/2006
06/13/2006 06/13/2006
06/15/2006 07/20/2006
07/24/2006 07/26/2006 07/28/2006

137 ORDER terminating 89 Motion to Compel; terminated as moot inlight of agreement of parties and further order of the court, as stated on the record; denying as moot in light of amended complaint and pending motion to dismiss 117 Motion for Reconsideration (on the record at telephone conference on 5/11/06) . Signed by Judge Janet C. Hall on 5/16/06. (Boroskey, C.) (Entered: 05/16/2006)
138 ORDER denying 119 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b): The Court does not view this as one of those "rare" or "exceptional" circumstances that justifies an interloctory appeal. So Ordered . Signed by Judge Janet C. Hall on 5/26/06. (Boroskey, C.) (Entered: 05/26/2006)
139 RESPONSE re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 05/30/2006)
140 Memorandum in Opposition re 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Donna C. Richards. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Moukawsher, Thomas) (Entered: 05/30/2006)
141 MOTION for Extension of Time until July 17, 2006 to Produce Expert Reports and Extend Other Case Deadlines by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B)(Guarraci, Brian) (Entered: 05/31/2006)
142 TRANSCRIPT of Proceedings held on 5/11/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Candee, D.) (Entered: 06/05/2006)
143 ORDER granting 141 MOTION for Extension of Time until July 17, 2006 to Produce Expert Reports and Extend Other Case Deadlines; However, the Court will grant no further extensions and suggest defendants retain a different expert if they do not wish to rely on the recovery of their current expert in time to complete his report by the new deadline . Signed by Judge Janet C. Hall on 6/6/06. (Boroskey, C.) (Entered: 06/06/2006)
144 MOTION for Leave to File Excess Pages for Reply Brief by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 06/13/2006)
145 REPLY to Response to 128 MOTION to Dismiss Counts Two and Five of 124 Plaintiff's Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit I;# 2 Exhibit J;# 3 Exhibit K;# 4 Exhibit L;# 5 Attachment − Additional Unreported Decisions)(Guarraci, Brian) (Entered: 06/13/2006)
146 ORDER granting 144 MOTION for Leave to File Excess Pages for Reply Brief by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. Defendant is to file chambers copy, if not already filed . Signed by Judge Janet C. Hall on 6/14/06. (Boroskey, C.) (Entered: 06/15/2006)
147 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 7/26/2006 at 11:30 AM (RE:Plaintiff's letter regarding Rule 23(b)(1) class certification), before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(Szczygiel, G.) (Entered: 07/20/2006)
148 Ruling granting in part and denying in part 128 Motion to Dismiss . Signed by Judge Janet C. Hall on 7/21/2006. (Sanders, C.) (Entered: 07/26/2006)
150 Minute Entry for proceedings held before Judge Janet C. Hall : Telephonic Status Conference held on 7/26/2006. 10 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 08/01/2006)
149 TRANSCRIPT of Proceedings held on 7/27/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (S−Candee, D.) (Entered: 07/31/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 16 of 27

08/07/2006 08/16/2006 08/16/2006 08/16/2006 08/16/2006 08/18/2006 08/18/2006 08/25/2006
08/25/2006
08/25/2006
09/08/2006
09/08/2006 09/12/2006

151 MOTION for Extension of Time until August 16, 2006 to Answer Count Five of Plaintiff's Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 08/07/2006)
152 ORDER granting 151 MOTION for Extension of Time until August 16, 2006 to Answer Count Five of Plaintiff's 124 Amended Complaint by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan . Signed by Judge Janet C. Hall on 8/15/06. (Boroskey, C.) (Entered: 08/16/2006)
Answer deadline updated for Bank of America Corp to 8/16/2006; Fleetboston Financial Corp to 8/16/2006; FleetBoston Financial Pension Plan to 8/16/2006. (Boroskey, C.) (Entered: 08/16/2006)
153 ENTERED IN ERROR − RESPONSE re 124 Amended Complaint Answer to Count V of Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 8/17/2006 (Candee, D.). (Entered: 08/16/2006)
154 RESPONSE re 124 Amended Complaint − Answer to Count V of Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. Correcting document # 153 originally docketed as response to motion. (Candee, D.) (Entered: 08/17/2006)
155 MOTION to Amend/Correct 111 Order on Motion to Certify Class by Donna C. Richards.Responses due by 9/8/2006 (Moukawsher, Thomas) (Entered: 08/18/2006)
156 Memorandum in Support re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 08/18/2006)
157 ENTERED IN ERROR − MOTION for Certificate of Appealability To Modify March 31, 2006 112 Order Pursuant to 28 U.S.C. 1292(b) or, In The Alternative, To Reconsider That Order As It Relates to Count I by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 8/28/2006 to create link to document # 112 (Candee, D.). (Entered: 08/25/2006)
158 Memorandum in Support re 157 MOTION for Certificate of Appealability To Modify March 31, 2006 Order Pursuant to 28 U.S.C. 1292(b) or, In The Alternative, To Reconsider That Order As It Relates to Count I filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (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 Attachment − Unreported Decisions)(Guarraci, Brian) (Entered: 08/25/2006)
159 MOTION for Reconsideration re 112 Order on Motion to Dismiss by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 9/15/2006 (Attachments: # 1 Memorandum in Support; # 2 Exhibit A; # 3 Exhibit B; # 4 Exhibit C; # 5 Exhibit D; # 6 Exhibit E; # 7 Exhibit F; # 8 Exhibit G; # 9 Exhibit H; # 10 Exhibit Unreported Cases). Originally docketed in error as document # 157 , redocketed to properly identify as a two part motion.(Candee, D.) (Entered: 08/28/2006)
160 Memorandum in Opposition to Plaintiff's Motion for Amended Class Certification re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B − Part 1# 3 Exhibit B − Part 2# 4 Exhibit B − Part 3# 5 Exhibit B − Part 4# 6 Exhibit C# 7 Appendix 1)(Guarraci, Brian) (Entered: 09/08/2006)
161 MOTION for Leave to File Supplemental Authority by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1)(Guarraci, Brian) (Entered: 09/08/2006)
162 ORDER granting 161 MOTION for Leave to File Supplemental Authority by Bank of America Corp, FleetBoston Financial Corp, FleetBoston Financial Pension Plan.

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 17 of 27

09/14/2006
09/22/2006 09/22/2006 09/22/2006 09/22/2006 10/05/2006 10/05/2006
10/06/2006 10/06/2006 10/06/2006 10/11/2006
10/11/2006 10/13/2006
10/16/2006

The parties are to E−file the Supplemental Authority. Signed by Judge Janet C. Hall on 9/11/06. (Szczygiel, G.) (Entered: 09/12/2006)
163 NOTICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan of E−Filing of Supplemental Authority in Support of 159 Motion to Modify March 31, 2006 Order Pursuant to 28 U.S.C. Section 1292(b) (Gross, Scott) Modified on 9/15/2006 to create link to document # 159 (Candee, D.). (Entered: 09/14/2006)
164 First MOTION for Extension of Time to File Response/Reply (unopposed) as to 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class until October 6, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/22/2006)
165 MOTION to Compel Production by Donna C. Richards.Responses due by 10/13/2006 (Moukawsher, Thomas) (Entered: 09/22/2006)
166 Memorandum in Support re 165 MOTION to Compel Production filed by Donna C. Richards. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Moukawsher, Thomas) (Entered: 09/22/2006)
167 MOTION for Extension of Time until 60 days after the Court's Ruling on Plaintiff's Motion to Compel of all Case Deadlines (Unopposed) by Donna C. Richards. (Moukawsher, Thomas) (Entered: 09/22/2006)
168 ORDER granting 164 Motion for Extension of Time to File Response/Reply re 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class Responses due by 10/6/2006. So Ordered. Signed by Judge Janet C. Hall on 10/3/06. (Boroskey, C.) (Entered: 10/05/2006)
169 NOTICE TO COUNSEL RE: E−FILE CALENDAR. TELEPHONIC CONFERENCE set for 10/11/2006 at 2:00 PM, before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Szczygiel, G.) (Entered: 10/05/2006)
170 MOTION to Amend/Correct 124 Amended Complaint by Donna C. Richards.Responses due by 10/27/2006 (Attachments: # 1 Exhibit A: Second Amended Complaint)(Moukawsher, Thomas) (Entered: 10/06/2006)
171 Memorandum in Support re 170 MOTION to Amend/Correct 124 Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/06/2006)
172 REPLY to Response to 155 MOTION to Amend/Correct 111 Order on Motion to Certify Class filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/06/2006)
191 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 10/11/2006 re 167 MOTION for Extension of Time until 60 days after the Court's Ruling on Plaintiff's Motion to Compel of all Case Deadlines (Unopposed) filed by Donna C. Richards. 20 minutes(Court Reporter Corriette.) (Boroskey, C.) (Entered: 11/13/2006)
192 ORDER denying 167 Motion for Extension of Time for deadlines . Signed by Judge Janet C. Hall on 10/11/06. (Boroskey, C.) (Entered: 11/13/2006)
173 Memorandum in Opposition to Plaintiff's Motion to Compel Production re 165 MOTION to Compel Production filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Appendix 1 − Unreported Cases)(Guarraci, Brian) (Entered: 10/13/2006)
174 RULING denying 157 Motion for Certificate of Appealability, denying 159 Motion for Reconsideration. Signed by Judge Janet C. Hall on 10/16/06. (Candee, D.) (Entered: 10/17/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 18 of 27

10/16/2006 10/18/2006 10/26/2006 10/26/2006 10/26/2006
10/26/2006 10/26/2006 10/27/2006
10/31/2006
11/01/2006 11/02/2006 11/03/2006
11/05/2006
11/06/2006

175 RULING granting in part and denying in part 155 Motion to Amend Class Certification. Signed by Judge Janet C. Hall on 10/16/06. (Candee, D.) (Entered: 10/17/2006)
176 ORDER TO DEFENDANTS, Set Deadlines as to Response to Order due by 10/31/2006. Signed by Judge Janet C. Hall on 10/18/06. (Candee, D.) (Entered: 10/19/2006)
177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order by Fidelity Investments Institutional Services Co., Inc..Responses due by 11/16/2006 (Carroll, Keith) (Entered: 10/26/2006)
178 Memorandum in Support re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc.. (Carroll, Keith) (Entered: 10/26/2006)
179 AFFIDAVIT re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order, 178 Memorandum in Support of Motion, Signed By Laura Tholen filed by Fidelity Investments Institutional Services Co., Inc.. (Attachments: # 1 Exhibits A−D# 2 Exhibits E−H)(Carroll, Keith) (Entered: 10/26/2006)
180 AFFIDAVIT re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order, 178 Memorandum in Support of Motion, Signed By Keith P. Carroll filed by Fidelity Investments Institutional Services Co., Inc.. (Carroll, Keith) (Entered: 10/26/2006)
181 REPLY to Response to 165 MOTION to Compel Production filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 10/26/2006)
182 Memorandum in Opposition re 170 MOTION to Amend/Correct 124 Amended Complaint filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (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 Appendix of Unreported Cases)(Guarraci, Brian) (Entered: 10/27/2006)
183 RESPONSE re: 176 ORDER To Defendants filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A# 2 Errata B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Guarraci, Brian) Modified on 11/1/2006 to creaate link to document # 176 (Candee, D.). (Entered: 10/31/2006)
Set Deadlines/Hearings: Motion Hearing as to (177) Motion For Protective Order of Third Party Witness set for 11/6/2006 05:00 PM by telephone in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Boroskey, C.) (Entered: 11/01/2006)
184 CERTIFICATE OF SERVICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan re 183 Response, (Guarraci, Brian) (Entered: 11/02/2006)
185 Memorandum in Opposition re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Donna C. Richards. (Attachments: # 1 Exhibit A part 1# 2 Exhibit A part 2# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E)(Moukawsher, Thomas) (Entered: 11/03/2006)
186 RESPONSE re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order and Update on Production of Participant Data filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Guarraci, Brian) (Entered: 11/05/2006)
187 MOTION for Leave to Appear Pro Hac Vice for Attorney Kevin M. McGinty. Filing Fee $25.00. Receipt Number B013147 by Fidelity Investments Institutional Services Co., Inc.. (Attachments: # 1 Affidavit of Kevin McGinty) (Candee, D.)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 19 of 27

11/06/2006 11/06/2006
11/07/2006 11/08/2006
11/13/2006 11/15/2006 11/15/2006 11/15/2006 11/16/2006 11/17/2006 11/17/2006
11/21/2006 11/21/2006 11/27/2006

Modified on 11/7/2006 (Candee, D.). (Entered: 11/07/2006)
Docket Entry Correction − Docket entry modified to indicate correct fililng date of 11/6/06 re 187 MOTION for Leave to Appear Pro Hac Vice Attorney Kevin M. McGinty. Filing Fee $25.00. Receipt Number B013147. (Candee, D.) (Entered: 11/07/2006)
189 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 11/6/2006 by telephone re 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc. 45 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 11/08/2006)
188 ORDERED ACCORDINGLY 187 Motion to Appear Pro Hac Vice for Attorney Kevin M. McGinty. Signed by Clerk on 11/7/06. (Candee, D.) (Entered: 11/07/2006)
190 ORDER re defendants are ordered to produce for in camera inspection all the documents provided in their privilege list which are still being withheld on privilege grounds &parties are requested to file a supplemental memorandum re 165 MOTION to Compel Production. Signed by Judge Janet C. Hall on 11/8/06. (Beverley, T.) (Entered: 11/13/2006)
193 First MOTION for Extension of Time to File Response/Reply as to 170 MOTION to Amend/Correct 124 Amended Complaint until November 27, 2006 by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/13/2006)
194 ORDER granting 193 Motion for Extension of Time until 11/27/06 to File Response/Reply re 170 MOTION to Amend/Correct 124 Amended Complaint Responses due by 11/27/2006. SO ORDERED. Signed by Judge Janet C. Hall on 11/15/2006. (Sanders, C.) (Entered: 11/15/2006)
195 Supplemental Memorandum in Support re 165 MOTION to Compel Production filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/15/2006)
196 Supplemental RESPONSE re 190 Order, filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 11/15/2006)
197 Joint MOTION for Extension of Time of 60 Days to File Dispositive Motions and Remaining Case Deadlines by Donna C. Richards, Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Moukawsher, Thomas) (Entered: 11/16/2006)
198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 12/8/2006 (Gross, Scott) (Entered: 11/17/2006)
199 Memorandum in Support re 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A − Revised CV# 2 Exhibit B − Original CV# 3 Exhibit C − Maiorana Dep# 4 Exhibit D − 2005 Scheduling Order# 5 Exhibit E − Bosley CV# 6 Exhibit F − 2006 Scheduling Order# 7 Exhibit G − Rebuttal Report# 8 Exhibit G − Part 2# 9 Exhibit G − Part 3# 10 Exhibit G − Part 4# 11 Exhibit G − Part 5# 12 Exhibit H − Response to First Set of Interrogatories# 13 Exhibit I − Motion for Two Week Extension# 14 Exhibit J − Second Motion for Extension# 15 Exhibit K − Third Motion for Extension# 16 Exhibit L − Unreported Cases)(Gross, Scott) (Entered: 11/17/2006)
202 ORDER granting 197 Motion for Extension of Time of 60 Days to File Dispositive Motions and Remaining Case Deadlines; SO ORDERED . Signed by Judge Janet C. Hall on 11/21/2006. (Sanders, C.) (Entered: 11/28/2006)
Reset Deadlines: Dispositive Motions due by 2/1/2007. Trial Brief due by 4/30/2007. Trial Ready Date 7/30/2007. (Sanders, C.) (Entered: 11/28/2006)
200 REPLY to Response to 170 MOTION to Amend/Correct 124 Amended Complaint filed by Donna C. Richards. (Moukawsher, Thomas) (Entered: 11/27/2006)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 20 of 27

11/28/2006
11/28/2006 11/30/2006 12/08/2006 12/08/2006
12/12/2006 12/15/2006 12/15/2006 12/16/2006 12/16/2006 12/18/2006 12/22/2006

201 CALENDAR ENTRY:Motion Hearing set for 12/8/2006 10:30 AM for 165 MOTION to Compel in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. PLEASE READ AND COMPLY WITH THE ATTACHED DISCOVERY HEARING INSTRUCTIONS. THERE ARE 4 CASES AND 8 MOTIONS CURRENTLY ON THE CALENDAR FOR DECEMBER 8, 2006. COUNSEL ARE ENCOURAGED TO DISCUSS THE PENDING MATTERS IN AN ATTEMPT TO NARROW THE ISSUES IN DISPUTE. COUNSEL SHALL REPORT TO THE COURTROOM DEPUTY PRIOR TO THE OPENING OF COURT WHICH ISSUES ARE STILL OUTSTANDING. THE COURT WILL HEAR AGREEMENTS FIRST. (DeRubeis, B.) (Entered: 11/28/2006)
203 ORDER granting in part and denying in part as stated on the record on 10/26/06 177 Motion for Protective Order . Signed by Judge Janet C. Hall on 11/28/06. (Boroskey, C.) (Entered: 11/28/2006)
204 ORDER re Defendants have failed to provide chambers copies of 199 Memorandum in Support of Motion 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana, including attachments, in violation of court's 3 Electronic Filing Order. Defendants are ordered to file chambers copies of this Memorandum no later than Friday, DECEMBER 1, 2006. Signed by Judge Janet C. Hall on 11/30/06. (Candee, D.) (Entered: 11/30/2006)
205 Memorandum in Opposition re 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Donna C. Richards. (Attachments: # 1 Exhibit A, Rebuttal Report# 2 Exhibit B, Vita# 3 Exhibit C, Deposition)(Moukawsher, Thomas) (Entered: 12/08/2006)
209 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 12/8/2006 re 165 MOTION to Compel Production filed by Donna C. Richards, 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp, 177 MOTION for Protective Order Motion of Third Party Witness Fidelity Investments Institutional Services Co., Inc. for a Protective Order filed by Fidelity Investments Institutional Services Co., Inc.. Total Time: 2 hours and 55 minutes(Court Reporter Fidanza.) (Boroskey, C.) (Entered: 12/16/2006)
206 AMENDED COMPLAINT (SECOND) against Bank of America Corp, Fleetboston Financial Corp, Fidelity Investments Institutional Services Co., Inc., FleetBoston Financial Pension Plan, filed by Donna C. Richards.(Moukawsher, Thomas) (Entered: 12/12/2006)
207 Supplemental AFFIDAVIT re 173 Memorandum in Opposition to 165 Motion, submitted in connection with Defendants' Opposition to Plaintiff's Motion to Compel Signed By Robert J. King, Jr. filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/18/2006 to create link to document # 165 (Candee, D.). (Entered: 12/15/2006)
208 AFFIDAVIT re 173 Memorandum in Opposition to 165 Motion, submitted in connection with Defendants' Opposition to Plaintiff's Motion to Compel Signed By James E. Earle filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) Modified on 12/18/2006 to create link to document # 165 (Candee, D.). (Entered: 12/15/2006)
210 ORDER granting in part and denying in part on the record 165 Motion to Compel; granting 170 Motion to Amend/Correct − parties will file amended complaint; taking under advisement 198 Motion to Strike. Signed by Judge Janet C. Hall on 12/8/06. (Boroskey, C.) (Entered: 12/16/2006)
Set Deadlines at hearing on the record on 12/8/06: Discovery due by 1/31/2007,Dispositive Motions due by 2/28/2007. (Boroskey, C.) (Entered: 12/16/2006)
211 TRANSCRIPT of Discovery Hearing held on 12/8/06 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Simpson, T.) (Entered: 12/18/2006)
212 Second MOTION to Amend/Correct Class Certification by Donna C. Richards.Responses due by 1/12/2007 (Moukawsher, Thomas) (Entered:

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 21 of 27

12/22/2006 12/22/2006
12/27/2006 01/05/2007
01/11/2007
01/11/2007 01/11/2007
01/16/2007 01/23/2007 01/23/2007 01/23/2007 01/23/2007 02/02/2007
02/12/2007 02/13/2007 04/17/2007

12/22/2006)
213 Memorandum in Support re 212 Second MOTION to Amend/Correct Class Certification filed by Donna C. Richards. (Attachments: # 1 Exhibit A, October 16, 2006 Ruling on Class Certification)(Moukawsher, Thomas) (Entered: 12/22/2006)
214 REPLY to Response to 198 MOTION to Strike the Rebuttal Report of Victor P. Maiorana filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit A)(Guarraci, Brian) (Entered: 12/22/2006)
215 ANSWER to Amended Complaint with Affirmative Defenses and Special Defenses by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.(Kelly, Erin) (Entered: 12/27/2006)
216 Joint MOTION for Extension of Time until February 2, 2007 for Plaintiff to File Motion to Compel and for Defendants to File Opposition to 212 Second MOTION to Amend/Correct Class Certification by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Guarraci, Brian) (Entered: 01/05/2007)
217 ORDER granting 216 Motion for Extension of Time until February 2, 2007 for Plaintiff to File Motion to Compel and for Defendants to File Opposition to 212 Second MOTION to Amend/Correct Class Certification by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.. SO ORDERED by Judge Janet C. Hall on 1/8/2007. (Sanders, C.) (Entered: 01/11/2007)
218 Reset Deadlines as to 212 Second MOTION to Amend/Correct Class Certification. Responses due by 2/2/2007 (Sanders, C.) (Entered: 01/11/2007)
219 MOTION for Leave to Appear Pro Hac Vice re Attorney David B. Johnson. Filing Fee $25.00. Receipt Number B013494. by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Candee, D.) (Entered: 01/16/2007)
220 ORDER granting 219 Motion to Appear Pro Hac Vice for David B. Johnson. Signed by Clerk on 1/16/07. (Candee, D.) (Entered: 01/16/2007)
221 NOTICE of Appearance by David B. Johnson on behalf of Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan (Johnson, David) (Entered: 01/23/2007)
222 NOTICE of Appearance by Helen Harris on behalf of all defendants (Harris, Helen) (Entered: 01/23/2007)
223 NOTICE of Appearance by Stanley A. Twardy, Jr on behalf of all defendants (Twardy, Stanley) (Entered: 01/23/2007)
224 NOTICE of Appearance by Thomas D. Goldberg on behalf of all defendants (Goldberg, Thomas) (Entered: 01/23/2007)
225 Memorandum in Opposition to Plaintiff's Motion for Second Amended Class Certification re 212 Second MOTION to Amend/Correct Class Certification filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Supplement 1)(Guarraci, Brian) (Entered: 02/02/2007)
226 Joint STIPULATION FOR REFERENCE TO ALTERNATIVE DISPUTE RESOLUTION by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 02/12/2007)
227 SO ORDERED re 226 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. Signed by Judge Janet C. Hall on 2/12/07. (Candee, D.) (Entered: 02/13/2007)
228 Amended STIPULATION re 226 Stipulation for Reference to Alternative Dispute Resolution by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 04/17/2007)

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 22 of 27

04/18/2007 06/27/2007 06/29/2007
07/02/2007
07/02/2007 07/06/2007 07/09/2007 07/09/2007 07/09/2007 09/25/2007
09/27/2007 10/04/2007 11/19/2007

229 ORDER re 228 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. SO ORDERED by Judge Janet C. Hall on 4/18/07. (Klein, V.) (Entered: 04/18/2007)
230 Second STIPULATION Joint Second Amended Stipulation for Reference to Alternative Dispute Resolution by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 06/27/2007)
231 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 7/10/2007 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 06/29/2007)
232 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 7/6/2007 11:30 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203)579−5554 (Klein, V.) Modified on 7/2/2007 (Klein, V.). (Entered: 07/02/2007)
Docket Entry Correction re 232 Calendar Entry,, (MODIFIED TO EDIT TEXT) (Klein, V.) (Entered: 07/02/2007)
236 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 7/6/2007. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 07/09/2007)
233 ORDER re 230 Stipulation filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. SO ORDERED by Judge Janet C. Hall on 7/6/07. (S−Klein, V.) (Entered: 07/09/2007)
234 ORDER terminating 198 Motion to Strike in light of extended stay without prejudice to reclaim after 9/20/07. SO ORDERED by Judge Janet C. Hall on 7/6/07. (Klein, V.) (Entered: 07/09/2007)
235 ORDER terminating 212 Motion to Amend/Correct in light of extended stay without prejudice to reclaim after 9/20/07. SO ORDERED by Judge Janet C. Hall on 7/6/07. (Klein, V.) (Entered: 07/09/2007)
237 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 9/27/2007 12:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 09/25/2007)
238 Minute Entry for proceedings held before Judge Janet C. Hall : Telephone Status Conference held on 9/27/2007. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 10/04/2007)
239 ORDER the stay previously entered (See Doc. No. 227 &233) is extended for the reasons stated on the record 9/27/07, until Novemeber 30, 2007. The parties shall file a status report by November 19, 2007. SO ORDERED by Judge Janet C. Hall on 10/1/07. (Klein, V.) (Entered: 10/04/2007)
240 Joint STATUS REPORT by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Twardy, Stanley) (Entered: 11/19/2007)

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11/20/2007
12/21/2007 12/28/2007 12/28/2007 01/31/2008 02/07/2008 02/07/2008 02/25/2008 02/29/2008 03/03/2008 03/03/2008 03/31/2008 04/01/2008
04/10/2008 04/18/2008
04/23/2008 04/23/2008

241 ORDER re 240 Status Report filed by Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. The case is continued stayed until 12/21/2007, at which time the parties will file a joint status report. SO ORDERED by Judge Janet C. Hall on 11/20/2007. (Sanders, C.) (Entered: 11/20/2007)
242 Second STATUS REPORT Joint by Fleetboston Financial Corp. (Goldberg, Thomas) (Entered: 12/21/2007)
243 ORDER re 242 Status Report filed by Fleetboston Financial Corp. Report noted. As requested, the parties are to file a further report on 1/31/08. SO ORDERED by Judge Janet C. Hall on 12/27/07. (Klein, V.) (Entered: 12/28/2007)
Set Deadlines: Status Report due by 1/31/2008 (Klein, V.) (Entered: 12/28/2007)
244 Joint STATUS REPORT by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Harris, Helen) (Entered: 01/31/2008)
245 ORDER re 244 Third Joint Status Report. The relief requested in paragraph 7 is granted. SO ORDERED by Judge Janet C. Hall on 2/4/08. (Klein, V.) (Entered: 02/07/2008)
Set Deadlines: Status Report due by 2/29/2008 (Klein, V.) (Entered: 02/07/2008)
246 NOTICE of Appearance by Dale James Morgado on behalf of Donna C. Richards (Morgado, Dale) (Entered: 02/25/2008)
247 Fourth STATUS REPORT Joint by Donna C. Richards, Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 02/29/2008)
248 ORDER re 247 Status Report. The case is stayed until March 31, 2008, and the parties are to file a status report by that date. SO ORDERED by Judge Janet C. Hall on 3/2/08. (Klein, V.) (Entered: 03/03/2008)
Set Deadlines: Status Report due by 3/31/2008 (Klein, V.) (Entered: 03/03/2008)
249 Fifth STATUS REPORT by Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Goldberg, Thomas) (Entered: 03/31/2008)
250 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference set for 4/10/2008 10:00 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 04/01/2008)
251 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 4/10/2008. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 04/10/2008)
252 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Status Conference set for 4/23/2008 03:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (DeRubeis, B.) (Entered: 04/18/2008)
253 MOTION for Preliminary Approval of Class Action Settlement Order by Donna C. Richards. (Moukawsher, Thomas) (Entered: 04/23/2008)
254 Memorandum in Support re 253 MOTION for Preliminary Approval of Class Action Settlement Order filed by Donna C. Richards. (Attachments: # 1 Exhibit 1 − Settlement Agreement, # 2 Exhibit 2 − Richards 3.31.06 Ruling, # 3 Exhibit 3 − Richards 7.21.06 Ruling, # 4 Exhibit 4 − Green Affidavit, # 5 Exhibit 5 − Moukawsher Affidavit, # 6 Exhibit 6 − Notice, # 7 Exhibit 7 − Amara 2.15.08 Ruling, # 8 Exhibit 8 − Rust Qualifications, # 9 Exhibit 9 − Mailing Procedures, # 10 Exhibit 10 − Preliminary Approval Order)(Moukawsher, Thomas) (Entered:

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 24 of 27

04/23/2008 04/24/2008 04/25/2008
05/28/2008 05/28/2008 05/28/2008 05/28/2008
06/20/2008 06/23/2008 08/04/2008 08/04/2008 08/06/2008 08/19/2008 08/20/2008 10/01/2008

04/23/2008)
255 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 4/23/2008. 25 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 04/24/2008)
256 PRELIMINARY APPROVAL ORDER granting 253 Motion for Preliminary Approval of Class Action Settlement. Signed by Judge Janet C. Hall on 4/23/08. (Candee, D.) (Entered: 04/25/2008)
257 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Fairness Hearing set for 10/15/2008 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (DeRubeis, B.) (Entered: 04/25/2008)
258 MOTION for Incentive Payment by Donna C. Richards.Responses due by 6/18/2008 (Moukawsher, Thomas) (Entered: 05/28/2008)
259 Memorandum in Support re 258 MOTION for Incentive Payment filed by Donna C. Richards. (Attachments: # 1 Exhibit 1: Richards Declaration, # 2 Exhibit 2: Glass v. UBS, # 3 Exhibit 3: In Re Linerboard Antitrust Litigation)(Moukawsher, Thomas) (Entered: 05/28/2008)
260 MOTION for Attorney Fees and Expenses by Donna C. Richards.Responses due by 6/18/2008 (Moukawsher, Thomas) (Entered: 05/28/2008)
261 Memorandum in Support re 260 MOTION for Attorney Fees and Expenses filed by Donna C. Richards. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42)(Moukawsher, Thomas) (Entered: 05/28/2008)
262 MOTION for Dale James Morgado to Withdraw as Attorney by Donna C. Richards. (Morgado, Dale) (Entered: 06/20/2008)
263 ORDER granting 262 MOTION for Dale James Morgado to Withdraw as Attorney by Donna C. Richards. Attorney Dale James Morgado terminated. SO ORDERED by Judge Janet C. Hall on 6/23/2008. (DeRubeis, B.) (Entered: 06/23/2008)
264 MOTION for Ian O. Smith to Withdraw as Attorney by Donna C. Richards. (Smith, Ian) (Entered: 08/04/2008)
268 RESPONSE re 256 PRELIMINARY APPROVAL ORDER filed by Francis A. Growczwicz. (Candee, D.) (Entered: 09/10/2008)
265 ORDER granting 264 MOTION for Ian O. Smith to Withdraw as Attorney by Donna C. Richards. Attorney Ian O. Smith terminated. SO ORDERED by Judge Janet C. Hall on 8/5/2008. (DeRubeis, B.) (Entered: 08/06/2008)
266 Consent MOTION to Amend/Correct 63 Protective Order by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan.Responses due by 9/9/2008 (Attachments: # 1 Exhibit Amendment To Stipulated Protective Order)(Goldberg, Thomas) (Entered: 08/19/2008)
267 ORDER granting 266 Consent MOTION to Amend/Correct Protective Order by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. SO ORDERED by Judge Janet C. Hall on 8/20/2008. (DeRubeis, B.) (Entered: 08/20/2008)
269 Joint MOTION for Final Approval of Settlement Order by Donna C. Richards, Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit 1: Settlement Agreement, # 2 Exhibit 2: [proposed]

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10/01/2008
10/01/2008 10/02/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/15/2008
10/15/2008 10/15/2008 10/15/2008 12/04/2008
03/13/2009

Final Order and Judgment)(Moukawsher, Thomas) (Entered: 10/01/2008)
270 Memorandum in Support re 269 Joint MOTION for Final Approval of Settlement Order filed by Donna C. Richards. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19)(Moukawsher, Thomas) (Entered: 10/01/2008)
271 RESPONSE re 269 MOTION for Final Approval of Settlement by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan Defendants' Memorandum In Support Of Final Approval. (Attachments: # 1 Exhibit Declaration Of Eric W. Bishop)(Johnson, David) Links Modified on 10/2/2008 (Bauer, J.). (Entered: 10/01/2008)
272 NOTICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan re 271 Response, Certificate of Service (Johnson, David) Text Modified on 10/3/2008 (Bauer, J.). (Entered: 10/02/2008)
273 MOTION to Seal Schedules A and B to Final Order and Judgment by Donna C. Richards. (Attachments: # 1 Notice of Manual Filing)(Moukawsher, Thomas) (Entered: 10/14/2008)
274 NOTICE by Donna C. Richards of Filing Schedules C, D, and E to Final Order and Judgment (Attachments: # 1 Exhibit 1: Schedule C, # 2 Exhibit 2: Schedule D, # 3 Exhibit 3: Schedule E)(Moukawsher, Thomas) (Entered: 10/14/2008)
276 Sealed Document: Schedule A to Final Order and Judgment by Donna C. Richards re 269 Joint MOTION for Final Approval of Settlement Order. (Heard, J.) (Entered: 10/16/2008)
277 Sealed Document: Schedule B to Final Order and Judgment by Donna C. Richards re 269 Joint MOTION for Final Approval of Settlement Order. (Heard, J.) (Entered: 10/16/2008)
275 Minute Entry. Proceedings held before Judge Janet C. Hall: granting 258 Motion for Incentive Payment; granting 260 Motion for Attorney Fees and Expenses; granting 269 Joint Motion for Final Approval of Settlement Order; granting 273 Motion to Seal Schedules A &B to Final Order and Judgment. Fairness Hearing held on 10/15/2008, Total Time: 1 hour and 50 minutes.(Court Reporter T. Fidanza.) (DeRubeis, B.) (Entered: 10/15/2008)
278 ORDER re 260 MOTION for Attorney Fees and Expenses filed by Donna C. Richards. Signed by Judge Janet C. Hall on 10/15/2008. (Heard, J.) (Entered: 10/20/2008)
279 ORDER re 258 MOTION for Incentive Payment filed by Donna C. Richards. Signed by Judge Janet C. Hall on 10/15/2008. (Heard, J.) (Entered: 10/20/2008)
280 FINAL ORDER AND JUDGMENT entered in favor of Donna C. Richards against Bank of America Corp, FleetBoston Financial Pension Plan, Fleetboston Financial Corp. Signed by Judge Janet C. Hall on 10/15/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E). (Heard, J.) (Entered: 10/22/2008)
281 TRANSCRIPT of Proceedings held on October 15, 2008 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. Type of Hearing: Fairness Hearing. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 12/25/2008. Redacted Transcript Deadline set for 1/4/2009. Release of Transcript Restriction set for 3/4/2009. (Fidanza, T.) (Entered: 12/04/2008)
282 Emergency MOTION for Bond by Donna C. Richards. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 part 1, # 4 Exhibit 3 part 2, # 5 Exhibit 3 part 3, # 6

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 26 of 27

03/16/2009 03/16/2009 03/16/2009 03/24/2009 03/24/2009 03/24/2009 03/27/2009
03/30/2009
04/01/2009
04/01/2009 04/02/2009

Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10)(Moukawsher, Thomas) (Entered: 03/13/2009)
283 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 3/16/2009 re 282 Emergency Motion for Bond. Defendants should file their opposition to the Emergency Motion by 3/27/09. A hearing will be held in front of Judge Hall on 4/7/09 at 10:00 am. 35 minutes.(Struck, H.) (Entered: 03/16/2009)
284 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re 282 Emergency Motion for Bond set for 4/7/2009 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Struck, H.) (Entered: 03/16/2009)
Set/Reset Deadlines as to 282 Emergency MOTION for Bond. Responses due by 3/27/2009 (Bauer, J.) (Entered: 03/17/2009)
285 MOTION for Protective Order by Bank of America Corp, FleetBoston Financial Pension Plan.Responses due by 4/14/2009 (Attachments: # 1 Memorandum in Support)(Goldberg, Thomas) (Entered: 03/24/2009)
286 Emergency MOTION to Compel Production and Testimony by Donna C. Richards.Responses due by 4/14/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2)(Moukawsher, Thomas) (Entered: 03/24/2009)
287 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Status Conference held on 3/24/2009 to address the pending emergency motion to compel, motion for protective order and motion for bond. Total Time: 1 hours (Esposito, A.) (Entered: 03/24/2009)
288 Memorandum in Opposition re 282 Emergency MOTION for Bond filed by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit Declaration of Anne E. Rea, # 2 Exhibit Declaration of David Andreasen, # 3 Exhibit #1 to Andreasen Declaration, excerpt from IRS Instructions for Form 5500, # 4 Exhibit #2 to Andreasen Declaration, Trust Accounting System Data Extract, # 5 Exhibit #3 to Andreasen Declaration, PIMCO Collateral Data Sheet, # 6 Exhibit #4 to Andreasen Declaration, excerpt from BAC 2008 Form 10−K)(Twardy, Stanley) (Entered: 03/27/2009)
289 MOTION for Leave to File Supplemental Memorandum Supporting Emergency Motion to Compel by Donna C. Richards. (Attachments: # 1 Exhibit A: Proposed Supplemental Memorandum, # 2 Exhibit 1 to Proposed Supplemental Memorandum, # 3 Exhibit 2 to Proposed Supplemental Memorandum, # 4 Exhibit 3 to Proposed Supplemental Memorandum, # 5 Exhibit 4 to Proposed Supplemental Memorandum, # 6 Exhibit 5 to Proposed Supplemental Memorandum)(Moukawsher, Thomas) (Entered: 03/30/2009)
290 MOTION for Leave to File Excess Pages in Emergency Motion Reply Brief by Donna C. Richards. (Attachments: # 1 Exhibit A Proposed Reply Brief, # 2 Exhibit 1 to Proposed Reply Brief, # 3 Exhibit 2 to Proposed Reply Brief, # 4 Exhibit 3 to Proposed Reply Brief, # 5 Exhibit 4 to Proposed Reply Brief, # 6 Exhibit 5 to Proposed Reply Brief, # 7 Exhibit 6 to Proposed Reply Brief, # 8 Exhibit 7 to Proposed Reply Brief, # 9 Exhibit 8 to Proposed Reply Brief, # 10 Exhibit 9 to Proposed Reply Brief, # 11 Exhibit 10 to Proposed Reply Brief)(Moukawsher, Thomas) (Entered: 04/01/2009)
291 MOTION for Leave to File Response to Plaintiff's Supplemental Memorandum Supporting Emergency Motion to Compel by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan. (Attachments: # 1 Exhibit Defendants' Proposed Response to Plaintiff's Supplemental Memorandum Supporting Emergency Motion to Compel)(Goldberg, Thomas) (Entered: 04/01/2009)
292 ORDER granting 290 Motion for Leave to File Excess Pages; granting 291 Motion for Leave to File Response to Plaintiff's Supplemental Memorandum Supporting

Case: 3:04-cv-01638-JCH As of: 07/17/2010 02:46 PM EDT 27 of 27

04/02/2009 04/07/2009 05/21/2009
11/24/2009 12/02/2009

Emergency Motion To Compel. No further motions for leave to file by any party may be filed. This matter is set for oral argument and any party may raise rebuttal argument there. SO ORDERED by Judge Janet C. Hall on 4/2/2009. (DeRubeis, B.) (Entered: 04/02/2009)
293 REPLY to Response to 282 Emergency MOTION for Bond Leave to File Granted on April 2, 2009 filed by Donna C. Richards. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Moukawsher, Thomas) (Entered: 04/02/2009)
294 Minute Entry. Motion Hearing held on 4/7/2009 before Judge Janet C. Hall: Denying 282 Emergency Motion for Bond for the reasons stated on the record. Denying as moot 285 Motion for Protective Order for the reasons stated on the record. Denying 286 Emergency Motion to Compel Production and Testimony for the reasons stated on the record. Granting 289 Motion for Leave to File Supplemental Memorandum. Total Time: 1 hours and 30 minutes(Court Reporter T. Fidanza.) (Struck, H.) (Entered: 04/07/2009)
295 TRANSCRIPT of Proceedings held on April 7, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 6/11/2009. Redacted Transcript Deadline set for 6/21/2009. Release of Transcript Restriction set for 8/19/2009. (Fidanza, T.) (Entered: 05/21/2009)
296 NOTICE by Bank of America Corp, Fleetboston Financial Corp, FleetBoston Financial Pension Plan, Donna C. Richards Notice of Effective Date of Settlement (Goldberg, Thomas) Modified on 12/2/2009 (Simpson, T.). (Entered: 11/24/2009)
Docket Entry Correction re 296 Notice (Other) MODIFIED TO ADD PLAINTIFF AS A FILER TO THE DOCKET ENTRY (Simpson, T.) (Entered: 12/02/2009)