In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3917, 10-3918, 10-3988 & 10-3989

MICHAEL THOMPSON, et al.,

Plaintiffs-Appellants,

Cross-Appellees,

v.

RETIREMENT PLAN FOR EMPLOYEES OF

S.C. JOHNSON & SON, INC., and

RETIREMENT PLAN FOR EMPLOYEES OF

JOHNSONDIVERSEY, INC.,

Defendants-Appellees,

Cross-Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 07-cv-1047—J.P. Stadtmueller, Judge.

ARGUED MAY 13, 2011—DECIDED JUNE 22, 2011

Before CUDAHY, KANNE and TINDER, Circuit Judges.

CUDAHY, Circuit Judge. The plaintiffs, former members of the S.C. Johnson and JohnsonDiversey cash balance
2 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

pension plans, appeal from an order of the district court

dismissing some of their claims as untimely. They

also appeal from the district court’s method for calculating the plaintiffs’ recovery. The Plan defendants

cross-appeal, contending that all the plaintiffs’ claims

are untimely, and also taking issue with the district

court’s damages calculation method. For the reasons

that follow, we affirm the district court in most respects

but reverse in part and remand for it to reconsider the

method of damages calculation.

I. Background

A. Facts

In 1998 S.C. Johnson & Son amended its ERISA plan,

converting it from a traditional defined benefit plan into

a “cash balance” plan. Cash balance plans are formally

classified as defined benefit plans, but they function

more like defined contribution plans, in particular by

providing an account balance for each participant. But

a cash balance plan participant’s balance is only a “notional” tool for estimating pension benefits—not an

actual account containing money.

As amended, the S.C. Johnson Plan provided that

each participant’s notional account balance would be

increased by annual “interest credits.” The Plan calculated interest at the greater of 4%, or 75% of the

Plan’s rate of return on its investments. Further, the

Plan provided that, if a participant left the Plan before

reaching age 65, the participant could take a lump-sum
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 3

I.R.C. § 417(e)(3)(A)(ii)(II) (2000). This statutory prescription 1

was in effect from 1994 to 2006. Prior to 1994, the federal Pension

Benefit Guaranty Corporation set the appropriate discount rate.

See Tax Reform Act of 1986, Pub. L. No. 99-514, § 1139(b), 100

(continued...)

distribution of the value of the account. However, the

provisions of the Plan ensured that any lump-sum distribution would be only the current account balance.

No upward adjustment would be made for the future

interest credits the participant would earn by staying in

the Plan.

The ERISA statute has something to say about early

lump-sum distributions: they must be the “actuarial

equivalent” of the value of the account at age 65. 29

U.S.C. § 1054(c)(3); see Berger v. Xerox Corp. Ret. Income

Guar. Plan, 338 F.3d 755, 759 (7th Cir. 2003). The drafters

of the present Plans were obviously aware of this rule,

because they included § 5.2, which states:

The Cash Balance Account is the Actuarial Equivalent

of the projected annuity at normal retirement

because the Plan deems the return on 30 year Treasuries to be the reasonable rate of return to assume

for purposes of that projection . . . .

This section created a wash calculation designed to

add zero interest to lump-sum distributions. This is

because during the relevant period ERISA prescribed

that, when calculating the present value of lump-sum

distributions, plans should use the 30-year Treasury rate

as the discount rate. So if a participant was leaving at 1
4 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

(...continued) 1

Stat. 2085, 2487 (1986). Effective in 2007, this entire calculation

was no longer required because Congress sanctioned lump-sum

distributions at no more than the cash balance account value. See

Pension Protection Act of 2006, Pub. L. No. 109-280, § 701(a)(2),

120 Stat. 780, 920, 984 (2006).

There are actually two Plan defendants (and two Plans) here:

2

The S.C. Johnson Plan, and the JohnsonDiversey Plan. The

JohnsonDiversey Plan split from the S.C. Johnson Plan effective January 1, 1999—seven months after the transition to a

(continued...)

age 40, the Plan would calculate interest out to age 65

at the 30-year Treasury rate, as prescribed in § 5.2 of the

Plan—then discount it back to age 40 at the exact same

rate, as prescribed by the statute. The participant

would therefore receive as a net amount only his

current account balance (without future interest).

This provision was concededly unlawful. The 30-year

Treasury rate, despite the Plan’s ipse dixit, did not

produce the “actuarial equivalent” of what the Plan

provided to ongoing participants—interest calculated

at the greater of 4% or 75% of the Plan’s rate of return.

The Plans effectively penalized lump-sum distributees

by voiding their future interest credits, and this violated

ERISA. See Berger, 338 F.3d at 761; Esden v. Bank of

Boston, 229 F.3d 154, 168 (2d Cir. 2000).

B. Procedural History

The plaintiffs, participants in the S.C. Johnson Plan2
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 5

(...continued) 2

cash balance plan. The relevant provisions of the two plans

are substantively identical. Dates relevant to the statute of

limitations are different, but insignificantly so. To avoid

repetition, we refer throughout to the dates that apply to the

S.C. Johnson Plan. This opinion applies to all parties and

resolves the entire appeal.

who received lump-sum distributions, filed this suit

in the Eastern District of Wisconsin on November 27,

2007. The Plan defendants moved to dismiss on the

ground that the plaintiffs had not exhausted the

internal Plan remedies, but the district court denied the

motion in November of 2008. Sometime thereafter, the

Plans conceded the unlawfulness of the lump-sum provisions.

The parties filed cross-motions for summary judgment. The Plan defendants argued inter alia that the plaintiffs’ claims were time-barred. In March of 2010, the

district court partially resolved the summary judgment

motions. At the outset, the court held that the applicable

statute of limitations was Wisconsin’s six-year contract limitations period. Wis. Stat. § 893.43.

Next, the court had to determine when the plaintiffs’

claims accrued, a determination governed by federal

law. See Young v. Verizon’s Bell Atl. Cash Balance Plan,

615 F.3d 808, 816 (7th Cir. 2010). The court was faced

with three possible accrual dates. First, it could hold

that the claims accrued in 1998 or 1999, when the Plans

distributed to participants SPDs and other informa-
6 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

tional material about the new cash balance Plan. Second,

the court could hold that the claims accrued at the time

the plaintiffs received their deficient lump-sum distributions. Third, it could hold that even the receipt of the

lump-sum distributions did not start the limitations

period, and so the plaintiffs’ claims accrued at some later,

unspecified time. Wisely, the court had divided the

plaintiffs into two subclasses: subclass A, plaintiffs

who had received their lump-sum distributions after

November 27, 2001 (six years prior to filing suit), and

subclass B, plaintiffs who had received their

lump-sum distributions before November 27, 2001. The

court held that the claims accrued when the plaintiffs

received their lump-sum distributions; therefore, the

subclass A plaintiffs were timely and the subclass B

plaintiffs were untimely.

Since the Plan had admitted its wash calculation was

unlawful, the court next had to consider subclass A’s

recovery. The subclass A plaintiffs were entitled to the

value, at the time of their lump-sum distributions, of

future interest payments of 4% or 75% of the Plan’s investment return rate. Of course, there is no formula to

capture that value conclusively since there is no way

of knowing ex ante what the Plan’s annual investment returns will be.

Both the plaintiffs and the Plan defendants asked

for summary judgment in favor of their proposed

method of calculating the wrongly deprived future

interest credits. But the district court did not select a

method. Instead, it “order[ed] that [the Plans] recalculate

lump sum distributions pursuant to the requirements
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 7

The parties have supplied detailed briefing on several 3

methods of calculating future interest credits, but our

holding makes it unnecessary to discuss them in depth.

Conkright v. Frommert, 130 S. Ct. 1640 (2010). 4

of the law.” The court further provided that if the

parties “are unable to reach an agreement . . . they

remain free to resubmit the issue to the court . . . .” The

court relied on Durand v. Hanover Ins. Group, Inc., 560

F.3d 436, 442 (6th Cir. 2009), as authority for delegating

the recovery issue to the parties.

Unsurprisingly, the parties could not agree on a

method of calculating future interest credits. The district

court received further briefing on how to calculate the

recovery, and issued an order resolving the matter in 3

August of 2010. In so doing, the court credited the

Plan defendants’ contention that they were entitled to

deference in choosing the appropriate method. The

court stated in relevant part, “[t]he court believes that

Conkright supports referral of the interest crediting [4]

rate question to the Plans and compels a grant of

deference to the Plans’ proposed method for recalculating lump sum distributions.” Then, the court selected

a modified version of the Plan defendants’ second proposed method, which provided that future interest

should be calculated by using the Plans’ average return

rate over the five years leading up to each participant’s

lump-sum distribution.

The plaintiffs timely appealed, and the Plans timely

cross-appealed. We perceive the questions presented in

this appeal to be as follows:
8 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

1) Timeliness

a) Did the plaintiffs’ injuries accrue when the

Plan circulated information about the conversion to a cash balance plan in 1998 and 1999?

b) If not, did the plaintiffs’ injuries accrue

when they received lump-sum distributions

affected by the unlawful Plan provision?

2) The Plaintiffs’ Recovery

a) Should the district court determine how future

interest credits should be valued for purposes

of determining subclass A’s recovery, or

should the parties? 

b) Is the Plan defendants’ proposed method of

calculating future interest credits entitled to

deference?

c) How should the plaintiffs’ future interest

credits be calculated?

II. Analysis

A. Statute of Limitations

Neither party is completely satisfied with the district

court’s statute of limitations ruling. The Plan defendants

argue that the court was correct to rule that subclass B

was untimely, since their lump-sum distributions

occurred over six years before they filed their complaint.

But the Plans would have us go farther and find

subclass A untimely as well, because they believe all
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 9

Our accrual analysis differs from the district court’s because 5

the district court relied on language that derives from cases

considering violations of ERISA § 510, “Interference with

protected rights.” See Tolle v. Carroll Touch, Inc., 977 F.2d 1129,

1139 (7th Cir. 1992). The reason we formulated an independent

accrual framework for § 510 claims in Tolle was precisely

because we believed that the considerations underlying

accrual in cases brought under § 502(a) (like the present case)

were distinguishable. We do not hold that the Tolle analysis

is inapplicable, but we prefer to decide this case in reliance

on accrual precedents specific to § 502(a).

participants were informed of the relevant Plan provisions in 1999 (and the lawsuit was filed after 2005). The

plaintiffs argue that the court was correct to rule that

subclass A was timely, and that subclass B should

also have been treated as timely because the lump-sum

distributions did not start the statute of limitations clock.

As the district court appreciated, accrual of ERISA

claims is governed by federal law, although the statute

of limitations itself is borrowed from state law. See

Young, 615 F.3d at 816. We have held that “[t]he

general federal common law rule is that an ERISA claim

accrues when the plaintiff knows or should know of

conduct that interferes with the plaintiff’s ERISA rights.”

Id. at 817. Further, “a claim to recover benefits under

§ 502(a) accrues ‘upon a clear and unequivocal repudiation of rights under the pension plan which has been

made known to the beneficiary.’ ” Id. (quoting Daill v.

Sheet Metal Workers’ Local 73 Pension Fund, 100 F.3d 62,

65 (7th Cir. 1996)).5
10 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

We affirm the district court’s rulings on the statute

of limitations questions. Although it is a very close question, we disagree with the Plan defendants that certain

SPDs and informational material distributed to Plan

participants in 1998 and 1999 amounted to an “unequivocal

repudiation” sufficient to trigger the statute of limitations.

The record contains several Plan informational communications circulated around 1999 that touch on

lump-sum distributions. The 1999 SPD stated, “[y]ou can

choose from several payment options including a lump

sum payment and several types of . . . annuities. You can

also choose to leave your money in the plan and continue

to earn investment credits.” The SPD then described

the lump-sum payment option as follows: “[t]he entire

value of your account is paid in one payment. No

further pension benefit will be available from the Company.” It later stated, “[y]ou can . . . choose to leave

your money in your retirement account after you leave

the Company up until age 65. Each year, your Cash

Balance Account will receive an investment credit.”

We think that these SPD statements were inadequate

to convey the crucial defect in the Plans: that early

lump-sum distributions would not be increased to

reflect the present value of future interest credits continuing to age 65. True, the 1999 SPD told participants

that they would not earn investment credits if they left

the Plan. But that would have been true even with a

properly-functioning plan, because such a plan would

incorporate the projected value of future interest payments into the lump sum and then discontinue those

interest payments. And stating that “[t]he entire value
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 11

of your account [will be] paid in one payment” does not

elucidate how that value is decided.

The Plans’ “Investing in You” newsletters also touched

on lump-sum distributions, although like the SPDs they

usually left considerable room for uncertainty. For instance, the statement that participants could think of

their cash balance account as “much like a savings account” could be read to suggest that lump-sum distributions would be in the amount of the account balance

only. But this was a generic comparison to illustrate the

difference between the company’s traditional pension

plan and the new cash balance plan. There was no explanation of how far the analogy carried, and a participant

obviously would have been incorrect to assume that the

cash balance plan was like a bank account in every respect. It is true that several “Investing in You” newsletters

stated that a lump-sum distribution would be in

the amount of the cash balance account. We conclude,

although not without some difficulty, that this too

was inadequate to initiate the limitations period, if only

because these newsletters were obviously meant to be

a simplified explanation of a transition from one complicated plan structure to another. In the context in which

it appeared, this incidental statement would not likely

alert a participant that he was being deprived of something to which he might be entitled. We do not assume

that a participant would have understood it to have

a legal effect or to mean that the terms of the Plan

itself unlawfully omitted the obscure future interest

right. And a participant familiar with the right to

future interest might still assume that the future in-
12 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

In that case, the plan unequivocally repudiated a guarantee 6

of no-cost medical benefits by a statement in the SPD that

after a certain trust was depleted, “monthly premium contributions from retirees will be required.” Id.

See, e.g., Carey v. IBEW Local 363 Pension Plan, 201 F.3d 44, 46 7

(2d Cir. 1999) (pension plan unequivocally repudiated Carey’s

benefits with letter stating “you lost all your pension services

credits due to the fact that you incurred a break in service

prior to being vested.”); Daill v. Sheet Metal Workers’ Local 73

Pension Fund, 100 F.3d 62, 66 (7th Cir. 1996) (Union unequivocally repudiated Daill’s § 502(a)(1) claim for a pension when,

in “[a] three-page letter, the fund carefully and comprehensively explained the basis for its decision” that Daill was ‘not

entitled to a pension from Local 73.’ ”).

terest credits would somehow be incorporated in the

account balance.

In all, we think these SPD and newsletter statements are

a collection of hints. They are assembled in one place

for purposes of this litigation, but from the perspective

of Plan participants they appeared among the pages of

various circulations distributed over the course of

months. Although it is certainly possible that generic

Plan communications can prospectively repudiate unequivocally participant rights, see, e.g., Winnett v. Caterpillar, Inc., 609 F.3d 404, 410 (6th Cir. 2010), we note 6

that the more traditional case in which recovery is

barred involves some direct communication to a participant who is actually pressing the issue. In the present

7

case, given the relative obscurity of the right at issue, the

fact that most of the Plans’ references to lump-sum distri-
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 13

butions offered only oblique guidance about the crucial

flaw at issue here, and the fact that the most illuminating

statements were found in informal Plan newsletters

as opposed to the more legally weighty SPDs, we think

that there has been no clear and unequivocal repudiation

of the participants’ rights to future interest credits

under ERISA. Accordingly, the district court properly

held that the statute of limitations period did not begin

in 1998 or 1999.

We further agree with the district court that when the

participants received their lump-sum distributions, this

served as an unequivocal repudiation of any entitlement

to benefits beyond the account balance. As noted

above, informational circulars confirmed that after a

lump-sum distribution, no additional benefits would

be forthcoming. Given that the distributions were calculated consistent with the Plan document and every

Plan communication, the lump-sum distributions served

as the final step of a clear repudiation of the participants’

entitlement to anything different.

We specifically reject the plaintiffs’ argument, in support of the thesis that the lump-sum distributions did not

start the running of the statute of limitations, that they

could not have understood their injury without seeing

the full Plan document. Contrary to the plaintiffs’ argument, the Plan defendants did not improperly conceal

the wash calculation in the Plan document; they never

mentioned it to the participants because it was designed

to have no effect. Moreover, the plaintiffs did not need to

see the wash calculation language in the Plan to under-
14 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

Here, we must pause to address an argument by the plain- 8

tiffs that surfaced for the first time at oral argument. We

discuss it in the interest of getting the law right. The plaintiffs referred to Walker v. Monsanto Co. Pension Plan, 614 F.3d

415 (7th Cir. 2010), for the proposition that the right to future

interest credits derives from the ERISA plan, and not from

the ERISA statute. Thus, the plaintiffs argue, they needed to

see the Plan document to know that they had been injured.

We will not recount the complex and entirely distinguishable

facts of Walker, because it does not say what the plaintiffs

contend. The present plaintiffs did not need to reference the

Plan to understand their injury; they needed to reference

the ERISA statute and law interpreting it. Those sources may

be obscure, but that will not be held against the defendants.

stand that they had received their account balance and

nothing more. Beginning in 2003 the denial of future

interest credits was unlawful under squarely applicable

precedent from this court. See Berger, 338 F.3d at 763.8

The plaintiffs point to this court’s 2010 opinion in

Young for the proposition that a lump-sum distribution

does not start the statute of limitations clock. In Young,

we stated,

Verizon argues that Young’s claim accrued . . . when

she received her lump-sum benefit . . . . At that time,

however, the parties’ dispute over the correct interpretation of the Plan had not developed. And

nothing suggests that the $286,095 payment that

Young received should have been a red flag that she

was underpaid. . . . The 1998 payment that Young

received was not so inconsistent with her current
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 15

claim for additional benefits as to serve as a clear

repudiation.

Young, 615 F.3d at 816. But Young does not control this

case for two reasons.

First, the right that the lump-sum distribution needed

to “clearly repudiate” was very different in Young. In

that case, the trustees were ignoring a scrivener’s error

in the Plan document and distributing lump sums that

were smaller than the Plan literally prescribed. Id. at 814.

Thus, the lump-sum distribution did not place Young

on notice that the Plan was ignoring one factor in a complex formula in the plan document. Here, in contrast,

the lump-sum distribution merely needed to show that

participants would receive their account balance and

no more. That simple fact is what made the Plans unlawful.

The second reason Young is not controlling is that

unlike the present plaintiffs, the plaintiff in Young exhausted the plan’s internal remedies. Id. at 814. She

thereby furnished an alternative accrual date: the date

the plan finally denied her claim. Young persuaded us

that that her lump-sum distribution did not alert her to

her injury (for the reasons detailed above), so we gave

her the benefit of the later accrual date. Id. at 816. In view

of those facts, the present plaintiffs are not really asking

to be treated like the Young plaintiff at all. They have

been given a pass on exhausting their internal remedies,

and they now invite us to extend Young by allowing
16 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

Or at least, the plaintiffs would like us to apply an accrual 9

date that presupposes that the injury was somehow concealed

from them. We have rejected the plaintiffs’ theory that any

such concealment has occurred.

them to slip by with no accrual date. We will not 9

thereby approve nullification of the statute of limitations. Hence, we reject both the plaintiffs’ and the defendants’ objections to the district court’s conclusions on

the limitations issue.

B. Who Chooses the Method of Calculating

Subclass A’s Recovery

The Plan defendants argue that they are entitled to

select the means of calculating subclass A’s recovery.

They point to a host of cases supporting the notion that

ERISA fiduciaries are entitled to deference in their administration of the plan. In particular, they cite Conkright

v. Frommert, 130 S. Ct. 1640 (2010), for the proposition

that their interpretations of the Plan are entitled to a

deference that survives despite an initial impermissible

interpretation. Briefly, in Conkright the Supreme Court

reiterated the policy, most prominently articulated in

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), of

deferring to Plan fiduciaries when they are interpreting

Plan terms. The Court clarified that ERISA fiduciaries

are not stripped of deference because of an initial

improper interpretation; they do not labor under a

“one-strike-and-you’re-out” regime. Id. at 1646. Accordingly, the Plan defendants argue, the district court
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 17

should have selected their first proposal (the “spread

method”), and alternatively, should not have modified

their second method (the “five-year average”) before

adopting it.

We do not credit the defendants’ argument that they

are owed deference here, because they did not make a

discretionary decision entitled to deference, and indeed

they could not have. The reliance on Conkright is inapt

because the issue here is not interpretation, and “Firestone

is limited to questions of plan interpretation . . . .” Fletcher

v. Kroger Co., 942 F.2d 1137, 1139 (7th Cir. 1991). The

doctrine “does not bring design decisions within ERISA.”

Belade v. ITT Corp., 909 F.2d 736, 738 (2d Cir. 1990); see

also Rasenack v. AIG Life Ins. Co., 585 F.3d 1311, 1315

(10th Cir. 2009) (“Under trust principles, a deferential

standard of review is appropriate when trustees actually

exercise a discretionary power ‘vested in them by the

instrument under which they act.’ ”) (citation omitted).

Here, the Plan documents made a general grant

of discretion to the Plan administrators in § 11.3, but

did not give them discretion to amend the Plan terms;

the power to amend was reserved by the company in

§ 14.1. Cf. Brumm v. Bert Bell NFL Retirement Plan, 995

F.2d 1433, 1437 (8th Cir. 1993) (describing a plan that

gave the administrators “discretionary power ‘to define

and amend the terms of the Plan and Trust . . . .’ ”). Moreover, the Plans’ generalized grant of interpretive discretion did not authorize the administrators to controvert

the clear terms of the Plan. See Marrs v. Motorola, Inc., 577

F.3d 783, 786 (7th Cir. 2009) (“The administrator is not by

virtue of such a grant of authority free to disregard unam-
18 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

In fact, the record contains several Plan documents, because 10

there are two Plan defendants and because there were revisions over the course of the class period. We have reviewed

the Plan documents thoroughly in connection with this discussion. The language of the relevant provisions evolved

over the relevant period, but not in a way that injected an

opportunity for interpretation of the appropriate lumpsum distribution value. Indeed, it seems that the unlawful

policy actually became more explicit over time.

biguous language in the plan . . . .”); Call v. Ameritech

Mgmt. Pension Plan, 475 F.3d 816, 822-23 (7th Cir. 2007)

(“[U]nambiguous terms of a pension plan leave no room

for the exercise of interpretive discretion by the plan’s

administrator . . . .”); Cozzie v. Metropolitan Life Ins. Co.,

140 F.3d 1104, 1108 (7th Cir. 1998) (“[E]ven [given a broad

grant of discretion], the [administrator] is bound by the

terms of the document. Interpretation and modification

are different; the power to do the first does not imply

the power to do the second.”).

These Plans did not give the administrators any discretion in how to calculate future interest for lump-sum

distributees because the unlawful “wash” calculation

was effectively codified in the Plans. Section 5.2 10

declared (incorrectly) that the cash balance account

value equaled the “actuarial equivalent” of the value

at age 65. And under § 5.5(e), that “actuarial equivalent”

was to be the amount of any lump-sum distribution.

To further drive the point home, the Plan “deemed”

the 30-year treasury rate to be “the reasonable rate of

return . . . for purposes of [the actuarial equivalency]

projection.” § 5.2 (emphasis added). And the defini-
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 19

See also 29 U.S.C. § 1104(a)(1)(D) (requiring plan fiduciaries 11

to manage the plan “in accordance with the documents and

instruments governing the plan . . . .”).

See Berger, 338 F.3d at 762; see also West v. AK Steel Corp. Ret. 12

Accumulation Pension Plan, 484 F.3d 395, 410 (6th Cir. 2007);

Esden, 229 F.3d at 168-69.

A “frontloaded interest credit plan” is simply a cash balance 13

plan that pays the participant interest for the period between

leaving the plan and age 65. A cash balance plan must be

frontloaded to be tax-qualified. See Berger, 338 F.3d at 762.

tions section, § 2.1, also defined the “actuarial equivalent”

by reference to the 30-year treasury, and linked this

value to the lump-sum distribution amount. Thus, projecting future interest credits with a different rate

would have been an abandonment, not an interpretation, of the Plans’ terms. Such a projection would presumably have violated § 11.2 of the Plan, which forbade

the plan administrator from adopting rules “contrary

to the specific provisions of the Plan.” Accordingly, 11

Plan defendants applied the wash calculation ministerially.

The Plan’s prescriptive approach to calculating

lump-sum future interest credits, although now likely

regretted, was consistent with a controlling IRS regulation. IRS Notice 96-8, the authority of which we have

recognized, specifically requires (1) that a cash balance 12

plan dictate a projection method; and (2) that the prescribed method must not allow discretion. The Notice

states in relevant part,

A frontloaded interest credit plan that specifies [13]

a variable outside index for use in determining the
20 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

I.R.C. § 401 sets forth the basic prerequisites to enjoy the 14

preferential tax treatment the Code provides for retirement

plans. Thus, a plan that fails to “comply with Section 401(a)(25)”

would, for all practical purposes, fail altogether.

In this connection, we must reject as too clever by half the 15

Plan defendants’ argument that they should be allowed the

discretion to adopt a new method that does not permit discre-

(continued...)

amount of interest credits must prescribe the method

for reflecting future interest credits in the calculation of

an employee’s accrued benefit. In order to comply

with [I.R.C.] section 401(a)(25), the method, including

actuarial assumptions, if applicable, must preclude

employer discretion.

IRS Notice 96-8, “Cash Balance Pension Plans,” 1996-1 C.B.

359 (Feb. 5, 1996) (emphasis added). These restrictions

allow a cash balance plan to comply with the requirement in I.R.C. § 401(a)(25) that plan benefits be 14

“definitely determinable.” Esden, 229 F.3d at 166.

In sum, the Plan defendants did not exercise interpretive discretion over the projection rate for calculating

future interest credits. Nor did the Plan terms permit

such interpretation. Therefore, this is not case about

the fiduciaries’ construal of the Plan, and the

Supreme Court’s Firestone and Conkright decisions

have little authoritative to say. Especially given the IRS

Notice, we are loath to convert this into a matter of Plan

discretion for the first time in connection with calculating damages for participants who have long since

left the Plans. In hindsight, it seems that the defendants 15
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 21

(...continued) 15

tion in its application. Formally, the interest crediting method

must be prescribed in the plan, and the only persons who

can amend these Plans are the employers—precisely the

persons forbidden from exercising discretion in Notice 96-8.

Technicalities aside, the defendants’ proposed distinction

between discretion in formula selection and formula application is illusory in this scenario, because the recovery calculation method will only be used one time. The defendants are

asking to control the only calculation that matters. We think

that conferring on the Plan defendants the discretion to

devise the entire formula ex post would miss the point of the

IRS Notice, and I.R.C. § 401(a)(25). See also Treas. Reg. 1.411(d)-4,

Q&A-4, Q&A-5 & Q&A-7.

had no way to escape being accountable for the

unlawful wash calculation once it was codified in the

Plans (other than perhaps procuring an amendment of

the Plan terms from the employer). This was an unfortunate predicament for the Plan defendants, but that does

not mean they are now entitled to deference in calculating the plaintiffs’ post-hoc recovery.

Someone, however, must choose a method for making

the inherently uncertain estimate this case requires.

As no ERISA-specific exception applies, the district court

should assume its accustomed responsibility for calculating the plaintiffs’ recovery. That has been the prevailing practice in comparable cases. See Esden, 229 F.3d

at 177 (“It shall be for the district court in the first

instance to determine the proper projection rate for the

calculation of damages . . . .”); West v. AK Steel Corp.

Ret. Accumulation Pension Plan, No. 1:02-cv-0001, 2005 U.S.
22 Nos. 10-3917, 10-3918, 10-3988 & 10-3989

The Plan defendants urge that this court’s Berger decision 16

supports their belief that their calculation method is entitled

to deference. The reality is quite the opposite, since the

district court rejected that argument and was affirmed on

appeal. Since the Berger defendants apparently did not raise

the deference issue on appeal, we did not opine on it. So Berger

either offers the defendants no support or undermines their

position.

Dist. LEXIS 37863, at *5-6 (S.D. Ohio Dec. 19, 2005) (“While

the financial impact is evident and not trivial, the Court

again rejects Defendants’ argument that the 30-year

Treasury rate should be used.”), aff’d, 484 F.3d 395 (6th

Cir. 2007); Berger v. Xerox Ret. Income Guar. Plan, 231

F. Supp. 2d 804, 820 (S.D. Ill. 2002) (“As to Defendants’

contention that the Court should refer this case to the . . .

administrator to determine the proper rates for calculating benefits for . . . participants, the Court rejects this

position.”), aff’d as modified, 338 F.3d 755 (7th Cir. 2003) ;

16

Lyons v. Georgia-Pacific Corp. Salaried Emples. Ret. Plan,

196 F. Supp. 2d 1260, 1266 (N.D. Ga. 2002) (“[B]ased on

the Eleventh Circuit’s opinion [in the same litigation] . . . the court concludes that [a specified rate] is the

appropriate interest crediting rate.”); but see Durand, 560

F.3d at 442 (stating that the district court on remand “could

simply award injunctive relief that requires [the Plan

defendant], in the first instance, to do what the law requires.”). The Plans are undoubtedly correct that determining how to measure future interest presents special

challenges, but estimating damages is often a speculative, counterfactual inquiry. The district court is practiced in this discipline and is equal to the task in this case.
Nos. 10-3917, 10-3918, 10-3988 & 10-3989 23

This is not to say that we perceive any problem with the 17

five-year average methodology the district court adopted. It

seems a great deal more administrable than the plaintiffs’

probabilistic “stochastic” method, and more closely tied to

the Plans’ actual interest crediting method (which is based on

investment returns) than is the defendants’ interest rate-based

“spread” method. Although we do not decide the question,

we note that Treasury “safe harbor” regulations and several

precedents support the use of such an average. See Treas.

Reg. 1.401(a)(4)-8(c)(3)(v)(B); Berger, 338 F.3d at 760; Esden,

229 F.3d at 170.

We assume that the proceedings on remand need not be 18

lengthy or burdensome since the district court has already

received extensive briefing on possible future interest crediting

methods. The district court simply needs to select an interest

crediting method with the understanding that it is in charge

of the decision.

6-22-11

C. Method of Calculating

Future Interest Credits on Remand

In view of the above conclusions, we believe the best

procedure is to reverse the district court to the extent

that it held that some deference was owed to the

Plan defendants’ preferred calculation method. We

cannot be certain that this belief did not inform the

court’s selection of the “five-year average” approach.

After all, this methodology originated with the Plan

defendants.17

For the foregoing reasons, we AFFIRM in part, REVERSE

in part and REMAND for proceedings consistent with 18

this opinion.