Opinion
00 Civ. 9660 (LAP)
March 14, 2003
MEMORANDUM AND ORDER
Plaintiff Sheila Brody brings this Amended Complaint (hereafter, "Complaint" or "Compl.") against defendants Enhance Reinsurance Company Pension Plan and Enhance Reinsurance Company (collectively, "Enhance" or "Defendants") for violations of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Before this Court now are plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment, both pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the foregoing reasons, plaintiff's motion is denied, and defendants' motion is granted in part and denied in part. In addition, plaintiff's motion to strike is denied.
BACKGROUND
Plaintiff was born on July 20, 1937. (Plaintiff's Local Rule 56.1 Statement of Uncontroverted Material Facts, hereafter "Pl's 56.1," at ¶ 1; Defendants' Statement Pursuant to Local Civil Rule 56.1, hereafter "Def's 56.1," at ¶ 1). Plaintiff was employed by Merrill Lynch from May 26, 1981 to March 13, 1987. (Affidavit of Somesha Ferdinand, hereafter "Ferdinand Aff.," at DX 28 at ENH 818). Thereafter, she was employed by Enhance beginning on March 30, 1987 until she retired on December 31, 1998. (Ferdinand Aff. DX 44 at ENH 164; Def's 56.1 ¶ 1). Enhance's current pension plan (the "Pension Plan" or "Plan") defines "Years of Service" to include "Years of service completed . . . after July 1, 1980 with Merrill Lynch." (Ferdinand Aff. DX 39 at ENH 946). Therefore, for purposes of determining plaintiff's Years of Service under the Plan, Enhance credits her years of employment at Merrill Lynch. (Defendant's Local Rule 56.1 Response and Counterstatement of Disputed Material Facts, hereafter "defendants' Counterstatement," at 2).
The Pension Plan was adopted with an effective date of November 1, 1986 (Affidavit of Robert Guarnera, hereafter "Guarnera Aff.," at ¶ 5). Each Plan year runs from November 1 to October 31. (Id.). As adopted in 1986, the Plan provided for a benefit formula of 40% of a Plan participant's compensation less two-thirds of such participant's primary Social Security benefit. (Def's 56.1 ¶ 13). The Plan also defined "Normal Retirement Age" as the later of age 55 or completion of ten Years of Service, as defined in the Plan. (Def's 56.1 ¶ 14).
On October 22, 1986, the Tax Reform Act of 1986 (Public Law 99-514) (hereafter, "TRA '86,") was enacted. (Def's 56.1 ¶ 15). TRA '86 made extensive changes affecting employee pension plans, including amendments to the rules on non-discrimination and Social Security integration. (Def's 56.1 ¶ 16). As a result, plan sponsors were required to bring their pension plans into compliance with TRA '86 by the first day of a plan's 1989 Plan Year. (Def's 56.1 ¶ 17).
In Plaintiff's Local Rule 56.1 Counter-Statement of Material Facts in Opposition to Defendants' Cross-Motion for Summary Judgment (hereafter, "plaintiff's Counterstatement"), plaintiff denies this assertion contained in defendants' Rule 56.1 Statement. Contrary to Local Civil Rule 56.1(d), plaintiff does not provide any basis for the denial other than the broad general denial that served as an introduction to plaintiff's laundry list of denials and admissions in response to defendants' Rule 56.1 Statement. For example, plaintiff both admits and denies ¶ 40 of defendants' Rule 56.1 statement. To the extent this Court can ascertain readily the implied basis for plaintiff's denial, this Court will do so. However, where the denial appears entirely unfounded — here, plaintiff has denied the date a public law was enacted — this Court will accept the facts as put forth by defendants in their Rule 56.1 Statement as required by Local Civil Rule 56.1.
On December 27, 1988, the IRS issued Notice 88-131 containing Model Amendments 1, 2 and 3 that permitted plan sponsors to suspend, or "freeze," all future accruals from the first day of a plan's 1989 plan year until the last day of the 1989 plan year to give them time to comply with TRA '86. (Def's 56.1 ¶ 20). On June 22, 1989, the Board of Directors of Enhance adopted Model Amendment 3. (Def's 56.1 ¶ 23).
On December 11, 1989, the IRS issued Revenue Procedure 89-65 extending the suspension ("freeze") period afforded to plans by IRS Notice 88-131 until the last day of the 1991 Plan Year. (Def's 56.1 ¶ 25). On November 30, 1990, the IRS published Notice 90-73, further extending the suspension period to the last day of the 1992 Plan Year. (Def's 56.1 ¶ 27).
1. Enhance's 1991 Amendment
During 1989, Enhance requested that its pension plan consultant, Pension Designs Incorporated ("PDI"), recommend changes to Enhance's existing Plan that would bring it into conformity with TRA '86. (Def's 56.1 ¶ 29). On January 3, 1990, Robert Guarnera of PDI wrote to Daniel Gross, President of Enhance, and proposed certain changes to Enhance's Plan to comply with TRA '86. These changes included a change to the benefit formula and a change to the definition of "Normal Retirement Age" and would be effective as of the first day of Enhance's 1989 Plan Year, November 1, 1989 (Def's 56.1 ¶ 30). The benefit formula proposed by PDI would replace the old formula — 40% of Compensation less two-thirds of primary Social Security benefit — with a formula of 2.6% of Compensation times Years of Service up to 25 years. (Def's 56.1 ¶ 32). The definition of "Normal Retirement Age" was changed from the later of age 55 or 10 Years of Service to the later of age 60 or 10 Years of Participation, as those terms were defined in the Plan. (Def's 56.1 ¶ 33).
This formula of reducing employees' benefits by the amount of their Social Security benefit is also referred to as the "Social Security offset."
Upon calculating the benefits for each of Enhance's Plan participants, PDI informed Enhance in its January 3, 1990 letter that the changes PDI was proposing would result in increased pension benefits at normal retirement for all Plan participants except for plaintiff. (Def's 56.1 ¶ 34). After receiving PDI's letter of January 3, 1990, Enhance approved the changes to the Plan proposed by PDI. (Def's 56.1 ¶ 35). Daniel Gross then informed plaintiff of the projected shortfall in her benefits and promised that they would "do something about that." (Def's 56.1 ¶ 36).
On April 25, 1990, PDI prepared an Actuarial Report for Enhance for the Plan Year beginning November 1, 1989. (Def's 56.1 ¶ 37). In calculating the Accrued Benefits as of November 1, 1989 for each of the Plan participants, PDI used a "greater of" (also known as a "wear-away") method. Under this method, PDI credited each participant with the greater of (1) such participant's Accrued Benefit earned as of October 31, 1989 under the benefit formula then in effect (actuarially increased to reflect the new Normal Retirement Age) or (2) the Accrued Benefit resulting from the application of the new benefit formula to all Years of Service. (Def's 56.1 ¶ 40).
By notice dated June 4, 1990, the Trustees of the Enhance Pension Plan sent a notice to all Participants in the Enhance Plan explaining that, effective November 1, 1989, the Plan's benefit formula would be changed as described above and that "[t]he amended Plan is no longer integrated with Social Security." (Def's 56.1 ¶ 44; Ferdinand Aff. DX 19).
On March 26, 1991, the Enhance Board amended the Pension Plan (the "1991 Amendment") by adopting the changes recommended by PDI in its letter of January 3, 1990. (Def's 56.1 ¶ 54). A certified copy of the 1991 Amendment was signed by Enhance President Daniel Gross and Enhance Pension Plan Trustee Wallace Sellers. (Def's 56.1 ¶ 56).
On March 26, 1991, the Enhance Board also adopted a resolution stating that "the amount of the pension payable to Sheila Brody upon her retirement from the Corporation be and hereby is increased by such minimum amount as is necessary to make the amount of such pension equal to that to which she would have been entitled if no amendment detrimentally affecting said pension had ever been adopted by the Board of Directors." (Def's 56.1 ¶ 64; Ferdinand Aff. DX 25 at ENH 454).
However, PDI's previous projections regarding plaintiff's benefits were erroneous. In those calculations, PDI had failed to include plaintiff's prior years of service with Merrill Lynch. (Def's 56.1 ¶ 66). When PDI included plaintiff's prior years of service at Merrill Lynch in her benefit calculations in PDI's 1992 Actuarial Report, plaintiff's projected monthly retirement benefit increased to $5,139.00 from $3,203.00. (Def's 56.1 ¶ 72).
2. The 1995 Amendment
On September 13, 1994, the Enhance Board amended the Pension Plan by suspending ("freezing") all benefit accruals, effective November 1, 1994. (Def's 56.1 ¶ 73). Also on September 13, 1994, Valerie Sellers of Enhance sent a notice to all Enhance employees informing them of the suspension of benefit accruals. (Def's 56.1 ¶ 78). The notice informed employees that "[u]pon completion of the plan's redesign, benefits which would have accrued to you under the revised plan will be retroactively provided as of November 1, 1994, the commencement of the plan's new year." (Ferdinand Aff. DX 34).
In October 1995, Enhance replaced PDI with Deloitte Touche ("Deloitte") as its pension consultant. (Def's 56.1 ¶ 80). Deloitte outlined its recommended changes to Enhance's Pension Plan, including changes to the Normal Retirement Age and the benefit formula. (Def's 56.1 ¶ 82). On October 27, 1995, the Enhance Board adopted Deloitte's proposed changes to the Plan, including: (1) changing the definition of "Normal Retirement Age" to the later of age 62 or 10 Years of Service; (2) changing the benefit formula; and (3) changing the actuarial assumptions for lump sum payments. (Def's 56.1 ¶ 84). After Deloitte submitted a letter to the IRS requesting a determination that the Enhance Plan remained qualified pursuant to Section 401(a) of the Internal Revenue Code, the IRS responded that it had made a favorable determination that the new Enhance Plan remained qualified pursuant to Section 401(a). (Def's 56.1 ¶ 90).
On November 6, 1995, a notice was distributed to Enhance employees notifying them of the 1995 Amendment. (Def's 56.1 ¶ 92). On or about July 10, 1997, a Summary Plan Description (hereafter, "SPD") of the restated Enhance Pension Plan was prepared and made available to Plan Participants. (Def's 56.1 ¶ 94).
3. Plaintiff's Retirement
On December 3, 1998, plaintiff and Enhance entered into an Agreement and General Release terminating plaintiff's employment as of December 31, 1998. (Def's 56.1 ¶ 96; Ferdinand Aff. DX 44). Plaintiff's monthly annuity commencing on August 1, 1999 was calculated by Enhance (through its pension consultant, Deloitte) to be $5,341.00. (Pl's 56.1 ¶ 6). Plaintiff's lump sum benefit, payable January 1, 1999, was calculated to be $733,047. 00. (Def's 56.1 ¶ 98). Following her termination on December 31, 1998, plaintiff was paid the lump sum of $733,047.00. (Def's 56.1 ¶ 100).
After plaintiff retired and received her lump sum payment, plaintiff contacted Enhance and asked if she was due any further payment by reason of the 1991 Board Resolution. (Def's 56.1 ¶ 101). By letter dated May 6, 1999, PDI, Enhance's prior pension consultant, wrote to Enhance explaining how it had produced the erroneous calculation of plaintiff's benefits preceding the 1991 Amendment. (Def's 56.1 ¶ 104; Ferdinand Aff. DX 48). According to PDI, the error arose because PDI did not credit plaintiff's years of service with Merrill Lynch, even though plaintiff was entitled to credit for those years of service, in calculating plaintiff's benefits. (Ferdinand Aff. DX 48). By letter dated July 26, 1999, John Heaney of Enhance informed that it was Enhance's belief that plaintiff was "not negatively impacted" by the 1991 Amendment, that the board resolution regarding her benefits was "not necessary," and that her final pension benefit was "calculated appropriately." (Ferdinand Aff. DX 49).
4. Procedural History
On December 20, 2000, plaintiff filed an original complaint. On May 14, 2001, plaintiff filed an Amended Class Action Complaint (the "Amended Complaint" or "Complaint"), individually and on behalf of all others similarly situated. Plaintiff alleges nineteen causes of action alleging various violations of ERISA arising out of the 1991 and 1995 Amendments to Enhance's Pension Plan.
Although plaintiff brought this action as a purported class action, the parties have agreed to postpone a motion for class certification until this Court renders a decision on the legal issues in the case.
Though plaintiff has causes of action numbered up to a "Twentieth Claim," plaintiff does not include an eighteenth claim.
On March 15, 2002, after the close of discovery, plaintiff filed a motion for summary judgment on the issue of liability alone. On May 15, 2002, defendants cross-moved for summary judgment as to each and every claim asserted in plaintiff's Complaint.
DISCUSSION I. Summary Judgment Standard
Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
"On cross-motions for summary judgment, the standard is the same as that for individual motions. In evaluating each motion, the court must look at the facts in the light most favorable to the non-moving party. See Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp. 826, 828 (S.D.N.Y. 1996), aff'd, 110 F.3d 892 (2d Cir. 1997). `Simply because the parties have cross-moved, and therefore have implicitly agreed that no material issues of fact exist, does not mean that the court must join in that agreement and grant judgment as a matter of law for one side or the other. The court may conclude that material issues of fact do exist and deny both motions' Id. (internal citations omitted)." McGovern v. Local 456, Int'l Bhd. of Teamsters, Chauffeurs Warehousemen Helpers of Am., 107 F. Supp.2d 311, 316 (S.D.N.Y. 2000); see also Niss v. Columbia Pictures Indus., Inc., 97 Civ. 4636, 2000 U.S. Dist. LEXIS 18328, at *24 (S.D.N.Y. Dec. 21, 2000).
II. The 1991 Amendment 1. First Claim
Because defendants, in their cross-motion for summary judgment, have addressed each of plaintiff's claims specifically, while plaintiff has organized her motion for summary judgment without specific reference to the numbered claims for which she seeks summary adjudication, this Court will address both motions by examining each claim separately.
Section 402(a)(1) of ERISA provides, in pertinent part, that "[e]very employee benefit plan shall be established and maintained pursuant to a written instrument." 29 U.S.C. § 1102(a)(1). Section 402(b)(3) further provides that "[e]very employee benefit plan shall . . . provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." 29 U.S.C. § 1102(b)(3). The purpose of the latter provision "is obviously functional: to ensure that every plan has a workable amendment procedure." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 82 (1995) (emphasis in original).
Plaintiff asserts that defendants violated ERISA § 402(a)(1) by operating the Plan in accordance with the 1991 Amendment "as [if] it were a governing plan document," even though the 1991 Amendment was never adopted as a governing plan document and "was never available for review by Plan participants at the Plan Administrator's Office." See Compl. ¶¶ 21, 23.
Article 12.01 of the original Plan document states, "Any such amendments shall be effective when signed by the Employer and filed with the Trustees." See Ferdinand Aff. DX 3 at ENH 060. The "Employer," as defined in the Plan (Article 1.10), is Enhance Reinsurance Company. See id. at ENH 015. The uncontroverted evidence presented by defendants establishes that when the Board of Directors of Enhance adopted the 1991 Amendment, a certified copy of the Amendment was signed by the President of Enhance, Daniel Gross, who was also a trustee of Enhance, as well as by one of the other two Trustees of the Plan, Wallace Seller. See Affidavit of Daniel Gross (hereafter "Gross Aff.") at ¶ 31-32. Once adopted, the 1991 Amendment to the Plan was available, along with all other relevant Plan documents, for any employee of Enhance to review or copy. See id. ¶ 3.
The written policy in Enhance's original Plan document setting out a procedure for amending the original Plan combined with a certified, signed copy of the 1991 Amendment incorporating that Amendment into the original Plan establishes that defendants complied with both the letter and the spirit of § 402(a)(1) (as well as § 402(b)(3)) by having a written instrument as well as a procedure for amending that instrument, then complying with those procedures. See Curtiss-Wright, 514 U.S. at 82. Given those uncontroverted facts, no rational factfinder could find otherwise. Accordingly, defendants are entitled to summary judgment on plaintiff's First Claim.
Plaintiff asserts that because the text of the 1991 Amendment made no mention of the elimination of the Social Security offset, the Amended Plan was invalid. See Plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendants' Cross-Motion for Summary Judgment (hereafter "Pl's Reply") at 5. This argument fails for the obvious reason that if the 1991 Amendment eliminated the Social Security offset, the latter would not appear in the Amended Plan. It is enough that the defendants, in their June 4, 1990 notice to all Participants in the Enhance Plan, informed employees that "[t]he amended Plan is no longer integrated with Social Security." See Ferdinand Aff. DX 19.
2. Second Claim
Section 404(a)(1)(D) of ERISA provides, in pertinent part,
. . . a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and . . . in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter . . .29 U.S.C. § 1104(a)(1)(D).
Where, however, the Plan is amended in accordance with the procedures set forth in the original Plan document, this Court need not address the issue of whether the defendants breached any fiduciary duties by improperly amending the Plan. See Devlin v. Transportation Communications Int'l Union, 173 F.3d 94, 104 (2d Cir. 1999).
Plaintiff alleges that defendants breached their fiduciary duties by applying the 1991 Amendment "as [if] it were a governing plan document." See Compl. ¶ 26. Because this Court has determined, supra, that plaintiff is entitled to summary judgment on the issue of whether the Plan was amended in accordance with the procedures set forth in the original Plan document, the issue of fiduciary duty need not be addressed. Therefore, defendants are entitled to summary judgment on plaintiff's Second Claim.
3. Third Claim
Pursuant to Section 204(h) of ERISA, a defined benefit plan such as defendants'
may not be amended so as to provide for a significant reduction in the rate of future benefit accrual, unless, after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment, the plan administrator provides a written notice, setting forth the plan amendment and its effective date, to . . . (A) each participant in the plan . . .29 U.S.C. § 1054(h).
In the wake of TRA '86, the IRS issued a series of Notices and Revenue Procedures that allowed employers to suspend benefit accruals and adopt certain Model Amendments until such time as the IRS issued guidelines that would enable employers to amend their pension plans to come into compliance with TRA '86's regulations. See Notice 88-131; Revenue Procedure 89-65; Notice 90-73. In Notice 88-131, the IRS expressly provided that "Model Amendments 1, 2 and 3 are not subject to the notice requirements of section 204(h) of [ERISA]." Notice 88-131 further stated,
The notice to participants required by section 204(h) may be required with respect to the subsequent TRA '86 amendment if such subsequent amendments of the plan result in a significant reduction in the rate of the future benefit accruals (determined by disregarding the model amendments).
Notice 88-131 (emphasis added).
In Scott v. Administrative Comm. of the Allstate Agents Pension Plan, 113 F.3d 1193, 1201-03 (11th Cir. 1997), the Eleventh Circuit addressed whether a second § 204(h) notice was required at the time of the ultimate amendment to the pension plan. There, the Court examined the language of Notice 88-131 — which states that § 204(h) notice may be required with respect to a subsequent amendment — in conjunction with Revenue Procedure 89-65. See id. at 1202. Revenue Procedure 89-65 expressly provides:
A plan sponsor who continues to suspend benefit accruals beyond the end of the 1990 plan year and who provides the 204(h) notice by the end of the 1990 plan year will be deemed to satisfy the requirements of § 204(h).
The Court in Scott, while recognizing that 88-131 predated Revenue Procedure 89-65, found that the language of Revenue Procedure 89-65 "strongly support[ed]" the Court's conclusion that § 204(h) does not require a second notice after an amendment is formally adopted. Scott, 113 F.3d at 1202. The Court concluded that "the most reasonable reading of the IRS rulings is that no second notice is required upon ultimate adoption of the retroactive amendment." Id.
Moreover, as the Scott Court recognized,
It is clear that compliance with § 204(h) is simply an impossibility. Section 204(h) requires notice "after adoption of the plan amendment and not less than 15 days before the effective date of the plan amendment" (emphasis added). In the context of an amendment which is properly to be applied retroactively, it is obviously impossible to give notice thereof both after the adoption and before the effective date thereof. In other words, § 204(h) clearly contemplates prospective amendments, not retroactive amendments. That § 204(h) contemplates only prospective amendments is also supported by the provision's apparent purpose: to give plan participants "the opportunity to take advantage of an existing benefit before it is lost." Davidson v. Canteen Corp., 957 F.2d 1404, 1407 (7th Cir. 1992). In the context of a retroactive amendment, it is obvious that there can be no opportunity to take advantage of an existing benefit before it is lost.
Id.
While not bound by the Eleventh Circuit's reasoning in Scott, this Court nevertheless finds its analysis persuasive here with regard to plaintiff's Third Claim. Though IRS Notice 88-131 left some doubt as to whether a second notice would be required where a company employs Model Amendment 3, Revenue Procedure 89-65 as well as IRS Notice 90-73 clarify the ambiguity and establish that a second notice is not necessary upon ultimate adoption of the Plan amendment. Moreover, this Court agrees with the Scott Court that § 204(h), in the context of an amendment to bring a plan into compliance with TRA '86, contemplates prospective, not retroactive, amendments, as requiring § 204(h) notice because the latter would be an impossibility. See also Normann v. Amphenol Corp., 956 F. Supp. 158, 165 (N.D.N.Y. 1997) (notice pursuant to § 204(h) not necessary before the amendment's effective date because "the Court will not require the impossible").
Though not discussed in Scott, Notice 90-73 contains substantially the same language as Revenue Procedure 89-65 with regard to the satisfaction of § 204(h) following adoption of, inter alia, Model Amendment 3.
The Normann court declared that its ruling "does not obviate [the employer's] duty to provide adequate [§ 204(h)] notice such that the [subsequent] Amendment could become retroactively effective." Normann, 956 F. Supp. at 165. However, given the undisputed existence of the June 4, 1990 memorandum to Enhance employees which set out, in clear language, a summary of the 1991 Amendment (see Ferdinand Aff. DX 19), this Court need only address the issue of whether § 204(h) requires a second notice.
Here, plaintiff argues that because Enhance's 1991 Amendment effected a significant reduction in the rate of future benefit accruals and, because Enhance did not provide written notice of the changes after adoption of the 1991 Amendment on March 26, 1991, the 1991 Amendment is rendered ineffective. See Compl. ¶ 29. Applied to the instant case, § 204(h) should not be read to require Enhance to provide a second notice at the time of the 1991 Amendment. Defendants properly adopted Model Amendment 3 freezing benefits in accordance with the regulations put forth in IRS Notice 88-131. Defendants also provided notice of the changes to the Plan in its memorandum to employees dated June 4, 1990. See Ferdinand Aff. DX 19. Section 204(h) requires no more here. Accordingly, defendants are entitled to summary judgment on the Third Claim.
4. Fourth Claim
Plaintiff's Fourth Claim alleges a violation of ERISA § 104(b), which requires Enhance to publish an updated Summary Plan Description ("SPD") no less frequently than every five years. See 29 U.S.C. § 1024(b). Although plaintiff acknowledges that she did not initially seek relief for that violation, she contends that in light of disclosures made during discovery, the Fourth Claim now seeks a judicial Order requiring Enhance to distribute the 1997 SPD to all Plan participants.
Assuming, arguendo, that such an Order were warranted, it is not appropriate at this juncture in the litigation — when plaintiff is not presently acting on behalf of a certified class — to decide such an issue. Accordingly, the motions for summary judgment on the Fourth Claim are denied as premature.
5. Fifth Claim
Section 204(g)(1) of ERISA provides, "[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan, other than an amendment described in section 1082(c)(8) or 1441 of this title." 29 U.S.C. § 1054(g)(1).
Article 12.01 of Enhance's original Plan provides, in pertinent part, that "no amendment shall have the effect of reducing the value of a Participant's non-forfeitable vested equity in his Accrued Benefit . . . as of the later of the effective date of such amendment or the date such amendment is adopted." See Ferdinand Aff. DX 3 at ENH 060.
In implementing the 1991 Amendment, Enhance and its actuary calculated plaintiff's benefits (as well as the benefits of all other participants) using a greater of method of calculation. Under this method, Enhance credited each Participant with the greater of (1) such Participant's Accrued Benefit earned as of October 31, 1989 under the benefit formula then in effect (actuarially increased to reflect the new Normal Retirement Age) or (2) the Accrued Benefit resulting from the application of the new benefit formula to all Years of Service. See Def's 56.1 ¶ 40; Guarnera Aff. ¶¶ 32-35.
Plaintiff asserts that Enhance's greater of or wear-away method violated § 204(g)(1) by retroactively reducing accrued benefits by means of the 1991 Amendment. See Compl. ¶ 38. Instead, plaintiff insists, the "additive method" — in which plaintiff's accrued benefit under the pre-amendment formula would be added to the accrued benefit earned for periods after the effective date under the post-amendment formula — is the appropriate method for preserving plaintiff's accrued benefit earned prior to the effective date of the 1991 Amendment. See Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment (hereafter "Pl's Br.") at 17-18. Defendants contend that the factual premise upon which plaintiff's claim depends — that her accrued benefits were reduced by the 1991 Amendment — is incorrect. See Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Support of their Cross-Motion for Summary Judgment (hereafter "Def's Br.") at 14.
To begin, the greater of method that Enhance used to calculate benefits has been consistently approved by the IRS since at least 1981. See Rev. Rul. 81-12, 1981-1 C.B. 228 (1981) ("greater of" method is an "acceptable method" of preventing a decrease in a plan participant's accrued benefit).
Moreover, as defendants point out (and contrary to plaintiff's assertion), the legislative history of the Retirement Equity Act of 1984, which plaintiff claims invalidates Revenue Ruling 81-12, expressly cites Revenue Ruling 81-12 with approval. See S. Rep. No. 98-575 at 27 n. 29 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2573 n. 29.
The greater of method also comports with the language of Article 12.01 of the original Plan. Article 12.01 guarantees that no amendment shall operate to reduce a beneficiary's Accrued Benefit. The greater of method, by its very terms, ensures that a beneficiary's accrued benefits would not be reduced.
Plaintiff presents the affidavit of Howard Phillips to demonstrate that plaintiff's total benefits were adversely affected by the 1991 and 1995 Amendments. See Affidavit of Howard Phillips, hereafter "Phillips Aff.," at ¶ 6. However, because Mr. Phillips arrived at his calculations by assuming that the 1991 and 1995 Amendments never became effective, which this Court will not do, those calculations are irrelevant for the purposes of deciding these motions. The relevant calculation here is the extent to which plaintiff's already-accrued benefits were affected by the 1991 and 1995 Amendments.
Furthermore, as established by the sworn affidavits of the Plan's actuaries, the greater of method has been consistently employed by Enhance and its actuaries in order to avoid any reductions in the Plan participants' accrued benefits. See Guarnera Aff. ¶¶ 33-35. Even were this Court to deem the language of the Plan to be ambiguous, consistent interpretation by Enhance "is `significant evidence' that the plan administrator acted reasonably in interpreting ambiguous plan language." McDaniel v. Chevron Corp., 203 F.3d 1099, 1113 (9th Cir. 2000) (internal citations omitted). That interpretation is also entitled to some deference from this Court. See Langman v. Laub, 97 Civ. 6063, 2002 U.S. Dist. LEXIS 5106, at *9 (S.D.N.Y. Mar. 28, 2002) (plan administrator's interpretation of a plan reviewed under a more deferential standard).
There is no evidence in the record that Enhance's 1991 Amendment was an "add-on" formula, as plaintiff suggests; rather, all of the evidence in the record establishes that the plan was a "replacement" formula. See, e.g., Ferdinand Aff. DX 54 at 103; Guarnera Aff. ¶ 42. No rational finder of fact could determine otherwise. Therefore, defendants are entitled to summary judgment on plaintiff's Fifth Claim.
6. Sixth Claim
Plaintiff's Sixth Claim asserts that because the 1991 Amendment never became effective, defendants violated the terms of the original 1986 Plan by relying on the 1991 Amendment to determine a Plan participant's Normal Retirement Age and accrued benefits. See Compl. ¶ 40. Because this Court has determined, supra, that the 1991 Amendment complied with ERISA and was validly enacted, this claim must fail, and defendants are entitled to summary judgment on the Sixth Claim.
7. Seventh Claim
As noted earlier, Article 12.01 of Enhance's original Plan protects a participant's accrued benefits by providing that "no amendment shall have the effect of reducing the value of a Participant's non-forfeitable vested equity in his Accrued Benefit . . . as of the later of the effective date of such amendment or the date such amendment is adopted." See Ferdinand Aff. DX 3 at ENH 060.
Plaintiff contends that because the 1991 Amendment reduced the value of participants' accrued benefits, defendants violated Article 12.01 of the Plan. However, as discussed in Section III. 5, supra, no rational factfinder could find that the greater of method instituted pursuant to the 1991 Amendment reduced the value of participants' accrued benefits. Accordingly, defendants are entitled to summary judgment on plaintiff's Seventh Claim.
8. Eighth Claim
Under § 203(c)(1) of ERISA,
(A) A plan amendment changing any vesting schedule under the plan shall be treated as not satisfying the requirements of subsection (a)(2) of this section [requiring every pension plan to satisfy one of ERISA's minimum vesting schedules] if the nonforfeitable percentage of the accrued benefit derived from employer contributions (determined as of the later of the date such amendment is adopted, or the date such amendment becomes effective) of any employee who is a participant in the plan is less than such nonforfeitable percentage computed under the plan without regard to such amendment. (B) A plan amendment changing any vesting schedule under the plan shall be treated as not satisfying the requirements of subsection (a)(2) of this section unless each participant having not less than 3 years of service is permitted to elect, within a reasonable period after adoption of such amendment, to have his nonforfeitable percentage computed under the plan without regard to such amendment.29 U.S.C. § 1053(c)(1).
According to plaintiff's Complaint, the 1991 Amendment, by changing the Normal Retirement Age to 60 from 55, altered the Plan's vesting schedule, because it reduced vesting at age 55 from 100% of the accrued benefit to a lesser percentage, depending on years of credited service. See Compl. ¶ 47. Therefore, plaintiff alleges, by failing to give participants the option of electing to have their nonforfeitable percentage computed under the Plan without regard to the 1991 Amendment, defendants violated ERISA § 203(c). See id. ¶¶ 48-49.
Plaintiff's claim, however, is not borne out by the record. Plaintiff correctly identifies Article 7.04 of the original Plan as providing for full vesting "[u]pon the attainment of . . . Normal Retirement Age." See Pl's Br. at 23; Ferdinand Aff. DX 3 at ENH 044. But, defendants add, Article 9.01 of the original Plan — which remained unchanged following the 1991 Amendment — provides for full vesting after six Years of Service, whereas both definitions of Normal Retirement Age, under the original Plan and under the 1991 Amendment, required either ten Years of Service or ten Years of Participation. See Def's Br. at 18; Ferdinand Aff. DX 3 at ENH 049.
It also bears noting that plaintiff has not responded to defendants' motion for summary judgment on the Eighth, Ninth, Eleventh, Fourteenth, Seventeenth, Nineteenth or Twentieth Claims. Thus, so long as this Court determines that defendants, as the moving party in their summary judgment motion, have met their initial burden, this Court may consider the arguments on those claims to be conceded.
In light of the alternate method — i.e., six Years of Service — by which plan participants would achieve full vesting, it is clear that the change in the age requirement for Normal Retirement could not impact a Plan participant's vesting schedule. Therefore, defendants are entitled to summary judgment on plaintiff's Eighth Claim.
9. Ninth Claim
Plaintiff's Ninth Claim asserts that because defendants have failed to provide for 100% vesting upon the attainment of Normal Retirement Age, defendants are in violation of ERISA. Article 7.04 of the Plan directly contradicts this assertion by providing that "[u]pon the attainment of his Normal Retirement Age, a Participant shall be fully vested in his Accrued Benefit and such vesting shall be non-forfeitable." See Ferdinand Aff. DX 3 at ENH 044. Defendants are entitled to summary judgment on plaintiff's Ninth Claim.
III. The 1995 Amendment 1. Tenth Claim
Plaintiff's Tenth Claim asserts that defendants violated § 204(h) of ERISA by failing to give proper notice of the significant reduction in the rate of future benefit accruals following the 1995 Amendment.
This Court has already determined that strict compliance with § 204(h), in the context of a retroactive amendment to bring a plan into compliance with TRA '86, is impossible, see Section II. 3, supra, and that analysis need not be repeated with regard to the 1995 Amendment. For two important reasons, though, summary judgment is not appropriate with regard to the Tenth Claim.
First, defendants have not met their initial burden for summary judgment. Defendants rely solely on the conclusory statement that [s]ection 204(h) notice was . . . not required as to the 1995 Amendment because, once Enhance validly froze benefit accruals in September 1994, the rate of future accruals for all Participants was zero. Chan Aff. ¶ 29. Thus, when Enhance adopted the 1995 Amendment, the new Plan provisions effected an increase, not a decrease in the rate of future accruals.
Def's Br. at 19. This assertion is supported only by a reference to the Chan Affidavit, which itself is stated in conclusory fashion and without any supporting authority. See Affidavit of Wing Chan (hereafter "Chan Aff.") at ¶ 29. It is not so obvious to this Court that when there is a freeze in benefits, along with the promise of retroactive benefit accruals once the new Plan is adopted, see Ferdinand Aff. DX 34, any additional benefit accruals at all constitute an overall increase because the baseline is zero. It is possible, for example, that pre-freeze benefits accrued a X rate, and post-freeze benefits made retroactive accrued at a rate less than X and that such a change falls within § 204(h). In the absence of more information and argument on this point, judgment for defendants does not seem appropriate.
Second, unlike in the context of the 1991 Amendment, plaintiff has raised an issue of fact as to whether proper notice was given. As the district court in Normann v. Amphenol Corp. indicated, just because strict compliance with § 204(h) is not required "does not obviate [the employer's] duty to provide adequate [§ 204(h)] notice such that the [subsequent] Amendment could become retroactively effective." 956 F. Supp. at 165.
Plaintiff, for her part, asserts that the notice given — in a November 6, 1995 benefits memorandum to Enhance employees — was deficient because it failed to describe with sufficient particularity the changes that the 1995 Amendment implemented and that the 1997 SPD, which did set forth the changes, was never distributed to all Plan participants. See Pl's Br. at 7-8. Defendants do not address this claim, but instead stand by their assertion — which this Court does not now adopt — that because benefits were temporarily frozen, the 1995 Amendment did not effect a decrease in the rate of future benefit accruals and thus no notice was required. See Defendants' Reply Memorandum in Support of their Cross-Motion for Summary Judgment (hereafter "Def's Reply") at 7.
On the present record, the sufficiency of the notice remains an issue of material fact. Accordingly, the competing motions for summary judgment with regard to plaintiff's Tenth Claim are denied without prejudice to renewal following discussion of the details of the pre- and post-freeze accrual information with the Court.
Even if plaintiff ultimately prevails on this issue, voiding of the entire 1995 Amendment may not be the proper remedy for defendants' failures. See, e.g., Allred v. First Nationwide Fin. Corp., 1994 U.S. Dist. LEXIS 21538, at *15-17 (N.D.Cal. May 2, 1994) (noting, inter alia, that "the Court will take equitable considerations into account in determining what sort of remedy is appropriate for plaintiffs").
2. Eleventh Claim
Plaintiff's Eleventh Claim alleges that defendants violated the 1997 Summary Plan Description ("SPD") by calculating Normal Retirement Age based on Years of Participation instead of on Years of Service. See Compl. ¶¶ 72-74. According to plaintiff, because the 1997 SPD uses "Years of Service," which plaintiff contends is more favorable to plan participants, instead of "Years of Participation" to calculate benefits, defendants violated the terms of the 1997 SPD. See id.Enhance now represents, in its motion for summary judgment, that Enhance's actuary is applying "Years of Service" in calculating each Participant's Normal Retirement Age. See Pl's Br. at 20; Chan Aff. ¶ 41f. In light of this representation, plaintiff's Eleventh Claim is now moot.
3. Twelfth Claim
Plaintiff's Twelfth Claim alleges that defendants, in the 1995 Amendment, violated § 204(g)(1) of ERISA by reducing the rate of benefit accruals and changing the Normal Retirement Age to 62 from 60, thereby reducing the accrued benefits of Plan participants. See Compl. ¶¶ 76-78.
Having already determined that defendants' greater of (or wear-away) method of calculating benefits was appropriate and not in violation of ERISA § 204(g)(1) with regard to the 1991 Amendment, see Section II. 5, supra, this Court will not duplicate the analysis for the greater of method employed in the wake of the 1995 Amendment. For substantially the same reasons stated with regard to plaintiff's Fifth Claim, defendants are also entitled to summary judgment on plaintiff's Twelfth Claim.
4. Thirteenth Claim
Like plaintiff's Twelfth Claim, plaintiff's Thirteenth Claim alleges a violation of ERISA in the 1995 Amendment that plaintiff also raised with regard to the 1991 Amendment. Specifically, plaintiff's Thirteenth Claim alleges that the 1995 Amendment reduced the value of Plan participants' accrued benefits in violation of Article 12.01 of the original Plan. See Compl. ¶ 81.
Again, as previously discussed, defendants' greater of method does not violate Article 12.01 of the original Plan. For the reasons set forth with regard to plaintiff's Fifth, Seventh, and Twelfth Claims, see Sections II. 5, II. 7, and III. 3, supra, defendants are entitled to summary judgment on plaintiff's Thirteenth Claim.
5. Fourteenth Claim
Plaintiff's Fourteenth Claim alleges the same violation of § 203(c)(1) of ERISA with regard to the 1995 Amendment as plaintiff's Eighth Claim alleged with regard to the 1991 Amendment. Just like plaintiff's Eighth Claim fails because defendants have shown that the 1991 Amendment did not alter the participants' vesting schedules, plaintiff's Fourteenth Claim fails because the 1995 Amendment did not alter the vesting schedule either. Accordingly, defendants are entitled to summary judgment on plaintiff's Fourteenth Claim.
6. Fifteenth Claim
In plaintiff's Fifteenth Claim, plaintiff alleges that defendants failed to comply with the requirements of Article 4.05 by calculating the pension amount of Plan participants who continued in Enhance's employment past their Normal Retirement Age. See Compl. ¶ 88. As defendants point out, however, the Plan, as amended, provides Participants with the greater of (a) the benefit determined as of the Normal Retirement Date actuarially adjusted for delayed payment, or (b) the benefit using the Plan's formula through the Participant's actual date of retirement. See Ferdinand Aff. DX 39 at ENH 953. Indeed, by providing participants with the greater of these two amounts, defendants are in compliance with Article 4.05.
To the extent plaintiff is claiming she was still entitled to have her benefits calculated in accordance with the original 1986 Plan (i.e., under a retirement age of 55), plaintiff has presented no evidence to support such a claim, nor will this Court infer any. Therefore, defendants are entitled to summary judgment on the Fifteenth Claim.
Similarly, there is no evidence that the 1991 Board Resolution was intended to protect the actuarial value of plaintiff's benefits at age 55. The Board Resolution was a measure taken in response to an incorrectly perceived shortfall in plaintiff's benefits, see Section IV. 3, infra, and was moot once the error in the calculation of plaintiff's Years of Service was corrected. The fact that plaintiff's benefits were calculated with a retirement age of 60 was due to the fact that defendants had already decided to increase the Normal Retirement Age to 60 from 55, which defendants effected soon after as part of the 1991 Amendment. Moreover, the 1995 Amendment increased the Normal Retirement Age to 62, and plaintiff retired at age 61, so she suffered no harm under Article 4.05.
7. Sixteenth Claim
As defendants note and plaintiff concedes, plaintiff's Sixteenth Claim is completely duplicative of plaintiff's Thirteenth Claim. Accordingly, for the reasons set forth above, see Section III. 4, supra, defendants are entitled to summary judgment on plaintiff's Sixteenth Claim.
V. Plaintiff's Other Claims 1. Seventeenth Claim
IRS Notice 88-131 declares, in pertinent part, that "the regulations proposed under a number of these [new ERISA provisions] may affect a plan sponsor's decisions with respect to plan merger, redesign or termination." See Ferdinand Aff. DX 12 at 547.
Plaintiff's Complaint asserts that defendants cannot rely on the "safe harbor" protection provided by IRS Notices and Regulations issued subsequent to the passage of TRA '86 because defendants failed to comply with the conditions imposed by those notices. See Compl. ¶ 93. Alternatively, plaintiff alleges that the "safe harbor" protection extends exclusively to changes required by TRA '86, "such as the elimination of discriminatory provisions from the terms of the Plan," but not to other changes that defendants instituted in the 1991 and 1995 Amendments. See id.
With regard to defendants' compliance with the IRS Notices and Regulations, plaintiff has presented no evidence that defendants have failed to comply with any of the IRS' conditions. To the contrary, defendants "froze" benefits in compliance with IRS Notices and Regulations and adopted Model Amendment 3 as permitted by IRS Notices and Regulations. See IRS Notice 88-131; IRS Revenue Procedure 89-65; IRS Notice 90-73. In the absence of any specific indication that defendants have failed to comply with the IRS' Notices and Regulations, plaintiff's claim in this regard is meritless.
Plaintiff's alternative argument, that the safe harbor provisions extend only to amendments required by TRA '86, is belied by the plain language of Notice 88-131, which referred to other changes that a plan sponsor might institute, including plan "redesign." See IRS Notice 88-131; see also Scott, 113 F.3d 1193 (11th Cir. 1997) (applying safe harbor protection of Notice 88-131 to the full plan amendment). Therefore, plaintiff's alternative argument must fail as well. Accordingly, defendants are entitled to summary judgment on plaintiff's Seventeenth Claim.
2. Nineteenth Claim
Though technically plaintiff's eighteenth claim, plaintiff has termed this claim her Nineteenth Claim, and this Court will refer to the claim as it is numbered in the Complaint.
ERISA Reorganization Plan No. 4 of 1978 provides, in pertinent part,
Except as otherwise provided in Sections 104 and 106 of this Plan, all authority of the Secretary of Labor to issue the following described documents pursuant to the statutes hereinafter specified is hereby transferred to the Secretary of the Treasury: (a) regulations, rulings, opinions, variances and waivers under Parts 2 [ 29 U.S.C. § 1051 et seq.] and 3 [ 29 U.S.C. § 1081 et seq.] of Subtitle B of Title I [of ERISA] . . .
Neither Section 104 or Section 106 is related to the analysis here.
ERISA Reorganization Plan No. 4 of 1978 § 101, 43 F.R. 47713, 92 Stat. 3790, as amended Pub.L. 99-514, § 2, Oct. 22, 1986, 100 Stat. 2095; see also Greenhalgh v. Putnam Savings Bank, 140 F.3d 427, 428 n. 1 (noting IRS jurisdiction conferred by the 1978 Reorganization Plan).
Plaintiff's Nineteenth Claim alleges that the Secretary of the Treasury has no authority to issue regulations or notices excusing pension plans from providing § 204(h) notice or authorizing retroactive reduction of accrued benefits other than by the procedure provided by § 204(g). See Compl. ¶ 97. However, plaintiff's allegation stands in stark contrast to the explicit provisions of the ERISA Reorganization Plan, quoted above, transferring to the Secretary of the Treasury the authority to issue "regulations, rulings, opinions, variances and waivers" regarding Parts 2 and 3 — which encompass §§ 204(g) and (h) — of ERISA. For that reason, defendants are entitled to summary judgment on plaintiff's Nineteenth Claim.
3. Twentieth Claim
By Board Resolution on March 26, 1991, the Board of Directors of Enhance resolved to make plaintiff whole for the projected economic shortfall in plaintiff's benefits resulting from implementation of the 1991 Amendment. See Ferdinand Aff. DX 26 at ENH 454. The evidence in the record establishes, without contradiction, that the Board Resolution was adopted in direct response to PDI's calculation that, after the 1991 Amendment, plaintiff would suffer a monthly pension decrease. See Gross Aff. ¶ 34; Guarnera Aff. ¶ 19; Affidavit of Samuel Bergman at ¶ 11.
It is similarly beyond dispute that PDI did not account for plaintiff's years of employment with Merrill Lynch in calculating plaintiff's Years of Service under the 1991 Amendment. See Def's 56.1 ¶ 66. Moreover, as the evidence from defendants' past and current actuaries clearly establishes, when plaintiff's years of employment at Merrill Lynch were included in her benefits calculation, the shortfall disappeared. See Ferdinand Aff. DX 48 at ENH 182; Ferdinand Aff. DX 57 at 9-10.
Plaintiff's Twentieth Claim alleges that defendants failed to make plaintiff whole — in accordance with the 1991 Board Resolution — following the 1991 Amendment. See Compl. ¶ 102. Because the harm calculated by PDI was predicated on erroneous figures, and because, when calculated correctly, plaintiff suffered no shortfall in her benefits, the 1991 Board Resolution was rendered moot and defendants did not need to take any action to make plaintiff whole. Accordingly, defendants are entitled to summary judgment with regard to plaintiff's Twentieth Claim.
4. Miscellaneous Claims
Though not raised in her Complaint, plaintiff argues in her moving papers that her 1996 Plan Year Compensation should use a composite of the IRC § 401(a)(17) limit for the 1996 calendar year ($150,000) and the limit for the 1997 calendar year ($160,000). See Pl's Br. at 21-23. According to plaintiff, because Enhance's Plan Year begins on November 1, plaintiff's 1996 Plan Year Compensation should be calculated using a blend of the $150,000 limit for the first two months and the $160,000 limit for the remaining ten months, yielding a calculation of $158,333.30 for the 1996 Plan Year. See id. at 22.
IRS regulations under § 401(a)(17) provide, in pertinent part, that "[a]ny increase in the annual compensation limit is effective as of January 1 of a calendar year and applies to any plan year beginning in that calendar year." See Treas. Reg. § 1.401(a)(17)-1(a)(3). An example furnished as part of the regulations provides For example, if a plan has a plan year
beginning July 1, 1994, and ending June 30, 1995, the annual compensation limit in effect 38 on January 1, 1994 ($150,000) applies to the plan for the entire plan year.
Id.
This example, almost identical to the instant case, directly contradicts plaintiff's argument. Accordingly, plaintiff's contention that she is entitled to have her compensation for the 1996 Plan Year calculated by using a composite of the compensation limits from the 1996 and 1997 calendar years is hereby rejected.
VI. Plaintiff's Motion to Strike
Plaintiff also moves to strike portions of the affidavits of defendants' experts primarily on the ground that, in her view, the affidavits contain legal conclusions that are not admissible in affidavits. Plaintiff also requests, in the alternative, additional pages in order to argue her legal conclusions. Both motions are denied. Both parties have submitted voluminous papers, affidavits and argument on all of the issues. No additional briefing is required, and the Court is certainly able to tell the differences between fact issues and legal conclusions.
CONCLUSION
Plaintiff's motion for summary judgment (docket no. 22) is denied; the motion for summary judgment on plaintiff's Tenth Claim is denied without prejudice to renewal. Defendants' cross-motion for summary judgment (docket no. 24) is denied on plaintiff's Tenth Claim without prejudice to renewal and granted as to plaintiff's other claims. All motions with regard to plaintiff's Fourth Claim are denied as premature.
Counsel shall appear for a conference on April 3, 2003, at 10:00 am.
SO ORDERED: