KIFAFI v. HILTON HOTEL RETIRE, et al

Filing 400

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 2/4/2015.(lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMAL J. KIFAFI, individually and on
behalf of all others similarly situated,
Plaintiff,
Civil Action No. 98-1517 (CKK)

v.
HILTON HOTELS RETIREMENT PLAN,
et al.,
Defendants.

MEMORANDUM OPINION
(February 4, 2015)
This action was brought by Plaintiff Jamal J. Kifafi, on behalf of himself and similarly
situated individuals, to recover for violations of the Employee Retirement Income Security Act
(“ERISA”) of 1974, as amended, 29 U.S.C. §§ 1001 et seq., in the Hilton Hotels Retirement Plan
(the “Plan”). Defendants are the Plan, the individual members of the Committee of the Plan, the
Hilton Hotels Corporation, and individual Hilton officers or directors (collectively, “Defendants”
or “Hilton”). On May 15, 2009, this Court granted-in-part Plaintiff’s motion for summary
judgment, finding that Defendants had violated ERISA’s anti-backloading provision, 29 U.S.C.
§ 1054(b)(1), and had violated the Plan’s vesting provisions with respect to the rights of four
certified subclasses. See Kifafi v. Hilton Hotels Retirement Plan, 616 F. Supp. 2d 7 (D.D.C.
2009). On August 31, 2011, the Court issued a final remedial Order requiring Defendants to
amend the Plan to remedy the backloading and vesting violations and commence awarding back
payments and increased benefits to class members. See generally Order (Aug. 31, 2011), ECF
No. [258]. The Court stayed its August 31, 2011, Order pending the United States Court of

Appeals for the District of Columbia Circuit’s resolution of the parties’ appeal of the Court’s
liability and remedial orders. Mem. Op. & Order (Jan. 19, 2012), ECF No. [313], at 10–11. The
Court granted the stay contingent upon Defendants posting a supersedeas bond in the amount of
$75.8 million to secure the judgment. Id. at 11. Presently before the Court is Defendants’
Motion to Release the Supersedeas Bond. Also before the Court are Plaintiff’s Motion for PostJudgment Discovery and Motion to Modify the Judgment in Aid of Enforcement, which Plaintiff
effectively filed in opposition to Defendants’ Motion. Upon consideration of the pleadings,1 the
relevant legal authorities, and the record as a whole, the Court finds that Defendants have
satisfied the terms of the Court’s judgment. Accordingly, Defendants’ Motion to Release the
Supersedeas Bond is GRANTED and Plaintiff’s Motion for Post-Judgment Discovery and
Motion to Modify the Judgment in Aid of Enforcement are DENIED.
I.

BACKGROUND

A. Procedural History
The history of the case is thoroughly laid out in the Court’s prior opinions, most
significantly its opinion on summary judgment, see Kifafi v. Hilton Hotels Retirement Plan, 616
F. Supp. 2d 7 (D.D.C. 2009), and its opinions regarding equitable remedies, see Kifafi v. Hilton
Hotels Retirement Plan, 736 F. Supp. 2d 64 (D.D.C. 2010) (initial remedial order); Kifafi v.
Hilton Hotels Retirement Plan, 826 F. Supp. 2d 25 (D.D.C. 2011) (final remedial order); Kifafi v.
1

Defendants’ Motion to Release the Supersedeas Bond Obligation (“Defs.’ Mot.”), ECF
No. [382]; Plaintiff’s Response to Defendants’ Motion to Release Bond and in Support of
Discovery and Modification to Secure Complete Relief (“Pl.’s Opp’n”), ECF No. [385];
Defendants’ Reply Memorandum in Support of Defendants’ Motion to Release the Supersedeas
Bond (“Defs.’ Reply”), ECF No. [386]; Plaintiff’s Motion for Post-Judgment Discovery and
Modification in Aid of Enforcement (“Pl.’s Mot.”), ECF No. [384]; Defendants’ Opposition to
Plaintiff’s Motion for Post-Judgment Discovery and Modification in Aid of Enforcement
(“Defs.’ Opp’n”), ECF No. [387]; Plaintiff’s Reply in Support of Motion for Post-Judgment
Discovery and Modification in Aid of Enforcement (“Pl.’s Reply”), ECF No. [388].
2

Hilton Hotels Retirement Plan, 825 F. Supp. 2d 298 (D.D.C. 2011) (order on amendments to
remedial plan). The Court assumes familiarity with these opinions. Nevertheless, the Court shall
review the facts of this case insofar as they are relevant to the issues discussed herein.
On August 31, 2011, the Court issued its final remedial Order requiring Defendants to (1)
amend the Plan’s benefit accrual formula to remedy the backloading violation; (2) administer a
claim procedure for crediting participants’ years of union service for vesting purposes; (3) award
back payments for increased benefits that should have been paid in the past; and (4) commence
increased benefits for all class members by no later than January 1, 2012. Order (Aug. 31,
2011), at 7, 9. The Court retained “continuing and exclusive jurisdiction over the parties and
over the administration and enforcement of this Order for a period of two (2) years.” Id. at 10–
11.
Defendants and Plaintiff appealed the Court’s liability and remedial orders to the United
States Court of Appeals for the District of Columbia Circuit and Defendants sought a stay
pending appeal, which the Court granted “until thirty days after the exhaustion of Defendants’
appeal to the United States Court of Appeals for the District of Columbia Circuit.” Mem. Op. &
Order (Jan. 19, 2012), at 11. As Defendants asserted that they were only appealing the Court’s
rulings as to the backloading class, the Court granted the stay of the August 31, 2011, Order “to
the extent it requires Defendants to amend the Plan or pay out benefits as part of the backloading
remedy.” Id. The Court still required Hilton to begin the process of paying out original benefits
to newly vested participants. Id. at 10-11. The Court’s granting of the stay was contingent upon
Defendants posting a bond in the amount of $75.8 million, “Hilton’s undisputed estimate of the
increased liability the Plan faces under the Court’s judgment in 2012, in order to secure
Plaintiff’s interest in the judgment.” Id. at 9.
3

On December 14, 2012, the Court of Appeals affirmed the Court’s liability and remedial
orders. See Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718 (D.C. Cir. 2012). The Court
of Appeals mandate was issued on January 23, 2013. See Ct. of Appeals Mandate, ECF No.
[340]. Accordingly, the stay of the Court’s final remedial order, which had been stayed until
thirty days after the resolution of the parties’ appeal, was lifted and the Court’s two-year
continuing and exclusive jurisdiction over the parties and over the administration and
enforcement of its final remedial order began to run on February 22, 2013.

The Court’s

jurisdiction over the parties and the administration and enforcement of the August 31, 2011, final
remedial Order terminates on February 23, 2015.
Following the Court of Appeals’ mandate, Defendants filed a Motion for Clarification,
which the Court granted in part, clarifying that Defendants were not required to enact and
implement the Plan amendment until after the Court’s resolution of Plaintiff’s motion for
attorney’s fees. Order (Oct. 11, 2013), ECF No. [366], at 4–5. The Court ordered Defendants to
“amend the Plan within seven days of the Court’s final order on the Plaintiff’s motion for
attorney’s fees.” Id. at 5–6. In turn, the Plan amendment required that the amendment “be
implemented as soon as administratively feasible, but no later than 90 days from date of Court’s
final order resolving the Plaintiff’s motion for attorney’s fees, with respect to any payment
required, or required to be increased.” See id. at 7 (internal brackets omitted).
On November 18, 2013, the Court entered its final order on Plaintiff’s Motion for
Attorney’s Fees. Order (Nov. 18, 2013), ECF No. [375]. Accordingly, Hilton was required to
amend the Plan by no later than November 25, 2013, and implement the amendment by no later
than February 16, 2014.

4

B. Hilton’s Efforts to Satisfy the Court’s Judgment
As evidence of the efforts they have made to satisfy the Court’s August 31, 2011,
judgment, Defendants present sworn declarations from Javier Hernandez, Principal and
consulting actuary with Aon Hewitt, the firm Hilton hired to provide recordkeeping and other
consulting services in support of Hilton’s administration of the Plan;2 from Michael W. Duffy,
Senior Vice President—Corporate Accounting of Hilton Worldwide, Inc.;3 and from Ted Nelson,
Vice President Benefits Americas of Hilton Worldwide, Inc.4 These sworn declarations detail
the efforts Defendants have made to comply with the Court’s judgment.
Plaintiff has challenged Defendants’ reliance on these declarations, arguing that they are
“conclusory” and not sufficiently detailed to establish Defendants’ compliance or substantial
compliance. Pl.’s Opp’n at 6. Plaintiff contends that Defendants cannot simply rely on summary
declarations or exhibits, but must provide the actual records supporting those exhibits. Id. at 7.
In support of his argument, Plaintiff relies on this Court’s ruling in SEC v. Kenton Capital, Ltd.,
983 F.Supp. 13 (D.D.C. 1997), where this Court rejected defendant’s “bald and conclusory
statements in his affidavit” supporting his contention that he was unable to satisfy an order of
disgorgement because he had repaid several loans.

983 F.Supp. at 15.

The Court finds

Plaintiff’s reliance on Kenton Capital unavailing because that case involved the defendant
himself simply averring that he could not satisfy a court order because he had repaid several
loans. Id. Moreover, it was clear to the Court that the defendant had more than sufficient assets

2

Declaration of Javier Hernandez (“Hernandez Decl.”), ECF No. [382-2]; Supplemental
Declaration of Javier Hernandez (“Hernandez Suppl. Decl.”), ECF No. [386-2].
3

Declaration of Michael W. Duffy (“Duffy Decl.”), ECF No. [382-3].

4

Declaration of Ted Nelson (“Nelson Decl.”), ECF No. [386-3].
5

to make the required payment. Id. at 16. Here, by contrast, Defendants have provided sworn
declarations from Hilton officials intimately involved with the benefits process and from an
official from the accounting firm responsible for administrating the Plan, all attesting in great
detail how Defendants have complied with the Court’s judgment. Defendants also provided
directly to Plaintiff’s counsel a summary categorization spreadsheet, “detailing participant-byparticipant, which class members had been paid increased benefits or sent notices of increased
benefits, including how much was paid to each participant.”

Defs.’ Opp’n at 5-6 (citing

Declaration of Jonathan K. Youngwood, ECF No. [386-1], Ex. C; Declaration of Allison C.
Pienta (“Pienta Decl.”), ECF No. [385-5], Ex. 4, at 3). Defendants’ declarations do not make
“bald and conclusory” assertions that the judgment has been satisfied, but break the class
members down into different categories and detail the efforts they have made to satisfy the
judgment as to each category and sub-category of class members. Most importantly, through the
briefing of these two motions, Plaintiff has had the opportunity to challenge Defendants’
representations in their declarations. The Court engages with each of those challenges in this
Memorandum Opinion. Although the Court shall order Defendants to provide limited additional
information regarding their efforts to locate class members as discussed below, Plaintiff’s
challenges do not put into question the Court’s reliance on Defendants’ declarations.
Accordingly, the Court finds that Defendants’ declarations provide sufficiently detailed and
reliable evidence for the Court to rely on these declarations in evaluating whether Defendants
have complied with the Court’s August 31, 2011, judgment.
The declarations supporting Defendants’ Motion to Release the Supersedeas Bond
Obligation present the following information regarding Defendants’ compliance with the Court’s
August 31, 2011, judgment.

Defendants state that three days after the Court’s attorney’s fees
6

order, Hilton executed the Plan amendment pursuant to the Court’s August 31, 2011, and
October 13, 2013, orders. See Duffy Decl. ¶ 7. In addition, Defendants sent notices of increased
benefits to approximately 20,000 class members. Hernandez Decl. ¶ 6. Of these class members,
Hilton has paid lump sum payments or increased annuities to more than 11,000 class members
totaling $33.3 million. Hernandez Suppl. Decl. ¶ 4. Hilton has provided notice of increased
benefits to another approximately 5,600 class members who are not currently in pay status or
have chosen not to begin their benefits yet. Hernandez Decl. ¶ 8. As to these approximately
16,600 class members, Defendants contend that they have fully satisfied the Court’s judgment
because these class members have received the full benefit they are due from the Court’s
judgment at this point. Defs.’ Reply at 8.
As for the remaining class members, Hilton contends that they are class members whom
“neither Defendants nor Plaintiff have, after significant efforts, been able to locate or from whom
Defendants require information from the class member before Defendants can process the
payment.” Id. at 7. Specifically, Defendants aver that 1,847 Plan participants or their survivors
have not responded to the notice of benefit increases or have had their notices returned as a “bad
address” by the United States Postal Service. Hernandez Decl. ¶ 7. Defendants have not
identified any address for another 149 participants who are eligible for a benefit increase. Id.
Approximately 1,400 class members have not received any payment because they have not
responded to benefit communications seeking information necessary to pay their benefits. Id.
Finally, Hilton is presently taking steps to confirm that 135 claimants of deceased participants’
benefits are in fact the appropriate payee. Id.
Defendants note that Hilton enlisted a search firm, Pension Benefit Information
Participant Research Services (“PBI”), which was approved by the Court, to search for and
7

update the addresses of Plan participants so that they could be notified of their benefit increases
and paid. Id. ¶ 4. Hilton has also used information provided by Plaintiff about Plan participants’
addresses in its efforts to locate all Plan participants. Id. ¶¶ 4, 7.
Finally, Defendants aver that they have paid Plaintiff’s counsel $21,738,000 in attorney’s
fees and expenses pursuant to the Court’s final attorney’s fees order and sent Plaintiff’s counsel
the $50,000 incentive award due Mr. Kifafi. Duffy Decl. ¶ 9.
II.

LEGAL STANDARD

A. Supersedeas Bond
Under Federal Rule of Civil Procedure 62(d), an appellant may obtain a stay of a
judgment pending appeal by posting a supersedeas bond. Fed. R. Civ. P. 62(d). “The purpose of
a supersedeas bond is to preserve the status quo while protecting the non-appealing party’s
rights pending appeal.” Halliburton Energy Services, Inc. v. NL Industries, 703 F. Supp. 2d 666,
669 (S.D. Tex. 2010) (quoting Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart,
Inc., 600 F.2d 1189, 1190–91 (5th Cir. 1979)). Typically, “[c]ourts release supersedeas bonds
when the bond has served its purpose and no outstanding judgment remains.” Goss Int'l Corp. v.
Tokyo Kikai Seisakusho, Ltd., No. 00–CV–35–LRR, 2006 WL 4757279, at *3 (N.D. Iowa Aug.
9, 2006) (citations omitted). “A supersedeas bond posted for a stay of execution of judgment
should be released once all appeals are exhausted, the stay has been lifted and full payment has
been made.” Id. (citation omitted). In certain circumstances, however, courts will release the
supersedeas bond even though the judgment award has not yet been fully paid. See, e.g.,
Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic
Defense System, Inc., No. 98–CV–1165–B, 2012 WL 2152068, at *3 (S.D. Cal. June 12, 2012)
(entering an order of satisfaction stating that Defendant “paid the bulk of the judgment but that it
8

may also be liable for attorney’s fees and pre-judgment interest”); Halliburton Energy Services,
Inc., 703 F. Supp. 2d at 670 (releasing the bond where the “outstanding exposures at the Site
[were] either nearly resolved or beyond the scope of the monetary award that the bond is
securing” and defendant had “indicated that it will pay the outstanding amounts . . . within the
next two weeks.”).
B. Post-Judgment Discovery
“A court’s powers to enforce its own injunction by issuing additional orders is broad,
particularly where the enjoined party has not fully complied with the court’s earlier orders.”
National Law Center on Homelessness & Poverty v. U.S. Veterans Admin., 98 F.Supp.2d 25, 2627 (D.D.C. 2000)); see also Mass. Union of Public Housing Tenants v. Pierce, No. 78–1895,
1983 WL 150, at *4 (D.D.C. Jan. 17, 1984) (“It is undisputed that a Court has the power to
enforce its orders, . . . and that in addition, a court has the authority to inquire whether there has
been any disobedience of its orders.” (citing Shillitani v. United States, 384 U.S. 364, 370
(1965); In re Debs, 158 U.S. 564, 595 (1895); and In re Williams, 306 F. Supp. 617 (D.D.C.
1969))). However, “before a court . . . permits extensive discovery of suspected violations of its
judgment, there should be at least a prima facie showing by the aggrieved party of disobedience
of the order.” 800 Adept, Inc. v. Murex Sec., Ltd., No. 6:02-cv-1354-ORL-19DAB, 2007 WL
2826247, at *2 (M.D. Fla. Sept. 25, 2007) (quoting N.W. Controls, Inc. v. Outboard Marine
Corp., 349 F. Supp. 1254 (D. Del. 1972)); see also Pierce, 1983 WL 150, at *4 (concluding that
“since plaintiffs have failed to present a prima facie case for non-compliance with the final
judgment of the Court, no further discovery will be allowed.”). A court may find that a party
moving for post-judgment discovery failed to meet its burden based on the nonmoving party’s
evidence of compliance with the court’s judgment. See Cent. Soya Co. v. Geo. A. Hormel & Co.,
9

515 F. Supp. 798, 800 (W.D. Okla. 1980) (finding plaintiff not entitled to post-judgment
discovery based on defendant’s affidavit evidencing its compliance with court’s judgment); see
also Pierce, 1983 WL 150, at *4 (finding plaintiff “failed to present a prima facie case for noncompliance” given defendant’s evidence of compliance).
III.

DISCUSSION

The Court’s main task for resolving both motions before the Court is the same: determine
to what extent Defendants have complied with the Court’s August 31, 2011, judgment. Plaintiff
proposes two different ways to measure Defendants’ compliance. First, Plaintiff asks the Court
to look at the numbers; specifically, the dollar amount Defendants estimated they would spend
satisfying the judgment in its first year as compared to the dollar amount Defendants have
actually spent implementing the judgment in its first year. Second, Plaintiff asks the Court to
consider the class members to whom Defendants have paid their portion of the judgment.
According to Plaintiff, Defendants have not complied with the Court’s judgment under either
measure.
The Court notes at the outset that it is not inclined to measure Defendants’ compliance
based on the estimated and actual dollar amounts spent on the judgment. Defendants assert that
they have paid approximately $33.3 million in increased benefits to class members. Plaintiff
notes that this number is substantially lower than the $75.8 million in judgment liabilities Hilton
estimated it would incur in the first year of implementing the judgment when the Court set the
bond in 2012. Pl.’s Opp’n at 41. Plaintiff also notes that it is lower than the $87 million in
benefits which Hilton stated in its 2014 10-K report that it expected the Plan would pay out in its
first year of implementing the judgment. Id. at 24.

The Court will not measure Defendants’

compliance based on how close Defendants have come to paying out $75.8 or $87 million or any
10

other estimated amount in judgment liabilities because these amounts were clearly and simply
estimates. As Hilton’s Vice President Benefits Americas notes in his sworn declaration, the $87
million estimate is “an upper boundary on the amount that could be paid during 2014.” Nelson
Decl. ¶ 5. It “is calculated based on certain assumptions, including, but not limited to, that
participants not yet receiving benefits will generally choose to receive their benefits at age 61 . . .
and that all participants, surviving spouses, and heirs can and will be identified and located
during 2014.” Id. Similarly, the other dollar amounts by which Plaintiff seeks to measure
Defendants’ compliance are broad estimates liable to constant change given the many factors
that determine when and whether a Plan participant or beneficiary will ultimately receive a
retirement benefit. See Pl.’s Reply at 10-11. The fact that Defendants have not paid out an
amount close to the amounts they estimated they would pay does not mean Defendants have
been doing something wrong and are not compliant with the Court’s judgment. As such, the fact
that Defendants have not paid out the amount they broadly estimated they would pay in
satisfying the Court’s judgment is not by itself significant. What is significant to measuring
compliance are Defendants efforts to remit payments to class members. Indeed, Plaintiff himself
appears to recognize that this is the most appropriate measure of Defendants’ compliance
because the majority of Plaintiff’s briefing is focused on critiques of Hilton’s efforts to locate
and pay all class members.
Accordingly, in evaluating Defendants’ compliance with the Court’s judgment, the Court
will consider the efforts Hilton has made to reach and pay all class members and the number of
class members Hilton has paid or for whom Hilton has otherwise satisfied the judgment. The
Court accepts Defendants’ representations that they have paid benefit increases to more than
11,000 class members and notified of their benefit increase approximately 5,600 class members
11

who are not currently in pay status or have chosen not to begin their benefits yet. The Court
finds that Defendants’ have satisfied the judgment as to these approximately 16,600 class
members. The only remaining question before the Court then is whether Defendants can be
considered in compliance with the Court’s judgment in light of their efforts to locate and pay the
remaining class members.
The Court recognizes that Defendants are attempting to implement a judgment that is not
static or sum certain. The provision of retirement benefits is a constantly evolving process as the
status of Plan participants and benefits due is perpetually changing. Consequently, in evaluating
whether Defendants have complied with the judgment, the Court is looking for systemic
problems or failures in Defendants’ implementation of the judgment. While refinements and
adjustments to Defendants’ efforts to implement the judgment might be appropriate, the
propriety of such improvements would not undermine the Court’s finding that Defendants have
complied overall with the judgment. The Court shall address in turn below each of Plaintiff’s
arguments that Defendants are not in compliance with the Court’s judgment. Ultimately, the
Court finds that Defendants are in compliance such that they satisfied the terms of the Court’s
judgment. Accordingly, the Court shall grant Defendants’ request to release the supersedeas
bond.
A. Compliance with the Judgment
i.

Class Members Listed as “No Benefit Increase Due”

Plaintiff’s first category of arguments relates to class members whom Plaintiff alleges
have not been paid benefits which they are due. Specifically, Plaintiff argues that Hilton’s most
recent summary categorization spreadsheet inaccurately categorizes 663 individuals as “No

12

Benefit Increase Due” when they are due a 1999-1 Amendment5 benefit or a 1999-1 Amendment
benefit and a backloading benefit. Pl.’s Opp’n at 26. Plaintiff also argues that Retirement
Calculator records provided by Hilton in October 2009 show that “at least 1,082 individuals are
due 1999-1 benefit increases that have not been paid.” Id. at 26-27.
In their Reply, Defendants argue that Plaintiff’s concerns about payments of the 1999-1
Amendment benefits are irrelevant to Defendants’ compliance with the Court’s August 31, 2011,
judgment because the 1999-1 Amendment was outside the scope of this case. Defendants clarify
that the spreadsheet they provided Plaintiff only reflects “payments to class members who are
due a backloading Plan amendment benefit increase”—it does not reflect “payments due only a
1999-1 Amendment because the 1999-1 Amendment was not implemented under the Court’s
order . . . .” Defs.’ Reply at 12 (citing Hernandez Suppl. Dec. ¶ 5). Thus, “No Benefit Increase
Due” means that no benefit increase is due under the backloading Plan amendment alone. Id. at
12. Defendants explain that, accordingly, 487 of the participants on the spreadsheet are listed as
“No Benefit Increase Due” because they are due only a 1999-1 Amendment benefit. Id. (citing
Hernandez Suppl. Decl. ¶ 6).

Defendants provide four alternative reasons for why the

participants whom Plaintiff has identified as due both a 1999-1 Amendment benefit and a
backloading benefit are listed as “No Benefit Increase Due.” Id. at 12-13.
The Court agrees with Defendants that payment of the 1999-1 Amendment benefits is
outside the scope of this case. Indeed, the Court explicitly stated in its December 28, 2011,
Order that “the payment of benefits under the 1999-1 Amendment are outside the scope of this

5

Shortly after Plaintiff moved for class certification in November 1998, Hilton amended
the Plan’s benefit accrual formula. The 1999 amendment (“1999-1 Amendment”) sought to
comply with ERISA’s fractional rule and changed two unrelated aspects of the Plan that lowered
benefits for participants. See Kifafi, 616 F. Supp. 2d at 16.
13

case. The Plaintiff never challenged the Amendment, and the Court has never ruled on its
validity except to say that it did not moot the class’ backloading claims.” Order (Dec. 28, 2011),
ECF No. [304], at 8; see also Kifafi v. Hilton Hotels Retirement Plan, 999 F.Supp.2d 88, 98 n. 5
(D.D.C. 2013) (“payment of the baseline benefits under the 1999-1 Amendment and the
Amendment’s validity has always been outside the scope of this case . . . .”). Accordingly, to the
extent that Plaintiff has concerns about the payment of 1999-1 Amendment benefits from the
information provided in the summary categorization spreadsheet6 or Hilton’s Retirement
Calculator,7 these concerns have no bearing on Defendant’s compliance with the Court’s August
31, 2011, judgment and are not appropriately raised in this forum. The more appropriate forum
would be Hilton’s own claims appeals process. See Order (Dec. 28, 2011), at 8 (“If a participant
believes they have not received the ‘baseline’ benefits owed under the Plan generally or as a
result of intervening amendments, the administrative appeals process is the proper forum for that
dispute.”).
Hilton’s own claims appeals process is also the most appropriate forum for Plaintiff’s
challenge to Defendants classifying as “No Benefit Increase Due” approximately 250
participants who Plaintiff alleges are due both a 1999-1 Amendment benefit and a backloading
benefit. Defendants provide four reasons for why a participant in this category might not be due
6

Defendants have clearly explained why participants due only a 1999-1 Amendment
benefit are listed as “No Benefit Increase Due” on the summary categorization spreadsheet and
explained that, of those participants, 374 are in pay status and have been paid their 1999-1
Amendment benefit, and 113 are not yet in pay status, but will be paid their benefit when they
enter pay status. Defs.’ Reply at 12 (citing Hernandez Suppl. Decl. ¶ 6).
7

The Court notes that even though Plaintiff’s arguments about Defendants’ payment of
the 1999-1 Amendment benefits are outside the scope of this case, Defendants nevertheless
investigated Plaintiff’s claim that 1,082 individuals have not been paid their 1999-1 Amendment
benefit per the Retirement Calculator records. Defendants provided an explanation for why these
individuals have not been paid and have been working to provide corrective payments for the
affected participants. See Defs.’ Reply at 14-15 (citing Hernandez Suppl. Dec. ¶ 12).
14

a backloading benefit increase based on that participant’s particular life or payment history. See
Defs.’ Reply at 12-13. Plaintiff’s challenge to the non-payment of these individuals is more
appropriately characterized as a challenge to the denial of an individual claim as opposed to a
broader challenge to Defendants’ overall compliance with the Court’s judgment. To the extent
Plaintiff’s counsel identifies individuals in this category who believe they are owed a benefit
payment, Hilton’s claims appeals process is the most proper forum for Plaintiff’s counsel to
address that complaint.

While Plaintiff may have identified instances where individual

adjustments for individual class members need to be made through Hilton’s claims appeals
process, these individual claims do not affect Defendants’ overall compliance with the judgment
nor evidence a systemic failure in the implementation.

Accordingly, the Court finds that

Plaintiff’s concerns about the payment of benefits to these categories of participants have no
bearing on Defendants’ overall compliance with the Court’s August 31, 2011, judgment.
ii.

Adequacy of Efforts to Confirm Class Members’ Addresses

Plaintiff’s second category of arguments relates to Defendants’ efforts to locate class
members.

Plaintiff argues that Defendants are mailing notices of benefit increases to

unconfirmed addresses, but are not doing any follow-up for 4,121 notices sent when there has
been no response to the notice or the mail is returned as undeliverable. Pl.’s Opp’n at 32.
Plaintiff also argues that Defendants have prematurely ended efforts to locate 149 individuals
with “no addresses.” Id. at 33. Plaintiff contends that, through their own efforts, they have been
able to locate alternative addresses for each of the 149 “bad address” class members. Id.
Defendants contend that they are making sufficient efforts to locate and follow-up with
class members whose addresses are unconfirmed. Defendants explain that they have used PBI—
the search firm approved by the Court—to locate class members and that the Court did not order
15

that they make any additional efforts to locate class members. Defs.’ Reply at 22. Defendants
further explain that when a notice addressed to a “bad address” is returned, “Defendants review
their files for any additional addresses, including any provided by Plaintiff. A mailing is then
sent to the address believed to be the next best address.” Id. at 21-22 (citing Hernandez Suppl.
Decl. ¶ 27).
Defendants are correct that the Court has “decline[d] to order Hilton to take additional
steps beyond utilizing PBI to locate” class members.

Kifafi, 826 F. Supp. 2d at 44.

Nevertheless, the robustness of Defendants’ efforts to locate class members has been a
continuous complaint on Plaintiff’s part. Accordingly, the Court shall order Hilton and PBI to
place on the public record a sworn declaration regarding their search efforts in order to resolve
this issue prior to the expiration of the Court’s jurisdiction on February 23, 2015. Specifically,
the Court shall order Defendants to provide a sworn declaration to the Court averring as to
whether they have verified that the addresses located by Plaintiff for the 149 “bad address” class
members are indeed correct addresses. The Court shall also order PBI to provide in this sworn
declaration a description of their efforts undertaken to locate class members and, specifically, to
follow up when no response is received or a notice is returned as undeliverable or as addressed to
a bad address. PBI shall also indicate whether they have taken all steps to locate class members
in conformance with prevailing industry practices. If PBI is making all efforts to locate class
members in conformance with prevailing industry practices, the Court, in turn, will be satisfied
that Defendants are making all efforts to locate class members in compliance with the Court’s
orders.

While it is possible that the declaration provided by Hilton and PBI will reveal

improvements that could be made to Defendants’ efforts to locate class members, the Court
nevertheless finds that any room for improvement does not undermine the conclusion that
16

Defendants’ efforts to locate class members are in compliance with the Court’s judgment.
iii.

Adequacy of Efforts to Distribute Payments to Located Class Members

Plaintiff’s third category of arguments revolves around the notices and information forms
Defendants sent to class members to obtain information necessary to pay each class member his
or her benefits. Plaintiff contends that the inefficiencies in these forms and the manner in which
they are sent out keep class members from obtaining their benefits. Specifically, Plaintiff takes
issue with the fact that Defendants do not send a “form for early or normal retirement” along
with the notice of benefit increase when the notice is sent to a class member. Pl.’s Opp’n at 30.
Plaintiff also challenges the Information Form that Defendants send to surviving spouses and
non-spouse beneficiaries. Plaintiff claims it is not necessary for these forms to request Death
Certificates, information about all of the decedent’s marriages and the decedent’s creditors, nor
is it necessary to request the form be notarized. Id. at 28. Within the same category of
complaints, Plaintiff contends that he has received three reports that the call center Defendants
established to answer inquiries about increased benefits is providing incorrect information to
class members “including information discouraging class members from pursuing their rights to
benefits.” Id. at 35.
Defendants explain that they do not send retirement forms along with the initial notice of
increased benefits because they do not want to send “highly personal and sensitive benefit
information” to a class member before receiving that class member’s confirmation, in response
to the notice, that Defendants are contacting the class member at the correct address. Defs.’
Reply at 20 (citing Hernandez Suppl. Decl. ¶ 26). As for the information requested on the
Information Form, Defendants argue that they are taking reasonable steps to ensure that
payments are made to the proper payees and to determine the value of any benefit due. Id. at 1517

16 (citing Hernandez Suppl. Decl. ¶¶ 14, 15). Finally, Defendants argue that three reports that
the call center provided class members incorrect information is not evidence that Defendants are
noncompliant with the Court’s judgment order. Id. at 25. Defendants emphasize that they
regularly “provide[] re-training to the entire call center team,” they “conduct[] monthly random
call audits to monitor customer service quality and the accuracy of the information provided by
representatives,” and “when any quality or accuracy issues are uncovered, they are immediately
addressed and re-training conducted as necessary to correct them.” Id. at 25 (citing Hernandez
Suppl. Decl. ¶ 34).
After reviewing all notices and information and retirement forms provided by the parties
as exhibits to their briefs, the Court finds that Defendants are generally taking reasonable steps to
ensure that the most class members receive their benefits while also protecting privacy concerns
and ensuring that benefits are actually dispersed to the proper payee. The Court agrees with
Defendants that it is in all parties’ interest for Defendants to first ensure that they have the
correct address for a class member before sending that class member their retirement forms.
However, if PBI or Defendants have confirmed the class member’s address, the Court finds there
is no reason for Defendants not to send the increased benefits notice and retirement forms to the
class member in the same mailing.
The Court finds that Defendants have provided reasonable explanations as to why the
information they are requesting of surviving spouses and non-spouse beneficiaries on the
Information Form is needed. The Court does not find it unduly burdensome to require the
completed Information Form to be notarized. The Court does agree with Plaintiff, however, that
Defendants should use the Social Security Master Death Index instead of requesting Death
Certificates of class members since such a request is unnecessarily burdensome given that
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Defendants can efficiently learn of a participant’s date of death through the Master Death Index.
While the Court understands that requiring Defendants to search the Social Security Master
Death Index instead of waiting for the class member to produce a Death Certificate will result in
additional work for Defendants, unless there are grounds to assert that the Social Security Master
Death Index is an unreliable source, the Court finds that eliminating the Death Certificate
requirement will cut down on additional paperwork that beneficiaries need to gather. Assuming
the Social Security Master Death Index is reliable, Defendants shall eliminate the request for
Death Certificates from the Information Form sent to class members going forward.
Furthermore, the Court understands that the Information Form now sent to class members
replaces a more ad hoc method of requesting information that Defendants employed when they
first began implementing the Court’s judgment. If Defendants did not receive the information
they needed from this earlier ad hoc method, Defendants should send the new Information Form
to the class members from whom they have not received the requested information.8 The
modifications the Court is requiring to Defendants’ notice and information-gathering system
should not be viewed as evidence that Defendants have not complied with the Court’s overall
judgment, but should be viewed simply as certain improvements the Court is requiring be made
8

Defendants developed the Information Form as a more comprehensive and systematic
method of collecting information from beneficiaries. Defs.’ Reply at 15 (citing Hernandez
Suppl. Decl. ¶ 14). When they initially began implementing the Court’s judgment, Defendants
had been collecting the information they needed through ad hoc requests on benefit increase
notices and were requiring documents such as birth certificates, letter testamentary, and letters of
administration. Id. Plaintiff challenges these requirements as unnecessary and unduly
burdensome in his briefing. See Pl.’s Opp’n at 27-28. However, since Defendants no longer
require these documents in the new Information Form, the Court need not address Plaintiff’s
arguments. See Pienta Suppl. Decl. ¶ 33. To the extent that these requirements in Defendants’
initial notice letter created a barrier to class members obtaining their benefits, the Court seeks to
remedy such a barrier by requiring Defendants to send the new Information Form to class
members from whom Defendants never received the necessary information for dispersing their
benefits.
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to Defendants’ system for implementing the judgment.
Finally, the Court agrees with Defendants that they are taking all reasonable steps to
ensure that the information provided to class members by the call center is accurate. Evidence
that three class members allegedly received inaccurate information does not support a finding
that Defendants have not complied overall with the Court’s judgment. In sum, the Court finds
that Defendants are generally taking reasonable steps to ensure that the most class members
receive their benefits.
iv.

Progress with Newly Vested Class Members and Vesting Service Claimants

Plaintiff’s fourth category of complaints is that Defendants have not paid benefits to a
sufficient number of newly vested participants or vested a sufficient number of “union service”
claimants for the Court to view the judgment as satisfied. Specifically, Plaintiff complains that
only 212 of the 713 newly vested participants have been paid according to Defendant’s summary
categorization spreadsheet. Pl.’s Opp’n at 29. Of the 2,612 class members who were selected to
receive union service claim noticing, Plaintiff complains that only 551 vesting claims have been
received and only 165 of those claims have resulted in vesting. Id. Plaintiff alleges that class
members who contacted the call center were discouraged from filing claims unless they were
positive they had union service. Pienta Suppl. Decl. ¶ 48. In regards to the union service vesting
claims, Plaintiff also argues that Defendants’ letters denying vesting claims do not comply with
the requirement set out in ERISA, and mirrored in the Plan itself, that all denials of claims shall
set forth “the specific reason or reasons for the adverse determination” and describe the
procedures for reviewing the adverse determination. Pl.’s Opp’n at 29-30 (quoting The Plan,
ECF No. [341-2], Ex. C, at § 7.2).
Defendants respond that 588 participants have been paid or are deferred vested and have
20

been noticed their entire benefit, and another 68 were paid their original and 1999-1 Amendment
benefit. Defs.’ Reply at 18 (citing Hernandez Decl. ¶¶ 20-22). Defendants explain that “[a]s is
true for all participants due a true up, the only participants who remain unpaid are participants
that have not been located by any party or for whom information is needed from the participant
to complete payment.” Id. at 18. Defendants contend that Plaintiff’s argument that Defendants
have made little progress in paying these participants is based on a misinterpretation of the
benefits reflected in Defendants’ summary categorization spreadsheet as discussed in Part III.A.i.
Id. at 17. As for union service claims, Defendants respond that while the claims evaluation
process was “slowed by the [Social Security Administration] giving conflicting advice on
whether it would accept the form approved by the Court,” Defendants “properly administered the
union service claims process” ordered by the Court, determined all union service claims that
were received, mailed notices to claimants informing them if they were vested with the claimed
service credited, and have paid 100 of the 166 individuals who were vested. Id. at 18-19 (citing
Hernandez Suppl. Decl. ¶¶ 23-25). Of the remaining participants, 48 are deferred vested and not
yet in pay status, three are deceased and in the claims review process, one has a bad address and
has not been located, and 14 have been sent the paperwork to start their benefit, but have not yet
responded.9 Id. at 20 (citing Hernandez Suppl. Decl. ¶ 24).
The Court finds that Defendants have made sufficient efforts towards satisfying the
Court’s judgment for these class members. This category of complaint is in essence a complaint
that Defendants have not paid benefits to enough class members in these two categories.

9

As of Defendants’ February 2, 2015, Status Report on the Mailing of Union Service
Notice and Claim Forms, 552 individuals have returned union service claim forms or a Social
Security Earnings Request form and Defendants have vested 171 participants who are due a
benefit. Status Report (Feb. 2, 2015), ECF No. [398], at 4.
21

However, as was made clear in the discussion relating to Plaintiff’s second and third category of
complaints, payment to all class members is not necessarily immediately feasible or immediately
due or, in the case of union service claimant class members, ever due. Consequently, the
dispositive question is whether Defendants have made reasonable efforts to comply with the
judgment and pay those who are due benefits and whether they will continue to make such
efforts. In regards to these specific categories of class members, Plaintiff does not offer any new
argument concerning Defendants’ compliance efforts that has not been addressed by the Court in
relation to Plaintiff’s previous two categories of complaints.

The Court has found that

Defendants are making reasonable efforts to comply with the Court’s judgment and shall order
Defendants to provide the information and make the changes discussed above to assure the Court
that the maximum number of class members receives the benefits they are due. To the extent
that Plaintiff uses this category of arguments to challenge the denial of vesting for specific
individuals, the Court reiterates that Hilton’s claims appeals process is the proper forum for these
individual complaints.
The Court does, however, share some of Plaintiff’s concern with Defendants’ letter
denying vesting claims. Having reviewed the letter Defendants sent to class members who
“could be eligible to claim additional vesting credit,” the Court finds that it is most appropriately
characterized as a hybrid acceptance/denial letter. See Pl.’s Opp’n, Ex. 12. In the letter,
Defendants explain that they are accepting the class member’s claim to additional years of
service, but then indicate that the class member “did not qualify for benefits under the Plan.” Id.
Pursuant to 29 U.S.C. § 1133 of ERISA “any participant or beneficiary whose claim for benefits
under the plan has been denied” must receive “adequate notice in writing” “setting forth the
specific reasons for such denial” and “a reasonable opportunity” “for a full and fair review by the
22

appropriate named fiduciary of the decision denying the claim.” The Plan parrots this language
and more explicitly requires the “claimant’s right to a review” be explained in the denial letter.
See The Plan, Ex. C, at § 7.2. While the Court finds that the letter sufficiently explains the basis
for the denial of benefits—“with the additional service, you did not qualify for benefits under the
Plan”—the letter does not meet Plan requirements because it does not provide an explanation of
the procedures for reviewing adverse determinations. Pl.’s Opp’n, Ex. 12 (emphasis added).
Accordingly, Defendants shall amend the “denial letter” to provide notice of the claimant’s right
to review if his or her claim to additional vesting service does not result in a benefit under the
Plan. Changing the letter does not change the outcome that a class member did not qualify for
benefits, but it does provide the class member notice of how to challenge the outcome.
Defendants shall also send the amended “denial letter” to those claimants who already received a
“denial letter” without the notice of the claimant’s right to review.
v.

Other Compliance Concerns
a.

Notice to Social Security Administration

Among Plaintiff’s final complaints, Plaintiff argues that Defendants are not fully
compliant with the Court’s judgment because they have not provided notice of the increased
deferred vested benefits to the Social Security Administration (“SSA”) as required by 26 U.S.C.
§ 6507(a). Pl.’s Opp’n at 31-32. The provision of such notices to the SSA was not part of this
Court’s judgment. These notices are required by statute and the Court assumes that Defendants
will follow the statute. Accordingly, Plaintiff’s complaint regarding SSA notices has no bearing
on the Court’s evaluation of Defendants’ compliance with the Court’s judgment.
b.

Default Presumptions

Likewise, Plaintiff’s argument that Defendants are not using defaults to process payments
23

fails to establish that Defendants are not complying with the Court’s judgment. Id. at 33-34.
None of the Court’s orders have required the use of presumptions in paying benefits to class
members. Indeed, in the Court’s August 31, 2011, final remedial Order, the Court specifically
rejected the use of presumptions similar to those which Plaintiff is presently arguing Defendants
should employ. See Kifafi, 826 F. Supp. 2d at 41-42, 43-44. Accordingly, Plaintiff’s complaint
regarding default presumptions has no bearing on the Court’s evaluation of Defendants’
compliance with the Court’s judgment.
vi.

Release of the Supersedeas Bond

Having made the above findings regarding Defendants’ compliance with the Court’s
August 31, 2011, judgment, the Court concludes that Defendants are in compliance such that the
judgment is satisfied. In sum, the Court finds that Defendants have paid increased benefits to
approximately 11,000 of the approximately 20,000 class members, and sent notices of benefit
increases to approximately 5,600 class members who are not yet in pay status and due a benefit.
Defendants have unquestionably satisfied the Court’s judgment as to these approximately 16,600
class members—a proportion far greater than the 50% satisfaction rate alleged by Plaintiff. As
for those class members who are due a payment, but have not yet received their payments, the
Court finds that Defendants are making reasonable efforts, in compliance with the Court’s
orders, to locate these individuals and to provide them their payment. The Court finds the fact
that Defendants have not yet been able to locate or pay all of these remaining individuals is not
evidence of noncompliance with the Court’s judgment. Defendants have indicated that they are
steadily continuing to locate and pay outstanding class members and the Court finds that the
improvements ordered by the Court as detailed above will facilitate the prompt payment of
benefits to these class members. Accordingly, the Court shall release the supersedeas bond. See
24

Halliburton Energy Services, Inc., 703 F. Supp. 2d at 670 (releasing the bond where the
“outstanding exposures at the Site [were] . . . nearly resolved” and defendant had “indicated that
it will pay the outstanding amounts . . . within the next two weeks.”)
B. Discovery and Judgment Compliance Plan
In Plaintiff’s Opposition to Defendants’ Motion to Release Supersedeas Bond and in
Plaintiff’s Motion for Post-Judgment Discovery, Plaintiff contends that Defendants should
provide to Plaintiff’s counsel the algorithms, calculation results, and mailing or payment records
for the approximately 20,000 class members in this case. Plaintiff presents Defendants’ failure
to provide this information as both evidence of non-compliance with the Court’s judgment, and
evidence of the need for post-judgment discovery to determine Defendants’ compliance with the
Court’s August 31, 2011, judgment. The Court finds that there is no evidence to support either
of these conclusions. The Court has required Defendants to provide the calculation of the
monthly annuity benefit, see Order (Aug. 31, 2011), at 8, and certain union service documents,
Kifafi, 736 F.Supp.2d at 75, but has not required Defendants to provide any of the information
Plaintiff now requests. Accordingly, Defendants’ refusal to provide Plaintiff’s counsel with this
information is not evidence that Defendants have not complied with the Court’s judgment.
The Court further finds that Plaintiff has not met his burden of showing that he is entitled
to post-judgment discovery. As discussed at length in Part A, Plaintiff has not made a prima
facie showing that Defendants have been non-compliant with the Court’s order. See 800 Adept,
Inc., 2007 WL 2826247, at *2 (“[B]efore a court . . . permits extensive discovery of suspected
violations of its judgment, there should be at least a prima facie showing by the aggrieved party
of disobedience of the order.”); Mass. Union of Public Housing Tenants, 83 WL 150, at *4
(concluding that “since plaintiffs have failed to present a prima facie case for non-compliance
25

with the final judgment of the Court, no further discovery will be allowed”).

Moreover,

Defendants have provided Plaintiff with spreadsheets detailing participant-by-participant how
much Defendants have paid in the form of lump sums and the amount that participants’ monthly
annuities have been increased. Defendants have also provided Plaintiff’s counsel with “a copy
of the executed backloading Plan amendment, the latest Actuarial Valuation Report, copies of
letters to union service claimants who were not vested, and additional detail on bad addresses,
union service claims, and current status of participants who have not responded to mailings.”
Defs.’ Reply at 24. As the Court discussed at the outset of this Memorandum Opinion, this
documentation is sufficient for the Court to evaluate Defendants’ compliance with the Court’s
judgment. In his briefing, Plaintiff raised an extensive number of potential problems with
Defendants’ compliance, however, Defendants have either resolved these issues, provided an
acceptable explanation for the issue, or the issue was outside the scope of this case.
Accordingly, the Court finds that there is no need for discovery into Defendants’ compliance
with the Court’s judgment.
In requesting post-judgment discovery and a detailed compliance plan, Plaintiff’s counsel
is effectively requesting to be made a special monitor of the administration of the Plan.
Plaintiff’s counsel has made three previous attempts—in September 2009, April 2011, and
February 2013—to obtain a monitoring position over the administration of the Plan through the
appointment of a third party monitor or the appointment of Plaintiff’s counsel himself as
monitor. See Pl.’s Br. on Equitable Relief, ECF No. [211], at 9-13, 35-36; Pl.’s Proposed Order,
ECF No. [242-8], at 22-23; Pl.’s Class’ Response to Hilton’s Motion for Clarification and
Correction, ECF No. [343], at 18-20. The Court has not accepted any of these attempts. See
Kifafi, 736 F. Supp. 2d at 84-85 (denying Plaintiff’s monitoring plan as too intrusive); Kifafi, 826
26

F. Supp. 2d at 37 (providing mechanism to present vesting and benefit disputes involving issues
decided by the Court to the magistrate judge, but rejecting proposal that Court appoint a special
master); Order (Oct. 11, 2013), at 6 (denying Plaintiff’s request for a monitoring plan). In its
Reply in Support of its Motion to Release Supersedeas Bond, Hilton submitted a sworn
declaration from Ted Nelson, Hilton’s Vice President Benefits Americas, averring that
Hilton is committed to complying with the Court’s orders in the Kifafi . . .
litigation. Hilton has been and will continue to take all reasonable steps within its
power to comply with the Court’s orders, including working with Aon Hewitt, the
Plan administrator, to pay all located participants who have provided information
necessary to calculate the benefit and determine the appropriate payee, sending
notices of benefit increases to located class members, promptly pay class
members who provide information needed to determine the proper benefit amount
and payee, and locate participants using PBI. To that end, Hilton, including
myself, is supervising Aon Hewitt's administration of the Plan to ensure that Aon
Hewitt also takes all reasonable steps within its power to comply with the Court's
order.
Nelson Decl. ¶¶ 3-4. The Court finds that Mr. Nelson is a Hilton official of sufficient authority
and familiarity with the administration of the Plan and, thus, the Court shall hold Defendants
accountable based on Mr. Nelson’s commitment to complying with the judgment. Accordingly,
the Court denies both Plaintiff’s request for post-judgment discovery and request for a detailed
compliance plan.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendants are in compliance such
that they satisfied the terms of the Court’s August 31, 2011, judgment. Taking into account the
constantly evolving nature of providing retirement benefits, the Court is satisfied that there are
no systemic problems or failures in Defendants implementation of the judgment, only a few
refinements to Defendants’ forms and procedures that will further facilitate Defendants
reasonable efforts to implement the judgment. Accordingly, the Court GRANTS Defendants’
27

Motion for Release of Bond Obligation and DENIES Plaintiff’s Motion for Post-Judgment
Discovery and Motion to Modify the Judgment in Aid of Enforcement.
The Court’s jurisdiction over the implementation of the judgment in this case expires on
February 23, 2015. Prior to the expiration of the Court’s jurisdiction, Defendants shall aver in a
sworn declaration as to whether they have verified that the addresses located by Plaintiff for the
149 “bad address” class members are indeed correct addresses; whether PBI has taken all steps
to locate class members in conformance with prevailing industry practices; and the efforts PBI
has undertaken to locate class members and to follow-up when no response is received or a
notice is returned as undeliverable or as addressed to a bad address. Defendants shall file this
declaration with the Court by no later than February 18, 2015.
In addition, Defendants shall amend the “denial letter” sent to union service vesting
claimants to provide notice of the claimant’s right to review if his or her claim to additional
vesting service does not result in a benefit under the Plan. Defendants shall also send the
amended “denial letter” to those claimants who already received a “denial letter” without the
notice of the claimant’s right to review.
Assuming the Social Security Master Death Index is a reliable database, Defendants shall
also eliminate the request for Death Certificates from the Information Form sent to class
members going forward.
In addition to sending the newly amended Information Form to class members going
forward, if Defendants have not received the information requested of a surviving beneficiary
through Defendants’ prior ad hoc system for requesting such information, Defendants shall send
the amended Information Form to the surviving beneficiary from whom Defendants have yet to
receive the necessary requested information.
28

Finally, if PBI or Defendants have confirmed a class member’s address, Defendants shall
send the increased benefits notice and retirement forms to the class member in the same mailing.
Defendants shall file a Notice with the Court by no later than February 18, 2015
indicating that Defendants’ forms and procedures have been modified in conformance with the
Court’s orders outlined above and indicating that Defendants are in the process of sending the
amended “denial letter,” the amended Information Form, and retirement forms to class members
as outlined above.
An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

29