KIFAFI v. HILTON HOTEL RETIRE, et al

Filing 414

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 6/4/2015.(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
(June 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 Defendants’ appeal of the Court’s liability and
remedial orders. Mem. Op. and 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. On February 4, 2015, the Court denied Plaintiff’s Motion for PostJudgment Discovery and Motion to Modify the Judgment in Aid of Enforcement and granted
Defendants’ Motion to Release the Supersedeas Bond Obligation, finding that Defendants have
“satisfied the terms of the Court’s judgment.” Mem. Op. (Feb. 4, 2015), ECF No. [400], at 2.
Presently before the Court is Plaintiff’s Motion for Reconsideration. Upon consideration of the
pleadings,1 the relevant legal authorities, and the record as a whole, the Court shall DENY IN
PART, GRANT IN PART, and HOLD IN ABEYANCE IN PART Plaintiff’s Motion for
Reconsideration.
I.

BACKGROUND

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. Hilton

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The Court’s consideration is focused on the following documents: Plaintiff’s Motion for
Reconsideration (“Pl.’s Mot.”), ECF No. [401]; Defendants’ Opposition to the Plaintiff Class’s
Motion for Reconsideration (“Defs.’ Opp’n”), ECF No. [408]; Plaintiff’s Reply in Support of
Motion for Reconsideration (“Pl.’s Reply”), ECF No. [409]. The Court also considered the
affidavits provided by Defendants pursuant to the Court’s February 4, 2015, Order: Defendants’
Notice of Modifications to the Procedure for Implementing Class Remedies (“Defs.’ Notice of
Modifications”), ECF No. [402]; Declaration of Erin Huening (“Huening Decl.”), ECF No. [403];
Declaration of Mary Nell Billings (“Billings Decl.”), ECF No. [404]; Declaration of Susan
McDonald (“McDonald Decl.”), ECF No. [405].
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Hotels Retirement Plan, 825 F. Supp. 2d 298 (D.D.C. 2011) (order on amendments to remedial
plan). The Court discussed the facts related to the execution of the judgment in this case in its
most recent February 4, 2015, Memorandum Opinion denying Plaintiff’s Motion for PostJudgment Discovery and Modification in Aid of Enforcement and granting Defendants’ Motion to
Release the Supersedeas Bond Obligation. Mem. Op. (Feb. 4, 2015). The Court assumes
familiarity with these opinions and incorporates them as part of this opinion. Accordingly, the
Court shall address only the procedural facts relevant to this Motion for Reconsideration.
In its February 4, 2015, Memorandum Opinion denying Plaintiff’s Motion for PostJudgment Discovery and Motion to Modify the Judgment in Aid of Enforcement and granting
Defendants’ Motion to Release the Supersedeas Bond Obligation, the Court concluded
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.
Id. at 27-28. As refinements to Defendants’ forms and procedures, the Court ordered Defendants
to amend the “denial letter” sent to union service vesting claimants; to eliminate the request for
Death Certificates from the Information Form sent to class members going forward; to send the
newly amended Information Form to surviving beneficiaries from whom Defendants have not
received the requested information; and to send the retirement forms along with the increased
benefits notice to class members whose addresses have been confirmed. Order (Feb. 4, 2015), at
1-2. In addition, the Court ordered Defendants to file several sworn affidavits prior to the
expiration of the Court’s jurisdiction over the implementation of the judgment in this case on
February 23, 2015. Id. Specifically, the Court ordered Defendants to file a sworn affidavit
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indicating whether they have verified that the addresses located by Plaintiff for the 149 “bad
address” class members are indeed correct addresses; whether PBI—the search firm engaged by
Defendants—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. Id.
The Court indicated in an Order issued February 19, 2015, that “the Court’s jurisdiction will
continue as to the issues the Court engaged in resolving in its February 4, 2015, Order to ensure
the judgment is implemented properly.” Order (Feb. 19, 2015), ECF No. [406], at 1-2.
Plaintiff now contends that the Court should reconsider its February 4, 2015, Memorandum
Opinion and Order because (1) they are based on “errors of law and fact” as to Plaintiff’s
compliance with the Court’s judgment, because of (2) “new evidence about Hilton’s failure to
request address and service records from Caesars Entertainment for as many as 33% of the
members of the class,” and because of (3) “the manifest injustice of ending this Court’s supervisory
jurisdiction based on eleventh-hour certifications that Hilton is ‘in the process’ of complying.”
Pl.’s Mot., at 1. The Court shall evaluate each of Plaintiff’s arguments for reconsideration in light
of Federal Rule of Civil Procedure 59(e), the legal standard for motions for reconsideration.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) permits a party to file “[a] motion to alter or amend
a judgment” within “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Motions under
Rule 59(e) are “disfavored” and the moving party bears the burden of establishing “extraordinary
circumstances” warranting relief from a final judgment. Niedermeier v. Office of Baucus, 153
F.Supp.2d 23, 28 (D.D.C. 2001). Rule 59(e) motions are “discretionary and need not be granted
unless the district court finds that there is an intervening change of controlling law, the availability
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of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted). Rule 59(e)
does not provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S.
471, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1
(2d ed. 1995)).
III.

DISCUSSION

A. Alleged Factual and Legal Errors Regarding Defendants’ Compliance with
Judgment
Plaintiff raises a series of alleged factual and legal errors that Plaintiff contends the Court
made in resolving Defendants’ Motion for Release of Supersedeas Bond Obligation and Plaintiff’s
Motion for Discovery and to Enforce Judgment. Many of these arguments are simply reiterations
or reformulations of arguments Plaintiff previously presented to the Court in the briefing of the
parties’ two motions. Nevertheless, the Court shall address each of Plaintiff’s arguments in turn.
i.

Alleged Errors in the Court’s measurement of Defendants’ Compliance

First, Plaintiff repeats his argument that the Court should not find Defendants in
compliance with the Court’s judgment when the amount Defendants have paid toward the
judgment is lower than the stipulated value of the Court’s judgment and when large numbers of
class members have not been paid or notified. In its February 4, 2015, Memorandum Opinion, the
Court explained that it will not measure Defendants’ compliance based on how close Defendants
have come to paying any estimated amount of judgment liabilities because these dollars amounts
“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.” Mem. Op.
(Feb. 4, 2015), at 11. The Court’s reasoning applied equally to the $146.75 million amount that
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the parties stipulated was the value of the Court’s judgment and on which Plaintiff now focuses
his renewed argument. See Pl.’s Mot., at 9. The $146.75 million stipulated value was based on
actuarial estimates and assumptions and included total payments over the lives of the class,
“including many payments not due until years in the future,” and payments that are outside of the
Court’s judgment. Defs.’ Opp’n, at 17. Accordingly, the Court finds that Plaintiff has failed to
show clear error in the Court’s refusal to measure Defendants’ compliance by the amount of
liabilities paid.
Likewise, the Court held in its February 4, 2015, Memorandum Opinion that it was not
measuring Defendants’ compliance based purely on the number of class members reached and
paid, but based on “Defendants’ efforts to remit payments to class members.” Mem. Op. (Feb. 4,
2015), at 11. In that regard, the Court recognized “that Defendants are attempting to implement a
judgment that is not static or sum certain” and that, 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.” Id. at 12. Plaintiff has pointed to no
new evidence, intervening change in the law, or manifest injustice that puts into question the
Court’s approach for measuring Defendants’ compliance.
ii.

Alleged Errors in Court’s Rulings Regarding Defendants’ Efforts to Contact
Class Members

Plaintiff next challenges the sufficiency of Defendants’ efforts to contact class members
based on Defendants’ recently filed affidavits averring to the efforts Defendants and PBI have
taken 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. Plaintiff challenges the veracity of Defendants’
and PBI’s assertions in their affidavits as well as the sufficiency of the efforts they aver they are
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undertaking to locate class members. PBI avers that their location services, when engaged by
Defendants, begin by conducting a death audit, which involves searching the Social Security
Administration’s (“SSA”) Master Death Index and state vital record sources for records of the
individuals’ death. McDonald Decl. ¶ 6. If a participant is deceased, a search for beneficiaries is
conducted. Id. PBI then retrieves the individual’s potential addresses from credit databases and
“mails communications to the best address available seeking confirmation from the individual that
they live at the identified address.” Id. ¶ 7. If a communication is returned as undeliverable or no
response is received from the individual, additional addresses found in the credit databases for that
individual are mailed communications until all addresses are exhausted. Id. PBI provides
confirmed addresses to Aon Hewitt—the Plan administrator—as well as a report indicating the
participants for whom PBI was unable to confirm an address. Id. ¶ 8.
Defendants further aver that if PBI is unable to identify a confirmed address, Aon Hewitt
has sent a Last Known Address letter to all unconfirmed addresses identified by PBI or Plaintiff’s
counsel asking the individual to contact Aon Hewitt to confirm that address. Huenig Decl. ¶ 7. “If
no response is received from any unconfirmed address and Plaintiff’s counsel or PBI subsequently
provide an additional address or addresses, a Last Known Address letter is also sent to any
addresses subsequently provided by Plaintiff’s counsel or PBI.” Id. For addresses to which letters
are returned as undeliverable, in the ordinary course of administering the Plan at Hilton’s direction,
periodic searches are run with PBI, “including in January 2013, May 2013, June 2013, June 2014,
and January 2015.” Id.
Plaintiff challenges the veracity of Defendants’ and PBI’s affidavits alleging that
Defendants’ retainer of PBI to locate class members actually ended in mid-2013 and, since that
time, Aon Hewitt has done nothing when a mailed notice has been returned as undeliverable or
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has not received a response. Pl.’s Mot., at 9-10. Specifically, Plaintiff takes issue with Defendants’
assertion that Defendants have periodically engaged PBI since 2013 to follow up on unconfirmed
addresses. Plaintiff argues that PBI’s declaration describes no such activity. Pl.’s Reply, at 6-7.
To the contrary, the Court finds that PBI’s declaration does aver that “[f]rom time-to-time, Hilton
engages PBI to locate individuals as part of the administration of the Hilton Hotels Retirement
Plan.” McDonald Decl. ¶ 4. Plaintiff also argues that had Defendants actually been periodically
engaging PBI to locate unconfirmed addresses, Plaintiff’s counsel would have been aware because
Plaintiff’s counsel was also researching bad addresses Hilton provided him during the same period
and there was no indication that Plaintiff’s counsel was duplicating periodic work being done by
PBI. Pl.’s Reply, at 7. Plaintiff further notes that Plaintiff’s counsel was also engaging PBI’s
services during this period and thus would have known if PBI was undertaking significant work
on behalf of Defendants. Id. at 8. The Court finds Plaintiff’s challenge to the veracity of
Defendants’ and PBI’s declarations based on his own speculation as to what he would have known
unavailing. It is not inconsistent for Defendants to have periodically engaged PBI to locate
unconfirmed addresses while also providing Plaintiff’s counsel with the unconfirmed addresses at
Plaintiff’s counsel’s request. As both Defendants and PBI affirm in their sworn declarations that
Defendants have periodically engaged PBI since 2013 to locate unconfirmed address, the Court
shall accept Defendants’ and PBI’s descriptions of the efforts they are undertaking to locate class
members.
Having accepted Defendants’ and PBI’s declarations detailing their class member location
efforts, the Court turns to Plaintiff’s argument that the efforts Defendants and PBI are undertaking
are insufficient. Plaintiff cites to Department of Labor guidelines for locating missing participants
as a potential superior approach to locating class participants. See Pl.’s Mot., at 10. However, the
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cited guidelines apply to terminated defined contribution plans as opposed to ongoing defined
benefit plans like the plan at issue in this case and thus are not a proper measure. Although Plaintiff
claims that it has continued to search and locate addresses for class members without confirmed
addresses, Plaintiff does not indicate specifically what steps it has taken to locate addresses,
whether the addresses it has located are confirmed, or propose steps that Defendants should be
taking to locate addresses. The Court finds the procedures outlined by Defendants and PBI in their
affidavits to be thorough and reasonable. However, to resolve any concern that Defendants are
prematurely abandoning their efforts to locate and confirm an address, the Court shall order
Defendants to follow the address location process outlined in the Heuning and McDonald
affidavits for all class members for whom an address has not yet been confirmed. In addition, the
Court shall order the following modifications to this address location process:
1) For non-deceased Plan participants, after PBI has exhausted all potential addresses
identified in the credit databases, PBI shall search for the individual designated as the
beneficiary for the Plan participant and contact this individual to inquire about the
correct address of the participant;
2) If, after Aon Hewitt sends a Last Known Address letter to all unconfirmed addresses
identified by PBI or Plaintiff’s Counsel, no response is received or an address is
returned as undeliverable, Aon Hewitt shall engage PBI no less than every two months
to run a search for potential addresses for the class members with unconfirmed
addresses;
3) Aon Hewitt shall send Last Known Address letters to addresses subsequently found by
PBI or Plaintiff’s counsel if no response is received from an address or if the address
is returned as undeliverable.
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In addition, Plaintiff contends that it was manifestly unjust for the Court to accept the
certification of Hilton’s Vice President for Benefits Ted Nelson as to Defendants’ commitment to
comply with the Court’s judgment since Mr. Nelson certified that compliance was ongoing and
there have been no further certifications since May 2014. Pl.’s Mot., at 12. First, the Court notes
that it never ordered Defendants to certify their compliance with the Court’s judgment and did not
order Defendants to continue to certify compliance or provide the Court with any documents after
its February 4, 2015, Memorandum Opinion and Order beyond the affidavits described above.
Instead, the Court accepted Mr. Nelson’s declaration that “Hilton has been and will continue to
take all reasonable steps within its power to comply with the Court’s orders” and, specifically, to
“locate participants using PBI.” Mem. Op. (Feb. 4, 2015), at 27. As the Court stated in its February
4, 2015, Memorandum Opinion, “the Court shall hold Defendants accountable based on Mr.
Nelson’s commitment to complying with the judgment.” Id. Nevertheless, in light of the fact that
the Court will be ordering Defendants to follow the address location process outlined in the
Heuning and McDonald affidavits with the modifications detailed above, the Court shall order
Defendants to certify to the Court that they have or will comply with the address location process
ordered by the Court for each class member for whom an address has not yet been confirmed.
iii.

Alleged Insufficiencies in Defendants’ Efforts to Make Benefit
Determinations for Surviving Spouses and Beneficiaries

Plaintiff next argues that the Court erred in finding Defendants in compliance with the
Court’s judgment because “surviving spouses and beneficiaries who have actually received notices
[have been informed] that no benefit determinations will be made for at least “ninety (90) days,”
which Hilton recently extended to another “six months.” Pl.’s Mot., at 8. Defendants respond that
it may take up to six months for Defendants to process benefit determinations for beneficiaries
because
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Hilton makes a diligent effort to determine whether there are other potential
competing claimants who have a better, or equal, claim to the benefit, so that the
correct person can be paid. This is a highly factual process. . . . Hilton cannot just
pay a claimant because he represents that he is the heir. The length of time that the
process takes depends on the documentation provided by the claimant. There is no
set amount of time.
Defs.’ Opp’n, at 8 n.1.
As with most of Plaintiff’s arguments in his Motion for Reconsideration, Plaintiff made a
similar challenge to the delay in providing surviving spouses and beneficiaries their benefits in his
briefing of the parties’ original motions.

A Motion for Reconsideration is not a vehicle for

“relitigat[ing] old matters.” Exxon Shipping Co., 554 U.S. at 485 n.5. Plaintiff has provided no
new information to alter the Court’s original finding that Defendants “are generally taking
reasonable steps to ensure that the most class members receive their benefits while also . . .
ensuring that benefits are actually dispersed to the proper payee.” Mem. Op. (Feb. 4, 2015), at
18. The provision of benefits to surviving spouses and beneficiaries is a highly individualized and
fact-bound process and Plaintiff has offered no evidence to suggest that the delays in the provision
of benefits to these class members are attributable to systemic problems as opposed to difficulties
arising from the particular factual circumstances of individual class members. Such individualized
problems are most appropriately dealt with through Hilton’s own claims appeals process.
Accordingly, the Court finds that Plaintiff has failed to show that the Court’s determination that
Defendants were in compliance with the Court’s judgment was clearly erroneous or manifestly
unjust.
iv.

Alleged Insufficiencies in Defendants’ Efforts to Notify the Social Security
Administration (“SSA”) of Deferred Vested Benefits

In addition, Plaintiff once again argues, as he argued originally in his Opposition to
Defendant’s Motion for Release of Supersedeas Bond Obligation, that the Court cannot find
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Defendants in compliance with the Court’s judgment because Defendants have only notified SSA
of “a remarkably low 77 deferred vested benefits.” Pl.’s Mot., at 11 n.5. Although Plaintiff
appears to be citing updated statistics for the number of notifications received by the SSA, these
new statistics do not change the Court’s previous analysis of this argument. A Motion for
Reconsideration is not a vehicle for “relitigat[ing] old matters.” Exxon Shipping Co., 554 U.S. at
485 n.5. As the Court held before, “[t]he provision of such notices to the SSA was not part of this
Court’s judgment.” Mem. Op. (Feb. 4, 2015), at 23. Accordingly, Plaintiff’s renewed complaint
regarding SSA notices has no bearing on the Court’s evaluation of Defendants’ compliance with
the Court’s judgment.
v.

Defendants’ Alleged Failure to Amend Document Requirements per the
Court’s Order

Plaintiff next alleges that Defendants have not complied with the Court’s February 4, 2015,
Order requiring Defendants to amend the content and procedures related to the Information Form
and the Retirement Form sent to class members. Specifically, Plaintiff argues that Defendants
have not truly eliminated the request for Death Certificates from the Information Form because
Defendants aver in their supplemental declaration that they will still request death certificates “as
needed on a case-by-case basis due to suspected inaccuracies in Social Security Master Index File
records or when other information typically contained on death certificates is needed, such as birth
dates and marital status at death.” Defs.’ Notice of Modifications, ¶ 1(c). The Court finds that
Defendants are in compliance with the Court’s February 4, 2015, Order. The Court’s Order only
required Defendants to “eliminate the request for Death Certificates from the Information Form
sent to class members going forward.” Order (Feb. 4, 2015), at 2. Moreover, this Order was to be
executed only if “the Social Security Master Death Index is a reliable database.” Id. (“IT IS
FURTHER ORDERED that, assuming the Social Security Master Death Index is a reliable
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database, Defendants shall eliminate the request for Death Certificates . . . .”); Mem. Op. (Feb. 4,
2015), at 19 (“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”). Pursuant to the Court’s Order,
Defendants eliminated the “automatic request for death certificates” from the Information Form.
Defs.’ Notice of Modifications, ¶ 1(c). Accordingly, the Court understands that Defendants will
not request a death certificate as a prerequisite for a class member making a claim since such a
request would be “unnecessarily burdensome given that Defendants can efficiently learn of a
participant’s date of death through the Master Death Index.” Mem. Op. (Feb. 4, 2015), at 18-19.
However, the Court also understands that once a class member has made a claim and the claim has
been reviewed, there may be instances where it is necessary or most helpful for Defendants to
request the death certificate in order to gather additional information that would be on the death
certificate. Defendants would not be violating the Court’s February 4, 2015, Order by requesting
a death certificate under such circumstances.
Plaintiff also argues that Defendants have not complied with the Court’s order to send
Retirement Forms with the initial benefits notice if a class member’s address has been confirmed
because Defendants have only sent the Retirement Forms to class members whose addresses are
confirmed “going forward.” Pl.’s Reply, at 16. Plaintiff contends that to comply with the Court’s
Order, Defendants should send the Retirement Forms to all class members whose addresses have
been confirmed, even those whose addresses were previously confirmed and whom were already
sent notices of benefit increase. Id. In Plaintiff’s briefing of the parties’ original motions, Plaintiff
did not address or request that the Retirement Forms be sent to class members whose addresses
had already been confirmed and whom had already received the notice of increased benefits.
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Plaintiff only now raises this argument in his Reply in support of his Motion for Reconsideration.
As a result, Defendants have not had the opportunity to respond to this argument and the Court
shall not address it. See Performance Contracting, Inc. v. Rapid Response Const., Inc., 267 F.R.D.
422, 425 (D.D.C. 2010) (“As a general matter, it is improper for a party to raise new arguments in
a reply brief because it deprives the opposing party of an opportunity to respond to them, and
courts may disregard any such arguments.”). As the issue of sending Retirement Forms to class
members who have already received notices of increased benefits was never addressed by the
parties, the Court’s February 4, 2015, Order states simply that “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.”

Order (Feb. 4, 2015), at 2.

Accordingly, the Court finds that Defendants did not violate the Court’s February 4, 2015, Order
by amending their procedures to send Retirement Forms along with increased benefits notices
going forward and not retroactively.
vi.

Alleged Error in Permitting Notarization Requirement

Plaintiff contends that the Court’s approval of the notarization requirement in Defendants’
Information Form as “not unduly burdensome” “does not account for current law.” Pl.’s Mot., at
14. Plaintiff’s sole argument in this regard is that “[d]eclarations under penalty of perjury are
permitted in lieu of notarized affidavits under 28 U.S.C. §1746 and in virtually every state.” Id.
Again, Plaintiff uses his Motion for Reconsideration to make and expand upon arguments that
Plaintiff could have made in the briefing of the parties’ original motions. In briefing the parties’
original motions, Plaintiff only stated that there is “no indication that [the notarization requirement
is] necessary to satisfy the Court’s judgment.” Allison C. Pienta Decl., Pl.’s Ex. A, ECF No. [3851], at 20. Plaintiff did not suggest an alternative to notarization, like Plaintiff now suggests, or
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even argue that such a requirement is unduly burdensome. The fact that federal and certain state
laws permit, in certain circumstances, a declaration under the penalty of perjury in lieu of a
notarized affidavit—a fact to which Plaintiff only now points—does not make the Court’s
determination that Hilton’s notarization requirement was not unduly burdensome clearly erroneous
or manifestly unjust. Accordingly, the Court will not reconsider its determination as to the
notarization requirement.
vii.

Alleged Insufficiencies in Spreadsheets Defendants Provided to Plaintiff

Plaintiff also argues that the Court erred in finding that Defendants had provided Plaintiff
with sufficient information to determine whether Defendants had complied with the Court’s
judgment because “the spreadsheets Plaintiff received are not comprehensive and have not been
updated.” Pl.’s Mot., at 11. In making this argument, Plaintiff is once again attempting to relitigate
an argument he made in his briefing of the parties’ original motions. See Pl.’s Resp. to Defs.’ Mot.
to Release Bond and in Support of Discovery and Modification to Secure Complete Relief, ECF
No. [385], at 21-22, 37. A Motion for Reconsideration is not an appropriate vehicle for such an
argument. Exxon Shipping Co., 554 U.S. at 485 n.5. Plaintiff does not provide any new evidence
or argumentation to show that the Court’s original determination that the Court, in its
judgment,“has not required Defendants to provide any of the information Plaintiff now requests,”
Mem. Op. (Feb. 4, 2015), at 25, was clearly erroneous or manifestly unjust.
viii.

Error of Law in Ruling that “Denial” Letter Complied with
ERISA/Department of Labor (“DOL”) Regulations

Finally, Plaintiff argues that the Court erred as a matter of law by approving Hilton’s letters
denying class members’ vesting claims and only requiring Hilton to amend the letters to include
an explanation of the procedures for reviewing adverse determinations. Plaintiff argues that even
with the Court-ordered amendment, Hilton’s “denial” letters still fail to comply with ERISA and
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DOL regulations which also require, among other things, “a description of any additional material
or information necessary for the claimant to perfect the claim” and “reference to the specific plan
provisions on which the determination is based.” Pl.’s Mot., at 19. The Court notes that Plaintiff
has used his Motion for Reconsideration to significantly expand his argument regarding the
“denial” letters even though these arguments could have been raised prior to the Court ruling on
Defendant’s Motion for Release of Supersedeas Bond Obligation and Plaintiff’s Motion for
Discovery and to Enforce Judgment. The Court’s prior ruling and order to amend the “denial”
letter were based on Plaintiff’s more limited argument about the need to amend the “denial” letter.
A motion for reconsideration is not a proper vehicle for raising arguments “that could have been
raised prior to the entry of judgment.” Exxon Shipping Co., 554 U.S. at 485 n.5.
Nevertheless, “to avoid further dispute,” Defendants indicate in their Opposition that they
have “sent new letters that are amended to comply with the Court’s order and resolve plaintiff’s
further complaint.” Defs.’ Opp’n, at 41-42; see Mary Nell Billings Supp. Decl. (“Billings Supp.
Decl.”), Ex. A (Revised “Denial” Letter), ECF No. [408-2]. However, Plaintiff also challenges
this revised letter on the basis that it does not provide the specific reasons for the benefit denial as
required by ERISA/DOL regulations. Pl.’s Reply, at 22-23. In Plaintiff’s Reply, Plaintiff
references a third “denial” letter which Plaintiff’s counsel received from Defendants on March 16,
2015, and which Plaintiff believes replaced the revised letter. Plaintiff acknowledges that this
third letter “provide[s] sufficient information at least for class counsel to appeal, even if the
information continues to be insufficient for an average plan participant to appeal.” Pl.’s Reply, at
23. However, in Defendants’ recently filed [412] Status Report on the Mailing of Union Service
Notice and Claim Forms, Defendants explain that, contrary to Plaintiff’s belief, the third letter was
not the template for the “amended letters sent to union service claimants. Instead, they were letters
16

sent to claimants responding to claims that are not part of this case.” Defs.’ Status Report, ECF
No. [412], at 5. Accordingly, the Court must evaluate the sufficiency of the revised “denial” letter,
Billings Supp. Decl., Ex. A (Revised “Denial” Letter).
Having reviewed Defendants’ revised “denial” letter as well as the third letter which
includes the language that Plaintiff finds acceptable, the Court now agrees with Plaintiff that the
revised “denial” letter is insufficiently clear about the reason why the Plan participant “did not
qualify for benefits under the Plan.” Billings Supp. Decl., Ex. A (Revised “Denial” Letter). The
third letter, which Defendants sent in response to claims that are not part of this case, much more
clearly indicates that the claimant does not qualify for benefits because he or she does “not meet
the minimum number of years of vesting service.” Pl.’s Reply, Ex. 9, ECF No. [409-9] (Third
“Denial” Letter); compare with Billings Supp. Decl, Ex. A (Revised “Denial” Letter) (“However,
even with the additional service, you did not qualify for benefits under the Plan.”). It is not clear
to the Court why Defendants did not use this clearer and more direct language summarizing why
a participant is not receiving a benefit in the revised “denial” letter sent to union service class
members. Accordingly, the Court shall order Defendants to amend the revised “denial” letter,
Billings Supp. Decl, Ex. A (Revised “Denial” Letter), to state that a class member does not qualify
for benefits under the Plan because he or she does “not have the minimum number of years of
vesting service.” This newly revised “denial” letter shall be sent to all relevant class members
going forward.2

2

Plaintiff also makes an argument in his Motion for Reconsideration about 541 claimants
who received an “unlawful” form letter from Defendants in February 2015 requesting additional
documentation on “actual hours worked.” Pl.’s Mot., at 23. Defendants argue that these claims
are not part of the union service claims process and, most importantly, not part of this litigation.
Defs.’ Opp’n, at 37. In his Reply, Plaintiff indicates that he believes that “Hilton has effectively .
. . dropped those requests” as of the beginning of March 2015. Pl.’s Reply, at 24. Accordingly,
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B. New Evidence Regarding Caesars Entertainment Records
Plaintiff next claims that since the Court’s February 4, 2015, Memorandum Opinion and
Order, new evidence has surfaced of Defendants’ non-compliance with the Court’s judgment.
Specifically, Plaintiff explains that Hilton filed a lawsuit against Caesars Entertainment
(“Caesars”)—the entity that acquired Hilton’s gaming operations3—in December 2014 in the
Eastern District of Virginia concerning Caesars’ obligations to fund the Plan for the Kifafi
litigation. Plaintiff contends that from this litigation, evidence surfaced that Caesars is responsible
for 30 to 33% of the Kifafi liabilities and that Hilton and Caesars have had an “allocation
agreement” since 1999 requiring Hilton and Caesars to provide one another with such information
as is reasonably necessary to administer each party’s plans. Pl.’s Mot., at 15-19. Plaintiff’s
counsel alleges that his “research indicates that the percentage of class members who became
Caesars’ employees and remain unpaid or unlocatable is comparable to Caesars’ 30 to 33% share
of the accrued benefit liabilities, yet Defendants failed to exercise their authority to request address
or service records from Caesars while representing to this Court that Hilton had exhausted its
records of addresses and service for vested participants as well as individuals who were potentially
vested.” Id. at 18.
Defendants respond that the allocation agreement and, specifically, Hilton’s authority to
request information from Caesars is not new evidence because the allocation agreement was filed
with the Securities and Exchange Commission in January 1999.

Defs.’ Opp’n, at 2-3.

Accordingly, Defendants urge the Court to not reconsider its prior judgment based on Plaintiff’s

the Court need not address this issue.
3

At the time of the acquisition of Hilton’s gaming operations, Caesars was known as Park
Place. Pl.’s Mot., at 16.
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arguments regarding Caesars. Defendants further argue that, in any event, Plaintiff’s arguments
are moot because “Defendants have now obtained addresses from Caesars.” Id. at 24. Defendants
allege that they requested
Caesars search its records for any class members that are yet to be located. (Decl.
of Mary Nell Billings (“Billings Suppl. Decl.”) ¶ 2 (Mar. 9, 2015).) Caesars
searched its records and identified addresses for 98 class members, 27 of whom
remain employees of Caesars. (Billings Suppl. Decl. ¶ 2.) Defendants have sent
letters to each of these 98 class members who have not already been paid or for
whom the address obtained from Caesars was not duplicative of the address already
available to Defendants. (Huening Suppl. Decl. ¶ 5.)
Id. at 25. However, Defendants’ request for Caesars’ records has not resolved this issue for
Plaintiff. Plaintiff argues in his Reply, that it is “simply implausible” that only 98 individuals from
1,315 class members whose addresses remain to be confirmed were from Caesars “when Hilton is
suing Caesars for 30-33% of the Kifafi liabilities and 500 participants in this group of 1,315 had
last known addresses in the states where the gaming operations that Caesars purchased were
located.” Pl.’s Reply, at 21. Plaintiff laments that Defendants have refused to identify the reason
Caesars has provided so few addresses, saying only that “there are many possible explanations,
including, among others, that Hilton retained hotels in those states after the Park Place transaction.”
Id.
Although the allocation agreement between Hilton and Caesars is not itself new evidence,
the Court finds that the evidence making that agreement of particular importance to this case—i.e.
the evidence that Caesars is responsible for 30 to 33% of the Kifafi liabilities—is new evidence
revealed through the recent litigation and, thus, appropriately considered in a motion for
reconsideration.

Accordingly, to resolve the concerns raised regarding the low number of

addresses provided by Caesars, the Court shall order Defendants to obtain a sworn affidavit from

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Caesars explaining why Caesars located addresses for only 98 class members and what efforts
were made to locate the addresses.
C. Court’s Jurisdiction Over Implementation of Judgment
Finally, Plaintiff takes issue with the Court’s termination of its jurisdiction over the
implementation of the judgment in this case on February 23, 2015. Plaintiff contends that “to
prevent manifest injustice, this court must retain jurisdiction over the administration and
enforcement of its orders until Hilton makes a reasonable demonstration of compliance.” Pl.’s
Mot., at 6. As an initial matter, the Court notes that Plaintiff’s argument regarding the duration of
the Court’s jurisdiction is most appropriately considered under Federal Rule of Civil Procedure
60(b), not 59(e), because Plaintiff is challenging a judgment that was entered more than twentyeight days before Plaintiff filed his Motion for Reconsideration. See Fed. R. Civ. P. 59(e); id.
60(b). The Court entered its Order establishing a two-year period of jurisdiction over the
administration and enforcement of the judgment in August 2011—over three-and-a-half years ago.
Order (Aug. 31, 2011), ECF No. [258], at 10-11. The Court’s February 4, 2015, Memorandum
Opinion and Order simply fixed the precise end-date for the Court’s jurisdiction based on the
August 2011 Order.
Federal Rule of Civil Procedure 60(b) permits a district court to “relieve a party or its legal
representative from a final judgment, order, or proceeding” on one of six enumerated grounds.
“[T]o secure relief under Rule 60(b), a litigant must establish not only that one of the rule’s
enumerated grounds for relief is satisfied, but also some ‘actual prejudice’ flowing from the
supposed misconduct or other circumstances claimed to warrant relief.” Armenian Assembly of
America, Inc. v. Cafesjian, 758 F.3d 265, 283 (D.C. Cir. 2014). In addition, the movant must
demonstrate that he was “foreclosed from making a ‘full and fair preparation or presentation of
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[his] case.’ ” F.S. v. District of Columbia, No. CV 10-1203, 2014 WL 4923025, at *2 (D.D.C. Oct.
2, 2014).
Plaintiff has not made the showing required to meet the high bar for obtaining relief under
Rule 60. Plaintiff had a chance to brief and, then, to appeal the Court’s decision regarding the
duration of the Court’s jurisdiction in 2011. Plaintiff now argues that the Court must retain
jurisdiction until Hilton makes a “reasonable demonstration of compliance,” but the Court has
already found that “Defendants are in compliance such that the judgment is satisfied.” Mem. Op.
(Feb. 4, 2015), at 24. In coming to that conclusion, the Court carefully and thoroughly considered
each of the arguments that Plaintiff presented regarding Defendants’ compliance with the Court’s
judgment. The Court found that “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.”
Id. Nevertheless, the Court extended its jurisdiction so that it could resolve several outstanding
issues relating to Defendants’ forms and procedures for notifying and obtaining information from
class members and to Defendants’ efforts to locate class members. The Court has now resolved
the parties’ dispute regarding the “denial” letter, the Information Form, and the Retirement Form.
The Court’s jurisdiction will continue until the discrete issues relating to Defendants’ address
location process and Caesars Entertainment are resolved. The Court hereby makes clear, however,
that the Court’s continuing jurisdiction is not open-ended jurisdiction—it is limited to the
resolution of these two discrete issues. The Court has spent many years carefully considering each
of the parties’ arguments and the continuing refinements and repetitions of those arguments
through the parties’ subsequent motions. The Court will not now cut its jurisdiction short without
resolving these two discrete outstanding issues. However, Plaintiff shall not treat the Court’s

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continuing jurisdiction as an invitation to present or reargue all of Plaintiff’s concerns about
Defendants’ implementation of the Court’s judgment.
IV.

CONCLUSION

For the foregoing reasons, the Court shall DENY IN PART, GRANT IN PART, and HOLD
IN ABEYANCE IN PART Plaintiff’s Motion for Reconsideration. The Court shall GRANT
Plaintiff’s Motion for Reconsideration as to the sufficiency of Defendants’ “denial” letters.
Defendants shall amend their revised “denial” letter to state that a class member does not qualify
for benefits under the Plan because he or she does “not have the minimum number of years of
vesting service.” This newly revised “denial” letter shall be sent to all relevant class members
going forward. The Court shall HOLD Plaintiff’s Motion IN ABEYANCE IN PART so that the
Court can receive additional affidavits that will permit it to better evaluate 1) Defendants’
certification of compliance with the Court-ordered address location process; and 2) the new
evidence regarding Caesars Entertainment. Otherwise, Plaintiff’s Motion for Reconsideration is
DENIED. The Court’s jurisdiction over the implementation of the judgment in this matter shall
continue only for the purpose of resolving the discrete issues relating to Defendants’ address
location process and obtaining addresses from Caesars Entertainment.
An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

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