# Appendix — Chambless v. Masters, Mates & Pilots Pension Plan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1137%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1012 ## Text 85-939 (2) In the JOSEPH F. SPANIOL, Supreme Court of the United CLERK October Term, 1985 ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS, Petitioners, — against - MASTERS, MATES & PILOTS PENSION PLAN, et al., Respondents. APPENDIX TO A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Arthur M. Wisehart WISEHART & KOCH 25 West 43rd Street New York, New York 10036 (212) 730-0044 Attorneys for Petitioners Of Counsel: John W. Whittlesey PRINTINGHOUSE PRESS — (212) 719-3120 TABLE OF CONTENTS FOR APPENDIX Decision of the United States Court of Appeals ee I ius cae e ke neha uans seu A-1l Decision of the United States District Court for the Southern District of New York filed August 8, 1984..... B-] Judgment of the United States District Court for the Southern District of New York eS a ab enh ks Wail cv ce snes B-14 Endorsement Order of the United States District Court for the Southern District of New York en ee kaha aba cease C-1 Decision of the United States District Court for the Southern District of New York on Defendants’ Summary Judgment Motion dated September 14, 1983 ............ D-1 Trial Testimony of Dr. Ralph Garfield, Expert Witness ee Oe IN one nents cps ser eesssuees E-] Plaintiffs: Motion Pursuant to Fed.R.Civ.P. 59(e) CI Wy, IE 5 nb exh is eee eK es ween ican E-7 Affidavit of Dr. Ralph Garfield in Support of Plaintiffs’ ee I th iene (a wic's Gee's a atu We's E-9 Statutory Provisions Relied Upon ...................... F-] Opinion of District Court in Deak v. Masters, Mates and Pilots Pension Plan, et al., Middle District of En ey oe ee G-1 Excerpts from Plaintiffs’ Responses to Interrogatories dated March 22, 1982, Relating to SS Oe ee ae Ce H-1 Clipping entitled “End Age Rule on Vested Pensions” from The Master, Mate & Pilot, “The Official Voice of International Organization of Masters, Mates and Pilots,” I I och cvs a aha lee scd bac des saes H-3 Excerpts from Trial Testimony of Robert J. Lowen, PE PE OE svc on hehe wes ceassveeseen I-} A-1 UNITED STATES COURT OF APPEALS For THE SECOND CIRCUIT PS orm Nos, 994, 1086 — August Term, 1984 (Argued: May 20, 1985 Decided: August 28, 1985) Docket Nos. 84-7987, 7989 =p oor ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS, Plaintiffs-Appellees, Cross-A ppellants, — ee MASTERS, MATES & PILOTS PENSION PLAN, STEPHEN P. MAHER, Administrator of the Masters, Mates & Pilots Pension Plan, C.J. BRACCO, RICHARD M. CASSELBERRY, MICHAEL DI PRISCO, E. GRAS, GEORGE GROH, JUSTIN Gross, JAMES R. HAMMER, JAMES J. HAYES, MARTIN F. HICKEY, CHARLES JESS, FRANCIS E. KYSER, CHARLES LANDRY, ORION A. LARSON, ROBERT J. LOWEN, LLOYD MARTIN, J. ERIC MAY, DAVID MERRITT, THOMAS E. MURPHY, HENRI L. NEREAUX, WILLIAM OTT, MARTIN PECIL, FRANKLIN J. RILEY, JR., WIL- LIAM I, RISTINE, A. C. Scott, CAPT. JOHN SMITH, RUPERT SORIANO, ERNEST SWANSON, MICHAEN SWAYNE, ALLEN TAYLOR, NICHOLAS TELESMANIC, KENNETH P. WENTHEN, C.E. WHITCOMB, in their fiduciary capacity as Trustees of the Masters, Mates & Pilots Pensions Plan, Defendants-A ppellants, Cross-A ppellees, a A-2 AMERADA HESS CORPORATION, AMOCO SHIPPING COMPANY, CENTRAL GULF LINES, INC., AMERICAN MARITIME ASSOCIATION, NATIONAL TRANSPORT CORP., WABASH TRANSPORT, INC., WATERMAN STEAMSHIP CORPORA- TION, MARITIME SERVICES COMMITTEE, INC., INTER- NATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, Defendants, Cross-Appellees. Before: FEINBERG, Chief Judge, VAN GRAAFEILAND and PIERCE, Circuit Judges. oor —— Ss Appeal from an order of the United States District Court for the Southern District of New York, Carter, Judge, which held that appellees’ pension benefits were improperly postponed and reduced based on an arbitrary and capricious amendment to the pension plan. Affirmed and remanded. ARTHUR M. WISEHART, New York, New York (Irene M. Opsahl, John Whittlesey, Wise- hart & Koch, New York, N.Y., of counsel), for Plaintiffs-Appellees, Cross-Appellants. BETTINA B. PLEVAN, New York, New York (Eileen Reinhardt, Joseph Baumgarten, Proskauer, Rose, Goetz & Mendelsohn, New York, N.Y., of counsel!, for Defen- dants-Appellants, Cross-A ppellees. —— A-3 BuRTON M. EPSTEIN, New York, New York (Steinberg & Tugendrajch, Hal R. Gins- burg, Levy & Tolman, New York, N.Y., of counsel), for Defendant, Cross-Appellee International Organization of Masters, Mates & Pilots. _— PIERCE, Circuit Judge: The Masters, Mates & Pilots Pension Plan, et al. (MM&P or the Plan) appeal from an order of the United States District Court for the Southern District of New York (Carter, Judge), dated August 2, 1984, which found that plaintiff Arthur Chambless’ pension benefits were improperly postponed and reduced pursuant to an arbi- trary and capricious amendment to the pension plan of which he and his wife are beneficiaries. The district court declared the amendment to be a nullity. We hold that the district court was correct in finding that the amendment in question, while not violative of section 203 of ERISA, 29 U.S.C. § 1053(a), is arbitrary and capricious and is therefore a nullity and also that the amendment would cause an unlawful reduction of Cham- bless’ wage-related benefit. Furthermore, in our view, the arguments made by plaintiffs in their cross appeal are without merit. We affirm the decision of the district court. BACKGROUND The Plan, established in 1955, is a multi-employer plan designed to provide pension benefits to licensed deck officers who retire from sailing in the American Merchant a A-4 Marine. It is jointly administered by an equal number of employer-designated and Internationa] Organization of Masters, Mates & Pilots (Union)-designated Trustees, in accordance with section 302(c) (5) of the Labor Man- agement Relations Act of 1947, 29 U.S.C. § 186(c) (5), and regulations adopted by the Trustees of the Plan ‘Plan Regulations). The daily administration of the Plan, however, has been delegated to an administrator. Stephen Maher, now Executive Director of the Plan, func- tioned as Administrator from 1965-81. The Administra- tor decides initially whether an applicant satisfies the Plan’s eligibility requirements and determines the appro- priate pension benefit the applicant is entitled to receive. The funds used to provide benefits under the Plan are contributed solely by the participating employers. In order to receive pension benefits, a participant with a sufficient number of pension credits must “retire” Within the meaning of the Plan Regulations. The per- tinent portion of the definition of retirement in effect during the period in question herein, i.e., April 1977, as set forth in Article IIl-A, Section 15(a) of the Plan Reg- ulations stated: “To be considered retired, a person must withdraw completely from any further employment, in any capacity, aboard any vessel whatsoever.” As for the amount of pension benefits to be received, Article II-A, Section 3, of the Plan Regulations, adopted as Amendment 15 in 1966 as a result of collective bar- gaining, provides for wage-related pension benefits based on the “average base monthly wages of the employee during the period of any 5 consecutive years within the last ten years immediately preceding the effective date of the pension, which will produce the highest average for the employee.” A-5 On August 26, 1976, the Trustees adopted Amend- ments 46 and 47 as new Plan Regulations ‘the Amend- ments!. Amendment 46 relates to individuals who have “at one time retired. It states in pertinent part: If a Pensioner works in employment forbidden by this Section, 1. He shall not be entitled to pension benefits for any month of such employment and for six additional months, provided that the additional six month period shall not extend beyond his Normal Retirement Age. . . ; provided further, however, that if such employment is in the capacity of a Licensed Deck Officer on a U.S. flag ocean-going vessel employed by a company which is not a participant in the M.M.&P. Pension Plan or the MM&P PMA Pension Plan... , then the Pensioner shall not be entitled to pension benefits for any month of such employment nor for any months prior to such Pensioner reaching his Normal Retire- ment Age.... Amendment 47, on the other hand, relates to individ- uals prior to retirement. It states: In the event a Participant, subsequent to his accrual of credit for 10 years of vesting service and prior to his retirement, is employed in the capacity of a Licensed Deck officer on a U.S. flag ocean going vessel employed by a company which is not a participant in the M.M.&P. Pension Plan or the MM&P PMA Pension Plan... , such Participant shall not be en- tilled to any pension benefits prior to his reaching his Normal Retirement Age, as defined in Article I, Section 13. A-6 In 1975, the Plan had already adopted Amendment 42, pursuant to which Article I, Section 13, stated that “ ‘Nor- mal Retirement Age’ shal] mean the age of 65, or, if later, the age of the Participant on the tenth anniversary of his participation.” As the district court noted, Amendments 46 and 47, adopted during the following year, were discussed in articles by Robert Lowen, then the Plan's Secretary- Treasurer, and Stephen Maher, the Plan Administrator, which were published in the October 1976 issue of the Plan’s newspaper, the Pilot. The articles highlighted the Plan Regulations’ ban on prohibited employment and dis- cussed the meaning of the Amendments. One of the articles contained the full text of the two provisions. The December 1976 issue of the newspaper further discussed the Amendments. Copies of the newspapers were dis- tributed at Union hiring halls, and, according to the Plan, were mailed to the homes of Union members and pension participants. Plaintiff Chambless sailed as a member of the Union from 1944 until] 1977. He worked, at various times, as a third mate, second mate, chief mate, and master. In November, 1976, Chambless applied for pension benefits, but shortly thereafter withdrew his aplication and con- tinued employment aboard vessels covered by collective bargaining agreements with the Union. On April 2, 1977, Chambless filed a second application for retirement benefits. Chambless received a letter from Maher, Administrator of the Plan, informing him of the Plan's definition of retirement. On June 30, 1977, a Plan employee wrote to Chambless, informing him that his ap- plication was being considered and that his monthly bene- fits would be approximately $920, presumably based on his 33', years of pension service credits as of April 2, ——— A-7 1977 and his average salary for \is five highest salary years between 1967 and 1977. Following an inquiry from Maher, in November 1977, Chambiess informed the Plan that, between March 18, 1977 and April 1, 1977 and then again between April 4, 1977 and September 18, 1977, allegedly after asking a Union agent whether there would be any Union problem created in doing so, he had been employed as a master on vessels which did not participate in the Plan. According to Chambless, such employment was necessary as a result of the Union exerting pressure on older licensed deck officers to retire, by giving them only low paying and low grade assignments. Whereas between 1966 and 1975 Chambless had regularly received assignments as chief mate or master, subsequently, he allegedly was told to retire or to accept assignments as second or third mate. By letters dated January 26, 1978 and January 28, 1980, Maher responded to Chambless and to his attorney stating that: 1) because Chambless had not retired under the Plan's definition of retirement, he was not eligible for a pension at that time; 2) pursuant to the definition of retirement in Article I]l-A of the Plan Regulations and pursuant to Amendment 47, the Plan would not pay him any pension until December 7, 1986, at which time Cham- bless would reach age 65, which the Plan defines as “nor- mal retirement age’; and 3) the monthly benefits he could expect upon reaching 65 would likely be $470. On June 24, 1980, Chambless brought this suit against the Plan, Plan Administrator Stephen Maher, the Union, the Plan’s employer and Union Trustees, the Maritime Services Committee and the American Maritime Associa- tion, employer organizations that do collective bargaining for shipping companies, and six shipping companies that ————— A-8 formerly employed Chambless, have contracts with the Union, and contribute to the Plan. In his complaint, Chambless alleged that the Plan violated Section 203 of ERISA, 29 U.S.C. § 1053(a), by suspending payment of his vested pension after he went to work on a non-MM&P vessel. Moreover, according to Chambless, even if the Plan had the right to suspend pension payments when a retiree returned to work, it did not have the right to continue the suspension after the Plan participant went back into retirement. In addi- tion, Chambless asserted that the Regulations would cause a forfeiture of his benefits by reducing them from an estimated $920 per month beginning at age 55 to an estimated $470 per month, beginning at age 65. Among other allegations, Chambless also contended that: Amendment 47, by discriminating against Plan participants who worked on non-MM&P vessels, was puni- tive and arbitrary and capricious and therefore violated the trustees’ fiduciary duties; the selection of age 65 for normal retirement age was a sham; at no time before he took employment on a non-MM&P vessel did the Plan or Union notify him of the effect cof Amendment 47 on par- ticipants who took such employment; defendants inade- quately reviewed his retirement application; the Plan im- properly withheld information from him; defendants conspired in restraint of trade in violation of the Sher- man Act; defendants, because of the assurances they allegedly gave him about accepting employment on non- MM&P vessels, were estopped from denying him benefits; the Union had breached its duty of fair representation by discriminating against senior seamen; and the plaintiffs had suffered emotional distress as a result of defendants’ actions. oo a AMA BG Apne LP A-9 Chambless sought payment of his pension benefits retroactive to May 1, 1977, damages of $100 per day for the defendants’ failure to provide him with certain pen- sion information, treble antitrust damages, and punitive damages, costs, and attorneys’ fees. By opinion dated September 14, 1983, the district court granted defendants’ motion for summary judgment on the following claims made by Chambless: that the Plan’s review of his application was inadequate; that defendants were guilty of violating the Sherman Act; that the Plan improperly withheld information from him; that the selection of age 65 as the normal retirement age was a sham; and that defendants were estopped from suspending his benefits. As for Chambless’ claim that his benefits were for- feited by reducing them from $920 a month to $470 a month, the district court held that Chambless has no vested right to a $920 a month pension and that Amend- ment 47 did not violate the nonforfeitability requirements of ERISA. The court did find, however, that there was a dispute over the material issue of whether the provi- sions which caused Chambless’ pension to be reduced were arbitrary and capricious and, therefore, the court denied summary judgment on this issue. Similarly, as for Chambless’ argument that he did not receive notice of the Amendment and its effect, the district court held that there was a dispute over the material issue of whether the Union took reasonable steps to ensure that Chambless was notified after the passage of Amendments 46 and 47 and before he took work prohibited under those Amendments. ‘The court therefore also denied summary judgment on this issue. A-10 At trial, a jury was empanelled to consider the claims for breach of the duty of fair representation, emotional distress, and compensatory and punitive damages. At the close of the plaintiffs’ case, these claims were taken from the jury, dismissed by the court, and the jury was discharged. The only issue remaining for determination was whether the forfeiture of Chambless’ pension benefits until age 65 was arbitrary and capricious. Finding that the regulation pursuant to which Chambless’ benefits were reduced “is not in the interest of plan participants or their beneficiaries and is not necessary to maintain the financial integrity of the fund,” Judge Carter, by order dated October 29, 1984, held that Amendment 47, as applied to Chambless, was arbitrary and capricious and ordered the Trustees to treat Chambless’ application as if it had been made in 1977 and to grant him a wage- related pension based on his 1967-77 employment record, provided he retired and filed for benefits within six months of the date of the decision by the district court or within six months of a determination by the Court of Appeals, if the decision were appealed. On appeal, the Plan contends that: 1) Amendment 47 is not arbitrary and capricious and therefore should not have been declared a nullity; 2) Amendment 47 did not cause an unlawful reduction of Chambless’ wage-related benefit; and 3) the Plan gave adequate notice of the Amendment. Chambless and his wife cross appeal, con- tending that: 1) Amendment 47 is not only arbitrary and capricious but also violates section 203 of ERISA, 29 U.S.C. $1053(a) which prohibits forfeiture of all vested pension benefits at normal retirement age; 2) the Plan should be estopped from not paying Chambless the —— _— A-ll pension benefits he would have received had he retired in 1977; 3) the district court erred in dismissing his antitrust claim against defendant shipping companies; 4) the district court erred in dismissing the plaintiffs’ claims for intentional infliction of emotonal dstress; 5) the district court erred by not awarding Chambless benefits retroactive to May 1, 1977 and by conditioning its judgment upon his retirement and filing for benefits within six months of the date of the court’s decision; and 6) the district court erred in dismissing the plaintiffs’ claim for punitive damages. Finding that Amendment 47 was arbitrary and capri- cious, the district court declared the Amendment to be a nuility. See Sharron v. Amalgamated Insurance Agency Services, Inc., 704 F.2d 562, 564 (11th Cir. 1983). We agrec with this determination. DISCUSSION Section 4041a) of ERISA, 29 U.S.C. § 1104(a) (1), states that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries ....” The Plan contends that Amend- ment 47 is justifiable, pursuant to § 1104(a) (1), in that it was adopted to enhance the financial integrity of the Plan. According to the Plan, the purpose of Amend- ment 47 is to preserve and enhance the corpus of the Plan by discouraging participants from making their services available to non-contributing employers. Also, the Plan purportedly believed that the Amendment would induce non-contributing employers to participate in the Plan in order to obtain access to trained licensed deck officers and would thereby decrease the claimed unfunded liability of the Plan. We find the Plan’s argument un- persuasive. A-12 First, the Plan failed to substantiate its claim of financial necessity and even failed to assert that alterna- tive solutions were considered. See Central Tool Com- pany V. International Association of Machinists National Pension Fund, Benefit Plan A, 523 F. Supp. 812, 817-18 (D.D.C. 1981). Second, the Plan’s claim of financial necessity was unsupported by any actuarial data. Sce Elser v. 1.A.M. National Pension Fund, 684 F.2d 648, 657 (9th Cir. 1982), cert. denied, 104 S. Ct. 67 (1983); Pompano Vv. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914-15 (2d Cir.), cert. denied, 459 U.S. 1039 (1982). The Plan points to an actuarial valuation by its con- sultants for the year ending December 31, 1975. Ac- cording to Chambless, and not contested by the Plan, however, this valuation was not even transmitted to the Plan until February 22, 1977, approximately six months after the Trustees’ action that was assertedly “based in part” upon it. Moreover, the Plan’s concern for its financial] stability is undermined by a letter written by defendant Maher, the Plan Administrator, to participants only a month before Amendments 46 and 47 were adopted, in which Maher stated that the Plan was “financially sound.” Third, as the district court noted, Amendment 47 was of Union origin, drafted by Union counsel, and the record is devoid of evidence showing that the Amend- ment benefited the Plan or .its participants. Rather, evidence was introduced demonstrating that employer Trustees supported the Amendment to encourage par- ticipants to remain working as long as possible for em- ployers who had contributed to the Plan, so that the employers could get their money’s worth, whereas Union Trustees supported the Amendment to attract younger licensed deck officers. Neither the employer nor Union Trustees seemed to support the Amendment to enhance the financial integrity of the Plan itself. Fourth, we A-13 note that in addressing a class action challenge to com- panion Amendment 46, a district court in Deak v. Masters, Mates & Pilots Pension Plan, No. 79-190, slip op. (M.D. Fla. June 4, 1984), determined that the Plan’s asser- tions regarding the financial purpose of Amendment 46 “dlid} not mesh with the bulk of the evidence and in- ferences indicative of their intentions at the time of actual passage.” Jd. at 16. Given the basic similarities between Amendments 46 and 47 and the fact that they were adopted at the same time, we conclude that the district court herein was correct in finding that Amend- ment 47 also was not adopted to enhanee the financial integrity of the Plan or to benefit the Plan participants and is thus arbitrary and capricious. The district court also concluded that, as to one in the position of plaintiff Chambless, the combined effect of Amendment 47 and Article II-A, Section 3 of the Pian Regulations (the wage-related provision) was arbitrary and capricious. Article II-A, Section 3, of the Plan Regulations sets forth the monthly wage-related pension benefit as a per- centage of pay and defines pay as “the average base monthly wages of the employee during the period of any 5 consecutive years within the last ten years immediately preceding the effective date of the pension... .” (emphas- sis added). Furthermore, according to this wage-related provision, a participant with thirty years of credit is to receive monthly pension benefits of $470 or 60%. of pay, whichever is higher. Since the base years for calculating the wage-related pension are the ten years immediately prior to retirement and not necessarily the last ten years in covered employment, the ten years in question in Chambless’ situation are the years during which he was A-14 employed at a low rate of pay on non-MM&P vessels. Since 60% of Chambless’ pay in the 5 highest paying years within the statutory period would be less than $470, his monthly pension would thus be $470. Consequently, by postponing benefits until age 65, pursuant to Amendment 47, and then ultilizing the wage-related formula to calcu- late those benefits, the amount of Chambless’ pension was significantly reduced. We agree with the district court that, by itself, Article II-A, Section 3, the wage-related provision, might not be arbitrary and capricious with regard to partici- pants who apply for benefits immediately upon retiring and who do not take any other employment, and similarly with regard to participants who retire from covered em- ployment, apply for a pension and then take work in a different industry. When Article II-A, Section 3 is ap- plied in conjunction with Amendment 47, however, as occurred here, we believe it is arbitrary and capricious. Here, the combined effect of Amendment 47 and the wage- related provision essentially meant that Chambless, by accepting other work with a competitor who did not parti- cipate in the Plan, even for the purpose of avoiding the low paying and low grade assignments the Union was giving to older licensed deck’ officers, was placed in the position of postponing his pension until age 65 and thus could not have sought to fully retire beforehand, and he also was effectively reducing his pension benefit. In our view, the district court correctly held that no forfeiture of benefits can be exacted from an employee for attempting to improve his position by accepting work with a competi- tor of his employer. Hummel v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir. 1980); Westwood Chemical Co. v. Kulick, 570 F. Supp. 1032, 1041-42 (S.D.N.Y. 1983). A-15 Moreover, contrary to the Plan’s contention, this Court’s decision in Morse v. Stanley, 732 F.2d 1139 (2d Cir. 1984), stands for the proposition that suspension of benefits is permissible only if those benefits are not there- by reduced. As we stated, “[c]onsidering that . . . the plaintiffs . . . will each receive their vested benefits with interest upon reaching their normal retirement age (65), their contention that the Trustees acted arbitrarily or in bad faith in denying them accelerated distributions is without merit.” Jd. at 1144. Defendants’ reliance on the Morse decision is misplaced. Furthermore, even if the Plan is correct in maintain- ing that the wage-related provision of the Plan Regula- tions, since it is the result of a collective bargaining agreement, may not be found to be arbitrary and capri- cious in itself, United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 576 (1982), as the district court stated, it is not the wage- related provision which is being contested herein. More- over, as Chambless notes, Robinson is limited to a situation in which the provision in question is both an outgrowth of a collective bargaining agreement and not otherwise violative of federal law or policy. Jd. at 575. Here, the wage-related provision, Article II-A, Section 38, as applied to the present circumstances, i.e., combined with Amendment 47, would violate the Trustees’ fiduciary duty to act solely in the interest of the participants and bene- ficiaries, as required by ERISA, 29 U.S.C. §1104(a). For the foregoing reasons, we agree with the district court’s finding that Amendment 47 is arbitrary and capricious and is therefore a nullity. With regard to notice, the district court held that both the method of distributing notice about the impact A-16 of the Amendment and the content of the notice were inadequate. Regarding the adequacy of distributing information about Amendment 47, while defendants contend that the newspaper was mailed to all participants ai their homes, the district court found that the newspapers discussing the Amendment were merely left at the Union hiring hall and were not mailed directly to Plan participants. The district court therefore held that such distribution was inadequate. We believe that, even if distribution of the newspaper were adequate, the content of the notice regarding Amend- ment 47 was inadequate. We are unpersuaded by de- fendants’ contention that because the method of calculating wage-related benefits had not changed since its introduc- tion in 1968 and because Chambless received notice of that method at that time, no new notice by the Plan was required. Rather, as the district court found, neither of the publications regarding Amendment 47 explained the full import of the interaction of the wage-related provision and the Amendment for someone in Chambless’ position. Thus, in our view, the notice was insufficient to satisfy the requirements of ERISA, 29 U.S.C. §1022(a) and (b) and § 1024(b)(1) (plans must furnish to partici- pants clear, timely explanations of “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.”). In his cross-appeal, Chambless makes several claims. First, he contends that the suspension of his pension until age 65 violates section 203(a) of ERISA, 29 U.S.C. $ 1053(a), which states in pertinent part: “Each pension plan shall provide that an employee’s right to his normal A-17 retirement benefit is nonforfeitable upon the attainment of normal retirement age... .” According to Chambless, he is entitled to a “normal pension,” without regard to age, since he has over twenty years of pension service credits. We find Chambless’ argument to be without merit. While prior to 1975, age was not a factor in de- termining entitlement to pension benefits, in December 1975, the Plan adopted Amendment 42, which tracks the language of ERISA and pursuant to which Article I, Section 13 states that “‘Normal Retirement Age’ shall mean the age of 65, or, if later, the age of the Participant on the tenth anniversary of his participation.” In addition, we have held that postponement of re- tirement benefits until age 65 need not constitute an unlawful forfeiture, violative of ERISA. Riley v. MEBA Pension Trust, 452 F. Supp. 117, 120 (S.D.N.Y.), aff'd, . 586 F.2d 968 (2d Cir. 1978) (“The Act, on its face, requires only that pension benefits be nonforfeitable upon attainment of normal] retirement age, in this case, age sixty-five. The Act, therefore, gives plaintiff no vested right to receive benefits until he reaches that age.”); sce Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir. 1983); Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1253-54 (9th Cir. 1981). Based on the above, we conclude that, since Chambless has not reached age 65, suspension of his benefits violates neither ERISA nor the Plan itself. Chambless next maintains, in his cross-appeal, that the Plan should be estopped from not paying him the pension benefits he would have received had he retired in 1977 and not worked for non-MM&P vessels. Chambless alleges that it was only after asking a Union agent whether it would be permissible for him to do so, that he took an assignment as master on a vessel that did not participate in the Plan. | A-18 In our view, Chambless’ allegations regarding repre- sentations made to him by a Union representative are insufficient to support a claim of estoppel against the Plan. We have held that because “(t]he actuarial soundness of pension funds is, absent extraordinary circumstances, too important to permit trustees to obligate the fund to pay pensions to persons not entitled to them under the express terms of the pension plan,” Phillips v. Kennedy, 542 F.2d 52, 55 n.8 (8th Cir. 1976) (quoted in Haeberle v. Board of Trustees of Buffalo Carpenters Health-Care Funds, 624 F.2d 1182, 1189 (2d Cir. 1980)), “courts have been reluctant to apply the estoppel doctrine to require the pay- ment of pension funds.” Haeberle, 624 F.2d at 1189. As the district court stated herein, “(i]f such funds are too vital to allow plan trustees to obligate the fund through their representations, a fortiori union officials—who are not as clearly identified with pension funds as are trus- tees—should not be permitted to commit the funds to per- sons not entitled to them.” Chambless v. Masters, Mates & Pilots Pension Plan, 571 F. Supp. 1430, 1452 (S.D.N-Y. 1983) ; see Galvez v. Local 804 Welfare Trust Fund, 543 F. Supp. 316, 318 (E.D.N.Y. 1982). We agree with the position articulated in Chamberlin v. Bakery & Confec- tionery Union Pension Fund, 99 L.R.R.M. 2176 (N.D. Cal“1977), where the court stated: To permit . .. a single oral statement by a union busi- ness agent to obligate the trust to provide benefits to persons not otherwise entitled to them would seriously erode the requirement that the fund be administered by representatives of both the employe[r] and the employees solely for the benefit of employees of the contributing employer. 29 U.S.C. § 186(¢c) (5). Any such erosion can create a loophole that would enable the unscrupulous to divert funds away from the proper parties .... Id, at 3180. A-19 Furthermore, as the district court noted, Chambless admits that he never discussed with any Union representa- tive the specific effect that employment on non-MM&P vessels would have on his pension, as opposed to whether the Union itself would object to such employment. 571 F. Supp. at 1451. Rather, according to Chambless’ testi- mony, the Union representative merely told Chambless that “lots of our members does [sic] that [i.e., work on non-MM&P vessels) ... . Don’t worry about it... . You go right ahead if you want to go out there and work... .” Based on the above, we believe that the district court correctly granted summary judgment dismissing the claim that the Plan is estopped from suspending Chambless’ benefits. Chambless’ third contention in his cross-appeal is that the district court erred in dismissing the antitrust claim against the shipping companies. According to Chambless, the suspension of pension benefits until normal retirement age under Amendment 47 and the decrease in those bene- fits created “a hindrance and interference with the ability of licensed deck officers to market their skill,” thereby creating an antitrust violation under the Sherman Act, 15 U.S.C. §§ 1-2. The Supreme Court has held that, even if there has heen a violation of the antitrust laws, an award of treble damages is proper only when there has been an antitrust injury. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S, 477, 489 (1977). Chambless has not made clear exactly what his antitrust injury is. To the extent that Chambless’ antitrust claim is based on a limiting of em- ployment opportunities, he can claim no direct injury in light of his successful continued employment on non- MM&P vessels. To the extent that the claim is based on A-20 diminished retirement benefits, it is essentially an ERISA matter. See Laurie Visual Etudes, lnc. v. Chesebrough- Ponds, Inc., 473 F. Supp. 951, 960 (S.D.N.Y. 1979). We therefore hold that Chambless has not shown the requisite antitrust injury. Chambless’ fourth contention in his cross-appeal is that the district court erred in dismissing the plaintiffs’ claims for intentional infliction of emotional distress against the Plan and the Union. We believe these claims were properly dismissed. With regard to the claim by Chambless’ spouse, we believe that the district court did not abuse its discretion in finding that there was insuf- ficient evidence to raise a jury question. With regard to Chambless’ own action to recover damages based upon alleged emotional distress, we believe that the claim was properly dismissed because of the absence of any evidence to support his claim. Chambless’ fifth contention in his cross-appeal is that, hased on the district court's findings, he should have been “warded benefits retroactive to May 1, 1977 and also that the district court erred in conditioning its judgment upon his retiring and filing for benefits within six months of the date of the court’s decision. We agree with the dis- trict court. Regarding retroactivity, as the Plan states, be- cause Chambless has worked continuously in the maritime industry since May 1, 1977, and has not “withdraw[n] completely from any... employment . . . aboard any vessel whatsoever,” as required by Article Ii-A, Section 15'a)’s definition of retirement, Chambless has not been eligible to receive a pension. We have upheld rules for suspending benefits of individuals who have not retired within the meaning of the Regulations. Riley, 570 F.2d at 412. We therefore believe that the district court was correct in not awarding retroactive benefits but instead —— ed ee Oo A-21 requiring the Plan to pay Chambless, upon his retirement, the monthly amount he would have received had he re- tired in 1977. Regarding the six month proviso, we also agree with the district court. Even if Amendment 47 is a nullity, both the wage-related provision, Article II-A, Section 38, and the definition of retirement, Article II-A, Section 15(a), of which Chambless was on notice in 1877 when he applied for benefits, remain intact. Therefore, when Chambless applied for benefits in 1977, he is deenied to have known that: the amount of his retirement benefit would be based upon his salary during the ten year period immediately prior to his retirement; if he continued to work thereafter on non-MM&P vessels, his retirement date would continue to advance; and the amount of his pensiun probably would be reduced by virtue of adding to the ten year period an increasing number of years of un- covered and lower paying employment. Since the district court decision gives Chambless the advantage of figuring his wage-related benefits as of 1977, i.e., based upon his last years of higher paying covered employment, and not upon the ten year period immediately prior to his retire- ment, we believe it is reasonable for this advantage to he conditioned upon Chambless’ ceasing to work and filing for benefits within six months of a decision rendered by this Court. Finally, the plaintiffs contend that the district court erred in dismissing their claim for punitive damages. We disagree. The issue of the availability of punitive dam- ages under ERISA is now before the Supreme Court in Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482 (9th Cir. 1983), cert. granted, 105 S. Ct. 81 (1984). As defendants argue, even where courts have concluded that punitive damages are available under A-22 ERISA, they have required a showing of wanton or malicious conduct, see, e.g., id. at 492; Korn v. Levine Bros. Iron Works Corp., 574 F. Supp. 836, 843 (S.D.N.Y. 1983), of which there is no evidence herein. Indeed, the district court stated that it did “not believe that the trustees willfully withheld information from Chambless or other participants as to the effective reach and full impact of Amendment 47.” Furthermore, we note that in Deak, slip op. at 20, in which related Amendment 46 was at issue, the court held that the Trustees’ actions were not so “‘malicious, flagrant or outrageous,’ as to justify the imposition of punitive damages.” (citations omitted). In our view, the district court herein was correct in making a similar finding with regard to Amend- ment 47 and in dismissing the plaintiffs’ claims for puni- tive damages. For the foregoing reasons, we affirm the decision of . the district court in all respects and remand for a de- termination of the benefits which Chambless would have received in 1977. 7 : > B-1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 80 Civ. 4258 (RLC) Filed August 8, 1984 ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS, Plaintiffs, - against - MASTERS, MATES & PILOTS PENSION PLAN, et al., Defendants. OPINION CARTER, District Judge Background Facts Plaintiff, Albert Chambless, became a member of the International Organization of Masters, Mates & Pilots (“MM&P”) in 1944 after being issued a third mate’s license. He is a resident of Alabama and received all of his MM&P work assignments through the union hiring hall in Mobile, Alabama. He obtained his master’s license in 1956, and his first assignment as a master in August, 1966, when he was given command of the Frontenac Victory. This assignment lasted until May, 1968. Thereafter, Chambless regularly hired out as master or chief mate through 1975. The MM&P pension plan (“plan”) was established in 1955. It is an employer-funded pension and trust fund that provides retirement benefits for MM&P licensed deck officers. The plan is administered by an equal number of employee and employer designated trustees who have broad powers to formulate regulations for the administration B-2 of the plan. The trustees have delegated the day to day operation of the plan to an administrator. Stephen Maher, now Executive Director of the plan, functioned as administrator from 1965-1981. The admin- istrator decides initially whether an applicant satisfies the plan’s eligibility requirements and determines the appropriate pension benefit the applicant is entitled to receive. His decisions are presented to the trustees for approval. The administrator's determination that an applicant is not entitled to benefits does not reach the trustees unless the applicant appeals, in which case the trustees then determine whether to uphold or reject the administrator’s determination. The trustees have formulated a large body of regulations governing the plan’s operations. Prior to the enactment of ERISA, 29 U.S.C. § 100, et seg., the plan’s regulations provided for normal retirement without regard to age, after 20 years of pension service credits. Pursuant to the terms of the 1966 collective bargaining agreement, the plan was amended to provide for wage related pension benefits based on the average salary for the five highest salary years in the last ten years prior to the effective date of retirement. Prior to August, 1976, retirement was defined in Article I], Section 13a of the plan regulations as complete withdrawal from “further employment in any capacity in the maritime industry”, except that the trustees “in their sole discretion could permit [a retiree to work] in shoreside positions covered by a collective bargaining agreement by the [union], and upon application submitted through the [union], [to work] as a marine surveyor or employment aboard fishing vessels, yachts and other small craft (such as supply boats) provided em- ployment [is] in a capacity, not covered by the collective bargaining agreements of the [union].” , Article II, Section 13(b) provided that if a retiree worked in employment forbidden by Section 13a, he forfeited his pension benefits for the month he worked and for six additional months. He had to return all benefits received and if he failed or refused to do so, all future benefits could be denied. The retiree had to notify the trustees in writing within 15 days of the commencement of forbidden employ- ment, and the trustees were empowered to disqualify him permanently from receiving any future pension benefits if he failed to do so. In December, 1975 the plan adopted Amendment 42 which added a new Section 13 to Article I. Normal retirement age was defined B-3 as “age 65, or, if later, the age of the participant on the tenth anniversary of his participation. All references to ‘Normal Pension’ [were] changed to read ‘Regular Pension’ ”. In 1976, Walter Anderson, who was in charge of the hiring hall in Mobile, Alabama, sought to induce Chamtiess to retire in accord with then current union policy. Anderson advised Chambless that the union wanted all the older licensed deck officers to retire and that if Chambless did not retire, he could expect to be shipped out on second or third mate assignments. During 1976 and 1977 all of Chambless’ assignments through the Mobile, Alabama hiring hall were in second or third mate jobs. In a letter deted March 17, 1979, sent to all offshore ports, Robert Lowen, Union President, discussed the union's effort to secure non-wage related benefits and other incentives to induce older deck officers to retire. Chambless apparently succumbed to the pressure and filed an application for retirement benefits on November 12, 1976, but then, having second thoughts, withdrew the application. On April 2, 1977, he filed a second application. At that time he was advised that his retirement benefits would be approximately $920 per month. This calculation was presumably based on his 33% years of pension service credits as of April 2, 1977, and his average salary for his five highest salary years between 1967 and 1977, which appear to be 1970-1975 when he sailed two times as master (6/10/73-9/30/74 Hess Petrol; 7/1/75-11/24/75 Greenport) and five times as chief mate (1/1/70- 2/11/70, Spirit of Liberty; 5/25/70- 1/1/71, Golden Gate; 8/6/71 -3/31/73 Hess Voyager; 4/9/73-6/9/73, Hess Petrol; 2/14/75-4/10/75, Hess Refiner). Prior to filing his application, Chambless had accepted employment as a master (3/18/77-4/1/77) on the Mission Viking, a vessel owned by a company not a party to a collective bargaining agreement with MM&P. He testified that before accepting this assignment, he had spoken to the dispatcher at the union hiring hall in Mobile, Alabama and was advised that there would be no problem. Two days after the filing of his April 2, 1977 application, he accepted assignment as master on the Mount Explorer, another non-MM&P contract vessel. That assignment did not end until September 13, 1977. The Mission Viking was an oil drilling rig. The Mount Explorer was a U.S. flag ocean going vessel. B-4 On August 24, 1976, the trustees adopted amendments 46 and 47 as new plan regulations, These amendments were proposed by union designated trustees and drafted by union counsel who advised the trustees that the two proposals were not at odds with any ERISA provision. Amendment 46 provides that retirees working in forbidden employment are not entitled to any pension benefits during such employment and for six months thereafter, provided the six month penalty does not extend beyond the retiree’s normal retirement agc Moreover, if a retiree works as a licensed deck officer on a U.S. flag ocean going vessel owned by a company not participating in the MM&P plan, the retiree forfeits his pension benefits until] normal retirement. Amendment 47 provides that an active member (i.e. one not yet retired) who, subsequent to acquiring 10 years of vesting ser- vice, works as a licensed deck officer on a United States flag ocean going vessel for a company not under contract with MM&P, shall not be entitled to any pension benefits until normal retirement age. The two new amendments were discussed in articles by Robert Lowen, then MM&P Secretary Treasurer and Stephen Maher, plan _ administrator, published in the October, 1976 issue of the MM&P newspaper, The Pilot. Lowen’s article called attention to the regulations’ ban on prohibited employment. Maher's article highlighted the same theme in a short explanation of the amendments’ meaning, and his article carried the full text of the two provisions. In a later article published in the December, 1976 issue of the newspaper, Maher again focused on the two regulations and discussed their importance. Copies of the newspaper, distributed at union hiring halls in various ports from which the union operates, are not mailed to union members or pension participants. Booklets concerning the pension plan and explaining the regulations are sent to plan participants but the texts of neither the regulations or amendments are sent directly to union members. The first communication directly to the plan participants about Amendment 47 is a letter from Maher dated March 13, 1978, which states in pertinent part: Further, subsequent to accruing ten (10) years of vesting service credit and prior to retirement, if you work as a Licensed Deck Officer aboard U.S. flag ocean going vessels which are operated by a company whic},is not a participant in an MM&P Pension Plan (excluding civilian employment with the Military Sealift B-5 Command or another government entity) you will not be entitled to any pension benefits prior to reaching Normal Retirement Age (Normal Retirement Age means age 65 or, if after, the age of the participant on the tenth (10th) anniversary of his participation). An excerpt of the Pension Regulations pertaining to vested pension credit is attached. I urge you to read the attached language carefully, as violation of the Rules will affect payment of your pension benefit, as well as, any survivor's options. Plaintiff's Ex. 38. On July 19, 1977, Maher wrote asking Chambless to confirm or deny that he was working as a licensed deck officer on a ship not under MM&P contract. Defendants’ Ex. M. Chambless replied in an undated letter confirming that he had accepted employment aboard a non-MM&P vessel and inquired whether his pension would be “payable as soon as he ceases such employment and withdraws completely from employment aboard a vessel.” There is no direct reply to this latter inquiry in the record. Chambless.was subsequently advised by Maher that his pension application had been denied and that because of his acceptance of employment as a licensed deck officer with a company not under contract with MM&P, he had forfeited all rights to pension benefits until age 65. He was further advised that his estimated pension benefits at age 65 would be $470 per month, not the $920 figure previously given to him. Chambless appealed to the trustees who ratified the decision of the administrator. The Claims Involved Plaintiffs (Chambless and his wife) instituted the instant action in 1980 making a wide variety of claims including antitrust infractions by the shipping companies, breach of the duty of fair representation by the union, breach of fiduciary duties as well as a variety of other ERISA violations by the plan and its trustees, and the infliction of emotional distress on both plaintiffs by the union and plan trustees. Both compensatory and punitive damages were sought. Early on in the litigation all claims against the trustees in their individual capacities were dismissed, and the litigation proceeded against the trustees in their official capacities only. B-6 Many of the claims were dismissed when the court granted partial summary judgment for defendants in an opinion reported at 571 F. Supp. 1430 (1983), with which familiarity is assumed. At trial a jury was empanelled to consider the claims for breach of the duty of fair representation, for emotional distress, and for compensatory anc punitive damages against the union and the trustees. At the close of the plaintiffs’ case those claims were taken from the jury and dismissed by the court. applving the standard enunciated in Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970) and cognate cases, see e.g. Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 167 (2d Cir. 1980). This resulted in the dismissal of all claims against the union and all claims concerning Mrs. Chambless, leaving Chambless as the sole plaintiff in the case. What remained to be decided was whether the forfeiture of Chambless pension benefits until age 65 by the plan trustees was arbitrary and capricious. Since that matter was an issue for court determination, the jury was dismissed and the trial proceeded to the court. Subsequent to the conclusion of the trial, the parties submitted post-trial proposed findings of fact and memoranda of law. Determination Chambless claims that the suspension of his pension until age 65 violates Section 203 of ERISA, 29 U.S.C. § 1053(a). Prior to De- cember, 1975, a plan participant was entitled to what was described as a normal pension after 20 years of pension service credits. Age was not a factor. The regulations were changed in December, 1975 to conform to ERISA language, 29 U.S.C. § 1053(a), prohibit all vested pension benefits from forfeiture at normal retirement age. The statute defines normal retirement age as 65 years of age, or if later, the 10th anniversary of a participant's participation in the plan. Amendment 42 to the plan regulations tracks this statutory language. It is clear that ERISA imposes no obligation to pay retirement benefits to a plan participant before he reaches age 65. Fine v. Semet, 699 F.2d 1091, 1093 (llth Cir. 1983). Riley v. MEBA Pension Trust (Riley Il), 452 F. Supp. 117, 120 (S.D.N.Y.) (MacMahon, J.), affd 586 F.2d 968, 970 (2d Cir. 1978; Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1253-54 (9th Cir. 1981). See also Morse v. Stanley, 732 F.2d 1139, 1144 (2d Cir. 1984) (“Considering that. . .the plaintiffs. . .will each receive their vested benefits with interest upon reaching their normal retirement B-7 age (65), their contention that the trustees acted arbitrarily or in bad faith in denying them accelerat “i benefits is without merit”). Moreover, where the trustees act within the law their determina.ions may be disturbed by court order only on a showing of bad faith, caprice or arbitrariness. Riley v. MEBA Pension Trust (Riley I), 570 F.2d 406, 410 (2d Cir. 1977); Fine v. Semet, supra; Bayles v. Central Siates, Southeast and Southwest Areas Pension Fund, 602 F.2d 97 (Sth Cir. 1979). The trustees are required to provide plan participants with a summary plan description which sets forth circumstances which may result in disqualification, ineligibility, denial or loss of benefits. 29 U.S.C. 1022a(1), (2)(b). Neither the administrator nor the trustees complied with this requirement before forfeiting Chambless’ benefits. The record discloses that Amendment 47 to the regulations, pursuant to which Chambless’ application was denied and he was held to have forefeited his right to a pension until age 65, was adopted August, 1976. The amendment was discussed in articles by Lowen and Maher in the October, 1976 issue of the union newspaper. In Maher's column the iext of the amendment was set out in full. The matter was again discussed in another article by Maher in the December, 1976 issue of the union newspaper. As I understand it the newspaper is distributed in quantity at various union hiring halls at offshore ports. Chambless says he never saw the articles. There is testimony that about 200 copies of the October issue of the MM&P newspaper would normally be sent to Mobile arriving about the first two weeks of November. The copies are stacked on a table in the hall. A secretary in the Mobile office testified by deposition that Chambless had knowledge of Amendment 47 before filing his application. She states that she discussed the matter thoroughly with him and that she wrote the plan office for information on the amount Chambless was expected to receive in pension benefits when he retired. (Dep. Mary Smith at 118). I do not credit the tesumony that Chambless and the secretary discussed Amendment 47 thoroughly. Amendment 47 had no conceivable impact on Smith sufficient to stimulate her interest in the provisions to the point that she would be able to discuss it thoroughly with anybody. In any event, it is the trus- tees’ responsibility to get the necessary information to the participants. Chambless’ vicarious receipt of this knowledge through third parties not connected with the plan does not suffice. Moreover, while it is clear from Chambless’ response to Maher's inquiry about engaging in forbidden employment that he knew that he would be barred from receiving any pension until he had actually retired, I am satisfied that he did not understand the impact which Amendment 47 would have on his pension rights. There is no evidence of any act by the plan or union to clarify that impact for participants. What was published in the various articles was the simple message that forbidden employment would result in forfeiture of the right to retirement benefits until age 65. Neither the articles in the October and December issue of the newspaper nor even the letter sent to all participants dated 13 March 1978 explained the full import of the forfeiture of the right to benefits until age 65 to a participant such as Chambless with 32 years of pension service credits. The forfeiture until age 65 brought into play an additional factor not mentioned in any of these statements concerning the amendment. A wage related pension benefit provision accords a participant the right to have his benefits based on the average of his highest salary for five of his last ten years before retirement during which he earned the most. Denying Chambless the right to a pension until age 65 meant not only that his pension was postponed, but since the ten years preceeding the year in which he turns age 65 mant not only that his pension was postponed, but since the ten years preceeding the year in which he turns age 65, 1976-1986, cover a period in which he will earn nothing 0: MM&P jobs, the wage related formula pursuant to which he would have obtained a generous pension would not apply. His benefits would be determined under a different formula which results in reducing his benefits to roughly half of what he would have received in 1977 based on a wage related formula. While the court does not believe the trustees willfully withheld information from Chambless or other participants as to the effective reach and full import of Amendment 47, the statutory requirement of full disclosure has no meaning in this context unless the trustees are required to advise participants fully of what effect a new regulation will have before they can penalize a participant for violating the regulation. Defendants contended at trial that Chambless knew, or should have been able to figure out by taking into account the wage related provision, the effect forfeiture until age 65 would have on his pension benefits. It is not all that obvious, however, and it seems to me inequitable to enforce the new provision without first having its full effect explained to all participants. In my judgment, therefore, B-9 the trustees were barred in 1977 from applying Amendment 47 to Chambless before first explaining all of its implications to him. It is clear enough that Chambless believed he might be denied his pension for the period he continued to work. He was not aware, however, that by taking a non-MM&P assignment he had forfeited his rights to a pension until age 65 and moreover that the forfeiture carned an added penalty of halving the benefits he had been advised he would receive. Amendment 47 is arbitrary and capricious in any event. In Riley \. MEBA Trust Fund (Riley 1), supra at 413, the Second Circuit stated that “new federal standards of fairness must apply with respect to charges of breach of fiduciary duty not explicitly covered by Part 4 of ERISA’, but concluded that it knew of no applicable federal standard other than the arbitrary or capricious yardstick. Suspension of benefits until age 65 is, of course, permissible. Sutton v. Weirton Steel Division of National Steel Corp., 724 F.2d 406, 410 (4th Cir. 1983), cert. denied, — 104 S.Ct. 2387 (1984); Hurn v. Retirement Fund Trust of the Plumbing, Heating and Piping Industry of Southern California, 460 F. Supp. 112 (C.D.Ca. 1978), affd, 648 F.2d 1252 (9th Cir. 1981). However, the right to suspend benefits until age 65 is of no comfort to defendants. They have not only suspended Chambless’ righis to benefits until age 65 but have confiscated a considerable part of those benefits. While the cases allow suspension, none has approved a formula where the suspension results in greatly reduced benefits. Indeed, in Morse v. Stanley, supra, the court was satisfied that all of plaintiffs accrued benefits would be received, with interest, when they reached age 65 and explicitly cited this factor in setting forth its reasons for allowing the funds to be withheld. Defendants argue that since the wage related benefits were incorporated into the pension plan pursuant to a collective bargaining agreement, the trustees’ enforcement was required unless modification was necessary to comply with applicable federal standards and that the arbitrary and capricious standard is not applicable. See United Mine Workers of America Health & Retirement Fund v. Robinson, 455 U.S. 562 (1982). That contention, however, misses the point. The wage related provision is not being contested. What is questioned is the trustees’ right to forfeit a plan participant's vested rights by taking action which results both in suspending his benefits until age 65 and in reducing much of the accrued and vested pension benefits. B-10 The discrimination that the plan practices against retirees and applicants for retirement, barring participation in any maritime employment while allowing others to continue working in the maritime industries and permiting [sic] some retirees, pursuant to the 1981] col- lective bargaining agreement, to accept, after three years, employment on vessels engaged in offshore drilling, exploration and research, or on vessels ancillary to such operations, and permitting short time em- ployment on vessels engaged in trial runs or being delivered, provided union approval is received and plan trustees are notified. does not seem in the abstract so egregious as to come within the arbitrary or capricious prohibition. Nonetheless, the bar became arbitrary and capricious in its application to Chambiess. In 1976, the union launched a plan to pressure older licensed deck officers to retire. Chambless, who between 1966 and 1975 had regularly received assignments as chief mate or master, was told either to retire or to accept only the lowest grade assignment — second or third mate. Indeed, his only assignments from MM&P hiring halls during 1976 and 1979 were second and third mate jobs. Subsequent to the events in this case, the union sought, through collective bargaining agreement, to secure for older licensed deck officers pension benefits that were not wage related. This would have enabled the union to continue its policy of giving choice assignments to younger men without unduly penalizing the older officers. As of 1979 the union had not succeeded in exacting those benefits from the employer. The union cannot adopt a policy of forcing applicants to retire or face low paying assignments if they refuse to do so and yet prohibit or penalize them from working apart from MM&P in jobs matching the skills and experience they have acquired. This is another reason why the penalty imposed on Chambless for accepting employment as a master on ships operated by companies not under contract to MMa&P is capricious. A retiree who works in forbidden employment but not as a licensed deck officer on a U.S. flag ocean going vessel operated by a company not under contract to MM&P forfeits his pension for the time he is working and for six months thereafter. One, however, who works as a licensed deck officer on a U.S. vessel under the jurisdiction of a rival union forfeits his pension until age 65. This regulation does not conform to ERISA requirements. It is evident that no forfeiture of benefits can be exacted for competing with an employer. Hummel v. S.E. Rykoff & Co. , 634 F.2d 446 (9th Cir. 1980); Westwood Chemical Co. , Inc. , v. Kulick, 570 F. Supp. 1032, 1034 (S.D.N_Y. 1983) (Werker, J.); Bonar v. Barnett Bank of Jacksonville, 488 F. Supp. 365 (M.D. Fla. 1980). Trustees have a fiduciary obligation to act with care, skiil, prudence and diligence, 29 U.S.C. §1104 (a)(1)(B), and they must administer the plan solely in the interest of the participants and their beneficiaries. The trustees’ basic fiduciary obligation is to maintain the pension fund on a sound economic and actuarial basis. They must not favor one group of participants over others, but where action is taken to preserve or maintain the integrity of the fund which incidentally disadvantages one group of participants, no fiduciary breach of trust has occurred. In this instance there was testimony by one of the employer designated trustees that he favored Amendment 46's and Amendment 47's forfeiture uf benefits for participants who worked for parties not contributing to the MM&P plan, because the pian was very costly and employers wanted participants to work as long as possible so that the employers could get their money's worth.' That testimony makes clear that the employer trustees and the union trustees approved the Amendments for different and conflicting reasons. Employer trustees favored the regulations as a means of keeping participants working on their vessels for a long time. They did not like the idea of bearing the burden of financing a pension plan where employees with 20 years of pension service credit could retire, receive pension benefits, and then go to work for a competing employer in the industry. The union wanted to keep younger licensed deck officers content with their MM&P affiliation. Therefore they pressured the older officers to retire with these provisions. Given the wage related formula for computing pension benefits, the threat to assign older officers lower paying second and third mate jobs was tantamount to a threat to reduce their pensions. Thus they had to choose between retiring and securing a greater pension benefit or continuing to work faced with both a loss of pay and status and also a reduced pension. Amendment 47 was intended to prevent older officers from escaping this Hobson's choice by taking non-MMA&P jobs. Defendants, to the court's surprise, presented no expert actuarial testimony that the penalty imposed in the two amendments was needed B-12 or even that it in at. way enhanced the financial integrity of the plan. There was no evidence that actuarial considerations were a factor in the trustees’ decision to adopt these amendments. Finally, it is impos- sible to conclude that the financial integrity of the plan is protected by severely penalizing defectors from MM&P ranks, when the impact on the plan's financial well being of those retirees who work in forbid- den employment other than on U.S. flag ocean going vessels not covered by MM&P agreement is so insignificant that a denial of benefits while they work and for six months thereafter suffices. There was, moreover, no testimony that the plan's actuaries had advised imposing the penalty or had approved it as needed to safeguard the plan. On the contrary, the amendments were of union origin, drafted by union counsel, and there is nothing in the record to show that the amendments benefited the plan or its parw ‘pants. I conclude, as did the court in Deak v. Masters, Mates and Pilots Pension Program, No. 79-190 slip. op. at 15 (M.D. Fla. June 4, 1984), “Trustees drew a distinction between certain types of re-employment in the industry primarily to protect MM&P by discouraging members who were eligible for their pension from accepting any job which benefited a competing union.” This penalty imposed on Chambless pursuant to Amendment 47 has not been justified, and is at best the product of the trustees’ uninformed analysis. Elser v. [AM National Pension Fund, 684 F.2d 648 (Sth Cir. 1982), cert. denied, US. , 104 S.Ct. 67 (1983); Winpisinger v. Aurore Corp., 456 F. Supp. 559 (N.D. Ohio 1978). While the trustees may clearly impose regulations requiring full retirement before they are obligated to award pension benefits, they cannot extract the harsh penalty they imposed on Chambless in this case. The regulation pursuant to which the penalty was imposed is not in the interest of the plan participants or their beneficiaries and is not necessary to maintain the financial integrity of the fund. Accordingly, the action of the trustees was arbitrary and capricious. Moreover, while Chambless could be denied pension benefits while he was still going to sea, he was not adequately informed of the harsh penalty that would be inflicted by his working for a rival union. His inquiry in his undated response to Maher's letter of July 19, 1977 makes clear that he thought he would be denied a pension only during the period he worked. : ¥ - . ' ” { - « B-13 The action forfeiting his pension until age 65 is declared a nullity. The trustees are ordered to approve Chambless’ application for a pension provided he ceases working in the maritime industry and certifies that he has done so and applies for a pension within six months of the date of this decision. If he so applies the trustees are to treat the application as if it had been made in 1977 and grant him a wage related pension based on his 1967-1977 employment record. IT IS SO ORDERED. Dated: New York, New York August 2, 1984 /s/ Robert L. Carter ROBERT L. CARTER U.S.DJ. | Captain Lowen. Umon President, on being deposed by plaintiff's counsel before trial. stated that he did not recollect the August 24, 1976 meeting of the trustees — the date Amendments 46 and 47 were adopted. (Lowen Dep. PP 194). He did not recall! Bernard Epstein’s review of the definition of retirement with the Jount Committee of Trustees at the August. 1976 meeting and did not recall what amendments Epstein had prepared. He did recall Amendments 46 and 47 from just having seen them. id. 196-197. He did not recall having discussed the Amendments with Epstein before the meeting and had only a vague recollection of the meeting when the Amendments were discussed. /¢ 198. Nonetheless, at tral on questioning by counse! for the plan Lowen launched into a long and extensive dissertation on the reasoning behind the amendments and the need to protect the integrity of the fund. It is clear that at the pretrial deposition Lowen deliberately frustrated plaintiff's mgm to discovery. Accordingly. his testimony concerning the basis for these amendments is striken and will not be considered by the court. F.R.Civ.P. 37. B-14 JUDGMENT DATED OCTOBER 29, 1984 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 80 Civ. 4258 (RLC) Filed October 29, 1984 ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS, Plaintiffs, - against - MASTERS, MATES & PILOTS PENSION PLAN, et al., Defendants. JUDGMENT This action having been tried by the Court, Hon. Robert L. Carter, District Judge, presiding, on November 16 through November 23, 1983, and the Court having duly made and filed findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, it is, ORDERED AND ADJUDGED that (a) the action forfeiting Arthur Chambless’ pension rights unti! he attains age 65 is declared a nullity; (b) the trustees approve Arthur Chambless’ application for a pension provided he ceases working in the maritime industry, certifies that he has done so and applies for a pension within six months of the date of this Court's judgment (October 29, 1984) and that if he does so, the trustees will treat the application, for the purpose of calculating his wage-related pension, as if it had been made in 1977, thereby granting him a wage-related pension based on his 1967-1977 employment record; B-15 (c) all other claims and causes of action asserted on behalf of plaintiffs are dismissed; and (d) the Court retains jurisdiction of the parties and of this cause for the purpose of enforcing the judgment and making such further orders as are necessary. Dated: October 29, 1984 New York, New York /s/ Robert L. Carter U.S.D.J. THIS DOCUMENT WAS ENTERED ON THE DOCKET ON 10-30-84 ew oD im. ad a eT C-1 ENDORSEMENT ORDER DATED NOVEMBER 39, 1984 ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS — against - MASTERS, MATES & PILOTS PENSION PLAN, et al 80 Civ. 4258 (RLC) ENDORSEMENT The motion is denied. Filing a motion to raise the kinds of questions brought up in the motion papers is simply a waste of time. All Captain Chambless is required to do is to certify to the plan administrator that he has withdrawn from all active employment in the maritime industry and wants to obtain his pension benefits. The form of the application is not important, and if the reguiar form is used, it is clear that there would be no need for him to answer questions that do not apply to his situation. The apparent concern about the six month grace running out is groundless. If an appeal is taken, the six month grace is tolled. Under a narrow interpretation, the time would commence to run again after the Court of Appeals has rendered decision and issued its mandate to the district court. Under a more liberal interpretation, Captain Chambless would have six months from the date of the mandate of the Court of Appeals. This is all, of course, on the assumption that plaintiff prevails on appeal. Under the court's judgment, Captain Chambless is entitled to receive in 1985 the wage related benefits he would have been entitled to receive in 1977. If 1977 pensioners similarly situated to Captain Chambless have received cost of living increments which increase their monthly benefits beyond the 1977 level, it may well be that Captain Chambless might be entitled to a monthly stipend with cost of living increments to bring him on par with other 1977 pensioners. It will be time enough to study that issue, if necessary, on remand. My opinion did not contemplate pension benefits for Captain Chambless retroactive to C-2 1977. Mr. Garfield's approach was not considered. If this matter is appealed, plaintiff would be advised to raise those questions on appeal. Indeed, it would probably be prudent on plaintiff's part to cross-appeal, since a notice of appeal has been filed by defendant, in order to be certain that this matter is considered by the Court of Appeals. The issue of the cost of living increments does not appear to the court to necessitate a cross-appeal, but, again, prudence would dictate that the matter be presented to the court in brief and argument upon appeal. Further, the court's advice would be for Captain Chambiess to await the conclusion of the appellate process before applying for benefits. The attorney's fee issue should also be deferred until the case is again in this court on remand. Finally, since this matter is now on appeal, it is suggested that the parties devote their time, effort and energy to the appeal. Whatever matters the court has to determine can await remand of this case to this court. IT IS SOQ ORDERED. Dated: New York, New York November 30, 1984 /s/ Robert L. Carter ROBERT L. CARTER U.S.D.J. D-1 SUMMARY JUDGMENT OPINION, SEPTEMBER 14, 1983 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 80 Civ. 4258 (RLC) ARTHUR CHAMBLESS and MILDRED H. CHAMBLESS, Plaintiffs, - against - MASTERS, MATES & PILOTS PENSION PLAN, et al., Defendants. OPINION CARTER, District Judge I In this action, Arthur M. Chambless (“plaintiff”), a veteran seaman, and his wife, Mildred H. Chambless, allege, inter alia, that his pension benefits have been improperly forfeited, that the trustees of his pension plan violated their fiduciary duties, and that his former union and former employers violated the antitrust laws by conspiring to deter him from working on vessels owned by competing shipping companies and represented by a rival union. Chambless and his wife seek restitution of the allegedly forfeited pension benefits, treble antitrust damages, and a clarification of their pension rights. Chambless, a licensed deck officer, began sailing as a member of the International Organization of Masters, Mates & Pilots (““MM&P”) on October 27, 1944. Chambless Aff. 42; Maher Aff. 94. Often serving as chief mate, Chambless continued working on vessels represented by the MM&P until December, 1976, when he submitted i D-2 his first application to the M.M.&P. Pension Plan (“the pension plan” or “the plan”). Complaint §2; Chambless Aff. (416-17; Maher Aff. q5. The plan is a multiemployer pension plan that was established by an Agreement and Declaration of Trust dated August 1, 1955, in order | to provide pension benefits to licensed deck officers working for companies that have collective bargaining agreements with the MM&P. Maher Aff. 442-3. The plan is funded solely by employer contribu- tions and is administered by an equal number of employer and union designated trustees. Jd. 42. Chambless withdrew this pension application, however, because his “love for the sea” continued to beckon. Complaint 418; Exh. 4 to Maher Aff. He maintains that he submitted his initial pension application only after what he terms illicit union pressures compelled him to consider retiring. Complaint 417. First, Chambless alleges that the MM&P maintains a policy of strongly encouraging — Chambless would say strong-arming — its older, more experienced members to retire so that the union can replace them with “new young blood” and thereby obtain more union dues. Id. 415; Chambless Aff. 946-7. He maintains that the union wrongfully assigned senior positions to officers more junior than he, failed to pursue his grievances on these matters, and, beginning in 1976, offered him less prestigious, lower paying work as a first, second, or even third mate. Chambless Aff. ¢44-6, 10-11. Chambless asserts that being assigned to work as a third mate was of “great humiliation for a licensed deck officer of my years of experience” and says that such assignments caused him to consider retiring. fd. 411. Second, Chambless maintains that the union sought to usher him into retirement because he “knew too much” about, inter alia, favori- tism and discrimination in work assignments and grievance processing, self-dealing by union officials with local funds, improper recordkeep- ing, and efforts to harass and intimidate certain employees into retiring. Complaint 414. Both the union and the plan deny Chambless’ alle- gations about favoritism, discrimination, intimidation, and pressures placed on older members. Answer of MM&P 4414-16; Answer of Pension Plan 4415-16. In early 1977, disgruntled with the low-level, low-paying assignments that the MM&P hiring hall had given him, Chambles took a two- D-3 week assignment as master on an oil-drilling rig that did not have a contract with the MM&P. Chambless Aff. 412. He said that he did this only after he had asked a union agent at the hiring hall whether it would be all right for him to take such a inb and only after the union agent told him that the union would have no objection. Jd. ; Complaint 421. When Chambless returned to shore after his fortnight on the rig, he was informed that because he had worked on a non- MM&P rig, he was no longer in good standing with the union. This was so, Chambless maintains, even though many other union members who worked on non-MM&P vessels were not so tarred. Chambless Aff. $13. Disgruntled, Chambless then, to use his words, “retired from em- ployment under the MM&P contract and filed [his second] application for pension benefits.” Jd. 414. At about the same time, Chambless accepted employment as a master on the Mount Explorer, an ocean- going vessel that was operated by a company that had a collective bargaining agreement with a rival union, the Marine Engineers Beneficial Association (“MEBA”). /d. 415. The two unions representing licensed deck officers —- MM&P and MEBA~— have been in intense competition for at least two decades, see MM&P v. NLRB (Westchester Marine Shipping Co.), 539 F.2d 554, 556-57 (Sth Cir. 1976), cert. denied, 434 U.S. 828 (1977), and the Mount Explorer on which Chambless sailed has been the focus of a picketing dispute and unfair labor practice lawsuit between the two labor organizations. See MM&P v. NLRB (Cove Tankers Corp.), 575 F.2d 896 (DC. Cir. 1978). Chambless submitted his second pension application on or about April 2, 1977. Chambless Aff. 414; Maher Aff. 46; Exh. 5 to Maher Aff. Six days later, Stephen P. Maher, the administrator of the plan, wrote Chambless, as he had done after Chambless had submitted his first application, to acknowledge receipt of Chambless’ application and to advise him of the plan's definition of retirement.' Maher Aff. 45-6; Exh. 6 to Maher Aff. On June 30, 1977, a plan employee wrote Chambless to inform him that the trustee would consider his application, and that his monthly benefits would be approximately $920 on a percentage basis and $570 on a flat basis.? Exh. 8 to Complaint. On July 19, 1977, Maher wrote Chambless to inquire whether Chambless had, as was rumored, taken a job on a non-MMA&P vessel. ia a i D-4 Exh. 9 to Maher Aff. In November, 1977, the plan received a letter from Chambless acknowledging that he had taken such employment beginning April 4, 1977. Exh. 8 to Maher Aff. At their November 30, 1977 meeting, the pension trustees considered Chambless’ application, Maher Aff. 413, and on January 26, 1978, Maher wrote to Chambless to inform him that the plan's trustees had concluded that because he had not retired under the plan's definition of retirement, he was not eligible for a pension at the time. Exh. C to Complaint. Furthermore, Maher informed Chambless that the plan would not pay him any pension until he reached the age of 65, which the plan defines as “normal retirement age.’ /d.; Article I, Section 13 of the plan regulations. Chambless will not turn 65 until December 7, 1986. Complaint { 10. In a January 28, 1980 letter, Maher advised Chambless that the monthly pension benefits he is to receive upon turning 65 will likely be $470. Exh. C to Complaint. In deciding that Chambless would not receive pension benefits until he turns 65, the trustees acted pursuant to Article I-A, Section 15(a)* and Amendments 46 and 47 to the plan regulations. The amendments were passed on August 26, 1976, and were encoded in Article I-A, Section 15(b) and Article I-A, Section 20.° Article Il-A, Section 15(b) states in pertinent part: If a Pensioner works in covered employment forbidden by this Section, 1. He shall not be entitled to pension benefits for any month of such employment and for six additional months, provided that the additional six month period shall not extend beyond his Normal Retirement Age, as defined in Article 1, Section 13; provided further, however, that if such employment is in the capacity of a Licensed Deck Officer on a U.S. flag ocean-going vessel em- ployed by a company which is not a participant in the M.M.&P. Pension Plan or the MM&P/PMA Pension Plan. .., then the Pensioner shall not be entitled to pension benefits for any month of such employment nor for any months prior to such Pensioner reaching his Normal Retirement Age, as defined in Article I, Section 13.° Echoing the above quoted provision, Article II-A Section 20 states in pertinent part: D-5 In the event a Participant subsequent to his accrual of credit for 10 years of vesting service and prior to his retirement, is employed in the capacity of a Licensed Deck Officer on a U.S. flag ocean- going vessel employed by a company which is not a Participant in the M.M.&P. Pension Plan or the MM&P/PMA Pension Plan. .., such Participant shall \not be entitled to any pension benefits prior to his reaching his Normal Retirement Age, as defined in Article I, Section 13. Chambless appealed the trustees’ rejection of his application and appeared with counsel at the December 5, 1979 trustees’ meeting. Maher. Aff. 410. On March 5, 1980, the trustees again voted to deny Chambiess’ pension benefits until he turns 65. Jd. On June 24, 1980, Chambless brought this suit against the pension plan, Stephen Maher, the plan administrator, the MM&P, the plan's employer and union trustees,’ the Maritime Services Committee and the American Maritime Association, employer organizations that do collective bargaining for shipping companies, and six shipping companies that formerly employed Chambless, have contracts with the MM&P and contribute to the MM&P plan: Amerada Hess Cor- poration, Amoco Shipping Company, Central Gulf Lines, Inc., Na- tional Transport Corporation, Wabash Transport, Inc., and Waterman Steamship Corporation. Chambless had alleged several wide-ranging claims against these defendants, although it is often unclear which claims are directed against which defendants. The legal theories behind his claims are often obfuscated and occasionally overlapping, but the basic claim, and it appears in several different guises, is that the union and plan discriminated against him and caused his pension benefits to be suspended and forfeited because he went to work on a vessel operated by a competing company and represented by a rival union. In his first cause of action, Chambless asserts that the defendants violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 er seg. (“ERISA” or “the Act”), by suspending payment of his vested pension after he went to work on a non-MM&P vessel.* Complaint $28. In a related, if somewhat overlapping claim, he asserts that even if a plan has the right to suspend pension payments when a retiree returns to work, it does not have the right to continue suspending thc.< benefits after the plan participant goes back into re D-6 a retiree returns to work, it does not have the right to continue suspending those benefits after the plan participant goes back into retirement. In addition, Chambless says that the plan regulations are causing a forfeiture of his benefits by reducing them from an estimated $920 a month beginning at age 55 to an estimated $470 a month beginning at age 65. Chambless Aff. 425. The plan contends, however, that its regulations do not provide for any illegal forfeiture and that its trustees acted within the letter of the law in suspending Chambless'’ benefits until he turns age 65. Maher Aff. 411. Chambless also contends that Amendments 46 and 47, by discrimi- nating against plan participants who work on non-MM&P vessels, are “punitive in purpose and effect” and “arbitrary and capricious” and therefore violate the trustees’ fiduciary duties. Complaint 4428, 29, 33. He also argues that the age that the plan selected for normal retirement age is a “sham” that was chosen to make it easier for the plan and union to discriminate against disfavored members. Id. 428(a). Chambless accuses the defendants of further violating their fiduciary | duties by passing regulations that allegedly are not for the sole benefit ‘ of plan participants and their beneficiaries, by failing to provide a full and fair review of his pension application, and by failing to provide him with certain information that he had requested. In a related claim, Chambless’ fifth cause of action charges—evidently alluding to language in the plan documents which states that the trustees must act solely in the interest of the plan participants — that the defendants breached his contractual rights in violation of 29 U.S.C. § 185.° id. $42. In addition, Chambless maintains that at no time before he took employment on a non-MM&P vessel did the plan or union notify him of the import of newly enacted Amendments 46 and 47 for participants who take non-MM&P employment. Complaint 429; Chambless Aff. | §429-31; Exh. 10 to Maher Aff. | The plan responds that all MM&P members were notified of the new rules through The Master, Mate & Pilot, the union newspaper, and that Chambless was specifically notified by letter. Maher Aff. 47; Exh. 8 to Maher Aff. In his second cause of action, Chambless charges that defendants combined and conspired in restraint of trade by “interfer{ing] with the right of licensed deck officers to engage in their trade or profes- sion.”” Jd. 435. He sees Amendments 46 and 47 as the chief instru- ments of these efforts. The plan and union deny that the purpose of . a2 oa _—— — D-7 the disputed amendments was to restrain trade. Answer of MM&P §32, Answer of Pension Plan 432. Defendants say that the plan's regu- lations have always required that benefits be suspended when plan Participants work in “prohibited” employment and argue that Amend- ments 46 and 47 aim to “preserve and enhance the corpus of the MM&P plan.” Lowen Aff. 47. Chambiess’ third cause of action alleges that defendants, because of the assurances they allegedly gave him about accepting employment on non-MM&P vessels “are estopped from denying” him benefits. " Id. $38. In his fourth cause of action, Chambless asserts that the MM&P has breached its duty of fair representation by discriminating against senior seamen like himself and by failing to pursue several of his grievances." Jd. 440. Defendants deny both the estoppel claim, Answer of Pension Plan 438, and the duty of fair representation claim. Answer of MM&P 440. Plaintiff prays for the payment of his pension benefits retroactive to May !, 1977, damages of $100 per day for the defendants’ failure to furnish him with certain pension information, treble antitrust damages for alleged lost earnings and pension benefits, and a declaration that the defendants’ acts are unlawful and null and void under the antitrust laws. Chambless also seeks punitive damages. costs, and attorneys’ fees. Il The pension plan, the plan trustees and Maher, the plan adminis- trator, and MM&P move for summary judgment on the grounds that 1) the actions taken by the plan trustees are in accordance with the plan regulations and such regulations comply with ERISA and are not arbitrary or capricious or effectuated in bad faith; 2) plaintiff's claims for a declaration of the amount of benefits Chambless will receive at age 65 and a declaration of his wife's rights are not ripe for adjudication; 3) the plan cannot be estopped from acting on the basis of statements allegedly made by employees of the union; 4) the plan's regulations are exempt from antitrust serutiny by virtue of the non-statutory labor exemption, 5) Chambless has not alleged that he has suffered any antitrust injury, and 6) Chambless received or had access to all the documents that ERISA requires the plan to supply. for summary judgment, asserting that they are not fiduciaries of the D-8 plan and cannot be held liable as such and that ERISA requires the plan administrator, not them, to supply certain information. As for the antitrust claims, they argue that they are protected by the non- statutory labor exemption and that plaintiff has suffered no antitrust injury. Chambless has cross-moved to strike the affidavits of Maher, the plan administrator, and of Robert J. Lowen, the International President of the MM&P. Chambless asserts that the affidavits should be stricken because they contain assertions and legal conclusions about which the affiants allegedly have no personal know! sdge. Il LEGAL DETERMINATION A Ripeness of ERISA Claims — Defendants contend that Chambless’ ERISA claims should be dismissed for lack of ripeness because Chambless has not alleged that he plans to retire in the immediate future and because he is merely seeking a declaratory judgment regarding what amount he will receive at age 65. Defendants maintain that even if the court were to conclude that there is a dispute over an issue of material fact regarding whether the plan has the right to continue suspending Chambless’ benefits should he retire before age 65, that issue would not be ripe on the ground that there is no likelihood that Chambless will soon retire. Siznilarly, defendants argue that Mrs. Chambless’ claim is not ripe because she is seeking merely a declaration of her rights to survivor benefits should her husband die before age 65—an eventuality that they assert is hypothetical and remote. In short, they contend that neither Chambless nor his wife suffers any present harm from the plan's regulations. Lastly, they argue that certain events may occur before Chambless turns 65 — changes in federal statutes or regulations : or changes in the plan regulations or the trustees’ interpretation of those regulations — and that these events may significantly alter the inquiry or render it moot. Chambless responds that this suit does not seek a declaratory judgment, but instead seeks an order overturning certain plan regulations and awarding him benefits at once. He contends that the ee — oe. ee ef D-9 plan trustees acted arbitrarily and capriciously in suspending his benefits, that the classifications in the regulations are illegal, and that the “normal retirement age™ that the trustees selected, i.e., age 65, is a “sham.” In their ripeness arguments, both sides have distorted what Chambless’ often unclear complaint says. What is clear, however, is that Chambless and his wife seek a declaration or clarification of their tights, assert that they suffer present harm due to the suspension of Chambless retirement benefits, and seek damages under ERISA for the defendants’ alleged pat wrongs. The jurisdictional section of ERISA states: A civil action may be brought — (1) by a participant or beneficiary —(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan: (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provision of this subchapter or the terms of the plan. . . . 29 U.S.C. §1132(a) (emphasis added). Here, the Chambiesses seek not only a clarification of their rights to future benefits but also to “enjoin” a “practice” that allegedly “violates” ERISA. 29 U.S.C. § 1132(a)(3). The Seventh Circuit addressed many of the ripeness questions raised here in an ERISA case brought by a class of pension plan participants, none of whom had reached the age of 65 or had yet applied for a pension, for a declaration or clarification of their rights after the plan had raised the normal retirement age from 57 to 65. In words that might have been written for the case at bar, the Seventh Circuit stated: We reject the trustees’ contention that this is a “battle of hypotheticals, a classic example of the difficulty of deciding a case concerning a complex technical subject without the benefit of D-10 specific facts.” . .[Plaintiff] seeks a determination of the nature and scope of the Plan participants’ rights to future benefits. Section 1132 provides that a civil action may be brought “by a participant to clarify his rights to future benefits under the terms of the plan... 2 29 U.S.C. § 1132. This action is precisely the type of action contemplated by the statute. Janowski v. International Brotherhood of Teamsters, 673 F.2d 931, 935 (7th Cir. 1982) (emphasis added), vacated on other grounds and remanded for reconsideration of attorneys’ fees, 51 U.S.L.W. 3937 (June 28, 1983). Chambless’ suit to find out whether the plan has the right to suspend his benefits when he took non-MM&P employment and whether he has a right to obtain benefits before age 65 should he retire before that age “is precisely the type of action contemplated by the statute.” /d. The same is true regarding Mrs. Chambless’ effort to obtain a clarification of what her rights are should her husband die before the age of 65. In arguing that the claims of Chambless and his wife are not ripe, defendants rely on two pre-ERISA cases. In Lugo v. Employees Retirement Fund, 529 F.2d 251 (2d Cir.), cert. denied, 429 U.S. 826 (1976), plaintiff challenged a pension plan rule that denied benefits to participants who did not work a total of 90 months during the ten years before they applied for a pension. Lugo was 53 at the time he brought suit, and under the pension plan rules couid not recieve benefits until he turned 60. The court concluded that Lugo’s lawsuit was not ripe since Lugo had to wait seven yars before becoming eligible for a pension, because it was very possible that he would accumulate 90 months of work in his last ten years, and because he did not allege “present objective harm” or the “threat of specific future harm” as a result of the challenged rule. Jd. at 258, quoting Lecci v. Cahn, 493 F.2d 826, 829 (2d Cir. 1974). The court wrote, however, that had Lugo attacked the validity of the rule requiring that participants be at least age 60 to obtain benefits and had he asserted that he was thus presently entitled to a pension, he would have stated a ripe claim. /d. at 257-58. The instant case is distinguishable from Lugo on several grounds. First, whereas Lugo did not attack the age 60 rule and assert that he deserved a pension at the present time, id., Chambless attacks the age 65 normal retirement age of the MM&P plan as illegal, a sham, D-11 and an improper bar to his receiving benefits ar the present time. Second, the Lugo court deemed it wise to hold off adjudicating on the merits because ERISA was soon to take effect and “the impact of ERISA prior to the time Lugo reaches age 60 will undoubtedly be considerable.” Jd. at 259. That reason for not addressing the merits is absent here. Third, while Lugo brought his case under § 302(c)(5) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 186(c)(5), Chambless has brought his case under ERISA, which in its language allowing plan participants and beneficiaries to sue for a clarification of their rights has liberalized ripeness requirements. See Janowski, supra, 673 F.2d at 935. Defendants also rely on Stewart v. M.M.&P. Pension Plan, 608 F.2d 776 (9th Cir. 1979), which, like Lugo, was brought under the LMRA, rather than ERISA. Stewart challenged a plan regulation that did not give additional years of pension credit to plan participants who, after having accumlated 20 years of pension credit and after having retired, went back to work. His lawsuit was a declaratory judgment action. Id. at 782. Stating that the plaintiff was not “in fact subjected to or imminently threatened with substantial injury,” id, at 783, and that the plaintiff “did not aver that he wanted to retire or would retire,” id. at 784, the court held that Stewart's action was not ripe. The instant case is distinguishable from Stewart in several ways. Stewart was not brought under ERISA and therefore ERISA’s more generous ripeness criteria regarding the clarification of rights were not in effect. Second, while the plaintiff in Stewart did not aver that he was suffering present harm, Chambless has alleged that because his pension has been suspended he is suffering present harm from the rules that he is challenging. For the above reasons, the ERISA claims brought by Chambless and his wife are ripe for adjudication. B The Validity of Amendments 46 and 47 under Section 203 and the Federal Regulations—Amendments 46 and 47 provide that a plan participant who leaves retirement and goes to work on an MM&P vessel is to have his pension benefits suspended for the time he is working plus six additional months after he ends his re-employment. These amendments also provide that participants who leave retirement to D-12 work on non-MM&P boats are to have their pension benefits suspended until they reach normal retirement age —which is 65 under the plan — even if they re-retire well before age 65. (Indeed, under these amendments, any participant with more than ten years’ experience who goes to work on a non-MM&P boat is not to receive any benefits until he turns 65.) ERISA requires that participants receive their pension benefits once they reach normal retirement age, so long as they do not continue working in the same industry, trade, and geographical area. 29 U.S.C. § 1053(a)(3)(B)(ii)." Although the gravamen of Chambless’ claims here is not pellucid, he appears to claim that the plan’s refusal to pay him benefits until he reaches age 65, pursuant to Amendments 46 and 47, is a suspension proscribed by section 203(a) of ERISA, 29 U.S.C. § 1053(a), and by the regulations that the Department of Labor (“DOL”) has issued under ERISA. Chambless argues that under section 203(a) and 29 C.F.R. § 2530.203-3(b)(2) (1982),* a plan may suspend a retiree’s benefits only during the period he is re-employed and then only if the re- employment is in the same industry, trade and geographical area. Chambless maintains that the plan’s suspension of his benefits is illegal, first, on the ground that he is not working in the same geographical area and, second, on the ground that should he re-retire before turning 65, the suspension would continue beyond the period of his re-employment. The plan counters, however, that section 203(a) of ERISA, 29 U.S.C. § 1053(a), “does not restrict in any way” the suspension of a plan participant's benefits before he reaches normal retirement age and that because Chambless has not reached that age, the plan trustees are free to suspend his benefits. Inasmuch as Chambless misconstrues both section 203(a), 29 U.S.C. § 1053(a), and the DOL regulations, his attack on Amendments 46 and 47 will find no support in either of these sources. Section 203(a) reads in pertinent part: “Each pension pian shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age...” (emphasis added). This court has stated previously that “[t}he Act, on its face, requires only that pension benefits be nonforfeitable upon attainment of normal retirement age, in this case, age sixty-five. The Act, therefore, gives plaintiff no vested right to receive benefits until D-13 he reaches that age.” Riley v. MEBA Pension Trust, 452 F. Supp. 117, 120 (S.D.N.Y.) (MacMahon, J.), affd, 586 F.2d 968 (2d Cir. 1978). Because Chambless has not reached age 65, the benefits that the plan is suspending are not normal retirement benefits, but are instead early retirement benefits. The Second Circuit has noted, moreover, albeit in dictum, that “Congress did not intend for early retirement supple- ments to be unforfeitable.” Riley v. MEBA Pension Trust, supra, 586 F.2d at 970 n.2, quoting Capocci v. General Motors Corp., 444 F. Supp. 1306 (D. Hawaii 1978); see also Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1253-54 (9th Cir. 1981) (*Hurn I’) (“The critical inquiry is whether Hurn had reached “normal retirement age”, for if he had not, section 1053(a) would not protect him from the suspension of benefits he suffered”); Hernandez v. Southern Nevada Culinary & Bartenders Pension Trust, 662 F.2d 617, 620 (9th Cir. 1981) (“ERISA gives an employee-participant no vested right to receive pension benefits until he reaches normal retirement age. . .. Congress never intended to impose upon a plan a requirement that any benefits be payable before age 65”) (emphasis in original). The case law thus makes clear that section 203(a) provides no protection against the suspension of benefits of plan participants, such as Chambless, who have not yet reached normal retirement age. ' The DOL regulations support this position in stating that “{a] plan may provide for the suspension of pension benefits which commence prior to the attainment of normal retirement age..." 29 C.F.R. § 2530.203-3(a)(1982)(emphasis added). Therefore, as long as the plan begins paying him benefits upon his attainment of normal retirement age, Chambless has no claim under section 203(a) or the DOL regulations." . Amendments 46 and 47 and Their Alleged Arbitrary, Capricious, and Discriminatory Nature—Chambless next maintains that Amendments 46 and 47 must fall under another section of ERISA, the section setting forth the fiduciary duties of plan trustees. 29 U.S.C. § 1101 er seg. He argues that the amendments are arbitrary and Capricious, discriminatory, and in bad faith and that the trustees violated their fiduciary responsibilities in enacting such regulations.” Chambless contends that the two amendments establish an invidious discrimination by suspending the benefits of retiree-participants who D-14 return to work on non-MM&P vessels for far longer than those of participants who return to work on MM&P boats."* Complaint §28(d). According to Chambless, in passing the amendments, the plan’s trustees violated their fiduciary duties because the amendments, he argues, were noi enacted “solely in the interest of the participants and beneficiaries,” 29 U.S.C. § 1104(a)(1), but instead primarily to help the MM&P and shipping companies that have contracts with the MM@&pP in their struggle against rival companies and unions. Cham- bless argues that the main purpose of the amendments was to deter MM&P members from working on vessels that had contracts with MEBA, that is, as yet another weapon in the MM&P’s war against its rival union. Complaint 4415, 28; Chambless Aff. 4418-20. To bolster his allegation that the amendments were passed for discriminatory reasons and not in the interest of the plan's participants, plaintiff has submitied an affidavit quoting the deposition of Charles Hemming, a former MM&pP vice president, who stated that “the thrust [for Amendments 46 and 47] was from the union side” and that the idea of the amendments was to make it difficult for new shipping companies to find workers. Opsahl Aff. 4i2. He said that the plan trustees knew that “these new companies. . .would have a need for skilled licensed deck officers,” and that “the only source. . .available would be members of the MM&P.” Jd. Hemming stated: The hoped effects of this amendment would be to deny the experienced personnel to operate these newer ships that were ~ coming off because so much of an efficient ship operation depends upon the master’s judgment, and he can make or break a company. * * ** Q. So the purpose in effect was to keep these experienced masters away from the companies that most needed them; is that correct? A. That was my understanding of it, yes. A notice that was published numerous times in the union's official newspaper unwittingly adds some weight to Chambless’ argument that the amendments had a discriminatory aim. That notice, including its telling title, reads in relevant part: STAY ON COURSE... eee 7 en D-15 Sailing Non-MM&P Contract Ships Jeopardizes Pension & Benefits Should you be offered an opportunity to accept employment aboard a non-MM&P contracted vessel, be sure you realize what you are doing, insofar as your Health & Benefit and Pension benefits are concerned. * * * * You accrue pension credits as a result of sailing aboard MM&P contracted vessels participating in the Pension Plan. Do not jeopardize your ultimate pension benefits by accepting employment aboard non-MM&P contracted vessels. Exh. 7 to Maher Aff. (emphasis in original). Defendants of course differ with Chambless about the reasons behind the disputed amendments. MM&P President Lowen asserts that they were passed “to preserve and enhance the corpus of the MM&P Pension Plan.” to “[s]trengthen the base of the MM&P Pension Plan.” Lowen Aff. $7, quoting Lowen Dep. at 127-30. He said the amendments would protect the corpus of the fund by “keeping available to our companies the people who are sailing under them. . . . If you're sailing under the MM&P Pension Plan, and contributions are being made on your behalf, you're preserving the trust.” Jd. While Lowen asserts that Amendments 46 and 47 were needed to ensure that there were enough workers for the vessels of contributing employers in the event of a labor shortage, id., Chambless retorts that this is a mere pretext because in his view there has long been a surplus of qualified workers — evidenced by the competition between the ex- perienced seamen and the “new young blood’—to fill the spots of con- tributing employers. Chambless Aff. 433. Chambless argues that because this is so, the trustees could have adopted the amendments only to prevent competing employers from obtaining the qualified em- ployees they need. Section 404 of ERISA, 29 U.S.C. § 1104, sets forth the fiduciary duties of a plan trustee: (a)(1). . .a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — D-16 (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the cir- cumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; ** * * (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter. (emphasis added). Several courts have held that pension fiduciaries may breach their duties not only by violating these specific provisions, but also by acting “arbitrarily and capriciously.” In Riley v. MEBA Pension Trust, 570 F.2d 406, 413 (2d Cir. 1977) (“Riley I’), a seminal ERISA case, Judge Friendly wrote: It has been suggested that after January 1, 1975 [the date ERISA’s fiduciary provisions took effect], new federal standards of fairness must apply with respect to charges of breach fiduciary duty not explicity covered by Part 4 of ERISA. . . . We have no difficulty with th[is] argument. . . . but we know of no federal standard that would here be applicable other than the arbitrary or capricious one already discussed, see Morgan [v. Laborers Pension Trust Fund], 443 F. Supp. [518], 524 [(N.D. Cal. 1977)}; of Rehmar v. Smith, 555 F.2d 1362, 1371 (9 Cir. 1976) (emphasis added). In the latter case cited by Judge Friendly, the Ninth Circuit wrote that decisions of pension trustees “may be reversed only where they are arbitrary, capricious or made in bad faith, not supported by substantial evidence, or erroneous on a question of law.” Rehmar v. Smith, supra, 555 F.2d at 1362. This language is almost identical to that which the D-17 Second Circuit used in a pre-ERISA case assessing whether pension trustees had violated their fiduciary duties under section 302(c)(5) of the LMRA, 29 U.S.C. § 186(c)(5)." See Beam v. MM&P. 511 F.2d 975, 980 (2d Cir. 1975).” Thus the court concludes that the “arbitrary and capricious” standard is the proper level of review to apply here.*! Chambless’ argument that Amendments 46 and 47 violate ERISA’s fiduciary duties on the ground that they were not adopted “solely in the interest of the [plan's] participants and beneficiaries,” 29 U.S.C. § 1104(a)(1), draws support form Winpisinger v. Aurora Corp. , 456 F. Supp. 559, 566 (N.D. Ohio 1978). That case explores ERISA’s fiduciary obligations in great depth and states that the “lead line of section 1104(a)(1) imposes a separate and overall requirement upon the trustees to discharge all of their duties ‘solely in the interest of the participants and beneficiaries—Congress thereby added a responsibility over and above the prohibition against self-dealing.” In addition, Chambless argues that the amendments also violate 29 U.S.C. §1104(a)(1)(D) by failing to be “in accordance with the docu- ments and instruments governing the plan.” The “Powers and Duties” section of the Agreement and Declaration Trust establishing the plan states that the trustees “shall discharge their duties solely in the interest of those entitled to benefits hereunder.” Article V, Section (1)(b) of Agreement and Declaration of Trust, Exh. 1 to Maher Aff. (emphasis added). Cf Winpisinger v. Aurora Corp., supra, 456 F. Supp. at 567. Chambless makes a similar claim in his fifth cause of action, which alleges that “Defendants have breached the contractual rights to pension benefits as provided under the plaintiff's contract of employment in violation of 29 U.S.C. § 185." Complaint 442. In this cause of action, Chambless is evidently referring to the plan’s Agreement and Decla- ration of Trust and the “solely in the interest” language quoted above.” The court of course recognizes that “[a]ctuarial considerations and the long-term health of the plan are valid concerns of the trustees[,]” Kozlesky v. Board of Trustees for Amalgamated Department Store Retiremeni Income Plan, 546 F. Supp. 466, 468 (E.D. Mich. 1982), and that these considerations may have been a factor in the passage of Amendments 46 and 47. Nevertheless, plaintiff has carried his burden of showing that there is a dispute over the material issue of D-18 whether Amendments 46 and 47 were adopted to maintain the fund's financial integrity or for other, less laudable motives that might be inconsistent with the trustees’ fiduciary obligations. Chambless has also offered “concrete particulars,” SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d. Cir. 1978), such as the Hemming deposition, to establish that there are additional disputes over whether the trustees, in adopting the amendments, acted “solely in the interest of the participants and beneficiaries,” acted arbitrarily and capriciously, or acted with improper discriminatory or bad faith motives.*> Thus, summary judgment is denied on these issues. D Selection of 65 as Normal Retirement Age —Chambless next argues that the plan's establishing 65 as the normal retirement age is a “sham.” Complaint ¢28(a). He asserts that 65 is not the normal retirement age because more than 90 percent of the participants retire before 65. Noonan Aff. 416; Noonan Reply Aff. 46. Chambless asserts that the selection of 65 was arbitrary and capricious and that retirement has “normally been based upon years of service rather than the attain- ment of any chronological age.” Noonan Aff. 416. Although Chambless is less than clear in his argument here, he seems to be saying that the plan adopted 65 as its normal retirement age so as somehow to deter licensed deck officers from working for competing companies and unions and to make it easier for the plan to penalize participants who take jobs on non-MM&P vessels. Chambless Aff. 428. The plan maintains that its adoption of age 65 as the normal retire- ment age was in good faith and was done pursuant to the recommenda- tion of its actuarial consultant. Exh. 15 to Maher Aff. at 16. As further evidence that selecting 65 as the normal retirement age was not a “sham,” the plan notes that in 1980 the average age at which plan participants retired was 62.7. Maher Reply Aff. 43. Defendants maintain that the mere two-year difference between 62.7 and 65 negates any inference that the new normal retirement age was adopted to penalize “bad boys” who accept employment on competing vessels. The relevant language of ERISA defines “normal retirement age as the earlier of— (A) the time a plan participant attains normal retirement age under the plan, or (B )the later of— (i) the time a plan participant attains age 65, or (ii) the 10th anniversary of the time a plan participant commenced participation in the plan. 29 U.S.C. § 1002(24). In mounting his attack against age 65 as the normal retirement age, Chambless relies less on statutory language, legislative history or precedent than on a dictionary definition of “normal” (“conforming to a usual or typical pattern,” American Heritage Dictionary (1976) ). While we are reluctant to parse through the many dictionary definitions of “normal,” there is no need to turn to the dictionary here because the statutory language is clear. The leading case on the question of normal retirement age, one rather similar to the the instant case, holds that ERISA presents no bar— except in the case of arbitrary and capricious or bad faith actions —to the decision of a pension plan to raise its normal retirement age to 65. In Janowski v. International Brotherhood of Teamsters, supra, plaintiffs contended that their pension plan's decision to change the normal retirement age from 57 to 65 improperly deprived them of the right to receive their vested benefits at age 57. Rejecting their argu- ments, the Seventh Circuit held that 26 U.S.C. § 411(a)(8), which is the analog in the Internal Revenue Code of 29 U.S.C. § 1002(24) and contains the identical definition of normal retirement age, “authorized any normal retirement age subject to the limitations of 65 years or 10 years of service.” 673 F.2d at 937. The Janowski court found that the trustees, acting as fiduciaries when they raised the normal retire- ment age, did not act improperly in “balanc[ing]} desired benefits against economic realities.” Jd. In other words, the court held that increasing the normal retirement age was acceptable when its bona fide purpose was to preserve the corpus of the pension fund. The Seventh Circuit rejected the plaintiffs’ argument that ERISA “mandate[d} that the normal retirement age remain the same in the [post-ERISA] Pian as it was in the [pre-ERISA] Plan.” Jd. at 936. The court concluded that “the trustees certainly could have established a normal retirement age of less than 65; the statutory language, however, in no way requires them to do so.” Jd. at 937. In explaining its decision, the court added: D-20 the required amendments were costly and Congress wisely committed {to the plan trustees] the task of balancing eligibility standards and benefit levels against the ability of the plans to pay. We agree that 65 was permissibly chosen as the normal re- tirement age. Id. The Supreme Court specifically denied certiorari on this issue. ___.:;U.S. —__., 103 S.Ct. 130 (1982). From the affidavit of Maher, the plan administrator, and from the report and recommendations submitted by the Martin E. Segal Com- pan), an actuarial consultant to the plan, Exh. 15 to Maher Aff., it appears that the pian adopted aye 65 as its normal retirement age to “promotje] the financial integrity” of the plan. Janowski, supra, 673 F.2d at 937. Plaintiff has offered only “conclusory allegations,” SEC \. Research Automation Corp. , supra, 585 F.2d at 33, that the trustees’ selection of 65 was a sham, was not in good faith, or was taken for reasons other than to maintain the financial integrity of the plan. Chambless has failed to present any evidence shedding light on how the amendment raising the normal retirement age, inasmuch as it was passed a year before Amendments 46 and 47, was enacted with the intention of operating in conjunction with those two amendments to punish participants who went to work on non-MM&P boats. “Concrete particulars” and not “conclusory allegations” are needed to oppose a motion for summary judgment. /d. at 33. Chambless’ challenge to the plan's adoption of 65 as the normal retirement age must be rejected, and summary judgment is granted the defendants on this issue.** E Reduction of Chambless’ Anticipated Benefits —-Chambless asserts that as a result of his work on a non-MM&P vessel, his pension benefits will be reduced from an estimated $920 a month to an estimated $470 a month and that the plan regulations therefore illegally cause his benefits to be forfeited. Again, Chambless has failed to specify exactly which provision of ERISA this reduction violates, but he is apparently arguing that this alleged forfeiture violates § 203(a) of ERISA, 29 U.S.C. § 1053(a). In addition, Chambless charges that in allowing his expected benefits to be reduced in such a manner, the plan trustees have violated their fiduciary duties. D-21 On May 21, 1976, Jack Murray, a pension plan supervisor, sent Chambless a letter stating that he had accumulated thirty-one and sne- quarter years of pension credits and that this “will entitle you to a monthly benefit of approximately $920.00." Exh. A to Complaint. On June 30, 1977, Murray again wrote Chambless, informing him that “on a flat rate basis you are entitled to $570.00 per month; and that “your percentage benefit. . .will be in the area of $900.00 to $920.00." Exh. B to Complaint. After Chambless’ application for early retirement benefits was rejected and after plaintiff took work on a non-MM&P vessel, Maher, in a letter dated January 28, 1980, notified Chambless’ lawyer: At the present time, based on employment through 1977, Capt. Chambless has 324 years of pension credit. Under the Rules in effect at the time he applied for a pension, the maximum credit a Member could receive was 30 years of pension credit, which would provide a monthly benefit of $470.00, or 60% of his “pay,” whichever is higher. Assuming he does not accrue additional pension credit under the M.M.&P. Pension Plan, he will be entitled, commencing as of January 1, 1987 [the date on which he would start receiving benefits after he turns 65], to a monthly payment of $470.00 We arrive at the $470.00 per month in the following manner. The Wage-Related Pension, as you know, is calculated by using “pay” in the ten years preceding the effective date of the Member's pension. This would mean the ten years ending December 31, 1986, or 1977 through 1986. On the assumption described above, i.e., that Capt. Chambless does not engage in further covered [, i.e., MM&P,] employment thorugh the date of January 1, 1987, there - would be no “pay” in the measuring ten-year period [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1137%3A2. Public record. Not legal advice.