# Appendix — Crosby v. Bowater Inc. Retirement Plan for Salaried Employees of Great Northern Paper Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1381%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2005 - **Citation:** 544 U.S. 976 ## Text A-i TABLE OF CONTENTS TO APPENDIX SPMRIEER COUR CIRGRINOD on ois cn cecesniseend canadien Opinion, granting Plaintiff's Motions for Class Certification and Summary Judgment EE ROSE WOD 6a Keds cananadhenatWendeecavenwens Final Judgment and Injunction (filed 11/26/02) ...... Opinion, awarding attorney fees and costs to Plaintiff and against Defendants (filed 5/20/03) .... Sixth Circuit (Opinion, Judgment and Order) ....... Opinion, vacating the Judgment entered by the District Court and ordering that the Complaint be dismissed for lack of subject matter jurisdiction ee TGF OED 6 sc cceceshentessacdradancedoawesans Judgment respecting the Opinion (filed 9/09/04) .... Order, denying Petition for Rehearing En Banc Ge BOS OUND 6 65 dh an dn ecdnnnseasausaensanseuee CEO NOUNS nove ccd ncacasnceessnsseananeacnues SP WDA. GOOOE PR GAS cok ccacacnieaccacescias 29 U.S.C. §1053(a) [ERISA §203(a)] ........4.....08. 29 U.S.C. §1103(a),(c) [ERISA §403(a),(c)] ........... 29 U.S.C. §1104(a) [ERISA §404(a)}] ..............05. A-29 WUSt Se EDIE ook ko chs Se 29 U.S.C. §$1132(a) [ERISA §502(a)] .. 2... sce cccsees Internal Revenue Code Statutes .................. DE ss EEE wadcig hb eee ant waks Khem moran WEE NE oe ois Oe Ce OR sien ernd es dineneee ke ; ; : pew ene eae pik Se | Ware rrr rr tor tre TT Ey eee re ey SrA GOP ose db wack swncsioekacaeuss 50 U.S.C. App. §925(a) (terminated) [§205 of Emergency Price Control Act of 1942]....... Be Tee ee 26 C.F.R. §1.411(d)-4, Q&A2(a)(4) .. 0. cece eee eee Legislative History (by date) .................045, S. Rep. No. 93-127 1974 U.S.C.C.A.N. 4838 (Apr. 18, 1973) .......ee0e0e H.R. Rep. No. 93-533 1974 U.S.C.C.A.N. 4639, 4643, 4655 (Oct. 2, 1973) .. H.R. Conf. Rep. 93-1280 1974 U.S.C.C.A.N. 5038, 5076 (Aug. 12, 1974) ........ A-82 A-82 . A-83 A-83 A-iii 120 Cong. Rec. 29,198 (Aug. 20 a Se Dee ne A-84 120 Cong. Rec. 29,928 (Aug. 20, BPE strapeky stan. A-84 sansa) cntip oes GE TE CR TE TET POOR aT en en A-85 G. Bogert, Trusts & Trustees (2d ed. 1982) .......... A-85 D. Dobbs, Law of Remedies (2d ed. Pr ree A-86 G. Palmer, Law of Restitution SUNG Seen che ncuis A-90 J. Pomeroy, Equity Jurisprudence (4"°ed. 1918) ...... A-92 A. Scott, Law of Trusts (3d ed. SUED kas kaN WA eek an A-92 Restatement of Restitution ME a aaricancrnceeeecs A-93 Restatement (Second) of Trusts SOEUTE Sikes conrawes A-95 MOU sacs te cenrucs Gee A-97 IRS Notice 96-8 1996-1 C.B. 359, 1996-6 ILR.B. 23 1996 WL 17901 (Jan. 18, 1996) ..................... A-97 Revenue Ruling 95-6 1995-4 I.R.B. 22 (Dec. 30, PE Adie vasa ee Sees A-111 Black’s Law Dictionary (6 ed. 1990) .............. A-118 Webster’s New Collegiate Dictionary (1979) ....... A-119 Pertinent Plan Provisions ................eeeeees Article 1 TROTAIUORS . 5. oc asec c cn davcccceseneecends Article IV Employer Contributions ............... Article VI Participants’ Personal Accounts ......... Article VIII Death Benefits ............ ccc eeeeeees Article XII Distribution Requirements ............. Article XVII Miscellaneous Provisions ............. Other Pertinent Materials ................. ye eeees Final Denial of Crosby’s Claim ............0.e000s Affidavit of Frank J. Crosby ............ eee eeeeees Transcript of Oral Argument in the Sixth Circuit .... Merits Excerpt from Crosby’s Appeal Brief ........ A-1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRANK J. CROSBY, individually and on behalf of all others similarly situated, Case No, 1:01-CV-683 Plaintiff, v. HON. RICHARD ALAN ENSLEN BOWATER INCORPORATED RETIREMENT PLAN FOR SALARIED EMPLOYEES OF GREAT NORTHERN PAPER, INC., and BOW ATER INCORPORATED, Defendants. OPINION / This matter is before the Court to considerate three Separate issues: (1) whether to certify this action as a class action pursuant to Federal Rule of Civil Procedure 23; (2) whether to grant or deny the Motion to Dismiss of Defendants (Bowater Incorporated and its Retirement Plan) and the Cross-Motion for Summary Judgment of Plaintiff Frank J. Crosby; and (3) whether to award equitable remedies in the event that Plaintiff succeeds as to his Cross-Motion for Summary Judgment. On review of the briefing and the papers filed in this matter, the Court dispenses with oral argument since it would unnecessarily protract the resolution of these issues. A-2 FACTS This is the rare case which for the most part surrounds an isolated legal question. The question is whether the Defendant Retirement Plan was permitted to reduce its payments to a retiree who elected to cash out his retirement benefits based on a mortality discount for years prior to his 65th birthday. There are no disputed factual issues which affect the resolution of this legal question. Before discussing this question, a few comments are in order about the class certification allegations. As is apparent from the Complaint and the briefing filed, this Complaint stems from a sale of a business which left some workers electing te receive their vested retirement benefits before normal rei*sement. (See Complaint at | 9, 63-65.) Plaintiff estimated the number within the class at 350 members. (Id.) This estimate was based on the total number of affected works as well as formal studies which indicate that workers who have a cash-out option in retirement benefits almost always elect the cash-out option. (Id.) Since providing the estimate, Plaintiff has discovered additional facts and _ located evidentiary materials pertinent to the likely number of affected workers. This Plan has been extant since 1992. (Defendants' Response Brief at 8.) Under the terms of the Plan, participants are vested after five years of service. (Plan §§ 10.1, 12.1(a)-(b) and 12.2(b).) Plan data from the most recent Form 5500 Annual Reports confirm that as of January 1, 2000, there were 89 terminated vested participants, 12 retiree participants or beneficiaries receiving annuity payments and 220 active participants. (Plaintiff's Reply Exhibit 35, at Schedule B.) Each of the 220 participants is fully vested. (Id.) The 2000 Plan Annual Report also assumes that terminated vested participants, other than annuity recipients, have elected lump sum benefits. This was assumed in the Notes to the Report, which state: "As a result of the sale of GNP, all participants not receiving annuity payments are assumed to take a lump sum distribution on January 1, 2001, as permitted by the Plan." A-3 (Plaintitt's Reply Exhibit 36, at 6.) The financial data contained in the Report likewise suggests this result in that the high amounts paid during the year are the likely consequence of payment of lump sum benefits rather than those payments to the very few participants or beneficiaries clecting annuity payments. (See Plaintiff's Reply at 12 and documents cited therein.) Similar conclusions are warranted as to the earlier Plan financial reports for 1996 and 1999. (See Plaintiff's Reply at 13 and 14 and documents cited therein.) Furthermore, it is rational to assume that during the nearly three years since the 2000 Report, additional Participants have retired and have elected lump sum benefits. Plaintiff has filed his own Affidavit pertinent to the number of class members. His A ffidavit states in pertinent part that at the time of the sale most plan participants, to his knowledge, continued to participate in the Plan as workers for the purchaser, Inexecon. (See Crosby Affidavit of September 30, 2002 at ¥ 9.) Notwithstanding, it is also apparent from Plaintiff's Affidavit that a significant minority of Plan participants have elected benefits due to retirement and the great majority of those have elected a lump sum payout. (Id. at 19 5-11.) Indeed, Crosby conducted a sample survey of 36 Plan participants.’ All 36 either had opted to receive lump sum benefits or intended to opt for those benefits in the future. (Id.) Defendants were provided an opportunity to contest these documents and conclusions. Despite the opportunity, Defendants have failed to file any evidentiary materials sufficient to justify a conclusion other than that the number of class members likely to participate in the class are sufficiently numerous to make joinder of all class members impracticable. ‘The Court in no way confuses Plaintiff's survey with a scientific or disinterested survey of Plan participants, given Plaintiff's participation in this suit. Nevertheless, those numbers are what they are and suggest conclusions consistent with those reached by Plaintiff. A-4 Plaintiff, and the putative class, are represented by the law firm of Hertz, Schram and Saretsky, P.C. This law firm is nationally recognized for its plaintiff representation in ERISA and employee benefit cases. It has appeared in more than 30 reported cases within the Sixth Circuit Court of Appeals and in an even larger number of cases nationally. It has also won class certification and substantive relief in a number of reported decisions, including the Sixth Circuit's decision in Rawlings v. Prudential-Bache, 9 F.3d 513 (6th Cir.1993) and the Eleventh Circuit's decision in Lyons v. Georgia-Pacific Corp. Salaried Employees Retirement Plan, 221 F.3d 1235 (11th Cir.2000). The law firm is located in Bloomfield Hills, Michigan. Thus, the law firm and the lead attorney, Bradley Schram, appear to be very experienced and capable advocates for the class. As to the merits of this action, Plaintiff has brought this action under sections 203(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act ("ERISA") (codified at 29 U.S.C. §§ 1053(a)(2) and 1132(a)(3)). Plaintiff sued Defendants based on his right to benefits which accrued when his employer sold its subsidiary, Great Northern Paper, which employed Plaintiff. Plaintiff was then eligible, and elected, a lump sum distribution of his retirement benefits under the Plan. These benefits were part of an accruing retirement account which had long ago vested. Plaintiff elected to receive his retirement benefit in a lump sum and, consistent with its regular practice, the Defendant Plan Administrator calculated Plaintiff's benefits by use of a "whipsaw calculation," i.e., reducing the benefit to its present value by use of a discount rate (to account for the effect of interest) and a mortality table (to account for the likelihood of Plaintiff's pre-retirement death). Plaintiff does not dispute the use of the discount rate, but does dispute the use of the mortality table as to his pre-65 years. The benefit as computed by Defendants resulted in a lump sum payout of $52,013.90. According to Plaintiff, without the mortality reduction, the amount of the lump sum payout would be computed at $57,262.98. eencieeniaeieneienesemeanitaitiaa aan A-5 Defendants' Plan is silent on this precise question. The Plan gives the Defendant Administrator deference to make plan interpretations and requires the employee to exhaust administrative remedies. Plaintiff has exhausted administrative remedies as demonstrated by the correspondence as to this dispute. (See Defendants’ Motion to Dismiss, Exhibits 2-5.) Plaintiff's legal claim is that the above computation of his benefits violates the anti-forfeiture rules of section 203(a)(2) of ERISA (29 U.S.C. § 1053(a)(2)) by red ucing an accrued benefit. Defendants' position is that the statute and regulations are silent on this point and the Plan Administrator permissibly interpreted the Plan in making this calculation. CLASS CERTIFICATION STANDARDS According to the United States Supreme Court, this Court must conduct a "rigorous analysis" into whether the prerequisites of Federal Rule of Civil Procedure 23 are met before certifying a class action. General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). The trial court has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981); In re American Med. Systems, Inc., 75 F.3d 1069, 1079 (6th Cir.1996). The "rigorous analysis" requirement means: that a class is not maintainable merely because the complaint parrots the legal requirements of Rule 23. American Med. Systems, 75 F.3d at 1079. Although a hearing prior to the class determination is not always required, "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Falcon, 457 U.S. at 160; see also Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974) (stating that in some cases it will be necessary to give the parties an opportunity to present evidence on the certification question). In this case, an evidentiary hearing is unnecessary because of the extensive briefing in connection with the dispositive motions and because the case centers around a purely legal decision about a calculation method which is applicable to all class members alike. A-6 Rule 23 places the burden of class certification on Plaintiff. American Medical Systems, 75 F.3d at 1079; Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir.1976). Under the language of the Rule, Plaintiff must prove four prerequisites under subsection (a) and one of the clauses under subsection (b) for the class to be certified. The Rule provides in pertinent part as follows: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (1) Class Actions Maintainable. An action may be main- tained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) ** *. or (2) the party opposing the class has acted or refused to act on grounds-generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or.... Fed. R. Civ. Proc. 23(a)-(b). CERTIFICATION ANALYSIS Under Rule 23, certification analysis first addresses the four preliminary requirements of Rule 23(a)--i.e., (1) numerosity; (2) commonality; (3) typicality; and (4) adequate representation. Senter, 532 F.2d at 522. Once these prerequisites are satisfied, then Plaintiff must satisfy one or more of the requirements of subsection (b) for certification. Id. A-7 (1) Numerosity To begin this analysis, the Court must determine whether the class is sufficiently numerous that joinder is impracticable. Numbers alone are not dispositive when the numbers are small, but will dictate impracticability when the numbers are large. H. Newberg and A. Conte, 1 Newberg on Class Actions, § 3.05 (3rd ed.1992). Although Rule 23 imposes no "numerical" limit, it has been held in this circuit that a class of 35 employees was sufficient to meet the numerosity requirement. See American Med. Systems, 75 F.3d at 1076 (citing Afro American Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir.1974)); see also Roman v. Korson, 152 F.R.D. 101, 105 (W.D.Mich.1993); Van Vels v. Premier Athletic Center of Plainfield, Inc., 182 F.R.D. 500, 507 (W.D.Mich.1998); Saur v. Snappy Apple Farms, Inc., 203 F.R.D. 281, 286 (W.D.Mich.2001). Here, the expected numbers are much larger. This class action relates to a class of retirees, and future retirees, who either were affected by, or stand to be affected in the future, by Defendants' calculation method for lump sum payments. The evidence cited above clearly demonstrates that the class size is somewhere between 40 and 350 (the total number of plan Participants) and is much more likely to consist of the majority of the plan participants since many, if not most, plan Participants would retire before age 65 and would elect the option of lump sum payment. (See GAO Report, Private Pensions, Implications of Conversions to Cash Balance Plans, No. HEHS-00-185, at 4 (Sept. 29, 2000) (Defendants' Reply Exhibit 33) (stating based on survey that majority of plan participants opt for a lump sum payment).) Therefore, the Court determines that the numerosity requirement is met. (2) Commonality Rule 23 requires “commonality "--meaning, questions of law and fact common to all class members. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998). Not all common questions suffice. Id. What is necessary for certification are A-8 common issues the resolution of which advance the litigation. Id. The purpose of this inquiry, according to the United States Supreme Court, is to ensure that a class action is an economical means of addressing the legal claims and that the legal claims of both representatives and class members will be fairly resolved through the process. Falcon, 457 U.S. at 157 n. 13. Once it is determined that there are common questions of law and fact, differences in the amounts of damages sustained by class members will not usually defeat certification. Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir.1988); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir.1984). ar This case is a perfect one for class certification because of truly common questions of law and fact. Each of the class members are participants in the same retirement plan who have been injured by a common practice of the Defendant Retirement Plan--that is, calculation of retirement benefits utilizing a mortality discount for years prior to the participant's 65th birthday. Whether this calculation is proper is purely a legal question under ERISA and the pertinent plan language. Furthermore, resolution of this question will essentially determine liability and equitable relief as to the claims of all class members. In circumstances like this, i.e., class actions brought on behalf of_retirees subject to a common practice of denying benefits, the federal courts have consistently found commonality. See, e.g., Forbush v. ].C. Penney Co., Inc., 994 F.2d 1101, 1103 (5th Cir.1993) (finding that certification was required under Rule 23 and that there was commonality as to class members who were each vested retirees of the J.C. Penney Company Pension Plan and who were injured by a common method for estimating social security benefits for the purpose of determining retiree benefits); Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.1998) (following Forbush and remanding for certification decision); Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 596 (E.D.Mich.i1996) (following Forbush). A-9 In fact, the instant case presents an even better case for certification than some of the cases cited. In this case, there is a single plan which applies to all class members and there isa strictly legal dispute as to a standard calculation method utilized by Defendants. As such, the Court determines that there are common questions of law the resolution of which will advance the litigation. Notwithstanding this commonality, Defendants assert several arguments that are directed toward both the commonality requirement and the typicality requirement of Rule 23. Defendants assert that "future lump sum recipients,” who are the bulk of the class and who, unlike Plaintiff Crosby, have not yet been shorted by the Plan, do not have standing to assert a future right to payment, especially since the Plan may be amended in the interim so as to make clear that benefits may be calculated in the manner sugges.ed by Defendants. This argument is thoroughly wrong. To start, once benefits are "accrued" under a Plan, then the anti-cutback rule codified at 29 U.S.C. § 1054(g) prevents plan modifications reducing the accrued benefits. As is explained later in the Court's summary judgment analysis, retiree benefits are "accrued" benefits and not "incident" benefits because they are designated and treated as such in the Plan language. (See Plan at Article VIL example 1.) Thus, the premise of this argument (that there could be a change in plan language) is simply mistaken. Furthermore, future retirees have a clear and significant legal interest in the determination and adjudication of their rights to payment. Under the Plan language, a retiree has a right to select between the lump sum and annuity option when retiring. To intelligently understand that choice, the Retiree must ascertain the method for the calculation of his lump sum benefit. This kind of information is also helpful, if not critical, to both current workers and retirees when making decisions as to whether to continue employment or retire, and as to whether to select lump sum or annuity payment. Therefore, future retirees as well as past retirees have common legal interests and both have legal standing to prosecute requests for equitable relief. A-10 Defendants, in their Response Brief and Sur-Reply, have also asserted a number of arguments which, according to them, undercut the commonality and typicality of class members. The first of these arguments is that although Plaintiff has administratively exhausted his claim for benefits, other class members have not, and this distinction should prevent certification of the class. This argument has already been expressly rejected by the Sixth Circuit in the context of very similar ERISA class actions. Specifically, the Fallick decision, noted above, rejected such an argument based on the availability of a futility exception to administrative exhaustion and the clear application of that exception to a standard method of medical benefit calculation. See Fallick, 162 F.3d at 419-20. In the instant case, the class representative Plaintiff has exhausted his administrative remedies. It is noteworthy that the Fallick decision also cited with approval the decision in Costantino v. TRW, Inc., 13 F.3d 969, 975 (6th Cir. 1994), which similarly applied a futility exception to the exhaustion requirement in an ERISA class action relating to a pension benefit methodology for calculation of payment. Such case law makes clear that class membership should not be limited to persons who have administratively exhausted claims in a case like this one--wherein administrative exhaustion would be pointless because the case involves the legality of a standard - calculation method. Defendants have also argued that class members have dissimilar interests because of potential statute of limitations defenses which they might urge against particular class members. This argument, like Defendants' other arguments, is a thin reed to hang hope upon in the context of the ERISA legislative backdrop. ERISA adopts the pertinent state statute of limitations, which is, in this case, Michigan's six year statute for breach of contract. See Mich. Comp. Laws § 600.5807. Second, the ERISA limitation period does not begin to run from a date of payment or calculation of benefits. The ERISA limitation period, under the law of this Circuit and the law of several other federal circuits, does not begin to run until a participant formally presents the claim for benefits to the ee A-11 pension administrator and has had his claim formally denied. Stevens v. Employer-Teamsters Joint Council, 979 F.2d 444, 451 (6th Cir.1992).? In this case, Plaintiff received his final denial letter on June 14, 2001. He filed suit on October 22, 2001. So it is clear that Plaintiff's claim is timely. Moreover, there is no evidence in this record that a single participant of the Plan, prior to Plaintiff, ever made a claim for benefits of this type (i.e., that Defendants were miscalculating the lump sum in the manner described by Plaintiff) prior to Plaintiff's claim for benefits. Indeed, common sense and analysis of the authorities cited herein compel this finding. This is the type of argument familiar to some accountants and attorneys specializing in pension administration, but otherwise lost on the general public, such that there is every reason to believe that this suit is Defendants' first formal denial on this issue. Furthermore, the authorities cited by Plaintiff as to its position, both factual and legal authorities, are documents and testimony which all : occurred with the six-year time frame of M ichigan's statute of limitations. In fine, in the context of this kind of case, these claims, and these claimants and class members, the statute of limitations is not an applicable defense and will not prevent certification of class claims. ; ‘As stated in Plaintiff's Sur-Sur-Reply Brief, the cases of Union Pacific Railroad Co. v. Beckham, 138 F.3d 325, 330 (8th ; Cir.1998) and Cotter v. Eastern Conference of Teamsters Retirement | Plan, 898 F.2d 424, 428-29 (4th Cir.1990), cited by Defendants, actually support Plaintiff's position, since those cases confirm that an ERISA claim does not accrue until the claim has been formally denied. Other limitation arguments made by Defendants, such that case law from Title VII and ADEA | contexts should be applied in this context and that past retirees | should have exercised "due diligence" regarding the calculation of their benefits, are not persuasive, for the reasons stated by Plaintiff. (See Plaintiff's Sur-Sur Reply Brief at 4-6.) A-12 Defendants also argue that commonality and typicality are defeated because a class adjudication might "drain" the assets of the Plan and deprive future recipients of benefits, especially those entitled to annuity payments. Defendants' comments about annuity recipients are not apposite because this class is defined to include only those selecting lump sum benefits. The interests of annuity recipients are not common, but there is no intent to represent those interests. In terms of the suggestion that class certification might drain the Plan, presumably creating some adverse consequences for later lump sum recipients, the present record simply does not support such a result. First of all, there has been no demonstration that if lump benefits are recalculated for past and future recipients that the funds cf the Plan will be inadequate to fund the recalculated payments. Second, assuming that the funds of the Plan were inadequate, ERISA, 29 U.S.C. § 1082, requires that a plan sponsor, in this case Defendant Bowater, fund unfunded promised benefits as a condition for the termination of any plan unless the sponsor is insolvent. Since there is also no reason to believe that Defendant Bowater is insolvent, even if there were some shortage of funds, the law would expect these to be paid by Defendant Bowater for the benefit of all class members. Accordingly, the Court rejects Defendants' arguments. (3) Typicality Rule 23 requires that the claims asserted by class representatives be typical of class members. American Med. Systems, 75 F.3d at 1082. As the Court of Appeals said in the American Medical Systems case: "Typicality determines whether a sufficient relationship 2xists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct..." zeae A-13 ... A necessary consequence of the typicality requirement is that the representative's interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members. Id. (citation omitted). The typicality requirement, so explained, tends to merge with the commonality requirement. Falcon, 457 U.S. at 158 n. 13. Nevertheless, it is a separate inquiry and in Particular focuses attention on differences between class representative claims and class claims which would defeat the representative nature of the class action. Fuller, 168 F.R.D. at 598. In this case, the class representative's claims are typical of t: eclaims of class members. Namely, each concern the same plan, the same plan language, the same calculation method, and the same questions of legality under ERISA and the pertinent Treasury Regulations.> Therefore, the Court also determines that the typicality requirement is met. (4) Adequate Representation Rule 23(a) requires that the class members and their counsel be prepared to provide fair and adequate representation to the class. In Senter, the Sixth Circuit articulated two criteria for determining adequacy of representation: "1) the representative must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel." Senter, 532 F.2d at 525; see also American Med. Systems, 75 F.3d at 1083; Nat'l Ass'n of Reg. Med. Programs v. Mathews, 551 F.2d 340, 345 (D.C.Cir.1976); compare Oxendine v. Williams, 509 F.2d 1405 (4th *‘Defendants' other typicality arguments were addressed above. A-14 Cir.1975) (per curiam) (declining to approve prisoner class action because of pro se representation). Plaintiff's Complaint (and the documents filed in connection with the dismissal and summary judgment motions) identify him as a plan participant who has a vested interest in retirement benefits and who has been adversely affected by the Defendants' practice for calculating a cash out of retirement benefits based in part on a mortality reduction for years prior to the participant's 65th birthday. Thus, it appears that the Plaintiff's interests are identical to those of unnamed class members. As for the class counsel, the Plaintiff law firm is a nationally recognized firm with expertise in prosecuting ERISA class actions. This is demonstrated by their history of advocacy in published opinions in this Circuit as well as other Circuits. In fact, the Lyons decision, which Plaintiff relies upon in his argument on the merits, was an Eleventh Circuit case in which Plaintiff's counsel was retained as class counsel and which resulted in the Eleventh Circuit's approval of relief for the class. Both Plaintiff and his counsel also appear motivated to zealously represent the class. Thus, the Court approves of Plaintiff and his counsel as adequately representing the class. (b)(2} Certification Under Rule 23(b)(2), a class action may be certified for injunctive or declaratory relief if the party opposing the relief requested has acted or refused to act on grounds generally applicable to the class, making the requests for such relief appropriate. The Sixth Circuit's language in Fallick implicitly endorsed Rule 23(b)(2) certification in Forbush-type ERISA cases. Indeed, in addition to the cases cited above, there are many other federal decisions approving certification under Rule 23(b)(2) as to such claims. See, e.g., Caranci v. Blue Cross & Blue Shield of Rhode Island, 194 F.R.D. 27, 39 (D.R.1.2600) (citing Corsini v. United Healthcare Corp., 51 F Supp.2d 103 (D.R.I. 1999) and Corsini v. United Healthcare Corp., 965 F.Supp. 265 (D.R.I. 1997)); Groover v. Michelin North America, Inc., 187 F.R.D. 662, A-15 667 (M.D.Ala. 1999); Bower v. Bunker Hill Co., 114 F.R.D. 587 (E.D.Wash.1986); Morgan v. Laborers Pension Trust Fund for Northern California, 81 F.R.D. 669, 681 (N.D.Cal.1979). In this instant cause, it is clear from the Complaint and the request for class relief as to the summary judgment motion that Plaintiff is seeking primarily equitable relief in this action--i.e., an injunction requiring recalculation of benefits in accordance with ERISA and a constructive trust to secure payment of additional benefits to class members. Under pertinent case law discussed herein, such remedies are not properly regarded as "monetary relief." Therefore, and in light of the pertinent case law and facts of this case, the Court determines that the requirements of Rule 23(b)(2) are met and that certification is proper under Rule 23(b)(2).‘ ‘One thing unusual about the procedural posture of this case is that dispositive motions were filed early (before this Court could schedule any hearing or briefing on class certification) and that the request for certification was then made (in addition to the Complaint) in Plaintiff's Cross-Motion for Summary Judgment, before the filing of the certification motion. While certification in this posture is not the most desired practice under Rule 23, for the reasons explained above, the Court determines that this is the proper instance to address and decide the certification issues as well as the dispositive motions. See, e.g., Larionoff v. United States, 533 F.2d 1167, 1183 (D.C.Cir.1976) (approving simultaneous entry of judgment and class certification); Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir.1975) (stating that "in some cases the final certification need not be made until the moment the merits are decided"); see also Gurule v. Wilson, 635 F.2d 782, 788-90 (10th Cir.1980) (allowing post-judgment class certification under Rule 23(b)(2)); Marshall v. Kirkland, 602 F.2d 1282, 1301 (8th Cir.1979)(same); Johnson v. Mathews, 539 F.2d 1111, 1125 n. 23 (8th Cir.1976) (same); Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir.1977) (affirming post-judgment certification where there was a lack of A-16 NOTICE AND CLASS DEFINITIONS Since this Court has c “tified under Rule 23(b)(2), but not under Rule 23(b)(3), Rule 23 does not direct that notice and opt-out procedures be used. See Rule 23(c)(2). Hence, those procedures are not appropriate in this case. As for the class definition, the Plaintiff has proposed the following class definition: All participants or beneficiaries of participants who received alump sum distribution from the Plan (either directly or indirectly via transfer to an individual retirement account or other eligible retirement plan), or who are entitled to receive a lump sum distribution now or in the future (either direct or indirectly via transfer to an individual retirement account or other eligible retirement plan). (See Complaint at § 63; Brief in Support of Class Certification, at 3.) Upon review of the particular class definition offered here, the Court finds that it properly and_ specifically designates class members in an objective fashion. As such, the class definition is approved. STANDARDS OF REVIEW _ON THE MERITS, GENERALLY Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Complaint for failure to state a claim for which relief may be granted. However, because Defendants' Motion to Dismiss raises matters outside the pleadings, the pertinent standard for review of it (as well as Plaintiff's summary judgment motion) is the summary judgment standard of Rule 56. See Fed. R. Civ. Proc. 12(b). prejudic»). A-17 Review of a motion for summary judgment requires the Court to determine if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). It is the function of the Court to decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). STANDARD FOR REVIEW FOR ERISA LEGAL REVIEW FOR ERISA LEGAL INTERPRETATIONS Although the parties do not quibble about the general standards of review under the Federal Rules, they do contest whether the Plan Administrator's legal interpretation to use the discount table is entitled to deference or whether it should be reviewed de novo. This dispute arises in large part because of the language employed in the famous case of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Therein, the United States Supreme Court held that a de novo standard of review applies to decisions by plan administrators unless the plan gives the administeator discretionary authority to determine eligibility for benefits or to construe the terms of the plan, in which case an arbitrary and capricious standard applies. Id. at 115, 109 S.Ct. 948. However, the Firestone Court limited its holding to actions under section 502(a)(1)(B) of ERISA, i.e., those "challenging denials of benefits based on plan interpretations." Id. at 108. Plaintiff argues that because his cause of action was brought under section 502(a)(3), not section 502(a)(1)(B), Firestone does not apply and de novo review is appropriate. Defendants argue, to the contrary, that because this case involves a plan interpretation, regardless of the subsection label attached by Plaintiff, it falls within the deferential standard of Firestone. A-18 On review of this argument, the Court believes that the Defendants have the better argument. The Firestone holding, while limited on its face, clearly intended itself to apply to plan interpretations. In this case, the Plan grants the Administrator deference and that deference was clearly used in reaching the benefit determination challenged here. Thus, the logic of Firestone favors a "clearly erroneous" standard of review. In determining this, the Court is also mindful of both published and unpublished cases of the Sixth Circuit which have applied the Firestone standard of review to plan interpretation questions made under sections 502(a)(2) and 502(a)(3). See Hunter v. Caliber System,.Inc., 220 F.3d 702, 711 (6th Cir.2000) (finding as to § 1132(a)(1)(B) claim that "this case is about benefits, and Firestone requires application of the arbitrary and capricious standard if required by the language of the plan"); Bd. of Admin. v. Huntsman, 187 F.3d 634, 1999 WL 591458, at *3 (6th Cir. July 27, 1999) (holding that claim brought under section 1132(a)(3) was subject to clearly erroneous review under Firestone); see also Paramore v. Delta Air Lines, 129 F.3d 1446, 1450 (11th Cir.1997). Notwithstanding, the Court also determines that a decision on the standard of review is unnecessary to resolve the summary judgment issues because, regardless of the standard of review, clearly erroneous or de novo, the Court would adopt the plan interpretation stated below. This is because the legal interpretation stated below is based purely on a legal interpretation of the Plan language and the Court finds the terms used in the Plan to be unambiguous and to require the interpretation stated below. See Williams v. Int'l Paper Co., 227 F.3d 706, 711 (6th Cir.2000). SUMMARY JUDGMENT ANALYSIS To put the question succinctly, the question presented here is whether a worker who elected to receive lump sum early retirement benefits is entitled to receive the value of his retirement benefit without a mortality discount for the years until his 65th birthday. To put this question into the context of A-19 the pertinent plan language and regulations, does the above described worker have an accrued interest in the amount of the retirement benefits without reduction for a mortality discount? Herein, it is acknowledged that section 203(a)(2)(A) of ERISA provides that "an employee [such as Plaintiff] who has completed at least 5 years of service has a nonforfeitable right to 100 percent of the employee's accrued benefit derived from employer contributions." 29 U.S.C. § 1053(a)(2)(A). It is also not disputed that when an employee elects to take a lump sum distribution that certain deductions are proper under Internal Revenue Service regulations. The Internal Revenue Code and Regulations permit use of "the applicable mortality table" and the "applicable interest rate" in computing present value. See 26 U.S.C. § 417(e)(3); Treas. Reg. § 1.417(e)- 1(d). Thus, another way to put the question is whether the mortality table was "applicable" when the employee elects to receive lump sum benefits before age 65 in the context of this plan language. To understand this issue, it is important to contrast two different kinds of retirement plans. Under one kind of plan, the participant, his estate and his survivors lose any interest in the employee contributions for retirement upon the employee's death. Under this kind of plan, which is permitted under the Treasury Regulations if there is explicit plan language so providing, the plan administrator must make an assumption about mortality before retirement age in order to determine how to fund the plan. That is, one cannot determine the amount of funding without knowing the mortality risk. Under a second type of plan, a retiree has a vested interest in his retirement benefits which cannot be defeated by his death such that his estate or other beneficiary is entitled to collect accrued benefits upon his death. Under the second type of plan, a mortality discount is not proper because the assumption of the system is that the money will be made available to each participant regardless of pre-retirement death. In other words, in the later kind of system, the death of a plan participant does not affect plan funding since the money is necessarily paid to a beneficiary in the event of a ie A-20 participant's death. In the instant case, the pertinent plan language says: "If a participant dies prior to his Normal Retirement Date, then no benefit of any kind shall be payable from this Plan and Trust except for the death benefit (if any) provided for in this Death Benefit Section. The amount of the Participant's death benefit shall be the then vested present value of the Participant's Accrued Benefit accrued to date of death ...." (Plan § 8.1.) This kind of system is much closer to the second kind of plan envisioned above than the first. The operation of the system does not need to discount the possibility of the participant's death because in such an event the money is paid to the participant's beneficiary. While an employer might be able to : reduce or eliminate a true and separate "incidental death benefit" under the ERISA regulations, 26 C.F.R. § 1.411(a)-7, the employee's successor's right to his or her vested benefits could not be reduced in this case precisely because the plan language intended the creation of an accrued right. Another way to say this is that the plan, by giving payment to survivors in the event of death, only provided a mechanism for easy payment; it did not intend to deprive the survivors of the right to receive payment nor leave open the possibility of depriving them in the future.” Were the latter intended, the drafters of the Plan, who had control of the plan language, could have much more clearly and explicitly stated the result. The fact that they did not do so tends to show an intent to create an accrued benefit instead of an ancillary benefit. Furthermore, this conclusion is buttressed by the several arguments made by Plaintiff from the case law, the Treasury Regulations and the knowledgeable authorities cited by Plaintiff. Internal Revenue Service Notice 96-8 contains a ‘The end of Defendants' arguments are apparent: namely, if a plan makes its distributions and there is a resulting trust, the resulting trust is the presumptive property of the settlor. See Borst v. Chevron Corp., 36 F.3d 1308, 1315 (5th Cir.1994). rere A-21 methodology for calculating the cash benefit amounts of participants under cash value plans. Under the recommended methodology, no reduction is made for mortality risks prior to retirement age. See I.R.S. Notice 96-8 at A-18 to A-19. This case is not the unusual case which would require departure from that methodology. Indeed, leading actuarial experts who have testified before Congress have testified that when a valuation of a cash balance plan of this kind is made, no mortality adjustment until age 65 is to be made. (Testimony of Larry D. Stahly and John F. Woyke, Plaintiff's Exhibits 11 and 12.) Furthermore, under 26 U.S.C. § 1.411(a)-7, "accrued benefits" include not only retirement benefits themselves, but also death benefits which are "directly related" to the value of the retirement benefits. In other words, those death benefits are not "incidental" to the plan's "accrued benefits." The interpretations of the Eleventh Circuit in Lyons ov. Georgia-Pacific Corp., 221 F.2d 1235 (11th Cir.2000) and the Second Circuit in Esden v. Bank of Boston, 229 F.3d 154 (2nd Cir. 2000) likewise assumed the correctness of Plaintiff's position since those courts utilized Plaintiff's method of calculation and not Defendants' method. Finally, the Southern District of Illinois, Berger v. Xerox Retirement Income Guaranty Plan, 231 F.Supp. 2d 804 (S.D.III. 2002), recently decided a pension benefit class action case which was prosecuted by Plaintiff's attorneys on the same groundsas this suit. The Berger decision upheld Plaintiff's method of calculation and required restitution to all affected class members. For these reasons, and those other reasons argued in Plaintiff's Cross-Motion, summary judgment shall be granted in favor of Plaintiff. For the same reasons, Defendants' Motion to Dismiss shall be denied. REMEDIES Plaintiff's proposed remedies include an injunction to forbid the future use of the offending calculation as to class members, an injunction requiring re-computation of class member benefits as to benefits already paid and payment of A-22 the difference between the amount previously paid and the recalculated amount plus pre-judgment interest, and a constructive trust over plan assets (or those of Bowater if plan assets are insufficient) sufficient to fund the restitution payments. Plaintiff argues that this relief is consistent with the Supreme Court's decision in Mertens v. Hewitt Assocs., 508 U.S. 248, 253 (1993) that relief under ERISA provision 502(a)(3) be for the purpose of redressing a violation or enforcing a provision of ERISA, that it is consistent with the Supreme Court's decisions in Harris Trust & Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 250-51 (2000) and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), which allowed imposition of a constructive trust over plan assets to return property belonging to plan participants. Plaintiff also requests that the restitution payments be made with interest calculated between the date the lump sum payment was initially due and the date restitution is paid at the higher of either the federal post-judgment rate for that period or the rate of return for the plan for the period. See Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2001) (allowing such rate of interest as to a miscalculated lump sum ERISA payment to avoid unjust enrichment). Defendants oppose this relief on several grounds. Defendants argue that under ERISA, Plaintiff may seek adequate legal relief (an award of damages under section 502(a)(1) of ERISA) and, as such, cannot obtain equitable relief pursuant to section 502(a)(3) of ERISA. See also Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 615 (6th Cir.1998). Defendants also disagree that relief under section 502(a)(1) is inadequate because the section allows a plan participant to sue for benefits due under an ERISA plan. Defendants further argue that the requested relief is not "equitable" in the sense that Plaintiff has mis-characterized a claim for monetary relief as an equitable remedy. Defendants' concerns, though legitimate, do not defeat the remedies sought in this case. In Great-West, 534 U.S. at 204, n. 2, the United States Supreme Court recognized that in the context of ERISA cases, and particularly under section 502(a), a el A-23 the district courts may enter appropriate equitable relief including equitable restitution and a constructive trust requiring the return of monies wrongfully retained. In Harris Trust, 530 U.S. at 250-53, the Supreme Court commented on a statement in Great-West that orders to pay money are "almost invariable" monetary relief. The Supreme Court reviewed that “comment” in Harris Trust when it stated that under Section 502(a)(3) an injunction t require return of monies wrongfully transferred is appropriate equitable relief. Id. Plaintiff's position is also supported by the Supreme Court's decision in Mertens v. Hewitt Assocs., 508 US. 248 (1993). Plaintiff's position is also strongly supported by the recent unpublished decision in Berger, which treated equitable restitution of monies withheld because of a mortality discount as a proper equitable remedy under ERISA. Not only do case authorities support Plaintiff's position, but Plaintiff's position is commended by the pure dint of logic, the nature of the ERISA claim and the nature of the remedial processes. Plaintiff is not seeking here a monetary award of a sum certain. Such issues as to whether his years of service or earnings have been properly credited are not before the Court. Rather, Plaintiff is seeking the more limited, but more effective, remedy of an order requiring recalculation consistent with ERISA non-forfeiture regulations (and future correct calculation). This remedy will make Plaintiff whole, as well as other class members, without resort to time-consuming legal remedies, which would require separate and prolonged jury considerations of the amounts due each claimant--which are mostly likely not disputed anyway and which are subject to certain mathematical calculations to be performed by the Plan consistent with the Court's instructions. Additionally, in cases like this, the Sixth Circuit has directed that equitable relief include an award of pre-judgment interest (i.e., interest on unpaid benefits between the date of benefit payment and the date of judgment) at the greater rate of either federal post-judgment rate (under 28 U.S.C. § 1961) or the rate of return earned by the Plan on the unpaid benefits of affected workers. Rybarczyk v. TRW, Inc., A-24 235 F.3d 975, 985 (6th Cir.2000). This is done to make class members whose claims were previously paid whole and to deprive Defendants of the benefit of the wrongful conduct. Id. Although Defendants concur that the district court has authority to order pre-judgment interest in an ERISA benefit case in which benefits were wrongly withheld, they also imply that the Court should not use its discretion in this case. This argument is rejected because this Court, like the Sixth Circuit panel in Rybarczyk, believes that pre-judgment interest is necessary to fully compensate past-retirees and to avoid the Plan from taking untoward advantage of the use of those retirees' funds between the time of their retirement and the Judgment in this suit. As to the calculation of pre-judgment benefits, Defendants have not commented on pre-judgment interest as to class members, but have commented that an award of pre-judgment interest to Crosby should be limited to the federal funds rate at the time of the entry of judgment because a higher rate would give him a windfall. (See Defendants' Sur-Reply Brief at 6-7.) Plaintiff then contends that applying the federal post-judgment rate to a pre-judgment award would be unfair to class members because the federal post-judgment/current 52- week Treasury bill rate is historically low and would under-compensate past retirees for the losses during periods of their retirement at which interest rates were much higher. Plaintiff's last argument ignores two facts. First, the pre-judgment rate utilized in Rybarczyk was the higher rate of either the current post-judgment rate or the Plan's rate of return for the affected period. Second, the Court will order that this calculation be done individually as to i affected retirees for the time periods pertinent to their own individual retirements. In other words, a retiree who has lost the use of a portion of his or her lump retirement because of the faulty calculation is entitled to receive pre-judgment interest for the affected time period (the time between the payment of the incorrect benefit amount and the date of judgment) at the greater of the post-judgment interest rate at the time of judgment or the Plan's rate of return for the —— — A-25 particular time period pertinent to the retired worker. Thou gh this calculation is somewhat administratively complex, it is clearly workable given the availability of mathematical software and the ready financial data needed to make the calculations. Thus, the Court will require that these calculations be made individually as to all affected class members, including Plaintiff Crosby. The Court will also require Defendants to share the financial data supporting its calculations with Plaintiff, so that Plaintiff can verify the accuracy of the calculations.® With this said, though, Plaintiff has not made a sufficient case for the receipt of any equitable relief other than an injunction requiring recomputation and proper payment of benefits with pre-judgment interest as to benefits already paid. Such monies held by the Plan are already held in trust for Plan participants. While the monies held by Bowater, Inc. are not held in trust for plan participants, there is no sufficient basis to conclude, on the present record, that existing plan funds are inadequate to fund payments without additional contributions from the plan sponsor. Thus, while the Court accepts Plaintiff's premise that the plan sponsor is required legally to adequately fund a plan and should at times deposit additional funds in a plan to guarantee sufficient payment, there is simply an inadequate evidentiary record at this point in time to warrant the imposition of a constructive trust as to Defendant Bowater, Inc.'s assets. While so holding, Defendant Bowater, Inc. should be advised that the sword of justice is now unsheathed. If, in the future, it is apparent that the Plan is short of funds to pay the required benefits, this Court is prepared to entertain and grant a post-judgment motion requiring additional ‘Should Plaintiff have significant questions about the calculations upon review of the data, the Plaintiff would be free to request post-judgment discovery on this issue, or other appropriate remedies. Of course, post-judgment interest will also be required in accordance with 28 U.S.C. § 1961. A-26 contributions by Defendant Bowater, Inc. for the purpose of adequately funding the Plan. CONCLUSION For the reasons given, a Final Judgment and Injunction shall enter granting Plaintiff's Motion for Class Certification, granting Plaintiff's Cross-Motion for Summary Judgment, denying Defendants' Motion to Dismiss, and granting in part and denying in part Plaintiff's requested equitable remedies. As a result, Defendants will be enjoined to utilize the correct methodology in claim calculation in the future as well as to recalculate lump sum claims paid in the past and to repay underpaid benefits with pre-judgment interest as individually calculated for past retirees whose lump sum benefits were incorrectly calculated. /s/ Richard Alan Enslen DATED in Kalamazoo, MI: RICHARD ALAN ENSLEN November 26, 2002 UNITED STATES DISTRICT JUDGE TRUE COPY SIGNED ORIGINAL FILED ELECTRONICALLY Ronald D. Weston, Sr.., Clerk A-27 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRANK J. CROSBY, individually and on behalf of all others similarly. situated, Case No. 1:01-CV-683 Plaintiff, v. HON. ..ICHARD ALAN ENSLEN BOWATER INCORPORATED RETIREMENT PLAN FOR SALARIED EMPLOYEES OF GREAT NORTHERN PAPER, INC., and BOWATER INCORPORATED, Defendants. FINAL JUDGMENT / AND INJUNCTION In accordance with the Opinion of this date; IT IS HEREBY ORDERED that Plaintiff Frank J. Crosby’s Motion for Class Certification (Dkt. No. 34) is GRANTED and the Court certifies the following class: All participants or beneficiaries of participants who received a lump sum distribution from the Plan (either directly or indirectly via transfer to an individual retirement account or other eligible retirement plan), or who are entitled to receive a lump sum distribution now or in the future (either direct or indirectly via transfer to an individual retirement account or other eligible retirement plan). IT IS FURTHER ORDERED that Defendant Bowater Incorporated Retirement Plan for Salaried Em ployees of Great Northern Paper, Inc. and Defendant Bowater Incorporated’s A-28 Motion to Dismiss (Dkt. No. 6) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Cross- Motion for Summary Judgment (Dkt. No. 17) is GRANTED and Judgment is entered in favor of Plaintiff and the Plaintiff Class, and against Defendants. IT iS FURTHER ORDERED that Defendants Bowater Incorporated Retirement Plan for Salaried Employees of Great Northern Paper, Inc. and Bowater Incorporated, and their agents, employees and officers, are hereby enjoined to recalculate the lump sum benefits of class members who have previously received lump sum benefits, in accordance with the Court's Opinion, and to immediately refund under-payments, plus pre-judgment and post-judgment interest, as more particularly described in the Court’s Opinion. IT IS FURTHER ORDERED that Detendants shall provide financial data and records justifying their pre- judgment interest calculations to Plaintiff within 14 days of the payment of any under-payment. IT IS FURTHER ORDERED that Defendants Bowater Incorporated Retirement Plan for Salaried Employees of Great Northern Paper, Inc. and Bowater Incorporated, and their agents, employees and officers, are hereby enjoined to calculate lump sum payments for class members who have not yet received any lump sum benefits in accordance with the Court’s Opinion. /s/ Richard Alan Enslen DATED in Kalamazoo, MI: RICHARD ALAN ENSLEN November 26, 2002 UNITED STATES DISTRICT JUDGE TRUE COPY SIGNED ORIGINAL FILED ELECTRONICALLY Ronald D. Weston, Sr.., Clerk A-29 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRANK J. CROSBY, individually and on behalf of all others similarly situated, Case No. 1:01-CV-683 Plaintiff, HON.RICHARD ALAN ENSLEN BOW ATER INCORPORATED RETIREMENT PLAN FOR SALARIED EMPLOYEES OF GREAT NORTHERN PAPER, INC., AND BOWATER INCORPORATED, Defendants. OPINION / This matter is before the Court on Plaintiff Frank J. Crosby's Motion for Costs and Attorney Fees. Defendants Bowater IncorporatedRetirement Plan for Salaried Em ployees of Great Northern Pager, Inc. and Bowater Incorporated have opposed the Motio1. The Motion has been fully and extensively briefed ani the Court finds that further briefing or argument is unnecesary to resolve the Motion. For the reasons which follow,the Motion will be granted in part and denied in part. BACKGROUND This action wis brought pursuant to the Employee Retirement Income Se:urity Act of 1974, 29 U.S.C. § 1001 et seq. A-30 ("ERISA"). On November 26, 2002, after very extensive legal briefing by the parties, this Court granted class certification, granted summary judgment in favor of Plaintiff, and awarded the Plaintiff class most of the equitable relief requested by Plaintiff's attorneys. On December 10, 2002, Plaintiff filed an Unopposed Motion for Enlargement of Time to File Motions for Costs and Attorney Fees. The Motion for Enlargement was later granted and Plaintiff then submitted its timely Motion for Costs and Attorney Fees for filing on January 7, 2003 consistent with the enlargement granted.’ Plaintiff's Motion for Costs and Attorney Fees seeks $270,640.00 of attorney fees through January 6, 2003, costs in the amount of $4,973.12 through January 6, 2003, and an unspecified amount of attorney fees and costs incurred after January 6, 2003. The attorney fees sought are based on the following lodestar calculations: $3,465.00 for Bradley J.Schram (7.70 hours times $450/ hour); $29,707.50 for Robert P. Geller (69.90 hours times $425/hour); $5,925.00 for Bradford Yaker (15.80 hours times $375/hour); and $231,542.50 for Eva Cantarella (661.55 hours times $350/ hour). Plaintiff has documented his costs and attorney services through thorough attorney billing records (Plaintiff's Ex. 56) and affidavits for each of the attorneys (Plaintiff's Exs. 52-55.) The affidavits also detail the legal experience of each of the billing attorneys. Attorney Bradley Schram is a graduate of Georgetown Law School and a former Assistant Prosecuting Attorney for Wayne County. (Plaintiff's Ex. 52.) He founded the law firm of Hertz and Schram (now Hertz, Schram & Saretsky, P.C.) in 1979. (Id.) His legal experience includes lecturing at both ‘OnJanuary ' 2003, the Motion for Costs and Attorney Fees was submitte for filing together with an Unopposed Motion to File Excess Pages--in order to comply with Local Civil Rule 7. The lengthy brief was approved by Order of January 13, 2003 and the Motion for Costs and Attorney Fees was then entered on the docket on January 13, 2003. eS MT Orme A-31 University of Detroit School of Law and Wayne State University Law School on professional responsibility in litigation. (Id.) It also includes work on some eight federal ERISA class actions and numerous other security class actions. (Id.) His legal work in this case, according to the billing records, consists mostly of conferences with Eva Cantarella and Robert Geller concerning case strategy, and revisions of key 7ocuments, such as the Complaint. (See Plaintiff's Ex. 56.) Robert Geller is a graduate of the Boston University School of Law and a former attorney for the United States Agency for International Development (where he worked in Mogadishu, Somalia negotiating “government contracts). (Plaintiff's Ex. 53.) He returned to private practice in 1986. (Id.) He has at least eight years of experience in litigating ERISA class actions and has litigated or supervised eight federal ERISA class actions filed by his firm. (Id.) He also has significant experience in many other securities class actions and non-ERISA class actions filed throughout the country and is a member in gooc’ standing of the bar of the United States Supreme Court. (Id.) It appears from the firm billing records that his work in this case has consisted mostly of consulting with firm members about strategic litigation decisions and reviewing key documents, such as the Complaint. (Id.) Bradford Yaker is a 1988 graduate of Wayne State University Law School and a partner of Hertz, Schram & Saretsky, P.C. (Plaintiff's Ex. 54.) Prior to joining the firm, he was a partner of the Chicago law firm of Keck, Mahin and Cate. (Id.) He has seven years experience litigating ERISA class actions and has prosecuted eight federal ERISA class actions in that time. (Id.) He also has extensive experience prosecuting other class actions involving securities, accounting malpractice, and consumer protection issues. (Id.) According to his Affidavit and the billing records, his involvement in this case has consisted of researching class certification issues and preparing pleadings in support of class certification. (Plaintiff's Ex. 54 & 56.) Eva Cantarella is a 1994 graduate of Wayne State University Law School and a former member of the Wayne A-32 State Law Review. (Plaintiff's Ex. 55.) Prior to law school, she owned and operated an appraisal services company which performed income property appraisals for financial institutions. (Id.) In 1994 and 1995, she worked for the firm of Pepper Hamilton & Sheetz in the practice of litigation. (Id.) In 1995, she began work as a litigation associate for Hertz, Schram & Saretsky, P.C. and, in that capacity, has worked on seven federal ERISA class actions. (Id.) She is a member in good standing of the bars of the Sixth Circuit Court of Appeals and the United States Supreme Court, and is a frequent lecturer on ERISA and employee benefits law. (Id.) The law firm billing records detail that she has done the lion's share of the litigation work in this matter, includimg conducting client contacts, reviewing evidence, researching legal issues, drafting legal documents including the Complaint, numerous motions, briefs, and proposed orders, and conferriing with co-counsel regarding strategic litigation decisions. (Plaintiff's Ex. 56.) ‘Costs sought by Plaintiff includes court fees, charges for Westlaw and other electronic searches, delivery charges, mileage, parking fees and other miscellaneous small disbursements as detailed on the final page of the law firm billing records. (Plaintiff's Ex. 56.) These costs total $4,973.12. (Id.) The greatest percentage of these costs are for copying ($3,074.80). (Id.) Defendants have opposed the award of any attorney fees under ERISA given their analysis of tthe factors pertinent to such an award. They have also opposed the attorney fee rates charged by each of Plaintiff's attorneys as excessive. They have also opposed much of the attorney services billed by *The need for such copying is obvious from the docket, given the lengthy briefings and other papers submitted in this case and presumably copied to many persons involved in the case. ee A-33 Plaintiff's attorneys as unnecessary and/or excessive’ and in one case, a dual billing for the same 1.25 hours on December 21, 2002, as an outright mistake. They have also opposed the costs as excessive and maintain that some of the items of disbursements (and particularly legal research charges) should not be allowed since they are considered as part of attorney overhead and not a recoverable cost. Plaintiff contests each of the arguments made by Defendants (with the exception of the double billing of 1.25 hours on December 21, 2002, which is conceded to be a billing mistake). The parties' briefing also focuses attention on past statements made by the attorneys. During a motion hea ring on March 12, 2002, Magistrate Judge Ellen S. Carmody asked, "If plaintiff were to prevail, | assume he would be entitled to attorneys fees under ERISA?" Defense counsel Thomas Piskorski responded: "Yes. There is a fee-shifting provision in ERISA, your honor, that is correct." Plaintiff regards this an admission that attorney fees should be awarded if Plaintiff prevailed. Defendants regard the statements only as an admission that the ERISA statute allows attorney fees in some cases, but not an admission that an award is proper in this case. Defendants also argue that Plaintiff has "basically conceded" that Defendants’ legal position in this case was taken in good faith. (Brief in Opposition, at 5.) This argument is based on statements on pages “ve through seven of Plaintiff's Memorandum of Law. As p-inted out by Plaintiff, though, this is a curious argument since the statements made on those pages argue that Defendants were culpable for ignoring expert actuarial opinions. ‘Defendants' objections to particular hours are stated both in their Brief in Opposition, at pages 15-19, and in attached Charts/Exs. 4-9. A-34 LEGAL ANALYSIS A. Legal Standards Section 502 of ERISA, 29 U.S.C. § 1132, provides that "[i]Jn any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). This language has been interpreted by the Sixth Circuit as granting "substantial discretion" to the district court to grant or deny a request for attorney fees in an ERISA action. Jordan v. Michigan Conf. of Teamsters Welfare Fund, 207 F.3d 854, 860 (6th Cir. 2000); see Schwartz v. Gregori M.D., 160 F.3d 1116, 1119 (6th Cir.1998). Before exercising this discretion under a fee-shifting statute, the district court is required to examine five factors: =" z The degree of the opposing party's culpability or bad faith; 2. The opposing party's ability to satisfy an award of attorney fees; 3. The deterrent effect of an award on other persons under similar circumstances; 4. Whether the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and 5. The relative merits of the parties' positions. Schwartz, 160 F.3d at 1119 (quoting Sec. of Dept. of Labor v. King, 775 F.2d 666, 669 (6th Cir.1985)). The King factors are a useful tool in analyzing fee requests, but should be used flexibly by the district courts; no single factor is necessary or dispositive. A-35 Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 558 (6th Cir.1987). If an analysis of the King factors dictates an award of attorney fees, then attorney fees are calculated using the "lodestar" method of calculation, i.e., determining a reasonable fee based on a reasonable hourly rate and a reasonable *810 number of hours of service. The lodestar method was aptly explained by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983): The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence Supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, ‘billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed A-36 to one's adversary pursuant to statutory authority." Copeland v. Marshall, 205 U.S.App. D.C. 390, 401, 641 F.2d 880, 891 (1980) (en banc) (emphasis in original). Hensley, 461 U.S. at 433-34. Reasonable hourly rates under Hensley mean the customary local attorney fee rates for attorneys of comparable experience and expertise with one notable exception. See Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995). The notable exception is that certain cases, by their content and character, require the employment of “out-of-town specialists" to perform services not regularly performed by local attorneys. Id. Regarding such specialists, the Sixth Circuit has said: When fees are sought for an out-of-town specialist, courts must determine (1) whether hiring the out-of-town specialist was reasonable in the first instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 1982); Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983). A corollary of this rule is that judges may question the reasonableness of an out-of-town attorney's billing rate if there is reason to believe that competent counsel was readily available locally at a lower charge or rate. Chrapliwy, 670 F.2d at 769. Id. at 535. Adjudication of the lodestar fee does not end the fee analysis mandated by the Supreme Court. While there is a “strong presumption" that the lodestar represents a reasonable fee, pertinent circumstances may warrant an adjustment of the fee either upward or downward. Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401-02 (6th Cir. 1995). A list of many of the factors pertinent to setting the lodestar fee and adjusting the fee was specified A-37 long ago by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The Johnson factors have now become part of the settled law of lodestar analysis under both Supreme Court and Sixth Circuit decisions. These factors include: ——. (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Blanchard v. Bergeron, 489 U.S. 87,91 n. 5 (1989) (citing Johnson); see also Paschal v. Flagstar Bank, 297 F.3d 431, 434-35 (6th Cir. 2002). Like the King factors, the Johnson factors are a "useful catalog" to consider when exercising statutory discretion. Paschal, 297 F.3d at 435. They are not die-hard requirements to be met. ne Of course, as the Supreme Court has stated not once, but repeatedly, the resolution of a motion for attorney fees under a fee-shifting statute should not become a "second major litigation" itself. Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 609 (2001) (quoting Hensley, 461 U.S. at 437 and Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1988)). For this reason, the Sixth Circuit has determined that the district court should have substantial discretion in determining whether to conduct an evidentiary hearing on attorney fee motions. Bldg. Serv. Local 47, 46 F.3d at 1402. Consistent with this discretion, the Sixth Circuit only requires an evidentiary hearing on an attorney fee dispute when an evidentiary hearing is timely—___ A-38 requested and when the district court is unable to resolve material factual disputes based on the affidavits and written documentation submitted. Id. (citing authorities). In this case, an evidentiary hearing has not been requested. Moreover, even had it been requested, it would have been denied because the disputes between the parties can be readily resolved based on the written materials submitted. B. Entitlement to Fees and Costs As explained above, the Court must assess uncer the King factors, and other pertinent information, whether to award attorney fees and costs. Plaintiff's argument that the Defendants should be deemed to have admitted the entitlement misses the mark. The question by Magistrate Judge Carmody was designed to elicit whether there was a fee-shifting statute, not an entitlement to fees. Thus, the Court reads the answer, consistent with Defendants’ explanation, as only a confirmation of the pertinency of the statute. Likewise, Defendants' argument that Plaintiff's brief "basically concedes" the "good faith" nature of the defense is mistaken. The whole of Plaintiff's statements, when read in context, dispute the reasonableness of Defendants’ positions in this case. In terms of the King factors, the Court first finds that Defendants exercised a sufficiently high degree of fault so as to be judged "culpable." This finding is based on the fact that Defendants' position contradicts most, if not all, learned actuaries (including Defendants’ own actuary, Hewitt Associates) who have studied this issue and counseled against the use of a pre-mortality decrement in this context. From this standpoint, Defendants' position was more than slightly unreasonable. This is true despite that there was no binding precedent in the Sixth Circuit. The absence of precedent, though a brute fact, will not excuse the taking of positions which on their face are unreasonable and can be defended only by a sophist's resort to linguistic sleight-of-hand. A-39 Furthermore, as argued by Plaintiff, Defendants took other positions in this suit, especially on class certification, which were not even remotely reasonable. Defendants originally contended‘ that Plaintiff did not meet the numerosity requirement for the class because it was not sufficiently shown that more than a small number of class members would elect to receive pension benefits in a lump sum. At the time, such a contention was known or should have been known to be false simply because empirical studies of pension plan participants have shown (as one would expect) that they usually take their benefits in a lump sum. Since the resolution of the class certification issue, Defendants in answering discovery requests have admitted that 463 out of 473 known pensioners have taken their benefits in a lump sum as opposed to an annuity. Thus, in the Court's judgment, Plaintiff has shown sufficient culpability on behalf of Defendants. both as to the positions taken in advance of litigation and in litigation. As for the second King factor, Defendants have expressly admitted that they have funds sufficient to pay attorney fees. Therefore, the Court finds consistent with this concession. As for the third King factor, the deterrent effect of an attorney fee award warrants an award of attorney fees. Without this deterrent effect, plan trustees might opt to use the improper discount in hopes of not being caught (especially since this is a highly technical matter which is not apparent to pensioners, with the exception of actuaries experienced in pension administration). The award also is important for the purpose of fairly compensating the class. Without the award, the class members' legitimate expectations of complete pension benefits (without the improper decrement) would be ‘Defendants abandoned this contention after being confronted with their own statement to the Internal Revenue Service and the Department of Labor that they assumed that all participants would take benefits in the form of a lump sum. A-40 unnecessarily frustrated by the payment of the attorney fees themselves. As for the fourth King factor, since this is a class action affecting nearly all pensioners of the Defendant pension fund and the Plaintiff has sought and secured a common benefit for those pensioners, it is very apparent that this case was pursued to secure a common benefit for a large number of class members. It is also apparent since Defendants have attempted to justify their conduct based on a lack of binding case precedent that the resolution of this question is important both for the pensioners affected and the pensioners of any other plans following similar practices. Therefore, the Court determines that both the common benefits sought and the significance of the legal question favor an award of attorney fees. As for the fifth King factor, in terms of the relative merits of the parties' position, as reflected in the Court's Opinion of November 26, 2002, this factor clearly favors Plaintiff. Additionally, the Court notes that since its ruling, the Treasury Department has also proposed regulations which will direct the computation of pension compensation for cash balance plans without the offending decrement. See Proposed Rules, Department of Treasury, Reductions of Accruals and Allocations because of the Attainment of any Age; Application of Nondiscrimination Cross-Testing Rules to Cash Balance Plans, 67 Fed.Reg. 76123, 76133 ex. 5 (Dec. 11, 2002). © Accordingly, the Court determines that all King factors favor the award of attorney fees. As such, attorney fees will be awarded to Plaintiff's counsel. C. Calculation of Lodestar Amount 1. Reasonable Attorney Rates Defendants first argue in their briefing that Plaintiff has failed to justify the rates sought, citing to this Court's earlier decisions in Holford v. Exhibit Design Consultants, 218 F.Supp.2d 901, 910 (W.D.Mich.2002) and Swans v. City of A-41 Lansing, 65 F.Supp.2d 625, 647 (W.D.Mich. 1998). Both of those decisions significantly reduced attorney fee rates and fees based on the Sixth Circuit's holding in Hadix, 65 F.3d at 535, described above. As argued by Plaintiff, this comparison ignores the pertinent facts of both this case and the cited cases. Holford was a very simple ERISA claim (failure to provide a mandated notice) which could have been easily prosecuted by cheaper local counsel. Swans was a civil rights brutality case typical of many other cases filed by local attorneys. In neither of those cases was there any need to employ either high priced local counsel or an out-of-town specialist to perform the duties of the plaintiff counsel. | In this case, in contrast, the suit involves a highly technical ERISA claim based on the nature of actuarial assumptions made in computing pension benefits. Defendants themselves employed out-of-town specialists (the Chicago law firm of Seyfarth Shaw) to defend the action. While there are a small number of attorneys in the Western District of Michigan with some expertise in this area, in the Court's experience, these attorneys all work on behalf of employers and pension plans.* None of these attorneys, in the Court's experience, has any experience or expertise in prosecuting actions on behalf of plaintiffs and none has any experience in prosecuting class actions. Therefore, appointment of "out-of-town specialists" - was necessary in this case because local attorneys were not available to provide the necessary services. The type of speciality services needed in this case are provided only by a small number of specialty law firms which, almost exclusively, are located in large metropolitan areas. Plaintiff's attorneys are an example of such a firm. % ‘l was appointed to the bench in 1979. Before that, I began my legal practice in Western Michigan in 1958 and am well familiar with the firms and attorneys practicing in Western Michigan by virtue of long experience. A-42 Defendants have also argued that Plaintiff's counsel should be limited to the rate of $220 per hour. Defendants : justify this rate based on related arguments. One of these arguments is that Plaintiff's attorneys' billing rates for hourly clients are in fact lower than the rates requested. Another related argument is that the $220/hour rate was determined as the appropriate rate by the Northern District of Illinois as to the same attorneys in the ERISA case of White v. Employee Ret. Plan of Amoco Corp., 2001 WL 1204193 (N.D.III. Oct. 10, 2001). Plaintiff's attorneys do not disagree that their hourly rates for corporate clients are lower. However, they argue that those rates (whatever they are) are irrelevant because the services provided are of an essentially different character, i.e., those services involve simple advice on individual corporate decisions, they do not involve the issues at interest in this suit, and they do not involve the prosecution of plaintiff class claims. The Court finds this reasoning persuasive and will not limit Plaintiff's billing rate by use of an artificially lower rate which is not pertinent to the services at issue. As for the rate chosen in White, Plaintiff's attorneys characterize this rate as of minimal importance because White was decided on acommon fund theory of recovery as opposed to a lodestar analysis. Moreover, Plaintiff's attorneys also argue that the use of the White rate would be greatly unfair given the substantial inflation of attorney costs/fees which have occurred between the time services were rendered in White and the time services are to be rendered in this case. The Court concurs with both of these arguments and, therefore, will not artificially limit Plaintiff's attorney fees to the rates awarded in White. As for the Johnson factors, the Court will address each of the Johnson factors through separate findings. First, substantial time and attorney services were necessary to prosecute this case. As with all class actions, this case involved substantial effort in identifying class members and following the procedures under Rule 23 for the certification of the class. As with all complicated cases driven by actuarial issues, this case involved complex and technically A-43 skilled work in addressing the actuarial issue. As with all major ERISA litigation, this case involved detailed argument about the pertinent statutory authority for the relief sought. For all of these reasons, the Court finds generally that the time and labor expended by Plaintiff's attorneys were wholly necessary. Second, for the reasons explained above, this case is best described as a highly difficult and novel case. Third, for the reasons given above, this case necessitated an extremely high-level of attorney skill (i.e., within the top five percent of the national bar), which services were ably provided by Plaintiff's counsel. Fourth, consistent with the statements of Plaintiff's counsel, the appearance of Plaintiff's counsel in this case precluded Plaintiff's counsel from engaging in other lucrative work. Fifth, the customary fees for such work are best represented by the hourly rates for high-quality, major-metropolitan defense firms who regularly defend these kinds of cases (simply because the relevant plaintiff firms work on a contingency basis and not on an hourly-fee basis). The rate for eight-year associates of those firms (i.e., persons with "comparable experience" to attorney Cantarella) are between $300 to $400 per hour. Therefore, the Court will select the rate of $300/hour as the appropriate rate for attorney Cantarella. The rate for partners of those firms are between $300 to $600 per hour depending on the firm, the experience and the services rendered. Therefore, the Court selects the rates of $325/hour for attorney Yaker, $375/hour for attorney Geller, and $400/hour for attorney Schram as appropriate rates for their experience and expertise. While these rates are less than those requested by Plaintiff, they are adequate to fairly compensate Plaintiff's counsel. Sixth, Plaintiff's took this case ona contingent fee basis. Therefore, the contingency serves to justify the high fees discussed above. Seventh, this case did not involve unusual time limitations. A-44 Eighth, this case involves an estimated $2.7 million dollars, according to Defendants' last estimate. Therefore, the amounts at stake are sufficient to justify excellent representation at the rates described above. Ninth, Plaintiff's attorneys have excellent experience, reputations and abilities, as proven not only by their work in this case, but in many other federal class actions. Therefore, this factor supports the rates discussed above. Tenth, while this case was desirable from the aspect that the legal claims were likely to succeed, the lack of a controlling precedent made the case more difficult for Plaintiff. Therefore, the Court considers this a mixed factor which does not greatly impact on the fee analysis. Eleventh, Plaintiff and Plaintiff's counsel had no relationship prior to this suit. Their relationship is confined to representation in this suit. This factor does not significantly affect the analysis of either fees or rates. Twelfth, awards in similar cases support the rates described above. Plaintiff has composed a chart of similar cases in which high rates were awarded (Chart B). The chart supports the rates described above, notwithstanding the fact that Plaintiff's attorneys themselves have not always been awarded such high rates (as in the White case). The other "comparable" cases cited by Defendants are not comparable and do not bear on the appropriate rates for this case. Therefore, for the reasons given, the Court will award rates of $300/hour for attorney Cantarella, $325/hour for attorney Yaker, $375/hour for attorney Geller, and $400/ hour for attorney Schram. 2. Reasonable Hours of Service As stated above, the Court generally agrees that the total amount of attorney hours claimed was reasonably necessary given the legal tasks incumbent upon class counsel and given the serious opposition made by defense counsel. . With this said, however, the Court will also address the particular objections made by Defendants to hours of service A-45 by Plaintiff's counsel. It is conceded by Plaintiff's counsel that Plaintiff's counsel erroneously twice billed 1.25 hours for memorandum preparation by attorney Cantarella on December 21, 2002. Therefore, the second 1.25 hours will be stricken as mistaken. Defendants have challenged the total hours billed as excessive on the ground that the legal issues in this case largely overlapped with those in another of Plaintiff's cases (Lyons v. Georgia-Pacific Corp., 196 F.Supp.2d 1260 (N.D.Ga.2002) (unpublished)). In fact, Defendants have attached copies of underscored briefing for the purpose of showing that briefing done in this case was, in some instances, "recycled" from Lyons. Of course, this Court is not interested in the exact process used to create briefing, whether it be recycling or creation ab initio et ex nihilo. The Court is interested, however, in carefully regarding the billing of hours on briefing to determine whether the hours billed were excessive in light of the services provided. In assessing this, the Court does take into account that the repetition of briefing previously completed is not an arduous task. While this is plain, it is also plain that the facts of each and every ERISA case involving distinct plans are distinct. Therefore, even when briefing can be recycled, its recycling still involves significant numbers of attorney hours to tailor it and to ensure that the recycled briefing is factually accurate and legally pertinent to the circumstances of the present law suit. For those reasons, the Court finds that the hours billed by Plaintiff's attorneys for completing briefing in this matter were not overstated. In making the above finding, the Court also finds that the briefing was of a very high quality and greatly assisted in the resolution of the case. For the same reasons, the Court finds that the hours spent on the various briefs submitted were not overstated. These findings are consistent with the directions of the Sixth Circuit and Second Circuit in the cases of Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169,1177 (6th Cir. 1990) and Grant v. Martinez, 973 F.2d 96, 99 (2nd Cir.1992). Those cases make clear that in assessing attorney fees, the district court should assess whether the hours of service were A-46 deemed necessary at the time they were performed. The district court should not engage in an "ex post facto determination of whether attorney hours were necessary to the relief obtained." Grant, 973 F.2d at 99 (citing Wooldridge )."The relevant issue ... is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Id. Defendants' criticisms suffer inappropriate ex post facto thinking. The many hours expended in briefing were necessary because a reasonable attorney would have engaged in similar time expenditures at the time. Defendants have also objected to the number of hours billed in seeking attorney fees. Plaintiff has billed as much as 108.30 hours in the process of seeking attorney fees and costs. (See Plaintiff's Reply, at 23 n. 8; Defendants' Ex. 9, Chart F.) This is very large considering that Plaintiff only billed 636.1 hours in obtaining the relief ordered. The Sixth Circuit in Coulter v. Tennessee, 805 F.2d 146, 151 (6th Cir. 1986) announced a general rule that attorney fee hours in seeking attorney fees in lodestar cases are allowed, but only up to 3 percent of the total hours billed in obtaining relief. To the contrary, Plaintiff argues that this rule should be limited to civil rights cases, such as Coulter, and not be applied outside that context. This interpretation of Coulter is unduly limiting because the rationale in Coulter applies equally to attorney fee petitions filed under statutes other than 42 U.S.C. § 1983. Therefore, the Court will reduce these hours to the three-percent limit or 19.1 hours. The Court will do so by reducing attorney Geller's 8.3 hours on attorney fee issues to 2.5 hours and reducing attorney Cantarella's 100 hours on attorney fee issues to 16.6 hours. Defendants have objected to the hours billed by attorney Schram, which were mostly consulting hours. Defendants argue that Schram served only as the overseer of an overseer (referring to attorney Geller's supervision). Defendants’ argument overlooks the value served by office. consultations between junior and senior attorneys. These kind A-47 of office consultations alert less experienced attorneys to litigation pitfalls and save both the federal courts and many parties avoidable legal problems and the unnecessary expenditure of resources. They also ensure (as argued by Plaintiff) that technical arguments are appropriately "packaged" so as to be readable by non-actuaries, including judges of the federal courts. While in this case two senior attorneys were involved with oversight and consultation, their hours were relatively modest in light of the services rendered. In particular, attorney Schram billed only 7.7 hours. Such hours were an appropriate exercise of billing judgment and should not be stricken as unnecessary. See Hensley, 461 U.S. at 433-34; see also Rodriguez ex rel. Kelly v. McLoughlin, 84 F.Supp.2d 417, 426 (S.D.N.Y. 1999) (permitting attorney fees for office conferences by multiple attorneys); Meriwether v. Coughlin, 727 F Supp. 823, 826-27 (S.D.N.Y. 1989) (approving similar attorney fee billings). Defendants further maintain that 23 hours spent by attorney Cantarella in traveling to the Society of Actuaries and in researching actuarial issues there was unnecessary. Defendants suggest that attorney Cantarella could have simply called the Society and had relevant documents shipped to her office, thereby avoiding the travel. As explained by attorney Cantarella, her travel was necessitated by the fact that the Society does not conveniently catalogue all its materials and does not identify requested materials during telephone inquiries (which attorney Cantarella first tried before traveling to the Society). The information learned was very pertinent and the travel at issue was wholly justified. Therefore, Defendants' argument on this point is emphatically rejected. To summarize, Plaintiff's counsel will be allowed the following hours of service as time reasonably expended in this litigation: 576.9 hours for attorney Cantarella; 64.1 hours for attorney Geller; 7.7 hours for attorney Schram; and 15.80 hours for attorney Yaker. The Court regards those hours when multiplied by the allowable rates described above as a proper lodestar fee for Plaintiff's attorneys. According to the Court's calculations, this results in lodestar fees of: $173,070 for \ A-48 attorney Cantarella; $24,037.50 for attorney Geller; $5,135 for attorney Yaker; $3,080 for attorney Schram; and a total lodestar attorney fee of $205,322.50. While the Court will allow such hours of service, the Court rejects Plaintiff's suggestion (on page 27 of their Memorandum of Law in Support) to allow later billed fees based on subsequent verification of those hours by Plaintiff's attorneys without review by the Court. Due process does not permit the writing of such a blank check because such amounts (even if proper) would not be subject to legitimate challenge by Defendants and would not be independently reviewed and assessed by the District Court as required by section 502 of ERISA. See also United States v. Bowers, 828 F.2d 1169, 1175 (6th Cir. 1987) (warning about the writing of a judicial "blank check"). Therefore, this latter request by Plaintiff is rejected. D. Costs Defendants have also contested that the $4,973.12 sought by Plaintiff are not allowable costs, with the exception of the filing fee, which is conceded. Defendants argue that Plaintiff has not sufficiently documented the costs incurred. To address this concern, Plaintiff has filed an updated statement of costs (Ex. 65) which documents that telephone charges, copying, delivery charges, et cetera were made in connection with court filings in this case. Even without this documentation, the Court would be inclined to grant all such costs since exactly those kinds of costs are routine and expected costs of maintaining representation in this kind of suit. Based on the material submitted, the Court finds that the costs have been sufficiently documented by Plaintiff and were reasonably and necessarily incurred in this litigation. Defendants have also objected to Westlaw charges, citing unpublished decisions which hold that Westlaw charges should not be allowed. Plaintiff has responded by citing to decisions by the Third, Seventh, Tenth and D.C. Circuits allowing on-line charges as reasonable costs. See, e.g., A-49 Continental Illinois Securities Litigation v. Continental Illinois Corp., 962 F.2d 566, 570 (7th Cir. 1992); Case v. Johnson County, Kansas, 157 F.3d 1243, 1258 (10th Cir. 1998). The logic of those cases is irrefutable. They treat Westlaw charges, like paralegal expenses, as an expense which is routinely billed to clients and which is necessary and proper in the studied practice of law. A contrary rule would only discourage the use of on-line research and would make the legal practice both more costly and less effectual. Therefore, these charges will be allowed as proper costs. In reaching this ruling, the Court also relies on the Sixth Circuit's decision in Northcross v. Bd. of Educ., 611 F.2d 624, 638-39 (6th Cir.1980), which allowed costs, including paralegal fees, as part of reasonable attorney fees because such costs are routinely charged by attorneys as part of their effective practice of law. _ As such, Defendants' objections to costs are wholly overruled. CONCLUSION For the reasons given, an Order shall enter awarding attorney fees and costs in the amount of $210,295.62 in favor of Plaintiff and against Defendants. /s/ Richard Alan Enslen DATED in Kalamazoo, MI: RICHARD ALAN ENSLEN May 20, 2003 UNITED STATES DISTRICT JUDGE TRUE COPY SIGNED ORIGINAL FILED ELECTRONICALLY Ronald D. Weston, Sr.., Clerk A-50 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2004 FED App. 0303P (6" Cir.) File Name: 04a0303p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Frank J. CROSBY, individually and on behalf of all others similarly situated, No. 03-1044 Plaintiff-Appellee, v. | | | BOWATER INCORPORATED | RETIREMENT PLAN FOR | SALARIED EMPLOYEES OF | GREAT NORTHERN PAPERINC. | and BOWATER, | INCORPORATED, | Defendants-Appellants. | Appeal from the United States District Court for the Western District of Michigan at Grand Rapids No. 01-00683--Richard A. Enslen, District Judge Argued: April 20, 2004 Decided and Filed: September 9, 2004 Before: BOGGS, Chief Judge; NELSON and SUTTON, Circuit Judges. A-51 COUNSEL ARGUED: Thomas J. Piskorski, SEYFARTH SHAW, Chicago, Illinois, for Appellants. Eva T. Cantarella, HERTZ, SCHRAM & SARETSKY, Bloomfield Hills, Michigan, for Appellee. ON BRIEF: lan H. Morrison, SEYFARTH SHAW, Chicago, Illinois, for Appellants, Eva T. Cantarella, Bradley J. Schram, Robert P. Geller, Bradford T. Yaker, HERTZ, SCHRAM & SARETSKY, Bloomfield Hills, Michigan, for Appellee. OPINION DAVID A. NELSON, Circuit Judge. This appeal shows that the distinction between law and equity can still have consequences. ("The forms of action we have buried,” Maitland observed in a very different context, "but they still rule us from their graves."’) The plaintiff, a participant in a retirement plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, claimed that the plan administrator had acted improperly in using a pre-retirement mortality discount factor when calculating lump sum pre-retirement benefits. As a result, the plaintiff asserted, he was paid a benefit that fell $5,249.08 short of what he was entitled to receive. Invoking § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3),? 'F.W. Maitland, The Forms of Action at Common Law 2 (A.H. Chaytor & W.J. Whittaker eds., 1948). *As codified in Title 29 of the U.S.Code, ERISA § 502(a)(3) provides as follows: "A civil action may be brought-- see A-52 and purporting to act on behalf of a class of approximately 350 plan participants said to be similarly situated, the plaintiff brought suit against the plan and its administrator for what he described as “equitable and injunctive relief." At the heart of the plaintiff's prayer for relief was a request for recovery of additional lump sum benefits. After a wave of motions had been filed, the district court entered an order granting class certification, granting summary judgment in favor of the plaintiff and the class, ordering a recalculation of lump sum pre-retirement benefits without the mortality discount, and requiring the defendants “to immediately refund [the] under-payments...." For the district court to order the defendants to "refund" (i.e. to pay) the difference between the amount calculated without a mortality discount and the amount actually received was to grant a form of relief not typically _available in equity. Such relief, we conclude, was thus not available under the statutory provision on which the plaintiff elected to base his action. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), and Mertens v. Hewitt Associates, 508 U.S. 248 (1993). (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 provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3) (emphasis supplied). A separate provision, § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), authorizes a participant to bring suit "to recover benefits due to him under the terms of his plan...." The plaintiff in this case did not invoke § 502(a)(1)(B). A-53 If we assume, for purposes of analysis, that the defendants had no discretion to use the mortality discount factor in making the benefit calculation, the fact remains that ERISA § 502(a)(3), which authorizes only suits for injunctive or other equitable relief, does not, in most situations, authorize an action for money claimed to be due and owing. An action in which the plaintiff complains that the defendant owes him money and has refused to pay the debt is, of course, the locus classicus of an action at law; if we were te say that such an action qualifies as a suit in equity, we should be giving the words used by Congress in § 502(a)(3) a meaning that Great-West and Mertens teach they will not bear. The challenged judgment will therefore be reversed. I The individual plaintiff, Frank J. Crosby, was a participant in an ERISA retirement plan administered by defendant Bowater Incorporated, the parent corporation of Mr. Crosby's sometime employer, Great Northern Paper, Inc. Before he reached his normal retirement age, but after his pension rights had vested, Mr. Crosby lost his job as a result of Great Northern's having been sold to another company. The termination of Mr. Crosby's employment accelerated his right to receive benefits under the retirement plan. The Bowater plan was of the "cash balance" variety, a species of the "defined benefit" genus. The plan gave Mr. Crosby a hypothetical "Personal Account," and his benefits were to be a function of the balance in that account. The balance reflected credits geared to Mr. Crosby's monthly compensation and a specified rate of interest. The Personal Account was nothing more than a computational construct, and benefits were to be paid from the plan's general assets. If Mr. Crosby had been able to retire from Great Northern at age 65--the "normal retirement age" specified in the plan--a joint-and-survivor annuity would have been A-54 payable as long as he or his wife continued living. The amount of the annuity would have been determined by taking the balance in Mr. Crosby's Personal Account at age 65 and dividing it by a prescribed annuity factor. And had Mr. Crosby died before age 65 while still employed by Great Northern, a death benefit would have been payable in an amount equal to the then present value of his accrued retirement benefit. When Mr. Crosby ceased to be an employee of Great Northern, not having retired or died on the job, he became eligible, under the terms of the plan, for a distribution of his retirement benefit. Mr. Crosby, who was 43 years old at the time, elected to take his distribution in a lump sum. Bowater, as plan administrator,’ told Mr. Crosby that the lump sum would be $48,732.14. That was the balance in Crosby's Personal Account. (Article XII of the plan provided that a participant's accrued benefit could only be distributed in a form of payment selected by the participant from a list of options incorporated in § 12.2 of the plan. The second option, set forth in § 12.2(b), was "[a] single lump sum payment equal to the amount credited to the Participant's Personal Account as of the end of the month preceding his Benefit Commencement date.") a Claiming that the relevant statutory law, as interpreted by the Internal Revenue Service in IRS Notice 96-8 (IRB 1996-6, Feb. 5, 1996), entitled him to receive more than the amount credited to his Personal Account, Mr. Crosby asked Bowater to recompute his lump sum by (1) projecting interest credits to normal retirement age, (2) dividing the resultant age-65 account balance by the annuity factor prescribed in the plan, and (3) discounting the age-65 annuity to its present value. "Except where the context indicates otherwise, all references in this opinion to "Bowater" should be read as meaning Bowater in its plan-administrator capacity. A-55 Bowater acceded to this request, notwithstanding that the Internal Revenue Service had approved the plan provision pegging the lump sum entitlement to the amount credited to the participant's Personal Account. Mr. Crosby was advised that his claim for a larger benefit had been granted and that his lump sum entitlement had been recalculated. The resulting figure was $52,013.90. We presume that this amount was paid in full. In a detailed explanation of how it arrived at the $52,013.90, Bowater told Mr. Crosby, among other things, that it had used a pre-normal-retirement-age mortality discount factor in its present-value calculation. When it determined the present value of an age-65 annuity, in other words, Bowater took into account the possibility that Mr. Crosby might die before reaching the age at which he would be entitled to start receiving annuity payments. Mr. Crosby objected to the use of the mortality discount factor, filing an appeal with Bowater in which he made the following argument: "This discount factor is not consistent with the calculation method described in IRS Notice 96-8. Further, I believe this discount reduces my accrued benefit, and, thus, is not allowed under ERISA." Bowater's Pension Administration Committee denied the appeal, issuing a five-page explanation of its decision to do so. Mr. Crosby then sued the Bowater plan and Bowater Incorporated in the United States District Court for the Western District of Michigan. The complaint alleged, among other things, (1) that "when Bowater discounted Crosby's age-65 annuity to present value, it should not have used a mortality discount for the period before normal retirement age;" (2) that "[i]f Bowater had utilized the . . . mortality discount factors for the period after normal retirement age only, A-56 Crosby's lump sum entitlement . . . would have been $57,262.98" instead of the $52,013.90 produced by the method Bowater in fact used; and (3) that "Bowater's use of a mortality discount for the period before normal retirement age caused a partial forfeiture of Crosby's accrued benefit, thereby violating ERISA § 203(a), 29 U.S.C. § 1053(a)."* The complaint stated that Mr. Crosby brought his claim "under ERISA § 203(a), 29 U.S.C. § 1053(a), and the enabling — statute, ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3)." As noted above, Mr. Crosby did not bring his claim under ERISA § 502(a)(1)(B)--the section that authorizes a party to sue for "benefits due to him under the terms of his plan...." (Under the language of the plan, Mr. Crosby was entitled to less than he had already been paid--a circumstance that explains the decision not to invoke § 502(a)(1)(B).° ) The complaint alleged that approximately 350 plan participants or beneficiaries were in the same boat as Mr. Crosby--i.e., they were victims of Bowater's insistence on use of a mortality discount factor for the period before normal retirement age. Joinder of such a large number of individuals ‘Section 203(a) sets forth rules on the extent to which accrued benefits are nonforfeitable. As Mr. Crosby subsequently reiterated in a brief filed with the district court, "Crosby's claim is for violation of ... the anti-forfeiture rules under ERISA § 203(a)." ‘In his brief on appeal, Mr. Crosby tells us that he "could not bring his claim under ERISA § 502(a)(1)(B) because the Pian's lump sum provision contemplates payment of an amount equal to the participant's Personal Account ..., the amount Bowater initially offered Crosby. Consequently, if Crosby had brought his claim under § 502(a)(1)(B), he would be entitled to no relief at all...." We intimate no view as to whether this proposition is correct. A-57 was said to be impracticable, and the complaint stated that Mr. Crosby "seeks both equitable and injunctive relief for the Class, as permitted under ERISA § 502(a)(3)." The complaint's prayer for relief asked the court to enter ajudgment ordering the defendants to "[rje-compute any -and all lump sum benefits previously paid," using the methodology followed in the recomputation of Mr. Crosby's lump sum entitlement "but without any mortality discount for the period before normal retirement age." The court was further asked to (1) order the defendants to "[p]ay all Plan participants or their beneficiaries who previously received a lump sum distribution . . . the difference between the amount [so] computed ... and the lump sum amount the participant or beneficiary received from the Plan, plus pre-judgment and post-judgment interest on this amount;" to (2) "[e]njoin defendants from utilizing a mortality discount for the period before normal retirement age when computing a lump sum distribution from the Plan in the future;" and to (3) order the defendants to "[p]ay . . . reasonable attorney's fees and costs ..." The prayer for relief also included a request that the court "impose a constructive trust over the amount of plan assets necessary to pay the amounts determined ... and award any other equitable relief this Court deems appropriate." The defendants responded to the complaint with a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. The first and second numbered paragraphs of the defendants’ motion read as follows: "1. Crosby purports to bring this action under Section 502(a)(3) of the Employee Retirement Income Security Act of 1974 (‘ERISA’), 29 U.S.C. § 1132(a)(3), and styles it as an action to enforce Section 203(a)(2)(A) of ERISA. FR Crosby sues to recover an increased lump sum distribution of his retirement benefit under the Plan, a retirement benefit plan sponsored and administered by Ar ee A-58 Bowater. In particular, Crosby claims that in calculating the present value of his retirement benefit, defendants incorrectly used a mortality discount for the part of that calculation dealing with the time before Crosby had reached age 65." The brief accompanying the motion pointed out that the statutory provision on which Mr. Crosby purported to sue did not authorize a suit for the relief he was seeking: "Although what he really seeks is an award of additional benefits, a claim properly brought under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) [footnote omitted], Crosby purports to sue under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). That provision only authorizes Crosby to bring an action to ‘enjoin any act or practice which violates any provision of [ERISA] or the terms of the plan.'" Mr. Crosby filed a response to the 12(b)(6) motion in which he admitted the substance of paragraphs 1 and 2 of the motion: "2. Crosby agrees that he brought this action under § 203(a)(2) and § 502(a)(3) of the Employee Retirement Income Security Act (‘ERISA’). 29 U.S.C. § 1053(a)(2) and 29 U.S.C. § 1132(a)(3). 2. Crosby agrees that (a) he is suing to recover additional lump sum benefits; (b) the Plan is sponsored and administered by Bowater; and (c) he claims that Bowater incorrectly utilized a mortality discount for the period before age 65 when it computed his lump sum." The response was accompanied with a cross motion for summary judgment based on the complaint as filed; at no time A-59 did Mr. Crosby seek leave to amend the complaint. In due course, after Mr. Crosby had filed a motion for class certification, the district court ordered briefing on the appropriateness of the requested equitable remedies in the event the plaintiff succeeded on his summary judgment motion. In the brief filed pursuant to the court's direction, Mr. Crosby reiterated he had brought his claim under § 502(a)(3), "which authorizes ‘appropriate equitable relief." Arguing that the relief he sought was "equitable" as well as "appropriate," Mr. Crosby cited Great-West Life & Annuity Ins. Co. v. Knudson, 634 U.S. 204 (2002), as "suggest[ing] that if the relief requested does not seek to impose liability for a contractual monetary obligation, it is probably an appropriate equitable remedy." The district court was told that "Crosby does not seek to impose liability on defendants for any contractual obligation to pay money." After the completion of briefing, and having dispensed with oral argument, the district court entered a final judgment in which the court granted class certification; denied the defendants’ motion to dismiss; granted the plaintiff's summary judgment motion; enjoined the defendants "to recalculate the lump sum benefits of class members who had previously received lump sum benefits, in accordance with the Court's Opinion, and to immediately refund under-payments, plus pre-judgment and post-judgment interest;" and to "calculate lump sum benefit payments for class members who have not yet received any lump sum benefits in accordance with the Court's Opinion." The opinion itself--a comprehensive and well-crafted analysis of a variety of issues, some of which are not in contention on appeal--reasoned that because the plan provided for payment of a pre-retirement death benefit in the amount of the then-vested present value of the participant's accrued benefit, the death benefit was not "incidental" to the participant's accrued benefit and the plan administrator thus A-60 lacked discretion to use a mortality discount factor in reducing the projected age-65 annuity to its present value. The bottom line, in the district court's view, was that the lump sum payment to which Mr. Crosby claimed to be entitled--$57,262.98, as the court noted--should not have undergone the mortality reduction that resulted inalump sum payout of only $52,013.90. The defendants perfected a timely appeal. Much of the argument they present to our court is a defense of the merits of the plan administrator's decision to take pre-retirement mortality risk into account. The defendants argue further that the decision should have been reviewed under an arbitrary-and-capricious standard, and that the district court was required to uphold the decision as reasonable. We do not reach these issues, because--as the defendants also argue--the primary relief sought by Mr. Crosby did not qualify as "equitable relief" of the sort authorized by ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). I] The present opinion is not the place for a history lesson on the development of the parallel systems of jurisprudence known as "law" and "equity." It will suffice, we trust, to remind the reader that courts of law--in which the common law of the English speaking peoples had its principal growth--were for a number of centuries separate and distinct from chancery courts (originally the court of an ecclesiastical person appointed by the king to be his chancellor); that the rules of decision followed in chancery courts were not 7 common law rules, but rules of equity; that chancery courts (i.e. courts of equity) likewise had their own procedures--procedures under which, for example, the chancellor performed the fact-finding role that in courts of law would be performed by a jury; and that the remedies typically available to a party who prevailed in a court of equity (injunctive relief, e.g.) were far from identical to the remedies A-61 the prevailing party could obtain in a court of law. Although, in most jurisdictions, the same courts have long administered both law and equity,’ the unified courts have been administering what Professor Geldart described as “distinct bodies of law, governed largely by different principles.”” Against this background, we return to the text of ERISA § 502(a)(3), the statutory section under which plaintiff Crosby brought his suit. Under § 502(a)(3), as codified at 29 U.S.C. § 1132(a)(3), Mr. Crosby could institute a proceeding "(A) to enjoin any act or practice which violates [ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of the plan." (Emphasis supplied.) Section 502(a)(3) does not authorize a plan participant to sue for recovery of benefits due to him under the terms of the plan. That is the office of § 502(1)(B)--a section with which Mr. Crosby has always insisted he will have nothing to do. But what if the benefits are not claimed to be due under terms of the plan, strictly speaking, but under the terms of a statute--in this case ERISA § 203(a), 29 U.S.C. § 1053(a)--setting forth requirements that the plan must satisfy? The answer, we believe, depends on whether the claim for benefits allegedly due under the statutory requirements is or is not, at bottom, a claim for injunctive or other equitable relief. No matter how well founded it may be as a matter of substantive law, a claim for benefits is not cognizable under § ‘In England, for example, this has been true since 1875. See W.M. Geldart, Elements of English Law (5th Ed.1953) at p. 22. In some American jurisdictions--New Jersey, for exam ple--the fusion took place within living memory. See N.J. Const., Art. 11, § 4, § 3 (1947). 'Geldart, id. A-62 502(a)(3) of ERISA unless it is a claim for "equitable relief." As used in § 502(a)(3), the Supreme Court has repeatedly held, “equitable relief" refers to "those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993); cf. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002). And "[a]lmost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for 'money damages,’ as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant's breach of legal duty." Bowen v. Massachusetts, 487 U.S. 879, 918-19 (1988) (Scalia, J., dissenting), as quoted with approval in Great-West, 534 U.S. at 210. "An [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_IA40386007_1381%3A2. Public record. Not legal advice.